tv Separation of Powers Civil Rights CSPAN October 22, 2018 9:04pm-10:04pm EDT
watch american history in primetime, tuesday beginning at 8 p.m. eastern on cspan3. next on american history tv, how the executive, judicial and legislative brafrmgz dealt with civil rights. panelist argues congress relink wished designated powers leaving the supreme court to make the ultimate decisions to civil rights questions. this event is part of a day- long conference on congress and separation of powers cohosted by the u.s. capitol historical society and american university. it's just under an hour. . our next panel is called uneven history, separation of powers and the struggle for equal rights. our moderate operator is ron alving. come on up. he is the senior editor and the washington desk friend pr news
and add junk professor at american university. our panelist include jessie hol linns and if you don't know this author of marvel's the black panther. i don't know if we will have many questions about that today. [ laughter ]. we have iva la convenient vice president of the ethics and policy center and founding editor of magazine and professor of law at the georgetown law center and also chief legal counsel for vice president biden and legal staff of the senate judiciary committee. ron. thank you, david. pleasure to be with you this morning and thank you all for being here. we would like to get started right away by giving an opportunity -- one of our
panelist to speak to a question i don't think that came up yet. the original purpose, if you will of government long before we thought of government as making policy for the nation, people look to government for something else. for the protection of their rights. and in view of what you've written about this and tell us a little more about what is meant by that, the original purpose of government. >> thank you very much and really thank you for letting me be part of the event and for holding this event. it's enormously important question to be taking up just now. i appreciate it too. in a distinct way as an alum you ins of american university and -- alumu -- alumnus of american university. i think you put the question is a useful way to start in because the question of really what is the separation of powers for forces us to think about the question of what is government for.
and the answer to that question today would very quickly get to policy. government is for advancing some kind of public policy vision and when we fight to control the government, when we fight to win the next election we're fighting to advance a certain public policy vision. but if you look at the history of american political development and really the field of american political development over the past quarter century or so, i think it's really group peld with the question in this -- grappled with the question in a powerful way, the original understanding of the question, what is the purpose of government, had a lot more to do with the core protection of rights than with the idea of policy. the idea of government existing to advance policy which again is so natural to us that we don't think about it as an open question would not have been natural to americans thinking about government before -- at least the middle of the -- of the 19th century where before that, the core question especially about the national
government would have had a lot more to do with the core protection of rights and to see that, i think helps us to understand what it is that the framers are saying when they talk about the question of separation of powers. so that one of the more famous assertions of the purpose of the separation of powers is madison's in federalist 47 it came in the last panel where madison said the accumulation of all powers legislative and executive and judiciary in the same hands may justly be pronounced the very definition of tear aen. the separation of power -- tiereny. the combination of powers is tiereny. that is an assertion of purpose of separation of powers that's all about the protection of rights and it launched a set of arguments that really involved the question who is right -- who's rights and who counts? a lot of the arguments about the separation of powers and rights have been forms of the argument who counts and our system is set up in such a way,
their argument very often has been a debate between the branches of our government. >> yes, the question of who counts and the question of who's right and in some sense can we not look at a system, the constitution, the separation of powers as a set of guarantees for the rights of those who have recognized rights for those have already been counted and we're going to turn back to that in just a few moments. on the broad theoretical level i wanted to ask victoria about the issue of -- this come up in a number of points in the first panel. the parliament tear system versus our system our separation of power system. we take a beat energy a lot of comparisons and comparative government classes because of the presidential power system and all of that. what has -- what has been the best argument for our system as opposed to the parliament tear systems? >> -- parliamentary systems.
>> i think it's a combination of two things. one has to do this act of system has been so stable. democrats tends for short-lived -- democracy tendsfor short- lived. the written constitution. one of the xa ordinary features of the government is the length, [ inaudible ] it's not just history it is democracy, [ inaudible ] our constitution that and one of the things i consider to be somewhat weaker because of the presidential system but they're not similar in all of the aspects to ourselves. it was mentioned on top of the structure that is created for
stability put another way it's hard to get anything done in congress. you got to spend it, you got the house, you got to have the president. and then it's a loss or fail space. up and down and east and west. it's very hard to get something done with this system. that leads me to the second point which you mentioned which is right what happens in a super hard to get anything done? your freedom. because in fact if we don't have super strong -- if we don'tthat's a big difference in parliamentary democracy those super strong parties show they can be depending on the social undertaking quite tolerable to party takers. and that is one of the questions for today, which is when [ inaudible ] again just
to sum up, the conflict what was mentioned in the first panel leaves a lot of space for freedom and that greater rights. >> and the theme of our panel is of course the struggle for equal rights. equal rights not just some rights and the protections of rights that were already recognized in existence but also rights for the people who had been denied. so we have movements and we've had movements and the movements in the 20th century experience a great deal of success. what role to the separation of powers play in that, jessie. >> thank you for having me here today. i'm going to disagree with you just for -- on one point when it comes to civil rights, having the government not being able to move doesn't make you freer as we saw through the civil rights movement. actually going all the way back until after the civil war.
you have one -- if we didn't have a separation of powers, we might not have gotten anything done because it helps and also high winders. president grant was ready to and had congress pass a civil rights movement back in 1875. congress and the executive branch were ready to move but the supreme court stepped in and negated it. but then you keep going down, through time and you see one branch ready to move forward when the others aren't. you sea breeze truman deselling great the military something that never would have happened if left open to congress. you see the supreme court ready to move forward with brown vbore something that would never have happened if left up to the executive and legislative branchs. a lot of the advances we've had in several movements, several equal rights movements when gay marriage or womens' rights or
equal pay, it's not been all three brafrmgz ready to move forward at the same time it's been one leading and the others following. so i think with a lot of the equal rights movements we've seen in the last parts of our history, if you had to wait for all three branchs to be ready to make any provement together at the same time, they wouldn't have happened. >> i don't disagree with that. one of the problems with stability, which i did not mention. i was talking about general rights, you know, free speech, religion and all of that. the two greatest and most obvious evils of the constitution are slavery which the founders refused to even name but they created the conditions for a civil war. and of course women could not even speak in public at the time. they're invisible in the constitution and it's not surprising that a very stable system will so he lid phi deep in qualities. >> right. >> and it is required enormous
amounts of efforts and women change themselves to the white house during wilson's administration to fight back. i think sometimes as you mentioned though, that that conflict which was mentioned to the first panel. those s those of us who have some admiration for the am -- if you had a party that was anti-women or anti-race or whatever, you're not seeing much mobility of the unified party parliament tear system. you're mentioned president true man and use that success and -- truman and use that success and some republicans can say i can do that. >> right. >> this dialogue can be helpful but it's really slow. super slow. >> just stress -- to add on to that. i think it's very important to see the space for tension between branches of the government is space for change too that the fact that we can have these debates as arguments about who's in charge makes it
possible for us to have these within the space of our politics. you look at lincoln states men ship after dread scott. lincoln in the lead up to the run or presidency is just arguing about dread scott obviously they're talking about more than that. he doesn't have to say we have to reject the constitution because it allows for slavery. he says the court mistaken the constitution and the court is not the last word on the constitution. that was very much a fight about the separation of powers, is the court the only branch that gets to interpret the meaning of the constitution? but obviously was also a way to have an argument about slavery that could be had within the boundaries of our constitutional system and i think we can see that in a lot of the kinds of social change that we've seen throughout american history, very often the argument is about who's in charge, who gets to decide this. >> does that mean in the end that you're debating which of the branches is prime, which one is premice -- which one has
thepower when there's a conflict over power? does that follow what you just said. >> yeah, the system is designed so the answer to that is non. so the -- non. so the conflict goes on and at different times and in different ways people on different sides of conflict can take different sides of the constitution and have the argument. and you can see in the example some 40-odd debate we've had about abortion in america it's become an argument about the supreme court. we've literally seen this this last week in capitol hill. we're tall actually arguing about abortion and everybody is pretending to be arguing about the role of the supreme court. there are ways this can really distort politics especially when one of the institutions over steps it's boundaries. i think the fact the answer to who is in charge is unresolved in the constitution in the reason we can keep arguing about who gets to decide the fate of the country.
>> was that ultimately creative or ultimately dysfunctional i'll ask each of to you speak to that. >> one of the things that helped our republic last so long is that the answer changes because at one point, you will have a strong executive and a weaker legislative and at one point you will have a strong legislative and an even stronger judiciary, which is where we are at now. where we have a legislative -- national legislature which doesn't seem to get much done and so the final -- the word is now this is why the supreme court is so important because it doesn't seem like the exec sif and legislature can make a decision. >> when you say strong is that the same thing as saying responsive? >> that's a good question. [ laughter ] i think the answer to that is yes simply because if you don't have someone has to eventually make a decision.
right now it seems we're allowing the supreme court to have the final word on a lot of issues when the laws and the constitution can still be changed by the legislature and a vote by the people. but we are at the point where we pretty much i think we're all in agreement it's very, very difficult to change the constitution which means that the supreme court will have the last word and will be the responsive branch on a lot of issues. where in the past, the constitution could just be changed. >> or the constitution can be changed by the supreme court via interpretation but by no one else. end of right. >> right. >> well, i'm sort of partial to the idea and seen congress act on constitution questions i've seen the generals come in and act easily. i believe congress can act and i believe the presidency can act and i agree with the earlier panels the president and foreign affairs have simply taken off and that's a function of communications and global
leadership which the founders could not possibly have imagined because they had no executive literally in the articles of con federation. there was non. so she couldn't imagine this. -- none. so they couldn't imagine this. i happen to be in a law school where everybody does the supreme court. they think it's the center of the universe. having worked on the both side of pennsylvania avenue. it is the least dangerous branching. they follow the laws pretty well up there. i think the people inadvertently embraced my colleague's view the court is the center of the universe and that is problematic and predicts why we have such difficulty with respect to con fir racial makings because if the people believe that the supreme court is the ultimate ash ter which is frankly not the design in my view i think the founders and the first congress traementd to address and liquidate what they call
powers of the constitution with respect to removal powers and how it is constructed. all of the department decided constitutional questions and sometimes those decisions have been more or less lasting. this court is in some ways more aggressive on confess because it is an original nis and believes there is an original list vision. we could go back into that. i think it's a problem if we think the supreme court actually runs the american's government. so just put in that little -- you have ee electriced branches and if we -- elected brafrmgs and if we push them we get something. they're far more response i have -- responsive. >> there is an argument to be made the current president was elected by emphasis to the last two or three weeks in the campaign on the power to
appoint one or at least several members of the supreme court. in a sense does that voters endorsed the idea of the supreme court being in some sense the central power. it flies in the face of everything we normally say? >> i think since the war in court there's been a sense on behalf of the country and maybe liberals in particular thinking that the court is the home of all notions of equal rights. i would say and i hope the panelist would agree the 1964 rights act did a lot more for people than brown versus the board of education in terms of getting people job. women were added as a joke to kill the bill. congress can do important things. it typically requires an ee nor -- enormous amount ofenergy. because it's stable, you don't
get them all three to agree as my co-panelist was catering. do we think the supreme court should run the country? frankly, i don't think so. and i think that you're going to see in the future because the court will shift, by the way, there are already four votes. four votes is the key not five because that determines the agenda of the court. there will be four votes to take cases that will head in a certain political direction and that means that you're going to see major change it might not be with respect to abortion i think that has been something of an ruse politically but a much more proceed business court and proceed ma jor tearian rights -- majoritarian rights. other presses packed courts, it's not unusual this happens. i think it's an unfortunate part of politics and we spend
more time about the supreme court and care more about the supreme court and who's on it than voting. >> and we have candidates running this fall saying openly one of the platforms is expanding the supreme court to 11 members that's actually an issue in some of the races for senate and house. jessie, you are one of the very few people who has been credentialed to cover the supreme court, congress and white house. >> right. >> that's quite a statement right there. a very small club indeed. what strikes you about having all covered aurl the consequence tugsz about the competition between them and premecy that seems to be the goal but isn't necessarily that each branch wants to have the power. what has been your ocean? >> one of the things you deal with as a journalist is that you have to deal with the theory of how government should work and the reality of how government actually does work. and one of the things that you
see is that the reality of how the president, the congress, and the supreme court function together is always changing. right now, once again, right now, the executive and the legislative brafrmgdz focus on the -- brafrmgz focus on the judicial branch because they think that's the way to make decisions permanent as opposed to something that can be changed by future ledge lay tours and future presses. this is why we see so much talk about president trump coming in and changing the executive orders of president obama. once you get something done in the congress it's very hard for the next congress to change but we now assume that once something is done by the supreme court, it's permanent. which is why there's such a battle in both the legislature
and the executive about who gets to sit on the supreme court. we don't have -- we don't fight as much about who sits in the legislature as we do over who sits in the judiciary because the reality is that the legislature only every few decades or so gets to the point where it can move quickly. when you have filibuster proof majorities in the senate and enough votes in the house to be able to do something without another party being able to stop you. so the -- it's an ebb and flow between each branch but for the last few decades it's been both of the executive and legislative branch focused on the judicial branch because that's the way they think they can make something permanent because once again it's very unlikely we will see a constitutional con vegs that will be able to change the actual word the judicial branch is supposed to be using to make decisions. >> i don't think very much political scientists are yerng
to have a political convention at least not in results. everyone would like to attend and cover it, journalists. >> it be fun. >> it be an extraordinary experience. >> we've been covering the trump administration is fun wait until the constitution convention. >> and then of course we would have to live the consequences but yes. you have written congress is the branch that has the power not only to resolve a question of rights but to extend rights and provide equal rights where perhaps they were lacking but also the part of the separated powers that actually has the ability to heel divisions -- heal divisions to do something that actually has a healing effect as opposed to what we've seen coming from some supreme court decisions. >> yeah, it doesn't feel that way now. don't get me wrong but -- i think the core fact of this moment in our constitutional system, the kind of again raifsh fact that creates everything else is the weakness of the congress.
it would have not surprised the framers of the constitution that the court would try to seize power or the president would try to seize power. they expected everybody to seize power. what is surprising is that congress is willing to repower and is eager and wants the other brafrmgz to make the choices and we see this in vague legislation that leaves it up to the court to decide what things mean. we see it just congress willfully giving power to the administration. i worked in the bush white house and we constantly found ourselves confronting members of congress asking the administration to do things that were plainly congress's job to do. and that happens in every administration of every party with every congress now. i think the fact that congress is so derelect about using power is the reason why other brafrmgz seem like they're going to excess is the reason why it seems like we have presidential over reach and
judicial over reach and it is an especially tragic fact for the reason you mentioned. i think congress is the sthugs we have no actually -- institution we have that exists to find accommodations. it's true courts can resolve disputes too, that's their job. in order to have a dispute resolved before the court the parties have to approach the court and say to the court that the other party is in someway irrational or making an argument that doesn't hold together or violating the law or violating the constitution. that's not how congress works. in congress what happens is you have a dispute among parties, among factions that is taken up in an institution designed to achieve accommodations so we can revolve disputes in ways that could be more enduring because everybody gets something and you win arguments by persuading people not by persuading a third party that the other guy is crazy which is more or less what you have to
do in court but by persuading the second party they have something to gain by working with you. that is why democracy works in way he can endure and we want fewer of the differences to be resolved bit courts even when those are resolved and happy with the outcome. it would be better if it had been reached by some kind of democratic accommodation than by did he sigh sif result that for the other side is simply a loss. >> victoria you worked on the hill for senate judicial committee in the late 1980's at the time i doubt very many people thought it was an era about which people would look back with no, sir tal ga. [ laughter ]. >> has congress deter -- nostalgia? [ laughter ]. >> has congress rurpd to that
in some ways. >> yes, i think compromise like the 1954 civil rights acts we tried to get 67 votes have been extra ordinarily enduring. no one will go back and undo that extraordinary achievement, the social security act, those kinds of things can be very en curing. look at what happens? if people think it's finished in the supreme court how many cases come up on abortion. how many cases were decided since roe versus weighed. if doesn't get -- wade. if it doesn't get resolved. congress has 534 people it's a collective action problem. you have to get all the people to agree. i can write a supreme court brief in a week. can you get the law passed, no it took four years. all right that takes a lot of work. and it takes people to actually compromise.
why do i think that it's degenerated? well in early 2,000 i talked to people in the senate and they said the senate had change dz. it's norms had changed and people were refusing to actually work together. so for example, when i was there i was loaned -- i was workingfor a democrat but i was loaned to lots of republicans as an expert to various things. that was part of the culture but it became much more divided. and one potential you know thought question for the panel is when partisan germandering what i heard there were senators elected to fight against the president to run for president and also cannot work with the other side. because they thought that parties was going to propel them to greater advantage. one fear i have with the
separation of powers is that it actually en trenches not only in equality which it has over many, many sent reese but also in a partisan gerimandering system, you have no system left. you need to 60 legislation not supreme court nomination or any nomination but still on legislation. that means you've got to typically cross party lines. it shows why there are two women senators holding the keys to the nomination at the cusp. those votes will be really important. if no one is willing to compromise you won't get to 60 and the question is how much part son, you know this divide where there is no middle contributed to the dysfunction of congress. i'm not a political scientist. i don't know the answer but i'm curious. >> let me jump in and say that
it seems like we are and maybe right fully laying a lot of the blame at the feet of congress. but we also have to look at the executive branch and the judicial branch and think about the steps they take as the first step out of their lanes. >> yeah. >> and they've also contributed to the idea that -- of the politics of the country have changed. when you have a decision by the supreme court in bushvgore right or wrong which looked to america like a political decision that a judicial branch shouldn't have gotten involved and you have an executive branch who seems willing to make military moves when the power of war is supposed to be at the hands of congress. so it's not just that congress has ab have i indicated it's role it's that the other areas moved into what should have been congress's role and congress didn't say anything
because maybe it was needed or maybe it was the correct political move by congress. but the other two branches also moved in ways that have caused this -- the shift in how the government is supposed to work. >> i agree with that swierl. if you don't go up to get -- i agree with that entirely. if you don't go up and get a military form, if you don't do it have voluntarily how do you think congress will act on its own? what i find disturbing about the court right now. i'm sorry we work for different administration. the whole idea of the union tear executive that the president has quote unquote has all power that's a quote from justice ska elina in one of his latest dissenct. it's dangerous. if you don't think the court can act and the court is there to support the president, we
congress but we love it when we say democracy. if you only think the president has power and the court you're asking for something that doesn't look like our separation of powers. you're asking for an hypocacy and author terence form of government. well, someone told him it was in the constitution, it's not in my view. [ laughter ] but also the judiciary shown enormous contempt. it took a case involving the healthcare act instead of one word they could have fixed one word in the law saying created within a state it could be have been for estate not by estate. one word that case went up to the supreme court of the united states and the chief justice said oh congress in art fully drafted it and we'll have to fix it and by the way, here's a cartoon about congress. when our judiciary has that type of contempt it it makes me
nervous. >> we'll be going to questions in just a moment and we would like to hear from you. i wanted to give everybody a chance before we do go to questions to speak to the question of what issues of equal rights will be a challenge to separation of powers going forward. we've talked a lot about the class i can issues. what issues will be with us going forward. >> let me say first i agree with a great deal of what's been said. i think ultimately congress's derelection is the reason why the excess of the other brafrmgz are made possible. all three brafrmgz are expected to be hung for power. congress is insufficiently hung for power at this moment. and that's part of the problem we're facing in the system. i think the question of the union tear executive which isn't about the separation of powers it is just in the executive branch the president is responsible for everything that is done personally. i think that's very important and we see a failure of that in
this administration. part of the failure of the of administration on the one hand there seems for an administration and on the other hand there's a president and theernt doing the same thing and we can't function that way. this contempt of the union tear executive should be understood that way. to your question, i think one place to look for novel challenges to the separation of powers is going to be in some of the religious freedom challenges to come up in the wake of the same sex marriage decision that came out of the court a couple of years ago. i think we're seeing those being followed up by problems for the exercise of religious freedom that demand some action from congress that isn't happening. something like the religious freedom restoration act which passed with very broad bipartisan support in the 1990's and today couldn't possibly pass with bipartisan support.
it's an example of how things have changed in congress and in our politics generally. it's a set of problems that i think could be resolved ledge lay actively through an accommodation but instead is almost certainly going to be resolved in the courts and that i think will present extremely complicated problems for all three brafrmgdz in the coming years that -- brafrmgz in the coming years that will force us to think about separation of powers. >> jessie. >> digital prophecy that is something we'll be struggling with daib i think that's the issue for practically for the next millennium especially in a world of social media where information can travel around the world in micro seconds in a world where we see gene logical companies selling dna that has been -- gene yo logical -- genealogical companies selling
dna that has been altered. decisions will have to be made by the executive and leng lay tour and judiciary to find a way that -- and legislature and judiciary to find a new way of flow for things to be resolved and used or not used in a way that everyone can be satisfied with from both the business and the personal level. . >> very well victoria. >> i agree with both of those things. i think i'll add that we'll see shortly in some statutory cases the question when the 1964 civil rights act will cover transgender folks who are discriminated against as well as covering sexual orientation as some circuit courts upheld this is ant i constitutional case but constitutional implications in the sense that the reading now of the statute
by some courts including a 7th circuit which is generally considered a conservative court is to include sexual orientation discrimination even though the congress has not passed it. one house passed it but the other hasn't so we'll see that on the court. >> i would like to invite us who would like to join the discussion to ask a question to come to one of of the two micro phones. as they lining up let me throw out a quick thought with respect to immigration. will immigration and the rights of people in the country without documents or even people who are in the country with documents who are totally legal immigrants will their rights in the system be a challenge to the separation of powers? >> yes [ laughter ]. >> yeah, i think it's very clear. it's another instance of the who counts question and i think we're already seeing of course but there's been a change of direction on immigration under this administration that a lot of the questions very, very quickly get to the courts and
there's no doubt it will be. again, i would only say not to harp on congress especially being here in the capitol, the reason this happens this way is that congress has not been able to take up the issue for 15 years of trying. and it is a failure of the legislative branch to do its work and address the ways that the circumstances of immigration in america have changed that created the need for both of the other brafrmgz to step in in way that are unliking to be -- branchs to step in and that unlikely to be unenduring. . >> we'll start over here, sir. >> so thank you first for being here. so the first panel arching you had you'd this idea of separation of power -- argued that this idea of separation of
power was the foundation of how federal lichl works in the united states -- federal ism works in the united states. my question is do you believe that such a system of separation of powers could be applied to europe to reach what churchill described as the united states of europe. >> just remembering churchill said that, [ laughter ] would you like to speak to that -- >> sure, i think there is a different political tradition in europe that is rooted in basically generally speaking, the parliamentary model the existence of the tradition is part of why the british are uncomfortable with being part of europe because their traditional louz for a little more like our level of separation of powers in government. i think it's unlikely that ultimately europe will be able to move forward by applying
there's a lot to work with -- i don't think they have done that. some of the failures of the u are failures to apply the lessons of european democrats to end europe -- democracy to endeuropean democracy, if you will. i'm not sure this super natural project is feasible but if it is i think it is rooted in the traditions of european democracy which are long traditions and rich ones. >> yes, on this side, sir. >> [ inaudible question ] as a result leading to in action in congress. do you see that as maybe just a phase we'll have to get through or more of a permanent change, something we will is always have to deal with going forward. >> i hesitate to make predictions with politics given
the last few decades in american history. but it's really hard to see a major change in partisan politics happening any time soon. usually, the biggest changes we see in partisan politics come around war. and absent that, i don't see politicians saying partisanship is ineffective to get their goals achieved in america right now. now once again, one of the things i've learned as a journalist over the years in politics is never say something is not going to happen. but, just looking at the state of politics in america right now it seems very unlikely partisanship is going anywhere any time soon. >> i agree with that but i also think there are some signs that
people actually now have understand that this is an issue of -- very great importance. and eric holder is working on trying to get people to engage in efforts to have independent conditions to redistrict. there are plenty of ways you can run the computer programs to get something that is less than like what happened in the case in the supreme court where they refused to hear the claim. i don't think they're going to hear the claim. but i do think that the people, if the people were to rise up and say they once rows up and asked for a referendum of initiatives in the end of the 21st century. if they did it in arizona and asked for independent redistricting commission, they could get it. >> i think there are ways institutional change can help a lot on this front but we should see the limb i said of that. this isn't all driven by
gerenandering. there is none in the senate. i think it's driven by deep forces in the culture and also driven by the way in which political communication has changed and the ways the ways politicians approached public. a lot of members of congress understand themselves as playing a role in a kind of -- in apartisan eco system broader than congress and they see congress as a particular easterly useful platform forgetting a spot on cable news and talk radio and -- they're satisfied when that's what congress provides them with. i think to get back to a sense that the purpose of congress is to compel accommodation among factions of different views, those are imaginable, the missing ingredient is members who want them and you know that's not a small challenge. so i do think this can change
party coalitions over time and we have definitely had ebbs and flows of partisanship but it will require desire for change by the public and politicians and i think maybe we're at the beginning of that but we're not at a place where that is about to be transformative. >> i was actually talking with some political reporters about this a few weeks ago. around senator mccain's funeral when we were talking about how different politics would have been if senator mccain when he ran for president had actually chosen joe leberman as his partner. it didn't happen but can he even imagine someone running for president saying i want someone who is not a member of my political party to stand with me and to be the president of the senate? that would be a completely different political system. and that's the closest we've come to that when john mccain
was actually seriously consider making joe leberman his running mate. it didn't happen but imagine how different the political system would be if you had a -- youhad two people running -- youhad two different parties on the same ticket running for the executive branch. >> and john kerry wanted john mccain to be vice president on one level not that he tried to make that happen. but he had that idea in 2004. i agree with the senate has become more and more like the house one reason for that there are so many former members of the house in the senate. they moved over there instead of coming from governor ships and other positions. >> i think you've spoken a little bit to my question. we succinctly identified that the different brafrmgz of government were over stepping and endorsing the supreme court to have more power than intend the. how do we empower congress where do we meet in the middle? if not as a constitutional con
vegs where will it roll out and where will changes actually happen? >> noticed how everyone is leaping to answer that? [ laughter ]. >> congress has a lot of power. a lot of the problem congress has chosen not to use the power and chosen to allow the other brafrmgz to step in a lot of members of congress want to do that and then they step back and can't wait to get off the floor of the house or senate and find a camera and complain about washington. they prefer that as a way of doing politics to actually taking control and saying this is our responsibility. we are insiders and not outsiders and -- a change in that culture is what's necessary. that's not to say i haven't answered their question that's a way of rephrasing your
question. at some level, it will take a level of public dissatisfaction that leaves members saying this can't be what we do and looking for other ways to do it. you can change the budget process which is at the center of so much of the problem. congress could reassert power in foreign policy but what's lacking is will and that is very hard to change. >> actually, you know i'm still a believer in the notion of the people of this country when they stand up, they will be heard. and madison believed that the congress would be a legislative vortex because of the dependency of these folks on the voters. all right? they'lled be closest -- the members of house would be closest theory elected every two years and senate could be closer through the state political machinery and they remain dependent. we say oh they wanted to get re- elected but that's how they're supposed to be accountable. people have a job here. they can't just tweet. they got to show up and work and they have to demand
institutional reform. it has to be concrete. because there are ways within the house and the senate to change things. right now, the rules -- we've seen them change with respect to judicial nominations. i never thought that would happen when i was there in the early 90s. things can change if there is a will but people have to ask for institutional change. >> and the struggle for rekwaul rights that is the subteam hereunder separation of powers that has come -- equal rights that is the subteam here under separation of powers. that has come here. >> my question is in judicial decision is the supreme court taking the role of congress and enforcing policy or following the law? ? >> ask a political scientist or journalist they'll tell you one thing and ask a lawyer they'll
tell you another. >> start with you victoria and come down the row. >> i think you have to decide -- you take the politically sailing in cases the bushes versus gores and campaign finance all of that out. the once people read about the newspaper and put them over here and take the rest of the cases which they decide are not about the constitution. which means they are statutes. so no one cares about those. really? maybe people who are living in them obviously care about them but they're typically things like bankruptcy and tax and important to litigants and maybe important to the economy as well. however, those cases i think they do decide a lot. so it's a combination that michael bailey has shown in his work basically, yeah for the highly veil yent things they follow election returns. i think that is why the supreme court decided the way he did on healthcare because he did not want the court to undo the
healthcare law. i think elections matter a lot. as for the bulk of the work it is very heavily on lawyers learning about. >> i think that's quite right in some ways about the other brafrmgz too. what we see of them is what happens in the march begins in way that are prominent and controversial and sex offense we see them at their -- and controversial so often we see them at their worst. this is where we dis. >> when the court has the ability to say the deepest most did he vie sif questions we see this society but that's not what they do most of the time. >> a lot of people or the american people know about the government is what we see in the media. as citizens, we don't take it
upon ourselves to go to the courts and actually watch the cases themselves and we don't take it upon ourselves to go to the subcommittee of this committee to hear the discussion happening. so in part, a lot of -- i will say a part some of what we see is the fault of the media. and what we present as well. we present the things that are the most controversial we present the things that are most exciting. we present the things that we think our audience wants to read and listen and watch. but, that's just the presentation. in a world of where everyone has a computer in their pocket, there's nothing stopping the regular systems from finding out exactly what the brafrmgdz of government are doing. >> true. >> as a regular citizens we don't take the time or may not have the time in our lives to actually do this. a lot of what we see and what we argue about is a fraction of what the government actually does because we allow the media
to present to us only the things that the media thinks we should see, when right or wrong. >> indeed one final question. >> i think my question was a popular theme today. it's another one of partisanship. speaking about the elections of 2010, how many people were discontent with the democratic party super majority. so there was a big election, grass roots movement and the republicans took control of the house. in 2014, thank you. and now we're seeing similar attitudes of the ones of the blue weave and increasing polarization which is good for competition but what is way to channel the competition instead of being there and the stagnant theme of ping pong i like to call it and make it more to the root issue of human rights, the
government is here to protect your rights and not just like, oh, one more point for my team. >> thank you. i'll give each panelist a chance to wrap up because this will be our -- this will be our farewell as a panel. >> jessie you sounded ready. >> what i was going to say we also have to make sure we define for ourselves what we talk about as -- for greater rightsbecause over the last few years, we've discovered that corporations have rights. that's not something that we would have thought about 50 years ago. so, yes, with the partisanship has also brought different rights that some people may or may not like. we talked about the -- the inclusion of gay rights which some people may or may not like. and we're now talking about transgender and trance sexual rights.
-- transexual rights. they sxeb flow with politics -- they ebb and flow with politics and that bless greater rights that we may agree with or may not agree with. we may agree with more genetic rights or more privacy rights online but we also have to understand that all of these things come about as a result of politics and politics is just the art of partisanship. so while we did he cry it -- decry we understand sometimes it brings about change in the country. >> i think the question is very important and this image of politics is ping pong is important in understanding what's gone wrong in the last several decades because i think what partisanship is meant for our institutions is the power has gone back and forth and it's -- it's useful to understand that was actually
hasn't always been the norm in american political life. congress was controlled by the democratic party for the better part of 40 years before the mid- 1990's and a lot of the rules and structures that still now are the institutional structure of the congress remained at a time when it was reasonable to think there was a majority party and a minority party and the presidency maybe changed hands though the presidency was heavily republican at that time. congress was an institution moving from one party to the other all the time. our budget process which was established in 1974 is very much a un ii party budget process. it is understood ultimately what's going to happen is some part of the minority party will cooperate with a large part of the majority party to advance the budget process. and that just doesn't happen. that hasn't happened in a long time in this much more partisan
congress. there's a political scientist at the university of maryland named francis lee who tried to kron cal this and plain it and basically suggests each party at any given time in congress thinks it could win control next time at the next election and operates accordingly and it thinks our job is to win the next election and control. we don't have to compromise because we will win everything next time and get our way. we don't have to find ways to make things endure because next time we'll be in power. and this situation requires different rules, congress needs to think about how the institution should operate, given the fact of partisanship. and it simply hasn't done that so it's still working with the rules that are not a good fit for the reality of congress now and what has been the reality of congress now for it 20 years and more. it is time for institutional reform that takes some account for political realities. >> i don't disagree with either
of those comments. look, when you talk about rights you talk about kofrpgsz and ma jor tarian rights and a whole clan of claims. i our whole right has changed dramatically over history. we think different than we did in the 19th century and may be part of the problem. we see them as trumps essentially and they have not always been that way which makes for more did he vie sif claims about rights because they are extensive permission in allowing exceptions. the second piece is institutional as i mentioned earlier. there are a number of issues that need institutional reform one of the problems is you know if -- if the senate is becoming more like the house, that's a serious problem because, in fact, it engages in short term ism which is used in corporate law basically to say we only get the stock market up, well, you know do these few things but we don't actually invest in the corporation over
the long term and that's exactly what i see happening is the short term ism so that the house of the 2-year window which is very, very short the senate has a longer window so they can push forward things. we have seen this in past where they pushed forward through commissions or other parts of constitutional reforms can work and that's what i hope is the key and inspire citizens to think about institutional change as well as to the short term politics to the short term issue. >> -- thank all of you for being here. thanks to the panel as well.
part of a conference hosted by the u.s. capital historical society and american universities the center of her congressional and presidential studies. >> our third panel which was a topic of discussion, uncertain future, party pull is that -- polarization and the legislative executive balance. our moderator is