tv America the Courts CSPAN November 28, 2009 7:00pm-8:00pm EST
capital with this c-span moment, there. original documentary. . . >> you know, richard, when i had a conversation with justice only tell the -- justice alito, he said he deliberately laid back a little bit. a judge typically hears a case with just two other colleagues, so you are aware who will jump in and who will not. and it is hard to know who is jumping in, and win. justice alito's tendency was to wait and figure out dynamics along the bench and the fur. we begin with the day's news and your calls at 7:00 a.m. eastern on c-span. but justice sotomayor went right >> on this boat, the yeas are in there. >> justice alito did not ask any 60, nays 39, 3/5ths voted questions last term. for whatever reasons, last affirmative. the motion is agreed to. term, the questions he asked was
questions i spent the most number of hours thinking through the senate moves its health care debate to the floor. how to answer when i got asked that question, and he asked the follow the debate and how it will affect access to health bingo question, all three cases. care, the public option, abortion, and medicare. live on c-span t -- c-span-2. >> all due respect, alito has a major admirer. i can remember february of 2006. i was involved in two cases argued that date. he was having his first day on the bench. this should be a wonderful day. i can remember the most junior >> this is "america and the courts." justices, but he looked like he next, a panel of supreme court scholars talk about recent changes to the high court, including the retirement of justice souter and the addition
of justice sotomayor. the institute of associates program hosted this discussion was bored. i felt like somebody needed to earlier this month in washington d.c. this is an hour portion of the event. say, worry about your game face a little bit better. justice sotomayor looks like she is just ecstatic about where she >> i had a discussion with is, very happy. justice o'connor, went on and on i'm for justice alito is, as about how he was universally well, but he does not show it. loved by all of them. he was a great storyteller, with >> we have to give him a gold a great set of tales about life star for his hypothetical sacrifice. in new hampshire. too many out there, you think of him as a recluse. he had a reputation, he did not socialize much in washington. he would eat by himself, his >> the basic rumors are rude and apple and yogurt. but he had a good relationship the notion that justices hire with colleagues and was quite clerks a year in advance.
active on the bench, quite justice stevens was reportedly forceful. he was not at all is quiet, shy only hiring one clerk. retiree as you might think of and retired justices generally him socially. have one clerk. that has fueled controversy. the colleagues i talked to recently were on the daily basis >> i said, are you surprised with what people are reading of his absence. into it and he said, no, i am no >> to me, he asked incredibly kid. insightful crash since the questions. in fall of his last term, he you could have a conversation with him based on the substance announced, but my feeling is he has given enough in his staffing of what he said, but not because of the office. he will be april 90, 1920, and he was aggressive in tone or manner. he said, why will anybody be i am way and both sides of the surprised? case, and here is where i have he told me he thought about the trouble articulating his retiring when reagan was in questions in a very penetrating
way, but the one where you office. he has many years to keep always thought that if you had thinking about retiring. an answer that would satisfy >> you retire with full pay. him, and he could be persuaded. so as an advocate, i loved >> yes, who wants to work with appearing before him, because i nothing? felt he would ask the questions >> as everyone knows, he is phenomenal. that got what concerned him about the case. he is -- the questions he asks, he would listen to the answers, may i interrupt, may i ask a question -- he asks a question and you would win him over if in so few words. you had something worth persuading him. just as prior could spend five you always want to appear before judges with that kind of pages, but justice stevens will open-minded approach to the bench. ask something in eight words, i will just sheer personal and it is phenomenal. anecdote. at some level when he retired i felt like one phase of my own >> if you are not prepared for career with the supreme court the trap delays for you and you had come to an end because he answer the first? arrived the year before i -- question wrong, but the third question, it is over.
you have to recognize the trap. started working there, and he was known and loved among clerks because if your door was open, and then not fall into it, because if you do not recognize and it might be saturday or sunday, and you are working and it, he will track you, and there he strolled by, he would poke are usually traps. his head in and engage you in a conversation about what you were where he has got you to concede working on and what problems you something. were dealing with. he had such a gentlemanly way >> he plays tennis, he is a about him and his personal bridge player. interactions, but with a >> he swims in the ocean when he fantastic sense of tumor -- is in fort lauderdale, plays golf all the time. schumer -- humor, and he would >> he is really remarkable, a remarkable individual. engage law clerks and a way that anyone want to would make you want to be around him. so i think his personal presence speculate about future justices? would be something that would be i know that jones can do it. greatly missed among justices. present company excluded. >> really just echoing david, his questions were -- he would not have a lot of questions. >> i am on that list, he wouldn't try to dominate the definitely. argument, but he carefully thought out what he needed to >> president obama would like the look predominantly at women
ask, and they were insightful. again because there is a lot of pressure in democratic circles >> not aggressive, but to remedy that, and some of the tenacious. he was a justice who if you had people have talked about that. i would probably pick up the answered his questions, -- if list from last time. i would think solicitor general you had not answered them, he alain decade and -- elna kagan would tell you you had not, and he would ask him again. he could do that three or four or five times. would have a shot. i do want to say that i think also in recent years, he was probably the justice who was the justice stevens is more inclined but not to leave at the end of most sensitive to environmental this term, but one thing i think issues before the court. one of the favorites of the is of justice ruth dater environmental community. he also would give a really hard ginsberg, who seems healthy and time and ask the kinds of is incredibly active from the questions of the other side that bench and travels widely, but the environmentalists wanted to she has developed serious cancer have asked. so i think that they will miss his voice. twice and had cancer surgery just last february, a couple of incidents where she had to be taken to the emergency room, but all right. she said she is healthy. a new justice is on the clock, but she is 76. there's little uncertainty just to sotomayor, only on a there, as well.
couple months. any initial impressions? >> well, she jumps right in. she will often ask the first so there are reasons for it. question about the oral argument. she has a strong personality on the bench, along the lines of the chief justice, and scalia. >> each justice carries an she shows that she knows what enormous burden. goes on and federal courthouses. she is a former prosecutor and trial judge and appellate court judge. the work of the justice is a a lot of her questions are based on her own experiences. she of course has absolutely no tremendous burden. ruling yet, but her questions if they can space it out, it seemed to say that she will be voting the way that david souter institutionally helps the court more, and they are cognizant of did, certainly as a first zeron the attention focused for senate confirmation hearings. there a large institutional cost every time there is an appointee of obama, we expect appointment and vacancy on the that she will be liberally court, minimizing the burden on inclined. she has voted in death penalty state cases, but no ruling yet. various institutions.
it is something they are sensitive to, particularly those she is trying to stay close to who have been at the court when her community, reviewing cases there have been two vacancies at of those on to help her come one time. speake. >> justice o'connor, people feel, would not have resigned if she had bought -- saw chief she may go back to puerto rico, or do something in the bronx. she takes very seriously being a justice rehnquist would be leaving the court. latina justice on the court and i think she will remain an i gather she even told him first before deciding to resign. active presence during oral arguments if also across the conference table with the justices. since she thought he was staying, that is why she announced she was leaving. >> deftly not wallflower. we know that. a very experienced judge. >> in terms of pecking order and hierarchy, it two justices asked a question at the same time, the senior justice is supposed to be allowed to begin and the other justice is supposed to retire back little bit.
you can watch the reaction >> so many people say, do you between those arguments. think she is leaving? she is there. she is asking a lot of questions. i read the transcript. she has embraced a full life but is keeping around at heart. >> i have no idea who would i remember when it happened, but replace justice stevens, but i do think that the timing would it was an interesting moment be next summer, that may put it when justice sotomayor asked one of the first questions in the case. where they cannot do something as controversial as they might have otherwise done because of elections and the fall. so it is interesting that he may have to moderate just a little bit more. >> that is true, the president would rather do one before the to ask the wrong question for that particular site, which was election. >> i'm sure he would, too. interesting to me, to watch that, and then just the it would certainly create an election issue if he chose sotomayor came right back -- someone really controversial. justice sotomayor came right >> that is right. and one quick question, i back. thought justice o'connor i knew exactly what i was doing. recently made some surprising
comments about future openings that was an interesting little on the court and the need for religious diversity. >> you may not have heard it correctly. she said something interesting about religion. as many of you might know, we now have six catholics on this nine-member court. there are six, different kinds, and that is a big deal. and the questions about regional diversity, this idea we should have a couple from arizona and california, we do not anymore. i think there should be diversity and i also think in terms of faith. there should not be just one religion. that was not was asked of her. but sotomayor is the sixth catholic on the court, and that was in the background of her thinking. >> she is a protestant. there is only one protestant on the court. justice stevens.
>> two happen to be jewish. that is a different course than what we distort we had. so that was a, and -- comment, and where it emerges is in our most recent abortion case, five roman catholics voted against abortion rights, and there was a lot of criticism related to that and religion at that time. >> i think that we have the time we wanted for questions. >> i appreciate you sharing your comments about the current justices, and i would welcome your comments about clarence thomas.
i heard other comments that she had never heard them speak. [laughter] >> at the moment, the justice thomas seems like quite a novelist. a lot of people ask a lot of questions except for him. he does ask questions, very rarely. there have been plenty of justices who did not ask questions. justice brennan rarely asked there are justices who felt passionate and strongly about issues the way that justice thomas does but did not feel like participation, that the argument was that important or central. the interesting thing about the court is that all the residents are so unbelievably active. it is about as hot a bench as we
have had. when i first argued cases, probably before anyone argue the case here, if you could argue a case and get no questions -- you could. zero questions. that would happen in the 1980's. >> and the 1990's i got in excess of 90 questions in 30 minutes. >> wow. >> if you look historically, it is not such an anomaly. thomas is very popular at court with the expansion of justices and ball parks, very engaging and funny. this is someone who, if he is paying attention. >> and if you read some of the literature done about his role in cases, it jan greenberg wrote
a book or she painted him as being highly influential in important cases. so i think some people draw the wrong inferences from his silence from the bench. when people say this to me, i say, well, justice brennan did not ask questions and he is a hero to a lot of court watchers. one time, i was on the court room and he was asking questions that i said to someone a very long time ago, justice brennan was active today. and they said, his granddaughter was in the courtroom. i do not know if that was true, but -- >> one day, justice thomas was unbelievably active. it was a case of virginia involving whether it was a violation of first amendment for virginia to make it unlawful to burn a cross. and all of the sudden, his voice came out. he has an amazing voice.
it is this extraordinary sort of base. he was very powerful and spoke with great passion, question after question after question period -- question after question after question . he has to decide how to be a justice. it is too bad not to have his voice, but that is a decision for him. >> he had taken over case i argued about 10 years ago and asked questions for the upper side -- other side. but as an advocate, i appreciate telling the court with lawyers think, and it would be nice to have an opportunity to get points we hope to make.
>> yes, right here. >> i suspect more than one attorney has left the court after an argument and tried to figure out how the case would be decided on the basis of questions and responses. two of you argued and won reported. from your experience, how reliable are those questions as a gauge of how the questions come down? >> some cases are too close to call, but in a lot of cases, the impression you have when you leave the courtroom is a good predictor of what the outcome will be. it depends on how many justices are active. when people can get it wrong is that everybody has not been active. there have just been a few on one side, but you can hear from five and you might draw the wrong and friends, because it sounds like uniform opposition
to a particular position. you'd be surprised to reading the opinions. >> he who gets asked or she she who gets asked the most questions loses. that is what typically happens, and thankfully last year, two of the cases prevail, an exception to the general rule, but normally you can expect the advocate and get the most is going to lose the case. >> and naturally, we keep count. >> it was originally a student of mine, and other people have been more sophisticated. >> one thing i try to sit myself as there are some ways you can tell. you know what the issue is and where the justices have been, and their questions reinforce it. but the stars have to be a line for you to feel confident, and
what always is in the back of my mind is something justice kennedy said to us, that you have to write. he is such a key justice on the bench, and he might have plenty of questions to make you think he is going down a certain path. he tries to write the opinion going down that path, and it just is not there. and even though they might want to go this direction and their questions suggest they do, some of them will be down by a precedent in their mind and not go there. >> what you do get is a sense of what they're doing right then, and it is not unusual. the changes mind. at the time they originally voted the conference, that is good, because they are thinking and working. it turns out their initial instincts are not right, at the end of today, that is what they do. they produce a written opinion.
>> with regard to second amendment's statements that you were talking about, you indicated it has some language similar to the first amendment. but i wonder about that clause at the beginning of the second amendment. can you address that clause? the well-regulated militia? >> i think that that clause was addressed in great detail, regarded as a clause about purpose. i do not know this issue well, but i'm not sure how that would figure on the incorporation argument. i do not know. >> i take for your question the fact that militia at the time of the founding was traditionally a state entity, and this would be the practice of the states to organize a militia when they were called to service. they would come with muskets and
become the virginia militia. i think that what is interesting about this particular case is that you have that history and the understood meaning of that part of the second amendment, but the corporation doctrine has a whole series of double bank shots that have to be for -- that have to be hit just perfectly before you see it as something of corporate against the state, so the analysis, probably -- i am not so close to the case that i can say with any authority at all, but i would think that the court would apply traditional tools that have been developed over a hundred years or so to look at the corporation more than they would have been well regulated militia clause would signal intent.
because of course that was written before we even had an incorporation problem soul -- to solve. >> can you talk a little bit of the role of the solicitor general? >> let's let david do it. he was in the office. so was marie. >> david rove book about it. so he should do it. >> the solicitor general is a creature of congress. at that time, the attorney general was the principal person who argue for representing the united states in cases before the court. at the time there was so much litigation and fragmentation. oftentimes, the u.s. attorney's individually would represent themselves, and it would often take positions in the justice system -- the justices have had enough of that. they made it known they wanted
the government to speak with one voice. so as part of the creation of the department of justice, it covers for the statute that there should be an office "learned in law," and the solicitor general with -- would take litigation matters as the attorney general should find. by tradition, overtime, the solicitor general's office has secreted the duty of representing the united states and agencies in the supreme court so that disputes about interpretation of wall -- the law can be resolved before the government takes the position of arguing in the supreme court, and the government would participate in 25% to 30% of the
cases, give or take, depending on the year. as a friend of the court and a substantial additional number of cases. so the assistance will now participate in two-thirds of cases argued in the supreme court. so a very powerful role, well- respected, and an important position for the government in creating that unified voice among disparate entities. >> you probably saw the office, right? >> yes. >> what about whether chief justice roberts has hit his stride in that regard?
>> he is head of the judiciary, so his responsibilities go way beyond the court room, and he is very active in speaking and running the judicial picture, making sure the judicial conference runs properly, over set of rules process and construction of the building, the budget, salaries for judges. all of these issues come within his realm, and i think that he is getting high marks from people who are knowledgeable about these issues and the way he is handling those responsibilities. he is an active questioner, well-prepared, and a force to be reckoned with. >> we have not talked about the ability to assign an opinion, because if they end up writing for the majority, they keep
everybody on board, and that is crucial, and the chief justice, by virtue of the seniority of his title, like everybody else who has to work their way up, it is up to him who gets the case and that is why he is quite interesting and the 2007-2008 term, that he assigned a big gun case to antonin scalia, who had a reputation of losing the majority in type cases because of strong rhetoric, but he is working closely with other conservatives on the bench. early on, he won a lot despite the fact that he was a junior in age and tenure because he had argued so many cases before the court and he was a known quantity to them. >> he is a remarkable person, and he has a remarkable energy and intellect, and the stuff that the chief justice of the united states does would boggle your mind, from the ceremonial,
which he probably has no fear in the history of the supreme court for his ability to represent the court in public settings to his immaculate preparations and oral arguments, and even with respect to the assigned power, it is really hard. every year, there are one or two cases appearing from external observations, but it is not clear that there has been any step up in terms of the signing opinions to justices who can obtain majority through their writing of the opinion. i think that what he has done in his first couple of years is all inspiring, because his schedule, what it looks like on a bid-to- date basis, would love most of us today away, and yet he comes
to court and all of the other stuff going on, including being chairman of the board of regents at the smithsonian. he was active. >> on the board. it was incredible. he was the chief justice of the united states. he is the chief justice of the united states. that is his official title in the constitution. and because the chief justice of the country -- there are all these different layers. he is the leader of the bench. he is the boss of the court, and that includes all of these employees in the building and the staff that you go to the federal judiciary, which has a multibillion-dollar budget and a whole host of all of these judges over the country. and then he becomes chief
justice of the united states, with test for responsibility. it is amazing what you have when you have a chief justice, and i think david does well in terms of the kind of role he fits. you will hear people in some cases be critical. that is the role of the court. but david is making an important point about the role of the chief justice.
>> i am interested that you describe these judges as well- prepared. are there instances where you see them not-well-prepared? >> sure, but never publicly. >> and i can say so, i don't need a vote. there are times for a justice will say they have not read anything, although i just am convinced that justice ginsburg reads everything. she is so thorough and knows every case. one of the byproducts is that people have been producing and
what it asked, and you cannot be ready to ask unless you have a lot of material. unless you have justices in their late-70's and one who is about to turn 90, they are very energetic. a lot of health problems have been laid out across the bench, right now there is vigorous, alert, active group. >> yes. i think that there is no question. sometimes you see that justice is in some cases ask questions, get the answer, and to realize that they just did not get it. that does not mean because they are well prepared, they do not learn a lot. to find out what they were thinking when they arrived at the core was just wrong. they realize something they have fought coming and was mistaken.
sometimes you walk away and you think, i cannot believe they do not really understand all how this works. but it comes out a couple months later, 9-0, the way that it should have. i have a couple chief justice rehnquist moments you reminded me of. he was so wonderful at this. an advocate said to him, i am sure the justices all know, do not overestimate us. another, an advocate was arguing, and the red light went on, it was time to end. the line and on and the advocate did not know what to do, whether to stop or not, and rehnquist
noticed that life had come on. -- like -- light had come on. and he said, even homer nodded. other questions? yes, right over here. >> it will be a long time before we have a justice raise the court of the heft of a story, cardozo, or brand desk, -- brandeis, because the confirmation process has been taken to where a president says, can i get this person confirmed, purses, is this the best mind on the bench. is that true, or something else? >> i think the minds on the bench are as good as they can get. i think " it is bench -- i would
be surprised if there was any history where there was that much brainpower across the spectrum. >> i think the difference is in the nature of the legal problems the current court is solving purses some of the problems and the past year. about what john marshall contributed to the foundational opinions decided while he was the chief justice, we dealt have -- don't have those foundational problems arise year after year after year the way that the other courts did, for instance. and a lot of what the justices now are questioning our questions of fine statutory interpretation that will never be written about in a hundred years of the court, and that is more than nature of the legal system and the fact that what the most difficult problems -- a
lot of the most difficult problems have been worked out and what is left is the plumbing system. >> but you do leave out of someone might have been appointed, and right now, the justices have been on federal appeals courts. one objection o'connor recently voiced is that we should not have that much of plumber's out there, people who come from the same thing. she had an unusual background and that she had been an elected politician in arizona, and in the 50 + and 60's, we have a former governor, a former head of the fcc. people who were politicians or had held other roles more broadly than the judge, and the last individual who did something other than the a judge was william rehnquist. but he was more recent by a few hours, actually, and he had not been a job she -- judge before.
he essentially was the last time we have someone on who had not worn a black robe. so in terms of talking about diversity on the bench or people who have a certain stature beyond the law is a point that some critics embrace. >> in terms of the confirmation process, i do not think there are many right now who think that the confirmation process does not meet some rethinking. but in terms of great legal luminaries, it is hard to know what is to start the important. -- historically important. i do not think there's much doubt that 100 years from now, third of marshall will be a very significant justice on the court. but an interesting commentary i've heard recently by more liberal offices, kathleen
sullivan said this, they describe chief justice rehnquist as someone who would go down in history as one of the best chief justices ever in the supreme court going back to marshall, and part of that is that it would be the role of the chief. it is more than the votes in the case. you're the head of three branches of government and their leader for a long time, and when rehnquist became chief, there was such enthusiasm for his being a chief for the other justices on the court. justice brennan, justice marshall. he was someone who was a big leader. to be very fair, as a leader of that branch. >> he also had a very even way of dealing with things. as an individual or associate justice, he had a constitutional vision which ended up being in
the majority, and for that reason, at historians will look back and see the important role he played. but he also did not give so wrapped up in the result he favors, that he left out the fact of personal relationships, whatever the assignments, you move on. these other cases, you lost on that one. he did not view his world to be so personally injected. >> he was wonderful. one reason that people keep this praise on him from the other end
of the political spectrum is because he personally charmed so many colleagues and so many people he dealt with, surprising to the public often times. they did not really understand what kind of man he was. finally, he will be famous and remembered, because he did preside over term in the dark and of the court. as david said, in an associate capacity. he was called alone ranger, because he often dissented on his own at a time appointees were regarding it as liberal rulings. over time, of course, he led the court in a different direction, and that will ultimately be the reason that he is remembered as a very significant justice. >> time for one last question.
here is one. all right. >> i would like to hear comments about gordon bush. >> you mean why the supreme court should decide the outcome of the federal election as opposed to the state supreme court? [laughter] >> i would like to share the role of the supreme court getting into the whole political debate. >> i know that the court has been criticized for that, but i think that the explanation given publicly when some have spoken about it, i think they have spoken in interesting ways and said, you know, this was the federal election for the presidency and there were federal issues involved. shouldn't it be the role of the u.s. supreme court to be final arbiter of those issues, as opposed to the state supreme
court? that seems very logical to me. whichever way they came out on, it seems to me they should have been the court to decide. >> half the country disagrees. and justice scalia says just to get over it. so frankly, have the country is -- exactly right. but i have a great conversation with justice stevens about it, he goes around saying -- he was on the other side. so really, we are beyond that now. but there is rarely a former it does not come up. >> the only thing i would add is regardless of what you think of the court, whether they shut taken the case, is how the court
does not work well in that context. the court cannot actually do what the court is supposed to do, which is to think about a challenging legal issue, think about it carefully, the liberal about it, discuss -- discuss it. you decide the case on tuesday and the argument is on monday. but structurally, they had no choice. structurally, they had no choice. but you're not going to see that institution to what it is really good at doing when by necessity, they have that time. the fact is, these are hard issues, and the justices are not able to do what they are able to do. before they read the briefs in the case. and you are not going and what
is a final legal analysis that these justices are capable of. it is like a computer crash, to some extent. >> i know that some democrats felt that what the court did was legitimate, but most republicans would have felt it was illegitimate to deny review. they're going to be upset either way. >> i'm not talking about what they decided. i'm talking about how the court functions and how they function well, and i do not think the court is really structured to think and to decide those kind of complicated questions, which means it is thought a bad thing the court has its pocket. >> all right. i can't we are closed. -- i think we are closed.
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then, reaction to the announcement of a new construction of israeli settlements in the west bank. our guest heads the advocacy group jay street. and tim brown, co-founder of the 9/11 never forget coalition, in opposition to trying the 9/11 suspect in federal court. we begin with today's news in your calls at 7:00 a.m. eastern on c-span. >> yeas 60, nays 39, 3/6ths having voted affirmative, motion is ageed to. >> with that vote, the senate moves its health care vote to the floor. follow the entire debate and how the bill would affect access to medical care, the public option, taxes, abortion, and medicare. the only network that brings to
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