tv Book Discussion on Understanding Clarence Thomas CSPAN May 23, 2016 1:00am-1:31am EDT
way possible so my challenge is always to politicians in the american public and the likelihood of that happening but it is what makes the book so important because gillette get what is happening in the system and what really works and how to produce better outcomes so that idea of violent offenders doesn't work. >> you are an inspiration and after talking to and reading the book one of the most powerful conversations she ever had. high praise. thanks for writing the book and all the important work you're doing now with the efforts of the beautiful
struggle for a better evolves criminal-justice system. reading this book made me a better person. >> thanks so much. i appreciate that. and with the insights into the book are amazing i appreciate the interview thanks for checking out my book teeseven booktv on c-span2 relate to go to college campuses to talk with professors who were authors and today we're on campus at claremont college joined by a a professor of
the book understanding clarence thomas professor in your view would is the biggest misconception about clarence thomas? >> it would be that somehow he was a shoeshine boy a that was put after his confirmation he is his own man i had a chance to do the jurisprudence of canton scalia and i admires him enormously and in fact, they have asked me to do the after word for the book with the paperback edition so i am going through information since the book was published the having done the book on thomas was easier and more profound a more consistent
and he is a giant he is not as glib or witty or sarcastic in his opinions but he writes of opinions. one of the things he does is is each year when the court knows the big case is coming his way he will look at one particular issue they he has not thought through thoroughly in the past. he will write the majority opinion or the dissent's you cannot see all the things you want to say of those in the majority.
so it would be 60 or 80 pages in length to enormously well researched in his statement on that issue of that topic comes up thereafter he will ride up attacking curry or dissenting opinion of which he spelled it out. he is remarkable. >> is a consistent? >> very. what drove me to thomas was the book on scalia thomas is an original list and i wanted to compare and contrast the original list. scalia has a much narrower form basically there are three approaches one is called the original intent for the effort is made to understand the original
intentions of the delegates in philadelphia and what they were attempting to accomplish. so you look at the records of the federal and convention in the documents the second is original understanding that tries to ascertain what the document to the delegates at the ratifying conventions that brought the constitution into existence of the focus is on the state and "the federalist papers" in the anti-federalist papers written to persuade the delegates in the third approach is the idea called original public meaning and he wants to understand what to the words mean to the society that adopted it? >> i have five pages of
dictionaries he has turned to to ascertain what the word meant at a particular time he will read "the federalist papers" not to figure out what the end that they attempted to achieve the simply the words that they use now thomas combines all three of the original general meaning approach so if he uses that is focused when he wants to strengthen the opinion they will turn to the intentions of the framers in the understanding so what end did they attempt to achieve? what evil with a attempting to leverage and what means did they mean with the use those words? so with that approach of criminal procedure
especially with the bill of rights provisions, thomas is identified as the most conservative justice of the court but on procedural matters he ends up writing opinions of because he wants the words to mean what he meant that the time and he will suppress his own impulses and prejudices to preserve judicial integrity by hearing to the original general meaning approach. he doesn't repeatedly. a good example nobody is probably more opposed to partial birth abortion than thomas but when the supreme court took the kate -- to case he wrote an opinion saying where does congress the power to pass this law? it uses the commerce clause
to regulate this? he is very consistent. >> host: how often did he injustice khalil look the same on issues? >> 87%. that is less than ginsburg and just as briar. and ginsberg and stevens. but when they voted yes to each other is when it is interesting during the 27 years together on the court, 24 years, i totaled about 60 occasions where one wrote the majority of their rut the descent. that doesn't mean there aren't other instances when wrote the majority in the
other joint somebody else's but the direct head on only 16 occasions. >> host: was the rating different? >> almost altogether had to do with statutory construction. and scalia wrote a big fat book under statutory construction and thomas is willing to consider more sources than just the text and but that legislative history from exactly the words that they employ a to achieve that and what it might mean. so on occasion they will quarrel on that bet on big issues almost never in one is a first amendment case scalia wrote the majority
opinion by california passed a law to make a criminal offense to sell video games under violent to minors without consent and a large 18 on the packaging but before the law went into effect the entertainment merchant associations challenged that and scalia wrote the majority opinion for seven justices in said the first amendment is not just books and newspapers but the internet and movies and video games. so he employed traditional strict scrutiny but thomas wrote a lengthy dissent to say when the first amendment was written, children didn't have free speech rights they
were subject to whatever their parents said and he went through early education lot to show the whole argument of parental control is essential and prominent so he writes the 40 page dissent focused almost exclusively on the original meaning of the first amendment and the application through 1840's and began focusing on the original general meeting approached and another instance or another interesting case of the first amendment with children was a case called morris against frederick you
may have heard about the jesus case this was an alaska, the winter olympics were about to begin and deal with the torch was carried through anchorage so high school allowed all the kids to watch the torchbearer as he was passing and a kid comes up with a huge banner about jesus the principal and the discipline in the student and suspended him for a few days. he challenges the suspension to say i have free-speech rights. remember there was an earlier case tinker verses des moines of black arm band was written to object to the vietnam war the unanimous supreme court said that is protected speech. this time the court was not willing to extend free speech protections and
thomas writes the opinion to say free speech rights for students and at the schoolhouse door the purposes for education not expression of a political principle and especially not kittens that being disruptive to the educational process. very interesting judge. >> host: white you think he doesn't talk from the bench? maybe once? >> i speak about this in the book. and actually two years ago in february jeffrey toobin wrote a piece called thomas's outrageous conduct a he had not asked any questions at that point in
eight years than we got to the 10 year anniversary then three weeks after that he asked a question a couple of weeks ago. i was asked to respond in what is so interesting is how he prepares for oral arguments. every judge your justice will have one of the for clerks write a benchmark on the case then they will lead and go over the questions they should think of asking and what they will pay particular attention to. thomas does this seem but it is also sent to the three other clerics as well and they meet for about four hours in each case and just talk about if we decide this way with the long-term implications?
if we decide this way? he comes enormously well prepared. his view is i learn by listening not by talking. scalia had a big impact on oral arguments when he joined the bench 1986, often there would be three or four questions asked in a half-hour of an attorney but today it is about 50 questions and our. thomas's view is hard to learn when 50 questions are thrown for an hour debate? though each side gets that he said all they seem to be doing is enjoying hectoring the council i talk to him not university of notre dame law school in.
>> host: they had a case in front of the court that was genetics and the question was under the patent act is it possible to patent unique dna strands? he said that is complicated and before us we have the two attorneys that do this issue better than anybody else i was looking forward to learning from them but i have my colleagues wanting to show off how bright they were. and what is interesting is until the death of scalia scalia, seniority determines reset on the high bench briar was on one side and thomas on the other.
observers of the court noted frequently thomas lean over and whispered to brighter than he will popoff with a question so that he did a interview questions our prior would ask i am responsible for. almost oliver wendell holmes almost never asked questions it is a very different era today and if you have one more voice to the cacophony the attorneys would have almost no time to talk to identify what nine thomas's of how often they joined but a few more would allow the opportunities an opportunity to express themselves. >> did justice thomas cooperate with your book? >> note he did not.
i wrote and asked if i could interview to clarify a few matters and pointed out all of the common connections of we have known but he declined so totally arm's length objective. >> host: what did you find to be his reputation among his colleagues? >> he is well liked. he is especially well liked by his law clerks. when asked in an interview what he was on campus been interviewed by some law students she asked what he liked least about his job as a justice of the court and
he said lack of anonymity. and was asked what he liked most about his job and she said my kids. day klerk's. thomas has a more diverse group of law clerks and any of the other justices. and number will pick only from the absolute tv law schools but he will take them from a variety of places he is taken people who have been iraq war veterans who come back to law school with much more different pathways to the clerkship and others he has many more women clerks than a lot of the other justices and he don't sell them at the beginning of the term as a clerk in the summer before the term in october he has
them all watch "atlas shrugged" and puts them all the big mobile home and takes them to the battlefield that gettysburg and becomes very close to them. they haven't annual monthly reunion for all clerks each month in washington d.c.. he gets along well with his colleagues but famously with his clerks. >> host: as a professor of american constitutional college what about lifetime appointments for the justices? >> i have a funny story justice scalia was on campus a few years ago and i was asked to introduce him to the group in orange county
at the airport hilton there were seven a hundred people in the room and the college has an organization if you contribute a certain amount of money you are invited to things like the soviet talking and it was sponsored by this society and a group called the pace setters a school established 1946 so graduates of the first three graduating class this are referred to as the pace setters and i was supposed to introduce him as both. and i said that pacemaker fellow. [laughter] the audience roared with laughter and i am wondering somebody said pacemaker and i walked away from the podium and i got back up there and said there are a
number of us because of advances of modern medicine wonder if we should reconsider granting lifetime tenure with huge laughter then he said banks. lifetime tenure is a problem he was appointed 86 and five months short of completing 30 years on the bench eric is something about allowing the voices of the past appointed in '91 by eisenhower in 58 and saree 56 that is an enormous length of time eisenhower was born in the 19th century did you have a judge by him serving through the '90s.
i think 10 or 15 years would make sense over the eric garland is called on batchelder the reason why he is nominated right now he had a real shot he would want somebody in his '40's like thomas but if somebody is older and allow him the full service of the more mature individual right now you have to go for young people so you can make your mark as the president more than over will better reflect the current citizenry you have justices on the court dealing with the issues of so phones can
the fbi or police searched the contents? the courts said no but if you listen to the or arguments a lot of the justices don't have a clue about modern technology and all the features that are on their. there was the case a couple of terms ago concerning patent law but they could circumvent cable systems it was clear that scalia had almost no sense of cable tv even though he helped to write that act but no real sense of contemporary technology would be nice to have judges who could rotate
with a better sense of those practices. >> early on when they did have lifetime tenure is and tell the 1820s and the supreme court did meet and it did not meet much the justices were writing carriages of respect from courthouse to court house hearing cases that contributed to enormous turnover because it was an arduous way of life and right now pacemakers and justice stevens lived in florida would fly every two weeks or arguments so modern technology would have befuddled the framers and make them rethink the wisdom of lifetime tenure. >> host: talking with professor and his book
that the title was inspired. there was the bill on the floor considering granting funds to educate black people in washington d.c. and the courts get up to argue against it and jefferson davis later became the president of the confederacy so to start with bad to say that was indicative of a long handling during history that essentially over the course of american history had racist policies put in place or individuals who did not what anti-racist policies flight gave bill to provide education to black children in washington d.c. in the same manner that the suns are being provided.
then individuals like jefferson davis reproduce racist ideas to either challenge those bills or to defend those existing racist policies so in the neck show typically we have been taught that ignorance and hate has led to racist ideas and individuals to have these racist ideas essentially have created these policies have impacted the lives over the course of american in history and what i found through studying the history of racist ideas that the connection has been quite the opposite and we have differentiated between
these powerful producers influential like jefferson davis or donald trump but these powerful producers of ideas i've differentiating between them and the consumer of those ideas of people like us and i studied the history why were they producing these ideas? people created racist ideas to justify the slave trade into justify slavery and treated racist ideas to justify segregation and though create racist ideas to justify mass incarceration so refined we have these policies in place and people wercr