NOMINATION sked
REGULATORY INTELLIGENCE DATA BASE
April 08, 2016
DEPARTMENT OF THE US WHITE HOUSE
AGENCY GROUP 09
202-456-7100
INDSTRY GROUP 91
REGION GROUP 04
REMARKS BY THE PRESIDENT IN A CONVERSATION ON THE SUPREME COURT
NOMINATION - Part 2
CQ-Roll Call, Inc.
1255 22nd Street N.W.
Washington, D.C. 20037
Transcript/Programming: Tel. 301-731-1728
Sales: Tel. 202-419-8500 ext 599
www.cqrollcall.com
CQ-Roll Call, Inc.
is a private firm not affiliated with the U.S. Government.
Copyright 2016 by CQ-Roll Call, Inc.
Washington, D.C. U.S.A.
All materials herein are protected by United States copyright law
and may not be reproduced, distributed, transmitted, displayed,
published or broadcast without the prior written permission of
CQ-Roll Call, Inc. You may not alter or remove any trademark,
copyright or other notice from copies of the content.
It would be one thing if Mitch McConnell was saying, man, it's going to take so long to schedule all the hearings and the votes, and we won't have time because we're just so busy that we can't then do criminal justice instead. But since there has been a spike in the number of days off in this Congress, and, typically, a judicial confirmation takes less than three months from the time that person is nominated -- Judge Alito, for example, took 82 days -- this is something that shouldn't prevent us from getting done the criminal justice issues.
I think what's been tougher is just managing the traditional politics around being soft on crime versus being tough on crime. And right now because crime rates -- sadly except for in certain neighborhoods in Chicago and a few other cities -- have been going down in ways that are remarkable and nobody can fully explain, there is less profit in saying I'm going to be tough on crime.
But there is always a hesitance on the part of legislators because very rarely is a politician punished for having been too tough on crime and sentencing. But occasionally, la Willie Horton, they feel that a vote that can be perceived as lenient might come back to bite them.
The good news is that, so far at least, people have stuck with it. And I'm modestly optimistic that we can get something done this year. It won't solve the problem of mass incarceration -- because that was a process that took 20, 30 years to get to where we are now, where we account for 5 percent of the world's population and 25 percent of the world's prisoners, so it's going to take some time to reverse. But the legislation that's pending right now provides meaningful reductions in the standards for sentencing around nonviolent drug crimes. It does some very important work in terms of reentry, diversion programs. It breaks this psychology that we just have to lock people up in order to keep ourselves safe.
One last element to this that has been interesting is the opioids crisis that some of you may have read about. Right now painkillers -- overdoses of people taking painkillers kills more people than traffic accidents. It's a remarkable statistic. There has been this huge spike in painkiller addiction, which is then leading to heroin addiction, because oftentimes heroin is cheaper than painkillers. And four out of five people who get addicted to heroin start their addiction with OxyContin or some other painkiller addiction. And unlike crack, it's not just affecting inner-city African American or Latino communities. It's widespread. It's pervasive. It's seeping into rural areas. And it's a tragic issue that we are really spending a lot of time focused on.
But what's interesting is, is that the politics of this changes a little bit where when elected officials see kids who are like their kids getting hooked and going through these terrible things, there's been a greater predisposition to think of this as a public health issue rather than a criminal justice and incarceration issue.
And that's -- I'm just being blunt -- that's the truth. But it actually has had an impact in terms of an openness I think to re-examining some of our drug laws.
Good question. I'm sure your question eight years ago was really good, too. (Laughter.)
All right, I'm going to go boy-girl-boy-girl just to make sure this is fair. We monitor these things. (Laughter.) Yes, gentleman right here, in the tie. You. Yes, you look sharp. (Laughter.) Do you wear a tie every day to class? That's good, man.
Q I'm Jimmy. I'm also a 1L. I've never asked you a question before. (Laughter.)
THE PRESIDENT: Okay.
Q So this might not go very well. (Laughter.) But I've written it down so hopefully I can read it. Mr. President, we are currently in the midst of a polarizing, political election cycle dividing both major parties along populist and establishment fault lines. Do you anticipate this divergence within the Democratic Party widening to the extent we saw with the tea party's emergence within the ranks of the Republican Party? And if not, what do you worry about for the future of the Democratic Party?
THE PRESIDENT: Short answer is, no, I don't. The cleavages inside the Democratic Party are not comparable to what we're seeing in the Republican Party right now. The argument inside the Democratic Party is a little bit more about means, less about ends.
If you look at our two Democratic candidates, they believe that everybody should get health care. They believe that every child should get a good education. They believe that climate change is real and that we should do something about it. They believe in equality for the LGBT community. Right? If you go through the list, there's not a huge divergence there.
I think that in the Democratic Party, there is a populist impulse that grows out of what I also think has happened for folks who are voting in the Republican primary, this frustration in the wake of the financial crisis and the bottom falling out for people who lost their jobs, or lost their homes, or lost their pensions; that the world is moving fast, the ground is not firm under their feet. And even before that crisis, wages and incomes were not going up at the same pace as productivity, corporate profits, and so forth. And so there is a sense the game is rigged. And we have to more fundamentally change that game, that system -- whether it's Wall Street, or how Washington operates, or what have you.
Some of that impulse is healthy. I think you want people to be asking hard questions about injustice economically and the way that insiders in the political process may not fully represent the interest of everyone.
The danger, whether for Democrats or Republicans, is in a closed-loop system where everybody is just listening to the people who agree with them, that you start thinking the way to get to where I want to go is to simply be as uncompromising as possible, and hold the line, and not pay attention or listen to what the other side has to say. And that is sort of a tea party mentality. And that anybody who suggests, well, there's another point of view, or there's a whole half of the country that completely disagrees with us that we have to work with, well, then you must be a sellout, or you must be corrupted, or you must be on the take, or what have you.
And that is not, I think, useful. It's not say that there isn't corruption, that there isn't compromise -- people compromising principles for less-than-noble means, et cetera. Those things happen and they should be called out.
But a lot of the reason why a lot of Democrats who supported me and still support me got frustrated is because a bunch of the country doesn't agree with me or them, and they have votes, too, and they elect members of Congress. And that's how our democracy works. It's not a situation, if you don't get everything you want, it's always because the person you elected sold you out. It may just be because in our system you send up taking half loaves.
I could not be prouder of the Affordable Care Act, but it was a messy process. It doesn't have a public option. It's not single-payer. If I were designing a system from scratch, I would have designed a more elegant system and a more efficient system. But that's not what was possible in our democracy -- in the same way that Social Security when it first started was a meagerly program providing benefits to just a few people and historically cut out for purely racist reasons domestic servants or sharecroppers or what have you. And then over time you kept on improving it. That's how change generally happens.
And I think the thing that Democrats have to guard against is going in the direction that the Republicans are much further along on, and that is this sense of we are just going to get our way, and if we don't, then we'll cannibalize our own and then kick them out and try again, and we narrow our viewpoints more and more until finally we stake out positions that are so extreme that they alienate the broad public.
I don't see that being where the Democrats go. But it's always something that we have to pay attention to.
Q Thank you so much for being here. I'd like to know how have your views on the Supreme Court nomination process changed since you taught constitutional law here at the University of Chicago.
THE PRESIDENT: My views on how it should work hasn't changed. My views on how it currently works obviously are a source of frustration. Look, just to kind of wrap up this Supreme Court conversation, I think it is perfectly acceptable for Republicans to decide that even though Merrick Garland is highly qualified, even though he's indisputably a good and fair judge, even though he's gotten the highest ratings from all the bar organizations and others that have examined his record, that I just don't agree with him on X, Y, Z, and I'm going to vote against him because I believe in something different on important issues.
What's not acceptable is not giving him a vote, not giving him a hearing, not meeting with him. What's not acceptable, I believe, is the increasing use of the filibuster for somebody who's clearly within the mainstream, or to essentially say that we are going to nullify the ability of a President who is from another party from making an appointment. And we're going to wait to see if maybe we can get a guy from our party to make the appointment. That is where you have a process foul that corrodes the ability of the Court to function effectively.
If you play out how much of a problem this could end up being -- if, in fact, Mitch McConnell sticks to not giving a hearing and not giving a vote, and let's say, from their perspective, everything works out great and their nominee, whoever that might be, wins and takes over the White House, and they, then, make an appointment -- the notion that Democrats would then say, oh, well, we'll just go along with that -- (laughter) -- that is inconceivable. Right?
So now the Democrats say, well, what's good for the goose is good for the gander, we'll wait four more years to see how the next President comes in, at which point what's most likely then is Mitch McConnell will then eliminate the filibuster possibility for Supreme Court justices, as it was eliminated for the other judicial appointments. And now it's just a majoritarian exercise inside the Senate of who controls the presidency and who controls the Senate. And if different parties control the White House and the Senate during that period of time, you're not going to get any appointments done -- which is a disaster for the courts, generally.
For two reasons. One is, there's a lot of work that needs to get done and you need judges. And right now, there are emergency situations in districts across the country. But the second thing that happens is people will, at that point, just become more and more cynical about decisions that are coming down from the Court. They're already cynical because so much of so many opinions just end up being straight 5-4, and it starts feeling like this is just a partisan alignment. But it gets much worse under these circumstances. People then just view the courts as an extension of our political parties -- polarized political parties.
And if confidence in the courts consistently breaks down, then you start seeing our attitudes about democracy generally starting to break down, a legitimacy breaking down in ways that are very dangerous.
It's a gentleman's turn. Right here in the front. I am impressed by the way you guys did all get dressed up. (Laughter.) Was there a memo sent out? Did the Dean say, you guys, we want you to all -- because you aren't going to class like this. (Laughter.) I know. I remember. (Laughter.)
Q Hello, Mr. President. Thank you very much for being here with us today. I'm a 2L here at the law school. My question for you is, what sorts of constitutional questions were at the forefront of your mind when deciding who your nominee should be? And what sorts of constitutional questions do you think Americans should be asking themselves when assessing your selection and thinking about the 2016 presidential election?
THE PRESIDENT: Well, I will tell you, as I said before, I'm very careful not to delve too specifically into a candidate's position on live issues. You're a well-informed 2L, you know the issues that people debate. There's a standard set of social issues that have been roiling society and the courts for a long time -- whether it's LGBT rights, or abortion, or civil rights.
What's interesting is there are a set of new issues that are going to be coming up that, for your generation, I think are going to be increasingly salient. One great example is this whole debate around encryption, which I think is just the tip of the iceberg of what we're going to have to figure out. In a society in which so much of your life is digitized, people have a whole new set of privacy expectations that are understandable. They also expect, though, that since their lives are all digitized, that the digital world is safe, which creates a contradictory demand on government -- protect me from hackers, protect me from terrorists, protect me from et cetera, et cetera, et cetera, but I don't want you to know any of your [sic] business and I don't even want you to have the ability to investigate some of that business when it happens because there's broader implications and we're worried about Big Brother. And so there's going to be a whole series of issues around that that I think will be coming up.
I think there are a range of economic issues that date back very far, to the earliest days of the Court and were prominent during the Great Depression and FDR's era that have gone into abeyance -- people don't pay attention to them as much in terms of monopoly concentration, or antitrust issues, et cetera -- but I think in this current environment are going to be coming more prominent over time.
And then, political participation issues and voting issues I think, and money in politics issues -- that's a whole series of issues that I do believe are an important role for the Court to play. Because if we're not effectively setting the rules of the political process, if that is delegitimized, then whatever outcomes are generated are subject to just endless contention.
And this is separate from the judiciary. This is your President editorializing. (Laughter.) We really are the only advanced democracy on Earth that systematically and purposely makes it really hard for people to vote. And we sort of take it for granted. I mean, we sort of just assume, yeah, that's I guess how it is. There's no other country on Earth that does that. And there's a legacy to that that grows directly out of a history in which first property men, then white men, then white folks didn't want women, minorities to participate in the political process and be able to empower themselves in that fashion.
Now, that's the history. We should be a society in which, at this point, we said, yeah, that history wasn't so good, that's not who we are, and there was a Civil War fought about all this stuff, and we passed a whole series of laws like the Voting Rights Act, and at this point we should be at the point where we say, you know what, we want everybody to vote because that's the essence of our democracy. But we have not just federal laws, but state laws, that unabashedly discourage people from voting -- which is why we have some of the lowest voting rates of any advanced democracy in the world.
And that's a problem. That's not something that -- I'm saying that to Congress, as well as to the presidency, as well as to governors, as well as state legislators, as well as to courts. That can't be right! There's no justification for that! You can't defend it!
And I've always said -- and this goes back to the young man's question earlier about political polarization -- maybe the single biggest change that we could make in our political process that would reduce some of the polarization, make people feel more invested, restore integrity to the system, would be just make sure everybody is voting. Australia has got mandatory voting. You start getting 70-80 percent voting rates, that's transformative.
All right. How much time do we have, by the way? How many?
MODERATOR: Time for one more.
THE PRESIDENT: We'll take two. (Laughter.) The young lady in the green, right there in the sweater. Yes, that's you. Yes. You didn't remember what you were wearing today, did you? (Laughter.)
Q So I think we can agree that in our nation, we celebrate diversity. Diversity of ethnicity is the basis, the background. And I'm just wondering -- well, of course, U of Chicago is a diversity of ideas. I'm just wondering what diverse characteristics Judge Garland would bring to the Supreme Court.
THE PRESIDENT: Well, he's from Skokie -- (laughter and applause) -- which is very important. It's a great place. It's a great town. The way I've thought about diversity is not to think about any single seat as, oh, I've got to fill this slot with this demographic, but rather if I've got a broad set of nominees to make -- and this is true across the board -- how do I make sure that I'm intentional throughout that process so that the talent of every American is, and every potential candidate gets a fair look, and I have confidence that if I stick to that, if I do that, if I make sure that I'm broadening the search, broadening the pool, looking at a bunch of folks even if they're not going through the conventional paths, that I'll end up -- the process will result in diversity.
And that, in fact, is what's happened. I am -- not to brag, but I have transformed the federal courts from a diversity standpoint with a record that's been unmatched. (Applause.) We've got more African Americans on the circuit courts than we ever has before. We've got -- I've appointed more African American women to the federal courts than any other President before. I've appointed more Latinos than any President before. I've appointed more Native Americans, more Asian Americans, more LGBT judges than ever before.
But at no point did I say, oh, you know what, I need a black lesbian from Skokie -- (laughter) -- in that slot. Can you find me one? (Laughter.) I mean, that's just not how I've approached it. It turns out that if the process is fair and you are saying that it's important that our courts are reflective of a changing society, you'll end up with a really good cross- section of people who are excellent. And that's who we've been able to appoint.
And so, when I looked at Merrick Garland, that was the person that -- the difference between the Supreme Court is just a handful of seats come up at any given time now. I appointed a Latino woman and another woman right before that, so, yeah, he's a white guy, but he's a really outstanding jurist. Sorry. (Laughter.) I think that's important.
But this speaks to the broader debate about diversity that I think is important and obviously churns up in college campuses a lot. The question is, have you set up a process and are you intentional about giving everybody a shot? And are you thinking about roadblocks to why we're not seeing a more diverse population? And when you start asking those questions -- in whatever institution. I mean, I just met with the Chairman of the Joint Chiefs of Staff and the Combatant Commanders, our key military leaders. And the U.S. military, interestingly, has probably done as good of a job as any institution in our society when it comes to integration and bringing diverse people in, but, as you go up the ranks, you start seeing that it becomes less and less reflective of the broader population and the troops, the men and women in uniform who are coming in.
And so we had a really interesting conversation about what's happening? How much of this is that the young African American or Latino officer, or woman officer isn't mentored by the person right above them, and steered into particular assignments that are less likely to achieve a promotion? And what can we do about a different set of financial burdens that may exist? And if a lot of those folks are going in as enlisted men and women, because that's the opportunity that was presented to them and nobody told them they could apply to West Point, what are we doing to find outstanding enlisteds, and saying, you'd make a good officer and we're going to groom you?
And all of that -- that's not as satisfying as, when it comes to publicity, as just checking a box and saying, look, I appointed this person or that person in any particular slot. But that's where you start changing systems, and you start changing institutions, and you end up with a really broad-based change in access. And that's something that I really care deeply about because, just as is true in the military, it's true generally. Look, our society is changing. You cannot have a successful America if we are leaving out big chunks of the population from opportunity and leadership. It just doesn't work.
And it's the same argument I make internationally in countries that are still repressing women -- saying, your society cannot work, it doesn't work if more than half your population is constrained. If the half of that population that is most likely to be raising your children and teaching the next generation is not getting opportunity, your society will fail over the long term. And that's just true generally.
All right, one last question.
Q What happens --
THE PRESIDENT: Excuse me, you were not called on. (Laughter.) And you are a journalist. And I'm calling on students. So, thank you very much. This wasn't a press conference.
So, let's just see -- it's a gentleman's turn. This gentleman right there.
Q Hi, my name is Seth. I'm a 3L. If you don't mind me reading my question --
THE PRESIDENT: It's okay. This is what I was saying about you guys and your phones. (Laughter.) By the way, are you now -- I'm assuming you can't carry your phones into court, can you?
Q Actually, it depends. (Laughter.)
THE PRESIDENT: I'm going to say, you guys might want to practice -- (laughter and applause.)
Q I'll try to work on that. (Laughter.) So one issue that Judge Garland would likely never be able to consider if he were confirmed concerns the President's authority to conduct drone strikes away from active battlefields. And these are strikes that you have continuously authorized on the basis of vague legal standards that you unilaterally deem to be satisfied in each case without ever appearing before a court, and in the process killing hundreds of innocent civilians as well as, in some cases, American citizens. So my question is, how are these killings morally and legally justified? And what kind of message does this drone program send about America's values to the world, the American people, and to law students like myself who refuse to put our trust in an opaque process?
THE PRESIDENT: I think that's a great question -- although I will say that I will dispute some of the underlying premises that you asserted as facts. But I think it's an important topic, and it's a fair one.
When I came into office, we were still in the midst of two wars, in Iraq and Afghanistan. And in the border regions between Afghanistan and Pakistan, al Qaida was still highly active. And drone technologies began to develop in parallel with -- had developed prior to my presidency, but started to really accelerate in terms of the technology and the precision with which strikes could be taken.
And the challenge for me as Commander-in-Chief has consistently been how do you think about this new technology in a way that is consistent with morality, ideals, laws of war, but is also consistent with my first priority as President and Commander-in-Chief, which is to keep all of you safe, including you.
And so I think it's fair to say that in the first couple of years of my presidency, the architecture -- legal architecture, administrative architecture, command structures -- around how these were utilized was underdeveloped relative to how fast the technology was moving. So another way of saying this is our military or our intelligence teams started seeing this as really effective. And they started just going because the goal was let's get al Qaeda, let's get these leaders. There's a training camp here. There's a high-value target there. Let's move. And it was -- the decision- making was not ad hoc, but it was embedded in decisions that are made all the time about a commander leading a military operation, or an intelligence team trying to take out a terrorist. And there wasn't enough of an overarching structure, right?
So you may recall -- but if not, I'm sure we can send it to you -- I gave a speech at the National Defense University in which I said that we have to create an architecture for this because the potential for abuse -- given the remoteness of these weapons and their lethality, we've got to come up with a structure that governs how we're approaching it. And that's what we've done. So I've put forward what's called a presidential directive. It's basically a set of administrative guidelines whereby these weapons are being used.
Now, we actually did put forward a non-classified version of what those directives look like. And it says that you can't use these weapons unless you have near certainty that there will not be civilian casualties; that you have near certainty that the targets you are hitting are, in fact, terrorist organizations that are intending to do imminent harm to the United States. And you've got all the agencies who are involved in that process, they have to get together and approve that. And it goes to the highest, most senior levels of our government in order for us to make those decisions.
And what I've also said that we need to start creating a process whereby this -- whereby public accountability is introduced so that you or citizens or members of Congress outside of the Intelligence Committee can look at the facts and see whether or not we're abiding by what we say are these norms.
And we're actually -- there's a lot of legal aspects to this because part of the problem here is, is that this drone program initially came through the intelligence side under classified programs, as opposed to the military. Part of what I've also said is I don't want our intelligence agencies being a paramilitary organization. That's not their function. As much as possible this should be done through our Defense Department so that we can report, here's what we did, here's why we did it, here's our assessment of what happened.
And so slowly we are pushing it in that direction. My hope is, is that by the time I leave office there is not only an internal structure in place that governs these standards that we've set, but there is also an institutionalized process whereby the actions that the U.S. government takes through drone technology are consistently reported on, on an annualized basis so that people can look.
And the reason this is really important to me -- and this was implied in your question -- is there is a lot of misinformation about this. There is no doubt -- and I said this in an interview I think recently -- there is no doubt that some innocent people have been killed by drone strikes. It is not true that it has been this sort of willy-nilly, let's bomb a village. That is not how folks have operated. And what I can say with great certainty is that the rate of civilian casualties in any drone operation are far lower than the rate of civilian casualties that occur in conventional war.