tv Book Discussion on Understanding Clarence Thomas CSPAN May 22, 2016 1:00pm-1:31pm EDT
watching booktv on c-span2. whenever we get the opportunity, we go to college campuses and talk to professors who are also authors. today we are in the campus of claremont mckenna college in claremont, california and we are joined by professor ralph rossum, who is the author of this book, "understanding clarence thomas: the juisprudence of constitutional restoration." professor, what in your view is the biggest misconception about clarence thomas? just go the biggest misconception would be that he was somehow a shoe shine boy as he was disparagingly put shortly after his confirmation. thomas is altogether his own man. i had a chance a few years ago to do a book on the jurisprudence of antonyms kalina and i admire him enormously. in fact, they have asked me to do and "after words" to come out
in a new paperback edition. so i am going through all of his cases since the book was published. and enormously able man. having done the book on him, it is deeper, more profound, more consistent, is a giant. he is not as good. he is not as witty or sarcastic and his opinions, but he writes valid opinions. one of the things he does is each year when the court does the big cases coming his way, he will assign a clerk or two to look at one particular issue that he hasn't really researched or thought through thoroughly in the past and he will devote an enormous amount of tension on one case.
typically he will end up writing a concurrent opinion or descend because in the majority opinion that the committee report. you can't pay all the things you want to say without losing supporters who will believe the majority. so he will do it in a concurrence or dissent and will be 60 to 80 pages in length and it will be enormously well researched and it will be his statement on that issue. when that comes up thereafter, he will write a brief concurring and opinion just referencing the opinion and what she really thought all of this now. he is a remarkable man. >> host: is he consistent? >> guest: theory. he has -- what drew me to thomas was having first on the book on scully. scully is an originalist. thomas is an originalist. i wanted to compare and contrast their originalist sums.
scalia has a much fairer form of originalist on. one is called original intent and that is where the effort is made to understand the original intentions of the delegates at the convention but they are attempting to accomplish. so you look at the records of their federal convention and letters and documents by people for the convention. the second is original understanding and trying to ascertain what the document meant to the delegates in the various state ratifying conventions that brought the constitution into existence. the focus is on the state ratifying conventions and the federalist papers and the various anti-federalist papers written to persuade those conventions. the original public meaning and
what he wants to understand is what the words in the document mean to the society that adopted it. i have an appendix that lists five pages of dictionaries that he has turned to to ascertain what a word meant at a particular time. he will read the federalist papers not to figure out what the ends they were 10 team to achieve poorer, but to simply ascertain what they meant. they have all three been an original general meaning approach. it is focus on what words mean, he turned to what the intentions of the framers, what does the understanding that the drafters
and ends they were attempting to achieve. but for the evils they were attempting to avert and what you need to be employed to achieve an avert those evils when they use the words a day. our matters for example of criminal procedure, especially the various rights provisions. the most conservative justice, but on procedural matters, he often ends up writing opinion that make him look like a liberal because he wants the words to mean what they meant at the time. he will suppress his own impulses and prejudice is, try to preserve judicial integrity by adhering to its original general meaning approach. he does have repeatedly. a good example, no one is probably more opposed to
partial-birth abortion than thomas and yet when the supreme court heard the case in carhartt versus stenberg, he wrote a concurrent opinion saying where does congress get the power to pass this law? it is using the commerce clause to regulate this kind of question. he's very consistent. >> host: how often did he and did he adjust his scalia both the same on issues? >> guest: about 87% of the time. that is less than for example ginsberg and breyer. the interesting things is the maker to give to each other. 24 years together in the
quarter. about 16 occasions where one rode her majority opinion and the other wrote a dissent. one wrote the majority opinion and the other showing somebody else's dissent. only about 16 occasions. >> host: where those cases the writing in those those cases, with a different >> guest: almost altogether had to do a statutory construction. scalia wrote this big book called really law, statutory construction. thomas is willing to consider more sources than simply what words the tax status. he is more willing to look at legislative history, what with
the intent of congress when they passed in that rather than exactly what the words they employed to achieve that might mean. so one occasion they will quarrel on that. but on big issues, almost never are. one is a first amendment case. scalia wrote the majority opinion in brown first entertainment association. california passed a law that made it a criminal attempt to sell violent video games without parental consent and that required a large 18 on the packaging for such. before the law went into effect, the association challenges constitutionality. scalia wrote the majority opinion for seven justices. and just said hey, the first amendment applies not simply to books and newspapers, but also movies and the internet and a
new media like video games. so he just employed traditional scrutiny and strike it down. thomas wrote this lengthy dissent say when the first amendment was written, children didn't have any free-speech rights. they were subject to whatever their parents sent and went through early education law to show at the end of the whole argument said that parental control is absolutely essential and prominent. so he writes about a 40 page to send that is focused almost exclusively on the original meaning of the first amendment and its application up until about 1840. again, focusing on the original general meaning approach, he wants the first amendment to mean what it meant then.
another instance, another interesting case dealing with the first amendment and children was a case called morris against frederick. you may have heard about the hits for jesus case. this is up in anchorage, alaska. it was the winter olympics were about to begin in the olympic was being carried through anchorage. they allowed off the kids to go watch the torchbearer as he was passing. this kid comes out with a huge banner saying bong hits for jesus. the principal and that disciplining a student and suspending him for a few days. he challenges the suspension saying i have free-speech rights. there was an earlier case, tinker against des moines for a
black armband was written by some kid objecting to vietnam war or the supreme court has unanimously said let's protect the speech. this time the court was unwilling to expand today is an thomas writes the opinion saying hey, free-speech rights for students and at the schoolhouse door. the purpose of schools is education, not expression of political principle and especially not when it ends up in disruptive for the educational process. very interesting judge. >> host: why do you think he doesn't talk? maybe once in 25, 30. >> guest: i speak about this in the book.
actually, two years ago, right in february, jeffrey tobin wrote a piece called -- it was thomas is outrageous conduct, the fact he hadn't asked any questions for at that .8 years. we then got to the tenure anniversary and three years after that he has to question a couple weeks ago. i was asked to respond. what is so interesting is how thomas prepares for oral argument. every judge justice typically will have one of his clerks write a bench memo on a particular case about to be argued and then he will meet with that clerk and go over the kind of questions you should be thinking of asking, what briefs journeyed to pay particular attention to comment saturday. thomas does the same, but then
he has the bench memo sent to the three other clerks as well as to hand and then they meet for about four hours on each case and sit there and talk about okay, if we decide the long-term implications for the law? if we decide the other way, what are the implications? becomes enormously well-prepared. his view is i learn by listening, not by talking. scalia had a big impact when he joined the bench in 1986, often there may be three or four questions asked in a half hour of an attorney. today it is about 50 questions in our. thomas' view is what can you learn when 50 questions get thrown at an attorney in the course of an hour's debate? 25 questions aside because each
site gets 30 minutes. he said all this seems to be doing is enjoying packed during the console. i was with him at the university of notre dame law school when he was giving some remarks and was asked about it. he said that they had a case before the court. it was the myriad genetics case and in this case the question before the court under the patent act was is it possible to patch into unique dna strands? he said that's a complicated question and we have before us the two attorneys that do this issue better than anybody else. i was really looking over to hearing from them. what do i get? it is my colleagues wanted to show off how great they were. what is interesting is until the
death of scalia, seniority determines where you sit on the high bench. thomas is scalia on one side and breyer on the other. observers of the court have noted that frequently thomas will say something to breyer and then the buyer pops up with a question. in one interview he said those questions i'm somewhat responsible for. but also interesting is giants on the court like oliver wendell holmes almost never ask questions. it is a very different era today and thomas, you know, if you had one more voice to the cacophony, the attorneys would have almost no time to talk. i don't know that i want my thomas is in terms of how often
they join the discussion. a few more surely would allow attorneys the opportunity to better express themselves. >> host: professor rossum, did the professor cooperate with your book? >> guest: no, he didn't. i wrote him a gnostic i could interview him to clarify a few matters. i pointed out all the common connections than people who have known comment. he declined. total arm's-length object committee on this project. >> host: what did you find to be his reputation? >> guest: he is -- he is well-liked. he is especially well-liked by his clerks, his law clerks. when asked in an interview at
harvard law school, he was on the camp is being interviewed by some law students and the dean. she asked him what he liked least about his job as a justice on the court and he said likely anonymity. and was asked what he liked most about his job on the court and he said my kid. thomas has a more diverse group of law clerks than any other justices. a number of them will take them only from the absolute elite law schools. thomas will take them from a whole variety of places. he's taken people who have been iraq war veterans and come back and do law school and come back in much more different pathways to the clerkship than the others. he has many more women clerks
than a lot of the other justices. he does some men. at the beginning of the term as a clerk in the summer before the official beginning of the course in october, he has them all watch outlet showed and he puts them all -- he's got a big diesel pusher mobile home and he takes them out to the battlefield at gettysburg and becomes very close to them. they have an annual monthly reunion for all of his clerks at a restaurant each month in d.c. so he gets along well with his colleagues, but famously with his clerks.
>> host: as a professor of an american constitutionalism. claremont mckenna college, would he think about lifetime appointments for clerk of court justices? >> guest: i've got to tell a funny story. justice scalia was fond campus a few years ago when i was asked to introduce them at the airport hilton. there's about 700 people in the room. the colleagues have an organization and if you contribute a certain amount of money, you get invited to things like scalia talk. it was sponsored by the society and there is a group known as the pacesetters at claremont mckenna. the school was established in 1946, so the graduate of the first three graduating classes through 1950 are referred to as the pacesetters. i said pacemaker fellow and the
audience roared and monster. i am wondering why it. somebody set pacemaker. i walked away from the podium and we said there are a number of us who because of advances in modern medicine such as pacemakers, one day if we should grant judges lifetime tenure, huge laughter. when scalia finally caught scalia finally got up and looked around, he said thanks, ralph. lifetime tenure causes a problem. scully was appointed and 86. he was five-minute short of creating 30 years on the bench. there is -- there is something about allowing brennan who left the court in 91, was appointed
by eisenhower in 58. i'm sorry, 56. that's an enormous length of time. eisenhower was born in mid-19th century. you have been to the late 1990s. you could at that point appoint somebody like judge merrick garland was older. the only reason he is nominated right now is because we can had obama a real shot at getting him confirmed. he has placed on this list. but you could appoint somebody who is older and allow him the full service of a more mature individual on the bench. right now you have to go for
young people that can serve for a generation or two so that you can make your mark as a president that way. he will better reflect the current citizenry. you have justices on the court dealing with the issue of cell phones. can the fbi or the police search the contents of their cell phone? the court unanimously said no. when you listen to the oral argument, a lot of the justices don't have much of a clue about modern technology he and the use of cell phones and all the apps and things things that are on their. there was a case a couple of terms ago concerning a case dealing with patent law with little in tendency were able to circumvent cable systems. it was clear that scalia, for example, had almost no sense of
cable tv. even though he helped write the cable tv act prior to his appointment as a justice. no real sense of contemporary technology. it would be nice to have judges to rotate off and rotate and you have a better sense of those practices. one of the things early on when judges did have a lifetime tenure was a road circuit. in the 1820s, when the supreme court wasn't meeting and it didn't meet much, the justices were writing riding on horseback from courthouse to courthouse is hearing cases of other regular judges. that contributed to an enormous turnover because it was a very arduous way of life. right now, pacemakers and jet planes, the last part lived in florida, flew up every two weeks for oral argument. modern technology in modern
>> i think that's a question people have is why. so why did dylan do this? i know you talk in the book about lots of folks series about that, media and others. i'm interested in what are your thoughts on that question? >> the first of all that a child you have will take place in a school shooting, the chances of that happening are one in millions. so this is not an everyday occurrence. this is not something every parent should be concerned about, that his or her child will become a school shooter.
the far more dangerous thing for our children is how many of them have thoughts of suicide and self harm. if we look at a murder suicide touches the columbine tragedy, murder suicide is a small subset of suicidality, perhaps will result in the killing of someone else. so my recommendation is that we focus very much on trying to understand suicide in trying to prevent suicide so that these things don't erupt into a terrible tragedy. you didn't ask why this happened and in the book i talk about the more effective question to ask is how does this happen? what is the mechanism through which one thinking deteriorate. the way i have come to explain this to myself is really a medical model. if we look at suicide it can iterate to be a health risk as
we would heart disease or diabetes, we know that there are many factors involved. the personality and how the person interacts, views his world, there are biological factors that shows someone might have a tendon due to think or act or eat or live in a certain way. there are environmental factors and that is not just the home, but it also can be the school culture or the national culture, especially the suicide, there are things that occur in one's life such as bullying or a rat that can impact the risk that one is having. so my answer to that question is what happened to dylan was a very rare set of circumstances that overlap perfectly if you want to look at it in a venn diagram of interlocking circles where everything came into play. meeting a friend who is possibly