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July 1, 2013

Host: Ted Simons

Supreme Court Review

  |   Video
  • From same-sex marriage to voting rights, the United States Supreme Court released some blockbuster rulings in its final few weeks in session. Arizona State University Law Professor Paul Bender will analyze the big rulings.
  • Paul Bender - Law Professor, Arizona State University
Category: Law   |   Keywords: law, ASU, ruling, marriage, voting rights,

View Transcript
Ted Simons: The United States Supreme Court released a number of blockbuster rulings in the final days of its most recent term. ASU law professor Paul Bender is here with analysis of the high court's session. Welcome.

Paul Bender: Thank you.

Ted Simons: Your thoughts on the term.

Paul Bender: They really weren't blockbusters, except for one of them. People thought there would be three big cases, gay marriage, the Voting Rights Act, and affirmative action programs in universities. There was only one really big important decision, and that was the one that held a part of the Voting Rights Act unconstitutional. Otherwise the court ended up not really deciding big things, especially with regard to gay marriage. The thing that I was looking for this term, and I think most people were looking for who follow the Court, you may remember at the end of last term Chief Justice Roberts, who usually sides with the conservatives, broke with that and wrote an opinion with the four liberals on the court upholding Obama-care. A lot of people said, does that mean he's becoming more moderate? That he is going to be the center of a coalition so that we'll break down the blocks that have been on the Court? This term we thought would tell whether that was going to happen or whether that was just an aberration and really was a solid member of the conservative block. Well, he really is and that kind of moderation is not happening. You can see that in most of the case that strikes down section of the Voting Rights Act which required -- and still requires covered jurisdictions to submit any change in their voting laws or regulations to the Justice Department before they go into effect. It still requires that, but the Court said the formula that was used to decide who was covered and who wasn't was unconstitutional. So you can't use that now.

Ted Simons: Exactly what did the Court look at and what did the Court decide?

Paul Bender: The Court looked at the formula which the statute sets up to say which states are covered and which states are not. The formula turns on how many voted in the presidential elections in 1964, 1968, 1972, and the Court said that formula is outdated. It should have been updated by Congress. Because Congress didn't update it, they are going to hold it unconstitutional. That is just a remarkable thing for the court to do. Congress is given by the Constitution the affirmative power, and responsibility I think, to enforce sections -- Article XV of the Constitution which prohibits discrimination in voting. Roberts said we know this stops discrimination in voting. We know it works. We would like the formula to be better, more modern, finely tuned. The court I thought had no power to do that. Congress had the power to do it. Congress has the power to do anything it thinks is necessary and proper to deal with voting discrimination. There was nothing in Roberts' opinion that said, it was unusual, it was -- I would have designed a better formula. It was strange for the Court to do, to stand in the way of Congress when Congress is trying to enforce a provision of the Constitution which prohibits racial discrimination in voting.

Ted Simons: Compared to the court's actions and how you saw the voter's action with the voter registration law.

Paul Bender: The court held it unconstitutional because of part of Arizona's proposition 200, which says you need to bring to the registration place, you need to submit affirmative proof of citizenship. The court said that violated a federal statute which said you didn't need to bring that in order to register to vote. The interesting thing about that is, at the end of an opinion, that is an opinion that seemed to be a coalition of people. Scalia wrote that opinion and the liberals joined in that. Arizona might be able to reinstate this requirement if they go back to the federal election commission and ask to have that requirement put into the Arizona form that the federal government prepares. If the commission won't do that, maybe he said Arizona could then go to a court and get that. It's a strange thing for a court to do. I think it's holding out a hope that's not there, because the test would be, said Scalia, if Arizona can show they need this in order to make effective their requirement that you have to be a citizen to vote, maybe they could force the Commission to let them do this. Arizona I don't think can show that. There's no history of noncitizens voting in Arizona. The fact that you need to make people bring documentation, I don't think you can prove that.

Ted Simons: At the heart of this particular decision was basically that Congress regulates federal elections. Correct?

Paul Bender: Right. Well, the states regulate it, but Congress can override that regulation. That's what Congress tried to do here.

Ted Simons: The whole idea was to make it easier to vote.

Paul Bender: They said Arizona was making it harder and they are not allowed to do that.

Ted Simons: And that affected Arizona greatly, and even the preclearance affected Arizona greatly.

Paul Bender: Oh yeah, now, the redistricting commission has a redistricting scheme and it is pending in the justice except for preclearance. It doesn't have to be precleared anymore.

Ted Simons: Is it unusual to have these two particular decisions, one in with which people leaning left celebrated, and the other people leaning right celebrated? Is that unusual?

Paul Bender: No, it's not unusual. All decisions don't come out in the same direction. There are always some liberal decisions and some conservative decisions. To me, the most important thing is that the Court stands in the way of Congress' attempt to ensure there be no racial discrimination in voting. Then in the case from Texas, the Court stood in the way of the University of Texas' desire to have more diversity in their classrooms. The court is using constitutional amendments that would design -- were designed to give minorities the right, and to stop discrimination against minorities. Congress has done that in the Voting Rights Act, and Texas did that in their affirmative action program. The court gets in the way of states and Congress trying enforce the constitutional rights of minorities. That's what happened.

Ted Simons: That's what happened in the Texas decision.

Paul Bender: Yeah, they stood in the way of that and said, no, you have to give it another look, it's got to be narrowly tailored and needs strict scrutiny. Why is the Court standing in the way of states. It keeps saying they believe in state autonomy. Why get in the way of states trying to integrate their societies? Why get in the way of Congress, that's trying to ensure minority voting rights. It didn't say you couldn't have a race conscious affirmative action. That's because Justice Kennedy was unwilling to join the four who wanted to overrule the case and say that you can't. It's not going to be held unconstitutional, but it's also going to be difficult to do. The other message of the term, other than that Roberts is not becoming a moderate, is that it's still Kennedy's court. Everything he wanted in the end of this term he got. He's on the winning side of everything except -- with one exception, and even there he's on the winning side. So in all of these cases, it's up to him to decide what to do. He is willing to permit affirmative action but he wants to monitor it very closely. He did not want the federal government to be able to say that even though a state recognizes gay marriage, still, the federal government will not treat those people as married. So that in New York, where this case came from, it recognizes these two women as being married. But the statute says for federal purposes they are not married, so they can't file a joint tax return, they don't get the marital exclusion over the estate tax. Kennedy wrote an opinion, - again, joined by the liberals. We're just saying you can't do that. States have the primary responsibility about marriage. If the state wants to protect gay couples by calling them married, the federal government has no business interfering with that. He said the state is challenging the dignity of these couples.

Ted Simons: He said children would be humiliated, made to feel lesser class citizens, the whole nine yards.

Paul Bender: Really strong stuff. The question we are left with now is they did not decide on whether California's ban on gay marriage -- California is the opposite of New York, they want to ban gay marriage whether that's constitutional or not -- and you have Justice Scalia reading Kennedy's opinion, saying, I know he's going to strike down proposition that bans gay marriage. And then Chief Justice Roberts saying, I know what Kennedy's going to do. And Kennedy is absolutely silent on that issue, says not a word. Yet it's up to him what's going to happen. They didn't decide that this time, because three of the liberals joined with Kennedy and Scalia to say there was no jurisdiction over the California case, because the Governor and Attorney General of California refused to defend proposition 8. That only applies in California. In other states like Arizona, where the Governor would defend that ban, that case will come back to the Supreme Court. If the membership of the Court doesn't change, again, it'll go back to this justice. People know him and read the tea leaves in exactly the opposite direction.

Ted Simons: Eventually they will find out. And so the legacy of this particular court, what are the history books going to write about the last two terms?

Paul Bender: It's a quite conservative court. But they don't have five really conservative votes. It has not been able to, except in some areas, to move the Court in a really conservative direction. What you've had for 15 or 20 years is a conservative court that hasn't made any big changes in constitutional law. Once again, they didn't make a big change in constitutional law because they didn't decide the California ban on gay marriage case. The legacy will be a fractured court, four people on this side, four people on the other side, it used to be O'Connor and Kennedy in the middle. When you read these opinions you say, I'm not satisfied that was done in a rational way. The opinions don't seem like they are dealing with the issues.

Ted Simons: We heard Chief Justice Roberts was concerned about the trust the American public has in the court. Should he be concerned?

Paul Bender: I think he should be concerned, because I think that this court is not being true to the discussion in a number of respects. The main one we saw here was in minority vote rights. And also, just the California case. The people of California adopted proposition 8, the supreme court says they defend it. There's nothing the people who propose that can do about it. Kennedy says, hey, you don't understand direct democracy which we have in California. The people are allowed to make law. Somebody ought to be there to defend the substantiality of law. I found that a really powerful opinion by Kennedy, but it was a minority opinion.

Ted Simons: Has that ever happened before where a state has decided to refuse to defend something?

Paul Bender: I don't know that that's ever happened before the -- sometimes the federal government will refuse to defend some federal legislation, but they would permit Congress to step in and do it. The president thought DOMA is the thing that has to treat these people as not married, even though they are. People from Congress were permitted to intervene. Somebody should be able to defend them, and the supreme court 5-4 over a really good dissent by Kennedy says, sorry, if the people pass it and government officials don't want to defend it, it doesn't get defended.

Ted Simons: Wow.

Paul Bender: That's the kind of legacy I find muddled.

Ted Simons: All right. Well, good stuff, Paul, again, thanks for joining us throughout the term and for the overview here. I can't wait for next session.

Paul Bender: Every term is interesting.

Yarnell Fire Tragedy

  |   Video
  • It’s the worst firefighter tragedy in Arizona history and the third worst in the U.S. history. A fire near Yarnell has claimed the lives of 19 firefighters and has destroyed half of the 500 structures in Yarnell. Jim Paxon, who became the face and voice of the Rodeo-Chediski Fire that ravaged Arizona forests in 2002, will talk about the tragedy and firefighting policy.
  • Jim Paxon - Wildfire Expert
Category: Community   |   Keywords: tragedy, wildfire, firefighters, Yarnell, around arizona,

View Transcript
Ted Simons: Good evening, and welcome to "Arizona Horizon," I'm Ted Simons. It's the worst firefighter tragedy in Arizona history, and the worst in the U.S. since 9/11. A wildfire near the town of Yarnell claimed the lives of 19 firefighters yesterday, leaving the state and the nation in disbelief and in mourning. Jim Paxon was the face and the voice in the air for the Rodeo-Chediski fire in 2002, and is currently with the Arizona Game and Fish Department. Jim, thanks for joining us. This is a rough time for you, for a variety of reasons. I'll get to that in a little bit. Let's start with: What happened?

Jim Paxon: There was a number of crews out there. The Granite Mountain hotshot crew from Prescott was digging fire line on a portion of the fire. We don't know exactly what happened. An investigation team is going to look into exactly what happened and how. We know the fire burned over that crew, very violently, very quickly. They deployed their shelters and some may not have even got into their shelters. Those are big kind of pup tent looking metallic structures that you get into and pull around you, they are like a big kite when the wind's blowing. We have 19 fatalities. We're sad and very grieving.

Ted Simons: Those fire tents, they are told, what, dig as much of a hole as you can, lay down and wait?

Jim Paxon: No, you're supposed to clear any burnables away if you have time. But you get into them and they reduce the heat 80% to 90% from what's outside the shelter. You can be in them 10, 15 minutes with no problem. I think the heat was so extreme and it happened so fast the injuries were very rapid.

Ted Simons: Were they on a hillside? In a clearing? Talk about the terrain.

Jim Paxon: Well, the terrain is broken. I don't know exactly, Ted. That's a lot of the things that will come out in the investigation. They were on the edge of the fire, and they were building from a safe anchor towards the head of the fire, building fire line, digging line.

Ted Simons: When you say digging a fire line towards the head of the fire, if I'm digging here, the fire is this way or the fire is this way?

Jim Paxon: You're actually flanking the fire. But you go from a safe point that's kind of cold. You start to build your line. As the fire moves up the hill you flank it and try to pinch it off. there were others on the other side of the fire, digging line as well.

Ted Simons: In cases where the wind shifts, is it basically, we're working here because we know it's coming this way, and then just like that it comes this way?

Jim Paxon: We do know that there was thunderstorm activity in the area and there were what they call outflows, really hard, gusty winds 40 to 50 miles per hour. If they had an outflow come across the fireline and bring fire over them, it was quick and extremely violent.

Ted Simons: So quick maybe some didn't even have a chance to get into their fire tents?

Jim Paxon: We'll find out, but I believe that's the case.

Ted Simons: Talk about the hotshot team itself. What is a hotshot team?

Jim Paxon: There's type 1 crews, there are only 112 of them in the entire nation. They are 20-person crews. They are the most physically fit, most trained, most experienced. They work together about nine months a year, they are family that go to these fires. They become expert. They dig more line than the other kind of crew, a type 2 crew, which is crews that we use, and our Native Americans and some forest organizations put crews together. But they organize for the fire, and then they disorganize and disperse when they get back from that fire. Hotshots live with each other. Sometimes they work eight, 10 years on a hotshot crew with their buddies. They go hunting and bicycle riding, skiing in the winter, whatever they do. It's a very tight, close family.

Ted Simons: And obviously they had to have been working relatively close together, correct? Or not?

Jim Paxon: A lot of these hotshot crews build line so fast,if I've got a tool, I'll hit a lick. So I've got a digging tool, I'll hit a lick and move three or four feet. The next guy hits a lick, like that. By the time you get to 20, it's a trail with the vegetation removed. That's how you keep the fire from crossing that trail. So they have such teamwork, and such dedication, and they all work together. It's a marvelous machine.

Ted Simons: The nature of this fire, it sounds like chaparral, grass, this sort of thing. Talk to us about the fuel here, compared to the fuel in like a Rodeo-Chediski fire.

Jim Paxon: Well, the Rodeo-Chediski was forested. There were meadows and such, but this is a chaparral type. There's some pinon juniper. In the draw there's heavier fuels, catclaw and mesquite and palo verde. There's a lot of shinle oak and a lot of mountain mahogany. I just had a senior moment. There's a waxy-leafed plant that, when it gets really dry, it burns extremely hot, looks like an oilfield fire. Manzanita. Yes, manzanita. We had good winter rains in that country, and some of the grass was two feet tall and thick. Combination of fuels, a real flashy fast-moving fire.

Ted Simons: Can they be more dangerous? Certainly they behave differently, don't they?

Jim Paxon: They do. Desert fires are extremely fast. That country in Yarnell hadn't burned in 30 or 40 years. A lot of times a chaparral type will burn every 10 or 12 years. We're in the 20th year of a drought, extreme record temperatures, less than 5% humidity, gusty winds, the recipe for a perfect disaster.

Ted Simons: The federal incident management team apparently either is investigating or will investigate. What do they look at in a situation like this?

Jim Paxon: It's much like a criminal investigation. In fact, Yavapai County Sheriff's Office actually did the evidentiary photography. They went in there so they could remove the bodies, get those young men properly taken care of and down to the medical examiner's office. They probably took thousands of pictures. Once you move those bodies, that evidence is disturbed and you can never get it back. The investigators that will come in, all have extended fire experience, extended science backgrounds. A lot of research on how and why fires burn. There's even some weather folks and some social scientists that will be looking at this thing so they can try to reconstruct what happened, see what went wrong and try to have it not happen again.

Ted Simons: Is there a chance that everyone will look at this, that standard procedures were met, everything was done as best as humanly possible, but the simple fact of nature caused this, and there's not much man can do?

Jim Paxon: Well, yes and no. You know, on the Dude fire in 1990 we lost six firefighters. The first one down to those firefighters who discovered the first fatalities was so touched and so driven that he came up with what we call LCES, lookout, communications, escape routes and safety zones. That became almost bible to the firefighters. You had to know which way you went to get to a safe zone and where it was. You had to know your communications with your crew and overhead and with command. You needed to have a lookout on probably both ends of where you were working to spot and tell when your fire was approaching and trouble was coming. We've made such technological advances that this investigation will help firefighters, because we're going to try to see that what happened on the Yarnell hill fire will not happen to another hotshot crew.

Ted Simons: We should mention we have a couple of websites here for those who want to help the firefighters' families. Everybody's looking for something to do. We mentioned earlier, this is a shock to the system for everyone. For you personally, this has to be rough.

Jim Paxon: I spent 33 and a half years fighting fire with the U.S. Forest Service. I'm still a firefighter. This just took the wind out of me. When I found out I shed tears. I was on six fatalities in my career, I hoped not to see a seventh. And here we are. 19 lads went to work Saturday morning, none of them came home.

Ted Simons: Jim, we thank you for your time. Especially the information, and let's hope something, some kind of information from the investigation comes from this, so that we can keep something like this from happening again.

Jim Paxon: Ted, thank you for having me.

Ted Simons: Thank you.

Jim Paxon: You bet.