Video: Supreme Court justices face off over Voting Rights Act

>>> the simple protected right to vote as racial entitlements baffles me and offends me.

>> welcome back to "hardball." that was texas congresswoman sheila jackson lee reflecting the visceral reaction to justice an tony an scalia 's comments. by characterizing the voting rights act as a racial entitlement scalia may is unwittingly energized voting rights supporters. just this afternoon the actual audio tapes of wednesday's arguments were released by the court so now the words that caused such an uproar can be paired with the voice.

>> this last enactment, not a single vote in the senate against it. and the house is pretty much the same. now, i don't think that's attributable to the fact that it is so much clearer now that we need this. i think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. it's been written about. whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.

>> joining me now are two people who were in the courtroom for the arguments. julie fernandez , a former deputy attorney general in the civil rights division of the justice department , and daleh o of the naacp legal defense and education fund who has worked on this case from the beginning. julie , take me in the supreme court . what was the body language? what was the vibe when they get into it? meaning justices scalia and sotomayor and kagan?

>> i think that a lot of people were surprised to hear justice scalia refer to the voding rights act as a variable entitlement. no one know what is he was actually thinking but i think the word entitlement suggests somehow that you're getting something you didn't earn and for many of us we think of the voting rights act and the right to vote as sort of an equality mandate for all americans . it's an equality mandate, not some kind of an entitlement, something that when the voters of texas and in texas , african- americans and latinos, federal courts found that they were intentionally discriminated against. their right to vote, section 5's ability to stop that, that's not a racial entitlement. that's american justice .

>> i don't believe, dale, that voting is a racial entitlement. i don't know how anyone could make such a statement to giving him the benefit of the doubt , it was bone headed what he said at best. as i read the full context, he seemed to be saying we never unwind benefits that are given to a particular group demographic by way of example. is he right in that respect?

>> well, first of all, i don't think he's right in that respect at all. i think what he's trying to say if i can try to get into his mind, i know julie didn't want to try to do that. he's trying to articulate the argument that the plaintiff was making in this case, that racial discrimination is largely a thing of the past and therefore we don't need things like the civil rights act anymore. these are luxuries that have become in their view entitlements, and, unfortunately, nothing could be further from the truth. we have, in fact, seen tremendous progress over the last 50 years but we also see tremendous discrimination and the right to be free from that discrimination when you're exercising the right to vote is not entitlement. it's an american birth right.

>> we have to play for everybody the tapes because they're stunning. the two of you were there. justices sonia sotomayor and elena kagan both new to the bench gave some of the strongest push back to skra lea's premise. here with the lawyer representing shelby county justice sotomayor directly challenging the comment.

>> do you think the right to vote is a racial entitlement in section 5?

>> no, the 15th amendment protects the right of all to vote and --

>> i asked a different question. do you think section 5 was voted for because it was a racial entitlement?

>> well, congress --

>> you think there was no basis to find that --

>> may i say congress was reacting in 1964 to a problem of race discrimination which it thought was prelent in certain jurisdictions. so to that extent as the intervenor said, yes, it was intended to protect those who had been discriminated against. if i might say, i think that --

>> do you think that racial discrimination in voting has ended? that there is none anywhere?

>> i think the world is not perfect.

>> julie , was she speaking to him or was she speaking to justice scalia ? what was going on? where was she looking when she said that?

>> i think often the justices and in this case likely too, they are talking to each other as much as they're talking to the lit gabts.

>> using him as a means --

>> as sort of a prop in a sense, not a nice word, but just as an opportunity to have a conversation so they can talk to each other about what's really going on. but i do think i want to say what's really going on here are two things. one is there a case to be made there is continuing voting discrimination in states all over the south and other parts of the country that's race-based, that section 5 prevents, and the question is whose job is it to determine when that job is done? so that's both about the continuing need for section 5, but also the role of congress versus the role of the court. that's the conversation that they're having. and that's the conversation that's really important for us as a country to kind of get to.

>> justice scalia questioned whether congress was equipped to decide whether the voting rights act should be extended because they'd be too concerned about appearing politically correct to voters. listen to this.

>> this is not the kind of a question you can leave to congress . there are certain districts in the house that are black districts by law just about now. and even the virginia senators, they have no interest in voting against this. the state government is not their government, and they are going to lose -- they're going to lose votes if they do not re-enact the voting rights act . even the name of it is wonderful. who is going to vote against that in the future.

>> this 250i78 it was justice elena kagan who rebutted his arguments in her exchange with the shelby county attorney. listen to this.

>> you said the problem has been solved, but who gets to make that judgment really? is it you, is it the court, or is it congress ?

>> well, it's certainly not me.

>> that's a good answer. i was hoping you would say that.

>> but i think the question is congress can examine it, congress makes a record, it is up to the court to determine whether the problem indeed has been solved and whether the new problem, if there is one --

>> well, that's a big, new power that you are giving us that we have the power now to decide whether racial discrimination has been solved?

>> dale, it occurs to me that justice scalia has had that hardball playing surface to himself when the supreme court is having arguments, and now you've got him balanced by sotomayor and elena kagan . i guess what i'm saying is breyer is a pretty amiable kind of a guy. you don't often see standing up to scalia . it seems like the dynamics have changed on the bench in terms of the arguments.

>> well, whenever you have new justices it's going to change the dynamics a little bit and i think everybody would agree that's happened begins justices sotomayor and kagan zwrouned the bench. they brought the conversation back down to reality a little bit. scalia made these comments that were a bit incendiary and what jaws tus casing and justice sotomayor tried to focus on are the facts. the facts of continuing discrimination in places like alabama. sotomayor noted there have been about 240 discriminatory voting law that is have been blocked in alabama alone since the last time the voting rights act was reauthorized. the question show posed to the lawyer for shelby county at the beginning when you have that kind of record how can you stand with a straight face before this court and say that you no longer need federal observation over your voting laws?

>> my only regret about this is that we as americans can't watch what the two of you had the opportunity to sit and witness in person. i'm going to say more about that at the end of the program. thank you julie , thank you dale ho. up next, ever wonder who the 12% of americans are who say they approve of the job that congress is doing? well, we found them. and that's next in the "sideshow."

>>> don't forget, if you want to follow me on twitter and i hope you do, you just need to spell smerconish. this is "hardball," the place for politics. how can

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