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tv   Q A  CSPAN  January 10, 2013 6:00pm-7:00pm EST

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>> what is the true fault line in judges? distinguishing judges? the fault line is not servetive versus liberal. it's rather theories of interpretation which differ greatly from one judge to another unfortunately. c-span: a long paragraph you wrote -- >> guest: okay, i will like it. c-span: one final personal note -- >> guest: oh, yeah, right. c-span: judicial author, there's a co-author, and you're the judicial author, knows there's some and fears there might be many opinions he's joined or written over 30 years what contradict what's written here
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because of the demands of starry desigh sis or wisdom has come late. we're still the judicial author does not say it complies what is written here because wisdom continues to come late or because a judge must remain open to persuasion by counsel and finish saying, yet, the process of got-yous or past or future inconsistencies hold no fear." >> guest: yeah, i thought that was clever, didn't you? c-span: well, i thought -- it was food for -- >> guest: i worry about people pointing out, you know, leading up to say well, you say thus and so, and in your opinion 22 years ago -- i didn't review all my opinions to be very sure that every one of them comports with the truth set forth here. i didn't want to have to do
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that, and for the future, you know, any judge has to be open to persuasion, to acknowledge his past ignorance if necessary so i, you know, i won't swear that i'll follow this in the future, but i probably will. c-span: gotchas, who delivers those in your life? >> guest: a part from my wife? c-span: yeah. >> guest: i would expect it comes from academia. many in academia, probably very many, most of academia who does not agree with the theories of interpretation set forth in this book. c-span: why? >> guest: why? because they prefer theories that augment the power of the
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judge and enhance the power of the law professor. the theory of interpretation set forth here is that it is a very humbling one. it does not leave a whole lot up to the policy discretion of the judge, in fact, leaves nothing. the name of the game is to give the fairest reading to what the people's representatives have enacted. that's what a judge is supposed to do. now, that is an uncongenial approach to someone who wants to do good, who wants to use his office as it can be used to do things that he thinks are good for the society. if one has that zeal, one will not like the approach set forth in this book. c-span: and in the earlier part, which you have label under
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"forward," you have a sentence here, "every lawyer, every citizen concerned about how the judiciary rises above politics and produces a government of law and not of men should find this book invaluable." you know this, you just got accused of being political at the enof the -- end of the term. >> guest: was i accused of being political? i was out of the country. i don't read that stuff. c-span: what happens when you hear them say, oh, he's the most political judge ever. >> guest: you know, times i talk to groups about judging judges. you can't judge napolitano:s unless -- you can't judge judges unless you know what they are working with. if you dislike a judge or -- unless you want your judges to ignore the text they are dealing with, and it's either a regulation or statute of the constitution. unless you want them to ignore
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the text, it's really unfair to judges to say i like the result; therefore, that's a good judge, or, i hate the result, therefore; that's a bad judge. you have to read the opinion. they are trying to reconcile, and then you say, i did a terrible job of interpreting his statute. that's an intelligent criticism, but not just because, you know, you don't like the way the opinion comes out. my opinions do not always come out the same way. i mean, they are not always, quote, conservative, to the contrary sometimes. in some respects, i ought to be the pinup of the criminal defense bar because a number of my opinions have defended the rights of criminal defendants, even though i'm a law and order defendant.
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my job is not to say what ought to be, but what the constitution demands. c-span: we have a group of teachers here this summer, and i asked what they would ask you, and they said they want to know what you advise -- how teachers should teach the constitution. >> guest: teachers, what level? c-span: high school. >> guest: okay. c-span: but how would you want the constitution taught in high school? >> guest: well, first of all, i am appalled that americans get out of high school, get out of college, even get out of law school without ever having read the federalist papers. thing number one, if you want to have the proper respect, and, indeed all that you want to have for the united states institution, thing number one is to realize how brilliant were the men who put that piece of
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work together, and that shines through in the federalist papers. i am always astounded. i can ask a group of law students how many of you read the federalist papers, and it's 6% or something like that. you should not be able to get out of high school without being exposed to what the framers thought they were doing c-span: i mean, is it really something to read in high school, the whole thing? >> guest: the whole thing, yes. people read, you know, number 48, the famous numbers, but only if you read the whole thing do you realize what a breath of knowledge these people had. they were not doing it by the seat of the pants. they had experience in various systems of government, in this country and abroad, and from that experience, they deduced or they applied what james madison called at the convention,
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saying, gentlemen, we are engaged in the new science of government. nobody had tried that before. people ought to appreciate that. it had never happened before, and it will probably never happen again that a system of government will be devised by a seminar. i mean, you know, three month long seminar compost of the political leaders of the entire country. that will not happen again, and you can't appreciate that unless you seep yourself in the times including reading the federalist papers. c-span: in this book, at the beginning, you list a bunch of people that you thank. >> guest: yeah. c-span: we counted -- >> guest: probably missed some too. c-span: twenty-three of your former clerks. we had a former clerk of yours here several months ago, and i want to run this little thing
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and get your reaction to it. >> guest: all right. >> he and i had an intense argument of a statutory interpretation case, and he took me out and says, you have to talk to my clerks now, and i did. they were conservative clerks, marking me as a liberal, and i was the christian, and this was the coliseum, and the lions called in, and i was beaten up by conservatives, and then justice scalia said and said i'm going to lunch. i need to talk to you. he said, okay, i'm going to give you the job, but you can't tell my clerks. i had to go out, and i had to not fumble for the next two hours before my plane left, and i continued the conversation, and then i hear that six months later, the clerks said, justice, you have to hire your fourth clerk, and he said, i did. they were outraged that he would have hired someone who was not
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of the party. >> guest: true story. if he says so. it did not make an impression upon me as it did upon him. c-span: how many clerks have you had? >> guest: four times 26 on the supreme court, and on the court of appeals, what? five times three, so a lot of clerks. c-span: the real issue here is, though, how much do you hire a clerk that doesn't think like you do? >> guest: infrequently, but not never. the problem is i don't care what the policy preferences of the clerk are. in fact, other things equal, i would prefer a clerk whose instincts, who policy instincts are the opposite of mine, but i find it very hard to find a
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liberal clerk who is hard minded and not wishy-washy, who applies rules of law rather than speculating about what the best result would be and so forth and so on. that's not what i do, and i don't want my clerks to do that. when i have been able to find a, what should i say? a flint minded liberal as in the law clerk you just saw, they have been invaluable because, you know, they come at the problems, maybe from the opposite social per special circumstancetive that i do -- perspective than i do, and they are a check upon, and what the judge has to worry about is that instead of applying the law, he's really just implying his own wishes. that's bad, bad judging. c-span: when i, earlier, read
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that line about every lawyer, every citizen concerned about how the judiciary can write above policies, those are the words of frank, and the reason i bring that up is if you look at frank's brother, greg easterbrook, who we see dealing with ecology, why is he the forward writer, and how long have you known him? >> guest: i've known frank a long time. we were colleagues on the foment -- faculty at the university of chicago in the 80s. he went on to be a judge on the 7th circuit, a chief judge of the 7th circuit ultimately, and he wrote the forward because if there is one other name, one other judicial name, associated with the two principle theories of this book, tech and originalism, that is frank.
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you know, and if i had to pick somebody to replace me on the supreme court, it would be franky, and i tend to see things the same because we are both applying the same. c-span: political scientist editorial page writers and sentics depict judges as doing nothing as writing their preferences into the law. >> guest: yeah. c-span: do you agree with that? >> guest: certainly true. >> guest: what do you think of editorial page writers? do you read them? >> guest: to understand all is to forgive all. they have to sell newspapers. they tend to judge napolitano:s incorrectly as i told you earlier. i doubt they read the opinion carefully and see what sections of the statute can be involved. they have not got reaction. this is a terrible result.
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well, sometimes it's a terrible result because that's the terrible statute that congress wrote, and the rule, you know, the rule for a judge ought to be garbage in, garbage out if you're dealing with a statute, you are duty bound to produce an end result so a lot of those editorials are knee jerk opposition to the consequence, not a dispassionate, intelligent assessment of the process of the interpretation that the judge went through. >> one of the prior justices in the supreme court -- >> guest: listen, i have to add too if an editorial writer or even an article writer did what i've just recommended, went through and described to the reading public, oh, the case consistented of this section, 3233b, little i, reconciled with
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524, and, they would lose reedership -- readership in no time. i'm not at all surprised that the newspapers tend to evaluate a case simply on the basis of whether the result seems like a good result or not. that's really all the reader's interested in. the reader is not interested in the rest of that stuff. c-span: let me ask you about something that along those lines, you know, we prepared for your -- this interview, your people at the publishing house told us all keep of rules of things we couldn't ask you about. >> guest: ask me anything at all, i just won't answer a lot of stuff. c-span: oh, i know, four years ago with an interview, we talked about bush v. gore, and i know you don't want to talk about that again, but i want to show you video with an interview with piers morgan, and he asked
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everything he was not supposed to, and you answered it. >> guest: did i do that? c-span: you did. let me show you the clip. >> what has been, in your view, the most contentious? what's the one most people ask about? >> contentious? well, i guess the one that, you know, created most waves of disagreement was bush versus gore. that comes up all the time, and my usual response is get over it. c-span: why is it, you we want on to explain further on that, and we did it four years ago. >> guest: did they tell now not to ask about that? i didn't know. c-span: we're used to that. we get that all the time. >> guest: no, i mean, past cases, i don't mind. ask me about bush versus gore. c-span: you answered that here. i don't want to talk about it.
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>> guest: i don't either. c-span: why judges have tenure, you're in your life. why does everybody worry about things said in public and not having cameras in the room and all of that stuff? why are you so sensitive about that? >> guest: i'm sensitive about it because judges ought -- judges ought to express their views on the law in their opinions. everything i had to say about the real legal issues in bush versus gore was set forth in the opinion that i joined. beyond that, i'm either just repeating myself or adding things that were not the basis for my decision, and i also don't like drawing the courts into the political maelstrom by,
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you know, having their opinions repeatedly pawed over, especially the controversial ones. c-span: why not, though? that's democracy, isn't it? >> guest: i don't mind people pawing over them between themselves, but i don't think it's the role of the judge to give an account of himself, to the people. you know, it's the tradition of common low judges, we get clobbered by the press all the time. i can't tell you how many wonderful letters i've written to the "washington post," just for my own satisfaction and then ripped up and thrown away. c-span: you don't send them? >> guest: you don't send them. that's the tradition of the common law judge. you do not respond to criticism. so why? why is that? it's because what the judge has to say is in the judge's opinion.
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c-span: your biographer, i know you didn't choose, and diffed savage and others at the end of the term talked about you. here's joan talking about you at the end of the term. >> at the end of the very first term in 86, october 8 # 6 term, in 87, nine minutes of him complaining about where the court had gone on the independent council statute. other memorable, roamer v evans, gay rights case from colorado. he does have one just about every term, and it's -- they are always vintage, and it was interesting, though, the idea that he would go outside the record and complain about president obama's order on young people who had been brought here with their parents illegally and undocumented, and he did get a lot of really negative press on it, and, in fact, people suggested he should step down, but, frankly, i think, he will
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still be doing what he does. >> guest: she's right about that. c-span: you will be doing what you do -- >> guest: what's this going outside the record stuff? c-span: that was at -- >> guest: imnumerable cases in which we cite newspaper articles, so many cases, there's no law you can't cite the record. if it's a factual matter up for decision, of course, you can only use the matter set forth in the record to determine the facts, but that's not the purpose for which i used it at all, and we use the public records all the time. the point i made this had nothing to do with the factual determination. i don't want to -- people should read the opinion to see whether my use of that sowled non-record materialfuls
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profit or not. c-span: were you surprised at the reaction when you mentioned president obama and the remarks, the last decision on the arizona decision? when you were told you should resign? >> guest: who? c-span: a columnist for the washington -- >> guest: i don't know that. i don't know that. i was surprised that nip would have thought the purpose for which i use the president's statement and did not criticize the president's statement, and, in fact, i said it might be right, but the only point i made from it was, well, the attorney general had argued before us that the only reason the government was not enforcing the immigration laws rigorously was simply enforcement priorities. it didn't have enough money. they had to decide who had to go first and whatnot, and the point
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i made was, well, even if that was true, in my view, a sovereign state ought to be able to supplement the inadequate enforcement funds with its own funds if it wants to, and then i added moreover, it has sense come to light that the problem is not just inadequacy of enforcement funds, but rather simply the unwillingness, perhaps for good reasons, of the government to enforce the law, and for that purpose, i cited the president's statement. which seemed to be perfectly fair. i did not say the president's statement was wrong, i just said what the attorney general told us concerning enforcement priorities was simply as the public record shows, not the sole problem. c-span: i'm going to go back to
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the book at page 356 and have you explain it to us non-lawyers. >> guest: us. c-span: i knew you were going to do that. that's fair. i caught it just -- the teacher will never forgive. all right. tech chiewrists -- text ualist should be called strict constructionists. it's a pagorative. is that correct? >> guest: i think that people tell me that pejroative is the correct pronunciation. c-span: whether they know it or not, strict constructionism opposed to fair reading text textualism is not one to be taken seriously, and you mention
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laying hands on a priest. >> guest: right. c-span: would you like to explain that? >> guest: a statute made it a crime to lay hands on a priest, and does that mean if you shake hands or pat him on the shoulder? of course not. it's used colloquially to mean violent attack upon a priest and a lot of other things. the first amendment, for example, if you are strict constructionist, you would say that the first amendment does not prohibit congress from censoring handwritten letters because it only protects freedom of speech and of the press, and a hand written letter is neither speech nor the pes content. of course, that's not the understood meaning of the first amendment. it protects freedom of expression, and those two are
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just the most common modes. >> host: -- c-span: can you give us a layman's definition of "textualist?" >> guest: someone who believes the meaning of the statute is to be derived exclusively, exclusively from the text enacted by congress and signed by the president or else repassed over his veto. the text is the sole source that the judge ought to be used in making the judgment. c-span: you, the last part of this book is "13 falsities exposed." >> guest: yeah. c-span: the first one is the false notion that the spirit of a statute should prevail over it letter. >> guest: yeah. c-span: are you exposing this falsity? is this your idea of a falsity,
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or is this what is taught in law school? >> guest: oh, i mean, there's -- it is said in some supreme court opinions. you know, sometimes, you know, the letter of the law is contrary to its spirit, and its spirit must prevail. that's nonsense. the letter of the law is the letter of the law. that's what we're governed by. we're not governed by some judicial determination of spirit which could be anything. the statement comes up often. it is an empowerment of judges, judges can simply say, oh, yes, the text says that, but that's contrary to the spirit of the law, and we're going to go ahead and do whatever we like. i mean, that's just not democratic self-government if people can't have their representatives write a statute, which is to be applied as written. c-span: the heading -- each one
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of those, every time you make a point that this is the 62? >> guest: i don't know, numbers we call them. c-span: okay. touche. here's -- okay, there's all kinds of things on the page to ask you about. the false notion that words should be strictly construed. >> guest: right. c-span: the third or fourth column. >> guest: right. you don't want construe, but construe reasonably, not strictly or sloppily. you want to go right down the middle reasonably. what would the ordinary reader of english interpret this statement to mean? unless it's obviously used in a technical sense. i mean, you know, there's technical expressions and various areas of the law. c-span: the other things on the page to ask you about is one you mentioned, one of the justices an in the book, joseph story,
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and joseph story, as you know, was the youngest justice ever, and he has another thing in common with you of seven children. >> guest: that's pretty good. c-span: you have -- >> guest: nine. c-span: 28 grandchildren, you named them all and were offended by that. >> guest: i continue to be offended. i think that's an unfair -- c-span: now you have 34. >> guest: no, 33. 34's an unreasonable number. c-span: did you bring the list with you? >> guest: no, you give me enough time, i'll come up with all of them. c-span: years and years ago, back in the 1800s, there 33 years, why so much of him in the back? what do you think of him? >> guest: oh, he was one of the greats. he wrote the first comem tear o- commentary on the constitution of the united states while he was a sitting justice. he was a professor at harvard
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law school, a great intellectual, one of the leading intellectuals, maybe thee leading intellectual on the earl court. c-span: taught school. >> guest: oh, yeah, harvard. c-span: and published books the whole tile. >> guest: absolutely. judges have always been part of the intellectual life of the country. unlike in europe where judges are bureaucrats in the ordinary courts, but at least in the more important courts, judges in our common law system have always been part of the intellectual discourse, even in the court of appeals people, like henry and so forth. c-span: had you here -- not here, but in 2006, we had the cameras in front of you, and justice breyer, i want to show you this, talking about judging. >> you're going to see did the
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bad good win or the good guy won? if the good guy wins, great judges, if the bad guy wins, terrible judges that's not true unless every statute written produces a sensible result. [laughter] but, you know, the ideal rule for the honest judge is garbage in, garbage out. you are supposed to interpret the statutes reasonably. even if you don't agree with the result because it's not up to you to decide what's gar beaming. -- garbage, and if you bear that in mind, be careful to praise or criticize judges just because you like or dislike the outcome of the cases. c-span: you said some of that earlier, but garbage in and garbage out. you said colorful things over the years. do you know that when you're on the bench and you do that? is that something you do on purpose? >> guest: no, i don't do it on the bench, but in my opinions sometimes. they make the opinions more
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readable, more lively which is a good thing, especially dissents because there's no reason to read a dissent. i mean, the dissent is a losing side. if you're a lawyer, you want to know what role to follow, read the majority opinion. the dissents, i don't know, you write the dissents, i write them mainly for the law students because the dissent will be published in the system, the law professors, even when they disagree with the dissent, have to present both sides of the case so there's lively discussion. they will publish the dissents, and i like to make it clear, and readable, and even interesting. even funny sometimes. c-span: how much impact have you had on the oral arguments? >> guest: oral arguments? c-span: they are not what they were years ago.
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>> guest: no, they are not what they were. when i came on the court, few questions were asked. i argued before the court once before i was a judge, and i got only two questions, i believe, two, maybe three, from all of them from byron white in the whole time i argueded. nowadays, wow, the whole process consistents of responding to questions from the court. the latter is better. c-span: did you start it? >> guest: i was the one who stouterred it, and that was probablily law school background, by law professor backgrounding and then when our former law professors came on the court, they continued the same route, ginsberg, breyer, another former law professor. c-span: an oral argument on
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audio from 1999, you're asking the questions, and the other voice you hear is, see if you recognize it, is someone making a presentation before the court. >> unless it is, itself, a recipient of federal financial assistance, it's not covered by title 9. now, this is -- >> i don't quite see how the university gets stuck here. as far as the university is concerned, if pursuant to the rules, has denied a waiver, in circumstances where denial would be perfectly appropriate as far as what the university has done, the university has not discriminated at all. >> if the university -- >> the only thing that makes the denial of the waiver bad is the other organization has granted waivers in other universities in other contexts. how do you pin this on the university? >> because the university is the entity that's operating the covered program or activity.
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c-span: recognize that voice? >> guest: i do recognize it. c-span: before the court like 30 times before. >> guest: reports? c-span: yeah. how often is that? you were one time before the court before you sat on the court. >> guest: right. c-span: it was one of your -- the clerk, stepped up and in the health care case. >> guest: that's right. a lot of other cases, former solicitor's general, and former solicitor's general are part of the what you might call the supreme court bar, the regularly appearing supreme court bar. c-span: as you know, after the health care case, and chief justice robert's position on it, a lot of copies written about the personal antagonism of the members of court. i know you answered this the other night, but if you would, talk a little bit more about the
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perception, and first of all, was there a leak that came out on the court on that story? >> guest: i wouldn't. c-span: you wouldn't what? >> guest: i wouldn't talk about it. c-span: you did, though. >> guest: i responded to a very precise question of whether they were slamming doors and whatnot, and, you know, that's absolute nonsense. c-span: but are there -- are there personal feelings behind things? >> guest: i don't want to talk about it. c-span: are there -- let me do this, the answer earlier about what you write in the opinions, has there ever been in your past, making strong statements, personal fallout from that? >> guest: no, you know, i've criticized the opinions of some of my colleagues, and we've remained friends. just as they have criticized my opinions and we remained friends. look, this is the kind of job if you can't disagree, even
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disagree on the law without taking a personally and without, you know, hating the person opt other side, you would have to find another job. that's, you know, that's it. c-span: done? >> guest: done. c-span: anybody that knows you know you are a jolly fellow. >> guest: i am. c-span: why do you take such an intense -- you know, when you deal with this subject, you look like you're mad. >> guest: when what consumption? c-span: just all business of the law. >> guest: should i look jolly when talking about a serious, heart felt issue? the stuff set forth in the book is orthodox. defense the -- it was the traditional approach
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to judging until the middle of the 21st century. we are trying to bring that back. it is a very significant issue of how judges go about giving effect to democratically enacted legislation, and to the democratically ratified constitution. it's a terribly important matter. you want me to smile and look jolly when i talk about that? i don't know. i think i should look impassioned when i talk about it because i do care passionately about it. i'm not angry. i'm passionate. c-span: what makes you mad? >> guest: what makes me mad? c-span: dealing with the law, the court, lawyers before you, issues, the press? >> guest: well, maybe the press -- if you read it, it gets under your skin. i don't much read it, but you get used to it. you get used to the fact you can't respond. they can say anything at all.
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that's why all the leak stuff, you know, we don't respond. effectively, they can say whatever they want. say whatever you like. we're not going to respond to it. c-span: at the end, you write, "however living constitutionists read a death penalty into the constitution in no fewer than four supreme court justices who served would have done so. all flexibility is at an end. it would thereafter be of no use to bet the merits of the death penalty just as it is no use of betting the merits of prohitting abortion." you stepped on two big issues there; right? >> guest: yeah. now, what you are talking about there is the other big thee -- theoretical issues raised by the book. one is textual, and we talk about that, and the other is originalism. what that says is that the text ought to be given the meaning it
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had when it was adopted, when it was enacted, or when it was ratified in the case of the constitution. thus, the words, quote, cruel and unusual punishments, in the 8th amendment should have the meaning what they were intended to have by the people who ratified it. it was clear when that 8th amendment was ratified, the death penalty was not considered to be prohibited. indeed, the death penalty existed in all the states, and it was the only penalty for a felony so for somebody today to say that somehow the american people have prohibited the states by ratifying the constitution, they have prohibited the states from applying the death punishment. i don't know where this comes from. the american people never voted for any such thing. that's what originalism is.
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what did this mean when the american people ratified it? now, there's some, you know, the death penalty was a phenomena that existed at the time. there's other phenomena that did not exist at the time. for those, you can want say what was the original meaning like? with the electric chair, is that cruel or unusual punishment? okay, but the starting point, the base point against what you compare the later phenomena is what was approved at the time, and if the electric chair is less cool than hanging, which it certainly is, it's not prohilted by the 8th amendment, and likewise, death by injection, less cruel than the electric chair and hanging. that's what originalism is all about. c-span: another 13 falsities
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exposed. by the way, who wrote that? >> guest: we made them up. c-span: who wrote the headline, "13 falsities exposed"? >> guest: that was your name sake, spelled differently, bryan. c-span: at smu? >> guest: no, he's not a law professor. c-span: he's not? >> guest: he is probably the foremost lexingitographer on la. highly republicked scholar, has a company called law pros, lectures about the country on writing briefs and on oral arguments. c-span: still, i have to read the last line here of the bio saying he was a distinguished research professor of law at southern methodist university. >> guest: an adjunct. he's not full-time faculty.
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c-span: a falsity exposed. "the false notion that lawyers and judges not being historians are unqualified toot the historical research that originalism requires." >> guest: right. i mean, that is false. what are you, scalia? a historian? are you going to figure out what the man in 1791 when the bill of rights was ratified? yeah, i can do that just as i can decide patent cases. what do i know about patents? i know nothing, but i listen to each side. they bring -- that's what the adversary system is about. each side has an interest in bringing forward the best evidence possible so just as i can decide a patent case by evaluating, and, in fact, it's even easier for me to evaluate historical evidence than it is patented evidence for pete's sake. judges do this all the time, and
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it's the coup sell who have to be expert or have to know where to point the judges for expert advice, and i don't see why judges cannot do history. they have to do history all the time. c-span: you write there is no historical support whatever for the proposition that any provision in the constitution guaranteed a right to abortion or o to assisted suicide. these acts were criminal in all states for two centuries. >> guest: right. if you're an originalist, it's a silly question to answer whether it's unconstitutional to prohibit them. it obviously was not when whatever provision in the constitution relied on was adopted, and it doesn't mean you have to prohibit them just as it doesn't mean you have to have the death penalty. they are political questions for the american people to decide. that's what the democracy is about. you think abortion should not be
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prohibited, fine. persuade your fellow citizens. pass a law. you think the opposite? persuade them the other way, but don't tell me that the constitution has taken that issue out of democratic choice. it simply hasn't. it's the same for those other issues. i, you know, death penalty, abortion, sodomy, whatever. put it -- persuade your fellow citizens and go either way. c-span: another historical figure you quote a lot in the book is jeremy bentham. who is he? >> guest: an english philosopher who talked about law as well. c-span: why should you follow him? >> guest: he's a very smart fella. c-span: [inaudible] >> guest: he has, but so as aristotle. [laughter]
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he also was highly respected by the framers of our constitution and has been influential on legal theory ever since. c-span: don't i remember you disagreeing in a public forum we covered about citing foreign law, and you mentioned a lot of foreign experts, a lot of british, of course, we got a lot of the law -- >> guest: i don't consider english law foreign law. english law, to the extent it informs the meaning of the constitution, for example, what is due process of law mean? that phrase in the constitution. i mean, in the abstract, it could mean anything. it means something different to a 12th century frenchman than a 16th century hawaiian. it's meaning in our constitution is the means that was given to
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it by 18th century englishman, and that's why english law is very relevant to our constitution and to american law. french law is not. italian law is not. c-span: and you're done. >> guest: and even -- i'm an american, italian dissent. c-span: both parents italian? >> guest: my mother was american, but born of an italian immigrant family. c-span: here's another thing to discuss. these are your words -- by the way, how did you both write this? who wrote what? >> guest: you know, if my life depended on it on telling you, some passages, i recall, are mine. some, i recall, are his, but most of them have become so melded. he worked on mine. i worked on his. the end product is the product. c-span: how did you do it physically? he's not here in town. >> guest: no, he said let's
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divide the canyons of interpretation. you work on this one, and this one, and i will take the others ones. we did that. i sent him my take on the ones i was assigned, and he sent me his on the ones he was assigned, and we went back and forth, and the thing took three and a half years too old. c-span: this is not a fair way to say it, but you're a nor notorious word knit picker. >> guest: yes, but so is he. c-span: worse than you? >> guest: at least at bad, probably worse. probably worse. c-span: you guys ever come to blows? >> guest: no, but he knows stuff about words, and i don't know why you want that empty information in your head. for example, one time i complained, i said, bryan, you know, people always refer to us as duct tape. it's not duck tape, it's duct tape, with a "t," and he said, you know that's wrong, that it
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was originally devised for the military? it was, i think, he said an olive drab color called duck tape, and only later did it come to be usedded for air-conditioning. now who wants that kind of information? only a word nut. bryan is a word nut. c-span: he got you though. >> guest: he got me. c-span: i'll read this. "the modern congress sails close to the wind all the time." federal statutes today often all but acknowledge their questionable constitutionality with provisions for accelerated judicial review for standing on the part of the members of congress and even for fallback dispositions to the primary disposition held unconstitutional. >> guest: right. c-span: back to the original statement, the modern congress sails close to the wind all the time. >> guest: yeah, that followed upon our statement that
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traditionally congress is -- you assume the constitutionality of any statute that congress enacts because it is assumed -- indeed, if there's even constitutional doubt, you give the congress the benefit of the doubt. in recent years, however, it's more questionable whether congress is really even thinking about the constitutionality, and that passage recites the fact that this is evident from the content of their statutes. i mean, who would have ever thought in the 19th century, for example, that congress would pass a statute which says in the event of the stuff we've just said is unconstitutional, we have this other provision instead, which is what congress has done. i mean, that makes you wonder, you know, are they really sure this stuff is constitutional? have they really thought about it?
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i think that comment was also made in response to the charge of, quote, judicial about -- activism, which is a word that doesn't mean anything really. it just means the person who uses it doesn't agree with the decision. i mean, what is judicial activism? it's not doing actively what judges ought to do. i think not. if a statute ought to be held unconstitutional, it's not judicial activism. call it unconstitutional. c-span: number 44, artificial person cannon. >> guest: right. c-span: i wrote down beside that, citizens united. that is another one that's created a storm. >> guest: well, person is not usedded in the first amendment.
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congress should make no law bridging the freedom of speech. displk maybe you don't want to -- c-span: maybe you don't want to touch this, but as a person, do you worry at all -- well, as a person, do you worry at all there's too much money in politics? >> guest: you know, i really don't. i forget what the figures are, but i think we spend less on our presidential campaigns each year when there is a presidential election than the country spends on cosmetics. i mean, considering -- c-span: people are worried that the compingses now can buy -- >> guest: if you believe that, we have to go back to monarchy that the people are sheep, that they just swallow whatever they see on television or read in the newspapers? no. the premise of democracy is that the people are intelligent and can discern the truth from the
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false, at least, when the campaign laws require, you know who is speaking. you can't speak anonymously. you have to say, you know, identify the people who are giving -- c-span: we don't know right now. >> guest: you know the organization speaking. c-span: not necessarily. i mean, you know they don't have to -- no need to go into details, but the way some money is raised, we'll never know. >> guest: you don't know who contributes to the organization, but you know the organization speaking. c-span: that's all you need to know? >> guest: the press can find out who is hiding behind what, but that's not hard. you can tell. the premise is freedom of speech. the more speech the betterment i cannot understand why, and as far as citizens units, citizens united was not novel.
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it reversed an opinion eight years earlier that had changed the law from what the law had been in buckley. that was assumed to be the law. increase all right. about out of time. >> guest: we are. c-span: i never asked you this on camera, but i'm going to know because i need to get to the late education thinking. >> guest: okay. c-span: television in the court. c-span: television in the court. c-span: i bring it up because congress has resolutions ordering the court to go on television. why are you against it? >> guest: i was for it when i first joined the court, and switched and remained on that side of it. i'm against it because i do not believe as the proponents of television in the courts assert that the purr of televising our hearings would be to educate the
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american people. that's not what it would end up doing. if i thought it would educate the american people, i would be all for it. if the american people sat down and watched our proceedings, gavel to gavel, they would never ask, judge, why do you have to be a lawyer to be on the supreme court? the constitution doesn't -- no, the constitution doesn't say so, but if you know what the real business is, if you know that we're not usually contemplating our naval, should there be a right to this or that or a right to abortion, should there be a right to -- that's not usually what we are doing. we deal with the internal revenue code, with passing law, with all sorts of dull stuff that only a lawyer could understand and get interested in. if the american people saw all of that, they would be educated, but they would not see all of that. your outfit would carry it all to be sure, but what most of the
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american people would see is 15-second takeouts from the argument, and those takeouts would not be characteristic of what we do. they were uncharacteristic. c-span: there's an article in the newspaper that's out of context with what you say. >> guest: that's fine, but people read that, and they say, well, it's an article in a newspaper. the guy may be lying or he may be misinformed, but somehow, when you see it live, and an excerpt pulled out live, there's a greater impact. no, i'm sure it will miseducate the american people. c-span: we get the audio at the end of the week. >> guest: the audio is not of interest to the 15 second takeout people and the 30-second takeout people. c-span: the first amendment -- >> guest: doesn't have that impact. c-span: the first amendment doesn't do, takeouts are not good, can't have the sound
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bites. >> guest: the first amendment has nothing to do with whether we have to televise our proceedings. you're saying the first amendment requires us to tell vice? c-span: no, i didn't say that. you are an advocate of the first amendment. >> guest: i am and does not require us to televise the proceedings. you have to be logical. c-span: of course. do you like the job and intend on retire? >> caller: -- >> guest: i'm sure i'll retire one day. it's only a lifetime job is all. c-span: what would be the trigger for you? did you think you would stay this long? >> guest: no, i didn't. i didn't. i thought i would get out as soon as i could retire at full pension. i've been working for nothing for, i guess, over ten years. i could have retiredded -- c-span: still paid. >> guest: paid, but i would be paid just as much if i retired.
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i could have retired at 65. i could have retired. i'm too stupid to have this job at this point probably. i don't know what else i'd do. i'll certainly retire, shoutly retire at the time where i perceive that i am not as good as i used to be. when i'm off a step. i don't want the product of my judicial career to be demeaned by inadequate performance later on. as soon as i think i've lost a step, i'll get out. c-span: have you asked anybody to tell you when they think you lost a step? >> guest: i'll know when i lost a step, and i have many friends and enemies who will certainly tell me. c-span: "reading law: the interpretation of legal text,"
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and thank you very much. >> guest: thank you, enjoyed it. ♪ for a dvd copy of the program, call 1-877-662-7726. for free transcripts or to give us your comments about this program, visit us at q& q&a programs are also available as c-span podcasts. ♪ ..
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neil barofsky discusses his new book titled "bailout." c-span: neil barofsky, author of "bailout," but rolled to demand named goldberg play in this story that you wrote in your book? >> guest: go was a former colleague of mine. i used to be a prosecutor in the sout


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