tv C-SPAN Weekend CSPAN February 14, 2010 2:00am-6:00am EST
and he was arrested in the airport. still for more than -- four days or more than that. five days. i hope he will be released in order to call in a loud voice to soon relieve him and to allow his free access to whatever he wants as a journalist. i can't start this gathering, this meeting without to say that i feel euphoric sitting much more higher than you than danny ayalon with this and my podium, but i think you can feel how its affecting others. >> at least -- [unintelligible]
>> at least not here. >> it feels unique to be arab in israel. it is much more unique and tough experience to be an arab in the knesset. it is a very interesting place. but it is a daily struggle. . y struggle. it is a daily struggle in order to try to bridge the gap. it is a daily struggle in order to be equal. especially in this where a lot of emotions were proposed which is mainly focusing on an equal rights for arab citizens.
narrative that cannot be breached. you know what happened in 1948. there isñi the zionist narrativ. from 1948 until now, palestinians are the victim of the zionist narrative. no one can expect the victim is to be loyal to those who have acted against them. i am talking about deportation, destruction of the nationxd, but we do believe that the jews and arabs are citizens of the same state of israel should be equal. before 10 are 15 years, they are
talking about discrimination between jews and arabs. those are now mainly talking about discrimination, especially under the title of israel and definition of a jewish state. israel is defined as a jewish and democratic state -- a jewish before the democratic. we doñr believe that there is a contradiction between the two values. being defined as a democratic state, you should lead mainlyñi equal rights for all citizens. but you can not if you are defining yourself as a jewish
all of its citizens. no one minister supported my motion. no one minister. there was a vast majority who voted against my motion and, againw3ñig the knesset. ñrin the basic laws of the knesset there is no one basic law talking about equality as a value. ñrif i was asked to have a motin talking about equal rightsçó, te basic laws demanding equal rights for all citizens, not
jews and arabs, but all citizens, secular and religious, it will not pass. it will not pass. we tried it. i demand equal rights. >> you say we are a democratic state, you see? >> in being intimidated by the guy. -- i am it being intimidated by the guy. i would like, minister government talked about his meeting. if he is trying to say that israel should be with equal rights for all citizens, there
is no one aspect of israel were equal rights are or jews and arabs. that is why iñr do appeal from here to be secretary-general not toñr approve the membership of israel unless there are equal rights and equal budgets for arab citizens just like jewish citizens in israel. thank you very much. [applause] >> thank you very much mr. tibi. that brings us full-circle. we want to call upon you, the journalists, to ask questions. i just ask that we do not make statements.
that we are able to address it to we are and to whom you are going to address the question. i am going to bring in the translator said that any questions that are asked in arabic are going to be translated immediately into english for this audience. if we can pleas by ray's of hands began with those who are in -- raise of hands began with those who are interested. >> i would like to ask dr. tibi exactly what loyaltyxd oath he would be prepared to take. i would like to ask my arab colleagues what have you received out of this meeting and was it worth coming. >> you can answer from your
my question is, how can we read in state and go back to peaceful negotiations if, in fact, mr. netanyahu is presenting a state without any clear of order, no control over the borders, he is not talking about jerusalem or the return of refugees. i did not learn anything like this in political science. a country can be established without having security, without having a capital which we consider as its capital. >> thank you. what we see here is something that is unique in political
science. we are talking about the creation of a new state that has not existed before and you will see that the irony of@@@@@@@ @å) you stated el queptly the demands from the palestinian side. we have our own demands, and we should meet in between. however, let me draw attention that on two cases in the past eight or 10 years, there was a very, very comprehensive offer by the israeli government put on the table, one in 2000 at
camp david by barack, and one by prime minister olmert a year ago. with very exact parameters as you discussed, including borders, and unfortunately they were rejected. this is not helpful for coming into reconciliation. let me tell you what ahmed said. i tried to get into medical school, which i couldn't. is a very respected doctor in israel. when you talk about democracy and equal rights, and i believe we do have equal rights, however, i went to an economic school. i did not go to a medical school.
dr. tibi is more competent than me so he should get it. the fact that he is not a jew did not prevent camp from becoming a very successful gynecologist. when we talk about a jewish state, a jewish state -- gsmçó s not just a religion, it is at -- judy is on -- judaism is not just a religion, it is a way of life. we do not take it as an offense as jews, but as citizens. whether it was turkey, the ottoman empire, are egypt, we
were loyal to the king. we were loyal to the country. let me emphasize that we do not ask anything that is out of the ordinary throughout history. it is a double standard that arabs-israelis do not accept israel as a state. they do have a choice, when we talk about a solution we talk about the chance that arab- israelis would it go without going physically, but would change and transfer their citizenship. ñrñithere are 250,000-300,000
israeli arabs. when we talk about land that the palestinians' request, if we are to incorporate areas and to israel, while not those that will join the palestinian state? >> we have to be loyal to time and try to get some more questions in. i want to set the record straight and let you know that there were journalists from gaza that did not get permission from home loss -- hamas. can we move onto the next -- >>
[unintelligible] >> any questions? >> i have questions about his remark that i was accepted into a medical school in israel and that this was a sign of equal rights. i would like to say that i was accepted because i succeeded in my exams. what is good in me is because of knee. what is bad in me is because of discrimination. second, about the idea of
moving the arab citizenship to the state of israel. that is why we are saying that we cannot accept and we totally denounce the proposal of dealing with us as guests. you can move from here to there. we are indigenous. we are born here. we do not want to deport anyone from israel, but if anyone should move, usually those who arrived at the end are supposed to leave first. we will not arrive lately to this homeland. >> we are going to move on.
i would like to answer. we have to a large extent as journalists -- we are able to bring our boys forward to the leadership. i think -- felice -- voice forward to the leadership. i think the leadership and the people who carry important positions do watch the media, do follow up on what happens in the media. it has great influence. leadership members also watch media and what is stated on it. >> any questions, please? >> [speaking arabic]
i worked for the israeli tibi in arabic. what i see and what i notice is the coverage of the palestinian or the arab stations is one- sided. we usually hear a different criticism to israeli plans. i never hear any criticisms of the palestinian authorities. >> to whom did you abreast -- address your questions? he should get someone else a chance first. does anyone else want to ask a question? >> in david horowitz. i think is terrific that we can meet together as israeli and
palestinian journalists. i think, and i am speaking to the palestinian journalists, we set out quite a good consentual summary that israelis would like to resolve the contradiction of trying to be a jewish and democratic state by reaching an accommodation with the palestinians said that the israel that is left is overwhelmingly jewish and maintains its democracy. i think it would be useful for us to hear from our palestinian colleagues, what is the palestinian attitude. what about the right of return? i would like some sense from you about whether the palestinian public is ready for territorial accommodations, whether they are prepared for
two-state solution. that is a scene from elections and from electing one who presented an agenda of a two-state solution. he had the higher number of votes in the election. as for the refugees, no one who is forced to leave his land, especially from the first or second generation will see this as an easy solution. but everybody of the palestinians feel and see that the point of view co-existing and understanding there are natural rights which are for both sides, and they accept that. >> any questions for nebs of the knesset? ]
what might israeli colleague has presented. when he watches palestinian channels he never hears any criticisms of the palestinian government or authority. to an extent that is true. it is something based on on what happens on the ground. we are suffering as people. we demand a palestinian state. we demand abolishment of settlements. we demand to have a capital in jerusalem. all bids -- indeed, we are demanding these through our media.
were never answered. i guess at the time they were not comparable. -- comfortable. it may not be relevant in days, weeks, or months, but it is something that can be understood. we are not in power now and we are not in a position where we can negotiate. we do support the government's efforts to go forward and it renewed the peace process.
we call upon the palestinians to give the prime minister a chance otherwise we will be stuck for years. we do not want to deal with the media about the refugee issue are about the nature of possible solutions in jerusalem. there is no way it can be effective if it is discussed in the media. it must be behind closed doors at the table with the palestinians and we hope to be part of those negotiations. >> as you heard, i do not see much difference.
i think we could have created a broad coalition. certainly we need leadership in the future. it is symptomatic to put the onus on israel. it could be just as relevant to ask the palestinian leadership if they believe they could reach an agreement with israel. i would say that these things should be discussed honestly in a negotiation which would be direct negotiations without preconditions. i do not want to say anything that is presumptuous or
anything that would be prejudicial to any agreement. >> if you could just say a couple words before we close. >> i feel that it was too short and maybe should be the beginning of an ongoing dialogue. we speak a lot and we fight a lot in the knesset for years and years. this is an opportunity that i did not have much, to hear palestinian people who are involved in the media to reflect the feelings of their community
and to can be partners with israelis. i think we should go forward and make more meetings as many times as we can. we would be happy to do it. this is a good opportunity for us to get to learn each other and be more knowledgeable of each other's affiliations. i want to thank all of you, especially those of you who came from the palestinian authority. i want to thank you very, very much. [applause] >> >> before we close this session, i want to thank the palestinian journal itses that came today. there are hopes that there are going to be many of more of these sessions.
we are going to charter more buses back and forth. david has agreed to join us and go to ramala and teach some photojournalism there. so there are a lot of things we are going to be involved in, and we are going to be informing you. i want to thank each one of you, the journalists that came out today. you are writing about the stories here. you are each covering the stories here. you need to have the access definitely. most important, don't forget your colleagues in a case that is not always simple. i want to thank our staff because they did an incredible job. i want to single out a few people. michelle kleger, thank you. people don't realize how difficult it is to megan hundreds of calls. and i want to thank ahmed, and areas. and the rest of you know who
you are. i want to thank our hosting member of knesset. many thing. danny alone, the deputy foreign minister. with that, i close this session. [captions copyright national cable satellite corp. 2010] [captioning performed by national captioning institute] >> here's a look at our schedule. coming up next on c-span, "america and the courts." a look at the supreme court and popular opinion. later, idaho governor bush otter delivers his state of the state address. and later, regulating large financial companies. tomorrow on news makers, tennessee senator bob corker talks about efforts to craft a
beale on financial legislation. he is interviewed by two reporters. news makers tomorrow at 10:00 a.m. and 6:00 p.m. eastern on c-span. >> it's the only collection of american presidential portraits. by renowned painter and sculptor chaz, fagan. see it on line. >> this is c-span's "america and the courts." up next, a discussion on the relationship between the supreme court and american popular opinion. a panel of experts talked about how and if the american public influences the supreme court. the national constitution center and the university of pennsylvania law school hosted this discussion in philadelphia last month.
>> we are back in the silly season in washington because the president of the united states undertook to say something directly to the supreme court. and in an exhibition of dispepsi ya, or bad manners, one of the justices of the supreme court felt a need to respond. now we are in washington this morning talking about the need of justice alito to apologize to the president and the need of the president to apologize to the supreme court of the united states. i rather doubt we will get either. today we are going to be talking about an issue that is as fresh as eight days ago, when the supreme court of the united states decided what may
be the most controversial decision of the current term. the only competitor for that may be the coming decision on the scope of the second amendment, whether or not that applies to state and local government gun control laws as well as to federal and district of columbia laws. the decision released on thursday a week ago, an unusual special sitting the court had in order to release that opinion, is deeply controversial in washington. it has provoked an almost immediate responsibility. senator franken became the first yesterday to introduce legislation to modify the court's opinion or at least to limit its scope so that it does not liberate foreign-owned corporations from putting money
into american politics. there is talk, though it is already talk that is losing its punch, about a constitutional amendment to overturn the decision. so once again, we are returning to the cycle that barry has done this wonderful book about. by the way, i am a partisan of barry's book. it is a superb piece of work. i would call it a master work in the field, and i caution you . do not read only the text itself, because you will mitt 200 pages of absolutely wonderful footnotes. [laughter] it is comical to praise footnotes. however, the supreme court uses footnotes in a very effective way, and barry has continued that tradition.
i can't imagine anybody doing the amount of research that barry has done for one particular project. it is the kind of research that looks like a lifetime endeavor. it is really worth your time, all of the time it will take you to read it. it is well worth it. today we are going to go into barry's book in some detail. there will be disagreement on our panel i have already been promised. we are going to try to examine the question that barry says is foremost in his perception, and which is the way he put it in an interview with my blog the other day. "my main conclusion is that the most important function of judicial review is to provoke public at the bait on major constitutional issues." we are going to have that kind
of a debate here this morning, and at the last third or therebuss, last fourth of the program, we want you to join in our dialogue. but first let me let barry try to promote his book a little bit and start the discussion. and very quickly then i expect both jeff and lee to join in. we don't have set speeches prepared. but we will have a round of each of us having something to say. i am finished with mine. barry, for you? >> thank you, lyle. i want to thank everyone in the national constitution center and lyle. lyle was gracious in making the point that it is an extremely long book. i tell people to start the book and noodle your way to the parts of history you enjoy.
i have to admire the national constitution center for knowing to schedule this today after the decision and the flap. i do say it is a jumping off point to understand what the book is about. citizens united ignited a stir in the media, and you get the same reaction to it that you get from all controversial decisions of the supreme court, people complaining the court is untouchable and unaccountable and where do they get off deciding issues like that? i thought i would give you three issues that would be common in terms of how the public responds to the supreme court. the most likely is the case gets decided, there is some immediate anger, and then it drops quietly into the deeps of the ocean. there are many controversial things the court does. they are blips in the media, people are unhappy, it falls away, and we go on with our
business. in part particularly now, not so early in his, people are willing to float the supreme court a little space. the second possibility, as journalists would say, the story has legs. people care about campaign finance, it strikes them deeply. maybe the court decides a couple of other position on campaign financing and it riles people up. our hands are tied a bit because of citizens united, and we can't pass the laws that people like al franken wants to pass. as justices retire, and wle pick new justices, the president is picking them based on their views on financial law. that is what happened on rowe versus wade. when it gets decided, it
mobilizes a pro life movement against the decision. there is a long debate about abortion rights. over time new justices are appointed, and 20 years later the supreme court decided planned parenthood versus casey, which scaled them back. we see a change in what the constitution means. the third and most dramatic thing that might happen with the lowest probability that it will happen, and jeff may say something about this, is that this is the first of a series of decisions that the court takes that really go face to face with the current administration on particular issues. they have another case this term about the board that regulates accounting firms. i think they are going to strike that down as being unconstitutional, and we get the sense that the court is against the government's agenda. people are worried about the economy and corporations and this court seems to be going against it.
it becomes a matter of controversy, not about one decision, but about what the court is doing against what the people want. that happened in 1937 dramatically during the new deal. roosevelt is president. congress is passing legislation trying to do something about the new deal, not that it would have made a lot of difference. the court kept striking it down. roosevelt suggested packing it. adding enough justices to change the outcomes of decisions. everybody is mesmerized by the question. the country comes down against packing the court but not before the court suggests it is going to change its direction and come into line with what the president and the people want. most likely not much happens, more likely we get some campaign changes from the
court. least likely a confrontation. but that is the way in which public views becomes substantiated into the constitution. >> jeff? >> i would like to talk about the third possibility that he identified. he called it the most dramatic possibility. is it conceivable that we could in 2010 or 2011 have a reprise of 1937 with a popular democratic president taking on an obstructionist supreme court? this would be something. i like the fact that he described my book as the most dramatic branch. it is actually the most democratic branch. there are rare events when there is a clash. could it happen again? so i agree with barry that a full-blown confrontation may be -- may not materialize. but even a partial
confrontation might have political repercussions that could be almost as dramatic as happened during the new deal. to try and think through what will happen, and i don't have firm views, but we have to distinguish between two strands of judicial conservatives. let's call them for simplicity's sake, pro business conservatives, and libertarian conservatives. the pro business conservatives are not totally deregulatory, but they believe in the unified interests of american business. they are represented by the united states chamber of commerce, which one several cases before the supreme court. they believe in economic recovery, but what they don't believe in is litigation.
they are represented by justices like job roberts and sam lito. john roberts represented the chamber of commerce and they were sympathetic to his agenda. on the other hand, there are libertarian conservatives. these are represented by groups like the cato institute, and the institute for justice. they want to drive a stake through the heart of the post new deal regulatory rates. they want restrictions on congress' power to regulate interstate commerce. arguments that congress can't delegate without standards to guide it. they have already filed a lawsuit to challenge the troubled asset relief program. the same government that organized the tea party has already challenged the tarp as
an unconstitutional delegation of resurrection power, resurrecting the prenew deal doctrine. are they going to win before the supreme court? i don't think so. who is the justice who is likely to be sympathetic to the libertarian arguments if you had to argue? >> scalia. >> scalia is a good guess, and i would have thought that, too, but it turns out he defected from the libertarian camp in a 2006 decision. a 6-3 decision says that congress can regulate pot even if some state laws are on the other side and say that medical marijuana is ok. it turns out that scalia is more of a hamiltonian type of
person. that leaves clarence roberts. he really wants to resurrect this prenew deal understanding. he is barry freedman's analog of the four horse men who in pre1937 were willing to challenge roosevelt. i don't think there is going to be a majority for a full-blown confrontation, but that does not mean that the court might not inadvertently stumble into a confrontation. you look at the language of person person-hood in the citizens united case, and it unites the libertarians and the pro business types in the central figure of anthony kennedy, who has elements of both of these strands. above all, he is a judicial supremacist. he is more willing to strike down federal and state laws than any other justice. he voted to strike down more lows than any other justice. he has an almost romantic
notion of individual liberty that may lead him to strike down the financial accountant say this happens and they strike down the financial accountability board. they probably think of themselves as moderate. john roberts came into office saying he wanted narrow unanimous decisions. he didn't like 5-4 decisions. basically he says sometimes you have got to bite the bullet. so he might think well i'm not challenging the president at all, just a little bit here in campaign finance and the financial accountability board. i think one of the things about barry's books is that it only takes a couple of high profile activist decision that is provoke a presidential action.
we think about the officials striking down the national industrial recovery act. these are the ones he about learn in law school. we forget the many decisions that up head parts of the new deal. the court upheld the! of the nation's monetary policy, it upheld the tennessee valley authority by 8-1. the new deal court thought it was being judicious. but once you have a president standing in the well of congress attacking the supreme court face to face as obama and roosevelt did, this will provoke a response the justices cannot begin to imagine. they cannot anticipate the effects of their decisions. this court is playing with fire. it is a dangerous game to even provoke a bit a popular
president on issues that a country cares about. we have seen this narrative many times before and it rarely ends well for the supreme court. >> jump in. >> i will just pick up on jeff's comments. i would, i think -- i agree that i wouldn't put scalia on the list, but i don't know about alito. that sort of remains. this is all right. if the court provokes the administration, there will be -- they will pay a price. that is the lesson of barry's book, that the court will ultimately defer, will have sort of back to sort of a timid court. but i want to push barry on that a little bit. i don't think you struggle sufficiently with this point in the book. so we have a court that will defer, a timid court.
is that preferable to a judicial supremist court? what do we get out of that? why do we have a court? >> i think it is not only a terrific question, but the right question. i try to say this at the end of the book, which is, as you read your way through american history, what you find is that people get angry at the court, they attack the court and say what do we do about this court and there is there angst about this undemocratic court. it is hard to remove them, and so are we stuck? that is precisely what it is written again, saying that is the wrong word. the truth of the matter is we have ways of getting to the court, and it is responsive. you solve the egalitarian problem. the court is not a majority body
for very long. it becomes one, it becomes a submissive body, a meat body, a different body, what good is that for democracy? >> the other story you hear is that this is a body that will protect individual liberties and constitutional rights, so how does it do that? so to use the analogy of a leash or bungee cord, it has a certain amount of room to room, but at some point if it runs too far, it gets too far out of public opinion, it gets snapped back. the interesting question on the social science, clear answers, when and how is this independence from the court? i will point out that until citizens united, the roberts court had done a tremendous amount of pushing along the conservative agenda, but they had done it very quietly.
so there are ways the courts can do things. when the trumpet sounds and they go face-to-face with something the public cares about, they are record to get in trouble. they do it quietly and sutley, and there will be no room to go around. >> let's move down to the central question here. how the american people expressed their response to the court, and how does that translate into judicial outcomes? we have a referendum on the obama administration in the state of massachusetts, and one could say the administration has failed. so the american people had begun reacting to the president, but suppose thatñr the president has come to talk about it with citizens united.
they read the stories of people who are not activists of all but they heard about roe and were shot there is a right to abortion, mobilized, organized from the bottom up. the next thing you know, there is a vibrant offered. >> this has been mentioned not just by united but also by the roberts corp., assuming constitutional customer >> their house, where people are energized. thereçó are organizations who ae energizing them. the remarkable thing is that obama understands the message of barry friedman's book.
if you read model answers for students, me and all of my colleagues were put to shame. they were more careful and well thought out than anything i have ever produced. but he argues on his chapter in the constitution in his book of liberals have recently relied on the fiction that eight supremacist court battles for them. most civil liberties have come from the bottom up. the reconstruction republicans after the civil war and before came up with the idea you could only ban speech in a period of danger. it took the supreme court 100 years to codify that principle into wall.
so if we're talking about liberals, no. çófree-speech, a quality has coe more from political after d --y q%1h!13e more from úo ñiçóçóthey are thwarting progree walk, rather than advancing it. they can codify in principle after it is accepted by the country, pushing ahead. you have to protect speech in those circumstances, we can codify that into law. but it is a fiction.
obama gets it, and barry friedman gets it, to imagine that they are creating these legislations. >> i think the court gets it, and citizens united is a great example. there were several opinion polls down on campaign financing, and we learned two contrary things about the public. they value free speech, but the other thing is they want limits on campaign contribution. so if you look at the supreme court's's decision, and people have done analyses of the decision, how did kennedy frame and? the free speech, free speech, free speech. very little on corruption. those words we do not want to share. so they are good at framing decisions that will attack public support -- attract public
support, as well. >> we had an interesting and judicial reaction to the supreme court opinion with this past week. the court of appeals from the district of columbia held a hearing, an hour-long hearing in a new case, the speech now case, which attempts to take the citizens united decision and move it back towards analysis of the constitutionality of contributions in campaigns. and it was interesting because the present the judge of the d.c. circuit opened the hearing by saying to the council for the organization looking for more freedom, do you have anything to add to justice kennedy? the point being that already, the lower judiciary has
processed and is beginning to, i think, anticipate expanding into other realms. so the controversy, if there is one in response to citizens united, is going to be exaggerating very quickly. >> he wouldn't hesitate to expand broadly. it is a kind of libertarian conservatives who would strike down new deal regulatory standards, and you think, aren't judge is supposed to be principled? it clearly does:the question expenditure contributions, and
be principled. barry friedman says no. the question is, what would john roberts do about this, when at the end of his first term he said that he feared they were acting like law professors, and that law professors would be terrible justices. i had to convince my colleagues that sometimes you have to be pragmatic and think that the country is ready for this, it will not attract big support. and i think roberts is a barry friedman-like justice. there are plenty of conservatives to agree that corporations should have broad protection, but when you are a judge, you face the possibility that a majority of the country does not agree with you. the pragmatic thing to do is restrain yourself.
be modest. do not put your principle to its conclusion. so i like that, because it seems that it is generally good for liberty to be defended. >> is a very effective strategy with judges who do not want to wade through hundreds of pages of opinion but one the restraint, pragmatic, for it to go both ways. i think that it works. >> it is important to emphasize the importance of the lower court, and i think president obama understands my book. justice kennedy, somebody gave them a copy. i do not know if he has read it. >> nixon, earl warren -- they
got it too. [laughter] >> things happen in the lower court after the supreme court decides the case. if anybody thinks they have the right of their own and the public, i agree with the justice that it is good to be cautious. i want to cite that they say it is good to be chromatic -- pragmatic, but there is the story about the constitution, that they are protected. after all, that is the point of having a constitution. a lot of that happens and the lower courts. there are things that officials do, police officers do, they infringe on rights and get litigated with the justice, and so that is an essential part of
the system. it is just different at the supreme court. it is not a court like other courts. it is a political accord. it is part of government. >> game marriage, which is going on right now. the constitution defense game marriage. and if you are in california, it will provoke a backlash, prop. 8 will clash, and it will set back politics and you are afraid that it might have led to the election of president bush rather than john kerry because it made a difference in ohio or pennsylvania. so you are literally torn between your commitment to principle on one hand and more pragmatic judgment that there will be a backlash. what you do?
you know, the court decides, well, the public is not here, and you get other movements pushed back. one of the best things that happened for the movement was ballard versus hardwick, where the court decides the case and says, you know, there is no right to sodomy and these laws are constitutional, and it is that decision that so struck at the height of the aids epidemic, you could predict what the court would do if you read the book, but at that moment, you know, the gay rights movement really engages in the country engages and we get this huge debate and 20 years later the court reverses and we are where we are now. >> in this area, may be gay marriage is a peculiar example. but the public has already spoken. state after state after state,
legislation, the state legislatures have responded and to change their own constitution to match. so what message does judge walker, sitting in san francisco now with the case before him, how does he read what has happened already in those countries in terms of expressing a political sentiment on this issue? >> people have mentioned the scopes monkey trial, and it is the same. we're having a trial about a contest that fact. it is not like a car runs through the intersection when the light is red. you have a history of gay- rights, and it is and add -- odd question to decide after hearing this testimony, but you are right. i never say on the book that it
should be, and that is a complicated question. but the court coming into overtime with the considered views of the people, if you had time to debate, that is ok. but i think it is not45q1e gay marriage. >> on the other hand, i think, and you put this out in your book and we could all think of examples where the court has not been timid or meat, or to use your metaphor, it has stretched that bungee cord as far as it will go. so one question i think for both of you is, when does the court take that risk? >> it is a case for everybody, brown versus education. brown was not on popular when it
appeared. it was supported by 54% and opposed intensely by southern minorities who opposed congress. it was supported by the truman administration and even the eisenhower administration, although eisenhower was a more supportive proponent behind the scenes. it was not a complete story. it was not until 10 years leader until the sun -- civil- rights movement, that meaningful desegregation actually occurred. >> that is fair, but only fair to a point. relative to something like sex discrimination, but court was the head of the curb -- the court was the head of the curve. in sex discrimination, it was behind the curve considerably. so what kind of issues is to
court willing to throw out a little bit? is gay-rights one of those issues? i do not know. >> let's turn to a different one. the war in terrorism. where is that? the court let way out in front. four or five times, the court has told congress and the executive that we are not going to allow you to treat terrorism suspects as you please come and get one supposes if there is any prevailing sentiment out there in the general public, it is one of fear, of anxiety, of these people who somebody wants to bring into our midst, talking about the government reconsidering have a trial of 9/11 terrorists in new york city and the reaction to the political response.
obviously, with the assistance of creative lawyers, they leapt out in front of what appears to be an incentive. >> i am not sure i agree with that. i think it is complicated. but let me just point out that when we get the be original decisions out of the court about guantanamo and they are against yet mr. should come and you might ask why is the conservative court and administration against, you remember the oral arguments in the case with the inspector general for the united states is saying we do not torture, and everybody watched the abu ghraib video that night on the news. that was a turning point of that particular issue in the public mind, and you see this again in the court issued. criminal procedure and death penalty, and what you learn is many years now, most of what happens is criminal defendants in the court.
there are deftly cases going one particular way, search and seizure cases. what is going on? you realize that racial profiling is going on, the innocence project is going on, and they are concerned about executing somebody who might be innocent spirited it is nuanced. -- who might be innocent. it is nuanced. >> but the point with xdcongressional and national reaction, when the president says he can do this on his own, he says, can do that with congress. usually the court is deferential. withxdok japanese internment, wt was -- it was authorized by roosevelt and congress, as
opposed to indefinite internment authorized by military commanders in the field. recent cases, they were going to go to congress and get support. then president bush did that and the military commissions act got to say you could suspend habeas corpus for combatants abroad, and justice kennedy, the supremacist, the anti barry friedman justice -- i am sorry he did not read your book carefully, but he does not care a whit from that. the court should do the right thing. he strikes downçó at military commission, saying to you have to have habeas rights. -- saying that you have to have habeas rights. we have a president who campaigned on the idea guantanamo had to close, who disappointed many of the left by not being as pure on these issues as they hoped, but did not go after the court. and that is what happened in the warren court. many of their criminal procedure decisions were popular with the country as a whole.
you have to have a lawyer? that was not unpopular. is not until president nixon gets up in 1968 and runs against the warren court and criminal forces that he can mobilize the backlash and maybe justice at kennedy is safe as long as obama >> he has to wait a bit. whether or not his book will be ;museum kiosk. because no book about court is sold in that kiosk and less the nine justices signed up on it. and currently, the new book about cilia -- scalia, an excellent biography, is still not available in the supreme court kiosk because justice scalia has not yet signed off on it. [laughter] so there is a way by which the
justices -- just as kennedy perhaps is going to veto barry's book going in there, but let's hope that it does not -- >> i am sympathetic to this point about the terrorism case. you can slice and dice this, explained that it was not the mainstream, we had an unpopular president, we could offer lots and lots of explanations, but ñiultimately, barry, i think it comes down to this. you have a theory about the way that the court works and the public works, and so, what would be against your theory? if the terrorism is not an example of that. >> evidence against my theory, i always tell people it is a question of how we falsified the theory, and it is probably good to have a theory of everything works with. [laughter] ñibut falsifying my theory would look like the courts standing firm for some time in terms of
an agreed public opinion, where the public is really angry about something and the public stands firm. it is hard to think of examples it is hahat.%"tñri welcome them. >> it is pretty clear that at least the class's have undertaken to condemn the court for terrorism. peter king, for example, it just introduced legislation to prevent any federal funds being used to try any terror suspectxd on the soil of an american continent. the political class's made their statement. are they thinking of this larger, disorganized public? or not. >> they introduced bills. there were a lot after laws
were stricken down, but they did not have a constitutional amendment at that point. they did not have daschle majorities. they do not control congress right now. so you need sustained opposition. and i want tou% reinforceñrñrt is incredible how fast accord response. áid issues opinions against the mccarthy at national stir the investigation, a huge congressional response, and within two years the court reverses itself and the "new achieved on their own. they are very good at beating a hasty retreat. >> they did stick their ground on the terror casesñiñi, and wed
not see that kind of backlash barry talks about. çóñrñiññrñrñi>> let's again reto the book and ask the question, after the things we have been talking about, is judicial review now greater or lesser than it was just before citizens united? has the instant reaction to that, when any of these major controversial decisions came back and came down, does the instant reaction actually have any affect on the source of judicial review and the expense? doesn't really change? your thesis is that judicial review is healthy and survives because it is popular. >> as you said, it is a very
long book, because it covers all of american history. what i want to say is that the court is infinitely stronger now than it was at the beginning of the nation's history, but the nation walked through this remarkable process, a time where the most common thing that happened, people defy it. people took the death penalty case from georgia, state the execution, and george agreed to hang to die anyway. -- george agree to hang the man anyway. -- georgia agreed to execute the man anyway. it was not the profound respect for the court we have today. and now that jeff has put me on his team, i would like to say for a moment that justices
about building trust and good will over time so there can be the occasional disruption. that has got to be. just lengthening that bungee cord. >> let me throw him overboard, also. there are things here that are hard to fathom. so will the backlash effect be different now? we are in the media environment. five years ago if the justice rolled his eyes at the state of the union, that would not be instantly broadcast live and commented on. what areñi the effects of the response to the i role? that is a question of temperament, of psychology. some people are defensive, and being criticized might get them
up and make them determined to stick to their guns. and i get a case of your role as a justice being linked to a particularly made a commitment to say jurisprudence and conditional understanding or textualism, there is a big difference on the court between formalist and pragmatist justices, and justice alito is not all that pragmatic. so you do have times in history where particular justice to stick it out. it is a matter of psychology and happenstance. broglie, things tend to wash out. but there are pressure points, not because of the happenstance. so it is completely possible. i was given an account of how to pick and choose, they might just shut themselves up. they could be clumsy about it and think as the new deal people did, we are going to save the country for itself, as justice
reynolds did. the constitution is gone, shame and humiliation are upon us. those are words from the bench. >> we suppose that he did become instantly aware of his new celebrity, because we put the video clips in response to the president's response, and he may have just been suffering some drastic ups that -- gastric up set, but recently he became a new celebrity, and people in this country, everybody, the people in this country who have encountered him for the first time, he is not a highly visible member of the court. now he is, and the point is, what kind of response is there
from his colleagues on the bench? bringing the question back to the foundation question, does that kind of an incident, does that change in the public perception of judgment, insensitivity? does it change the core's capacity to be the ultimate expositor? to what lengths will the court go to protect its prerogative of being the last word on the constitution? are we talking about that? we are. and when the public reacts, as you have suggested, has the court at any point -- and it has -- currently lost the ultimate control over constitutional meaning. when that happens, does it regain it only by withdrawing?
does it surrender? that is what this is all about. >> it for me, the book is ever- changing. it never sits still. there is always a reaction to move things along. all the way back to john marshall during marbury versus madison, he writes a letter saying, you know, maybe we should give up this thing just to keep our independence, and during the reconstruction when the courts have the case going to strike down southern ñrreconstruction,ok congress bas away and says we cannot do this. so the ebbs and flows you see all the time, maybe there will be even another chapter. >> is a wonderful question, i think, and barry tells a story çó review be
excessiveok. çóñijujr "empire ofñi libertyxd," tells a similar story -- gordon wood. ourt realize they can nowood. longer be perceived as political if they want to get away with this power of judicial review. so they start acting legally, and lots of different ways, and that is one of the reasons the xdxdreviewñi gets accepted strategies to do."i it, but thas the bottom line. ñrñiñrñiñiñrñ2ó>> judicialçó rl ñrñiñrñiñiñrñ2ó>> judicialçó rl ñiñrçóñientirely intact? otherwise. çóabsolutely. ñi>> a constantly changes. isn't the alternative way of perceiving this, it never changes, the cycles are the
same, but court stretches the bungee cord and then retracts in response to the public. the public than reaffirms its favor of judicial review, the court goes back to being the ultimate expositor of constitutional meaning. so this is what it is all about. it will not change. it is how we can look forward, or can we look forward to a time when it would not change, when it would in fact be well in pared in a lasting way. >> ultimate expositor might be too strong, since the claim from marshall on word was that the court had concurrent authority to the constitution, and there are times in history when they were more willing to debate constitutional terms.
lincoln made convincing arguments, and roosevelt, also, gave his meaning of the constitution. politicians have gotten out of the habit of doing that and what to pass the buck to the court. it would be good to see an energized party take on the court on constitutional terms. >> burns, in his book on review, in his concluding chapter encourages the president to directly confront and say no when the court has issued an opinion that is subjected to. i think what obama did this week in the state of the union is not the equivalent of saying no to the court. in fact, there was this just for of respect for the court's authority, and the president
came in. so we are not likely to see from this president a direct confrontation, a refusal to abide. >> you never know. i agree that things take on all life of their own and all of the sudden you have history and realize that people never go up, and that is the way it is. i do want to say one thing, my happy story of the book is that this process of confrontation back-and-forth, that goes on and it's still all changes the fundamental way of as it goes on, but the most important thing for me is that it gauges all of the american public to think about these questions, so i think it is wrong to think about the constitution about being alone just by the supreme court. it is our constitution. it is over 200 to two years old. it certainly says things today we did not mean at the time it was written, and the only way that it has fundamental meaning
as people think about it. so there are questions, is their right to abortion in the constitution, how does it apply to terrorism? >> at this point i would like to ask jeff to jump in and tell us how goes the movement to take a constitutional way from the court. people like gary ackerman at yale and levenson at texas, larry kramer at stanford, jeff rosen at gw, members of the leading constitutional academics in this country are trying with considerable energy to take the constitution away from the court. how's that going? >> i would not take a constitutional way from the court. -- i would not say to take a constitution away from the court. it is about the argument barry is making, popular constitutionalism, democratic constitutionalism. but if you think that it is
wrong, and generally constitutional values have risen from popular mobilization rather than just judicial decisions, there are a lot of interesting differences about how aggressive or restraint courts should be, and the current buzzword among liberal circles in the american constitutional society is democratic constitutionalism, and the point here is not that the court should be completely restrained and let the people do everything, but they should be modestly interventional list, moving away from the public occasionally, like women's rights, pushing back when people get in, but basically engaging in a dialogue with people, and different people come up on different sides about how interventionist the court should be. in terms of taking the constitution away, we mentioned one author who does in his book take a radical position the president literally should refuse to obey supreme court decisions with which she
disagrees. there is a tradition of this radical miles an. robert bork raised this after his defeat. he thought that maybe the people should be able to overturn decisions that they disagree with. during the progressive era, there was a suggestion of majority or two-thirds vote overturning. so you do not have to buy the descriptive story to think that the judges have no role at all. çó>> let's think about ways we n change it. the court has interpreted the constitution, and now i have interpreted the constitution and i disagree with the court, and we are going to go on my interpretation, not the courts.
>> it would be great to say you disagree, that would be a wonderful example of leadership, it is tricky, because the president might say i am going to refuse to execute a lot that is unconstitutional, even though the court has upheld that, because i have a different interpretation. say that he disagrees with a discriminatory law and the court says that segregation is fine, but a liberal president, the total hypothetical, will say i believe in that original condition of reconstruction for republicans and then refuse to offer segregation on the state's time. . .
the constitution, to the best of my knowledge, the constitution is not supposed to be interpreted. the constitution is supposed to be clear. how could you contrast that true wealth of the people who from the populace? how can you measure the wealth of citizens in the united states [unintelligible] >> the question would be, how would i know what is the will of the people when i write this book? what we call it the will of the people changes over time. in the 1800's, there was a great deference to the gentry elite. later, big tycoons and war
veterans had the biggest voice. we look at adversarial court rooms, we debate, you turn on your television and there are pros and cons. there is not a lot of gray area in the middle. i can see what the fight was. i can see what the sides look like. i can see who won. >> just to pick up on the question. now that the polling is so much better and instant reactions are so much more precise, public opinion has become more and direct. >> be made a great point about technology. this book required me to think about what the supreme court did and to do a lot of research about how the public reacted. whether it is railroads or technology to change, you're
right, poles do not exist until the 1930's -- polls do not exist until the 1930's. now we know right away with the+ american people think. >> i have not read your book but i agree with the general thesis. nonetheless, i was surprised when you decided roe versus a way. the decision has been around for 37 years. abortion is now legal in a way more jurisdictions and then it was in 1972, still. the groups that have mobilized the counter-wrote versus weighed -- roe vs wade is still
unhappy. were you being predicted a when you made your comment about uápvr'g that it is going to be overturned -- your comment about roe, saying that it is going to be overturned? >> when the court decides, it may get it right or wrong. if the court decision makes sense in the context of what is happening in a country historically, that does not mean they always get it right. if they strike down the death penalty in every state and then 37 states reinstate the death penalty, the court says, ", we got that wrong, and then they reenact the death penalty. the american people have been right, they're not always overwhelming, it depends on the
provision of the law, but they are generally in support of abortion rights. but what people do not understand is that the casey decision scaled back those rights in major ways. women could be shown pictures of aborted fetuses and know what was happening. the remarkable thing about the casey decision was that if you went down a provision by provision what was challenged in at the case, it could also do a gallup poll provision by a provision and see the support. >> the dread scott decision declared people property. i have heard it said that in another decision declared
property people. when to corporations merge, does that legalize same-sex marriage? [laughter] >> very good. for that, there can be no response. >> this was not mentioned, but i am still trying to figure out how the supreme court made the decision in electing george bush for president. >> how did they do it or why? >> why? i know how they did it. i just had a comment that when president obama spoke the other night in regards to the supreme court decision on the campaign
issues, when i read about the decision that they made, i thought it was one of the most stupid decisions and that they had made, and i think that his response to the other night was appropriate, and i do not believe that portions of the media should have attacked him in the way that they did. he is president, but still, he has individual rights just as all of us do. >> do you want to take the first part of the question? >> let me talk about a bush immerses gore. -- bush vs. gore. people had extremely extraordinary reactions to it. it seemed very partisan. some called it a disgrace. you got that reaction in many academic circles.
the polls prior to the decision, when asked who should resolve the election controversy, over 60% of the american people said the supreme court. we had a similar controversy in 1876 in this country. i am relatively confident that people would not have even thought to say the supreme court. >> a reminder for those of us that care about public opinion that sometimes the court should be death to the calls of the public. -- deaf to the calls of the public. indeed dread scott decision, the public was calling on the court to resolve the issue of slavery. they thought they were doing a grateful nation a favor by making a decision. they were shocked by the
response of republicans. in renquist's book about the election controversy of 1876, he said, that when people are begging to the supreme court for an answer, they make it harder for the court to say no. in something as filled with tension as bush vs. gore, sometimes staying in your hand is the wise thing to do. >> when you look at the public opinion polls after bush vs gore, whatever you thought of the opinion, of course 50% of the people supported the decision. it did not cut into the court posole legitimacy at all. in fact, the legitimacy and bumped up slightly in the public opinion polls. it was quite a different response, whatever we think
about the decision. >> about 80% of democrats disapproved of the decision right after. 80% of republicans approved. but a year later, polls have gone back to what they were before, because 9/11 had happened. it shows that the justices are as bad at predicting what will be given legitimacy. justice scalia predicted that the court would give legitimacy to what bush called a the legitimacy of his election. that turned out to be wrong. the court could no more have anticipated terrorism than the reaction to the outcome of the election. >> sandra day o'connor thought
the election would go a certain way. after the decision and the backlash, in academic discussion circles, her decision seemed to turn a somewhat less -- i think she had an amazing barometer for where the public was on issues. she has had a response which was basically, "see what happens when i leave the court? " [laughter] >> she has also said in public that she is not sure that case was decided correctly. >> i want to make an observation and then ask a question. the observation is about deference on political questions, that the court would stay away from an issue if it seemed too political. i recall that justice scalia was
asked a question about the power to declare war and the fact that the constitution allows only the congress to declare war and how that has been done, and how presidents have used other means to engage the nation in war, and to what extent there still is a difference on political questions. bush vs gore is of course an outstanding example of not backing away from a political question. the real question i wanted to address is this. you have been talking about the court as if it was a single entity. it is in fact nine justices. the outcome of the issues that are brought before the court are very much a factor of the ideological and personal predispositions of each of those nine persons. they are human beings who are
sitting on the court at any time. >> your question? >> i wonder if you could address house that individual shifting of votes this way and that on the court affects your judgment as to how the court response to the democratic will. >> make a point about ideology, and then i will disagree with you. >> temper and is central in defining both how people vote and group dime and -- group dynamics. i think the justices who have been willing to put their ideology aside have to spend more successful. there are the law professor types to roberts was denouncing the coup are sure they know the
right answer and want to push it through. you can have a liberal and conservative pragmatist's. you can have justices like scalia who believe that text is all that matters. temperament matters a lot. >> when should say in response to that last question, up from the perspective of the court, that is the internal, institutional perspective, they will not resolve a political question. they will resolve a constitutional question. they did so in a way that had political consequences. to be fair to the court, in the issue of the two cases that were presented to them, all nine of the justices understood that
court to sit back and think through the political consequences. >> i don't think it was anticipated that we would go to the eve of inauguration without a cut -- without a presidential choice. >> by the textbook definition of a political question, not a description of whether an issue has political consequences, this met all of the criteria. there were mushy standards susceptible to legal resolution. it seems almost comical that justice scalia said they could not hear challenges in the gerrymandering in cases when the political consequences applied so much more dramatically in the bush vs gore. >> thank you for a stimulating
discussion. my question relates to caution and versus pragmatism. i am focused on the chief's concurrence in the citizens united, which seemed to say, quite a ride. >> both justice kennedy and the chief justice in a separate concurrence marched through all of the reasons why they had to do this. the case is remarkable in the number of briefs that were filed and the arguments were made in stopping points along the way. by the time you walk through those stopping point to explain why you couldn't stop theire, oe wonders if you did have to go all the way. >> i think it started in 1990
when it justice kennedy made a decision in a case. from that day forward he was instrumental -- when the court backed off of the statutory argument and called for new constitutional arguments, it was all over at that time. >> in the voting rights act, that was a case where john roberts did what he was supposed to do. everyone thought the court would strike down the voting rights j t(qin any 8-1 decision, they came up with a statutory argument that had never occurred to congress. they created a kind of technical provision that said that any municipal district can bail out if they meet certain qualifications.
>> why didn't he do the same thing in this case? he said people were protesting too much. he is shocked by any suggestion that he shouldn't have done this. but that is exactly what they did indeed boating rights case. >> this proves berries point perfectly. john roberts had a majority, and he'd lost it. i think that was a perception of where the country is by either john roberts wore the colleagues he had with him. the court hesitated and pulled back from it, and then reached for a very readily available statutory alternatives in order to decide the case. i think that was a case in which the court clearly got cold feet, or some member got cold
feet, and roberts would have gone to the whole way with citizens united if he could have. one more question. >> i join in the banking and the panel for a terrific discussion -- i join in thanking the panel for a terrific discussion. i thought you might want to comment on the apparent replacement of the amendment procedure as a mechanism for the people's will through the other mechanisms you described in the book. >> so, the framers arguably blue
something in writing the constitution. they arguably blew a number of things. one of them was at the framework for amending the constitution, which is extremely difficult. if you think about it, you do not want it to be a simple popular vote. but it is nearly impossible. had they not made it so difficult to amend the constitution, it is not clear if the supreme court would have taken on such an aggressive role in changing the constitution itself. had they gotten it right, i would be in a very different situation than i am now. that is what fosters this national debate that ultimately proper thought -- that ultimately forces the court to come on board. >> please join me in thanking
our panel. [applause] >> thank you very much for your participation today. it is clear that this book is destined for in the bedside tables of the nine most influential legal minds of america. if they are watching this program, i encourage any of this -- any of the justices to come to this center and tell us what they think. we will grave sites?
guest: it is a wonderful way to humanize and personalize the past. to take even this and movements that otherwise might seem impossibly remote. there is something universal about the fact that we're all going to one day be on our deathbed. we are all going to face growing old. we all have to wrestle with questions of immortality and
praying for the freedom and safe return to his idaho family ofw3 private first class lloydç birp dog who has been held by the taliban since june. we are united in our outrage foç his abduction and support for his family and friends and loved ones. we are the idaho family. we haveç a shared history and
vision for our future, a vision of an idaho where opportunities match our unlimited dreams and potential, where individual freedoms and civic virtue are sin none must because we are all in this together. thank you for your attention today, thank you for your service to the people of idaho, may god bless this legislature and the work you are about to undertake. thank you so much.
his film hillary the movie was the focus of a recent supreme court decision on campaign finance. çç bojuárqç sunday night on q. a senate hearing on efforts to regula regulate. the concept of systemic risk or too big to fail has been a big debate. held by a senate subcommittee on finance. this is two hours. >> i'm pleased -- >> there we go. i will try that again. good morning. i'm pleased to call to order this subcommittee for the hearing entitled equipping
financial regulators with the tools necessary to monitor systemic risk. i want to thank my ranking member and senator reid my friend and colleague and their hard working staff for requesting this hearing on an issue that may seem technical to some but will work took moderni the regulatory structure. i would likeç to welcome and thank our able witnesses who are here today and thank our staff who have been instrumental with regard to technical aspects of q this analysis. that we have already begun on how to equip our regulators to move beyond examining individual institutions and towards monitoring and managing systemic risk across our financial system. welcome to our witnesses and thank you for appearing before the subcommittee to give an outline on the current regulator capability to analyze financial market data. most importantly, what additional resources and capabilities are necessary to
provide effective systemic risk regulation. i understand very well that the weather in washington the last few days has not been ideal. some of our witnesses have been stranded here for several days so i appreciate the dedication you have some in making it here today. we promised to be most merciful and are questioning. before i turn to the governor trajllo, i would like to submit a few comments for the record for it by somewhat lengthy statement given the technical nature of the subject matterñi.i will submit it for the record but will not read it. before introducing the governor, senator reid, do you have some comments you'd like to share? >> very briefly, i would like my statement submitted to the record also. i want to welcome the governor and thank you for holding this hearing at the suggestion of
senator corker. this is a vital area and i think it could be overlooked. it is incredibly important. we all witnessed over the last several years is not only great market turmoil but great market uncertainty. my impression of a lot of the problem with lehman brothers, bear stearns, a.i.g., was the fact that regulators and other banking institutions had no idea where their liabilities or counterparty exposure blogger there was no systemic way to calculate this or agar get the information. as a result, the regulators were flying blind, essentially. they're doing the best they could, trying to work things out but a lot of it was sort of flying with instruments that were not working in bad weather.
it was more seeds of the past than systemic regulation. one thing i think we have to do is to create a repository of estimation -- of information available to the public. this is so that the system is much more understandable and that when there is a shock to the system, markets don't react out of fear. they should react with knowledge thank you. >> thank you, senator reid. we have come on this committee, become accustomed to apria rule, centre corporate is known for his brevity but since you requested the hearing today and this is a major priority for you, perhaps you would have some opening comments you would like to share. >> i will be very brief. number one, thank you for having this hearing.
it is friday afternoon and it has been snowing. >> we have been trying to have se. >> i want to thank the governor. for always being available and helping us think through these complex issues. our second panel -- and the governor has been holed up in hotels and been hanging around to give his testimony prior to recess. everybody knows we are hopefully working toward a regulatory reform bill. it is important to get this testimony into the public record so we can potentially act upon it. we thank you all for being here, for your ideas, and with that, mr. chairman, as you walk out the door, thank you so much for having this hearing. >> thank you and on behalf of senator bynes, let me introduce our first witness, the governor of the federal reserve board. he is an expert international
finance. he received his education beginning at walksbury latin school and went on to georgetown university, duke university, and graduated from university of michigan prior to resuming his responsibilities with a reserve. he was with the georgetown law school and prior to that, served in the clinton administration. thank you for your presence and we look forward to your statement. >> thank-you. thank you both for your attention to a subject as important to financial stability that is often overlooked in the broader debate about reform. good information is crucial to the success of any form of regulation. as it is to the success of any
form of market activity. many pages of financial activity make the quality and timeliness of information more significant for effective regulation. most important perhaps is the interconnectedness of financial- services firms. in few other industries,ñi do major players feel so regularly -- deals regularly with one another. major problems at one firm can quickly spread throughout the system. the financial crisis revealed gaps in the data available to government regulators and to private analysts. it also revealed the relatively undeveloped nature of systemic or macro prudential oversight of the financial system. with this experience in mind, i believe there are two goals toward which agency and congressional action to improve data collection and analysis should be directed. first, to ensure that supervisory agencies have access to high-quality and timely data
that are organized and standardized so as to enhance their regulatory missions including containment to stannic risk and second, to make such data available to other government agencies, to private analysts, two academics -- inappropriate usable form so that the public will have the benefit of multiple perspectives on potential threats to financial stability. my written testimony details some of the initiatives that the reserve, to enhance the type and quality of information available to us, in support of our exercise of consolidated supervision over the nation's largest financial holding companies. i would stress also the importance of using that information to regulate more effectively. the special capital suskind we conducted last year, the nation's old 19 largest financial firms, demonstrated how quantitative horizontal methodologies built on
consistent data across firms, could complement traditional supervision. it also showed the importance of having supervisory needs and knowledge determine data requirements. we're building on that experience and adding a more explicitly macro-provincial dimension in developing a quantitative surveillance mechanism as a permanent part of large firm oversight. while there is much that the federalñi reserve and other agencies such as the sec can do and are doing under existing authority, i believe we will need congressional action to achieve fully the two goals i stated a moment ago. there are a number of specific areas in which legislative changes would be helpful. let me briefly were mentioned three. first, it is very important that government agencies have the authority to collect information from firms not subject to provincial supervision. they may nonetheless have the potential to contribute to systemic risk.
without this ability, regulators will have a picture of the financial system that is incomplete and perhaps dangerous. second, it appears to me that greater standardization of important data streams will only be achieved with a congressional process. this objective of standardization has for years been elusive. most observers agree it is critical to identify risk in the financial system. third, there will need to be some modification to some of the constraints on information collection by government agencies. there might be a party to share that information with foreign regulators or release it in usable form to the public. privacy, proprietary information, intellectual property and other important interests will be implicated in any such modifications. it is most appropriate that congress provide guidance how these interests should be
accommodated in a more effective system of financial data collection. finally, as you consider possible legislative changes in this area, i would encourage you to consider the relationship between the authorities and é@qjt)páed h collection and the substantive regulatory responsibilities entrusted to our financial agencies. generally speaking, regulators have the best perspective on the kind of data that will effectively advance their statutory missions. indeed, without the authority to shake information, their effectiveness in achieving these missions can be compromised. this is all the more important given the current state of the systemic risk in which there are as many questions asñi answers. in these circumstances in particular, the insights gained by supervisors for their ongoing examination of large firms and the markets should be the keyçói but not the exclusive
determinant of new data collection methods. this does not mean that agencies should collect only tarul this does notw3 mean agenciesç should collect only the information they believe they need. theç provision of independent perspective means that other data may be important to collect for the use of private analysts, academics and the public. the agencies can certainly be asked to collect other forms of information that are important to independent assessment of financial stability risks. but i think thisç relationship does counsel considerable symmetry. thank you for your attention and again for having this hearing. i wouldç be pleased to try to answer any questions you might have. >> thank you very much, governoç tarullo. let me first ask the question that this need for better information is not exclusive to
the united states. could you comment on how other g-20 countries are trying to deal with this and the need for not just a national sort of approach but an international approach? >> certainly, senator. a number of other regulators and overseers around the world have already begun to address the issue of information. among them, the various organing of the european union and the united kingdom, the bank of england. the g-20 itself has issued a couple of recommendations that are particularly salient to this question on developing a template for reporting of information of the large internationally active financial firms. now, this is of course not an easy undertaking for any one nation much less for the world as a whole. but it is something which the financial stability board has
taken on as a task. there have been some preliminary discussions on how to organize the work of seeing if we can come to an agreement on a template for reporting of the largest, most active, globally active, financial institutions. it is far too early to report progress there, senator but i can say that theç effort has bn launched. down a legislative path which we hope will incorporate this systemic collection of information. i have brought legislation in a want to thank dr. mendell and others for their help. this will have to be an effort that goes beyond to understand this. it is important we begin here.
there is the issue of sovereign behavior. the greek government is now in a very serious crisis which is rattlingñi the markets. there is some indication thatçó derivatives and credit defaults swaps have come into it. apparently, there are reports that investment banking firms have helped them legally avoid a situation. the long and short of it is that we also have to include sovereign entities in terms of data collection. >> one of the lessons that the international community drew from some of the -- some of the sovereign debt crises of the late 1990's and a very early years of this century was that there need to be more transparency associated with a lot of sovereign debt issuance. the international monetary fund
undertook to create special data dissemination standards which would provide more such information. generally speaking, i would distinguish between the sovereign information and private financial firm information since we, as regulators, have a mandate over private firms rather than certainly over sovereign. it is relevant for us in thinking about systemic risk to the degree that our large institutions have significant exposures to sovereigns which might conceivably have difficulty in servicing their debt, that becomes a matter for concern for the private financial regulators, as well. çó>> one of the issues that repeatedly is made is that too big to fail is the first chapter of the second chapter is too
interconnected to fail. that raises the issue of a poco point of large institutions who might miss small institutions that could cause a problem. there's the possibility that multiple failures in small institutions could have a systemic problem. how do we deal with that in terms of these interconnections? traditionally, it is easier for us to go to a big national institution and report x, y, and z. had we do this in a data sense? >> let me address data collection and the regulatory supervisory side. with respect to data collection, there is little question in our minds that the data collection of stories of u.s. government agencies need to extend beyond the universe of firms who are
subject to provincial or market regulation. it is for the reasons you suggest, a large number of intermediate-sized firms have themselves a substantial amount of financial activity which, although not necessarily is associate with systemic risk and one firm, in the aggregate, they defied the trend in the economy as a whole. we do think there needs to be that kind of authority in our financial regulators to gather the necessary information to round out the picture. when it comes to supervisory or ñrregulatory authority, the thre of us have been in this room and a number of occasions, talking about the choices we have in front of us. one of those choices is going to be how broadly to cast -- to draw the perimeter of regulation.
will it be only four firms that own banks? will it be firms beyond that which are thought to be themselves systemically important or will it be some broader set of firms above a certain size? i think those issues will probably be more difficult to resolve than the data issues where i personally think there is little argument against the proposition that you need to gather this information. >> thank you. senator corker? >> thank you. i want to thank you for raising this opera we would not have met with our next panel without you having this brought up. thank you very much governor, i think you are familiar with the national institute of finance as it has been proposed for they have discussed it being done in an independent way.
i am wondering if you could talk to us a little bit about the pros and cons of what you know their proposal to be from the fed standpoint? >> this will not surprise you to hear that there are some advantages and disadvantages to each of the different organizational options that you would face. one such option would be the creation of a single, freestanding agency that would have overall responsibility for all the financial data collection and a good bit of the analysis. on the other end of the spectrum would be presumably giving more authority to a single u.s. government -- existing government agency. as i suggested in my written testimony, there's probably an option in between.
as you go forward with thinking about overall regulatory reform, to the degree that a council emerges, as i think it might, as an important center for coordinating the oversight systemic risk in the united states among all the various u.s. government agencies. we may want to lodge some of the data responsibilities in the council, as well the basic benefits, i think, is it is a single agency. you have a single group. they can't take an overview. they can say they can prioritize for the contract to figure out what the most important unknowns are. they can devote their activities in that direction and they will do so in a way they are not always stumbling over one another. some of the cost associated with the single agency, apart
from out of pocket costs, would include some risk that you could attached data collection from the process of regulation. i think it is important in our experience of the last couple of years has borne out the importance of having those with the line responsibility for supervising and regulating being able to shape the kinds of data collection that they feel are necessary in order to effectively to regulate or supervise. in the middle of the crisis, it became apparent to some of the people at the fed that getting information on the kind of hair cuts that were being applied to some re-purchase agreement was a
very important, near-term piece of information in trying to assess where the system was at that moment. if that capacity had been lodged an independent agency with some of its own priorities perhaps and having to go through a bit more of açó process, there may have been some delays in getting to that end. as with everything, there will be pluses and minuses. it will not surprise you to know that from the perspective the20 th and constitution, there are big concerns about acting quickly on information but i hasten to add that here as in a systemic risk in general, nobody at the fed believes that the fed should be the sole or the principal collector and analyzer of data. this has got to be a government-
supervisory purposes. and, of course, as you know, true realtime data is a very expensive 24eu7bg to put together. finally, end of the day trading is very important for making be a assessment on a regular basis as to[;háhe stability of a fir that may be under stress. one of the things that became clear, i think,ç during the crisis -- and, for me, became particularly effort during the stress tests last)spring -- wa the substantial divergence in the capacities of firms to amass -- to get hold of the data to know what their own trades were and risks were. so, one of the things we have been doing in the wake of the special capital assessment program is placing particular emphasis on the management information systems of the fi s
firms, requiring that they themselves be able to get a hold of the data on trades or counterparty exposures or current -- involvement in certain kinds of instruments because if they can get it for their internal purposes, we will be ableç to get hold of it prey quickly. so it is not so much a question of our telling them send us something you have on a daily basis. it is in many instance as as much a matter of making sure they have the capacity to derive that information from their records and send it to us. >> may i ask another question? >> yes. >> of course, we all tend to try to find a solution that is unique and maybeç alleviate a t of just the daily work it takes to be good regulators.
and a lot of what happened this last time could have been prevented with the tools we had if we had been a little more effective inç regulatingt( the that we should have. and congress overseeing the way they should have. but there were certainly lots of issues that caused this last crisis, if you will, to unfold. so, we have had this wonderful presentation that we will hear next. and we envision having all of this realtime i think at the end of the day type of data so we know positions throughout our country so regulators have the ability to tphoeknow if somethi putting our country in systemic risk is occurring. what should we be concerned about there from the standpoint of having this thing that sounds really neat and costs money, how do we prevent it from being something that is really not
that useful but it is collecting a lot of data that i imagine takes place throughout there cityt&at is notç utilityç ice secondly, i would imagine that data like that collected in one place could be used for pretty nefarious purposes if it got into the wrong hands. if we have it and collect it, what should be our concerns about that? >> with respect to the first question, i do think that the efforts of the group of academics and others who have been promoting the n.i.f., and certainly the efforts of the natio national academy of sciences in convening that workshop, have been very valuable in drawing attention to andç moving the debate forward on the data needs that we really do have.
and i think, senator, just to underscore something i said earlier, the absence of data from the shadow banking system was certainly problematic in retrospect. i think that the degree to which the tightly wound, very rapid shadow banking system was channeling liquidity around the financial system and thus the rapidity with which it came to a screeching halt when things began to break down, is something that was at least underappreciated by even those who foresaw problems ahead. i do not think it is a coincidence, by the way that some of the names that i saw on the list of participants in that workshop were the names of
scholars who have written on the substantive clauses of theok crisis -- causes of the crisis and the way in which adverse feedback groups began when things began to move into reverse. i think we need additional data sources. how to make suret( thatw3 every dollar ofç the governmental fus spent on this7s are spent most wisely and how to make sure that we do not demand private expenditures that are not going to useful purposes is the kind of question that we confront alç the timeç in any government regulatory or data collection effort. çi would say that that is where some of theç principles we suggested in my written testimony would be of some help. keeping the regulatory and supervisoryç agencies closely
çinvolved and as the prime movs of the data collection efforts will helpxd because we are goine first instance with achieving our statutory mission. forç us, that would be to consolidate the supervision of the largest financial holdings companies. that, i think, is one way to do it. the second way would be to make sure that there is some thought about new requirements coming forward. this is why we have the rules we have. maybe some of the paperwork reduction act features need to be changed. but there is a good reason why that act exists. i think the council, if a council of regulators were
created or the president's working group could formulize such an effort, i think it would be useful to have different agencies actually thinking about what new data sources may be important and having a debate to guard against any one going to far off field from its own regulatory mission. obviously, there are important interests -- prius sorry -- proprietary interests. we ought to continue to have those protections. it is also the case that our country wants to be protected from financial instability. my conclusion is that the efforts to identify potential sources of financial stress and risk throughout the economy is
not something that one or even a whole group of government agencies should be the sole actors. i think we'd do need to enable private analystsç and people wo have expertise but are not in the governmené uoçç lookçñriá is going on in the economy to offer it in their views to you, to us, and to the american people. çlet us filter through how much of that might be well-grounded and where we disagree. if we are going to do that, we have to get the death into a sufficiently at greatest form to protect proprietary information and to make sure that it is çuseful to someone out there wo is trying to do an analysis and trying to have insight as to what is going on.
>> thank you governor tarullo. iç also have to think the national academy of sciences. we had to convene that meeting. i am pleased it produced positive results. thank you very much. >> if i could just ask one more. >> why don't you go? >>i] a number of us have been lookingç at speed bumps -- ways for us not to be faced with resolution. if we had resolution, we want to insure that this whole notion of "too big toç fail" is not pt of american's but vocabulary.
w3xdw3the v2)sráy toç take unsd çdebt in an institution that is moving into problem areas and converting that immediately to common equity -- i know that is of little bit off topic. there is a lot happening. we are going on recess next week. i wondered if you might have some comments regarding that. >> actually, senator we have been paying a good deal of attention to that in the federal reserve. i got together a group to try to think through some of the potential options. let me first began with taxonomy. different people mean different things when they talk about convince -- contingent capital. there are a couple of different concepts. one is a concept under which a firm would issue a specific kind
of instrument, which wouldt( hae debt-like characteristics under normal circumstances, but by the terms of the instrument would itself have a conversion to equity when some traders event happens. the concept -- some trigger event happens. the concept behind that tends to be the following. there is a. behind -- there is a. where -- there is a time frame where the company appears to be healthy. if they go down to a certain level, there will be a lot of confidence with respect to that firm. if at that point, the trigger means that there areok certain amounts of common equity in the firm, that might provide
çreassurance and stop the slide down. i will come back to that in a moment. the second concept is really one that is as much about the insolvency of the firm. çsome have proposed that all forms of debt other than specified trudges of debt would at some moment, whicht( would hw would be the equivalent of being on the verge of solvency, convert to equity. thereby, it would help to move forward what would be a resolution process under another name. you have weigh less debt and more equity. -- you have way less debt and more equity.
the first has intrigued some bankers who see the opportunity to create new forms of investment the big issue there, and there are a number of other issues, but the biggest would be what is the trigger going to be? if the trigger is supervisory discretion, you probably have an issue because everyone will wonder whether the supervisor will pull a trigger or when he would pull the trigger. it would create a bit of uncertainty. a second option wouldç be that you have the trigger tied to the capital levels of a firm. that still has supervisory discretion,ç but it is in the context of(a!system. the problem there has been, as you know, capital tends to be a lagging indicator. many firms close to their solvency -- close to their
insolvency looked to be at a that probably would not do the trick. a third proposal wouldç be to have a market-based trader, a trader market-based trader -- market-based trader. that would be lagging assets. that is something that gets the market in as a trigger so that no one can manipulate it in anyway. the concern about that approach is that it can induce a death spiral in the firm where people begin trading against the certain level. çómy personal view isç backed l three of these approaches -- is
that all three of these approaches have significant problems. i, personally, have excluded full supervisory discretion as a real auction. i think it is worth pursuing the technical challenges. that is what we have asked our staff to do. to see if there is something here, which can be, and this is qimportant, which can be a less expensive form of capital for the banks. i do not want to create anything that costs moreç than common equity for the banks. if we can figure out a way to have a capital instrument which is their, -- which is there, but çcosts less than a common equity,ç i think 9(.j5ñ worth qpursuing we -- . it isñr long winded, but i think
you can tell we have been analyzed the. >> just one comment. i think senator corker has raised an interesting point. when push came to shove, all the varieties of risk-based capital were forgotten. and by overstating or misstating? -- am i over-stating or miss stating? >> during the crisis itself, private analysts who were operating on the basis of less- than-full information, and regulators both found themselves focused on common equity. some of the market guys called it tangible common equity. basically, it was common equity.
i think that what all of us, if we did not already believe it, and some of us did, concluded from this exercise that common equity needed to be and even more important component of the equity of financial firms going forward. the stress tests were conducted with the assumptioni] or under a set of standards that looked to the common equity levels as well as the traditional levels. i think, senator,ç that i think that, senator, regulators around the world we talked to in the financial stability board, marketçç anas and financial institutions themselves have allç converged around the proposition that common equity really and truly is far and away the most
important -- not the only but the most important component of regulatory capital. why? because if it is adequate, it allows the firm to continue as an ongoing institution.ok there are some forms of equity -- excuse me, capital -- tier two capital -- which will be available to protect the deposit insurance fund and senior creditors but not to keep the firm going on an ongoing basis. and since i don't think any of us relish the thought of another major financial institutions, i think we are all focused on finding the best wayç to maintç higher levelsç of common equit. when i say all of us, i don't mean just regulators. i think that is a market imperative as well. >> we had a side bar, which we don't need to continue about
basil 2 and i think we need to spendç time thinking about the rules of capital going forward. two quick comments. i don't want to trivialize this, but essentially thisç censure would be on the bubbles in the econo economy, things that could cause not one firm but throughout the economy real problems. is that too simple or is that -- >> i don't think it is too simple. -- if i can hark back to the original hearing, where you and i were talking -- i mentioned several times in the written and oral testimony, if the need for independent users. this is something i always believed, but you reinforced it in this context. no matter how good a job of the fed can and will do, or how good a job of market regulation the fcc can and will do, the
uncertainty around financial stability are always going to be significant because of problems arise in in new ways. i think it is important for us to foster within the government and outside the government the ability of multiple agents to make a judgment on this. i guess i think that this is something within the government that would be best pursued in a collegial fashion. if we are doing our analyses and the fcc is doing it and the treasury is doing it, bringing those together in discussion and determining whether there needs to be another analysis or initiative, seems to make sense. what also makes sense is having a council have at least a small
staff of people who are dedicated to looking at all of this and doing some analysis. i am all in favor of that. i am not all in favor of it in a sense that we would not oppose it. i think it is an affirmative good. >> thank you very much. w3we need to move on with the subject at hand. çi would like you to respond in writing regarding how, going back to the capital we're talkingç about, using a quartey stress test. i know we do not have time for that today. we thank you so much. ifbçbçbçbçbçbçbçbçbç>> thank yo.
let me introduce a first, dr. mendelowitz. he is the co-founder of the committee to establish an institute of finance and a former chairman of federal housing. thank you for your assistance. çour next witness is professor john liechty. çhe is the associate professor at the smeal college of business. çthank you very much, professo. we are also joined by professor robert engle. he is from the new york university stern school of business. he was awarded a nobel prize for
economics in 2003. finally, our final witness is stephen horne. mr. horn is currently the vice- president for master data management for the dow jones business and relationship intelligence. he specializes in data integration from thousands of sources in the improvement of market productivity. thank you, stephen. dr. mendelowitz, please. >> thank you, mr. chairman, thank you senator corker. i am pleased to be here today to bring the recommendations of my committee. the committee to establish a
national institute of finance is an extraordinarily unique group based on my 2.5 decades of experience in washington. i have never actually seen anything like it. it is a committee that has raised no money. it is a committee that represents no vested interest. it is a committee where no single member has any personal financial interest in the outcome of all recommendations. it is a committee where we have covered our expenses. we did not get the tax benefits of those expenditures. it is a group of extraordinarily talented, and in many cases, very distinguished members all brought together by the commonly shared view that the federal government lacks the data and research capabilities to effectively monitor and
regulate systemic risk, and for that matter, to effectively monitor and regulate financial institutions and markets. we have come together to propose a solution to debt and equities -- inadequacy. the exhibition is the national institute of finance. -- that solution is the national institute of finance. i cannot stress the importance of the research and analytical capability enough. a lot of time was spent with the earlier panel discussing data. there was far less mention of the analytical capability. the reality is we do not have a particularly good understanding of how financial markets work, because we have never had sustained research that would yield those insights. despite the fact that there are research departments at large
financial institutions and talented researchers in academia,ç but at the end of te day, but never had access to do the kind of works that would provide the analytical tools needed by regulators given the challenges that we face today. that is why in our proposal we have two key components. one is a federal data center and the second is a data and resource analysis center. we think the structure and institute should be set up in a way that ensures it can play a key role. it wouldt( be an independent agency, ideally. it would be an independent voice on issues of financial risk, regulation and policy. it would be independent for several reasons. one, hopefully it would be free from political influence. secondly, it would be free from
having to investigate its own decisions and actions. as long as it is not a regulatory agency, it is untainted by the fact that if it was investigating itself it would be given an impossible task if you are looking for high quality assessments of what is going on. thirdly, it would be self- funded. that would be for fairness. it is our understanding based on the research that we've seen and the discussions that we have held that adopting standards would produce a significant operating cost on the part of financial institutions because they would get this benefit. it is only fair that some such share -- is only fair that some such share would be used to fund the entity. given the burden on the tax payer, it is not appropriate that the taxpayer should be
asked to pay for the monitoring of an industry that has already imposed a tremendous burden on taxpayers. there is a benefit to being able to attract staff that would make it more competitive. all of this is critical, and it would yield multiple benefits. it would yield substantial benefits in terms of improving the efficiency and effectiveness of a natural regulation. çit would reduce the likelihood of a future systemic event. it would make markets safer and more competitive. it would reduce operating costs of financial institutions. the kind of data that would be required would go along addressing one of the problems that governor tarullo mentioned when he commented to find out that he was surprised that financial institutions did not have a good handle on what their exposures were. they did not have access to that kind of data.
lastly, i want to say how pleased we are but senator reid introduced the national institute of finance act of 2010. that act is structured in a way that creates a system that would be effected. we are very appreciative to see that legislative measure. that concludes my oral comments, and i would be have to answer any questions you might have. >> thank you. professor liechty. >> thank you, mr. chairman. i will proceed on the behalf of the committee to established the national institute of finance. we started one year ago. as an academic and professional statistician, i was very interested in a workshop that
explored issues in financial risk and bank regulation. i consulted some of the big investment banks, specifically helping them with issues related to the value in credit derivative securities, which played a part in the crisis. i would --ç i was hoping the workshop will focus on systemic risk. it was primarily focused on assessing the safety and çsoundness of financial institutions. çthat focus is important, but that in and of itself would not insure the safety of our financial system. rçin some ways, it is like insuring the groups of automobiles going around a racetrack are safe and sound, but ignoring things like whether or not the cars are bunched together. because there was a broad collection of regulators,
academics and practitioners, i asked a very simple question in my mind. does anyone have the data necessary to monitor necessary suspect risk? the answer was the same that i heard over and over again. the irregulars to not have the correct data. in addition, to get the data they need it would require additional legislation i've spent the bulk of my professional career designing systems to go from bad to information. collecting data is not enough. we need the couple it analytic tools if when to turn that data into useful information. we have to monitor a systemic risk. it would take more than data collection and more than just building models themselves. in my view, this is a fundamental scientific problem. we applaud for fundamental research efforts in order to
understand the framework to be able to frame the methods, get the models in place, and what we need. i echo the sentiment that we do not know all of the data and we will not know until weçó have a process. it is fundamental. [8gñbut meç illustrate with an analysis from the weather. it is very appropriate given the last couple of days. this focuses on hurricanes. when the financial crisis of 2008 hit, the the regulators and policy makers charged with keeping the system safe were tan by surprise. althoughç there were some indications of uncertainty this financial storm hit with the same unexpected suddenness as a new england hurricane of 1938. the martha vineyard gazette noted this was not the loss of nearly 10,000 homes and businesses along that shore. it was the psychic destruction of summer