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tv   Justice Ruth Bader Ginsburg Delivers Annual Flannery Lecture  CSPAN  November 24, 2018 4:27am-5:37am EST

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the deadline for entries january 23 more information, go to >> supreme court justice ruth bader ginsburg recently talked about the confirmation process, calling congress the culprits for polarization. this is just over one hour. >> brian johnson is going to escort the justice to her seat. you know how famous brian johnson is these days.
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welcome, justice ginsburg. i want to begin by welcoming you back to the very courtroom where in your some 13 years on the d.c. circuit you heard 46 bank cases, 46. of those 46 cases, three, including one you wrote, went to the supreme court. all three were reversed. [laughter] judge tatel: and not only that,
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the opinion reversing yours was written by none other than your friend, justice stevens. but pardon me-- it was a warrant case. but a powerful dissent by justice marshall, demonstrating that as usual, the d.c. circuit was correct. [laughter] judge tatel: justice ginsburg, when justice scalia gave the lecture some eight years ago, he went forward to judge flannery as a judge's judge, he referred. and i'd like to use that as our theme today and have a conversation with you about the art of judging. do you want to say something about that? justice ginsburg: david, i'm glad to have one of my favorite conversation partners with me, and i would just like to say a word about judge flannery.
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i had the privilege of knowing him when i was on the d.c. circuit. he was a prince of a man. he -- you can't hear? how is this? is that better? well, judge flannery was universally respected by his colleagues and the lawyers who appeared before him. he once said, and i fervently believe that without the confidence of the citizenry in the independence and integrity of our judicial system, our form of government could not continue to exist. i'd like to say a word about
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justice o'connor, who announced this week that she is no longer able to participate in public life, but she shared judge flannery's view of the importance of the independence and integrity of the judiciary. when she left the court, she launched a program called i-civics. this is a program to teach civics to middle school and high school students. it has been amazingly successful today, the program reaches half of the youth in our country.
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justice o'connor started icivics because, she said in her own words, how vital it is for all citizens to understand our constitution and our unique system of government and to participate actively in their communities. it is through this shared understanding of who we are that we can follow the approaches that served us best over time, working collaboratively together in communities in government to solve problems, putting the common good above party and self-interest and holding our key governmental institutions accountable. that statement, i can only say amen. >> amen. judge tatel: justice ginsburg, before we get into judging,
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since bryant johnson, author of the "rbg workout" is with us today, i'd like to do a little fact checking. [laughter] judge tatel: how many total push-ups do you do? justice ginsburg: where is -- okay. so. he will correct me if i slip. so we do a total of 20 push-ups, but we break after 10 so i can breathe. [laughter] judge tatel: how long do you hold a plank? justice ginsburg: i think it's 30 seconds and then again a breath, and then 30 seconds more , and that's on the front. side plank, i think about 15 seconds. [laughter] [applause]
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judge tatel: last question, how many one-legged squats? [laughter] i will call on bryan for the i will call on just: bryan for the answer for that because i'm not quite sure. how many do we do? two setshat would be of 10, and great job with the answers, justice, great job. [laughter] justice ginsburg: let me say that bryant has been with me since 1999. i depend on him to keep me in shape. we started working together the year i had colorectal cancer and , and when i finished surgery, chemotherapy, radiation, my husband said, you look like a survivor of a concentration camp. you must do something to build yourself up.
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so i inquired about a professional trainer. i met a few and then judge kessler from the district court said i know someone who is just right for you, and that's bryant johnson. judge tatel: so let's begin our discussion of judging by how you approach a case. where do you begin? how do you get into the briefs and the record? how do you prepare for oral arguments? justice ginsburg: i generally start by reminding myself of what the court first thought about the case. so i will read the memo, and that was used by the justices in deciding whether or not to grant jury -- so i'll begin with that. and then i will read the prior opinions in the case before i
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. before i turn to any lawyer's brief, i want to know what the judges in the first and second instance decided. and then i will read a bench memo prepared by my law clerks. the objective of the bench memo is to enable me to speed read the briefs. i'll personally read the briefs of the parties, the briefs of our many friends. i have asked my clerks to put them in three piles. the largest, by far, is six. says "skip." [laughter] the middle oneg:
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says "skim," interesting argument made at pages 15 to 19 of this brief and then the rare, the very small number of briefs my clerks tell me to read. and then i will check on precedent. my law clerks usually attach the most relevant cases in point. i will make some of my own notes on what i've read and questions -- i will write out questions i might ask at oral arguments. but i just want everyone in the audience to know that i start with the judges, not with the lawyers. [laughter] when in the process -- or maybe it changes from case to case -- but when in the process do you formulate your pretty solid view about the case, would you say? generallynsburg: before i go on the bench for oral argument.
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that doesn't mean that my view is frozen in place, but after you've done all that reading, you are going to decide in favor of one side or the other. so, i don't go on the bench with an empty mind, but i listen to the arguments and to what my colleagues bring up. so it's not an empty mind, but neither is it a closed mind. judge tatel: judge flannery in his oral history said, quote, "i am guided by the opinions of the supreme court and the courts of appeals." we have lots of judges here today. so i'm curious to know, when you author an opinion for the court,
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who do you consider to be your primary audience? we judges on the interior courts, the parties, the general public, history? who are you writing for? justice ginsburg: most immediate audience, generally, are the judges. they are the consumers of our products. so the consumers are judges and lawyers, and i try very hard to write an opinion that at least those consumers will understand understand. i generally begin with a kind of a press release opening, so the reporters with tight deadlines can at least find out in the first one, two, or three paragraphs what the issue was,
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who won and who lost, and basically the reason why. i do look over my opinions, because i think that clarity is important, and it does take time to write it short. judge tatel: you know, i mentioned the banks that you were a part of. i'm curious, when you look at the case from the courts of appeals, does it make a difference it was made by a panel as opposed to -- does that make a difference? justice ginsburg: it's a decision of the appeals court whether it's a three-judge panel. i can't say that i give more weight to an enbank decision
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than a three-judge panel. judge tatel: yeah. slightly different topic. observers described your judges to opinions as incrementalist. you've written that roe versus v. wade may have gone too far, too fast. what do you mean by that? and are there recent examples of a court going too far, too fast? justice ginsburg: did you describe my approach, you mentioned judicial activism, how does one measure judicial activism, if activism means a readiness to overturn legislative products, then i think i must be one of the least active judges on the bench. think of legislation has been
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overturned, campaign finance for one, the voting rights act for another. i think if you check my record, you would see that i am on the low side of readiness to overturn legislative measures. i think my position on roe v. wade has been misunderstood. i tried to make it very clear that i would have voted for the judgment in that case. texas has the most extreme law in the nation. abortion was available only if necessary to save the woman's life, a matter that health might be disastrously affected.
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so that was the most extreme law in the nation, and the court in fact put down its pen. instead, the opinion made every abortion law in the country unconstitutional, every restrictive law, even the most liberal states, and it gave the opponents of access to abortion a target that they could hit at , and it was kind of hard fighting in the trenches state by state, but here was a supreme court decision. it was a target that could be -- could be aimed at.
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so i never doubted the correctness of the judgment in roe, but i did think that the giant step taken in that case was not appropriate, and what happened, what led up to brown v. board -- roe v. wade, by the way, was first access to abortion case to come before the court. lastly, unequal educational facilities had come before the court a number of times in cases where marshall made it clear, thurgood marshall, that separate but equal was not before the court that day, the judicial reviews offered were vastly unequal. i can think of some of the building blocks for roe.
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there was a case, there was against painter, texas when it realized it couldn't have no accommodations for legal education for african americans, it was set up a separate law school, a vastly inferior law school. so that was one. and -- was the first. so it was only when all those buildings blocks were in place , each one was won, so i guess you call that incremental. after those building blocks were in place, marshall decided, yes, it was now time to say separation of the races forced
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by the state could never be equal. how much, how much of your views about incrementalism have been shaped by your 25 years on the court as opposed to your own experience as a supreme court advocate in a series of women rights cases, which were also in , in a way, produced incremental results? or is it a bit of both? tried toinsburg: i copy circuit marshall's -- thurgood marshall's techniques. [laughter] i tried to getg: away from extremes. they were very sympathetic cases
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on the facts. what was your question? much tatel: you pretty answered it. from ther questions years as a litigator, but they have been shaped by your years on the bench, too. justice ginsburg: when you are sharp bench, there is a inching toward the middle, and not from the extreme. judge tatel: here is a question about the extreme, something that, frankly, i could use a little advice about. justice ginsburg: all right. [laughter] judge tatel: are there instances in which you disagree with the court but nonetheless joined the
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opinion? justice ginsburg: yes. judge tatel: [laughs] justice ginsburg: on the court we call those who dissents graveyard dissents, that is we bury them. and it -- it -- it would most often occur in the statutory interpretation case, let's say a provision of the internal revenue code. marty would not be pleased to hear me say that, or erisa, one of the most confusing statutes congress ever passed. these are cases where a clear
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answer is needed, a rule of the road, that lawyers can then adjust to and live by, and some cases are better decided no matter at what is arguably right there, just better decided. so, yes, i have had graveyard dissents, and i think all of my colleagues have. judge tatel: do you think you have your views about that -- this is another question about 25 years on the court. have your views about that evolved? in your first few years, was it harder, harder to accept an opinion were you uncomfortable with, but nonetheless you felt wasn't worth the dissent than later years? is that something you have grown into? justice ginsburg: to accept being -- this is in -- if it's a question of constitutional interpretation or an important question of statutory interpretation, and i think the decision will be productive of real harm, then i will never bury it. judge tatel: ok. yeah. so my second question about
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dissent is this -- last year when the court held that employers can use arbitration agreements to foreclose employee class actions, you read your vigorous dissent from the bench. why did you pick that case? and generally, how do you decide which ones to read from the bench and which ones not to? justice ginsburg: i read from the bench a summary of the dissent. judge tatel: right. justice ginsburg: and i do it when i think the court is not just wrong but egregiously so. if it's a constitutional question, of course, i'm speaking to a future court, but if it's a question of statutory interpretation, my immediate audience is colleagues, and my favorite illustration of that is the ledbetter case.
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the tagline of my opinion was, "the ball is now in congress's court to correct the error into which my colleagues have fallen. " [laughter] justice ginsburg: and with overwhelming support of both sides of the aisle, in very short time after the court's decision, congress passed the lilly ledbetter fair pay act. judge tatel: i would have to say personally, i'm especially fond of the dissent you read from the bench in the cheney task force case. as you may remember, i had written the decision for the d.c. circuit that was reversed in that case.
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[laughter] judge tatel: and at about 10:15 in the morning on the day the court announced its opinion, i received a fax, this shows you how long ago it was, a fax from you and it said, "david, i am reading this dissent from the bench right now, signed ruth." [laughter] judge tatel: you made my day. [laughter] judge tatel: my next question is about precedent. last term, in south dakota against wayfair, you joined an opinion that overruled precedent relating to the dormant commerce clause. that same term, you joined justin kagan's dissent in janus, in which she challenged the court overruling the precedent relating to the ability of public sector unions to collect fees from nonmembers. where, in your view, is it proper for the court to overrule precedent?
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justice ginsburg: when a decision was wrong from the start and time, time has proved how wrong it was, so you mentioned south dakota against wayfair. that was about an out of state seller sending goods into another state, could be required by the latter state to collect sales tax. and in the case called national -- the court said no unless there is some kind of a physical establishment in the receiving state, a warehouse, an office, a physical presence, but nowadays,
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it's so obvious that out-of-state seller can put her wares before you and put her showroom before you in the living room, in your office, and as a result of that, out-of-state sales have exploded because of the internet. so i think the electronic age has made it inevitable that we are going to have to give up our notion that unless you have a physical presence in the state, you can't be made to collect sales tax. so the case that was overruled was wrong from the beginning. how long it was became more and
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more obvious, intolerable, i think, to adhere to that precedent. the janus case you mentioned was quite something else. in that case, the precedent, i didn't think that was wrong from the start. i thought it was a reasonable compromise. it held that people who don't want to join the union can be obliged to pay for the activities from which they benefit. that is, if the union forces collective bargaining agents, will benefit all of the workers. so all workers have to contribute to that, and similarly to the grievance procedure. but when the question was political spending, spending for
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political activities by the union, abood said the union resistor is not required to pay for unions' political activities. a reasonable compromise. it was working fairly well. it was quite different from a decision that was wrong from the start, working very badly. i don't think these two were all alike. i felt very comfortable being with the majority that overruled the sales tax case and with the dissent from a decision that i thought reached a reasonable
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compromise and was working, working fairly well. so far, the janus case applies only to public-sector unions we , and we shall see whether it spreads to the private sector. judge tatel: as you look back, have you seen detected ebbs and flows of the court's willingness to overturn its precedent in the years you have been on the court? do you see any trends? justice ginsburg: the court is always blindfolded, importance of giving heavyweight to precedent. so i don't think the court has changed in that regard. judge tatel: i want to ask you about something you've already mentioned, and that is collegiality on the court.
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we judges always -- we all talk about collegiality, but i'm interested to know, what do you think it actually means in the decision-making process? how does it actually affect the quality of the judging? justice ginsburg: it means you listen to colleagues with respect. it means understanding that the institution for which you work is ever so much more important than the egos of the individuals that compose it at any particular time. if i can refer to justice o'connor again, she was big on
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collegiality on the court. judge tatel: so the court of collegiality for use listening, basically, is that right, listening to others' views? justice ginsburg: yes. judge tatel: so i want to ask you about something your dear front justice scalia said when he spoke here. he blamed the supreme court itself for the polarization of the confirmation process. he said "the federal courts have become the place for social policy is made, and moral disputes are resolved." that's why he thought the confirmation process had become so polarized. what effect do what effect do you think the supreme court has had on the confirmation process? justice ginsburg: i disagree with my dear colleague.
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judge tatel: i thought so. justice ginsburg: and i have -- [inaudible] i have -- is this better now? judge tatel: okay. justice ginsburg: one of my present colleagues, justice breyer, was counsel to the senate judiciary committee when i was appointed to the d.c. circuit. and there was great rapport on that committee. senators kennedy, strom thurman had a very good working relationship. and the hearings were not as they are today. they were not fiercely partisan. the senate was working together to ensure that the federal judiciary would be of the quality that it has been for the
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most part throughout history. to me, the obvious culprit is congress. that is, the polarization that exists where votes decide on party lines is with no effort to reach across the aisle. and what a difference it was from the working relationship that senators kennedy and strom thurmond had in the late 1970's and early 1980's. or compare the early 1990's when justice breyer and i were appointed. or the 1980's, when justice scalia was appointed. the vote for justice scalia was unanimous, as the vote in favor of my confirmation was 96-3.
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that, despite the many years of my life when i was affiliated with the aclu. not a single question was asked about that affiliation in my hearing. what a difference that time was from what we are witnessing today. judge tatel: do you think the court itself, especially in the past few years with its growing number of 5-4 decisions that are often ideological, do you think that's contributing a bit to the polarization also of the confirmation process? justice ginsburg: it's true that last year there was something close to 35% of the decisions were 5-4 or 5-3.
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but look back just one year for that. only 15% of the decisions were 5-4. so we will see this term, shakes up. judge tatel: we shall see. so i want to completely change the subject for a minute here and ask about the increasing number of cases that require a high level of scientific and technological expertise. in one case, for example, the court considered the patentability of dna sequences. and justice scalia declined to join part of the opinion because he said he was unable to affirm such details of molecular biology on his own knowledge. what do you think about the court these days about the court's ability to decide these
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increasing number of technical and scientifically complex cases? justice ginsburg: the court is not deciding these questions in the first instance. it's held by a district court and the court of appeals. what the supreme court does is mainly, it's a checking process to make sure that the case was properly adjudicated and make sure evidence was admitted that shouldn't have been left out or excluded and should have come in. so the experience i think with these questions of scientific information, i think the experience in the district courts and the court of appeals,
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they are the front line adjudicators of those questions. it's interesting that we do have in the system one kind of specialized court, the federal circuit that hears all patent appeals. judge tatel: i was going to ask you about that. justice ginsburg: but it turns out that we, but it doesn't end with the specialized court. the supreme court reviews decisions of the federal circuit, and we have taken a fair number of cases from the circuit so there is a generalist court making the last judgment in the case. and if there was an expectation that the federal circuit would review not only the regional courts of appeals, handling patent cases, that the supreme court would also be spared, it hasn't turned out that way.
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judge tatel: i take your point about the supreme court reviewing -- you are not addressing these complex issues initially. they come to you from the district courts and the courts of appeals. but in recent years, there been an increasing number of amicus briefs become direct to the court that offer fairly complex statistical and scientific information that hasn't come through the lower court fact-finding process. that happened, for example, in the texas affirmative action case, where an amicus briefs submitted a very complicated methodological approach to disproving the affirmative action argument that was being argued there. and several members of the court cited it in oral argument in their opinions, and so what do
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we do about that, about the fact that an increasing number of cases, although this information is coming directly to the court without being through the rigorous fact-finding cross-examination and fact-finding process? do you think that's a problem? do you think we need to amend the rules so that amicus disclose what's new, or is this just not a problem from where you sit? justice ginsburg: we decide the case on the basis of a record that was made, and these briefs -- my first encounter with it was when i was on the d.c. circuit. in fact, my very first sitting, there was dense environmental case, the usual speedy we still -- speed -- judge tatel: we still have those by the way.[laughing]
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justice ginsburg: government agencies in the middle, environmentalists on one side and justices on the other side. judge tatel: by the way, we like those cases because we know the court is very unlikely to take them. [laughing] justice ginsburg: this is a case about scrubbing dirty coal. and as we were laboring to understand the case, the professor sent us a copy, said the panel a copy of the draft of an law review article not yet ready for publication. and the gist of it was, you are focusing on the wrong thing. using carbon dioxide is a problem. let me tell you, it's not, and then spelled it out in many pages, particulates are the problem. that draft article eventually
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became a book with the title of something like "clean air and dirty coal." the courts decision was written by judge wald, and she pointed out very politely, if there was not a word about this professors -- professor's theory in the record of the case, and so she was bound by that and could not give, could not credit in the decision-making process the opinion of this professor. it has to be in the record. so most of those, most amicus briefs we receive, i don't know why they get written. maybe pressure from the client to have a brief in there, but
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amicus brief is not likely to be read by the justice. there is an occasional brief that contributes something. you mentioned the fishery case, but i am thinking of michigan affirmative action. judge tatel: right. justice ginsburg: when the brief was submitted on behalf of the former superintendent of all the military academies, west point and annapolis, the air force academy, and the gist of it was this. in the vietnam war, enlisted men were overwhelmingly, were racial minorities. and the officer corps was overwhelmingly white. we haven't had another war in
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which there is that kind of separation of superior and inferior officers. that was a very impressive brief that for national security purposes, the competition of our armed forces had to change. that was a brief that was credited. judge tatel: i always thought that brief, when i read that brief and the opinion of the court, it reminded me of the amicus brief in brown and the famous footnote where kenneth clark's research about the adverse effects of segregation on african-american children have such an impact on the court. justice ginsburg: the two dolls. judge tatel: same thing.
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you've been away for 25 years but i want you to know we are still dealing with scrubbers and dirty coal. hasn't changed. [laughing] judge tatel: a more general question. many of the courts actions affect our country and its institutions quite dramatically. i'm curious about the extent to which you follow the impact of the court decisions. for example, you've already mentioned shelby county against holder, a case i know something about, where the court effectively nullified the voting right acts, precludes provisions. you authored a powerful dissent in which you mourned that the decision cleared the way for the return of voter suppression. what do you think about your prognosis today? justice ginsburg: sadly, i think what i predicted is exactly what has happened, almost immediately states enacted restrictions that
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never would've gotten through the preclearance process. i have pointed out in my dissent in shelby county that shelby county, remember what the issue was. it was many years since the voting rights act was passed, 1965. judge tatel: right. justice ginsburg: states, cities or counties that were discriminating in 1965 were not necessarily discriminating when shelby county came to us. so the majority said, congress, you have to redraw the map of the districts. that still has to be subjected to the preclearance process.
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now, what senator or representative was going to stand up and say, my state or my county or my city still discriminates, so keep us under the restriction of the voting rights act? he the voting rights act had a way out, so if a state or county or city really got together and didn't try to suppress voting by certain voters, it could bail out, and that seemed to me a perfectly reasonable way of dealing with states, cities, counties that were discriminating but no longer do so. so if you ask about my prognosis, i think what i
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predicted is exactly what has happened. judge tatel: i noticed when i was rereading your dissent, which by the way i do regularly because it makes me feel better every time i read it -- justice ginsburg: that is because you wrote the discourse. [laughing] judge tatel: you mention the lilly ledbetter case we called on congress to fix the problem and you didn't do that in your shelby county dissent. is that simply because the point you made that you just didn't see it as a practical possibility that the states were not likely to reenact the bill in any significant way? it just struck me in these two powerful the sense, in fact, the majority opinion in shelby county by saying congress can fix the problem if it wants, so anyway you were on opposite sides there. okay. all right.
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another sort of related question, to what extent is a a court generally and you in particular sensitive to social movements and change? i ask because in obergefell, the gay marriage case, the court called attention to what it called the substantial cultural and political developments that led to a shift in public attitudes towards greater tolerance. how is this concern with social movements and attitudes consistent with objective judging, especially given that members of the judiciary obviously have dramatically different views about social change? justice ginsburg: a great constitutional law scholar, when asked about whether the court could take account of social, economic conditions prevailing in society, said that the court
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should never respond to the weather of the day, but inevitably it will be affected by the climate of the era. the climate of the era. think of brown v. board. we were fighting a war against odious racism, and yet for most of that war, our troops were rigidly separated by race. so i think that the experience in world war ii hastened the brown v. board decision. how could we fight a war against
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racism and ourselves maintain a racist society? i don't know, i'm not quite sure i understand your ideas about objective judging. i don't think any judge today would tolerate laws that hold people back from realizing their full human potential simply because of the color of their skin, their heritage, their gender. obergefell is different. do you remember the days when people who were suspected of
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being gay were not hired because they were not hired for government jobs because they would be a security risk? someone could blackmail them to gain state secrets because they were in the closet. what we saw were people, people saying, i mean, i'm not going to stay in the closet. i'm going to come forward, say who i am and explain why i am proud of it. and when that happened, unlike the racial situation, people looked around and said, who is in the gay community? my child's best friend, my colleague. so there wasn't the kind of -- there had been with respect to race.
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that accounts for obergefell that we saw our friends, people , we love, people we respected become part of we, rather than people who were not embraced by the dominant social group. judge tatel: yeah. justice ginsburg: it really was that, those, was called the gay pride movement. there was so much
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misunderstanding. my first encounter with this was years ago. it was in the 1970s when i was on the executive committee of the bar association. a gay activist alliance said, they want to do a program just to explain the difficulties they encountered renting an apartment, finding a dentist. i was on the post admission legal education committee, and every program had to be sponsored, attended to by one of the members of the committee. well, no one volunteered to be the host for the gay activist alliance program, so i volunteered, and then there was some giggling around the table, what's so funny about that?
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well, ruth, they might feel uncomfortable dealing with you, thank you, thank you, there are a gay people, male who don't like women. in any case, a gay activist alliance sent their vice president and she was a woman. it was a great program. people came to understand what they had been oblivious to before. judge tatel: just a couple more quick questions. we're getting late here. i want to ask you, five years ago in this very courtroom, you participated in a historical society discussion with several other great women lawyers including pat wald, barbara babcock. although you celebrated that women judges have gone from
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uncommon curiosities to common occurrences. you've also said that there will be enough women justices on the supreme court when there are nine. [laughing] [applause] judge tatel: what do you see as the remaining institutional barriers to more women becoming judges? justice ginsburg: the same barriers that women encounter in other occupations. the overt sex-based classifications, for the most part, are gone. i mean, it was, started with the
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bradwell case which i think we were discussing at that meeting, it said women couldn't be lawyers, women can be bartenders. in 1961, women could be exempted from serving on juries. all those laws that riddled state and federal law books, gone. what remains, first, what has been called unconscious bias. and my best illustration of that is the symphony orchestra. in my growing up years, there was never a woman in a symphony orchestra except perhaps the harpest.
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a critic from the "new york times" swore he could tell the difference between a woman playing the piano or the violin, and a man. someone said let's put you to the test. let's blindfold you and see how you do. he was all mixed up. he said it was a woman playing instead of a man, and the other way around. so when the blindfold was taken off, he admitted that he had been operating with this unconscious bias. that is, he saw a woman so the expectation was lower than for a man. the blindfold was such a good idea that it became a curtain that separates the people who
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are trying out for the orchestra and the people who are conducting the audition. and with that simple device, almost overnight the composition of symphony orchestras began to change. we can't duplicate the drop curtain in every field of human endeavor. i wish we can. i mean, so many women of like an -- of my advanced age have the experience of being at a meeting, a problem is presented, and if she answers, wouldn't this be a good solution? no response. four or five men then respond, and one repeats exactly her idea and people listen and they say,
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good idea. it's that perception that she is a woman, she's not going to say anything with any weight. in fact, a title vii case of that nature which was against at&t for not promoting the middle-management jobs. so the woman did find on all the standard criteria until the very last one, which the management called a total person test. the total person test was an interviewer and the candidate for promotion. women dropped out disproportionately at that stage. and why? well, the interviewer had a certain level of comfort when he
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was conversing with someone who looks like him. he knew, he understood what that person was like. but confronted with someone of a different race or a different gender, he's kind of confused. he feels a little bit uneasy, and that uneasiness shows up in the rating. so getting rid of unconscious bias, what is that people realized it exists and then try to go out against it. and the other major barrier is our workplaces don't account adequately for the demands of people with families. that is beginning to change, so
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that it is less burdensome, less stressful to both have a career and have family life. those i would say the major hurdles for women who want to rise to the top of the tree today. judge tatel: last question. given the composition of the supreme court, many have you predicted rough seas ahead for issues like abortion, racial and gender equality, workers' rights. you have always been optimistic, assuring us that your colleagues are susceptible to persuasion and change. are you still optimistic?
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justice ginsburg: i believe that as long as we live we can learn, and i have some stunning examples from the court on which i am now sitting. in the days when our chief justice was william rehnquist. now in the 1970's when i was arguing before the court that gender lines in the law did not comply with the equal protection principle, i could count on then justice rehnquist to be in dissent. one of the decisions that justice rehnquist disliked was the miranda decision. and now he is chief justice and we are confronted with should
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miranda be overruled? despite his many criticisms of the opinion, chief justice rehnquist said no, miranda stands. it has become part of the culture, and it happens to be working pretty well. or a man who said discrimination on the basis of pregnancy is not discrimination on the basis of sex. that was justice rehnquist, writes the decision upholding the family and medical leave act, a case that was argued before the supreme court, most ably by a colleague of yours.
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chief justice rehnquist wrote the opinion upholding the family medical leave act. and when i brought it to him and showed it to my husband, he read it and said, ruth, did you both write that opinion? [laughing] justice ginsburg: so as i said, as long as we live and listen, we can learn. judge tatel: justice ginsburg, we are out out of time. on behalf of the district court, thank you so much for sharing your views with us. you have given us renewed confidence in the integrity of the judicial process and the rule of law. thank you. [applause]
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>> washington journal, live every day with news and policy issues that impact you. this morning, infectious disease rise in asmuss the cases in the united states. review talkslogy
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about an article about hyper personalized medicine and the and equity of care it creates the proposedk at changes to how colleges and universities handle sexual misconduct complaints. we will discuss it with sarah brown printed watch washington journal, live at 7:00 eastern this morning. join the discussion. weekend, photojournalists talk about their favorite photographs on the campaign trail. hard and workally really hard. there's always a story to tell. stagecraft, but to try to lift the veil so people can understand what they are like.
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tv, 8:00 eastern, of pulitzer prize-winning photographer talks about the middle east. >> it was terrifying. as we were hit by troops than there were airstrikes at that time, there were more rounds and sniper fire, it was relentless. they would often just run away and leave us on the front line. we had to run away after them. tv, howerican history the programs became part of the american founding story. became important because they can be used to give america a sort of noble identity. we hear that the pilgrims came
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for freedom or for god or for self-government. because they came for those reasons, that's what america stands for ever sense -- since. >> this weekend on c-span. monday, president trump received the white house christmas tree. trinity -- for three arrived by horse-drawn carriage. -- fir tree arrived by horse-drawn carriage.


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