 I've been given the okay. Our speaker today is currently one of the most controversial and talked about people in Orange County. Everywhere I have mentioned his name in the last month, a lively conversation is ensued. Professor Irwin Shimerinsky was named by Legal Affairs as one of the top legal thinkers in America. He's written four books on constitutional law. He was a prominent controversial figure in the contention of California Prop 209. He was concerned that it would repeal protections against women and minorities. He's frequently argued appellate cases before the United States Supreme Court and the United States Courts of Appeals. He has testified many times before congressional and state legislative committees. He has been chosen as the first dean of the new law school right here at UCI, coming from Duke University, but only after much controversy. He was hired, then fired, and then hired again. Yay! Yay! His commentaries were seen as polarizing. He's for us. He was rehired because UCI stated, our new law school will be founded on the bedrock principle of academic freedom. Would you love that? Yeah. Here to speak to us on the Supreme Court is one of the top thinkers in America. Please help me welcome Professor Irwin Shimerinsky. Thank you so much for the kind introduction and for having me here this morning. It's really an honor and a pleasure to be with you. My family moved here a little more than a month ago. We lived literally just down Los Trencos, which made this a perfect place for a 6'30 meeting. I should say, in light of the conversation, early this morning I have four children, three boys and a girl, and I've yet to decide which gender is more challenging to raise. I'm incredibly excited to be the founding dean of the new law school at the University of California at Irvine. I think it was the opportunity to create a very special and unique law school. My goal is that we will very soon, by every measure, bring the top law schools in the United States. But if we simply replicate what exists at other law schools, then we'll fail. There's not a need for another law school like all the others. Even wonderful places that I've taught, like Duke or the University of Southern California, don't need to be replicated. My vision for the school is I want to have the best law school in the United States for training future lawyers. Most law schools don't do a very good job of preparing law students for the practice of law. Could you imagine if medical schools trained doctors who had never seen patients? But most law students never have the opportunity to represent a client. I want to make sure that every student has a clinical experience where the student has the opportunity to represent a client under closed faculty supervision. I want to have the best skills courses that pair our students for the highest levels of practice in the cutting edge. And I want to instill in our students a commitment to public service and practicing the highest level of ethics and professionalism. In most law schools, law students hear about a need to perform pro bono work, a duty to help public service. What I was saying is most law students hear about a commitment, the importance of public service, only in the welcoming remarks of the dean on the first day of law school and the remarks of the graduation speaker commencement. We have to imbue that in our students and make it a key part of our curriculum throughout. Being part of the University of California at Irvine gives us the opportunity to be a part of an outstanding university and really make it possible for us to be one of the top law schools in the United States. But to be honest with you, before I go on to my topic for the morning, we will only succeed if this is a partnership with the community here in Orange County. We really need the support of the business, the legal community, groups like this. We'll need financial support, tuition and fees at a public university, only support small fraction of the cost. We'll need to be serving the community with our clinics and ideas on how to best serve the community. I want the community to be involved in our law school. Welcome your ideas as people who've served in law or business or part of the community, how we can do the very best job of creating a law school that will serve Orange County, being a local law school and a national law school at the same time. Having talked about that, now let me go to what I was asked to speak about here this morning, which is the United States Supreme Court. From 1994, when Harry Blackman retired until July 1st, 2005, when Sandra Day O'Connor announced her resignation, there was not a single vacancy on the United States Supreme Court. This is the second longest stretch in American history without a vacancy and the longest since early in the 19th century. Now, of course, there are two new justices, Chief Justice John Roberts and Associate Justice Samuel Alito. What does this mean? What does this mean for your rights? What does it mean for the country? Well, I want to identify for you four general themes that I see about the Supreme Court, where it is now and where it's likely to go. The first thing that I tell you, maybe something you haven't noticed, there's been a tremendous downsizing in the number of cases decided by the Supreme Court each year. This past term completed on June 26th. As I'm sure you know, the Supreme Court begins each year on the 1st of Monday, October and always finishes by the end of June. This year they decided 67 cases, a year before they decided 68 cases. What makes this so remarkable is that through most of the 20th century, the Supreme Court was deciding over 200 cases a year. As recently as the 1980s, the Supreme Court was deciding about 160 cases a year. In October term, 1988, the 1988, 1989 term, the Supreme Court decided 162 cases. Now it's down to 67 cases. I am confident that no other court in the country has had this kind of docket reduction. It has enormously important implications. More major legal issues are going a longer time before being settled. More conflicts among the lower courts are going a longer time before being resolved. There's no clear explanation as to why this is happening. I have my own pet theory. It used to be that each justice would have his or her law clerks review every petition for review. And there's now about 9,000 petitions for review each year. So there'd be nine different set of eyes reading each petition. Any one of whom could then recommend to that justice, the case should be heard. It takes four justices voting to grant to hear a case in order for the Supreme Court to take it. Something happened in the 1980s that was unprecedented. Some of the justices got together and said, rather than have each of their chambers read every petition, they would form a pool. And now eight of the justices participate in this pool. So one law clerk will read a petition for review for eight different justices. All but Justice John Paul Stevens participate in this. So to put it another way, now two law clerks read each petition for review. One for eight justices and one for Justice Stevens. So instead of having nine possible people say, take this case, there's only two. Now I don't know if this is cause and effect, but I can at least show you a correlation as the use of the cert pool went up, the grants went down. I don't think 67 cases is nearly enough. It's not that the justices are working less hard. What's happened is, is they take fewer cases, they write much longer opinions. And I can show you, if I had a PowerPoint, a perfect inverse correlation. As the number of decisions per year goes down, the length of the opinions is measured by words per opinion and pages per opinion goes up. Again, we could argue over what's cause and what's effect. Are they taking fewer cases because they wanna write longer opinions? Or as I would guess, are they writing longer opinions because they have fewer cases? A number of the major cases this year, including one involving the second amendment that we talked about earlier, were over 150 pages long. I have a constitutional law book that's used in many law schools around the country. In every July, I have to prepare an annual supplement to it based on the cases that have just been decided. There is no way to edit a 150 page opinion down an assignment manager for law students in one night without making a hash of it. So I have a new campaign and I'm asking legal community, you to join me in. I think we should impose word and page limits on Supreme Court opinions. The second theme that I'd identify, I think is key to your understanding of the current Supreme Court. This is the Anthony Kennedy Court. I know we call it the Roberts Court out of tradition and deference to the chief, John Roberts. But in practical reality, it's Anthony Kennedy who decides the most important cases. A year ago, the Supreme Court decided, as I said, in 68 cases, 24 of those 68 cases were resolved by a five to four margin. That's really remarkable. It means that more than a third of the case a year ago were decided five to four. Anthony Kennedy was in the majority in every single one of those five, four decisions. I don't know of any other year where there's a significant number of five, four cases where one justice was in the majority in literally every one of them. This year the court had only 14 five, four decisions. I don't think it's that the court found a new consensus among the justices. I just think there were fewer cases on the docket this year that were determined, defined by ideology. Justice Kennedy was in the majority more than any other justice in the five, four decisions, nine out of 14 times this year. They're not every one of them. I'm not very good at making predictions about things. Every April I predict that the Cubs are gonna win the World Series. I grew up in Chicago. In this is the year the Cubs are gonna win the World Series. But it's always safe when a case comes before the Supreme Court, it's likely to be determined by ideology to predict well it's gonna be a five, four decision and Justice Kennedy is gonna be in the majority. Think about the most important decisions from this term. The second amendment case. It's a case called District of Columbia versus Heller. 32 years ago the District of Columbia doubted a law that prohibited private possession ownership of handguns and also regulated long guns. There's long been a debate over the meaning of the second amendment. I can think of few constitutional issues where each side has stronger arguments where it's better matched between them. The second amendment is like so many constitutions ambiguous. It says a well-regulated militia being necessary to free state the right of the people to keep and bear arms shall not be infringed. Gun rights advocates wanna focus on the second half and they say it's about the right of the people to keep and bear arms. Gun control advocates say but look at the first half of the amendment. It says it's about purpose and militia service. That's the only reason people have a right to keep and bear arms is for service in the militia. Each side can point to the framers intent. Those who favor gun rights say that the framers wanted to protect the ability of people of guns, especially to be able to protect themselves. Gun control advocates say when James Madison drafted the second amendment, as he drafted all the first 10 amendments, he included a clause in the second amendment that gave an exemption from militia service to those who were conscientious objectors. That indicates what he was really concerned about in the second amendment was militia service. Now from 1791, when the second amendment was ratified until June 26th of 2008, no federal court, the Supreme Court had always taken the position that the second amendment is about a right to have guns only for purpose and militia service. But in a five to four decision, with Justice Kennedy as part of the majority of course, the Supreme Court on June 26th said the second amendment is about a right of individuals to have guns. And the court has opened the door now to challenges for better or worse, depending on your perspective, to every federal state or local law regulating guns, be it a criminal or administrative law. Another example, major case in this term, five, four with Justice Kennedy in the majority. Case called Beaumdine versus Bush, decided on June 12th. The issue here is, do those who are detained in Guantanamo have a right of access to federal courts, through what's called a writ of habeas corpus? As you know, a writ of habeas corpus came to us from English law. It's the right of a person who believes that he or she is impermissibly held to go to court. The Bush administration has taken the position since January of 2002, when the first individuals brought to Guantanamo, that they have no right of access to federal court. Congress passed a statute in October 2006, the Military Commission Act, that says that non-citizens, held as enemy combatants, shall not have access to federal court, be a writ of habeas corpus. Is that constitutional? On June 12th, the Supreme Court, five to four declared that unconstitutional. The Supreme Court said that the Constitution allows Congress to suspend habeas corpus, only in times of rebellion and invasion. The Supreme Court said, that isn't met here. The Court said, this is Congress suspending the writ of habeas corpus. Who wrote that opinion? Anthony Kennedy, joined by Justice Steven Sutter-Ginsberg and Breyer. Justice Kennedy very eloquently said, that even in a crisis, even in the context of the war on terror, it's important that the rule of law be followed, and we'd hear our constitution. Justice Scalia wrote a vehement dissent, which he said, this isn't an appropriate matter for the federal courts to get involved in, this matter should be left to the President in Congress. One more example, is the death penalty for the crime of child rape, cruel and unusual punishment, was decided on June 25th, five to four decision. Who wrote the opinion? Justice Kennedy joined here too by just Steven Sutter-Ginsberg and Breyer. Justice Kennedy said, we determine what's cruel and unusual punishment by looking to evolving standards of decency. He said, only six states in the country allow the death penalty for child rape. He said, no one's been executed for that crime for over 30 years. He said, that the death penalty should be reserved only for the intentional taking of life of another. The dissent strongly objected. They said, this isn't matter that's properly left to the political process, to legislatures to decide that the court shouldn't get involved. I think these were the three most important, certainly the three most publicized cases of last term, and you'll notice how much they fit the pattern. All were five, four, all at Justice Kennedy and the majority. The third theme that I identify is that overall, the Roberts Court is a conservative court. In fact, I think it's the most conservative Supreme Court we've had since the mid 1930s. There's an easy explanation for that. John Roberts and Samuel Leto have been everything that conservatives could have hoped for and liberals could have feared. John Roberts has now been on the court for three full years, Samuel Leto for two and a half years. There is virtually no case where John Roberts or Samuel Leto failed to vote in a conservative direction in a case defined by ideology. They're almost always together with Justice Antonin Scalia and Clarence Thomas. That, of course, leaves on the other side justices Stevens, Sutter, Ginsburg, and Breyer. That's what makes Anthony Kennedy the swing justice. But he doesn't swing that much. He's more with the conservatives than with the liberals. After all, he was appointed by President Ronald Reagan in 1987. He's a lifelong Republican, and though at times he disappoints, even bitterly disappoints conservatives, overall, he's more conservative than liberal. What does it mean to say that the Roberts Court is conservative? I think overall, if not every case fits this pattern, there are two themes that define what it means that it's a conservative court. First, this is a court that will generally side with the government rather than with those who are serving individual liberties and civil rights. This is a court that's much more likely to side with the government when it comes to regulation of abortion than the prior Supreme Court's were. This is a court much more likely to side with the government in terms of allowing religious symbols on government property or aid to parochial schools. Let me give you an example of a case from a year ago that I think typifies a court that really wants to side with the government in the claims of individual liberties. There's a case coming out of Alaska called Morse versus Frederick. The Olympic torch was going through Juneau, Alaska and a school decided to release its students to stand on the sidewalk to watch it come through. A student got together with some friends and he unfurled a banner that said, quote, bong hits for Jesus. I'll be honest with you, I have no idea what this means, but the principal thought that it was a pro-drug message. So the principal confiscated the banner and suspended the student from school. The student sued. The Supreme Court five to four came down on the side of the principal. Chief Justice Roberts wrote for the court, Jessica Leah, Kennedy, Thomas, and Alito joined. Chief Justice Roberts said, this was an official school event, even though it was on a public sidewalk. Schools have an important interest in discouraging illegal drug use. The principal could reasonably interpret it as encouraging illegal drug use. I think the court sent a clear message that it wants to defer to school authorities and letting them decide what speech is appropriate within the school. The other thing that I think it means that we have a conservative Supreme Court is the court that's gonna generally favor business over consumers and employees. Give you an example of a case again from a year ago they got a good deal of media attention and it's a real effect on people's lives. In this case called Lead Better versus Goodyear Tire and Rubber. Lily Lead Better worked for Goodyear for 19 years. Almost all that time she was in a managerial position as an area supervisor. Near the end of the time that she worked there she realized she was getting paid a lot less than male employees who had been there just as long with the same performance evaluations who were performing the same job duties. So she sued under federal civil rights law. Very important federal statute, Title VII of the 1964 Civil Rights Act prohibits discrimination based on gender, race and religion. A jury found in her favor. The jury concluded she was paid about a third less than comparable male employees. But the issue before the Supreme Court was seemingly a technical one but an incredibly important one. When does the statute of limitations begin to run for a paid discrimination claim? Title VII says that a person he has to file a discrimination claim with the Equal Employment Opportunity Commission within 180 days of the discriminatory act. Was the discriminatory act when her pay was set? Well in which case all of her claims are barred except for any pay that have been set in the last six months of working there. Or is each additional paycheck a separate discriminatory act so that then the last paycheck was a discriminatory act that reflected all of the pay discrimination she suffered and she could still sue. The Supreme Court, five to four ruled that the discrimination, statute of limitations for it comes at the time the pay is set. So any claim for pay discrimination as we brought within 180 days of the time the pay is actually set by the employer. Justice Alito wrote for the court joined by the other four conservative justices, Chief Justice Roberts, Justice Scalia, Justice Kennedy and Justice Thomas. Justice Alito said he believes that it requires a specific discrete discriminatory act. He said each additional paycheck may be evidence of discrimination but isn't a discriminatory act. Here's why this matters so much. Most people, most workplaces don't know what others there are getting paid. Justice Ginsburg and her dissent pointed out that a third of all workers in the private sector are in workplaces where by rule they're prohibited from discussing their salaries with others. And even where there's not such a rule there's often a norm of not discussing pay. I taught at the University of Southern California for 21 years. I never knew what anyone else on the faculty got paid. I taught at Duke the last four years. I knew what my wife who was on the faculty got paid but I didn't know anybody else got paid. That makes it almost impossible to bring paid discrimination claims within 180 days of the time that somebody's pay is set. This is a huge victory for business and employment discrimination cases but a huge loss for consumers. So I think that's what it means that it's a conservative court but again I go back to, it really comes down in these kinds of cases to Anthony Kennedy. Notice in both the cases I just mentioned there were five, four with Justice Kennedy and the majority. At the very least means that for lawyers who are appearing before the justices, lawyers who are writing briefs to the justices there's often a sense of arguing to an audience of one. I've argued several times to the Supreme Court. I've written many briefs to the court. I wrote a brief last year in the Second Amendment case. I'll tell you that my brief was a shameless attempt to pander to Justice Kennedy. If I could have put Justice Kennedy's picture on the front of my brief I would have done so. My brief was not unique among those filed in the court in this case. This case is not unique among those on the docket. This is the Anthony Kennedy Court and because overall he's more conservative than liberal we have a conservative court right now. The fourth and final theme I'd identify and then save the rest of my time for your questions is to look to the future. This after all is an election year. What's the November 2008 presidential election likely to mean for the future of the Supreme Court? And what I'm really asking there is what's it gonna mean for the future of all of our rights? Bottom line, this election is gonna determine whether the Supreme Court in the short term becomes more politically conservative or stays ideologically where it is now. It is very unlikely that this election will cause the Supreme Court to become more liberal in the next five or 10 years. There's an easy explanation for this. Think about where the vacancies are likely to come on the Supreme Court between January 20th, 2009 and January 20th, 2013 between the two inaugurations. Well, John Paul Stevens turned 88 years old on April 21st. He's in good health but it doesn't seem that likely he'll still be on the court at age 93 in the year 2013. Ruth Bader Ginsburg is about to turn 75. She's in good health but she's very frail in appearance which may be why there's always rumors she's considering stepping down. There's widely circulated speculation that David Souter wants to retire and go home to New Hampshire. Now look at the other side of the ideological aisle. John Roberts turned 54 in January of this year. That means if he stays on the Supreme Court until he's 88, the current age of Justice John Paul Stevens, John Roberts will be Chief Justice until the year 2042. I've talked to several people today who are thinking of going to law school. That means for almost all of your career as lawyers and all of the rest of my career, John Roberts will be Chief Justice. Neither Clarence Thomas nor Samuel Alito has yet to celebrate a 60th birthday. Antonin Scalia turned 72 earlier this year. Anthony Kenney turned 72 this month. I think the best predictor of a long lifespan is being confirmed for a seat on the Supreme Court. It's not likely that any of these five justices is going to be leaving during the next presidential administration, maybe not even in the next 10 years. So if it is a President John McCain replacing Justice Stevens, Interjustice Ginsburg, Interjustice Souter, then likely to have a much more conservative court. He's going to replace these justices with much more conservative individuals. He says he wants to appoint justices like John Roberts and Samuel Alito. No longer will it be the Kennedy Court, no longer will Anthony Kennedy be the swing justice. On the other hand, if it's President Barack Obama replacing Justice Stevens, Interjustice Ginsburg, Interjustice Souter, he's likely to do so with individuals, basically the same ideology. So the court will stay ideologically the same. That's why as I say, I think this election will mean either that the court becomes much more conservative or the court stays where it is right now. So I guess the conclusion to this in terms of what the Supreme Court is now about, where it's likely to go in the future, is that if you are politically conservative, this is a court to rejoice over. And if you're politically liberal, you should be glad the court's deciding only about 67 cases a year. I promised I'd save about the last 10, 15 minutes for questions, and I'm glad to take questions about anything with regard to the Supreme Court. I'm also delighted to talk about the new law school, my vision and where we are in trying to get there. Please. And I know there's microphones, and I'm supposed to wait for the microphone for purposes of the videotape. In the last eight years, definitely, there's been a tremendous influence from the executive branch in deciding the court structure and all that. And why is it in the first place that the president who may or may not be qualified has so much influence in deciding the judge, the personality of the person who gets picked in the Supreme Court? Why is that in the first place? It's a really good question. The framers of the Constitution had a simple but very elegant vision. They wanted to make sure that for almost everything important, two branches of government were involved. So to adopt a law generally requires both Congress and the president being involved. To enforce a law requires that the executive branch be involved but also the judiciary. To issue a warrant for someone's arrest or search warrant or to convict a person requires involvement of both the executive branch and the judiciary. The framers had the same vision with regard to the Supreme Court and the federal judiciary. The president nominates, but the Senate confirms. When the president and the Senate are of the same political party, rarely are presidential picks for the Supreme Court rejected. When the president and the Senate are of different political parties, quite often presidential picks are rejected. Robert Bork in 1987, Clement Hainsworth, Harold Carswell in 1969 and 1970, John Parker in 1931. In fact, about one fourth of all presidential picks for the Supreme Court in the 19th century were rejected by the Senate. But almost every instance, it was the president and the Senate being of different political parties. Because if the president and the Senate are the same political party, then the Senate can only block a Supreme Court nomination by a filibuster, something rarely done with regard to judicial nominations. So the answer to your question is, it was the design of the framers. And presidents vary in terms of how much they care about the ideology of the judiciary. Dwight Eisenhower picked a Democrat, William Brennan for the Supreme Court. Some presidents are very much motivated by ideology in who they pick. Franklin Roosevelt, the current president, George W. Bush, where presidents really cared about ideology. So I think that the answer to the question is impart the constitution structure and impart how much the president wants to pick judges of a particular philosophy. Erwin, if you're training the potentially a future Supreme Court justice here at Irvine, what do you want them to experience or learn over the next few years that will help them? That's a great question. Justice, you know, on my wall, if you come, when you come visit me, there's a wonderful poster, it's an lithograph that says, justice, justice thou shalt pursue, which is a quote from the Bible. And I think that ultimately what ask our judges to do is to do justice. And what I want our law students to think about is, what does justice mean? And how do we best achieve it? I obviously want to give our law students all of the skills that they can be terrific lawyers, terrific judges, maybe even Supreme Court justice someday. But I want them to remember that what they're there to do is to do justice. I hope we can instill in them compassion because I think justice is meaningless unless it's temperate by mercy. But I also want them to have a real appreciation for the rule of law. And I'll go back to the discussion we had at our tables earlier this morning. The freedoms that we have in this country are precious, but they're not just because they're on parchment under glass. We have those freedoms because there's courts there to enforce them. I used to, and I haven't done in a while, for the first day of constitutional law, have my students read a copy of the United States Constitution and a copy of the Stalin era Soviet Constitution. And maybe in light of the discussions we had at our table this morning, you might be surprised to know that the Stalin era Soviet Constitution had a far more elaborate statement of rights than the United States Constitution did. And then I would have my students read a description of life in the Gulags by Solzhenitsyn and ask, how could it be that a country with such elaborate statements of rights would have this kind of oppression? And of course the answer was, there were no courts there to enforce the Constitution. No court could strike down what the government was doing. What makes all the rights we talked at the tables this morning so meaningful is that there are judges there to enforce them. And so I want my students, if they ever become judges, to realize that incredibly solid and found obligation they have to enforce the Constitution and ultimately to do justice. Go ahead. At the moment, I'm not sure of two questions. First one, what kind of mechanisms are in place to have a judge of the same Supreme Court to say maybe up in his 90s and really isn't quite with it anymore to remove him from the court. And if there are none, do you believe that there's a certain age or a time or a mechanism to have a Supreme Court judge leave the court? And again, a great question. The only mechanism for removing any federal judge is impeachment. The framers of the Constitution in Article III say the justices of the Supreme Court and of the lower federal courts will have their positions for life, assuming good behavior, which means they can only be formally removed by impeachment and that takes a majority vote of the House and two thirds vote of the Senate. There have been problems through history, not so much at the Supreme Court level, but occasionally with federal court judges, trial judges, appellate judges who lose their ability to perform the job who aren't mentally competent but don't wanna leave the bench and it's a really serious problem. Congress passed a statute in 1980 which allows a panel of judges within each circuit to suspend the caseload of a judge who's no longer competent to hear cases that doesn't apply to the Supreme Court though. It applies only for the lower federal court judges. It's questionable whether that's constitutional in light of what I just told you. I think the only thing we have to hope for with regard to the Supreme Court is God forbid that should ever happen. The other justices will go to that justice and say, it's time. I've said to my wife that if there comes the point where I'm just not able to perform as a professor in the classroom and I don't realize it, you need to tell me it's time. And I think the same thing with regard to judges. It's hard to do though. There was a judge here in Los Angeles who's no longer mentally functional and should not have been on the bench. And I talked to some of the other judges who I knew about it and they just said it's so hard to go to him and say it's just time to leave. But that's what we require in the Supreme Court. There is one instance in American history that we know of where the justices actually went to a colleague and this was in the 19th century and said it's time to step down. But that's the mechanism. Now let's do the latter part of your question. Do I believe that there should be mandatory retirement age? No, I don't believe in mandatory retirement age. John Paul Stevens 88 and he did his good a job forming the function of justice as any of the younger justices. And any number is arbitrary. There are people in their 60s or younger who aren't functional and there are people who are in 90s who should still be performing those functions. So I would not favor any mandatory retirement age. And I've got to tell you, every additional birthday I'm even more against mandatory retirement ages. Please. Yes, thank you. Let me take you back to Bong hits for Jesus. Sure. All right, just as an example, as I listened to the exam, you know, all these issues before the court I have a tremendous emotional charge to them, the ones. And we live in a ideological media culture. So where does a citizen go to... Oh, and then on the extreme is like the Supreme Court spending months and months analyzing and reading and all. And they, where you're demonstrating is they still may be driven by their ideology. So where can we find intelligent discussion of these issues that we need policies on in our culture? That too is a great question. Let me start with the premise and then go to the question. These are issues that are defined by ideology. And we've decided and I think it's a good choice to society to leave our court to resolve some of them. Not all questions are resolved by the courts. The courts have nothing to deciding whether we're gonna go to war or not or how much money we're gonna spend on the war on terrorism. But there's a set of questions that we decide we want the courts to resolve. And there's no clear answers to them. And inevitably how the justices decide is a reflection of their views. Take the second amendment. For reasons I don't quite understand, conservatives have more taken the gun rights position. Liberals have taken more of the gun control position. Our current court is five, four more conservative than we're liberal. They came down five, four on the gun control, the gun rights side rather than the gun control side. That reflects who's on the Supreme Court. That's why presidential elections and presidential nominations are so important. Now to your specific question, where can you get good reason discussion? There's more accessibility to that now thanks to the internet than ever before. I think that some of the blogs that I think, I'm not a blog reader, but there's some of the blogs, Jack Balkan's blog out of Yale Law School, Balkanization, is very sophisticated discussion of legal issues. Eugene Volox out of UCLA, The Voloc Conspiracy, and Balkan's more liberal, Voloc, more conservative, are very good discussions. I'm very proud that once a week, I'm part of a radio show that goes out of Orange County but is nationally syndicated, The Hugh Hewitt Show, where I do a debate with John Eastman, the Dean of Chapman Law School, and John and I take opposite views on most things. But we always discuss what's going on in the court, and to me what's most important about it is I think we show that people can be pretty much in disagreement, but still discuss things civilly and try to really do in-depth discussions. Depending on your views, you know, there's publications like New Republic and Nation Magazine and New York Review of Books that have wonderful in-depth discussions of what the Supreme Court is doing to help people be informed. But overall, my inclusion, I think it's easier for people to be informed about the Supreme Court, about the legal system government now than ever before. There's just so much more information I have to sort through to get there. Yes. Regarding discussions, I just came back from the Aspen Institute, the Aspen Ideas Festival, and got the great pleasure of meeting Sandra Day O'Connor, which was wonderful. We miss her on the court, at least I did. But anyway, one of the discussions that was very interested among the judges was about how the judges are chosen. And also, one of the things that I found interesting and I would like for you to comment on it was that they were talking about the Senate hearings for the Supreme Court judges. And they actually felt that it wasn't appropriate because some of them, not all of them, because it politicizes the appointments more. I very much disagree with the view that it too politicizes it. And let me explain why. Inevitably, presidents try to pick justices of their ideology. Some, as I say, are more concerned about ideology, some less, but every president is going to pick justices who have his or her views. If the president can look to ideology, then why can't the Senate look to ideology? I know that those who are nominated would like to have easy confirmation hearings and so they say there should be no Senate inquiry into their views. But these are positions as we've been talking about for life. These are positions where inevitably how the person is going to vote is going to determine the outcome. Let me go back to 1987 when Robert Bork was nominated for the United States Supreme Court. Had Robert Bork been confirmed by the Senate, there is no doubt none that Roe v. Wade would have been overruled in 1992. The Supreme Court, in Planned Parenthood v. Casey, five to four reaffirmed the right to abortion with Justice Kennedy and the majority. Now you may wish that the court had come out the other way and that Bork had been confirmed, but the fact that the Senate rejected Robert Bork meant that Anthony Kennedy was picked and that meant that the court affirmed rather than overruled Roe v. Wade. I think that's what the Senate has to do, is look to the ideology and views of the justice. Any important constitutional issue is going to come down to who's the justice? What are his or her life experiences? And so that's why I think the President and the Senate are completely justified in looking at it. Now I don't think the current process is working very well, but I don't think the solution is to say ignore ideology, because until the President's ignore ideology, I don't think the Senate can ignore ideology either. Good time. All right, Dean Schermaniske, my name is Frederick Fox. I'm a graduate of UCI's Paralegal School. You brought up the issue of the coming election, and I have written a legal memorandum which nobody seems to want to touch with a 10-foot pole, and I'll quote directly from the Constitution on the main issue. No person who is not a natural-born citizen, comma, or citizen of the United States, comma, at the time of the adoption of the Constitution is eligible for the office of President. Now, the 14th Amendment notwithstanding, my question is, does Senator Barack Obama is he eligible to run for the office of President or does a Constitution need to be amended? It's interesting you put it that way because usually the concern is raised over John McCain because he was born in Panama for a father who was serving in the military. I've looked very carefully at this question. I see that I'm out of time, so I'm going to answer briefly. I believe that both John McCain and Barack Obama are eligible to be elected and serve as President because both were United States citizens at the moment that they were born. I believe for McCain, for example, he was born to American citizen parents. His father was serving in Panama in the military, and that's sufficient. I believe Barack Obama and his parents were United States citizens, so he is a United States citizen. He has a United States passport. He's deemed by the United States government to be a citizen, so all there that is required. So I believe that both are eligible to serve as President of the United States. I made, as my final exam question this past semester, I did it in terms of John McCain. Who would be able to bring a lawsuit to court to raise this issue? To put it in technical legal language, who would have standing? My own conclusion is no one would have standing under current law to bring the challenge. So it becomes a really interesting question, but it's not one that's likely to make any practical difference because I think that no one could ever get the court to rule on the issue. Let me just stop by saying thank you so much for having me. I hope you'll have me back again sometime in the future.