and events that helped document the merkin story. watched american history tv on c-span3 or visit c-span.org/history. >> you are watching booktv on c-span2. here is our primetime lineup for tonight. next, a program from the national book festival. linda greenhouse gives what she calls a short introduction to the u.s. in court. at 745, jeffrey on his book, the oath. it details the relationship between the obama administration and the supreme court. at nine eastern, the most recent "after words" interview, saucer eisenberg talks about the political campaign. his book is the victory lap. the secret science of winning campaigns. ..
and the book cannot this spring. it came out on the eve of the health care decision. so, who knew three years ago that we would be faced with a supreme court dealing with the most closely watched and maybe one of the most contentious case in many many years, and i would be happy -- the book doesn't say anything about the health care case, so in the q&a, i would be happy to share some conversations about that with you. but i thought i would step back and give a little bit of my take on how the court has gotten to where it is, not so much current events, but really looking back to read the book starts with a little history. it's not a book of history. i may court watcher is what i think of myself as a core group be. what is interesting about the court when you kind of step back and look at it is the extent to
which the court has written its own story. it's the author of its own story by which i mean that article 3 of the constitution which set up the federal court system really tells us almost nothing. it's far from a road map. it says the judicial power of the united states shall be vested in one supreme court and such inferior courts as the congress made from time to time, and that's it. so, article 3 of the judiciary article doesn't even mention the chief justice. we know by inference that there is such an office as chief justice because elsewhere in the constitution, we are told that when the president is in peach by the house and tried by the senate, the justice shall preside over the trial and you remember the chief justice rehnquist presiding over the impeachment trial of bill clinton. but with the chief justice will
is and how the chief justice is to be appointed in the federal circuit court of course the appeal if you become the chief judge by seniority so maybe what have come become the justice by seniority but no, president george washington thought otherwise and actually nominated a chief justice in that case and by separate commission, so that established the pattern some nominated to be the chief justice through the ranks. beyond that, how the court of reeds and what it conceives of as it's a distraction. many high courts around the world can give what we would call advisory opinions to the executive branch of their government or the legislative branch can say that, you know, if we get such and such would it pass muster and we say yes or no and if the answer is no they go back and redo it and bring it
back again and it works that way. our core to very early on established it wouldn't wish you advisory opinions that there had to be an actual case or controversy and adverse dealing between two or more parties before the court would take up the case and that is quite important in terms of how it developed in the relationship between the branches, the judicial review, the ability of the court to examine an act of congress and strike it down. we take for granted. the modern court has done that with and of course was asked to do it this spring in the health care case. john marshall famously declared that is what the power and the duty of the court to say what will law is and that was an expression of his understanding that the power of the judicial review is inherent in our constitutional system and that wasn't self-evident at all.
so that is the power of jurisdiction, limits on jurisdiction that somebody has to have a standing at one its jurisdiction. that's another thing the court basically made up. other courts won't necessarily have that. a few years ago to give very interesting kind of judicial trip to south africa which is a fabulous constitution, modern constitution and a wonderful supreme court. the south african constitution gives people all kinds of positive rights of the right to housing and education and a right to health and its job and all this. our constitution of course doesn't. our constitution is of - rights, the government shall not in the bill of rights the government shall not. it's against the power of the government. south africa constantly rights they have no limit the supreme court has no limitation on
jurisdiction. somebody can come into court and say the constitution promises me a job and i don't have a job. what are you judge is going to do about that? on the one hand it's very wonderful not to have these barriers and on the other hand it's quite a problem for the court because the court cannot actually effect giving that plaintiff of job, and so it's left in a situation where there's lots of promise that had been given the court can't fulfill so there is a gap that has grown of expectations and field promises. maybe john marshall in the early justice salt around the corner. i don't know but they decided early on that they were going to be barriers to entry. the one last historical call point i would bring to your attention as the extent to which the modern supreme court sets
its own agenda, and that is important, it's important and i think overlooks the aspects of how the corsi caves the need to be able to interact in the rest of the government. the federal courts of appeals you have to take what comes and that was true of the supreme court for quite a time and it's the high court of correction somebody could persuade it something amiss in the lower judgment they but have to take that case and make some kind of a decision. in 1925 the chief justice who of course had been president and was the only president to become chief justice and he was a very savvy player of both judicial and other kinds of politics persuaded the congress to change
that. 1925, a piece of legislation commonly known as the judge bill gave the court a great deal of discretion over the docket and that discretion has grown both by statute and by practice in the intervening decades, and so today we have a court that veazey is about 8,000 requests for review every term command from the 8,000 they take about 80 so the grand of the review is a pretty scarce resource, and the court deploys this very scarcely and also in a way that you might say reflects the judgment of the justices as to what needs deciding by them, so for example a case that is going to be heard of the week after the court reconvenes after october for the new term against
the university of texas is the challenge to affirmative action in the higher education and missions. you may remember back in 2003 the court had a major case on the subject from the university of michigan and upheld affirmative action to the university of michigan law school with an opinion by justice sandra day o'connor which concluded by saying the country has about 25 years to trigger this out and we are not going to get to that in the 25 years. that was the message. well, 2003 to 2012 isn't quite 25 years but it only takes four justices to vote to hear a case and there are four justices who evidently think that it's time to get back into this. you probably haven't heard much about this case yet because the air waves in terms of the supreme court had been filled with health care. but once the term begins and the keys is free to be argued on
october 10th, you will start hearing a whole lot about affirmative action and the debate will be rehearsed all over again so the court's ability to kind of tell us what to think about in terms of the legal dhaka and agenda is very powerful and also what not to think about the courts and the whole range of issues the court doesn't get into it's been more than five years or well, for years since the court decided a case coming out of the detention on the structure at guantanamo bay. haven't heard much about that lately so to segue for a minute on health care, the health care case is an example i think of the court not engaging in that kind of agenda setting as affirmative action but in the case of health care, federal court of appeals had declared the law on constitutional so one thing that the court feels it has an obligation to do in a
situation like that is to give the government a chance to defend that in the lower court is declared unconstitutional. the defensive marriage act has been declared unconstitutional by a number of federal courts and appeals from those judgments are now before the supreme court not part by the government because the obama administration also believes that that was unconstitutional but also brought by the house of representatives which has a right to defend an act of congress that the president chooses not to defend, and i think it is a sure bet the court is going to undertake a review of the defensive marriage act again because there are judgments on the books of the lower court saying that it's unconstitutional. so again, that kind of agenda setting function, what we are to be hearing about and the beating and talking about and also getting a decision and it really lies within the power of the court under appreciated power
because one thing it raises is how do the justices know what's important? how do they know what the should be deciding? obviously when people bring their appeal to the supreme court they lay out the case and the format of one of the petitions to the court decides that 30 page is to make the case not necessarily that they should win the the court should hear them out. but that is very limited. the court is an appellate court doesn't have that fact-finding ability but the shoulder allies of the other government officials to exercise the kind of power that justice is exercised an ec justice o'connor for how do they know what they think they know, and there's one
rather recent example of a kind of failure, institutional failure of knowledge that i think is kind of interesting. about four years ago there was a case before the gate. the case was called kennedy against louisiana, and it was whether a death penalty law that imposes the death penalty on somebody that has raped but not murder trial, so death penalty for a non-murder offense, whether that is constitutional or whether that is cruel and unusual punishment so the court took this case and in the amendment jurisprudence in a similar case such as the death penalty for people with retardation and the death penalty for people who committed murder as a juvenile and so on, what the court typically does is what is cruel and unusual, so the court kind of surveys the landscape of the looks of the different state statutes and decides what is unusual and then
goes on to make an aid amendment judgment. so in the case on child rate without murder, just a handful of states have such a law on the books, so justice kennedy wrote an opinion for the court declaring this louisiana law unconstitutional and in the course of the opinion he said we've looked at the state law and there's only a handful that have this and the federal government doesn't have it and even though the congress has said many times in recent years it's never added except that it has but nobody had told the court as the year before this decision congress added child rape as a capital offense in the uniform code of military justice which governed the legal code for the armed forces. nobody had practiced to the court's attention.
the solicitor general, justice department officials who represent the inference of the federal government before the supreme court hasn't even filed a brief in the case. obviously when the court came up nobody thought that the government had any kind of a stake in it whatsoever. and i found out about it because somebody i know, a military lawyer new fill all and had logged about it after the court had recessed for the summer. so i called up the lawyer and the office to ask them about this and i said so, i see you didn'tile a brief and he said that's right. suppose i told you that the ucmj was amended last year to include capital punishment and i cannot quote here in this audience. [laughter] so, this is in my kind of final
days as a daily reporter and lead to all kinds of hand wringing and louisianan at the court for a rehearing and the court took new briefs and so on but they didn't actually be here the case. the issued the opinion in the same flight-for acknowledging by the way, you know, we change our opinion. so it doesn't add up to anything but i wanted to mention it as an example of the limits of the supreme court knowledge because they can't send people out into the field to see what is the story behind this come about or the other? they rely on the brief st of the court and they are not fact finders. so, when you see the court exercising the power to assess the caucasus the country's legal agenda, it does kind of leave you scratching your head, you know, how do they know what's important? so, one way they might know what's important is what they bring to the court from their own personal and professional
background. when they get nominated and confirmed to the court and that is an interesting subject because the collective biography of the supreme court justices has changed a great deal over time. back in the old days for instance, well, they were all protestant white men so we will take that as a given and nobody thought about it as we might think about it today but they did think about other kinds of diversity. for instance they felt about the geographic diversity that they are always an accord and a westerner and so on and now we really don't think about that at all. most of the justices today are from the sort of northeastern quadrants and we don't really think about this. justice o'connor and chief justice rehnquist were both from the small state of arizona. i think that reflects the fact we are still launder a country that is caught up in the
geographic differences among us and you could say the same thing for religion. right now as you may know, justice stevens retired two years ago as a protestant on the supreme court and we now have the supreme court of six catholics and three jews. how does that happen? in some ways you could suggest that it happens but it certainly reflects is we don't see that much anymore about the accounting by religion we still force are very aware of race and ethnicity and gender, so the fact that there are now three women on the court, you know, that says something. that's approaching a kind of normalization of the notion that the women can rise to the highest ranks in the legal profession. i think we're still waiting for more diversity in the court, and race and ethnicity. but the point i actually want to make the wingback to how the court knows what it knows is
until elena kagan succeeded justice stevens two years ago she had never been a judge. she came from the dean's office at harvard law school. every member of the supreme court for the first time in our history had as the last thing on their resume a seat on the federal court of appeals, and that is astonishing. there are lots of ways to be a lawyer in this country. for instance, the war court there wasn't a single member of the court who had been a judge, a judge of anything. and justice brennan came on the court and had judge in new jersey. he'd never been a judge. three term governor of california he had run for vice president of the national republican ticket and he's a major political figure. there were some matters, former cabinet members, there were all kinds of people who had been deeply involved in the life of
the country who and upon the supreme court. justice o'connor who've retired in 2005 was the only member of the court she served on who had been in elective office. she had been majority leader of the arizona state senate and there is nobody there that has ever had to face the public and, you know, for some of them i'd sure that that is a good thing. but it's kind of a narrow professional biography that's pretty interesting. what that reflects is the current state of the confirmation process. presidents don't want to take a chance. how do you not take a chance? you get somebody that has already been acting as a judge and you get to look at how they have performed as a judge and a deal with legal materials and how they comport themselves and so on. that is a kind of very rough proxy for how they might be hit on the u.s. supreme court of course because you are found by the supreme court presidents and
they cannot go off on their own frolic and once you are on the supreme court they'll pay homage to this notion you've heard starting to stand by the president, but that doesn't mean they have to. they can do what they call what the five votes to do. so a very sort of precedent balad lower-court judge doesn't necessarily get on to move the supreme court and just stick to the way that things have always been done. but it is a rough process that gives presidents a kind of comfort level and i think if someone has been a judge that means they haven't been running above the country giving provocative speeches. they haven't been writing provocative articles. they are kind of a known quantity if that's what it's come to. the confirmation process is a very depressing subject. it's depressing in the lower court really from both sides. the obama administration is very
slow to nominate judges to the were courts and the senate has been a terrifically obstructionist in a way that's really very new. there's always been fights over the federal courts of appeal. but this senate is lacking the nominees in the district court to the trial and i think with an eye towards making sure there isn't a democratic branch to the convention on the lower courts were plausible supreme court nominees there is a new pair of diamond. it used to be coming and i used to give talks about this that as long as a president stays within the sort of boundary of the political consensus and nominate somebody within those boundaries the senate tried to push the envelope and achieved by a supreme court nomination something that couldn't be achieved through the political process that president was in seat territory. succumbing you think of for
instance bill clinton's nominees and with better ginsburg and stephen breyer. almost no controversy because clinton could have gone far to the left if he had chosen. there were potential nominees who were to the left of ginsburg and breyer but he went to the middle, and they were confirmed with a handful of oppositions. but in president obama's nominees were used the same strategy for both sonya sotomayor and elena kagan were totally mainstream nominees. sonya sotomayor had i believed 17 years as a federal judge. i think more judicial experience coming to the supreme court than any nominee in recent history. elena kagan was highly qualified. my numbers may be off but i think in the justice sonya
sotomayor case she got republican votes and i think elena kagan got five. what is going on in the confirmation process? well, i will tell you little story that i heard about the process that is a wake-up call for how broken the system is. so it had appeared right after her nomination that she was calling to get a lot of republican votes. maybe most republican votes. she was a very attractive nominee. i'm going to place just a little bit of water. excuse me. mitch mcconnell the senate republican leader was quite upset by the idea that many in his party might vote to confirm her so he wasn't trying to make. so he went to the national rifle association and he asked them to, quote, score the boat. so if there's any washington insiders here you know that score in the vote means it is a
vote in the interest group whether it is the nra or the aclu will list on their final run down on the congressional session how did the members of congress to on the issues that really mattered to us? that matters a great deal to the adherents of that particular interest group. the nra never scored a vote on the supreme court nomination and they had no reason to take any interest in sonya sotomayor's nomination because as a lower court judge she had never been in the position to make any judicial policy on gun rights or gun issues but they scored the vote and that is what accounted for the fact she only got a handful of republican votes to raise i can no longer give my little spiel was long as the president stays in the mainstream because mainstream it doesn't matter anymore. it's really all politics. and part of it goes back to the
battle over robert bork which may be some of you may be old enough to remember in 1987 were president ronald reagan did try to use the appointment of robert bork who was a leading conservative intellectual of his day to press beyond the bounds of the ronald reagan administration could've gotten from a conference or the democrats who had to give back the senate and it was a huge fight and was really a fight over defining the mainstream. you know, is it part of the mainstream to have a judge who criticizes griswold and as connecticut in 1965 decision that the stock which is the right to birth control. most people think the was a pretty good decision, but he thought it was a very bad decision so the battle focused on a few key things as that. was a big constitutional teachable moment for the country, and people have drawn a very different lessons.
but what it tells us is the mainstream, quote, the mainstream remains aver econ testable concept. what is going to happen first in the confirmation process? i was a little surprised "the new york times" has a wonderful interactive tool on the web site where it has one of these clouds of how many times particular words were spoken by anybody speaking of the republican national convention, the democratic national convention in you could put in the phrase into this and see how many times the words were spoken. so the supreme court came up zero times for the republicans and zero times for the democrats. so, even though we all know that whoever wins this november is likely to be in a position to shape the future of the supreme court. nobody mentions that.
not just romney and obama, but nobody has spoken at either of the conventions engines the word supreme court. so, you know, i hope this means you're interested in if and the subject to kind of think about it. it's jury, very strange. one thing i will mention is there is an incipient debate going on in the country over the life tenure for the supreme court justices. nothing is good change right away but it's a conversation that we haven't heard for quite a long time if ever. the emerging democracies of the world and many older democracies, to back have constitutional court's have adopted many ideas from the u.s. constitution and the the u.s. supreme court. one thing is life tenure for the court judges. they all of either a term of years or in age limit and so
scholars and politicians started to scratch their heads and say the life tenure on the supreme court really most serves the interest of the public. for one thing, if the had a term of years or age limit i think we wouldn't have -- it would certainly lower the temperature of the confirmation battles because you knew you wouldn't be investing in somebody would be there for 30 or 35 years long, long of lasting not only the president july administration, but the era in which the nomination occurred and things change a lot from one decade to another in terms of what's important and how we see things. i just bring this to your attention to the delight not have heard of it because it is still in the legal literature but it's interesting to see and try to think a little bit outside of the box do we have the best of all systems and the best of all possible worlds command of course the answer is not necessarily.
it can always be more perfectible. the last thing i will mention is the relationship on the branches. of the judiciary of course being one of the three branches, and certainly the framers in devising the notion of the separation of power expected there to be tension and interplay among the branches and is there ever as we saw in the health care debate with a one point the leave you with is it's a very changeable kind of situation. sometimes one branches and one branches down. i think in the early guantanamo period right after 2001 when the prison in guantanamo bay was filling up, we have a kind of a clash of the to the institutions that were sort of alpha institutions on steroids at that
time. we have the white house claiming huge on reviewable power to do what ever they want at guantanamo and we have the supreme court kind of getting up on its hind legs saying not quite so fast. there are certain norms and due process that apply even in wartime to a situation like this. the executive and congress had to step back a little bit. they pushed back. the supreme court pushed back and there were three rounds of decisions at guantanamo ending four years ago. it's now all dissolve into the lower courts and the supreme court has decided well, they said enough. they made their point. congress responded to some and they have nothing more to say about it at this point we so that conflict is sort of died down and now we have a new one coming up, we have a major challenge in the part of the
health care decision that dealt with the congress authority under the spending calls to attach strings to the grant of the federal money. it's the first time when the court and now what they did the structure of the medicaid expansion as a part of the health care law. it was the first time in history that the supreme court ever said that the strings attached were to coercive. so the inter branch, but has shifted to a new playing field. i don't know exactly where it is going to go. you can make all kinds of arguments about it except to say it's a reminder not only obviously the court is important, but that the dynamic within which the court operates is political as well as the cultural, social, legal, dynamic is ever changing and ever fascinating. i'm going to stop that and there are two mike benge bible invite your questions until we run out
of time. my timekeeper is going to tell me when that is. thank you. [applause] >> i was at politics and prose bookstore the night that he prophesies the supreme court would pass the medical health care bill is that robert would make the decision, and i congratulate you. [applause] thank you for remembering. >> welcome back to washington. you mentioned appointment for life. have there been historically term limits for age or health --
>> for congress? >> no, for the supreme court. >> no come article 3 of the constitution grants life tenure to all of the treasures. so that wouldn't be an easy fix but one thing that is interesting is every state has a supreme court and of the 50 states only one state has life tenure for the high court judges. >> have any of their terms been interrupted because of the competency or held? >> justice douglas had to retire after he had a stroke. there's a feeling the there have been justices who stayed too long. i think that's not too likely to happen because we all do kind of live in a fishbowl even though the court is not on television. if there is enough, they said in
public three times a week when the court is in session and so it's kind of hard if somebody is very obviously not confident and it's hard to conceal but i think it has been a problem over time from time to time. >> prior to the health care ruling, the wisdom is that kennedy was the swing vote on the court. with the ruling now with the chief justice's decision how do you see the chief justice roll as a swing vote now coming forward to the upcoming term? thank you. >> that is a fabulous question and i spent eight amount of time thinking about just that. i don't have to decide a dancer. i never saw david kopp as the first questioner indicated, i never thought that justice kennedy would be the deciding votes on this case. he has been always hard over on
the federalism, states' rights agenda. john roberts never was although he gave his vote on the commerce clause to the other for conservatives, but i always thought he would be the decider. this would indicate that he's kind of changing his tune of attacking more to the metal. this term will tell because unlike the health care case, this coming term that has affirmative action and almost certainly voting rights took the big great subjects and rate has been his subject just like federalism was kennedy. roberts is entering his eighth term as the chief justice, so, early in his tenure in the case in 2007 where he said the way to stop discriminating by race is to stop discriminating by race
he says as in validating an effort by the systems to keep public schools from resegregate in. he's eager to get into the subjects. what i expect attacking to the metal on those i don't think so but i'm not 100% sure it is the question of the moment. this is where the roberts court is about to meet the road there is a decision to be made between what a judge believes, and he deeply believes it is wrong for the government to classify or count people by race or what one would consider benign purposes. so what the judge lee of and how he chooses to be a. there were various off ramps for the cases that he could take, but i have a feeling from the
health care case back he's not completely in charge and he was scrambling to keep afloat as the more conservative syndicated they were willing not only to strike down the mandate but and balance the entire law, hundreds of provisions that had nothing to do with the mandate that was a radical stance they took and it left him kind of thinking where do i go with this? no inside information. i'm just kind of projected. so it is a fascinating moment. yes. >> thank you very much for your presentation. i have a question about the citizens united which you have spoken about today and particularly since that affect how politics are here and how the money place in politics whether you anticipate looking forward in the next few years as we engage nationally in a
conversation how many plays into politics what role you see the court playing and particular issues or ways in which the court might continue to exercise a role in that conversation. >> for us to get on a different path between the different supreme court's -- [applause] the court this last term was given an indication, and you sound like you know a lot about this in the montana case the court basically served up on a silver platter an opportunity to scale back if we still live on citizens united so the state of montana came in and said, you know, you said and citizens united that there's no proof that money causes corruption and
politics but we are here to tell you it happened to us when our states are controlled by the mining interests and so on and senators were bought and sold, and so we have this on hundred plus-year-old statute on the books that prevents corporate spending on politics and the question is whether that is still constitutional under citizens united and the supreme court just said they didn't even bother to take the case they just said no since it is united governed and even though you're coming to us it is no longer a hypothetical but you've got historical prove that is not enough and goodbye. so that tells us there is no appetite for the court to get back into this. what do you see as the biggest change in the supreme court since you started writing about?
>> biggest change in the court. well, you know, when i started covering the court in 1978, it was still sort of within the shadow of the war on court. it still wasn't clear. the still early court still had to tell us what the legacy of the 50's and 60's on the court was actually going to be. for instance that was before the time the court made a big turn on affirmative action issues and so on, so the biggest change has been how conservative the court has become. how far to the right the spectrum has shifted to the attitude take justice kennedy with a median justice come he's very far to the right to the justices who would have been in the middle of the burger court,
justices likes to work or lewis powell, so that has been the biggest change. we only have two minutes left so give me short questions and i will try to get shorter answers. >> you mentioned of the collective biography of the justices, but another related issue the biography of the law clerks. and to that and i was wondering the research into justice blackmun did you come across any of his thinking? he was one of the first to have a female clerk who's done quite well for herself so i was wondering if you had come across any thoughts on hiring. espinel well, justice blackmun over his time he did have more women will clerks than any of his time. i don't know the current statistics but women make up about a third of the clerks and there from chicago and there isn't a lot of educational
diversity but it is a major prize especially now that i've read recently the law firms are paying a bonus of almost a quarter of a million dollars to sign as a first-year associate comes it's a pretty amazing situation. >> my question was whether you think that the way that the health care decision was commonly perceived might be somewhat off base just in terms of its untypically interpreted in terms of a kind of partisan issue is it not upheld but the court did strike down congress's spending power which is kind of an extraordinary thing as you alluded to earlier and also cut back on the power under the commerce clause both of which could have very long lasting future affect on the congress power to regulate. i'm wondering if that is as significant as they have done with all law itself.