GWEN IFILL:  Foreign policy setbacks in Asia and the Middle East.  Domestic legal challenges here at home.  Tonight on “Washington Week.”

PRESIDENT BARACK OBAMA:  (From clip.)  One of my jobs as president is to worry about a bunch of different problems at the same time and not just pick and choose which problems I have the luxury to worry about.

MS. IFILL:  It’s fair to say the president has a bunch of different problems to worry about:  territorial disputes, tragedies and trade issues as he travels through four Asian countries; and half a world away, collapsed peace negotiations in the Middle East.

PRIME MINISTER BENJAMIN NETANYAHU:  (From clip.)  Right now we have a partner that has just joined another partner committed to our destruction.  No go.

SECRETARY JOHN KERRY:  (From clip.)  We will never give up our hope or our commitment for the possibilities of peace.  The leaders themselves have to make decisions.  It’s up to them.

MS. IFILL:  As the president tackles foreign policy, the Supreme Court and the Justice Department focus on the domestic front, with the high court weighing in on affirmative action and the challenges of technology, and the attorney general acting to grant clemency to potentially thousands of prisoners.

ATTORNEY GENERAL ERIC HOLDER:  (From clip.)  The Justice Department is committed to recommending as many qualified applicants as possible for reduced sentences.

MS. IFILL:  Covering the week:  Indira Lakshmanan of Bloomberg News, Doyle McManus of the Los Angeles Times, Joan Biskupic of Reuters, and Carrie Johnson of NPR.
ANNOUNCER:  Award-winning reporting and analysis, covering history as it happens.  Live from our nation’s capital, this is “Washington Week with Gwen Ifill.”  Once again, live from Washington, moderator Gwen Ifill.

MS. IFILL:  Good evening.  If the third time is supposed to be the charm, then President Obama’s Asia trip was designed to keep some long overdue, twice-cancelled promises.  But even as his plan to emerge with a grand trade deal unraveled there, so too did efforts to move the dial in the Middle East half a world away.  Secretary of State John Kerry said the window has not shut completely for the Israeli-Palestinian peace talks, which collapsed yesterday.  But the president, speaking today in Seoul, sounded more pessimistic.

PRESIDENT BARACK OBAMA:  (From clip.)  Folks can posture, folks can cling to maximalist positions, but realistically there’s one door, and that is the two parties getting together, making some very difficult political compromises in order to secure the future of both Israelis and Palestinians for future generations.  We have not yet seen them walk through that door.

MS. IFILL:  And what’s more, the president said he doesn’t see anyone walking through that door anytime soon.  So where do we stand tonight, Indira?

INDIRA LAKSHMANAN:  Well, as someone who’s been watching this process a lot longer than I have said to me today, the Middle East peace process is where good intentions go to die.  And it’s – you know, it’s very unfortunate; I think there’s a lot of blame to go around on all sides.  We heard Secretary of State John Kerry testifying on Capitol Hill a couple of weeks ago, when already the peace process was on life support, and this was just at a time when in fact the Israelis had refused to release Palestinian prisoners in a tranche of prisoners that was supposed to happen, and the Palestinians, as a result, had reacted by saying, OK, well, we’re going to join 12 different international treaties and organizations, then, independently as the State of Palestine.

    So both of these were against the plans that were supposed to be happening.  The Palestinians could say, well, the Israelis did it first; we only reacted. The Israelis say, well, the Palestinians were not giving enough at the table; we were reacting to them.

MS. IFILL:  But in the end it was Israelis who walked away.


  And they walked away, they said, because of this unity deal that their sworn enemies had entered into.  Is that the real reason?

MS. LAKSHMANAN:  Well, there are those who say that Netanyahu, the prime minister in Israel, took it as a convenient excuse to basically pull the plug on a peace process that was already on life support.  But the fact is, it’s a difficult situation because you have Fatah, essentially the PLO, with which the Israeli state was negotiating, making a unity deal with Hamas, who runs the West Bank.  It’s difficult to see how Israel can be in peace talks with a group – Hamas, a terrorist organization, according to the U.S. and Israel – that doesn’t recognize Israel’s right to exist.  

At the same time, there is a sort of Catch-22 because Netanyahu’s government has said many times, how can we negotiate with Palestinians who are divided?  It doesn’t make sense to negotiate with only part of the Palestinians.  But then when they unite, when they try to unite, you know, there’s the answer, well, it’s very difficult to negotiate with them if they don’t recognize us.

MS. IFILL:  (An old-fashioned ?) Catch-22.

MS. LAKSHMANAN:  That’s right.  That’s right.  

JOAN BISKUPIC:  Indira, tell us about John Kerry and elements that might – might have worked out.  Are there any parts, any pieces of a potential agreement that you know were on the table that we might be closer to?  Or just give us a little bit of a status report before they broke down.

MS. LAKSHMANAN:  Right.  Well, John Kerry has all along said that everybody knows what a final deal looks like; that basically, you know, there are four main issues on the table, and maybe the most contentious among those are borders and the status of refugee return, but that ultimately everybody knows what a final deal would look like.

    Now, the problem is that you have in this case two leaders who, although we wish they would have, seem to not have the political will or capital to actually make really difficult decisions that were going to make them unpopular at home.  And so ultimately, they end up being status-quo leaders instead of pulling a sort of “Nixon goes to China,” which people were hoping for from Netanyahu.

CARRIE JOHNSON:  Indira, did Secretary Kerry invest too much in this process?

MS. LAKSHMANAN:  Yeah, that’s a question that a lot of people have been asking.  I would say that it’s not as if he was only doing Middle East peace.  It’s true that he made a dozen trips shuttling back and forth to the region, but at the same time, he was still working on Syria and chemical weapons, he was still working on Iran and shuttling to Geneva for that deal to be made.  He was working on other things, too.  But, you know, he said rather passionately on Capitol Hill recently, look, you know, you can blame me if you think I put too much effort into this, but it’s an effort worth making.

    Now, the problem is, is there a constituency outside of John Kerry and the State Department and the United States for peace?  And it seems like it’s a very emaciated Israeli left, and the Europeans, and there may not be enough people in Israel and among the Palestinians who actually want to make peace happen.

DOYLE MCMANUS:  I want to ask a kind of a different version of the same question.  Aside from John Kerry’s time and energy and maybe some extra gray hairs, was anything lost here?  Are we farther behind?  Does the United States get credit in the region for giving it a try?  Kerry kept saying, you got to try.  And is it worth putting in more time to try and resuscitate this process?

MS. LAKSHMANAN:  I think at this point nobody in the State Department is putting in more time right now.  They’re waiting to see where the chips are going to fall.  And this unity deal – let’s not forget that there have been three previous attempts to have unity deals over the last seven years, and all of those have fallen through.  So it’s possible that they will not be able to make a unity government within five weeks, and some people are kind of counting on that and hoping peace talks will restart.  Even if that’s what happens, I think at this point, you know, as has been indicated by Kerry, you can lead a horse to water but you can’t make him drink.

MS. IFILL:  Well, and it’s not – didn’t go unnoticed today that what the president says is we need to put a pause on this process for a while.


MS. IFILL:  So I think it’s, go focus on something else, John, and we’ll get back to you.

Things were no simpler in Asia this week, where the president’s travel plans included Japan, South Korea, Malaysia and the Philippines.  The take-home trophy was supposed  to be a big trade deal, which did not materialize.  Instead there was talk of sanctions, missile tests and transportation disasters in two countries.  Is the much-ballyhooed Asia pivot doomed to suffer from distractions both there and elsewhere, Doyle?

DOYLE MCMANUS:  Yeah, because it’s a complicated world and there are always going to be distractions.  And the Asia – the Obama administration’s pivot to Asia, which originally was part of their desire to get out of Iraq and Afghanistan and all those entanglements in the Middle East, has always been bedeviled by distractions.  That’s sort of, you know, part of the territory.  

    But actually, I think you can look at the president’s trip and see a step forward.  Number one, he finally got there.  Yes, there were other problems to deal with.  The big question in the minds of everybody in Asia is not just is the pivot real, but is the United States strong enough and dynamic enough and big enough to make it count anymore?  And so that’s, in a sense, why Ukraine, even though it’s the other side of the world, has a lot to do with the pivot to Asia.

    Those countries in Asia are looking at Ukraine and saying, is the United States and the West going to do anything to help the Ukrainians?  They’re looking at NATO; does it matter to be a member of NATO?  So a lot of this was shoring up traditional allies, reaffirming those ties.  And that was important.

    Then there’s a whole lot of other stuff.  There’s North Korea.  There’s Japan.  There’s trade.  There’s –

MS. IFILL:  There’s China.

MR. MCMANUS:  There’s China.

MS. IFILL:  China, the big elephant in the room.

MR. MCMANUS:  But still, I’m going to say the bottom line – to quote a great diplomatic strategist, Woody Allen – (laughter) – 80 percent of life is just showing up.  And by finally showing up, President Obama actually made the pivot kind of real.

MS. IFILL:  I think that’s our first Woody Allen reference.

MS. BISKUPIC:  That is.  And on a lighter note also, the word “pivot.”  Now, the administration isn’t crazy about that word.  What does it mean and what –

MR. MCMANUS:  They’re very uncrazy about that.

MS. BISKUPIC:  Yeah.  What are they actually trying to do?  What would be the better word for – that you think?

MS. IFILL:  And don’t say “reset,” because that didn’t go so well –

MS. BISKUPIC:   Yeah, that’s not a good word either.

MR. MCMANUS:  It’s not reset.  And the embarrassing fact is, they’ve been saying for many years now, we never actually said pivot. Actually, if you go all the way back, Secretary of State Hillary Clinton wrote an entire article about the need for a pivot. So she’s going to have to explain that if she runs for president.  

    So the problem with a pivot is it means you are – I’m going to demonstrate here – (gesturing) – it means you are turning away from something to something else, and so the people you just turned away from are saying, what are we, chopped liver?  And everybody else in the world who wasn’t in Asia thought they were the ones being turned away from.  And the people being turned to get a little nervous that you’re leaning in on them, and then they want to find out if it’s real or not.  So –

MS. LAKSHMANAN:  Doyle, the administration likes to use the word “rebalancing,” right?

MR. MCMANUS:  Rebalance –

MS. LAKSHMANAN: To try to say everybody’s equal, we’re balancing you all.

MS. IFILL:  Which is not even possible.  (Laughter.)

MR. MCMANUS:  Even “rebalance” isn’t great, because it sounds like it used to be unbalanced. Ken Lieberthal, who’s a wonderful scholar of Asia at the Brookings Institution, says we really should have just said revitalize.  That’s not very sexy.  Anyway, I’m going to say what we really need to show is that the United States is capable of multitasking, or, as we used to say, that we can walk and chew gum at the same time.

MS. IFILL: Or as the president says, there’s a bunch of stuff, which is –

MR. MCMANUS:  As he so eloquently put it, a bunch of stuff.

MS. LAKSHMANAN:  Let me ask you, Doyle, because you mention how Ukraine is important, and I think you’re absolutely right that Asian leaders are watching what we’re doing.  And I‘m wondering whether all those companies that have disputes with China over the South China Sea and the East China Sea – are they looking at Ukraine and wondering what is the U.S. going to do about territorial disputes?  Plus the question of treaty allies, Japan and South Korea as our treaty allies.

MR. MCMANUS:  Absolutely.  Absolutely.
MS. LAKSHMANAN:  And the Philippines.

MR. MCMANUS:  And it’s almost uncanny that there’s this analogy here, because the whole fear of China among its neighbors is that China keeps drawing these lines on the map, saying, oh, this part of the South China Sea, that’s ours.  Those rocks over there, Japan’s been administering them for 50 years but, you know, they’re ours.  And there’s kind of an analogy there, you can’t get away from it.  And even though the administration’s been saying all along, this trip isn’t about China, it’s about our positive relationships with these other people – any time somebody says it isn’t about China –

MS. LAKSHMANAN:  It is.  (Laughs.)

MR. MCMANUS:  – it’s about China.  

Now, the big point the president made in Japan – this is really kind of very subtle – the treaty – the United States has a security treaty with Japan.  There’s these islands, Senkaku Islands in Japanese, Diaoyu in Chinese – my pronunciation is bad in both languages – and President Obama said the treaty covers it, even though, he said, it’s just a rock and we don’t want anybody to go to war. So he was trying to lean a little bit on both sides, telling the Japanese, don’t –

MS. IFILL:  Quick.

MS. JOHNSON:  Doyle, there was supposed to be a trade treaty signed.  Nothing happened.

Oh, yeah, the trade treaty. Yeah, that was supposed to be kind of the cornerstone of this whole thing, and it got bollixed up in traditional U.S.-Japanese stare-down.  The administration – the Obama administration came out and said, well, we made so much progress, it was a breakthrough anyway.  The Japanese weren’t saying it’s a breakthrough.  In fact, their trade negotiator said, I wish I never took this job.

MS. IFILL:  So much to talk about, but we have to move on, back here to Washington, where two branches of government took significant legal steps this week on long-standing debates.  At the Supreme Court, the justices decided, 6-2, that the state of Michigan must enforce a voter-approved ban on affirmative action in higher education.  And the Department of Justice set in motion a plan to free perhaps thousands of inmates jailed under outdated sentencing guidelines.

    First the court.  This is only the latest move to roll back affirmative action, it seems to me.  We’ve been talking about this a lot, Joan.

MS. BISKUPIC:  Yep, since 1978, in the Bakke case, when the Supreme Court for the first time said that you can have race-based affirmative action but not quotas.  And, you know, we’ve come a long way since then with this court, under John Roberts, chipping away, chipping away.  

    Now, the case that we just had this week was not a direct test of affirmative action in higher education, but rather whether a state could outright ban it so that its higher-education institutions could not even use those kinds of policies.

MS. IFILL:  By ballot initiative.  

MS. BISKUPIC:  By a ballot –

MS. IFILL:  So voters’ voices were involved.

MS. BISKUPIC:  Exactly.  And it was a 2006 ballot initiative.  And that’s what really mattered to Justice Kennedy and the conservatives who were on that side.  And it wasn’t just the conservatives.  It was also Justice Stephen Breyer in there, saying it’s not for the courts to determine whether we’re going to have affirmative action in a state; the voters can do that.

    Now, there are a handful of states that have it.  Michigan is one of them.  And Michigan actually enacted that ballot measure in response to an earlier Supreme Court ruling that allowed affirmative action.  It was a very divisive ruling that prompted the first-ever dissent from the bench by our first Hispanic justice, Sonia Sotomayor, and it showed a lot of tensions among the justices:  five different opinions, hundreds of – more than a hundred pages, just saying, you know, where are we at in America in terms of affirmative action.  Even though that wasn’t the exact legal question – it had to do with the power of the voters to enact this – underlying it all is just what’s the future going to be.

MR. MCMANUS:  Joan, talk a little more about the tension.  When you say a dissent from the bench, you mean Justice Sotomayor read it out loud.

MS. BISKUPIC:  Yes.  What usually happens – mostly we have these in June, when a dissenting justice feels so strongly about his or her opinion that it will be read from the bench.  Normally it’s only the majority opinion that’s read.  And so after Justice Kennedy, who wrote for the majority, went on for about 12 minutes saying, you know, exactly why the court was ruling this way in favor of the Michigan ban, she then explained for more minutes exactly what was at stake here, and essentially said, not just is this ruling wrong, but you don’t get it; you don’t understand how important these programs are to people on the margins.

    And this was the first time we really heard this voice.  You know, think of when she was nominated and approved in 2009 by Barack Obama, the first African-American president, to name this first Hispanic.  People wondered how she would use her voice. And it came through pretty loudly this week.

MS. LAKSHMANAN:  Right.  OK. So I want to ask – I get the legal basis for saying you can’t overrule the voters here.  But at the same time, she’s making a very valid point. And the whole idea, I thought, with affirmative action was to keep it going for as long as you need it.  So if it’s still needed, what’s next now?  Where does this leave us with states?

Well, there is a case coming back.  Last term, we had a University of Texas case that was a much more direct challenge to affirmative action in higher education.  The justices in a sense essentially punted in that case, said that we’re going to allow higher education to continue using race-based affirmative action, but we want more scrutiny for it.  That case is now playing out in Texas courts, and I would think it’s going to be back in the next year.  And what could happen down the road is the Supreme Court not only say that voters can get rid of these, but also say that, no, even if – higher education in a state where voters haven’t exerted their will that way, you can’t do it either.

MS. JOHNSON:  Joan, how did Justice Breyer come to vote with the five conservatives on the court?

Yeah.  Well, it really does show you where this court is at, even where the so-called liberals are.  And what he said was, look, this isn’t about affirmative action in higher education, this is about what voters are able to do versus what elected judges are able to do.  And he wrote separately to explain himself on this, but he has already, even in one of the Michigan cases in 2003, had already taken a compromise position.  But it just goes to show the difference between liberals today on the Supreme Court and liberals back in the ‘80s on the Supreme Court.

And Justice Kagan recused herself, it should be said, from this case.

MS. BISKUPIC:  Yes, because she had been U.S. solicitor general and had a hand in an earlier case.

MS. IFILL:  I want to ask you briefly about another case which was heard – arguments were heard this week, and it was about Aereo, which is this newfangled technology, which basically must have confounded the justices in some respects, but it was about the future of television.  And it should be said – full disclosure – PBS was a parity to the complaint.

Yeah.  Well, the broadcasters are suing Aereo, which is a start-up that retransmits broadcast signals to people, for a very small fee, through the Internet.  And the question was, can they do that without violating copyright laws?  

And I love the way you said newfangled, because there was – you know, that’s just the kind of a word that justices would use.  (Laughter.)  And at one point Justice Breyer brought up – he said, remember those so-called phonograph records?  (Laughter.)  And Paul Clement, the former U.S. solicitor general, who was representing the broadcasters, you could feel him trying to bring the whole thing down to earth for the justices, saying, OK, let’s just think about cars, and a car dealer versus a valet service.  If you’re dealing with a car dealer, you’re getting something new.  And he said, that’s what Aereo is really doing here, is something new, whereas Aereo is saying, no, we’re actually just parking our car with a valet.

We’ll talk some more about that in the webcast, because it’s really a fascinating case.  


MS. IFILL:  Thanks, Joan.

    The Obama administration seems to be keeping its promise to use executive clout to change policy.  This time the beneficiaries will be nonviolent offenders who have been jailed  too long.  Even as he announced the new plan, Deputy Attorney General James Cole appeared to anticipate the objections.

JAMES COLE:  (From clip.)  It’s important to remember that commutations are not pardons.  They are not exonerations.  They are not expressions of forgiveness.  Rather, as the president said, they are, quote:  an important step towards restoring fundamental ideals of justice and fairness.

MS. IFILL:  Now that we know, Carrie, what they’re not, how many commutations are we talking about that could be involved as a result of this move?

MS. JOHNSON: So, depending on how you do the math, anywhere between the high hundreds to thousands.  There are about 216,000 inmates in the federal prison system right now, but they’re going to have to apply based on six strict criteria Jim Cole set out.  One is that they have served at least 10 years of their sentence, that they have a clean record inside prison, no significant history of violence, and most importantly, that they have no ties to gangs or cartels, because most of the people who are going to be eligible for this are in prison now for drug offenses, many of them, maybe 8,000, in for drug offenses involving crack cocaine.  Congress, four years ago, changed the sentences, lowered them for crack cocaine.  So as many as 8,000 people still in prison under those old laws could be let out under this new system.

MS. IFILL:  Is there any justified fear that nonviolent drug offenders could be too broad a scope, that means anybody who’s dealt with drugs, which could, you know, have – (inaudible) – effect and is a bad thing – could be let loose on the streets?

MS. JOHNSON:  There is a concern in some quarters about public safety, but the Justice Department says it’s going to carefully analyze every single petition it gets.  Gwen, that’s something that could take the rest of the Obama administration, because even though these criteria only apply to a narrow band of people, most lawyers I talk to say every single prisoner in the federal system is going to try.  (Laughs.)

MS. IFILL:  Why not?

MS. JOHNSON:  Why not?  Why not?

MS. BISKUPIC:  Right.  But what was the reaction on Capitol Hill?  Because there’s been legislation directed toward  this kind of issue.  Were people happy that he was going to try to do it, or do they feel usurped here?

MS. JOHNSON:  Some mixed opinions, Joan, because there has been bipartisan work in the Senate, in particular.  Senator Durbin, along with some of the tea party conservatives – Mike Lee and others – support sentencing reform, particularly for drug offenses.  On the House side, a little bit less so.  And in fact, as soon as the Justice Department came out this week and announced this plan, the chairman of the House Judiciary Committee, Bob Goodlatte, said, ah, President Obama is doing too much via pen – even though the power to grant pardons is, in fact, in the Constitution.

MS. IFILL:  And in fact he hasn’t granted that many pardons since he’s been president.

MS. JOHNSON:  Gwen, Obama has been among the stingiest of modern times.  I went back and I did the math. He’s granted one in every 175 petitions, which is fewer than Ford, Nixon, both Presidents Bush and President Clinton.  

MS. JOHNSON:  Last December he granted something like eight early releases.

MS. LAKSHMANAN:  So what’s the motivation here?  Is it simply to clear out our overcrowded prison system?  Is it nothing more than that?

MS. JOHNSON:  There is an element of that.  It’s really expensive, Indira, to house this many people.  It’s, like, $28,000 a year to house one inmate, house and keep one federal inmate.  

But there’s also a civil rights issue here because when you’re talking about drug laws, they’ve been enforced disproportionately.  And about half the people in the system now for drugs are – in fact, half the people in the federal prison system now are in for drugs, and many of them are African-American and Latino.  And to the extent that Congress went back four years ago and changed the laws and there are still some people stranded inside the system, it’s a fairness issue, not just for the Justice Department, but for the president himself.

So how’s it going to work?  How long is it going to be before the first beneficiaries actually get out?  

Don’t they have to hire a lot more lawyers?  (Laughter.)

MR. MCMANUS:  And I’ll bet Congress is going to give the Justice Department a whole lot of new money to do this, right?  (Chuckles.)

MS. JOHNSON:  Unlikely, Doyle.  Unlikely.  However, there was a call this week  to the U.S. attorneys around the country and to public defenders to come into the Office of Pardon Attorney at the Justice Deparatment to help with this effort.  They want not just prosecutors, but people who are defense-minded, as well, to review these things.  That said, the Pardon Office at Justice has been plagued by delays and backlogs and controversy for years now.  The Justice Department this week put in place a new leader, Deborah Leff, who has a background in equal justice and poverty.  They’re hoping she can help turn that around.  It’s going to still take years, Doyle, for some people to be getting out.

MS. IFILL:  Is this on Eric Holder’s bucket list?

MS. JOHNSON:  Very much so.  He’s been talking since last August about being smarter on crime.  Because crime is at near-historic lows, we can have these conversations now.  And sentencing reform and criminal justice reform is at or near the top of his list, along with voting rights.

MS. IFILL:  Fascinating.  We’ll keep watching for all the other shoes to drop.

    Thank you all very much.  Very busy week.  We have to stop here now, but the conversation will continue online on the Washington Week Webcast Extra, where we’ll dig a little deeper into what did and did not happen in Ukraine this week.  It streams live at 8:30 Eastern Time, or you can catch it all week long at Week.

    Also online, my weekly blog asks the question:  Is good politics extinct?  Maybe I’ll even tell you the answer.  Keep up with daily developments with me and Judy Woodruff on the “PBS NewsHour.”

    Thank you being patient with my allergy-ridden voice, and we’ll see you right here next week on “Washington Week.”  Good night.