tv C-SPAN Weekend CSPAN February 6, 2011 2:00am-6:00am EST
i said should we go to congress and ask for specific round of additional authorization to continue doing this? they said absolutely not. if you send it up there, it will leak and below the program to the enemy. that was unanimous. nobody objected. from either party, neither house. it all came about later. it. . or that the administration and president said it would pursue when it pushed into office.
let me ask about domestic policy of the bush administration. a lot of people at this conference had it is not new to you. a lot of conservatives think that all the good things that the bush administration did, the one area where they could have done better was controlling government spending. they say that that undermined our brand in part because of the very bad results that we had in 2006 and 2008. you have a comment on that? >> i cannot argue completely against that. we had a republican congress for several of those years.
when the question, on whether or not you had a spending bill, the response was often will you except? to vetoay you're going the bill, we will not send it to you. we will send you a different one. there was a natural inclination because we had both the white house in the house and senate. it would try to cap the notion of out and out conflict. i think that we could have done a better job on spending. i was always concerned when we got into prescription drug benefits, the original objective was that we would grant additional benefits.
-- prescription drugs are the key to survival. it has to be part of the package. in return for that, with one significant reform in the medicare program. we began to get a handle on medical costs. we get the prescription drug benefit, but we never get any kind of reform. i think that the criticism has some justification. the other thing that i referenced is 9/11. it had a huge impact on what our priorities were. under 9/11, we had to undertake a lot of activity to make the nation safe. everything from setting up the homeland security department to
military operations in afghanistan. there was a lot of stuff that we had to do fast. it was expensive. but i think we saved thousands of lives that would have otherwise been threatened if we have responded as aggressively as we did. i am glad to see that the congress appears to be serious about going after that. >> richard from santa barbara has a question. you may want to save this for your book, also. he asks if you can give us any information on whether or not -- on your reaction when gov. bush has to to be vice-president did what can you tell us about that meeting? >> i have talked about that before. i will talk about it again.
i had been approached earlier in 2000 about -- by one of the governor's associates about whether or not i would allow my name to be considered for vice president. i said no. i had a good job and i was happy living in dallas. i have health problems. that would be an issue. in in the oil business. that would be an issue. we are both residents of texas. that would be an issue. you cannot have the tax is a lack coral vote be cast for two guys from texas for president and vice president. if i had stayed in texas, we would not have been able to count the texas a look for votes towards my election for vice president and would have a
bush/lieberman association. joe is not a bad guy, but you would not have wanted him for vice president. but, the second request was whether or not -- the governor called me and asked if i would help him find somebody. i told him i could do that. we could get it done in a couple of months and then i could go back to doing what i wanted to do which was to run the company. we ended up, right after the fourth of july, a couple of weeks before the convention, i went down to the ranch there outside of crawford before they have the new house built and they had a little bitty wooden frame house that they lived in. we spent the morning reviewing
all of the candidates and then have lunch. he took me out on the back porch. it was about 120 in the shade that date. he said that i was a solution to this problem. i took that as a threat. i needed to work harder to find him somebody. he did not offer me the job, but he made it clear that he wanted to have me reconsider. he wanted my name on the list. i told him that what i would do is go run the traps and see what i had to do if i were to make myself available. we had a lot list of things-a long list of things we needed to do. i told him i wanted to go down
to austin and sit down with him and whoever else he might like, karl rove or somebody else and discuss why he should not pick me. he said ok. the following saturday, i went down to austin and sat down with the president and karl and laid out the brief against me. i am from wyoming. if you do not carry wyoming, you are toast, anyway. there are only three electoral votes. we went through that whole exercise and he listened. karl agreed with me. [laughter] i went back to dallas and within a day or two, it was the governor saying that he wanted me to run. i often had the suspicion that
he never really gave up after that first meeting earlier in the year and that he always had it in his mind he has never had knitted it to me. maybe he will after he sees this. [laughter] the thing that changed my mind was that i worked with him over a time frame of a few months where i heard and i could observe his mind working about what he wanted in a vice president and what he was looking for. this was a guy who was not going down the normal path of picking vice-president sberg you pick a guy like lyndon johnson and then you bury him someplace. they did not even let him go to meetings with the senate democrats when he was vice president. this-a vice-president and get them out of the way and have
them attend funerals. he was off read about the electoral college votes. he was looking for somebody who could serve alongside him and be a participant in the process and get actively engaged. he liked my background, my experience and my resume. i can only convinced that he meant it when he said to sign on and i would be a major player in his administration and get involved in what ever i wanted to get involved in and be a participant in all the meetings. it sounded very attractive, frankly. he kept his word. we ran into gritted staffs and avoided a lot of the pitfalls that a lot of administrations have not aborted.
-- not avoided,. i always got to voice my view and he always made the decision. it was, all things considered, for me, an absolutely fascinating experience. i love it. [applause] >> we have just a couple of minutes left, but i have a couple of questions left. we have a lot of young people in the audience and a number of them ask questions along the lines of what advice do you have for them who are very interested in politics and what to do something for this country, for those that want to pursue a career in public service. >> do it. [applause] i started out and i was born to
be an academic. i thought i wanted to be a schoolteacher. not that there is anything about teaching, is honest were. but i got to washington on a fellowship in turn shipped and there are a lot of internships. they're brought many when i started out. there were only two in the wyoming state government and i got one of them for 40 days. but now, there are tremendous opportunities all the time for young people that want to start andand it's an experience participate. put your name on the ballot. start at any level. you do not have to be president of united states the first time out to have a major impact. you can do it in your local community or the state legislature. what ever moves you, what ever turn to one. it is a privilege that most of
us come to appreciate the more we travel and get in the world and see what is going on out there. there is a lot of trouble that a lot of people had. you come to the united states of america, and it is whatever we make of it. you have the opportunity and the obligation to get out there and spend time and effort and resources serving. thereare a lot of ways to serve. it does nothave to be so much about successful political wars, a lot of this is at the center where students get some exposure of the legacy of ronald reagan and the ideas and principles. it is a tremendous privilege to be able to live in a society in
a country like that and it will only be what it has been for all of us, to the extent that we get actively involved. we have an obligation. the young folks have to pick up that burden and see if they cannot do -- if they cannot do a better than we. >> and who is one to win the super bowl tomorrow? >> packers, packers. [applause] i am not sure there is anonymity -- there is unanimity on that. [laughter] >> no.
[applause] >> you are going to take off. >> sunday on newsmakers, homeland's security secretary janet nepal tunnel on security threats and administration policy on border issues. that is a 10:00 a.m. and 6:00 p.m. eastern here on c-span. >> the c-span networks provides coverage of politics, public affairs, nonfiction books of american history. it is all available on television, radio, online and on
social media networking sites defined our content any time in our video library and we take our digital bus and local content vehicle on the road bring resources to your community. as washington, your way. it is now available in more than 100 million homes, created by cable, provided as a public service. now, a look at these state of judicial nominees. during this discussion, robert bauer expressed his concern over the number of judicial vacancies. you also hear remarks from caroline lamb and president clinton's deputy white house counsel william marshall. this is 1.5 hours. we are a network of lawyers, judges, and law students that promotes the vitality of our constitution and its fundamental
values. individual rights and liberties, and genuine equality, access to justice acs has worked to draw attention to the judicial crisis. cement -- the senate only confirm 62 of barack obama's to additional nominees in the past two years, compared to 104 george bush, and 128 for bill clinton during the first two years of their presidency. we have 875 federal judgeships, and we now have 101 vacancies. that is an extraordinarily high number. 49 of those vacancies are described as judicial emergencies.
most recently, the tragic death of judge john roll brought attention to this crisis. he was at the safeway in tucson to talk with gabby giffords about this very issue. about judicial vacancies in arizona. and his death has resulted in arizona now being added to the list of judicial emergencies. this vacancy crisis is obviously not a part -- a partisan issue. it is an issue about the integrity of our court and the administration of justice for the american people. on the heels of justice anthony kennedy calling attention to this problem, a group of nine circuit judges led by chief judge alex kosinski, a reagan appointee, wrote to senators reid and mcconnell, asking them to fill the vacancies. so what can be done about this? today we are extremely lucky to be able to hear from someone who is so well suited to answer that question. white house counsel paul bauer will share his view on the nomination process and what he sees as the likely development in the coming years.
bob was named white house counsel in november 2009. it was formerly a partner of the law firm and chair of its political law group. he was president obama's personal attorney. he also served as general counsel to the dnc, as co- counsel to the -- and was general counsel to bill bradley for president. he was also counsel to the democratic leader in the trial of william jefferson clinton. bob has graciously agreed to take a few minutes of questions at the conclusion of his remarks and we will then hear from an extremely distinguished
panel. now what is my pleasure to turn this over to bob bauer. thank you, bob. [applause] >> thank you for your invitation to speak on this. i have been free to make of this topic what i would. my hostess been kind enough to not suggest any particular approach to the topic. i would like to lay out what i hope we can accomplish this year in cooperation with the senate against the history of the last two years' history of experience with the senate. i will not rehearsed the familiar litany of complaints
about the process. there is plentiful commentary on the subject. some of which is learned and useful, and some part of which is a myriad of accusations about who is behaving badly. one of my favorite, who behaved badly first, to lessen the culpability of the person who behaved badly second. here are the essential facts, and those of you who like to participate, you can look it up. the confirmation rate is terribly low. one result is the large number of seats dedicated as judicial emergencies, more than one half of the nominees now present in the senate our judicial emergencies. the state of emergency being that which by the standards of judicial conference is courts were the cases are filed
exceeding the capacity to hear them. the vacancy rate overall has hovered around the historic 12%. this is twice the structural rate, twice the 5% rate that we might expect in the normal course of retirements and death. yet we have nominees that have waited for historic long periods of time for a vote. now total of 49 nominees before the senate, nominated in the last congress and now renominated for nominated for the first time just last week. the chief justice of the united states pointed out of minute ago correctly stated that the underlying problem has persisted for many years, and that the move to address it has
become in his words "urgent." this is the second to take up the call against the breakdown in the nominations and confirmation process. chief justice rehnquist did the same some years before. for him, he stated that the consequence was a growing, unattended to do so work load and the threat it presented of an erosion in the quality of justice. over time, these have been registered by our range of forces and commissions like the miller commission in 1996, which opened its report by stating, "the federal judicial system continues to be plagued by troubling accretion of unfilled vacancies and delays in the appointment process and backlog of the pending appointment." the effectiveness of -- the state of judicial emergency is predictable and pernicious. a massive backlog of cases causing increases delays for americans seeking their day in court around the country. trials are delayed for months, some courts lacking the necessary capacity to outsource portions of their caseloads to other courts.
an individual judge's on courts with numerous vacancies have had to take on hundreds and sometimes more than 1000 additional filings. what is the striking and disturbing about the state of affairs is what i will call the general absence in the political sphere of the same sense of urgency expressed by the chief justices. there are exceptions, to be sure. chairman leahy has spoken forcefully and eloquently to this problem, and his concerns are certainly actively shared by the democratic leadership. but i have noticed in recent months in the course of my conversations with members that this concern is spreading and it is by no means limited to one side of the aisle. republicans as well as democrats increasingly 8 knowledge, some privately, some publicly, that we're witnessing something profoundly troubling. it is true that many have pointed out that there are institutional and structural explanations for the woefully inadequate pace of confirmations. for example, the senate rules
for all practical purposes permit a single senator to freeze the process for particular nominee. we're all familiar with the lament about the procedural tools that are available to accomplish delay or the means by which to lay becomes the functional equivalent of fatal opposition. these are all important points in the discussion of the purported the confirmation process. but there are significant largely as expressions of the problem, not as primary source. the problem is i see it is that more -- it is more subtle and more profound. it is the very climate now often felt in the confirmation process, many years in the making in which it is widely accepted that this is the way things go and that the cost cited by the chiefs, heavy
costs, some are -- are somehow they're full. -- are somehow unbearable. proponents planning that large consequences will come from confirming or rejecting potential nominees. this type of conflict is far from the subdued setting for the confirmation struggles of today. it is a war, a term i do not care for, is a cold war and not a hot war. there are two examples of how whitmanic fest itself. first, nominees' left to languish on the floor for as much as hundreds of days without a but are basically ignored, not push to one side because of perceived deficiencies in their records or shortcomings as potential terrorists. it is a quite a blow to the process, but a heavy blow, nonetheless. no shopping on the floor, just nothing on the floor. it is sf, and it is apparently to some, as if it did not matter at all. but of course, it matters a great deal to the nominees, to the courts to which they were
nominated to serve, and to the parties before those courts. chief justice rehnquist quite rightly pointed to the loss of quality of justice when we do not have enough judges for the cases to be decided. and it is all loss in the quality of justice when this very proposition, up proposition that we urgently need judges to have an effective and responsive judiciary, to an intermittent audits. that is one problem. let me cite another. in our selection of potential nominees, and in consultation with senators and in some cases representatives, we have been forced to give up on qualified candidates because opposition has been a concern about quality or qualifications. but in my experience, these concerns however strongly expressed are all too often hard to really pin down. sometimes it is a question of personal preference. the president has selected a candidate for nomination. and a particular member would
have chosen differently. the stalls progress on filling the vacancy. if it stalls, well, it's false because it seems somehow that delayed does not matter as it should. this is a new world. a confirmation process once characterized by hard-fought battles waged on specific nominees is now disabled by steady resistance to moving nominees as a class of across the board. this can happen and it will only continue if the effects are seen somehow not to matter very much or not to matter enough. and yes, each party can only accuse the other of partisanship, of cutting back that successful number of nominations even when there is no way to focus on ideology. but if this is acceptable, even in the absence of major disagreements about confidence or etiology, it is ok to keep
the short -- a " short of justices, then this only goes to show how the costs have become parable and how the loss in the quality of justice somehow has come to seem not to matter. one question raised from time to time is whether this administration can do more to elevate the issue. to call more attention to this grave problem from varying directions and in varying ways. be sure that we have made and we will continue to make this case as the president did forcefully in his letter to congress last october. there he highlighted what he called the dramatic shift in the confirmation process, which could produce a crisis in the judiciary. he wrote, "if there is a genuine concern about the
qualifications of about judicial nominees, this is a debate i welcome. but that consistent refusal to move promptly, to have that debate or to confirm those nominees with broad bipartisan support, does a disservice to the senate and the american people it serves." in this new congress, we will continue to make this case for treating the confirmation of judges as the urgent priority it is, we will make this case through the end of the session and into the next. our goal is to do so in a way that defines the issue and seeks to raise the sense of urgency and calls on the good faith and shared commitment to our system of justice that can be found among democrats and republicans alike. for our part in the administration, we continue to devote our energies to removing obstacles and excuses for delay. we have obviously appreciated the process by which nominations are made, presenting
challenges. as a citation to the miller said the report reflects, this is nothing new. there are delays in the nominating process, but we're not tranquil about it. identification of the candidates, consultation with the congress, coordination with the american bar association, if in the ever exacting vetting process consumes more time than they should. we have made justice and we will make more. but the number of nominations in the last -- 71 in 2010, increasing 70% over the 2000 number for a total of 112 overall. and as i notice, some 49 and now before the senate. the judiciary committee hearing scheduled for all intents and purposes is booked for this purpose until the spring. it is not for want of nominations that we do not have confirmations. i appreciate that there are occasions where their major differences over the jurors provincial outlook of one
nominee or other bringing to his or her post. perry often the differences are absurdly overstated. each side of the debate would do well to take a more measured stance in these discussions. i understand that my wishes are unlikely to be granted, but i learned that this job that one hangs tightly to whatever slim thread of hope one can. but after full and fair deliberation, the president's nominees must receive a vote. this principle goes to the heart of the advice and consent process, to the americans -- to the president's constitutional authority to nominate. so stepping back from controversy is chewing the -- eschewing it the habitual finger-pointing, it should find common ground and find a constitutional process that moves from nomination to debate to a vote. in this respect, returning to the theme that we should treat nominations and confirmations as if the matter, one way certainly is to respect constitutional form.
the case in which a vote should be denied should be rare. truly exceptional in character. there should be some discussion on what such a case might be. some senators may fear that committing to an eventual vote will give the game away, removing any serious incentive to the concerns and consultations about particular nominees. fair enough. that is essentially a question about good faith. but this administration is committed and i believe it has shown that it will consult with the senate in good faith. we have endeavored to do this. we have agreed to review a second time and occasionally a third time the issues raised about a particular nominee. but in the end the objection is simply that a senator or senators would prefer a
different nominee, or would insist on one to decide cases on a different reading a lot, then the objection should be put to a vote. against this background, this is what the administration hopes to accomplish. we will work with democrats and republicans alike to reexamine seriously where we stand on individual nominations and on the process generally. this has to be a bipartisan process and i am convinced in conversations with republicans as well as democrats that there is a growing recognition if that however we got to this. over however many years, we
cannot in good conscience remain here. a group including nominees from republican and democratic administrations of the past, they come in bipartisan groups, confidentially, to express these concerns that the path at which we have arrived is simply not sustainable. so the principles on which i hope we could reach agreement are as follows. judicial nominations are an undertaking in public administration, the administration of justice. this is a first principle to which we must always repair. the current slow crawl cannot be reconciled with acceptable standards for maintaining our system of justice in good order. the administration will continue to consult closely with senators in full recognition of their legitimate interests and concerns and prerogatives, while expecting that differences about particular nominations can be explored on a common understanding about what constitutes a legitimate, reasonable ground of different.
and last, this will affect a small number of nominations, but those differences will remain and the nominees should have a vote in a way. none of these should be on the effect -- the reach of good faith implementation. at that time at when the american public is asking with intensity that the parties work together to solve problems, this problem, it should not be left out of the bipartisan were to be done. to refuse or neglect this work would be to affirm again that somehow in some way it does not matter. and certainly there should be agreement, and i think there is agreement, that they cannot be true. a process so vital to the administration of justice does matter very much. as the president stated last year, "the real harm on the american people who turn to the courts for justice. all americans depend on having well qualified men and women on the bench to resolve important legal matters, from working mothers who seek timely compensation for discrimination claims, to communities hoping for swift punishment for
perpetrators of crimes, to small businesses seeking protection from unfair and anti-competitive practices." and we can honestly multiplied many times over the list, the kinds of cases americans are trying to bring to their courts that because of the state of affairs cannot be heard in a timely fashion. in 2011, the task is urgently to have a performance of the judicial problem rise to the level of its importance. with that, i will take your questions. yes. >> in texas, no u.s. attorney positions have been nominated. could you discussed briefly that timeline for nominations in these positions and what the state of the u.s. attorney t nominations are across the country or to mark >> honestly the subject of judicial nominees is a subset of a larger discussion about nominations.
the speed at which the nominations are made and eventually they are confirmed. there is no question that we have experienced across the country in particular cases some real difficulty in moving nominations. some of the problems, i think, that have been at work in these difficulties i have alluded to in these comments. there is a robust process -- congressional interest in law enforcement and not -- and the nominees to law enforcement positions is very inherent. there are often sharp disagreements the breakout about precisely how the
opposition should be filled, the qualifications of each individual candidate to fill them. that is even after it the point at which we find a willing candidate who will submit to and ultimately emerge from the process by which we reviewed those candidates. let me assure you, the effort that i am suggesting, that we are making and will continue to make, to move judicial nominations will translate also and carry over into nominations in other positions including the positions that you cited. so that i move to be more specific, i won't mention the specific nominates but an aspect of the process -- we will do what it can -- what it takes to break through gridlock on some of these nominations.
to give you an idea, we had gone multiple times now to the congress, sometimes just to the senate and to hold delegations that have a stake in the matter, to revisit in person issues that have been raised about potential nominees. it might be a conflict about to bite the nominated or particular nomination, but what i want to stress is that we're in constant contact on these issues. sometimes they proved very difficult to address. that is not true across the country. it is true in some cases because of some particular condition, some particular circumstances. but we spend a great deal of time trying to work through that.
i want to recognize my deputy for nominations here who would attest that we devote a great deal of time not just on the phone but in person in a variety of ways to work through these issues to our resolution. in a large number of cases, one of the cases that you cite, we have not been successful but we will continue to work added. -- at it. [inaudible] >> i am with congressional quarterly. does the renomination of 10 -- a controversial nominees liked jack lew, does that reflect on their ability to get to the senate this go around. and any reaction on yesterday's ruling on the health care law. >> very cheeky. nice stalking horse question and right behind it comes health care. [laughter] the president does not nominate more -- any individual the administration does not expect a full support and bring to a vote. that's chilling case of the individual in which you cite,
and in case of all the other free-nominated judicial prospects from last year. thee fully committed to mall. we will work the process very hard and we will speak to individual members were there are concerns and we will move, as i suggested earlier, very hard to secure the earliest possible but with every expectation that we can successfully place all of these individuals on the court. what was your second question? [laughter] what was your question? my reaction to the health care
vote? i would have decided differently. [laughter] this is one district court decision. there have been a number of decisions. we of one so far, the administration position has been sustained in the number. it -- in this case it has not been sustained. this is part of our process and eventually we will have a resolution of these issues. i do not think that yesterday's development, other than adding another voice to the, if you will, opposition to the bill, the constitutional objections to the bill, stop the resolution for being successful. yes. >> the problems that you have talked about about nominations in general or is there something particularly dysfunctional about judicial and law enforcement nominations?
if that is the latter, is there a reason why? >> there are obviously different categories of nominations better. attract different levels of interest, in which congress will have different proceed equities. judicial nominations by virtue of the lifetime tenure feature and the importance of the case law that moves through those courts, it is going to raise the stakes considerably. there have been issues in the executive nomination process as well. i definitely think that by virtue of the lifetime tenure of these federal judges, and the significance of the caseload they decide, there is a high level -- legitimately high level of congressional concerns. now what we need to do is to have that process work more functionally and appropriately as consistent with the constitutional and original expectations. we should return more to constitutional form here and at a minimum expecting there will be disagreements have a full and fair deliberation and eventually a vote. if your question is, is there something about the judicial nominations instead of nomination generally, those of the features that i would identified. yes. >> has there been a discussion with senator to leahy -- senator leahy or tomorrow >> >> >> i cannot disclose discussions i've had with the head the judiciary committee. we look beyond those battles and address the process as we find it.
we look for ways to work through a successful resolution. that is the course that we are on. i believe it completely feasible -- i am hearing from republican members as democratic, no less of a concern about how this works. some of them, for all the disagreement you can expect on these issues, some of them have expressed to me and in fairly direct terms that they believe that the system is breaking down. they have offered to help. i take what they have offered at face value. i believe based on my prior working experience with them is that they mean what they offer six series -- sincerely. there is a way to bring these confirmations to a successful, from a -- conclusion. not the nominations already in the pipeline, but the nominations still to come. >> [inaudible] >> you mentioned the problem
with access to the courts. at what point does it become a constitutional issue, perhaps allowing the military force to open or some other thing about assets? [laughter] >> i thought i put it forward very dramatically in my remarks. [laughter] i do not think that we're close to that point. i have not contemplated that as a rimini project as a remedy -- i have not contemplated that as a remedy. yes. >> how useful to you consider the weapon of recess appointments? >> i don't know that i've whatever have to find it in terms of utility. sometimes you define it in terms of necessity, where
position is not filled in and does not appear there is any potential ground for agreement, there is important work in the government and is to be done. as you can imagine, recess appointments are quite inadequate response to the problem of judicial nominations. you are seeking to actually confirm in the normal course. so you conserve for as long as here see as able. -- he or she is able. i see it as necessity, but there are other places where it is absolutely indispensable, for the work of government cannot be done. the question of judicial nomination is the question of public could fenestration. unfortunately in recent years, it is become -- public
administration. it is become a subset of politics generally. there is obviously a political dimension to these debates, but it is still public administration is you. not everyone of these nominations is one on which the greatest issues of our day turn. there are americans every day you have to bring their cases to court and have them resolved. there is ongoing developed in the law. confident jurists have to look in the correct direction. we have to view this as something as we address as what is required for sound government. the same thing being true with executive nominations, which sometimes becomes necessary to make recess appointments if the physician goes unfilled and the business of government is not being done. yes. >> i read most recently about the senate not giving bush the various unsavory proposals were being voted out of the house of representatives, which raises
the possibility of some horsetrading in terms of -- we will let you vote on this if you let us have a vote on the nominees. i would like your comment on that from a practical political standpoint and from the principles standpoint. >> could you restate the question -- i want to make sure i understood it. >> apparently senator reid is not going to allow votes on the number of things that the house of representatives is passing out, trying not to mention a particular subject like healthcare. [laughter] there is a prospect, obviously, of trading, of course trading. we will let you have a vote on health care if you give us votes on x number of judicial
nominees. and i welcome to your reaction to both the political question and also as a principal question in terms of dealing with judicial nominations. >> i am probably going to disappoint you by staying within my own sphere of responsibility in confidence. i would not address the ways that senate businesses move. they have judgments about which measures in which votes and what combination will be scheduled or taken. that is a complicated process that i think it's probably best i do not comment on. at the end of the day, my view is and i do not mean this is a vindication of and ends justifies the means analysis, but we have to simply arrive at an understanding, not that we tend to the surface -- but as an affirmative matter of caring for our judicial system, we have to have those votes.
we have to have those confirmations. those funds may develop in other ways and i welcome the votes when they occur. but the larger point i want to make is that this is a matter of urgency right now, because it goes to the heart of whether we have a functioning system of justice that we can offer the public of this country. yes. >> i want to be that guy. what is the administration's next up with guantanamo, given the actions that congress has taken? yet given up yet happening within the next two-year period? >> what i will do so that i can
declined to answer to questions in a row and set a record, it is allowed carolina to appear at an event scheduled for that purpose. it is a very high complicated question. it would require several minutes of explanation and some back room. it is probably more within the time that we can do. thank you very much. [applause] >> that is extremely stimulating, interesting, and i'm very interested to see what our panelists have to say in response. we are fortunate after bob's talk, to have three exceptionally well qualified panelists to react to what bob had to say. and to give their insights into how president obama has. thus far with judicial nominations, and what the road ahead looks like. one is currently a shareholder
in a law firm. she was appointed deputy assistant attorney general in the antitrust division by george w. bush in july 2003. he was the staff director and chief counsel in the senate judiciary committee working as the principal legal and policy adviser for then-chairman orrin hatch. carolyn lamb is a lot partner. she was president of the aba from 2009-2010, as well as the past president of the d.c. bar. if she was named one of the 50 most influential women in america by the national law journal and one of washington's top 30 lawyers by washingtonian magazine. will marshall is a distinguished professor of law at the university of north carolina school of law. bill was deputy white house
counsel and deputy assistant to the president during the clinton administration and served as a list of general of the state of ohio. bill has published extensively on the first amendment, federal courts, and presidential powers, and is a leading expert on judicial experts. and of great importance to the american constitutional society community, with his great expertise, camaraderie, and guidance, he is a member of our board. we will hear first wemeghe -- we will hear first from mehgen, and carolyn, then bill, and then we will talk about the save our judiciary. >> let me thank you for by inviting me to be here. this is one of the more important topics.
a lot of us have been watching what has been unfolding in the middle east and in egypt and this morning in jordan, it reminds me when i left for iran, and exactly what was going on back then. not really appreciating get back then, i really think that in my experience, having had the opportunity and the honor to work with in all three branches of government, i think that what we have in america, as far as the judicial branch, an independent judicial branch, is in my view probably the most significant element of a true functioning democracy. people can take their grievances to the courts and be
comfortable that they will most likely -- regardless of what the outcome is, happy or unhappy at the time -- we respect that, whether that is on an issue of health care, of intellectual property, whether it is an issue on the election of united states president, we do not go to the streets and right. we will hold peaceful demonstrations. but generally we respect 5-4 supreme court decisions on racial issues and that is probably the most common influence in a democracy. -- calming influence in the bop receive. i was glad to hear bob's comments about not really rehashing past statistics. i think both sides can get into a statistical jujitsu if they wanted to. who has left more vacancies, etc. the thing i wanted to stress is that bob said there is a pattern, and alarming, profound change that we are witnessing here. they are 99, i believe, these things change on a day-to-day
business approximately 100 vacancies now. 49 nominations for those vacancies. more than half of those vacancies do not have a nomination associated with them. president obama s nomination -- 60 of them got confirmed last year. at the end of the year, where there were 99 at the end of the first to your congress, 99 vacancies, 58% of those that did not have a nomination associated with them. i am glad that the white house is finally making nominations of priority, but they have other priorities to citrus their attention -- health care, financial services reform,
energy, and other matters, as well as the financial crisis that this president has been dealing with. nominations, i do not think, those can save regardless of what side of the aisle you come from, has not been a priority for this administration until now. perhaps it will become one. i'll tell you one thing -- it is not a partisan issue, either the
delay or the confirmation of president obama's nominations. i will mention a couple of facts. president obama's circuit court nominees, from the time they were nominated until the time they got here is, it took an average 64 days. president bush, from the time they were nominated until they got judicial committee hearings, 247 days. 64, 247. district court nominees -- obama's waited 60 days to get a hearing. for president bush, they had to wait 120 days before they got a hearing. you know the senate rules and
the process of the confirmation. there really is no impediment to the democratic majority to bring in nomination for a vote for for a hearing. s and is the white house nominates, there is no -- as soon as the white house nominates, there is no impediment for senator leahy to hold a hearing for that nomination, and no impediment for the senate majority leader. bob says that a single senator can freeze all nominations. he withholds is unanimous consent. . . position to block either a hearing or actually taking it to a vote the last two years. so, you know, i am glad that it is becoming a pority and hopefully the consultation and how that process would go. the one thing that does bother me, a couple of nominees who when the democrats had 59
senators, actually for a period of time they had 60 senators when senator specter switched parties, they couldn't get those nominees up or they didn't think it was important enough to bring those up when they had 59 after senator brown won in massachusetts. they couldn't find a single republican to support one of those nominees to bring it up for cloture and go for a vote. i think when you have only 53 democratic senators, difficult red states it wi become a heck of a lot more difficult so why renominate, why not move forward, work with the senators in a partisan manner and send nominee that is could get the support, looking for just a fight. that is a waste of time that is going to be spent on a couple of nominees, 60 votes to bring them to a final vote.
my views on filibustering nominees is public in their last acs event i've taken different position. i think there should be a change for filibustering. traditional nominees and changing the rules but not that to have been fairly done, you have to have a number of leaders come together and say for the next president, whoever that is, or for the next congress, whoever is going to be in charge of either the senate or the presidency. within the current system if there has been fewer nominations confirmed than the white house would have liked i think it only has two people to blame. the white house and the democric majority in the senate.
>> you've given us lots to talk about. so i'll turn it over to carolyn for your views. >> well, it's a pleasure to be here and talk with you today and i have some observations i want to share about the real impact of these vacancies on the public and on the lawyers who have to appear in front of jues who are overword and unable and has profound implications as i think makan and i both agree on with respect to justice, with respect to the ability to have their rights heard and it is simply something that we as americans and we as lawyers cannot tolerate and i want to give you some for instances in terms of the vacancies and i'll talk a little bit then about the why which makan certainly gave
perspective on and some recommendations for what we can do about it and urge both the senate and white house to do their jobs and get our benches full to the place that they should be. first, let's look at when judges -- when we are talking about judicial vacancies it's not detached from reality. they have the judges in those distcts where they are not fully staffed, have staggering caseloads. they're estranged beyond comp s capaci to deal with those caseloads and they're unable to keep up with them. and what that translates into the day-to-day world for lawyers who appear before them for litigants who appear before them is they have to delay civil trial docketsfdockets.
if a litigant is in there with a contract dispute, with a constitutional dispute, they're not going to be heard until speedy trial cases are dealt with. that means the criminal cases are dealt with. indeed in arizona after a murder, the district court declared a state of emergency and has, in fact, extended the limits under the speedy trial act so that the accused now has to have a hearingn 180 days for the next 12 months instead of the mandated 70 days. now that's really reprehensible in our system. it cannot be tolerated. they have already in an extremely busy districthree vacancies and they are not ful and i'm not going to be judgmental about who caused the three and who should be getting them through, it is urgent that we move people through and get
people on the bench and we sily cannot say, well, they should have gotten people together to invoke cloture, not filibustered or whatever. we need to move it. senators have to do their job under the constitution and senators are not doing their job under the constitution. the judges also in these districts adopt efficiency measures and what that does is impact due process. it cuts back in the name of the efficiency because they don't have the time to devote to cases. it cuts back on how much time they're going to give to a litigant to present their case, how long the pleadings will be in front of them, and that really alters the quality of justice. another thing that it results in is in these overburdened
districts we find judges resigning. they don't wan to deal with justice in that way. we find judges rering and we also find excellent attorneys to turn from aepting a nomination. it shrinks the pool. now we heard if we focus on why is this going on, we heard, of course, that with respect to the rate of nominations that the president has been slow. in the first part of the congress, of course, the pace was slow. but when we look at the record, i'm not sure that the record demonstrates that that is the contributing factor. the senate postponed voting on 22 nominees. until the lame duck session.
they never considered 19 pending nominees. these are people reported out of committee, the worst vote out of committee was 12-7 and that was only on a few. most of them come out of the committee with unanimous approvals and then they sit in the senate without action. 13 of those 19 pending at the time of the adjournment in fact came out of the committee without dissent. there was no controversy. no republican senator questioned their qualifications. and 13 of the 19 were on the list of 49 judicial emergency districts. that's truly an abdication of responsibility that can't be tolerated. now i do think the administration should be increasing the number of pending nominations to increase the pressure to be sure. we do whatever we can to
encourage the administration to do it but, that said, they have to move out of committee onto the floor and get a vote. if you look at the rate of confirmations, the senate, in fact, has been using dilatory tactics, blue slips. one senator doesn't return the slip and there's no vote. it just sits. and we find the senate did, in fact, confirm 62 nominees, dozens of nominees never got to the floor for consideration. that had been reported out of the committee without any dissent. two-thirds of the nominees presented to the senate were reported out of the committee without dissent and yet were subjected to delays on the floor. and then those that did get through generally got through with unanimous vote or almost
unanimous vote so there wasn't any great dissengs on the nominees. the remainder are getting through and without any great dissension in terms of who they are and why they should be going through. we do understand as mr. bauer indicated that now there are, in fact, some discussions going on to change the predures and we applaud that. it must be done. but it must be done yesterday. ey really must come to terms in terms of filibuster, in terms of voting on the floor and move the process. to avert any kind of potential crisis and to preserve the ality of our judiciary, the
aba urges and we have ued in letters, we urged in resolutions, we' urged directly that both the senate and the president must make the prompt filling of judicial vacancies a priority. the administration has to make a concerted effort between the time that a vacancy is announced and the time that a nomination is made. and the senate has to give every nominee an up or down vote within a reanable time after the nomination is reported out of the senate judiciary committee. makan said there were many and the time was short that got a hearing right away. the real time where there's been a problem is between reporting out of committee and getting a vote in the senate. that's the problem, where we're seeing antics, not necessarily just getting a time in front of the committee. and so i guess in terms of the
prognosis for the future, it's very encouraging at both sides of the aisle recognize now, and we've heard from both sides, that the system isn't functioning efficiently or effectively and that they are both considering changes to the process. even though we've eard that filibuster may remain an option. but we applaud their efforts. we certainly applaud the chief justice coming out as strongly as he did in his year end report to focus the attention on these very serious issues and his imploring both benches to perform their constitutional duties. we regret that the senate j judiciary committee on the first batch of nominees that were to come out last thursday were delayed. and so there still remains work
to be done and certainly i think may can makan is exactly right on the point of the impact of this on the people not to be i gnored i what goes on in the streets in cairo and tunisia and you're quite right, i think, that what distinguishes us is our judicial system and people's assurance that they, in fact, have a day in court and can have their grievances heard and the fundamental right to justice is at the core of preserving our democracy and at the core of that is a competent judiciary and we're not going to get there and we're going to have litigants and all kinds of litigants, criminal and civil, tremendously frustrated and not tolerating the kind of delay
and, indeed, denial of justice as a result of a lack of a fully complemented bench, so there can be no higher priority. this must be something that the public and the american legal profession insists be at the top of the agenda and that both e senators and the administration perform what are their constitutional duties. >> i thought it really interesting when bob bauer started off his comments to talk about the good old days under the bill clinton judicial nominees and the good old days on the george w. bush judicial nominees because, as i recall, neither one of those we good old days. the situation has been bad. it's getting worse and unless we turn it around it's going to get worse than it already has been. and i think what we've seen is that every opposing group to whichever president is in power has escalated the tactics being
used to oppose judicial nominees and we've gotten to a point of complete absurdity at this point where delays are taking place even with result to judges when they get a floor vote will go unanimously or close to unanimously. this is a new way of slowing things down. up until the last floor vote and then look bipartisan because at the end of the day you finally make the vote. i'm going to get back to the problem with that in a moment but i want to, again, re-emphasize the harm this is causing. one obviously we talked about is the harm for litigants. the second we talked about chief justice roberts has raised is the harmo the american justice system which is one of the pinnacle parts of our nation's democracy. and the third is the harm to the nominees which we haven't talked about all that much. but if you're a lawyer and you've been appointed to become a judge, you can't pick cases in
the same way that you could before. your life is put on hold. and what this is doing, obviously, is discouraging good people from letting their names being entered into nomination because you can come before -- you can come before the white use, if they reach out to you and suggest would you like to be interested in this job, and they can say, you have nothing uncontroversial in your record and you can look at them and say, does this mean i'm going to go through quick? and the answer is still no. one of the problems both democrats and republicans have agreed about except when they're not in power, encouraging good nominees to go forward, if they have anything controversial in their record. now you don't have to have anything uncontroversial in your record, major incentive because of the tactics being used to stop even noncontroversial nominees from going through. why is this happening? what has caused this? and a part of it has been
mentioned, the democrats have not put as much emphasis as they should have in the early part of the administraon. point taken. why hasn't it occurred and if ly harry reid just put the names out there, they would have been confirmed by that according to makan. what a beautiful world. instead, they were putting holds on everybody and threatening filibusters and makan says, what a beautiful world, wait for cloture and get rid of the fill bust and get to unanimous vote except that takes five days. and to take five days for every nominee going for the district court is going to slow the process down. nothing that was a threat, senator mcconnell has taken great pride on his two-year strategy of delaying everything so that the white house couldn't get traction on anything. he has paid no political price for that in judicial nominees.
he's reaped great benefit. this is part of that strategy of slowing everything down making everything a hard lift. so that the administration can't get anything accomplished and i understand the tactics. if you ask most republican senators they will tell you they were effective tactics. the problem, however, besides discouraging good and qualified people from coming forward, the problem is there's very little capital being expended in opposing a judicial nomination particularly when you do so quietly, paicularly when the only threat is you are going to have a filibuster being made and at the end of the day you vote and say, that was bipartisan. so there's no real political capital that was expended by those in opposition during this period because people don't think about judges and the nomination of judges as important as they should for all
the reasons we talked about earlier so this was a very low expenditure of capital. i'm sure the republicans, the problem they really missed, the problem we need to focus on here is we're not talking about the democratic administration's capital. we're talking about the capital of the american justice system. and that is the capital that is being squandered by this kind of mindless opposition to delay just for the sake of delaying. i do want to -- i have to end on makan's other point. what a great thing if only, only president obama dropped the six nominees who have had any controversy whatsoever we could go nice and easily. wh that means is that we should only the democratic administration should only nominate judges who will get unanimous consent so that if any republican opposes or two or three republicans opposes then
we should pull back from the democratic administration should pull back the administration and, excuse me, pull back their nominations. i'll be interested to see if that's the tactic that's taken by the next republican president. it certainly wasn't the tactic taken by the last. and i'm not sure why it didn't occur now. the real problem as i see it is president obama hasn't put up enough thnominees. when i use the term controversial, i don't mean outside the mainstream. criticism from jim demint is not outse the mainstream. that has to be remembered. even if we want to put aside this constant debate about who is outside the mainstream and who isn't, let's just go back to
the holding up on the noncontroversial nominees for a moment and think about what a game and what a facade has been played to the detriment of the american political system. yes, makan, i will blame harry reid in part for not being aggressive enough on this although he did have some other priorities. i do think that in the early parts of the adminiration president obama could have been more -- made this a greater priority at that point although clearly he had a major recession and facing a major recession on his mind. but i think i'm going to put senator mcconnell at theop of the list. >> well, this has gotten spicy, which is what we wanted. i'm sure makan will want to respond to a variety of points. i have to confess makan and i were both in the senate during the battles under george bush
and i work for tom daschle before that. we had other battles when bill was in the white house counsel's office. and so we've all been part of this sort of general give and take, to put it nicely, for quite some period of time. and so i know i take seriously what bob said about not rehashing the litany of complaints, that we could go through our own version of them. again, i don't want to deny makan his opportuny to answer some of the points that have been made but i would like to ask as a general question that i hope you will also address in your conversation with each other, we've all acknowledged that the system is broken. we've all acknowledged that there have been for whoeve is to blame, i think "the washington post" called it at the beginning of t bush administration the politics of tit for tat and so we've had the politics of tit for tat for
quite some time and acknowledged there's a siificant problem now, high official vacancy rate, emergencies, the impact on the american public. so what should we do? how do we actually lift this logjam? are there solutions, open that to anybody to respond to. start with the hardest question first. >> well, there have to be. we really have to work together. when i left the white house counsel office i felt that some of the slots still open were opened unfairly, that there should have been confirmations on people, one is elena kagan. i wrote letters in support of republican nominees who were up for nomination. i think there has to be some bipartis work. i think we've seen a number of strong suprt from republicans and i think people have to try
to make this a little bit more of a bipartisan process than it is and to not carry grudges of the previous administration back forward to the next one. even if we stay at the level of grudge that existed at the end of the bush administration, we've taken this to a new level and we've taken it to a new level that is pulverizing when you start making this kind of delays with respect to people who turn out to be completely noncontroversial. >> i do think, and it's one of the points you made, there has to be a price to be paid for doing this, whether it's the republicans for holding it up or the democrats for not pushing it through. whatever it is, i think there has to be some accountability because it's such aundamental and serious issue. and, in part, i think the press
needs to get the word out to the states and to the districts that this is what's going on. i think most people don't understand and they don't know the impact that it has. they don't know what kindof brinksmanship is going on in washington that's impacting their daily lives. i also think the state bars who do have some resonance with the senators whether they're republican or democrat because they are all opinion leaders need to speak out very strongly and rcefully in those districts where we find that, in fact, we aren't getting people through and on the bench and that's part of the price to be paid. to let the senators know that, indeed, the lawyers are watching and the public is watching. >> makan, you can get your turn here. >> it's just fascinating. letting the local press or the
state bars and all of that know what? that when asked before a nominee is brought up for unanimous consent, the sthor is saying, no, i'd like to have my 2 cents about in nominee? i didn't sit on the judiciary committee. i'd like to have a real debate about this. and, look, it would take literally 30 hours when dual track legislation. let me equate that to something that you are saying with nonees, with legislation. let's assume that senator reid is holding on to something like health care reform. and he's saying i have this bill which i'm not bringing up to the senate for debate or voting, but i ask unanimous consent that it be passed and if any senator opposes it and does not give unanimous consent, you're saying they should be outed or doing something egregious, no, these are the senate the's rules. they have been unless the rules are changed. we have to respect that. the fact that a senator, i want
to state this clearly, the fact that a senator is not giving unanimous consent does not mean that they're somehow doing something nefarious or obstructing, get the vote. of those 19 nominees who didn't get a vote at the end of the year, 15 of those 19, 15 of those 19 were reported out of the judiciary committee in december. 19 got confirmed in a lame duck. you have to go back to 2002 to actually find lame duck confirmations so i think senator mcconnell should be commended for even allowing that to move forward. those were unanimous and they allowed them to go forward. i think there's legitimate debate on his views. this is a healthy debate from our democracy. these are lifetime appointments that affect every one of our
rights with health care. there is probably 40%, 50% of the country that strongly opposes it and our constitutional rights are decided by these judges. very important positions. so his views on the constitution, his views that are all over the record are very legitimate issues for debate if not a single senator that could have been debated by the white house when they had 59 democratic senators there is something wrong about th nominee. or bring it up and debate it. let's see what that is. that's a healthy debate about that person's views. i appreciate what bill is saying but makan says harry reid brings it up and they go through unanimous consent.
it's not what i'm saying. i'm not saying, also, what you mentioned is that only nominee who is can get through unanimously should be nominated. they should have at least 60 votes under the current rules. not 160. and if you have 59 democratic senator, find one republican, not a consensus between some of the senators who voted for health care or the stimulus and those, you can find at least one senator. if you can't on that particular nominee, then there's an issue or at least debate it. if you believe strongly in it, we wanted to do that, for example, with nominee like estra estrada. he was not allowed -- i mean, this senator, this current president, when he was a senator, voted against, you know, nominees that flew through against bringing up even cloture. was he also part o this? he held very strong views. he gave some strong speeches on why he's voting to not allow
cloture and a debate on elito and roberts. the other thing, just one last thing to mention is, look, this president had during the time two supreme court justices nominated and confirmed. those take a lot of time and resources of the judiciary committee so i don't think, you know, either senator rd or the committee should be blamed. they got through, too, and very possible that this summer will have a vacancy to fill. those are important considerations given the overall numbers of how many get confirmed and how many don't. just because a senator does not give unanimous consent doesn't mean that they're delaying a particularly nominee. >> if i could just follow up on makan's statement and, again, another question for the group, maybe carolyn will react to this.
it does seem you're deflating nominees and that you look under the bush administration and i did promise i wasn't going to bring up the litany of complaints, but the district court nominees were processed fairly quickly and they weren't required to have 60 votes. they were often not even required to have a vote. and so i don't know if that's something bill or carolyn, strikes you as different or is there some different qualification or process we should have in the circuit courts? >> the constitution doesn't distinguish and no one attempts to deny a senator the right to oppose. indeed, that's their prerogative under the constitution. but what we suggest is it must be done in a very limited time. and your five-day limit, that would be great. a ten-day limit. any kind of a limit. you either oppose and get them
out to a vote or not. in a certain amount of time. >> we have a short period of time left. i would like to ask one more question of the panel and then open it up to questions. bob brought up something that i thought was a very interesting point and i wondered if you all could comment on it. he had a list of principles that he laid out in terms of recognizing that the judiciary is an issue of public administration. something that's another branch of the third branch of our government that's important and we can't live with the delays that we have. that there is a close consultation process with senators including having a conversation about what are
legitimate differences. even where there are legitimate differences there should be a vote. and si guess i go back to the legitimate differences and ask -- bill, you mentioned sort of what is the mainstream. in this idea of maybe is there a way forward from here, is there a process that can in addition to making ashortened time frame a way of actually establishing those boundaries? >> coming up with what's in the mainstream, i think that would be very hard to do. i do think it would be helpful if both sides got together and started talking a little bit more about this so that maybe they can -- i think -- i certainly think if there's a republican president that the republican president ought to get a heck of a lot of deference as to who he will nominate. i don't think that i would expect a republican president to nominate the same kind of people that a democratic president would and i'm sure nobody on the
republican side thinks that president obama should be nominati the kinds ofeople a repuican president would nominate. so everybody recognizes there's a little bit of a move on both sides depending on who is the president but it would be helpful if both sides got together and what it meant on either the right or the left. maybe it's not republican in the house and the senate who are at fault, the democrat congress, the interest groups in this town have too much influence over the process. the groups on both sides demonize those who shouldn't be demonized. maybe if we got a number of interest groups together to try to work this out, then maybe we could have more responsibility
from them. i think that's been needed as well. >> i must say, though, the thought of defining what's not right on the right or the left or whatever and in some kind of nonobjective approach troubles me. when you are talking about lifetime appointments, i mean, none of us on the basis of prio behavior could have predicted precisely how justice o'connor might have decided some cases, how justice sutter might have decided some cases, how justice kennedy decides cases. many times people within themselves make decisions when they're on the bench with a lifetime appointment that one might not have predicted and i would hate to have seen any of them excluded becau they fell on the wrong side of the bar. >> i agree wholeheartedly with bill that a lot of outside interest dwrups really get into character assassination over the
nominees and that is part of the problem that gets into why a lot of very qualified part of the p very qualified people have no interested. that along with judicial pay, which i think is something that also should be addressed. by congress at some point. you don't get the best and brightest to go through, to want to be considered. that's an issue. the character assassination, racial overtones on some of the nominees is unnecessary and disruptive to the process. the one thing about what bob mentioned, having that dialogue and consultation, that's an important thing with the senate. somebody mentioned blue slip and arcane issues, one thing we've got to recognize the senate aren'tust herds and numbers in
the white house. the senate is its ownentity and every singl senator is by themselves. perhaps why some nominees have not been named by this white house, it's between the party itself the senator from home state who wants to be a democrat wants a certain nominee. the white house wants a different nominee. you get into those fights. it happens between republicans and democrats. but the senate is its ownentity. the blue slip functions as a cartel agreement amongst the -- this has nothing to do with partisan ship. it an agreement that if a home state center does not give a-ok to the white house nominee the judiciary committee does not move forward, which is why both parties honored that every since senators kennedy and thurmond had put that in place some years
ago. but those are issues that is very particular to the senate. it's the prerogative the senate takes for itself. it's not something that is one way or the other partisan. >> we have time for a couple of questions from the audience. i'm sure there are a lot of things people want to ask about. please wait for the micro phone. >> hi, thanks very mh. sorry. i havexperienced a lot of delays in various courts because of discovery disputes, people get extensions. that's the normal course of events when people are getting all kinds of discovery delays and motions to compel and all kinds of thing intrinsically within a case. i wonder if anybody h done a study with respect to delays being a function of things internal naturally to a case
progress or delays caused by the lack of staff as a first point. and secoly, because a lot of that is remediable by diverting things to magistrates, do we need the same confirmation process with respect to magistrates. is it possible outside the box to get outside arbitration groups, aaa, american arbitration society, jams, all those arbitration groups looped in somehow to be paid somehow by the courts for those civil litigants not in the krinl pacr part who don't want to pay for it themselves. through some of these other groups, is there some way to divert some of those cas so they could see resolution quicker than a three year out trial date. >> you may be quick tore answer
this. >> there is court in mediation. it takes both sides agreeing. and if they don't agree, unless it's in some way mandated by the court, both mediation and arbitration are consensual jurisdiction. there's no way someone can impose it upon them. obviouslif it's offered as an option and one person wants to get their dispute resolved and is willing to agree, the other party to drag it out just as they might do with discovery would refuse. there are certain situations where it is mandated atrney fee disputes or something. but other than that, the courts generally don't require it. you know, it is an option. i think both in the report for the additional judges, and i was just looking for the number of the bill, in that report they do identify, in fact, some of the
studies that have been done on the impact of a shortage of authorized judicial positions. and i think the administrative office of u.s. courts, as well if you go on their website and look at how they determine where the judicial emergencies are, there is good statistics on the impact of the delay as a result of not getting the judge to hear the case. the kind of creative approaches the judges have taken, the impact of that on due process or consideration. there are some things, some studies around. i imagine if you check the website as well of the various u.s. courts and council on justice, you'll fi quite a bit of statistical research. >> are there thy other questions?
yes? >> let's test out this proposition that we can reach a bipartisan consensus. maybe bill and carol on one side and megan on the other side. bill and caroline and carolyn being an umpire. several of you have mentioned the fact that there used to be more comedy. people used to talk to one another. actually people used to vote with the other sides' nominees or against the other sides' nominees. the difference now is that we have the parties moving frequently in lock step. as procedural possibility number one, what would you think of having a secret ballot on cloture votes or judicial nomination so people could vote against their party with no one else knowing.
secondly you've all mentioned the fact the problem is these are life appointments, which in the case of some of these young people in their 30s who are getting nominations are going to ben the court for a long time, agree on a practice that the last two years of a president's term he or she only nominate people over 55, and the last year he or she only nomine people over 65, so they are not on the court so long. >> death panels? >> with respect to the fst part of your question, i don't think inserting more secrecy into the system is a good idea. there's too much secrecy in the system already. there's too little political capital being paid, because you
can end up with a vote, you vote for the person in the end but have done every dieleterious tactic for it to take place. a lot isn't about the nominees. it's all about stopping t rest of an administration's agenda. sometimes it does. there's no doubt sometimes it does. what we're seeing is less and less for that to be the case. again, let's have a good dialogue on nominees who do turn out to be controversial. but less not delay people noncontroversial for the mere sake of delay. there's too much of that doing on. >> just going to add, i think the word very few cloture votes on traditional nominees. when they were, as carolyn already mentioned, they had sometimes almost unanimous votes in their favor. in fact, once they were forced
it is of great concern. >> the income relative to gdp in referring to, one thing i believe, and i am not seen research done, but to receive high income revenues whose money seems to be more volatile. 14.8% of gdp by 2014 is the expectation. hellish to comment on the cover debt rating? -- how would you comment on the debt rating? >> a smaller percentage of
taxes coming from small earners. we also need to see why job growth has been so weak. we depend on new businesses and small businesses for creating jobs. there are not creating things likable. we are having this a try time of innovation. >> we have a followup about what the u.k. is doing. the fundamental question is are they and taking madison now that will put them on a healthier path long term, and
[unintelligible] can you add your views? >> each company has to determine the pace at which they propose austerity. they decided to stretch of the kind of austerity we are seeing in the uk. the problems we are seeing in terms of growth and related to other things besides the fiscal austerity that they imposed. they have an inflation problem in the uk. it limits their flexibility to maneuver as well. they have less flexibility than we do.
we have low interest rates. we may not have flexibility in the future. >> will they benefit from a foster a measures in the long term? >> yes. >> i agree with that. we would do better if we could move on fiscal austerity. our system is not a parliamentary system. ours is going to take a lot of work among many senators to get it done.
the pound strengthened with this change. i cannot think we should measure in terms of their gdp growth rate. we have to look at jobs, future jobs being created. but the government showing discipline, it is attractive to the business environment. >> the political world is not quite the same. there are opportunities to make changes. my firm belief is the day can go
further than wall street. we do not want to do something that is disastrous to the country. a criticized the bush administration. some hon -- they forgot the political world. we cannot spend more because it is going to run up the debt. they are saying, it does not matter. that ideology can run out of control once you get it going. i think we should meet them halfway and push it further. >> thanks.
>> before this meeting, there was an extraordinary discussion you do not see very often. they put together a meeting on where the economy is headed. you do not see many meetings like the one held this morning. five was struck by the numbers, which were a clear with a call. i was struck by a sense that the most important thing was to send a major message to the country into the financial markets that you are doing something significant.
there is the idea that he would make a substantial down payment this year in deficit reduction. you could deal with one major shortfall problem. i think that issue should be tax reform. we introduced legislation that would create millions of jobs each year. but i like to close down the road and ask each of you to give up an actual number that would constitute a real message that you are making a down payment this year in terms of deficit
credible so financial markets will take it on board and will be positive the surprised by that number. i support your argument for tax reform. i think it could benefit the, in many aspects. i strongly support your proposal. >> i think this is the right question at the right time. i think you need to talk about the big trillion dollar items over the next verizon. if you do not want to raise revenue, there are plenty of
ways to improve incentives. you decide if you want the revenue. i doubt you want to take medicare. but those are the choices that could make the difference here. i did not support the tax still at the end of last year. that was a big number. it was a bipartisan consensus away from fiscal responsibility. one person said that this difference does not matter. i think dick cheney said ronald
reagan taught us that deficits do not matter. i hope we reflect on how far of inappropriateness is that message for us today. >> in this town, it is all about the politics of procrastination. i wanted a one-year extension of the bush tax cuts. you would force congress to step up and a deal with this issue. and the seawall and others can help us conveyed the sense of urgency, we will have the same debate in a lame duck session of 2012 congress as we had in 2010 congress.
that is why i want some action. what are your thoughts on the number and the question of the big structural issue, if you get to pick one. >> the markets are cynical about how much can be done here in our system. i should go through this, one of the most heartening thing since senators this morning were together. that is the kind of change that people want and that markets will be looking for. if you have those people in the room, something may come out of it. short extensions of existing spending for you take many bites out of the apple, that is a procedure that might work. the resolution discussion comes up. spending cuts that can be done
in that resolution, if it can be done multiple times in the year, and got a credibility in terms of the financial markets. i am not $100 billion in near- term results. make a promise that you'll come back three months later and do another round of things you can work on. as far as structural reform longer-term, if you can get in another co-sponsor, go forward with that. look at directing the baseline, so that you have a more level playing field. otherwise you are swimming up a vast current.
he will not be able to get a growth-oriented form. build a vacuum of limits. a debt to gdp than it would be very comforting. you go from 60% gdp to 90. it looks like we make it to 110. if we could have new limitation, that could give some underlying confidence. there was a the idea that his economics was not the right economics. we cannot look at the deficit alone, but look at the tax rate and the spending. we have to cut both of those to
enable the private sector. we have created good job growth. >> thank you. next? >> i want to thank the panel for their testimony. several questions. the first, a follow-up on something that was addressed, the increase in the debt limit. you advocated the its we make structural changes to get this escalating debt and deficit under control. we may not know which structural changes to make, but it is important to use this occasion to get our long-term spending platform under control. i am not in the camp that we
should raise the debt limit. i accept your instrument a proposal into the disruptions that would occur should be avoided if possible. if we do not raise the debt limit -- my first question is a historical question. is it true that we had recent episodes where we have reached our debt limit? we did not default on the marketable debt securities issued by the government? >> in the late 1990's, there was a time frame of nine years. those were unique years.
one of the things happening was defense spending was cut sharply. another thing happening was there was a temporary slowdown in the entitlement spending. the baby boom had not started retiring. also, fannie mae and freddie mac were right -- were really ramping up. they were off budget. they ended with taxpayer liabilities. i do not think we could mimic that right now. >> for a short time frame, the money was not raised. is it true that tax revenue
still comes in when the debt revenue is not raised? >> correct. >> 7% of all the money the kermit is expected to spend will come in the form of tax revenue. and 6% of all of the money the government will spend is scheduled for interest on our debt. the question is, is it possible for the treasury in the event that the debt ceiling is not raised, they could ensure that those people holding a marketable securities would receive their interest payments and those payments can be made? >> that is plausible. the fiscal deficit is large. each month, the government is in a negative cash flow $120
billion. someone, the treasury department for you, would have to decide who not to pay. my concern is the destruction that -- >> i understand it is very disruptive. do those people holding securities needed to not hit their interest in principal payments? i think you are not watching that. >> yes sir. >> one point not covered in this comprehensive review of the debt situation was -- it is not just internally funded debt. this is very dangerous. the chinese are working very hard.
i do not think you want to create potential disruptions at this time. the dollar does not have to be no. 1 reserve assets for all time. >> i think the fiscal irresponsibility caught us into this situation. the refusal to do something about it is the worst message we can send to the market. it is clear to me that no responsible treasury secretary would allow a default to occur. it would be so disruptive and damaging to the entire economy that millions of americans and others -- i cannot see how secretary would permit that to happen.
as alarming as the nine into the of the debt is, i may have missed this, but i do not recall a discussion about another opponent that worries me that is even bigger. it is the unfunded liabilities mate for the big entitlement programs. if you quantify the present volume of that shortfall, is it several multiples of the actual publicly traded debt so that we have? >> yes. different calculations will give the different results. if you add up medicare and medicaid and social security, you have an unfunded liability going to the debt.
beyond that, if you look at another issue, which is the unfunded liabilities of state and local governments. there is a gap between the promises made and the unfunded liability for it. the answer is yes. >> we also need to add the rise in financial sector. all of this needs to be included. we agree on that. >> i agree with those points. the actual size of government is going to go on. there will be a defense budget 50 years from now. it will probably be a federal
education budget. i should think about the problem, i am not as focused on dividing entitlements from discretionary spending. they are commitments to the people that there will be a government in the next generation into the next. we do not have the money for it now. >> my time has expired. a reply to address another aspect of this if i have time in the next round. there is an optimistic forecast about the level of interest rates. if you are wrong about your forecast of interest rates, it was devastating consequences. thanks. >> that is one of the most critical points. we need to be able to persuade our colleagues about the risk of a failure. we have a very benign interest-
rate environment now. very low interest rates, a record low ones. some say we do not need to act. others say it is giving us a series of time within which to act. a failure to act could lead to a much more serious consequence. if you look at the outlook, they are projecting a low interest rate environment for a decade. maybe it happens and maybe it does not. what is clear as in the case of greece, ireland, everyone else has run into one of these situations. the change in interest-rate environment can happen like that. then you are really in a bind.
>> thanks. a conservation about how optimistic this interest rate assumption strikes me. the assumption is that they referred back to less than their 20 year amount. the fed is embarking on an unprecedented program to increase inflation expectations. i think they will be very successful. they may increase inflation itself. it is hard to fathom how interest rates do not respond by going considerably higher. >> one of the biggest issues out there is market participants around world, if they start to
question our ability to service debt and meet our publications, that is when interest rates will begin to rise. that is where we are really in a bind. >> i think we should forget real interest rates. in real terms looking globally, interest rates will head up. they say we are coming out of a time where we have an rates. >> if real rates go up, economic performance is good, we see
strong growth around the world, it should go up. if there are concerns about credit worthiness, then our performance on a long-term basis will release suffer. >> one of the concerns i have in listening to the discussion unfold is the focus on non- defense cautionary spending. that spending is about 16% of our budget. there was an unusual treatment of homeland security. i think he put international in the east fence pot.
about 16% of of our budget for non discretionary defense spending. you eliminate it all, if you do not solve this problem. the problem of cover budget that is growing our entitlement accounts. it is a much bigger than social security. that is seven times the problem of social security. somehow, we do not want to talk about it. if you ask the american people, they say, we do not need to cut medicare, social security, defense, revenue.
if that is really the conclusion, so security does not have to be touched and it is cash-today, medicare does not have to be touched. defense does not have to be touched. revenue does not have to be touched. you cannot solve the problem. some of us will have to help the american people understand the unfortunate reality. i think those things will have to be touched. the sooner we do it, the better. the worst time to deal with this is when you are in a crisis. if there is anything greece should have taught us and ireland and portugal is that the
worst time is when you are in a crisis. dr. johnson, you are the former chief economist at imf. nobody has a deeper understanding of global economics than you do. what could be your advice to this committee with respect to the question of how you deal with this in a systematic way? >> the imf the device would be focused at the immediate from
work. you need a bipartisan consensus. you need to say, this is what we are going to do on tax reform. i can address some concerns in a straightforward way. compared with other countries like europe, they have the same problem. we might see the same problems in western europe as well. if you had the framework, the rules agreed upon, and then the flip side, it is not easy to change our rules. the market will know that it will take a lot to undo them. it is hard to undo in the markets.
i think the chinese president's wants to see how his money is doing. other creditors will demand this kind of change as well. we should do it ourselves, now. [unintelligible] >> i hope very much when we deal with these opportunities this year, we are not just dealing short term, nondefense, discretionary spending. in one year, we have a $1.50 trillion problem.
it does not touch the problem. we need a multi-year comprehensive plan that reduces the debt over the next 10 years by $4 trillion. now we are talking on the scale that has some credibility. >> thanks. this is a very difficult issue. i have been with my staff and i still do not have a handle on it. it is not getting this financial ordered correct as you indicated. and we ought not to think that we should ignore discretionary spending.
the state to permit just last year showed double-digit increases for agriculture. i do not think they had a single year with a increase. we have numbers unusually high for 2010. we will have to go back to 2008 were lower. i criticized the debt commission on one point. their goal is given to them by president obama to reduce the deficit to 3% of gdp over 10 years. that is what they did.
that deficit is 700 billion to $1 trillion. >> if that is the end of the story, the answer is no. it would be great progress. the deficit is down, because to stabilize the debt, you will have to make further progress on it over time. that is what is important. >> in terms of the commission, the president gave us a goal of 3%. we went to 2.3 in 2015 and 1.2 in 2020.
we believe that we had to go further. >> it depressed me more than i should have been depressed. >> it is a question of the risks in the global economy. i would be very surprised if the u.s. dollar had the same level of dominance as today. i would not be surprised if we shared the stage with a stronger euro or chinese currency. he said earlier that deficits do not matter.
didn't he say ronald reagan told us that deficits do not matter? >> i think it was a private conversation that leaked out and became part of the agenda. recently at a luncheon of was that, we could handle a little extra. i think some thought a little deficit would not hurt us. once you lose the high ground, the political high ground in congress, it is hard to get it back. >> if you go with a 50% limit, or a 60% limit, it has not done them any good at all.
you want to use fiscal policy to respond. it can strike you completely out of the blue. the shocks are going to be big and push you over the 9% level. >> i think you need escalating penalties if you are above it. some discipline on the budgeting process. that is to bring us down below the gdp limit or some kind of mechanism to give it some teeth. i have written down several -- this problem, you should make a small decisions today. do what you can. i've listed several things we have talked about.
the fed should wind down its buying of treasury bonds. it is a huge problem with the fed is buying the long term debt and shortening the maturity of our national debt. it puts us at risk. treasury should be issuing more. we have to get it a longer. third is the directed baseline to open up a window for tax reform. the way congress procedures work, you have to soak up making the permanent existing rate. everyone knows the tax rate expires and it will have to be taxed into the future. you need a directed baseline to create a more level playing
to take that position. it is psychological, but it matters around here. when you cross a line, -- >> if i could interrupt and agree with you. we have not discussed budget cuts. when david and i were walking -- working in washington, budget cuts were important. there was a process in both houses. they reinforced the process. it is something that we need to discuss today. we think in terms of credibility, what will will restore our credibility in terms of commitment. >> there is a dirty little truth in this town.
people to not want to deal with the budget process. they do not want to discipline. the want to be free to cross every line. i regret to say it is on both sides of the aisle. we should have a return to some of the strict discipline is to help us cut out of the hole in the '80s and in the '90s to really prove to be quite effective. absent will, no process will solve the problem. >> this is an important issue. >> we have 59 votes that would make statutory caps, but a fire
point. technically, the fed barrault's it from banks. as long as we have the stoppage in the regulatory process where banks are not lending, then and there has not been an actual expansion of the amount of money in the private sector. >> all that happened so far is it taking on the risk of the private sector by having a long- term debt. from the stand point of the actual lending going on by banks, it has been expanded. i think the point is well taken. people are worried about the fed and the dollar and the united states.
he said that he is certain that he has the tools. >> we should not be taking this risk. the original goal was to lower interest rates on corporate bonds. that does not work. we are exposing ourselves to the -- this is the opposite direction we should be going. >> leaving as more exposed to short term. >> that is right. if you are worried about keeping your job and the bank says, would you like to move from a 30 year mortgage? do not take the choice.
that is what the fed is doing. they are moving the country from a long-term fixed-rate mortgage to a short-term floating mortgage at a time where we are already shaky. >> i think the public into the financial markets -- 2000 easy money lead to global imbalances. it led to a house in bubble, then the credit crisis. to get a response from the economy, the fed must spend more money. it did, and everything looks great right now. but things may not look so rosy in a couple of months. the economy has structural problems and we are not dealing
with them. if the fed keeps printing else, we will have higher gasoline in a few -- fuel prices. the dollar will fall apart, but it is devastatingly terrible policy in the long run. i think there is that perception by a lot of people out there. let me ask you to respond to that. >> the fed could have a looser monetary policy if congress would have a tighter fiscal policy and spend less and have looser monetary policy. we are breaking that will.
this is not the right mix -- makes. >> when i go back to what led the financial crisis in 2008, there is a combination of winning a massive and deficit in the fiscal policy. the fed was very accommodating after 9/11. there was failure to regulate a very risky financial instruments. calledbuffett's derivatives a nuclear time bomb waiting to go off. in some ways, that occurs. you have a perfect seedbed for
bubbles to form. we have a house in bubble, commodity bubble, energy bubble. we did not just have a house and bubble but a whole series in which we laid the foundation by loose monetary policy. unusual to get them at the same time. here we are cleaning up the economic wreckage. >> there is a report on this very low interest rate environment. i think you should look at that and think about the dynamics. this is parallel to the debate that we had before the founding
of the federal reserve. some were worried about this. can one person was articular to position. financial stability in would be the ruin of us all. many of those individuals are right a year later. >> we are using monetary and fiscal tools to try to solve our problem. we are experiencing the legacy of the financial crisis. we did not use the tools that we could to clean up the legacy. if we did, we would have a
better performing economy. >> your statement was one of the best of the causes of the crisis. you mentioned a loose monetary and fiscal policy of that ad in mistakes on wall street. we would try to avoid that in the future. >> we will go to the second round now. >> i will be brief. it seems to me that if you look at the traditional measures of monetary policy, we are embarking on a dangerous course. please correct me if i am wrong.
prior to the huge purchases by the fed, if you prefer to look at the role, which some do and some do not, by that measure, interest rates are way below where they should be. if you look at commodity prices across a broad range, we see higher rates or record rates. is not the cumulative evidence suggesting that there is a significant risk of much higher inflation? could each of you suggest whether you think it is likely that inflation in the united states would remain at or below this in coming years? >> you are right in describing the problem.
in other places, they are closer to the commodities. the fed has been wrong on the inflation estimate in the past. when they were describing the interest rate policy, the fed drastically underestimated what would come out. >> for people that are listening, can you explain what that is? it is the personal consumption expenditures. the fed used it as a core measure. they measure inflation by core prices. there is a huge mistake in the techniques that the fed is easing. when they look at the numbers
today, it is based on because people are very sad oriented, they want to buy the hot items. when you measured the inflation, those prices are going down. the new model cars are going up. what happens is after revision, inflation was above the 2% ceiling from 2005 to 2007. they kept promising that inflation was moderated. we should not being so confident -- i am not confident
at all that we are avoiding inflation. it is very loose. >> headline inflation is going up. the fed takes food prices and energy prices measured in correlation. others do not do that. there is a different item from what the fed takes out. this is a very conscious decision based on historical views on what drives inflation over a time frame. people who consume, relatively poor people have a larger part of the food consumption. they will be good. >> we see commodity and food prices rise as my colleagues
have pointed out in other countries. the fed is trying to boost inflation expectations. we have a tug of war going on. it is keeping inflation in check. but it will lift headline inflation and core inflation over time. what is a bad thing is we have not only seen inflation rise, but interest on federal debt rise very significantly. >> thanks. we learned in the 1970's that we can have weakness in the economy and still have high inflation. it is a big concern of mine. thanks for asking -- answering the question. >> i do not think there are
masters of the universe that fully understand the complexity. it is hard to predict what is foreign to happen. i do not think mr. bernanke deserves credit that belongs with easy money. they made reference to this in the final question. they apply a very real and high interest rates for several years. now we see the same process just in reverse. look at its -- it took several years for the market to see volcker's policy would lead to a decline in interest rates. it could take years for the markets to realize the fed policy is highly inflationary.
any comment on that? >> i agree with that concern. i think the fed should stop buying bonds. as far as the risk has been for us of higher inflation, one problem that we run into is people do not focus on the problem when it is distance. it does not to give you the urgency. one of the things we are doing today is tuesday, we do not know what is going to happen next month or year, but we are too close to the brink on the tipping point. please stop spending and try to find procedures that will give us confidence about spending as well. well.