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tv   US Senate  CSPAN  February 26, 2016 2:00pm-4:01pm EST

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it increases the time that they would need to produce enough weapons grade uranium for a nuclear weapon from a few months to about a year. iran probably be used as a means ..
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>> russia and china understand how our military fights and how we rely on space. they're each pursuing disruptive and destructive satellite systems. china continues to make progress on its anti-satellite missile program. both state and nonstate is persistent, complex and evolving. targeting and collection threats from insiders taking advantage of access to their access to collect and remove national security information will remain a persistent challenge.
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50 times more potent than heroin. in that same year more than 28,000 died from opiate overdoses. cocaine production in colombia, from which most u.s. supplies originate, has increased significantly. now let me quickly move through a few regional issues n. east asia china's leaders are pursuing an active foreign policy while dealing with much slower economic growth. china's leaders have embarked on the most ambitious military reforms in its history. regional tech will continue as china -- tension will continue. russia has demonstrated its military capabilities to project itself as a global power command respect for the west, maintain domestic support for the regime and advance russian interests globally.
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moscow's objectives in ukraine will probably remain unchanged including maintaining long-term influence over kiev and frustrating its attempt to integrate into western institutions. putin is the first leader since stalin to expand russia's territory. moscow's military venture into syria marks its first use since its foray into afghanistan of significant expeditionary combat power outside the post-soviet space. its interventions demonstrate the improvements in russian military capabilities and the creme lip's confidence of using them -- kremlin's confidence of using them. moscow faces the reality, however,over economic recession driven in large part by oil prices and sanctions. contraction last year will probably extend into 2016. in the mideast and south asia, there are more cross-border military operations underway in the mideast region than at any time since the 1973 arab-israeli war. in iraq, isil forces will
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probably make incremental gains through the spring, some of those in baji and ramadi in the past few months. isil is somewhat on the defensive, and its territory and manpower are shrinking, but it remains a formidable threat. in syria, forces have made strategic gains in the north as well as in southern syria. manpower shortages will continue to undermine the syrian regime's ability to accomplish strategic battlefield objectives. the opposition has less equipment and firepower, and its groups lack unity. sometimes have competing battlefield interests and fight among themselves. some 250,000 have been killed as this war has dragged on. which is probably a low-side estimate. meanwhile, the humanitarian situation in syria continues to deteriorate. as of last month, there were approximately 4.4 million syrian refugees and another 6.5 million internally displaced persons which together represent about
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half of syria's preconflict population. in libya, despite the agreement to form a new government establishing authority and security across the country will be difficult with hundreds of militia groups operating throughout the country. isil has established its most developed branch outside of syria and iraq in libya. benghazi, tripoli and other areas of the country. the yemeni conflict will probably remain stalemated through at least mid 2016. meanwhile, aqap and isil's affiliates in yemen have exploited the conflict and the collapse of authority to recruit and expand territorial control. the country's economic and humanitarian situation also continues to worsen. iran deepened its involvement in the syrian, iraqi and yemeni conflicts in 2015. it also increased military cooperation with russia, highlighted by its battlefield alliance in syria in support of the regime.
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iran's supreme leader continues to view the united states as a major threat. we assess that his views will not change despite the implementation of the jcpoa deal, and the release of the ten sailors. in southeast asia, afghanistan is at risk of breakdown. waning political cohesion increasingly assertive power breakers, financial shortfalls and sustained country-wide taliban attacks are eroding stability. needless to say, there are many more threats than we can address, most are covered in our statement for the record, but i'll stop with the litany of doom, and we'll address your questions. >> thank you, director clapper. i'm going to go, first, to director comey. director, there's been a lot recently in the news, as you're with well aware, involving the iphone that was owned by the san bernardino be shooter.
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what exactly are you asking apple to do? how does this differ from the other times you have asked apple to help you lawfully obtain communications? >> thank you, mr. chairman. in the case in san bernardino, the judge, the federal judge has ordered the maker of the phone to do two things; that is, disable the awe eau-erase -- auto-erase function on the phone so that if the fbi is trying to guess the pass code it doesn't delete the contents essentially after the tenth try and, secondly, disable the delay between tries function so if we're going to try to guess the cold, it doesn't take years and years and years, and instead we can do it in minutes or hours and to do that through the remote pulsing of codes through the phone. that's what the order is about. and i don't know whether this particular relief has been sought in another court
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proceeding. i don't think so. given the nature of this particular phone and its operating system, it's possible, but i'm not aware of it. >> well, i'm sure you're going to be getting more questions from this committee, and i know that you're testifying also, i think, next week before the judiciary committee. >> yes, i am. >> i know this'll be an ongoing debate. i want to switch over to director stewart. on february 15, 2016, the "the daily beast" ran a long report titled, and i quote: whistleblowers warn top spy about skewed isis intel. shortly afterward, our committee was contacted and briefed by odni on the survey results which indicated that over 40% of the analysts at centcom feel there are problems with the processes. with troops war fighting all over the centcom alr, is it appropriate we wait 18 months or
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longer for the inspector general report before we even begin to rectify these problems? >> mr. chairman, i have no control over the pace at which the dod-ig does its investigation. and so while it would be very good for all involved to get closure on exactly the extent of this allegation, we have no control over that process. and i probably won't comment any further on the investigation. but the survey itself represents just a sampling of the 16,000-plus members that we have in this enterprise. and in an enterprise where we put very strict measures to insure that we comply with an analytic standards, to insure we have a process where those who believe their views are not being heard through double teaming, through devil's advocate programming, through samples of our product, we think we have a pretty good approach
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to look at the quality of our analysis and the integrity of our analysis, and i'll leave it at that. >> well, it appears like at least there was a process in place to get input from the analysts. and, you know, to me it seems like 40% of analysts that are concerned at centcom, you know, that's just something that can't be ignored, you know, regardless of the investigation. i know that that will take place, but if you have 40% of the analysts, i don't know if there's a way -- are are you going to go back in and poll them again, or is this an annual process that the odn be i goes through? -- odni goes through? what changes can be made in the short term with the, i guess for lack of a better term, the unhappiness of the analysts at cent come? -- centcom? >> this is an annual odni process. we'll certainly continue to look at ways to improve our training. we've done that already. we've already had requests where
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there's been a dispute at centcom where we've sent our ombudsman to look at the rigor and the different views. so we continue to do this process even as this investigation goes on. >> would you consider, though, the 40% to be unusual? unusually high? or is this a normal -- >> i would consider that unusually high. yes, mr. chairman. >> okay. mr. schiff. >> thank you, mr. mr. chairman. director comey, i want to ask you about the apple case as well. the facts of the san san bernardino case are, obviously, pretty compelling in terms of wanting to know what's on that phone, whether there were other parties involved, other plans or targets of attack. and while that application, as you've pointed out, is focused solely on that phone, when i read the motion in support of the application under the all writs act, i don't see a limiting principle.
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and by that i mean that if that argument is accepted by the court in this case, won't it lead district attorneys and other prosecutors around the country to essentially make the same argument in their cases? and some of those may be compelling. i think you pointed to a pregnant woman who was murdered i think in arkansas, and the phone may be the only key to who her killer is. but nonetheless, that application may be good in misdemeanor cases involving nonviolent offenses. and so while the result may only affect this phone, the precedent will be there for many others. and i guess what i'd like to ask you is, is there a limiting principle here? is there a way through negotiation that we can arrive at cases where it's appropriate to seek this relief and cases where it's not? do you acknowledge sort of the broader policy implications of a uniform application under the all writs act?
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now, i realize this may be mooted by the next generation of operating system which may not allow this kind of relief, but nonetheless, if it is technologically feasible even with a next generation operating system for apple to help with the opening of the phone, it seems to me that the argument you're making in this case will apply to those new operating systems as well. is there a limiting principle here, and is there any way to resolve this through negotiation? because at least the initial positions of the parties are we need access and we have legal warrant, and the other side is saying we can never provide access, because if we do here, we'll have to do it everywhere. >> thank you, mr. schiff. and i should say i very much agree with the way you framed it in your opening statement. this case and all cases are very, very important, but there's a broader policy question that is far larger than any individual case that we all have to grapple with. but to the case. first, i think the answer would beth best come from a technical
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expert and a good lawyer. i'm neither of those, but i will take a shot at it. i do think that it is potentially -- whatever the judge's decision is in california, and i'm sure it'll be appealed no matter how it ends up -- will be instructive for other courts. and there may well be other cases that involve the same kind of phone and the same operating system. what the experts have told me is the combination -- here's where i'm going to get well out of my depth of a 5c and this particular operating system -- is sufficiently unusual that it's unlikely to be a trailblazer because of technology being a limiting principle. but, sure, a decision by a judge, a judge weighing a decision in brooklyn right now, all of those decisions will guide how other courts handle similar requests. the all writs act, as you mentioned, is a tool that i used as a young prosecutor. we've used it for hundreds of years so that courts can have their orders given effect. and how judges interpret that in any particular jurisdiction is not binding on others but will
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be important. that's fair to say. but i i do think the larger question is not going to be answered in the courts, and it shouldn't be because it's really about who do we want to be as a country and how do we want to govern ourselves. >> let me ask that broader question from the bureau's perspective, and that is can you live with a policy, can law enforcement live with a policy that says only in certain cases whether they're violet crimes or other -- violent crimes or other very serious cases, terrorism-represented, that we would allow under the all writs act and the congress could specify to which purposes the all writs act or a change would apply? is that something that the law enforcement community, intelligence community, you think, could negotiate with privacy stakeholders and with the technology sector? >> i think conversation and negotiation is the key to resolving this. this is the hardest question i've seen in government, and it's going to require negotiation and conversation. but i've been very keen to keep
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the bureau out of the policy making business. i think we have two roles in this context. one is in the cases. we must do a competent investigation following the murder of 14 people in san bernardino, and we will, and we'll use whatever lawful tools are available to us. but in the larger conversation, i think our role is just to make sure folks understand what are the costs associated with moving to a world of universal encryption. there's tons of benefits. i love encryption, i love privacy, and when i hear corporations saying we're going to take you to a world where no one can look at your stuff, part of me says, that's great. i don't want anybody looking at my stuff. but law enforcement, which i'm part of, really does save people's lives. we do that a whole lot through court orders that are search warrants, and we do it a whole lot through search warrants of mobile devices. so we're going to move to a world where that is not possible anymore? the world will not end, but it'll be a different world than where we are today and where we were in 2014.
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so we just have to make sure that the bureau explains to focuses what the costs are so that -- folks what the costs are so that people don't look at us and say where were you guys when this happened? this is too important to let us drift. my goal is to have the bureau be a factual input so we have a really robust conversation that's well informed. >> thank you, director. and i know my colleagues will have more questions, so i defer to them. there's one other matter i wanted to raise though, and that's the subject of libya. i'm deeply concerned that as the size of the tumor in syria and iraq decreases, that we're seeing the growth of a new malignancy in libya. there seems to be a concern with taking more aggressive military action against isis in libya, that it would somehow interfere with the ongoing, never ending, it seems, negotiations to get the two political parties together and form a common government.
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from an intel perspective, do you think that we could take more aggressive military action against isis in parallel with the political negotiations, or do you think we have to choose between them? because i'm concerned that at the pace of those negotiations which seemed endless that we may get to the point where isis is so firmly entrenched in libya that we have to embark on the same multiyear project that we're undertaking in iraq and syria. >> well, i'll start that and others can contribute. i think you've very aptly characterized the dilemma here in terms of a more robust military intervention in libya and the potential jeopardy that that imposes to a very fragile, e evolving political process. there's great hope for this new government of national accord.
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we'd like nothing better than to have a government in place in libya with whom we could work and from whom we could gain consent for engaging militarily in libya. that is a subject of active discussion as i speak. john, do you want to add anything to that? >> i think there is recognition that there is a relationship between government-building, trying to get this government of national accord off the ground and counterterrorism operations. and the discussions that i think jim and i and others have been in recognizing sometimes what you do in one environment affects the other. but i think the purpose is to try to pursue both with vigor simultaneously, recognizing you cannot put off the counterterrorism operations as this long process of government building continues to take place. >> just to drill down a bit further on that, do either of the political factions that are trying to form the common government, do either of them take issue with the necessity of military action against isis? i'm trying to get an
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understanding as to why in an effort that i hope will be more fully integrated with european military leadership, a more aggressive approach against isis in libya would somehow interfere with the political negotiationings. >> well, the government -- negotiations. well, the governments, the two competing governments also, neither of them are monolithic. they are a spectrum of political views within each one of those. so i think there is, to the extent that there can be in libya, a fair amount of agreement that isil poses a threat to libya as a nation-state, and i think there is sentiment among the most parties but not all that this represents a threat to the country. but there is not -- and and that's the difficulty here, there is a wide range of views
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among the, in the political spectrum in libya. >> thank you, mr. chairman. i yield back. >> mr. miller. >> thank you very much, mr. chairman. as the chairman alluded to in his opening statement, there's a lot of education that's going to be taking place about section 702. and, director clapper, director brennan, director comey, if you would in this open session, please elaborate briefly if you will how important section 702 is to your respective agencies. >> well, i'll start, and i would also invite the deputy director of nsa, but all of us have an equity here. 702 represents a vital capability, intelligence capability for all of us. and just to be clear, this is the provision in the foreign intelligence surveillance act that governs the collection onion-u.s. persons oversees on non-u.s. persons overseas. the current law expires in
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december of 2017. so we are already embarked on kind of an education campaign in the congress to insure people understand what a vital tool this is. let me turn, first, to mr. legitt. >> thank you. sir, i agree with what the director said that it is, in fact, a vital tool for our intelligence efforts against valid foreign intelligence targets, non-u.s. persons who are overseas, and it does not permit the targeting of u.s. persons. that would require a separate court order to do that. if a u.s. person is in contact with a valid foreign intelligence target, there are minimization procedures that we use to minimize the retention and the kiss rose your of -- disclosure and the identity of that person because it's not a
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foreign intelligence value. and those are reviewed annually by the court. >> 702 is a critical tool for cia for the collection of foreign intelligence as well as our operational activities, whether they be on the counterterrorism continue, counterproliferation front as well as others. there have been numerous instances over the years where 702 has been instrumental in our ability to uncover and also help disrupt activities that are a threat to our national security interests. and as you can imagine in open session, it's difficult to go into some of those. but let me just mention at least one. in late 2014 a longtime libyan extremist operative was arrested by local authorities in europe following several trips into syria and libya. while he met with senior extremist operatives. at the time of his arrest, cia assessed that he was involved in external operational planning,
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and cia provided this lead information from section 702 collection to assist local governments in their investigation that led to the arrest of that individual. that is, i think, epitomizes in many respects the way that 702 intelligence is used by cia working frequently in concert with our partners around the world to disrupt these activities that frequently have a terrorist mention to them or a proliferation dimension to them. >> the only thing i'd add, mr. miller, is reasonable people could and did argue about how important the telephone metadata collection was. this is not even a close call. this is -- if we lost this tool, it would be a very bad thing for us. so it's very important to have this conversation early. so i thank you for the question. >> thank you, mr. comey. yield back. >> gentleman yields back. mr. himes. >> thank you, mr. chairman. gentlemen, thank you for being here. director comey, i want to pick up the line of questioning on the apple/fbi.
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as mr. schiff said, the facts are compelling in this case. some of the issues, as you have acknowledged, are novel and challenging. it is this body that should be determining the answer to the questions that will be asked and resolved in the judiciary and, of course, we will once again shirk our constitutional duty as we have on an authorization for the use of military force, as we're preparing to do with respect to advice and consent on the supreme court issue, and we will again on this issue, which is said. so it leads me to two questions to you, director, about, i guess, the thinking of the fbi. and the first question really is a follow-on to mr. schiff's. it's my understanding that the position of the fbi is a very narrow one, that the request of apple really pertains to this device in this instance. there's a legitimate worry, though, that a decision in favor of the fbi could be the narrow end of a very wide wedge. and mr. schiff asked about the legal domain of cases to which this might apply. i want to ask about the authority.
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if the fbi prevails, apple will be required to write some code at the behest of the government. my question is, where does this authority end? for example, is it the position of the fbi that it has the authority to compel the inclusion of code into a new device? can you paint a very bright line for us with respect to where you think that authority ends that might reassure those people who say where does it end? >> thank you, mr. himes. i don't think i can by virtue of expertise or should by virtue of my role. i really do think the department of justice, the lawyers who are representing the government in this case are best situated to do that. i think these are reasonable questions because judges on both coasts and probably lots of other places are going to have to interpret what is the meaning of reasonable assistance, and i'm really not somebody qualified to offer you a good answer to that one. >> okay. so it's not at this point in
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time a belief of the fbi that the authority could go beyond what it has requested in this particular case. >> yeah. i actually -- here's the way i think of it. the fbi focuses on case and then case and then case. i've said this to folks, and i've said it because it's true. the san bernardino litigation is not about us trying to send a message or establish some precedent. it really isn't. it's about trying to be competent in investigating something that is an active investigation. and so i don't know how lawyers and judges will think about what is the limiting principle on the legal side. i just don't know. >> okay, thank you. my second question really is about a different way to think about this. right now we're having this conversation primarily in terms of the tension between privacy and security. but there's a different tension which is security versus security. if you prevail and if this code is written, presumably as mr. schiff pointed out it will be the summit of other requests -- subject of other requests for law enforcement.
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this code will exist, presumably on a server at apple. and that creates a very substantial threat. it will, if this code exists on a server at apple, it will presumably become the target of our sovereign adversaries, of criminal terrorists, and you don't have to think too hard to spin some ugly scenarios if that code gets out into the wild. now maybe a terrorist gets photos of my children, knows my precise location. i wonder if you could give me a sense for in taking the position that the fbi has, how did you think about the trade-off between the very compelling desire to get the information in this particular san bernardino case with the risks that would be posed by the existence of this code should it exist and ultimately, perhaps, get out into the wild? >> yeah. again, i think that's something that the court is going to sort out. and it -- i'm trying to be cautious in answering because i'm not an expert. what the experts have told me, and i'm sure this'll be sorted out by the judge, is the code the judge has directed apple to
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write works only on this one phone. and so the idea of it getting out in the wild and working on my phone or your phone -- at least the experts tell me -- is not a real thing. second thing is that the code will be at apple which is, i think, done a pretty darn good job of protecting its code. before 2014 they were able to unlock any phone, and i don't remember any code getting out that let that ability loose upon land. but, again, i'm not an expert, and i do think that's something the judge is going to have to sort out. >> thank you, director. director clapper, in my limited time i wanted to thank you for raising the issue of cybersecurity in your written testimony. i wonder, agreements were made when the chinese president visited our president. i wonder if you could characterize whether those agreements have been effective in reducing the amount of cyber-espionage and cyber activity that we've seen out of china. >> we could probably go into that in more detail in a closed session.
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as i indicated in my oral remarks, i think jury's out. we have seen some reduction, but i don't think we're in a position to say at this point whether they're in strict compliance. and we can go into that in more detail in closed session. >> thank you. thank you, mr. chairman. >> the gentleman yields back. mr. king. >> mr. chairman, i just have two brief questions for director comey on apple. one is were there any negotiations between fbi and apple leading up to the court pleading? >> yes, plenty. they were very helpful, by the way. i want to be sure people understand, apple's been very cooperative. we just got to a place where they were not willing to offer the relief that the government was asking for. >> and secondly, just to knock down a media story i've heard several people on, in the media say that the fbi could do this if they wanted to, but they are trying to establish a case here. just give you the opportunity to -- [laughter]
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>> it's the product of people watching too many tv shows. i don't mind tv shows about fbi, but sometimes we're not as attractive or technologically talented as we appear on tv. [laughter] >> okay. i yield back. >> mr. quigley. >> thank you, mr. chairman. thank you, gentlemen. diving a little deeper into ukraine and russians, don't know who wants to comment on this first, but some sense of their strategic goals here. obviously, the impact of sanctions is pretty dramatic to their economy. is this, i guess, a frozen conflict? and what else can we anticipate? >> well, what's had the greater impact on russia, russia's economy's been the precipitous drop in the price of oil where euro crude is running around $37 or $38 if that a barrel. and the planning factor that the russians have consistently used
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in their budgeting is $50 a barrel. so sanctions have certainly contributed to that, but the major impact has been with oil. i think the russians consider ukraine little russia. it's, i think it's deeply steeped in their history, in their culture. and so they are going to attempt to sustain influence particularly in the two separatist republics of do us inning and lieu hasn't. and obviously what the russians most fear and they're most concerned about is ukraine gravitating to the west more than it already has, meaning becoming part of the european union or worse, nato. so russia will continue, i think, to -- via proxies, the separatists -- sustain their
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influence in the ukraine in that manner. >> do you see the status continuing the way it is or some -- obviously, there's renewed conflict at different times but no dramatic change recently. >> that's right. i think they will, for now, maintain more or less the status quo. that's creating some issues among the separate from a morale standpoint, and a lot of the incidents occurring along the line that has been drawn via the minsk agreement are occasioned by upstart separatists who the russians don't completely control. john, do you want to add to that? >> there has been some movement as far as negotiations with the minsk agreement, but there still is shortcomings as far as implementation of that. but your characterization of a frozen conflict, i think there's still uncertainty about how the russians themselves are going to
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extricate themselves from this which is taking a toll in addition to the oil prices. but -- because of sanctions. >> well, given the economy for whatever reasons and the two conflicts they're most involved with, do you sense that putin feels they have their hands full, or do you, do you have concerns about efforts to destabilize the baltic region? >> well, there are concerns about that, although right now that's more in the soft arena, if you will, in the information, operations or cyber realm rather than hard military assault on the baltics. that doesn't seem to be in the cards right now. i do think the russians are preoccupied right now with syria, and they've put a lot into that. they are confronting the possibility, i think, or considering whether they're going to put more ground forces in. of course, i think the constraining factor for them is
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the memory of afghanistan. getting into kind of a bottomless pit. and i think that does affect russian thinking. and it's the reason, one of the reasons why i think there is apparent interest in a cessation of hostilities. >> thank you, gentlemen. >> gentleman yields back. mr. westmoreland's recognized. >> thank you, mr. chairman, and thank all of you for being here. excuse my voice. director comey, this warrant that you went to court to get, it was really no different of a process of what you do for a fisa or any other warrant that you would want to get to check on some evidence. i mean, you were just trying to get where you could get into the phone, not do anything else, is that correct? >> that's correct. as in thousands of other
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criminal investigations across the country if we want to search -- >> yeah. >> -- go to a federal judge, make a showing of probable cause to believe there is evidence relevant to the investigation on the device and get a search warrant from the court for the device. and then what happened here is then, because the device was unable to be opened, the judge issued a separate order under this thing called the all writs act to try and give effect to the court's search warrant that told the manufacturer you must assist in disabling this awe doe-erase -- auto-erase function to execute the search warrant. >> for me, just from a common man, i would think it's different if you've got two people that have killed 14 other folks in a terrorist attack and you're just trying to get through the security code to get into the device versus some divorce lawyer trying to find out what a philandering husband may have been talking to.
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so i think there is a total difference to that, and i think the american people sense that. this isn't -- these are people that have committed a crime. the next thing i wanted to ask is, you know, we've been going through a lot of the iran nuclear deal, and we have given them a large sum of money. different, varying figures of that. but i know that a lot of your agencies take part in monitoring the financing of isil is and whether that's in libya or iraq or syria. and how are we monitoring what the iranians are able to do or are doing -- and this is an open question, any of you can jump in there -- as far as what these funds are? because, to me, it gives a perfect opportunity with them going to france and other places
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and making these large purchases, just another great opportunity to launder money. >> sir, we can maybe go into detail in a closed session. i think i'd say here that of the money that was released or freed up by virtue of the jcpoa, that much of it is encumbered either for debt or for demanding domestic needs of the rain grab economy. iranian economy. and some money has flowed and, you know, the organization we worry most about is the irgc and particularly the quds force. some money has flowed to them but not nearly as much as they wanted. and i think as far as how tracking finances and financial
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data, this would be best -- details of that would be best left to a closed session. >> thank you, gentlemen. i yield back. >> gentleman yields back. ms. assume. >> thank you, chairman. thank you, gentlemen, for your testimony today. director clapper, i think -- i want to turn back to cybersecurity and wanted to see if you could talk a little bit about what you think your assessment is of the ic's, the intelligence community's ability to counter cyber threats and talk a little bit about what you see as future threats that we would face and whether or not we were able to meet those challenges. >> well, the intelligence community's role in all this, of course, is classically the intelligence; that is, to collect and analyze information on threats in the cyber domain. and then in support of others
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who are more directly responsible for either planning attacks or for defense. in our forthcoming budget, in fact, on our budget submission and i'll speak to it next week as to what we're actually investing or asking for in 2017, i think the general threat environment is quite daunting. both from the standpoint of the capability of the nation-states, prime among them russia and china, and then nonstate actors. there is an inverse relationship between the ability, the capabilities that countries have, china and russia being the most formidable. perhaps less threatening in terms of their intent whereas you have, you know, second-tier
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countries the likes of iran and particularly north korea -- >> what do you see as our ability -- >> greater intent. >> how do you, how would you assess our ability to counter those threats? >> well, by countering them or collecting against them? >> both, actually. >> well, countering them in one dimension is, i think, our ability to defend which is not just a government thing, but, you know, the private sector as well. so when you say "defend," that is, that's a big domain. i think our concern, our responsibility and our intent, of course, is to be able to collect the threat information so we convey to those or who are responsible for defending and in the case of, say, cybercom attacking, that they have the intelligence to bring to bear for that. >> with respect to space sector,
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can you just tell us a little bit about -- i know you have in your report more detail, but our ability to defend against or counter some of the russian and chinese anti-satellite missiles? >> again, this is a subject best left perhaps in detail for closed session, but i'll just say that both the russians and the chinese have embarked on a very aggressive and versatile and diverse set of capabilities in the space domain. and this has prompted a lot of attention on both the part of the department of defense as well as the intelligence community to provide an array of defenses and resilience and reconstitution if necessary should we use our valuable space assets. this is a commentary, i think, on both russian and chinese insight and understanding about how heavily the united states
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depends on space for a whole variety of needs. >> thank you. i yield back the rest of my time. >> gentlelady yields back. dr. heck. >> thank you, mr. chairman. thank you, all, for appearing today and for our long service to the country, and through you, our thanks to the many men and women your agencies represent. has apple clearly articulated what their reasons are to not cooperate to the extent that you've requested? is it the, you know, slippery slope fourth amendment civil liberties, or is it more of an economic issue where their cooperation in showing the world makes their device less desirable? >> i don't think that's a question i can answer. obviously, i don't want to talk our private conversations in the course of this investigation about apple. i know there'll be a bunch of stuff in the press, and they'll obviously have an opportunity to
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file in the court i think today or tomorrow to explain why they don't believe the order is legally and factually appropriate, so i think identify got to leave -- i've got to leave it there. >> i appreciate that. we'll wait for the court filing to see what their claims may be, and i yield back, mr. chair. >> mr. carson. >> thank you, mr. chair. director comey, without getting into classified territory, can you describe how the fbi makes a determination to determine which communities warrant proactive outreach and engagement to prevent radicalization and recruitment under the cbe umbrella? >> i think so. any community where either we or the community believe there is a risk of people turning towards violence, and sometimes that's an ethnic commitment, an immigrant community, sometimes it's a community with a particular flavor of anti-government sentiments,
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especially young people who might turn to violence. there we try and engage with folks in that community. >> is the intention to include more of a holistic approach by bringing in not only the community leaders, but educators within the community, psychologists within the community? >> yes. >> yeah. to prevent the kind of self-radicalization that's taking place? >> yes, sir. it has to be an entire community thing. it can't be a law enforcement thing, can't be a religious institution thing. it's got to be parents and educators and physicians and and law enforcement and social workers. so one of the things the bureau is trying to do as part of our countering violent extremism effort is bring together those talented people from all different perspectives in the community. so especially if we encounter a young person who hasn't yet moved to the place where we're going to have to lock them up, that there's the prospect of a group coming together and redirecting that person. but it has to be a whole lot of folks besides us.
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>> has the citizens academy been an effective tool in creating some kind of buy-in with those communities? >> yes. the citizens academy, whiching, congressman, you know well is an effort the fbi runs in all 56 of our field offices. we invite in people from all walks of life to spend time getting to know how we do our work, ask us hard questions and then stay involved with us to give us feedback on how how we're doing and to connect us to all different parts of the community. so it's a vital tool. >> thank you. mr. chairman, i yield back. >> dr. wenstrup's recognized. >> thank you, mr. chairman. and i do want to thank all of you for being here. and as dr. heck said, all those that you represent, the work that you do. i have a question more for later in closed session, but one thing that i think we can't ignore as we sit here on the side of congress, you know, admiral mullen spoke years ago about our debt being a threat to our national security. and so i want to ask you,
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director clapper, you know, as we face all these increased exterrible threats to our -- external threats to our nation, how does this basically internal threat of our debt affect your capabilities and the work that you do? >> well, it affects usto the extent that that has inhibitionen our resources, meaning our funding -- inhibition on our resources, meaning our funding. so that's why, you know, we've been very concerned about the impacts of sequestration which we're not through yet. so in that respect, it, you know, it is a concern. i have to say that thanks to the congress, we've done reasonably well in our funding requests, and i hope the same is true in 2017. certainly i'd just say as a citizen i do worry about our
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debt and -- as a country. i worry about it from that respect. >> well, in the line of national security, i think that we need to continue to address your needs, and it's helpful to us when you discuss whether you have the appropriate wherewithal to do your job as we make decisions here. i thank you for that input, and i yield back. >> gentleman yields back. mr. stewart is recognized. >> thank you, mr. chairman. and to you gentlemen, i express my appreciation and gratitude and sincerely on behalf of millions of americans who may or may not recognize the really wonderful work that your organizations do and the many dedicated men and women who sacrifice to do that, thank you. i would like to -- i suppose i could ask this question to nearly all of you, although, director brennan and perhaps mr. comey as well, you might be best suited although,
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mr. ledgeett, i'd appreciate your conversation as well. in this conversation with apple which is taking a fair amount of time here, the longer term problem -- and we've had opportunities to talk about this with all of you -- is the prospect of within a few short years we may be, you know, to use the phrase dark which doesn't allow us to use law enforcement mechanisms or national security tools. and be i'm wondering if you would elaborate on what that really means. could we help the american people understand that the encryption which we may not control, they may not be u.s. companies that are developing this encryption that's becoming widely available, and how that's going to make it more difficult for you to keep us, as we expect, to keep the american people safe? director comey, yes. >> this is a problem that all of us in the intelligence community have been talking about, to sound an alarm, because we see increasingly in our national
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security work and the bureau has significant criminal investigation responsibilities, in situations where we cannot with lawful court orders read the communications of terrorists, gang bangers, pedophiles, all different kinds of bad people and with, again, lawful court orders and search warrants, we're increasingly unable to make that search warrant effective. and enter a device with a court's permission and get what's on there. that affects all of our work. you've seen it. this committee, obviously, knows a lot about it most prominently on the counterterrorism side with isil which is trying to motivate people to east come story -- either come to their so-called caliphate or kill within the united states. and when they find them, they move them to a mobile app that we can't read with court orders. that is a big problem for us. there are substitutes around the edgings of it. people talk about metadata which
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is information about who contacted whom. that's useful, but it's no substitute for knowing what they're talking about. sometimes physical surveillance is useful, sometimes informants are useful, but there really is no substitute. anybody who knows our work will tell you this, there's no substitute for having a judge be able to order access to the content. so our job is not to tell the american people what to do about it, we're just here to tell you that that darkness is going to grow and grow and grow and change our world. >> director men brennan -- brennan, would you or mr. ledgett acknowledge that and how to that affects that? >> i'll start and i know rick will have some comments. one of the most important missions for cia is the collection of foreign intelligence. and increasingly, because of the terrorist threat we face, we need to get that intelligence that resides within intelligence organizations. the ability of these terrorists to communicate with one another
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in manners that make it very difficult for us to uncover, it has been increasing, and it is very frustrating but also very concerning pause they follow -- because they follow the press, they follow these discussions. they are very sophisticated. a lot of them have grown up in an era of technological revolution, and they've been able to take advantage of that. it has made our challenges very difficult. so from my perspective on the foreign intelligence front, the more intelligence that we can obtain through our lawful authorities, the better able we are to protect the american people. >> yes. thank you, sir. i agree with both director comey and director brennan on the importance of this and the impact it has. we track when our foreign intelligence targets talk about the communication -- or the security of their communications, and we see a growing number of them because
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of the information that's in the press about the value of encryption moving towards that in a way that inhibits our ability to understand what they're doing. and what director comey said about the difference between metaday and content is huge -- metadata and content is hugely important and often overlooked. it's one thing to know that a person is in a particular place at a particular time, it's something else to understanding and defeating terrorist plots to know what the target is, what the timing is, how the attack is going to develop. >> well, and in conclusion, i would just say this: i appreciate your conversation with apple, and director comey, you, i think, stated it well. this is a conversation the i think the american people need to have. we talked a little bit about 702 and, you know, the pathway forward with that as well. but it seems to me that technologically some of these conversations may become moot because we may not have access to that information regardless just because technology makes it impossible for us in the future. and how we grapple with that is
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something i think we should consider as well. mr. chairman, thank you, and i yield back. >> gentleman yields back. i want to thank the panel for the open session portion of the worldwide threats hearing. we will hopefully reconvene about 10:30 down in the classified spaces. [inaudible conversations]
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[inaudible conversations] [inaudible conversations] >> new jersey governor chris christie has endorsed donald trump in the republican race for president. former republican presidential candidate christie joined mr. trump at a fort worth, texas, news conference and praised him as the person who will go to washington, d.c. and be able to absolutely turn the place around.
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as c-span's capitol hill producer craig kaplan points out, governor christie endorsed mitt romney for the presidential nomination in 2011. south carolina holds its democratic primary tomorrow x today democratic presidential candidate hillary clinton is holding a get out the vote rally. c-span will have live coverage of her event at south carolina state university in orangeburg this afternoon at 4:45 p.m. eastern. and her opponent for the democratic presidential nomination, vermont senator bernie sanders, is also in orangeburg this afternoon. he's holding a rally at 5:30 eastern here on c-span2. >> c-span's campaign 2016 is taking you on the road to the white house, and saturday is the south carolina democratic primary. our live coverage begins at 7:30 p.m. eastern with election results and speeches from the
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democratic candidates, hillary clinton and bernie sanders. we'll also get your reaction through your phone calls and tweets. join us saturday for live coverage on c-span, c-span radio and >> booktv has 48 hours of nonfiction books and authors every weekend on c-span2. here are some of the programs to watch for this weekend. saturday at 7:30 p.m. eastern, david randall of the national association of scholars talks about some of the books incoming college freshmen are asked to read before the first day of class. on sunday night at 9 on "after words," former nsa and cia director michael hayden gives an inside look at national security in his book, "playing to the edge: american intelligence in the age of terror." he's interviewed by james woolsey, former cia director in the clinton administration. >> metadata is literally the outside of the envelope for electronic communication. and as you said, american law enforcement traditionally has
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been able to look at the outside of the envelope. the supreme court decides that the fact of your -- decided that the fact of your phone call, who you could, when, for how long, also was essentialingly the outside of the enyes lope. >> watch booktv all weekend every weekend on c-span2. television for serious readers. >> senate democrats held a hearing this week on republicans' refusal to have any confirmation hearings for president obama's nominee to replace supreme court justice antonin scalia. president obama has said he would nominate somebody and let the american people decide if they're qualified. this event with senate democrats is about an hour and ten minutes. [inaudible conversations] >> okay. welcome, everyone. we're going to have a number of senators coming, but we want to
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hear from all of you, and so i want to thank you for being here. our four guests today, thank you so much. and by this impressive group of legal scholars to talk about one of the senate's most consequential constitutional duties, and that is to advise and consent in the appointment of nominees to the united states supreme court. as one of the three pillars of our government, we value the court's distinctive insulation from public opinion. the justices commit themselves to the law and to the constitution, and what we're here to talk about today is what that constitution says. i figure you guys can help us with that. and it's pretty plain language, as well as what history has shown us in terms of how these open vacancies have been handled in the past. we, of course, our thoughts and prayers are with the family of justice scalia and his friends and colleagues, one of whom is
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my former professor, so now i get to ask him questions, which i like. jeff stone from the university of chicago who worked with him as a fellow faculty member. was left open for a year. you have to go back to the time before we had cars and planes and washing machines. we also look at the current justices on the court and the fact that since 1975, the average time from the time the person is nominated we've been joined by a law professor herself, senator warren, as well
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as senator cardin. you have to go back when you go back to these nominees it is taking an average of 67 days i like to say just two months to get this done. get some of our colleagues on the other side of the aisle are talking about holding this up for well over a year for two terms of the court and we leave this is unprecedented and is against the words of the constitution. so with that, i know we are going to be joined by some of my colleagues but since you are here, senator card and if you want to say a few words and then the witnesses. >> thank you for doing this. we don't usually do this to have this type of reform, but what is happening here seems to be extremely disturbing and unusual. i look forward to the observations of the panel. i won't be able to stay for the
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full presentation because they have some conflicts this afternoon but i can assure you that we will be following your testimony. and i say that because our system of government depends upon the three branches of government and carrying out the constitutional responsibilities to allow the system for work. the president makes the appointments to the court and confirms and rejects those employment and is independent. that is the framework of the constitution. it seems to me incredible we seem to be within the bounds of discretion for the senate to say we are not going to take up the nominee. we are interested in hearing from the panel for business as usual in the political environment where is this
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something fundamental that really attacks the basic structure of the government with respect to the three branches? >> we will hear from the senator and i appreciate senator franken and senator blumenthal and we will get to the witnesses and questions. >> thank you for sitting on the republican side. i'm hoping it will wear off. [laughter] you mean on them. >> but there shouldn't be a republican and democratic side on this. i want to thank you for pulling this together. as senator cardin said, it is unusual for us to do something like this, but it's important and we will be in and out because we have other hearings this afternoon that were scheduled, but it's important to be here. senator mcconnell was right when he said of the american people should have a voice in the
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selection of the next supreme court justice. and in fact, they did when president obama won the election in 2005 by 5 million votes. article two section two of the constitution says the president the president of the united states nominates justices to the screen court with the advice and consent of the senate. i cannot find the clause that says it is the turn of the democratic president. make no mistake the republican senate approach to this is completely unprecedented. the senate has been holding hearings since 1916 on screen court justices and i just want to go over the numbers varied nine justices were confirmed with an 11 day is coming no hearing at all. one justice withdrew a further hearing and all others, every single supreme court nominee sent up by the president, every
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single one received a hearing in the united states senate over the past 100 years every single pending nominee has a vacant seat on the supreme court, every single one has received a vote on the floor of the united states senate. president obama is still president of the united states of america. if some senators don't like the person but president obama dominates, then they can make their case to the american people that vote no. but it would be irresponsible with senate republicans to preemptively paralyze the nomination process that is laid out in the constitution. senate republicans took an oath just like senate democrats did abandoning the duties they swore to uphold to threaten the
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constitution and democracy itself. it would also prove that all this republican talk about loving the constitution is just that. talk and nothing more. the president is currently reviewing candidates and making a decision about who to nominate he is doing his job and once he and i meet someone, the senate should do its job, the same job it has been doing for over a century because that's what the american people sent us here to do. >> thank you so much, senator warren. we will hear first from professor stone who i took classes from, we will hear from them. cohan and then -- that was a thumbs-up in case -- [laughter] and then i think that we had planned to hear from senator schumer and senator durbin so we
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are going to do that sort of intermittently but we will start with professor stone. >> thanks for inviting me here. in a recent piece in the "washington post" by benjamin proclaimed that the only rule that now governs the constitutional process for the justice is, quote of the law of the jungle there are no rules. this is profoundly misleading and dangerous. if taken seriously and acted upon, this misconception that underlined 225 years from well-settled traditions and through the supreme court nomination process into the state of partisan chaos it would damage both the rule of law and the supreme court as an institution. in fact when we take a deep breath and examined the performance of the senate overtime is clear if the senate to be first to these matters as long as the president puts forth nominees to include a qualified and reasonably moderate interview. this has been the outcome of every single nomination in the
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last 60 years and as far as i can discern in virtually every nomination in history. moreover this is true even when the senate is controlled by the opposing party even when the nominee's confirmation is elected to have an impact on the court and even in the final year of the president's term. when all is said and done the nominees are qualified and moderate are confirmed, period. so what are the rules or the traditions that govern the process? at the outset it is worth noting that president has confirmed 91% of the supreme court nominees it has considered and in the last 60 years the senate confirmed 89% of the nominees that it has considered. so despite the handwringing in the process of the rules there has been no change over time. of course not every member of the senate votes to confirm every nominee. so why do senators sometimes vote against the confirmation? one factor is partisanship. senators are likely to confirm the nominations made by the
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president in their own party and nominations made by a president in the opposing party but it's important to note in the last 60 years members voted 60% of the time to confirm nominations made by the president in the opposing party and even when the opposing party controls the senate, the senate voted to confirm e.% of the supreme court nominations. senators also take the nominee's qualifications into account. the last 60 years, nominees perceived as qualified such as antonin scalia and ruth pater ginzburg received an average of 97% of the votes were as nominees perceived as less cool type such as byron white and byron nico suter received 61%. they take the nominees judicial philosophy into account. the last 60 years nominees perceived as having moderate views such as sandra day o'connor and stephen breyer received 96% whereas nominees perceived as having more strongly ideological views whether on the right or left such as thurgood marshall and william rehnquist received an
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average of 77% of the vote. so what does this tell us? in the last 60 years, 19 of 20 most the 20 most moderate supreme court nominations have been confirmed in the senate this includes everyone from sotomayor. clinton was defeated because of the even more impressive when the senate was controlled by the opposing party in the last 60 years every one of the eight nominees was perceived to be both qualified and reasonably moderate and easily confirmed. this includes charles whitaker, harriet vlad, john paul stevens, anthony kennedy and david souter. you might notify the way that every one of these eight justices was nominated by the republican president and confirmed by the senate controlled by the democrats. despite all the fuss and fury over the supreme court confirmation process the plain and simple fact is the senate always puts forth nominees for
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the qualified and more reasonably moderate in their views. this approach has major benefits to the nation. it reduces potential risk of confirmation stalemate and reduces the risk of politicizing the judiciary and more or less averages out over time. in short this is a sensible pragmatic approach that has served the nation well. republicans desire to obstruct the understandable as a matter of partisan self-interest such obstruction would set a disastrous precedent for the future. if the president president nominates a highly qualified moderate nominee for senate republicans should do their jobs as have done throughout history and should confirm that nominee. let me offer a closing thought. the republican members of the judiciary committee announced they will not consider any nominee put forth by the nations duly elected president no matter how qualified and no matter how moderate the candidate might be. this is unconscionable.
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if they carry this threat it will be directly incompatible in the response abilities of the constitution. it would be an action in the southern manifesto. the senate republicans follow through on the threat and from this day forward they would have been right the supreme court confirmation process will be lawless and the law of the jungle. it's a legacy that they will come to regret. thank you. >> thank you very much, professor, from the university of north carolina chapel hill thank you for joining us. >> thank you for the opportunity to be here it is always a great privilege for someone who teaches about the constitution in the process to and the process to be able to talk to you about the united states constitution. it's a special honor to appear today along with my teacher and mentor the former dean geoffrey
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stone. you have my written statement that i hope speaks for itself and my remarks i will limit myself to three observations. to begin with, it isn't a hard question to determine how and under what conditions the constitution allocates power over his green card appointments. it empowers the president to nominate and the senate to give its consent on the nominations to the u.s. in court. the constitution and the duties to nominate and consider the nominations remain fully in effect at all times. the constitution provides no exception. it doesn't provide for its suspension or make exceptions depending on the timing of the nomination. the president and the senate each maintain its respective authority over supreme court appointments at all times regardless of what is happening in the country regardless whether there's a civil war in a depressed economy, presidential election or any other circumstance. second, we have heard much about historical practices in the
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second court nomination though i think they are limited relevance. to be sure, there is no tradition or precedent for the senate to declare automatically that for almost a year it will not entertain or consider a presidential nomination to the united states supreme court. the so-called thurmond rule is not a rule it reflects how one senator felt at different times in his career about what he thought the senate should do in presidential years of the vacancies on the supreme court. but it is not a constitutional rule and it has not been followed ever with respect to supreme court nominations made in the years. i can think of at least 13 confirmations that occurred involving the supreme court three of which involve the justice nominations and i might even point out that today is the anniversary of mulberry versus madison written by chief justice marshall was appointed by the way elaine.
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the most important thing to remember is they do not bind this institution. they do not rob you of your discussion or authority. they are not part of your oath. they are suggestions of how to use the power that do not or direct mandate how you should use your power. what then should guide you in your colonies? my own belief based on the lifetime of studying the institution and the constitution is that you should consider what kind of president you are establishing. the choice to shut down the nomination process in the appointment process as well for nearly a year hasn't grounded without the support of the position we know what guides it raw partisanship, the course possible basis for governmental action. we are told the senate will lead to the next election but what
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about the next several, do they still won't have effect committed and they give us a president and a presumably working senate? are those now null and void? the answer is obvious. the response for the leaders we have now, and we do not expect them to stop governing simply because it is an election year. allow me to put my last point differently. i studied the constitution in particular the senate in either the honor of hoping for mr. most recent addition of the casebook which i co- edited with the judge. what is the lesson if the choice is not to govern to teach my students? what should they take away from all of this? they will find no principle at work for there is none. the constitution doesn't cease to take effect in the civil war or even during world war. it wouldn't suspended during the great depression created through all those times and more in the second court appointments have
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been made in spite of how turbulence they may have been. the constitution recognizes no timeout, no suspension for any reason. if the leaders could lead to come and they did during more turbulent times than these, then they can rise to the occasion. the senate's job is and always has been to govern. >> thank you so much. we have been joined by senator menendez of new jersey. senator pero hawaii. so, thank you. next, senator schumer before he had to leave was going to say a few words. okay. he is differing to you. so, we welcome you. he is for intellectual life and the professor at columbia law. i think that we need a vice dean.
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that's why i included the title. thank you so much, professor. >> let me know if you need me to step in. >> first about the lack of historical precedent refusing to consider a nominee for the supreme court vacancy and second about the consequences of the action on the nominee during the presidency and third, about the nature of the constitutional duty to hold hearings into the nominee to fill the vacancy on the supreme court. in brief, the senate outright refusal to consider the nominee to fill a supreme curt vacancy is unprecedented in the modern history of this country and creating the legal uncertainty throughout the country. first historical precedent. in the last 135 years dating back to 1981, no president has been reduced to vote on a nominee for the open seat in the court. over that time span seven justices have been nominated and confirmed during presidential
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election years and one was was nominated and confirmed in the period between the election and inauguration of the new president. we heard a lot of talk about the failed election for the chief justice for the associate justice. at two points they were mentioned first unlike the situation we have now, there was no vacancy on the court at the time. the chief justice nomination wasn't to be made effective until the successor was qualified. second, the senate did hold seven days of hearings on the nomination and investigated on its merits during the summer before the election. that episode is not a president for failure to hold a hearing for the vacancy that arises nine months before. when you go back to 81 and earlier, we see an additional pattern with mentioning. in cases involving vacancies in vacancies in the court, the senate has never been fused to act on a circuit court nominee but by the popularly elected president. five presidents put forth supreme court nominees so they
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can fail to receive action in the senate. john quincy adams, john tyler, philip, johnson and rutherford b. hayes. none of them were popularly elected as president. when the people have spoken the senate has always listened when it comes to filling the open second court seats. second point, what are the consequences of inaction? one of the functions is the result of the authority in the lower court and therefore to bring the uniformity to federal law across the land. leading an eight person court for an extended period of time undermines that function. lower courts, governmental actors, corporations and private individuals look to the court for guidance about what the law is. there is a likelihood of the votes closely contended the cases on the eight-member court. the vote affirms the decision of the lower court that does not set a precedent for the rest of the country. moreover, the prospect of the division by 12 effect the
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decision whether to grant in the first place. thereby leaving significant conflicts in the lower courts on result. this uncertainty will likely last for a long time based on the length of recent confirmation hearings we should not expect the nominee in time to participate in the 2016-17 term of the court. he or she would not hear the first case until october of 2017, 20 months after justice scalia's death. as the senate has a constitutional duty? i believe it does for constitutional power to achieve the constitution's purpose is the preamble tells us one of the purposes is to establish justice. a vacancy undermines the purpose and the court is the only body subject to executive appointments the constitution provides for directly reflecting the framers deep concern over the lack of the federal judiciary under the articles of confederation.
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whenever one thinks of leaving other appointments vacant the constitution treats the supreme court differently. when we are unsure what the constitution requires we look to establish conventions every as justice scalia once said, the governmental practice has been open, widespread and unchallenged in the republic practice should guide the interpretation of the indigenous constitutional provision. in light of the long-standing tradition of giving the due consideration to the president's nominee to fill vacancies in the court, the senate's constitutional responsibility here is clear. thank you. >> thank you professor. we have also been joined by senator merkley of oregon and senator cantwell. if you are the professor at georgetown -- you had the least out of distance. [laughter] >> and i traveled the shortest way to come here today.
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it's wonderful to see the senate and that you are doing this this afternoon. i want to talk about this unprecedented developments framework in the constitution. this event dramatizes the past eight years how basically the party of no is undermining the very structure of the democracy. the proper functioning of the separation of powers between the president and the congress has been deeply damaged in a two-dimensional way caused by the congressional republican party's disrespect for democracy and its reflective negativity about legislation. this has gone on from the moment of the inauguration and has contributed significantly to the current public disgust about the
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functioning of the government. now, for the first time in history, we have a three way breakdown in the separation of power. it is a problem and it is a constitutional problem in the structural sense. the nomination confirmation of the screen court of justice is one of the most important responsibilities the other branches have been the constitutional structure. it's to strike a blow at the heart of the idea of the checks and balances that is basic to the framework. suppose the state reviews to have a structure of public education from a supposed the city refuses to have a police department. we believe it is fundamental to our democracy to have a school system and the police department probably not the kind of dispute they would take on but we nonetheless think of it as an
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informative duty that is crucial in the constitutional framework. here the affirmative obligation is explicit. the responsibility to advise and consent is actually written in the constitution. and as senator warren said earlier, there is no exception for the election years when the supreme court seat as the subject it is the responsibility that is at the very core of the constitutional framework. it's at the peak of importance to the functioning of our democracy. this basic duty has almost always been carried out with acceptance and agreement without any question. there've been 24 instances in which the president has nominated a supreme court justice in the last year. it's been the understanding of both parties throughout our
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history the republican party is on a path to violate that agreement. republican senators and others are already on the way to violating a fundamental tenet of the constitutional architecture. we've been watching the undermining of the democratic institution for the last eight years and it's on the way to happening again. the republicans have taken a dangerous step towards the unprecedented violation of the separation of powers if they continue to refuse to take even the tiniest step towards carrying out their constitutionally required responsibility of advice and consent. the death of the justice has unexpectedly brought ibb does a constructive event for the nation. the debate about the role and the direction of the work of the court, the debate of the very meaning of the constitution
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should be undertaken in a matter of dignity and respect. the reaction of the republican party up until party up until now takes us in the opposite direction. >> thank you very much. senator schumer. >> i would like to ask a question. thank you very much for your testimony. first question i have, you are all scholars. has there been any other time in the nations history something is damaging to the future of the court, the balance of powers, the structure of this country as it relates to the court is what is happening now? >> the plan raised some serious issues but i think that this is even more defiant of the constitution then that was. >> anyone else?
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>> we certainly had some moments in the history. it's hard to say what the worst would be that --. we are looking at grand moments in the history of the law. we're looking at moments if i may use that phrase. it's certainly occurred in history that i think the very deliberate choice not to do something is a self unprecedented. even in the past when things have gotten bad, there's only been one other time when people voluntarily abandoned being represented in congress and that was during civil war. and this is not the civil war. even then the constitution remained in effect and i think it still remains in effect. >> the only thing i would add is one of the things that is
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worrisome about this as the professor said this has crossed a line that is going to be hard to walk back in the future. it's one thing politics plays a role in there's a nomination to the court and people say things that they may not have wanted on the other side and that happens but this is something to backtrack on. if you say one year is not enough time, why not two years or three years or abdicate responsibility or say we don't agree with the policies and we are not going to approve any nomination this i think ross crosses a line that hasn't been crossed yet. >> it could extend down to the circuit court pretty easily as well. >> i would add as i said in my statement that there is just a different context as well as everything that has been set which is the context of the
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behavior of the republican party over the last eight years. this is heading a new low. hitting a new low. >> let me ask you this question since right now if the republicans get their way i don't think it will happen. there will be enough public pressure on them in what the constitution says average americans don't like what's happening here. they would sum up the view to do the job not being quite as your statements are right to the point. but let's say unfortunately we don't get a new justice this year. i think they are going to have to back off as they have on so many other issues where the right sort of control them. tell us about the gridlock that would result not just in the supreme court did in the lower court and how it affects commerce and the civil rights
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and all the other issues the supreme court has as its domain and that is my last question so maybe you can take some time answering it. >> i think the professor did a good job talking about that in a statement so the statement so i don't want to preempt them here but i think it certainly produces a circumstance that which the court itself becomes paralyzed it is incapable of providing the leadership that has to make the court system work. >> go ahead, professor. >> in this term alone there are cases involving religious freedoms, free speech, voting rights, executive power, abortion rights, labor rights, any number of cases that don't get media attention or the court has a docket of 70 or 80 cases a year.
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there is an authority among lower courts into that degree of uncertainty means that the law is different than in other parts of the country. but in the lower courts, the function of the court is too evil for this kind of divisions, so leaving the potential for the vote on the court pinging over the court for two terms means that it really can't do its job in a way that not having a single judge in the lower court might be different. hispanic this is my last question. might this have an effect on jobs and growth and companies and economic interests waiting for a decision and don't get them in terms of the holdup and they don't do the kind of things they might have done to move forward in terms of creating jobs for instance there's probably lots of issues to various companies and groups are interested in that we haven't even heard about. >> we talk about the investment into few don't do what the law
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is in the entire country it is hard to make sound decisions about how to move your business. >> so it could hurt us in terms of job growth and creation. >> we have been joined by senator murphy of connecticut and also senator stabenow. i just want to ask two questions here and then i'm going to move on to my colleague senator franken and we will stay in the order that we came here. so the constitution says that the president shall nominate with the advice and consent of the senate shall appoint a few other judges in the supreme court. it seems to me when you see the word in other parts of the constitution and article two section two the president shall be the commander in chief that is pretty clear.
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the amendment says the terms of the president and vice president shall on the 20th day of january entities are some examples. if you could just comment about whether or not you think that this language is clear this would be called a softball question about whether or not you think that the language is clear because it seems clear that you are the expert so -- >> i was speaking to that. so yes is my answer but i would go on to say as an underlining point, this particular example of advice and consent to which the word is used is the most paramount of the application so it's not only a duty in all
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years with some exceptions but it's in relation to the whole fundamental structure you've heard and we all know about the implications if it stays for a period of time and the implications of the precedent for the future. but just to give the democratic yes -- yesterday couldn't be more in this instance. >> i have no doubt if justice scalia who asked this question and was behind a screen so didn't know whether it was republicans or democrats on either side, i am 100% certain he would say chow means shall. >> if i may add just one more. >> it's takes on even greater importance over time because as the country itself it takes on
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increasing importance ensuring the government is functional. we want a fully functional court by ignoring the actual meaning of the word we are making it effective. >> one question on one issue for death penalty cases that come before the courts last review what is going to happen with those? >> the same thing that happens. as it turns out whichever way it ends up the court can't come to a decision it's divided in that way but there've been a lot of times it is for-for if there are different decisions in different circuits. >> on the individual death penalty appeal. >> yes insofar as whatever the
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decision is whether there's a difference of opinion among the circuits, it leads to conflict in place and it doesn't resolve it. that is one of the results. there is a result if the court is deadlocked then the lower court stays as with the law which in terms of the questioned the senator asked, there are going to be a lot of times when people who are major stakeholders in the economy and in the public sector want a full decision. >> okay. senator. >> i agree with the professor and others who are saying that this presents a dangerous
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precedent because what happens next time is 11 months or 12 months or 13 months or is it within six months or 11? and obviously there's nothing in there is nothing in the constitution that says anything other than it's the president's job, this is his job, our job is to provide advice and consent it seems pretty clear cut. also scientists tell us that the president can be president for almost 11 more months. and it seems arbitrary, anything seems arbitrary other than what is in the constitution. it's sort of ironic obviously our hearts go out to justice
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scalia's family, and i may not have agreed with him on a lot of stuff we didn't agree on. i thought he was very funny, if that means anything. but he was so devoted to the constitution and to the actual text of the constitution. it seems very clear. let me ask you this question. if the majority of leader wants to change the constitution to say the president can't nominate a supreme court justice say 11 months would be weird but could make it a year if he wanted to 11 months but would he have to do, he would have to get both
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houses and then three fifths of the state, and then three fifths of the state. could he do that now? would that be the constitutional way of approaching this? >> he does have that. we want everyone to understand he does have a constitutional way to approach this. and i would suggest he try that. >> that would be the way to do it. the fact is the constitution i don't that constitution i don't think is the opportunity to not govern. he could amend it to say -- >> then we would follow it. >> is it consistent to say that senators in the sixth year of their term probably shouldn't be the chairman of the committee?
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they shouldn't be able to vote on the supreme court nominees. >> that is consistent with what the majority leader is saying. >> all i can say is that would be a level that they do not typically address but if it were properly done, then that would be the constitutional law. >> i just wanted to know that. thank you. my senior senator. thank you. senator blumenthal from connecticut and himself a former attorney general. thank you. thank you for convening this gathering and to each of you for being here. we are happy that we are the ones asking the questions and we are not the class subject to this method.
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i want to thank you for your scholarship and purpose in various other capacities and ask a question that i think reflects as it is very unappreciated. it often makes decisions about what cases to take and not just how it decides but what cases to take which usually if the rules are still the same it would require four votes. so, the eight-member court also can change the agenda of the court by refusing to take the case even with his conflicts in the circuit, let alone to put aside the decisions that may be
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gridlocked in the very agenda and a docket of the court would be changed. maybe one or more of you can speak to that issue. >> sure. as it stands with the court, you could have if you have five members of the course of what to do the case, who don't want to hear a case, i'm sorry, that's not enough because of the rule that you mentioned. but with a court of eight, five members can present a case from being heard by the court. and so, not only do you have the prospect of a case where the court actually takes being divided for-for but few have the prospect of the cases the court would have taken if it were a full strength. it essentially doubles down on the legal uncertainty that this
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refusal causes. the one thing among other important tasks, one of the things the court does is provide some certainty and resolution so people can plan their businesses and their lives whether they like the decision or not. coming to the senator's point, the lack of certainty and keep the ability to plan to count on certain rights. i think that's one of the reasons why the founders created a court with the independence and impartiality that it is supposed to have and i think that what we are seeing is the threat of kind of gridlock and
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what this obstruction is some is doing is to epitomize that partisan morass that people have come to detest and dragging the court down into it and damaging the court itself because at the end of the day, as we all know, the court has no armies or police force, it depends on its credibility. it's still trust, faith, credibility, and if the people in the united states continue to see the court as simply another bunch of politicians, it will be diminished and ultimately damaged, so thank you. >> thank you very much. senator in the judiciary committee for a number of years, and she's now on the intelligence committee but we
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hope she comes back at some point. we've also been joined by senator casey of pennsylvania. >> thank you to all of you for being here. you have made it clear in this instance in terms of the responsibility of the president and the senate i was starting to think of an outrageous situation maybe one would be that if the senate were to tell a state that the vacancy that you can't fill your vacancy for over a year too bad. i think that would raise a huge outcry in that state and any other state. i'm just wondering are the republicans violating the constitution. let's say they want to stick with their position, are they violating the constitution? >> i would say they are violating the constitution if they behave in a way that they
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said. they have a responsibility, they have a fundamental responsibility both based on the text and based on the 225 years of position to honestly consider and debate and judge whether the president's nominee is someone qualified to be on the court. >> do you all agree that if they don't change their position they would be violating the constitution because i have another follow-up after that. >> i do, senator. that was the argument of my remarks. >> what is the remedy when a body violates the constitution? >> guantánamo. [laughter] >> really this is a serious question. what can we do? can the whole body be impeached? >> i think that remedy in the united states in that particular situation is to face the voters.
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>> let me just add -- >> that is a strange remedy for the violation in of the constitution. >> in this context, to go simple or, there are things we think violates the constitution that you can take to court. the former colleague wrote a perfect book about the second bill of rights based on president roosevelt's last inaugural address in 1944 and it's about constitutional stature if you will that are not enforceable in any way. so sometimes if you -- there are ways in which you know better than i exactly what the body has the power to do to eject a member and there has been litigation on that, but that's a different kind of violation.
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the point is coming and i think it's the point of the conversation today which is to say to the american people what's going on here in all respects for the lack of the historical precedent but on top of that it's a question for the public to understand that they have a constitutional duty they are violating. >> there is no constitutional remedy. it's important to say if someone has the political power to do something it doesn't mean it's consistent to draw in analogy with say the house were to be working on an appropriations bill and the senate were to say no matter the content of the bill or what it appropriates minitour doesn't we won't continue to do whatsoever.
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we wouldn't say we've made a decision to appropriate at zero we would say they are not doing their job fulfilling the responsibilities of that's the analogy that i withdraw. maybe think of a different analogy since that's our job. say you create a course of nine seats and there is a vacant seat into the president chooses not to make a nomination what is the remedy then? what you would you say your job is to enforce the law you are in charge of ministering to the law and many other things you need to make a nomination? i think that would be quite problematic and i think i could imagine a senate saying, for that matter even the house saying you might have just violated your oath because you are supposed to be enforcing the constitution that needs following the law and nominating somebody. >> that's the difference between the legislative branch into the
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president he gets into a long conversation about what constitutes high crimes and misdemeanors but at least there is a remedy that you could try to impeach. >> and there is a law so that is a federal law that's being potentially violated right now. >> thank you senator merkley. >> i appreciate you all sharing your expertise. i believe, professor is causing your written testimony i'm not sure if you gave it or not the supreme court is a major innovation in the constitution as compared to what went before it and in that regard it was established so that it would be independent of congress to
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change the law and put it out of action and in that context it certainly wasn't anticipated the congress would be able to use advice and consent power to the court out of action. i've gone back and read the that hamilton 76 federalist paper on the topic but is there any sense anyone envisioned that congress would use or the senate would use its advice and consent power to undermine the ability of the court function? >> the short answer to that is probably no. but let me just again underscore the fact what we are looking at is unprecedented even in the worst of times when it's been oppositional gives people a hearing into tries to consider the nomination but this is the refusal to consider anything so it's the extremity of the
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refusal. >> advising consent of the time the constitution was drafted david could drop dead what was the relevant criteria in the statement that we have overtime developed a clear and unanimously applied understanding of what that means that if every single nominee who is understood to be qualified and moderate has been confirmed, period no exceptions. with the senate is going to basically do is if you nominate someone who's unqualified we will not confirm them. you nominate someone off the charts ideologically we might not confirm them but if you nominate someone who is reasonably moderate and qualified, we will, period. that's become the meaning and it's a good meaning. certainly hamilton referred to the standard of unfit character, and that is it made sense to invest power because there was a debate for the appointment of power in the executive order in the assembly as it was referred
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to in the conversation was it made a lot more sense to give it to a single person because of accountability and judgment it feels to be struck. there are friends and families and creative individuals. then the senate would serve as a check on that's about as a standard that was discussed of an unfit character. it is any kind of foundation if you will for us to exercise that context of an egregious nomination where some individual either is unfit by experience or character is there any that can reasonably say it's exercising its responsibilities? >> people that are extreme
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ideologically who may be qualified in a technical sense also fit within that description that is exactly what the senate has done for 225 years. they figured out that makes sense as the best approach to work out the balance between the president and the senate which is there to serve as a check for irresponsible nominations. >> that doesn't include refusing to even consider the nomination. >> the senator was to evaluate particular nominees, not to prevent the process from happening at all. you won't see anything in the framers or the federalist suggesting that the senate can prevent the process from happening. >> is it not the balance -- i see that i'm over my time -- >> if you want to ask one more question and then we will go to senator casey. >> thank you for the courtesy
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madame chair. specifically, we have a constitution drafted in the balance of powers between the three branches, but if the senate uses its advice and consent responsibility to either undermine the executive by refusing to fill the key positions are undermine the courts by refusing to hold a conversation and vote on the court nominees, isn't the senate deeply abusing its advice and consent power which was never designed to create an imbalance of power if you will, which the commercial branch has the which is systematically undermined the other two? >> i said in my statement, senator, that we have had eight years of two-way failure of separation of power, and this is the first time in history as well as the first time by this group of people to have a three-way destruction of separation of powers.
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i might also add one additional point, which is it probably isn't that hard to imagine moments in the past when the senate has perhaps abused its power. but the critical thing as is that is no reason to follow it. if that actually did happen, if there were those abuses in the past that would make the weakest possible ever. it is to give the hearing not to simply decide to take a holiday. >> thank you. >> very good. thank you. senator casey last but not least. >> thank you. i appreciate you calling this hearing. it's a distinguished panel and we are grateful for the testimony. the presentation of which i missed in my question that might elicit a response that is already in the testimony. so if you are responding by way of reader nation, i apologize
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for that that round but around here it does help to repeat ourselves seeing this help us do that i'm particularly stunned by this position the republican senators have taken this is my tenth year in the senate and i thought i had seen it all it is a stunning dereliction of duty i don't know how else to say it. if it's not the tierney of ideology, it's the tierney of politics. i am not sure that they are doing it for purely ideological reasons or political reasons or both, but it's too radical and misguided and bad for the country. and it seems like the same thinking that resulted in the government shut down back in 2013 when most people thought we come to the precipice and not fall into the abyss, and we did
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because you had one party in the extreme group that said let's shut the government down and that's what happened this may not be a shutdown in the supreme court but it's certainly a partial shutdown or at least something that inhibits the court from doing whatever that must. i guess one thing that i am hung up on coming at you may have addressed this already in the questions in the testimony that the impact of 4-for and what effect you think that has altered its prudence, setting aside the obvious effect it has on the confidence in measurements like that or assessments like that but just on jurisprudence were functioning of the court, how do you assess that? for the panel and peter we can
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could start with you and go right to left. >> senator, we did talk about some. we expect, although there are periods of time there is a vacancy and the court functions 4-for or someone decides not to participate in the decision process, especially but especially for the amount of time this year, it really, it just works the process and it leaves us, if you are looking at it from a liberal and conservative scorecard, it depends what the lower court did and so we could name some that are on the docket right now where from a liberal point of view it's going to lead in place a lower court thing and we say wow, we might have lost that girl that's not a good way to do business but that's


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