committee will come to order and i think their witnesses for their indulgence for action lasted longer than any of us expected to get we continue our conversation r reactions to each other's comments i mean because all four of you come from perfectly different points of experience and knowledge and persuasion and so what i was like to do is in the friendliest way that we do things in judiciary committee have  candid conversation about each other's points of view tendency to to chip away whether explicitly or implicitly at civil rights in the last few days and i think it might be worth at least putting on the record the notion that that every year case comes down that shocks all of us in the media we didn't know lilly ledbetter was going to become really lead better until six months after after there was a blowback public blow bad we didn't know the keil ok so is going to be the k didn't know that gross was going to be growth and i think one thing that's useful to say here at least in connecting with my colleagues on the panel of said and what i've said is that i think the supreme court is exquisitely sensitive to public the strip search case last year and if you walked out of that case after oral argument it was seventy two i think for the school district and a few things happened a few people wrote strongly there was an enormous public outcry and i think that it profoundly shaped the way that the decision ultimately came down so i just think it's important to connect up what we're saying here on this panel to the question of how is it that a case becomes important to the american public how do we get a little lead better how do we get a growth and and i think that piece of it is really critical because i think the court is more sensitive than we would back to doing something that is later perceived as having really truly wrong the plaintive but you're the one question more specifically than anyone else here today about the inadequacy of the media in terms of bringing to the attention of the general public the importance and significance of what the court does i agree and i mean i'm here to say mia culpa but i'm also here to say i think that these cases surprise the media too i think the media was surprised by the outcry over lead better i think the media was surprised by the outcry after hilo and so the question is why are we following that conversation and not dr to our relationship and what about these three male witnesses came here with you this morning you were going to you were going to tell me what you agreed with the notion that congress is creating records that are fundamentally sound and for the court to question the record is is ultimately the court's problem i think and i agree with i very much agree with the idea that they forward that this is happening in large ways and in small ways but it is absolutely happening well i mean  males and females be concerned this is and balance panel this is an opportunity this important for you to get some free advice to your panelists if i was going to give free advice about gender which i only do at home to my husband i would say i would say that i think that the conversation around gender that we had over justice soto and the need for gender balance on the court was one of the most impoverished national conversations we've ever had and i thought it happened in stereotypes and cliches i thought it was really pernicious and it played to the worst of the ways we talk about gender i think that it's clear that we need gender balance not just at the supreme court but in every level of the judiciary i'm not advising my colleagues here i think they probably feel the same way but i do think that for the next two rounds of vacancies at the court if we're going to talk about race and gender as a country we need to do it in ways that transcend the just horrible stereotypes that were kicked up over this confirmation hearing well unfortunately it reveals the level that we're confirmation hearing and what i saw happening in front of me the conversation about whether she's a bully judge the conversation about whether she's too rude to lawyers that was so fraught with gender overtones and then i would turn behind me and see a line of people trying to get into the chambers and it was a line of people of all colors and all races and all genders and that was the future and they were there because they were so excited to see a hispanic woman on the court and it seemed to me that  myself except now i've learned that she's far more conservative on some matters that i didn't know about when i was a busy being excited  perfect i guess all i'll say a word about the importance of these civil rights decisions and in particular one of the things that concerns me a bit about the supreme court handling of some of these cases  the question at the end of the day is how have we achieved the progress that we've made but it doesn't stop there because part of the question is how can we continue on the path of progress and that is a very important second question and i believe that was the question that this body asked itself in two thousand and six when it we authorized the voting rights act it took note of the progress that we had made and that progress is undeniable the chief justice himself in the decision in the my case wrote the historic accomplishments of the v r a are undeniable but i think that there is another lesson three offers to us it gives a gift and the gift that history gives us is it provides us with the ability not to repeat some of the most troubling chapters if we study it i'm not here today to say that the united states is going to turn back to jim crow but in light of the record that this body established on the voting rights act it's clear that we have not up rooted all of the entrenched discrimination in the cover jurisdictions and we're making it more difficult to move  forward and that i think at the end of the day is the important question why would congress in the face of continuing discrimination why would we read the constitution to require congress to stand down there's nothing in the constitution that says that congress is in force manpower's have an expiration date if there are continuing problems my view is that the constitution allows congress to continue to act to address them there can be serious discussions about how congress approaches its discharging its duty but on on the record that congress assembled of repetitious violations that were concentrated in particular parts of the country with greater frequency and intensity than other parts of the country i think that it's a reasonable judgment and a concept a constitutionally sound one for congress to stay the course and so the idea that we would over over commit to our progress without taking note of the challenges that still exist i think is really telling half a story and that's why i think it's so important for the constitution to continue to be a conversation in which both the congress and the supreme court and of course the executive everybody has a role to play and the thing about the voting rights act is that for many generations the three branches of government have come together with a unique understanding of how it's charted us on the path progress and it would be my hope that in future cases the court would not shrink from that important commitment mr franc many of the finding that the courts relied upon and gave a great deal of credibility to were findings that actually came out of the united states it was commission for example united in tennessee versus lane impossible nowadays to go to the commission for such findings where essentially for close to nine hundred fifty four this is precisely the place we used to go to and i think if in fact much of the discussion today is going to be based on the idea  recently was based on the one thousand nine hundred three report from the commission but it's fair to say without singling out anyone that in the last at least ten years if not derfner this is been an extraordinary hearing i've learned a lot myself from my colleagues and from the committee members i think the important thing that i take away after all of this is that congress is still in the business of enforcing civil rights and that's that's and that's important and it's it's different from the last time you many years ago that we had a situation like this in the eighteenth sixty's and seventy's after the thirteenth fourteenth and fifteenth amendments were passed congress passed a series of civil rights and enforcement acts the supreme court struck them down hundred seventy six and then going on increasingly and kept on doing it by the time the supreme court started doing that congress's will to come back was gone and so when the supreme what about the compromiser it in seventy seven exact well the supreme court started striking was that even before the compromise but you're right the compromise began it and then congress didn't pass any more civil rights laws congress did not respond to the supreme court's negative decisions at that time and we went to jim crow disfranchisement violence fraud legin etc and then the sorry ass chapter of our history we have something very different now because congress got back into the business of passing civil rights laws in one thousand nine hundred fifty seven than one thousand nine hundred sixty sixty four sixty five and congress has stayed in that business because not only has it seems that the job is not done it has recognized that more people need the help while race is are our nation's most serious problem it has always been we also need to deal with issues of gender of handicap of age of sexual orientation of  nationality a whole range of things congress has stayed in the business and as the supreme court has turned back over the years from the days when the court was in sync with congress congress has stayed on the job that to me is is an incredibly important thing it's the one thing that gives us hope that we will come through this and we'll get back to a time we'll get back to a time when the court will be in sync because make no mistake about it what the fact that congress the political branch stays in the game and stays in the business shows us that that's where the nation is and it's the supreme court frankly and sadly that i think is out of step with a nation that can't go on very long congress has shown the determination it's exciting that it does so and i also look back and we just say one last thing you know i'll stop the way i see it this country has had three new births of freedom president lincoln talked about a new birth of freedom when he gave the gettysburg address we had a birth of freedom when we had the revolution and then we dreaded then we killed it with a constitution that institutionalized and protected slavery we had a new birth of freedom in the civil war and emancipation and in reconstruction and that was killed by people who were determined that we would not have equality starting with the early days of the civil rights movement brown versus board of education the work of thurgood marshall working mr hastie i'm sorry houston and judge hastie the first federal circuit judge was black we really are third try at bringing freedom and equality to this nation and the fact that congress has stayed on the job both parties year after year is the most encouraging well thank you mr chairman mr chairman the main reason i came back was just to give you the opportunity to put those things on the record you wanted to send him the question but i guess i would be remiss if i didn't just you express the fact that i was touched by mr furze remarks and you know sometimes i guess we forget that america was built on a kind of a different premise than other nations in other nations often sought to put in vigils or certain people in charge of things and we did a new experiment that we would take away government's power and we would empower the individual because we held a truth that all of us were god's children and deserved it deserved to be have our lives protected our freedom protected and and our property and our you know the pursuit of our dreams and i know that there is a great deal of differences on this committee over how to do that sometimes and i realize it takes society a while to develop certain ideas and i'm reminded that there was a time when congress outlawed petition for a period eight years outlawed petitions against slavery in other words we didn't want to even be lobbied on that issue because that was a set deal in other words that that was something that we decided by god we're going to have slavery and that was it and we were going to to listen to any of these whacko abolitionists and and i know sometimes i frustrate this committee by human being and it took time for us to develop in a different way by the god we did in congress played a big role in that congress was the first body to say that we're going to have civil rights finally woke up and said you know the people walk up and the court struck those early ones down we forget you know they struck those early civil rights laws down finally the court woke up and and joined the rest of us and said ok we are wrong and we finally put aside this tragedy of slavery and the issue that i mentioned today again i know that frustrates people i don't mean to do it to frustrate i'm i'm a likable guy i just don't seem like it sometimes you know but it is true today that the right the most basic civil right of all is that is the right to live without that the others don't really have a lot of meaning and today one of the disparate react realities is that half of all black children half of all black children are killed by abortion on demand and i don't know if i'm the only one in this room that that hits me as hard as it does but i just think that is when the most tragic realities that we could we could face when we talk about civil rights you do have a reference sure planned parenthood elegant locker institute that's their statistics i hope you check it out i hope you say listen i hope you come back to this committee and say you know that guy's a lunatic we can prove it i pray that the chairman challenge challenge the chairman to say that not to challenge you but just add to that that these are sincere first person perspective and i'm just hoping that the day comes when congress and the people united states will find a say you know what no matter what you're black or you're why or you're rich or your poor your unborn  have a bill mr chairman that simply is called the prenatal nondiscrimination act in a simply says that you cannot discriminate against an unborn child by subjecting them to an abortion on the basis of race or sex that's what it does move why don't you get a hearing on would you give me a hearing on it well i haven't heard of it before and just now well i guess i would ask sincerely if you if you're open to giving me a hearing on it i would love to present it and regardless of what the committee does with it just just helping it be understood i think could be something that maybe in the next generation will have a panel there and they'll say you know what there was a long time ago when we were taking the lives of half of all black children and we decided that wasn't the way to go and we changed it and sure we had disagreements over it but we changed it and i would welcome the opportunity for hearing like that would you be open to that mr chairman could i could i see the bill for absolutely i'll  shared all because i believe that one thing we hold in common in this room is that we really do desire to see the imago day the image of god in every human being respected and protected and i just hope we figure out who we all are thank  thank you very much the distinguished gentleman from north carolina mel watt thank you mr chairman i know that i've come in on the end of the hearing and and i will be brief because i know that some of the witnesses have a deadline for being out of here and as do i i was fortunate to be here for the opening statements and came back for several different the credibility that you have for those that i haven't seen i see these people every day being discriminated against and i guess i have more immediacy about that that that's not why i came back obviously because i didn't know what mr frank was going to say i came back for actually five other reasons number one to to express my tremendous thanks to mr sensenbrenner for the content of his opening statement and for the tremendous work that he did pronunciation of his name for the tremendous he did in defending our congressional record that we developed in the united states supreme court and that extension has been under attack and to encourage him in the process to keep moving forward on that front and to say that my initial reaction when i heard about this hearing was that i was somewhat reluctant because i thought we were going to just beat up on the court and having sat through multiple terms in which the other side was in control of the committee and seen that happen i didn't think that was a very constructive way to approach this but this turned out to be a very constructive series of witnesses and the testimony and the questioning i think has been constructive to the extent that i have heard it to substantive issues now that i've gotten all of that out of the way the testimony and i'm wondering what kinds of things we might be able to do legislatively to deal with this whole attack  sixteen thousand page record to substantiate the need for the extension of the voting rights act because that's what the court had told us they say we were required sixteen thousand to have hearings and make a record that this was a an extraordinary kind of statute that required legislative findings and continuing  ranking member when they went to the senate side and dumped our whole record into the senate record so that we could supplement their record we did that because we thought the senate hadn't done enough to build their own record and we thought sharing our record with them would would would be seen by the supreme court as  dismiss a bunch of cases before they even you know you almost got approved then you pleadings now on the stand before you can even have a motion to dismiss  something we can do legislatively to address that the congressman has raised a very important question about whether the courts remain when for business for civil rights plaintiffs and others who have legitimate grievances that traditionally we have been able to resolve through a deliberative process of litigation which does not presume a result but requires parties to conduct a careful investigation and avail themselves  discovery and then meet burdens that have been proscribed by statute and in some case by the court to prevail there are a number of circumstances some of which have been described today where there are answers that are  in my view subject to some legislative response one of the issues in play in the recent decision in addition to the important point which my colleague here  spoke is the question of the pleading standards that you have alluded to for a long time plaintiffs were allowed to come forward making allegations and they were allowed to an opportunity earlier in the voting rights area because once again we had been led to believe that this being a transitional remedy the voting rights act that  these kind of transition districts that didn't require fifty percent minority to to have any recognition under the voting rights act was an important step that seemed to us toward exactly what the supreme court has said was desirable you know for the court to go back now and say that we only protect you if you've got fifty percent plus one minority seems to me to be a substantial departure from that whole line of jur congressman is referring to is bartlett the strickland was an interpretation of section two of the voting rights act in that case the supreme court answered a question that it had dodged in four or five earlier cases about whether or not a claim could lie or a defense could be asserted for the creation of a minority opportunity districts when the population was below fifty percent the court found that answered that question in the negative and that it must be fifty percent or more in order to be cognizable under the under section two of the voting rights act and i think the significance operates in two contexts one is the claims that can be brought in following the next redistricting cycle where there are opportunities because of crossover voting for minority groups to combine with white voters to elect candidates of choice in circumstances where polarized voting persists but the context of the north carolina case presents the more significant question i feel and that is the circumstance of what is going to happen in the legislative process of existing opportunity districts that are below fifty percent and have and now have less protection after this ruling and may be diluted in the legislative process those voters may be spread out in ways such as the congressional district that i represent which i thought the supreme court had represented to me was a desirable kind of district because i represent the majority of white and the percentage of minorities in my district were designed to make it possible for voters to elect somebody of choice in a in a polarized situation that's not as polarized as some other parts of the state but now i gotta have a fifty percent minority district to get it recognized on the voting rights act that seems to me to be so counterproductive to the whole purposes that we were moving towards congressman is absolutely right that there is that one would think that part of where we are trying to go with all of these voting remedies is that polarization levels decline and that we are able to have voters of all races vote based on the merits of the candidate and not pull the lever based on a candidates race which is part of the problem and part of the reason why we have voting rights protections i jurisdictions there are many jurisdictions that are not section five covered indeed most of them are not section five covered so how that plays out is an open question additionally i think the thing that the court was struggling with is and it minist will rule about once you once you decide the fifty percent majority minority is not the cut off what is the guidance that could be offered to the lower courts about what is the range in which it's reasonable to sense then i think it should be acted upon the court has in the lulac case said that influence districts in here i distinguish influence districts and an opportunity district the district at issue in the bartlett case and influence district is where the minority population is so low that really they are never going to be able to elect to come close to electing a candidate of choice the amount of crossover would overwhelm the amount of the minority population such that the majority population would be picking the candidate and the minority population would just be acting in conformity with the majority preference but in this mid range where there is a substantial minority population i think that there is something to study but i think the court was a little bit uneasy about what the workable standard would be and an answer to that question would need to be formulated prior to any legislative a hearing i can certainly appreciate all of the witnesses being here and i apologize for not being able to be here that entire time we're dealing with an issue that's near and dear to the chairman in the financial services committee the whole interchange the question that the chairman tried to deal with in this committee last term we are now having hearings about in financial services so i've been kind of pulled in two directions today thank you professor defended you want to close down this conversation but i guess i would add to what they both said statutes it passes that's never good overruled although maybe it'll happen soon and i think that in general congress has the opportunity to do things it's not a lot of things the things that not have been very it has done have been very salutary and i think congress should just keep on working the way it has been working dedicated itself to the things that dedicated itself to and we will come through gentleman i would just very much thank the committee for all the tireless work it's done in this area and really second professor drifters comments which are i think that the mere fact that congress is not just in the game but very very much in the game it is really i think the light at the end of the tunnel thank you so much for hearing and then we thank you all for your time and we're going to study this record carefully and if you have any  writings or additional comments you'd like to submit please do thank you all very much thank you thank you