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tv   [untitled]  CSPAN  June 20, 2009 5:30pm-6:00pm EDT

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>> while i think the for every story that i tell there are ten that tony can tell. that is to say i think anyone going into the supreme court for the first time would be ill-advised to do any of the things that michael did and one of the things interesting to me was really we were dining watching this performance and yet it became clear he was doing something slightly magical. i am thinking of an oral argument this year where carter philips was talking about fleeting expletives and a change in the policy about whether one could, if one were say paris held in puentes where briefly whether you could be fined for that and it was interesting because carter philips who is one of the harlem globetrotters, astonishing but doesn't do a lot
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of flash, he's just meticulously could good on the argument peace and not one to draw attention to himself or anything else. everybody was whispering going into this argument that he was going to actually say one of these fleeting expletives because he'd done it that the court of appeals and moly the court of appeals the whole court of appeals turned into a sailor's bar where the judges were swearing and he was swearing and everyone was swearing. it's one of the most fun oral arguments you can listen to. going into oral arguments there was a scuffle but he was going to go in there and cost like a sailor at the supreme court and at the last minute he didn't and was an interesting choice to essentially say we are not going to be transgressive. this particular court wouldn't have thought it added in fact i think they would have thought it
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massively detracted and so he made one think was a very smart choice to argue the case and not do the bells and whistles that might work at the court of appeals and so i think for me the object lesson of him is a really was an ally. this was not -- i don't think anyone would take away from this particular case the musicco in representing your daughter, get emotional, yell bam, insult the chief justice, everything was a cardinal sin. he pulled it off because of a perfect storm what he was and what the case was in that moment but i do think the lesson i turned from carter philips and the expletive case is don't be too smart. go in and be safe and argue the case would argue respectfully in front. >> anyone else want to weigh in on this question? okay. let me ask you a question. as you were describing the casey
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case and catherine colbert arguments it sounded like she was confrontational. she was combative and sticking to guns. this is the argument i want to make and despite your efforts to get me to deviate from these arguments are going to stick to my guns and in contrast, charles description of bush v. gore and his quotes from ted olson suggest if the justice suggest they want to go in a direction you were going to follow them in that direction so how do you reconcile this? is your case the anomaly or how can we best understand oral? >> if you know katherine you know that she is stubborn at large and she was and remains very committed to her cause. if you keep in mind this was as much a political adventure as it was jurisprudential winter price
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, catherine knew what was on the line and it was a high risk. she was rolling for a major loss if she they're offended kennedy or o'connor because she clearly needed both of them. and from the excerpts we have played for the audience it's clear both of them came into the arguments skeptical of her go for broke approach. i don't think it was -- you could say it was an admiration in the sense that not many causes or that emotional. dahlia's chapter is about another one that is, the death penalty case ase, too. but most time you go into an oral argument, the issue is not quite as close as it was in this case. most of the cases are not bound
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to be 5-for. the courts still decide the cases by seven to two, 63 so when we go into a case that it's likely to be five for the risks rise exponentially. so with kathryn simply understood as a political activity she couldn't do anything else and in fact she was lucky in this sense no matter which way the argument went or the outcome went they had a political issue because if the supreme court struck down roe you could make the argument we have got to get a president that cares about reproductive rights and so, while it was high risk in the sense of catherine colburn may have lost the outcome it was not a political risk because either way they were going to have the kind of political argument they fashioned going in.
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>> that part of casey's or unusual. i would think there were two goals being pursued by the attorney. are there other instances where the lawyers arguing the case have a goal beyond the litigation that is being deliberate. >> most of the time when the case gets in the supreme court it's rare because the court gets something like 8,000 petitions and decide 75. i think most lawyers understand what they are doing is not simply getting a resolution of a fight between party a and b. another case that occurs was the 2005 decision in which the court validated taking away the woman's home and connecticut said they could build a big economic different the was going to support the pfizer pharmaceutical giant. in that case it was clear both sides went into the argument not
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only hoping to win this litigation between these parties but to establish a larger principle and so in that sense i would say the supreme court arguments given how few there are, given what the court is willing to hear almost every case has a secondary in polls the lawyers are going to pursue. it isn't often quite as blatant as it was in pc. >> tell about televising supreme court proceedings. you mentioned in bush v. gore one of the interesting things was as soon as the case was over yet to the audio recordings being made available to the public there's a great deal of public interest in that case, so what would you say about why are the justices reluctant to have their proceedings televised, and
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along those lines what kind of impact would it have on the justices in the oral arguments and attorneys presenting their advocacy? >> this is the case i argued before, the supreme court one by one, justice by justice, trying and to get their perspective on those that would talk about it in any sense and the feeling has been the court at least up until now has been reluctant it has complete authority to cut admit if they chose to but justice souter famously has said over my dead body, that will not be an issue much longer. not that he is in poor health but he's retiring so no more justice souter saying no more cameras. his experience on that relates to the state court which did have kim ross, and he felt that he pulled his punches in questioning because of those cameras that he might not have
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been perhaps as confrontational or he was just his attempt in some dimension and formulating his questions. i don't know that every justice would take that approach. certainly chief justice rehnquist was sympathetic to justice souter's positions and said as much as so long as one member of this accord is opposed to cameras there won't be any cameras. chief justice roberts is not that absolute but he's not particularly in favor. i've discussed this with him. and then you have others who say you can anticipate to the start. cut me up into 62nd sound bites and lose all the context of the argument and i don't disagree with that. but we do that in quotations. we do that in graphics, we do that and had lines and if you had the complete mess perhaps
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the justice might not grumble as much and i personally think c-span would be an ideal place to do it. the 60 minutes of its kind of nicely. that is my argument. why not. doesn't the american public deserve to see this? >> there's another argument and suitor makes this argument as well is it is a matter of security. and souter likes his anonymity. he is not easily recognized. he likes to tell stories about people that would come to him in grocery stores and say you look like the fellow on the supreme court and he says a lot of people told me something like that. but he genuinely believes that if they become public personalities he is sure that would be a product of putting their faces regularly on television than they would be confronted with a personal security problem.
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>> that is if you were a judge in colombia putting deals behind the bars but that is a false argument. >> it's an argument that from charles perspectives has been persuasive with his colleagues and so i am not sure that i am persuaded myself by the argument and as a fact my own sense and charles i know agrees with this if there is a constitutional right of public access to public proceedings you cannot say that right of access depends upon what you will do with the information that you gather and sell mauney sense is there should be as we know ever since 1980 there is a constitutional right of access to sitting on court proceedings generally public. my sense is that includes the opportunity to bring a recording device and then reproduce the architect elsewhere but i didn't get a vote on that.
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>> i think charles is right that the justices, you know, they still like to be able -- the don't like cameras in part because they can still single. there are not many other institutions that have that choice anymore. but i think the momentum of the internet, congress is getting impatient. the direction is in favor of cameras in the court and i think eventually they are going to have to say yes and in fact justice souter and willingly gave support to this momentum by his valedictory speech that he gave not very far from here where he said the state of public knowledge about the structure of government is abysmal and we have to improve civic education for this new generation and what better way to teach about the supreme court
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than to allow cameras to cover the proceedings with. >> that's a lot of the argument. if you get a case that involves the question of when can a planned administrator for the risks of benefits sioux and under what conditions can that administrator the sood i am not sure anybody is going to turn on rachel maddow and watch instead. >> to complete the circle since we are talking about audio, even more bizarre than the court power to say no overall video is the courts policy on when the alladi yell and one of the things that has been driving me insane is that, you know, one of the only times the public gets access to audio are in the opposite of the case, the court by some metric that is notable to humankind decides which oral
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arguments are going to get this instant audio treatment and there is usually two or three a year since bush v. gore but i think it is a colossal mistake to say let's do the audio for the abortion cases, the affirmative action cases, the cases that make people insane and that make the justices act out and that if you are going to allow only selected fabio, my god, allow audio that is represented of 90% of the court's docket which is not all that sensational but i think this current policy of allowing audio access only on the cases in which scalia is guaranteed to say something that is really a good sound bite or, you know, that justice souter is guaranteed to say something that makes people think the court is a completely ideological body. this policy is an absolutely the opposite of what is good for the court. >> can i ask a question about
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your case? justice scalia once remarked that not infrequently a lawyer who has done a terrible job in brief and oral argument wins the case. and you know he's going back to the client and say you know, while we did it for you again, scalia then there's no market for the argument or oral presentation. it's but who has the better case. so given the arguments by the campaign, couldn't the justices sweep by his faulty arguments, which is sort of leads to the question of what role do the world arguments have been supreme court decision making. >> that is a never-ending debate and i think the general action is [inaudible] i think my chapter reports on a case where the oral argument might have lost, somebody with more persuasive argument might
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have flipped one boat that is all we would have needed but overall it is just the point is clear there have been many cases we could count hundreds probably where the poor oral argument when somebody makes a poor oral argument -- [inaudible] the case is on his or her side but i think that still doesn't answer the whole point. >> of justice paul once told me it made a difference -- [inaudible] he would go in and discuss with of the clerks and at that time he second-guess himself and it didn't go the other way entirely but at least -- [inaudible]
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i would say and i said this in discussing the chapter the purpose of oral argument is -- [inaudible] i don't know if the public knows this entirely but they cast their first vote very quickly afterwards [inaudible] case is heard wednesday and thursday they cast on friday in congress by conference and so the court is when to put on record for itself the impression of where are we going to go and it may not be a substantive discussion but it is the discussion that these two -- that don't usually is who gets assigned the task [inaudible]
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in that sense if lawyers to a shape -- [inaudible] sometimes the bad ones are as well but i think that's why the court won't ever dispense with. there used to be a time many years ago right after the court disposed of some cases without an oral argument. they just decided that that was back in the time they had 125, 150 pieces, so the court is capable of doing away but i think enough of the justices think it is valuable. >> i would add to that a number of justices that have topped with sauce that have made this quote exactly but it goes along
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the lines of justice powell and that is there for been numerous times when the way that my mind and my depue of a case shapes out of an oral argument after the way i fought with shoup prior and we often see on the news and in newspapers and online not from news reporters and others is the court affirmed the decision and the reader has been guilty in the past of this as well that it's been a firm or the lower court has been reversed. the case isn't about seven to two or five to four or nine to zero, it is about the substantive law created in the case. there's others who have talked about how oral arguments can affect the decisions. it's not affecting their votes most of the time but what it is affecting is their view of the court sets there for a justice may continue to say i am going to a firm but in the and maybe she has persuaded so it doesn't
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go as far as she thought it would prior to the argument or maybe it goes earlier than that, so the point is and for my own research and i know some research paul has done as well oral argument can have an affect on the legal outcome of the case not necessarily just the vote that is produced by the justices. >> let me just add another point here. in the present operation of the supreme court seven of the mine and justices use a pool of clerks. that is each case they are considering is examined by one clerk for 17 years so what that means is that the group of seven is going to see hearing of the case or not hearing the case and what that does is move still justices even further from the
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intimacy with the case and so that enhances the importance of this first exchange they are going to have on the bench because they've already delegated the process so they don't talk about that -- [inaudible] i think that contributes to the sense that the [inaudible] >> i would also throw and the notion a good war will maybe what the justices are in time to time looking for and they certainly choose the case is based upon the best facts and i get the sense they are more engaged in many instances when they know who is arguing the case. certainly what struck me about -- the dialogue, this is an engaged conversation when there was no one with the exception of
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justice thomas not participating in this -- even my own case as a reporter covering there may be a case i wasn't particularly interested in that had an interesting and effective attorney argument and i've gone to court just to hear john roberts are giving the case. >> i think it is maybe also just worth adding that the use oral argument in different ways and we are talking as though all of the language used is to the same and and i think going back to charles discussion with bush v. gore there are arguments where you see who has made up their mind. i don't know that justice roberts changes his mind a lot based on oral argument. and i think as the tar also said we often get into the situation where advocates are literally ignoring questions to take justice kennedy's questions or some of these chapters justice
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o'connor's questions because there's a feeling these four justices to use oral arguments to actively tease out something they are working on, so i think different justices do the way to oral argument and i think one of the reasons that clarence thomas says he doesn't speak of oral arguments he says there is no point in them at all. >> i am afraid we need to wrap it up here but i think that we could have a conversation that lasts another hour on the topic of oral arguments but we've been talking about the new book by tim johnson and jerry goldman, "a good quarrel" but not by michigan press the i want to thank the panelists for making the time to talk about oral arguments. it's been a fun exchange and latterly there are no quarrels on this today. i want to thank georgetown university law center for hosting the discussion and want to thank you for coming and watching today. thank you.
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[applause] jerry goldman is in northwestern and for some professor of law and directs the oyez project. timothy johnson is university of minnesota professor of law and political science. for more or informational and timothy johnson, visit for information on jerry goldman, the c-span's six bus is traveling the country visiting libraries, bookstores, festivals and authors. here are some of the people and places we visited. >> we are here at the lexington public library's branch with bob sloan. you often write short stories about life in appellation. tell about the true story that is accounted in the valley of the shadow. >> there was a feud in the
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county where i am from that occurred back in the 1880s and my grandfather -- my paternal grandfather, my dad's dad was born in 1877. the feud lasted about 1884 to 1887 depending on who you talk to. so i grew up hearing first hand accounts of some of this. my grandfather was friends with one of the principles of this thing. everybody knows about hatfield and mccoy and some of the other feuds. the round county viewed was absolutely the bloodiest and most significant of all of the east kentucky vendettas mountain view is. nobody knows about it. because when it was over, or when the worst part of it was
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over, a meeting was held after a day, one day, in which about ten people were killed. basically one side invaded morehead, kentucky and killed all of the leaders of the oversight. a meeting was held and people decided we won't talk about this, ever. and they didn't. so it is kind of like it in history. but the militia was called in to occupy more had three times. the legislature seriously the considered abolishing brown county as a political entity because they thought that would be one way to ended. but it's for anyone who cares about feuds or is interested in the history of the hills it's a wonderful story. it's one that nobody knows.
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nobody outside of round county outside eckert lenni latinos and even in the county i talked to a young man a while back who is the great, great grandfather was one of the primary players in this thing and i asked this guy i said what do you know about the around county viewed and he said what. and the other thing most significant -- i will get through this quick -- most interestingly about the feud, a guy named frank button from back east brought his mother, foebe, from morehead when this was over to civilize the mountain and the pioneer and they started something called more had a normal school, the more had college which became the normal school which became morehead state university which has had this enormous impact from around
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county and moorehead. so out of this horrible feud came at few good things. but that's the feued. >> what is the life like for people in appellation? >> that is a good question. there is an organization in the county every now and then they call me up especially in the summertime and they are in the business of bringing kids down here from all over the place. they do a little work. they will go out and put a roof over a guy's house that can't afford to delay or something like that, and they bring -- they bring 30, 40 kids, sometimes 80 kids to my house and we always have a big bonfire and what i'm supposed to do is talk about history and tell them some stories, and one of the things in this great
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homogenization of society that's going on, kids eat the same stuff. i don't care where your ad, they go to mcdonald's, listen to mtv, which the same tv shows, so they are pretty much the same. with 80 kids, and maybe 15 or 20 of them from eastern kentucky, them up. a person would be hard pressed to pick out who is from these mountains until you start asking questions and the killer question i found is if you ask these kids what was your great grandfather's name, kids from down here tend to know that. if you ask them how many of you have been to your great great grandfather's grave or great grandfather's grave, the kids from kentucky will raise their hand. we are i think


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