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tv   Key Capitol Hill Hearings  CSPAN  May 24, 2016 12:30pm-2:16pm EDT

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help foreign partners by donating security screening equipment to foreign last-point-of departure airports and to assist in evaluating foreign country's air kaorg security programs -- cargo security programs. these provisions are similar to those of h.r. 4698, the safe gates act of 2016, and together with the other stkaourt -- security provisions adopted take concrete steps to confront the real terrorist threat that we're facing. i believe these provisions in the f.a.a. reauthorization bill will help make air travel from foreign countries to the united states safer and more secure. the senate passed this legislation in april, and now it's time for the house of representatives to act. the house of representatives should take up our f.a.a. bill without delay so that we can get a final bill with timely security and safety reforels on the president's -- reforms on the president's desk before the
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summer state work period. everily day countless terrorists are plotting their next attack against the united states. there are measures that we can take today that will help make americans safer at home and while traveling from destinations abroad. several of those measures are included in the f.a.a. bill that we passed with over 90 votes in the united states senate. madam president, today i call again on the house of representatives to take up this bill so that we can continue our work to keep americans safe. madam president, i yield the floor. i suggest -- madam president, before i yield the floor, i have seven unanimous consent requests for committees to meet during today's session of the senate. they have the approval of the majority and minority leaders sm.and i ask unanimous consent t these requests be agreed to and that these requests be printed in the record. the presiding officer: without objection. mr. thune: madam president, i ask unanimous consent that the
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senate recess until 2:15 p.m. and that the time during the recess be charged to the proponent's side of h.j. res. 88. the presiding officer: is there objection? without objection. the senate stands in recess the senate stands in recess the house has already approved the resolution. senators have used about two of the allowed 10 hours of debate on the bill. they are now in recess for the weekly party lunch meetings and live coverage when they come back to: 16 eastern here on c-span two. >> this sunday night on q and a, u.s. senate historian betty: talks about various
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events in senate history and the worker office does . >> i came in june 1998 as a newly minted senate historian . my colleagues dick baker and don mickey said to me it's going to be nice and quiet, we have an election coming up, you half what's a time to settle in and read and get comfortable in your job and within a few weeks the house decided to impeach bill clinton and we got very busy very quickly and had to do a great deal of research on trials. we had not had a presidential impeachment since 1868 and the senate leaders at that time, trent lott and tom daschle wanted to follow historical precedent as much as they could sunday night at the eastern and pacific on c stands q and a. >> the supreme court this week ruled in favor of a black georgia death row inmate, finding the prosecutors unlawfully excluded potential jurors were black from the man's trial nearly 30 years ago. the ruling was 721, justice
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clarence thomas was the sole dissenter. the oral argument from the case now, this is about an hour. >> you will hear arguments first this morning in case 1483 49 foster versus chapman . mister wright. >> mister chief justice, it may have please the court, the prosecutors in the state came to court on the morning of jury selection determined to strike all the black respected jurors mister bright, maybe you could address first the question we raise on friday with respect to which court should be directed to? >> yes your honor. we filed this position originally to the supreme court of georgia and of course, this court in sears versus upton had issued tertiary in 2010. to thesupreme court . in a similar situation.
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it appears to us from looking at this over the weekend that r.j. reynolds tobacco co. versus durham county which the court decided in 1986, the court said unless there was positive assurance that the decision was not a ruling on the merits then the rick went to the state supreme court. and the georgia court while it has ruled in statute and his own opinions that are not totally in harmony with one another, the rule nonetheless is that the certificate of probable cause was denied in this case is to be granted if there is arguable merit to the case. >> you think that affects the scope of our review question mark in other words, are we addressing whether there's arguable merit to the claim or are we addressing the claim on its own merits? >> i think what this court has done in all these cases is applied yields versus a
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mac or look through to the last recent decision and that would be the decision of the habeas corpus court in georgia. typically, the habeas corpus court ruled an application is made for certificate of probable cause to the georgia supreme court and that is often denied. i merrily it is denied as it was in this case. >> i really don't understand that. you say we would be reversing the georgia supreme court, not the habeas corpus, right? and all of the georgia supreme court held is that there was no arguable basis for its accepting review. so if we reverse that decision, we tell the georgia supreme court you are wrong, there is an arguable basis for your accepting review so we ought to remand to that court, requiring them to accept review, it would seem to me. >> how can you reverse them on an issue they never considered? >> well, that's what evan and
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r.j. reynolds. there you had an identical situation where you had an intermediate appellate court that had ruled and then the north carolina supreme court denied review and the question was do you issue the writ to the intermediate appellate court or to the north carolina supreme court? this court decided in justice blackmun writing for the court said we want to give practitioners, we want to end the confusion about this and so it goes to the soup state supreme court. there's no difference in our situation here and the situation that r.j. reynolds. >> what you're saying in that case or in other cases and if so, which other cases ? that in that situation we nonetheless address the reasoning of the intermediate court? is that what you're saying peace. >> you did in sears versus upton, a case out of georgia, us court 945 in 2010. thatwas the supreme court of georgia but came up in exactly the same posture in our case . >> is there an argument that
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the petition for tertiary court to go to the trial court? i now are statute says it goes to the highest court in which review could have been had i think is the statute there which sounds like the georgia supreme court. on the other hand, as justice elliott said they direct their attention to the issue of the floor. >> i'm not sure, to me as an option to go to the georgia trial court or is that incorrect? >> what this court has said both in the r.j. reynolds case and that was followed in brady versus north carolina yesterday year, 2000 theme since this year in which once again there was an intermediate court decision denied by the north carolina supreme court. i can remember all the way back to 1960 there was thompson versus louisville where is this boy was to the court in louisville kentucky
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because no court in kentucky could take the case because the fine was less than $20 but i think these cases much more recent, decided by the court in 1986 and this year. >> sitting together, two rules you say we've established. one is does blackmun seek to end the confusion for the issue to be addressed to the supreme court and then you said we have cases, both cases. if the supreme court has said justice denied, nothing more than denied, we lift that to the last reason decision so these are both decisions of this court and that's what you're relying on. >> well, they are not mutually exclusive. this court can look back through to the last recent decision in making its decision in this case and i believe that's what it should do. but at the same time, the courts opinions appear to us on the quick research we did
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over the weekend on this that r.j. reynolds and the subsequent case say that roy was issued to the supreme court and we listened that way and then when the case was docketed that it was listed at the lower court was the superior court at the time. >> what is the supreme supreme court road and in a short opinion said we are not going to determine whether there was in fact, the only issue we are going to determine is whether there's any arguable merit to this. then you say the whole issue of whether it was a correct application is the issue that we have to decide. >> i think in r.j. reynolds, i think that's the court law, yes. >> could i ask you a question about another preliminary issue before we get to the underlying question in the case. the superior court said on page 175 of the joint appendix that the issue of
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the batson violation was not reviewable based on the doctrine of res judicata and it later said and this is 192 of the joint appendix, that it will review the batson claim as to whether the petitioner has shown any change in the facts sufficient to overcome the res judicata so far. if you put those two together, you could argue that the superior court decided only a question of state law, namely whether the situation here was such that there could be review of the batson claim. what is your response to that? >> the state doesn't argue that and i think the reason for that is because the court said we are ... the court is going to address step three of batson claim in the batson claim is without merit. >> is a question of federal or state law as to whether or
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not the petitioner has shown a change, in fact sufficient to overcome the race the connemara on page 192, language that justice alito coated. is that the state law question. >> that's the state law question and here court decided it but. >> the state law question the resulting issue, what do you have to argue? i'd say it's a federal question. >> in order to decided , it's exactly like state versus oklahoma where the court, the oklahoma court had to decide the federal question in order to decide whether that jurisdiction over the issue. and this court held in eight that where the court has to decide the federal issue and it did in this case, it clearly decided the federal issue and found that the batson claim have no merit so it is decided, the federal issue andthere's no contest about that . >> explained to me why deciding the federal issue was essential to its deciding the state received a cottage issue.
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>> because it claimed the question as being that it would look at the batson versus kentucky claim and that if there was merit to that claim then the court would grant the read on it. on the other hand and found there was not merit on it then. >> you think it was same whether there's a judy, or not depends on whether the new claim has any merit? >> that's a very strange application it seems to me was whether they were changed fax sufficient enough. >> the judge was that you can bring an issue that's been due to gated before direct appeal in haiti us if it would produce a different result. >> right, if the facts are such that it would produce a different result. >> does the court, in your
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judgment due to review, isn't it true that it basically was going to do that three of the batson charles. >> that's what thecourt said, yes. >> then a ruling on the merits. >> the court said the batson claim is without merit. that seems like a ruling on the merits to me . >> i think it said ... >> after considering these facts, yes. after considering these facts the court said that the claim was without merit. >> the court said that it would reach on the basis of new evidence presented so they did it all over and i guess we must take that as what happened. it did not apply res judicata. >> and habeas corpus court
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said that the resolution of the state procedural law questiondepends on a federal constitutional ruling , the state law is not independent of the federal claim and this court has jurisdiction, that's on. >> i don't want to belabor the point too much but are you belaboring that georgia res judicata law is this. someone comes up with any new fact, the thinnest new fact, that is sufficient to write up the race judicata bar and allow the court to get to the merit of the claim. is that your argument? that's your understanding of georgia race judicata law? >> my understanding that would be sufficient enough that the court doeswhat it did in this case and rule on the merits of the issue and that's what happened here. this was not a matter of adding one more leaf to the basket . >> why is that in conjunction with the will.
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to judge three and scalia's question, why is that federal law? >> the court decided that issue to decide the underlying state law issue. and i think eight is pretty clear on this and i mentioned to the courts, since the state didn't raise this even in theiropposition or in the brief , it's not brief before this court but i think that's the deciding case on this. >> thanks console, i think we have your argument on the point. >> thank you very much. if i could just say what happened here was that the prosecutors had identified the african-americans by race , they had waited them against each other in case it came down to having to select a black juror. >> the prosecutor said the reason of concentrating on the black jurors that you had informed them you would present the batson challenge and therefore it was necessary for them to see if
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there was a race neutral grounds for disqualifying. >> to answers that justice ginsburg. what the lawyers did here, visual arts at practice here for a long time. they said the prosecutor always strikes all black from the jury. we think they're going to start all black from the jury in our case but the supreme court of the united states decided that versus kentucky and eight we asked the court not let that happen in this case. of course the prosecutor is going to avoid the batson challenge and not discriminate, that would have been the first thing but secondly, with regard to the information that's collected here, it doesn't seem like it's information just to exercise strikes when they say if it comes down to having to take an african-american or in another place miss there might be okay and the district attorney himself said, maryland balance as the
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most potential of the black prospective jurors. in other words, the blacks were taken out of the picture here. they were taken and dealt with separately and over the weekend, the jury submitted questioning that ended on a friday and the judge said over the weekend you got your chance to decide who you're going to strike and they know exactly who they were going to strike because the jurors are listedin order , the state goes first and if it accepted juror then that statement is on, there's no going back. there's no striking people here and there. they develop three strike lists and one of those cyclists was a list that had a definite no. these people are absolutely not going to be on this journey. there are only six jurors listed on the list of definite nose and the first five are african-american. the six is a juror who made clear during the process that she did not impose the death penalty under any circumstances, the state
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moved to stryker for cause. the judge erred in not granting that strike but even she writes behind the black jurors in terms of the priorities that the prosecution had for striking. >> at the time, mister lanier said they were striking the jurors because of race, they were striking them because theywere women . and i guess three out of the four african-americans were who were struck were women. how does that explanation, how that kind of falling out of the case. how had affecting now ... >> he did accept women though as well. bear with me just a moment. >> the gev that beth applied to women but the court did
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say in jad could be used as a pretext, women for striking on the basis of race. in this case, the prosecutor struck three white jurors and then you struck the three black jurors, the three black women and the three white women. >> mister bright, mister lanier entered yes when he asked during the trial when he was asked whether he had done, oh no. it was on the motion for a new trial hearing whether he had done the same extensive background checks on all the jurors, white and black. did you find any evidence of that extensivebackground ? >> what that's talking about and the investigator said this in his deposition, was the race coded color list, those first four lists you have in the joint appendix in
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which blacks are marked with a b and highlighted in green with a marker up at the cornersaying green designates black . >> your understanding of this statement is that he had only done an extensive search on the blacks on thelist . >> it's clear mister lundy had prepared a list, notes in which he talked about just the black jurors in the case and i think the state concedes in its brief that the focus was on the black jurors. >> during the trial, the defense counsel when he made his initial batson challenge, not in the papers but at trial, did he againsay this was part and parcel of the prosecutors pattern ?
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>> he didn't say that but i point this interesting thing out. when they discussed the batson motion before trial, there was never a suggestion that there wouldn't be a batson hearing. everybody knew what was going to happen, that all the blacks would be struck and they have a hearing after that happened but the defense had basically put their motion in writing and relied on that throughout the jurisdiction. >> i wassurprised that we didn't hear about this preparation for batson hearing until the hades . >> the defense didn't move for the prosecution notes and the prosecution opposed that. there were very strict in not giving up their notes. then when the prosecutor testified on the motion for a new trial, they did something i've never seen a lawyer do. he cut a bargain with the judge and the lawyers saying i will testify but only if i don't have to show them my notes. basically rules through evidence argued testifying on notes, the others sites in the notes but here these notes were guarded until 2006 when we obtained them through a freedom of information or what they call open records act in georgia. >> the prosecutors, they said
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we never voted to authorize or lied relied on those notes and you didn't call the prosecutors to test. >> all the prosecutor talked about was the color of highlighted notes. each prosecutor filed an affidavit which is in the joint appendix at 168 and all they said was, we didn't highlighted in green and didn't tell anybody else to highlighted in green and mister lanier says, i don't have anything else to say beyond what i said at the batson hearing in the motion to trial. mister poland the only other thing he says, i didn't use those green highlighted lists in choosing the jury but of course that's just the first few pages. what's damning about this is not so much that but the noblest, the risk
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representation to the trial that miscarriage, they wanted miscarriage. that's what they told trial court and the trial court relied on that in denying the batson motion at this show their openness. ms. garrett was on the definite no list. she was on each of the strike lists. miscarriage was never in the running to be on this jury but they represented to the court that because another african-american, shirley powell was excused, there were five african-americans in the near when they get ready strike the jury but one said, turned out i know somebody in the family. she was excused for cause and the prosecutor said, implied clearly that had not been for that, that extra strike that they would sentence. at the same time, and they are still arguing this both ways that they wanted her and didn't want her, they give 11 reasons for why ms. garrett would not be a good juror, that c is impotent and doesn't respect the court.
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can you believe all the said they set about her, they would never want her as a juror but those things i would submit are not really valid in terms of the reasons because the reasons they gave here, many were demonstrably false and not supported by the evidence including reasons they gave about miscarriage. they were inconsistent, some were completely incredible and they applied to white jurors, some of these reasons apply to white jurors who had the same characteristics as african-americans who were struck and lastly and what's so important under miller out, they didn't question the jurors about the reasons for striking them. they gave reasons for striking men and one question would have cleared up some of the. metal rally says the failure to engage in any meaningful large ear about whatever your reason is his evidence suggesting that exclamation is a sham and a pretense. >> mister bright, i have
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found some circuit courts who have a rule appeal or a hideous which is, if they can find one legitimate reason for striking a juror, that's enough to defeat a batson challenge. can you believe that an appropriate rule? are you suggesting a different approach to the question? >> i would suggest it can't possibly be. because this court said and this is alito's opinion, snyderversus louisiana where the country's strength was shown to be motivated in part by race , that it could not be sustained. excuse me. i would suggest to you it shouldn't even release a substantial because if this court as it said so many times has engaged in unceasing efforts to end race discrimination in the criminal court, then the
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strike is motivated by race cannot be tolerable. and of course it's pointed out here in the mickey, this is a serious problem, not just in this case but other cases where people come to court with their canned reasons and read them off, that happened in this case where one of the reasons that was given was taken verbatim out of a report or two were taken verbatim out of a reported case so you don't have a reason lawyer in this case, he said my personal preference, it wasn't his personal preference. it was the preferences of us attorney in mississippi gave that reason and it was upheld on appeal by the fifth circuit but we would suggest that the standard is at least what snyder says because when you have, you can always have as has been well recognized. >> in response to justice sotomayer question, is the
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prosecutor by using a laundry list of reasons for striking the black juror and some of those are reasonable and some areemployable , how should the court approach the batson analysis? >> i think the court would say which reasons are contextual.the fact that there is a laundry list suggest in and of itself that the court should scrutinize the reasons carefully, should be suspect of the reasons because otherwise what the court is going to do is simply encourage prosecutors or any party in a case as button applies everyone is going to encourage the party to just give as many reasons as possible and hope that one will be acceptable and in this case. >> i don't think this is a case-by-case thing. supposedly there's one reason that the killer reason. this individual had numerous prior felony convictions all right? and then the prosecutor says in addition and this person didn't, you look down at the floor and in answering the questions and didn't seem to pause and didn't seem to understand some of the questions so under
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circumstances like that, couldn't the court say well, there's one reason here that is clearly a justification for a presumptive strike, we don't have to determine whether there's evidence that the person was looking down at the floor batson says in the civil cases you look at all relevant circumstances, it may be if all the circumstances that are there are the ones you said and you would come to the conclusion that of those two reasons there was a valid reason but i would suggest that where you have indicia like we have here, we have an arsenal of smokingguns in this case . >> one of those guns were in the original decision by the georgia courts. it seems to me what you would have to establish to reverse the georgia courts is that the new smoking gun, assuming that all the rest were not enough to demonstrate a batson violation, the new smoking guns would tip the
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scale, isn't that the issue? >> when the new smoking gun tells you the prosecutor misrepresented facts and gave reasons that were absolutely false, demonstrably false reasons and those are not clear before but you have that now, i mean batson turns on thefeasibility, turned on the credibility . >> all i'm saying and you seem to be agreeing is that it is not the overall batson judgment that's before us but rather the judgment that the new evidence did not suffice to create a batson violation where none existed before. >> the supposition is when you look at the new evidence with all the evidence at trial that all relevant circumstances considered together considering that a lot of these reasons we now know from the notes that there were misrepresentations with regard to these reasons. when the georgia supreme court as an example upheld the strike in the spirit onto
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basis is that she was a social worker and that her cousin had been arrested for drugs, she was not a social worker and secondly, the prosecutor didn't find out until after trial about her cousin's arrest so it couldn't have possiblybeen a reason for the strike . >> are you saying in essence to justice scalia that when you had your notes , those notes passed out on some of the prosecutor's justifications in the first round. >> they do that and they show misrepresentations to the court and they show an overarching goal of separating out the african-american citizens treating them differently and putting them on this list of definite nose. >> just to make sure i understand, all the notes in the prosecutor's files were new, is that right? >> new to this case, yes. there were three people, two prosecutors and the investigator who put those together. i preserve the balance ofmy
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time. >> thank you counsel . >> miss burton? >> mister chief justice, may please the court i will weigh two important factors in this case when reviewing the entirety of the evidence. one bears the burden of establishing clear ... >> i will ask you as well to address the tertiary questions first respectfully i disagree with the petitioner's counsel on this issue. i believe more hope western railway versus guiles which is this court's opinion indicates or states backs that if there is an issue raised in the lower court and is raised in the state's highest court, in this case the georgia supreme court denies discretionary review then it is before this court on tertiary from the lower court. >> the problem is i don't
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think this is discretionary review, the 11th circuit found is not under georgia law. it seems pretty grounded in the state of wall georgia. >> yes your honor and that is the supreme hot button issue right now in the state federal court in georgia but our position in those cases and i think there's a case before the scar on rehearing that same issue is that georgia statute, georgia statute specifically says that is in discretionary appeal. the 1975 habeas corpus act made it a discretionary appeal i think because the georgia supreme court was getting inundated with appeal after appeal. >> at the georgia supreme court ever said anything one way or another as to whether it's discretionary or not? >> into other cases, read versus hopper which is due 19 southern second 409 and smith versus nickel which is 270 southeastern second 15 1999 a state as as discretionary but
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they have not answered a certified question on that issue. >> could you give me the read versus. >> 219 southeastern second, 409. that's it 1975 case. >> are certified questions available in georgia? could recertify a question to the georgia supreme court? >> i believe you can your honor . >> i looked at the statute, the statute says in a hideous case, state hideous that the georgia supreme court must review it. it says it must review it unless it's without merit. i forget the exact words i was looking for. >> well, in state hideous i think it's 19, 1452 the statute is state hideous cases other appellate review and makes that discretionary, the georgia supreme court i've been looking in the wrong place.
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i heard you say, he quoted some words. i only heard the exact words that they wereexactly what i read and it was from the statute in georgia . it's that stored in just statute says, i just can't find it in my book, sorry. the georgia statute said they shall review the case unless it's without, it's totally without merit, something like that. does that ring a bell? >> it does ring a bell. >>on are the exact words ? >> i don't know the exact words ... >> the exact words are the certificate of probable cause will be issued whenthere is arguable merit . >> but i believe that's rule 36of the georgia supreme court . >> i take it up 19, 1452 are in compliance with that? >> i believe the statute. >> does the chief justice just read from the georgia law governing this case, the answer is yes, sir no? no, i believe ...
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>> it does not govern this case. what in your opinion is the georgia statute that says in his own words you just held you not govern this case. >> i believe it's certainly open to question. 19, 1452 states that state hideous is taken out of other appeals which are normally direct appeals or personal appeals and they are discretionary . >> i suppose that a court could have discretionary review but could provide by rule that in the exercise of our discretion we will grant any of these unless it's paid wrong. maybe that's what happened here . and if you use your discretion to enact a rule which says you will take cases of a certain court,
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does the taking of those cases still remain discretionary? it's a nice question, isn't it? >> i think the taking of the case does remain discretionary if they find it has arguable merit or it is discretionary in the two cases pacifically reston reference. >> you just decided you will uniformly exercise your discretion in a certain way . maybe i'm misunderstanding what you're saying, you're saying there is no such uniform determination, that they will exercise their discretion in a certain way, they are insisting upon their discretion being discretionary, is that correct? >> that is my understanding because this law applies to not just obviously testimony cases but the turpitude of non- cases. >> i'm so confused i can't even. >> the state hideous processes different than the regular appeal process. >> that's correct. >> on a regular appeal process theylook at each case
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with discretion . >> on a direct appeal process it certainly counts, it is mandatory review. >> okay. in-state haiti as they have a rule and internal rule that says we will take every hideous case unless it has no arguable merit, right? >> if i may rephrase. i think the rule says that they will take a case if it has arguable merit. generally they will not. >> in the positive. >> so what would lend us to believe that they didn't look at the merits and say there was no arguable merit, that they just said we are too busy, we don't care if there's arguable merit. do you believe they did that? >> i would never say. [overlapping conversation] i would never say that would be
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the reason but i think they would say we've looked at this case because they do have the records before them and we don't see arguable merit to take this case up so that is a decision on the merits. there's no arguable merit . >> i think there is no arguable merit to the application that there has been error below. if that makes it any clearer. >> now it's clear. >> and in your view, the court should have been granted the georgia supreme court. >> i believe it should have been granted to the state hideous court because of that discretionary review and because i believe the court has said in michigan versus lowell that it's unclear, it comes from the state habeas corpus. >> i have one more quick question about this? you made reference ... this is an issue that's being litigated in the georgia courts, is that right in the 11th circuit? this precise issue. >> this issue. >> thank you. >> what issue was that? is it the issue of which court this should be directed
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to the issue of what, what is the issue ? >> mr right that the issues being limited litigated is whether the supreme court revealed in cases like this as discretionary or not. >> that is correct and in this case is obviously is coming from federal court so we are dealing with harrington versus richter in sort of a different scope of things in that regard. >> this question is in both the georgia supreme court and in the 11th circuit? >> it is currently in the 11th circuit, i don't believe we have a case pending now in the georgia supreme court on that issue. but i do believe there is an issue up here in the case jones versus chatman where they've asked for a rehearing. >> you think this would be an appropriate case for us to exercise our discretion to certify the question to the supreme court? >> we would certainly like an answer from the georgia supreme court on that issue.
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i think the 11th circuit would like that as well. itwould clear up both state and federal law or a number of things . >> then the statute that permits the georgia supreme court to accept certified questions, do you know anything about the history of requests for certification? some states have such a process but this case in the supreme court rejects the question. >> i do not your honor. >> what if we hold in skate this case that is not discretionary review and then in these cases pending the georgia supreme court says it is discretionary area who wins? is it ultimately a question for us or for the georgia supreme court? >> it is ultimately a question for the georgia supreme court as to what the state law is. >> life. >>. >> me too. can i go to the merits, is that all right? okay. unless other people? okay.
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look, you have a lot of new information here from these files. it suggests that what the prosecutors were doing was looking at the african-american prospective jurors and a group, they had basically said we don't want any of these people, here's one we want , that they really have to take one but that all the evidence suggests a kind of singling out which is the very antithesis of the bats and so you know, isn't this, i'm just going to ask you, isn't this is clear about the violation as the court is ever going to see? i don't think it is and i think because of these notes they have, they don't undermine any of the findings that we were getting by the prosecutor in his strife, particularly mister hood and miscarriage . he certainly can be interpreted in two ways and our response brief to this
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court, we don't know when we say this is why those highlights are there. there's a reasonable explanation just as mister foster has given speculation in his argument. we don't know. >> what's the reasonable explanation? >> four months prior to trial as was previously argued, batson had come out, batson is new. for once prior to trial, the defense counsel files a motion and says the strike of any black juror, we are filing a batson challenge. two weeks prior to trial he files a motion and says there's racial disparity in 179 jurors and that's the list as challenged, 179. there's racial disparity of jurors on that list so they trial he refiled that so i would be more surprised quite frankly if there wasn't a sort of highlighting. >> in other words, the argument you are making is that the reason he highlighted all those black jurors in green and said what
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about the black jurors and all these different things was because he was preparing defense in case of the batson challenge. >> correct. >> if that's correct, was this argument made before your main reason this case? it's several years. >> he was not. if that had been his real reason, isn't it a little surprising that he never fought it? or didn't tell anybody? until you raise his argument in your main brief? >> i would say that's on state hideouscounsel . we relied on our race judicata call throughout state hideous and after that, we were fighting the state hideous. >> seems we have to ordinance. one is this argued that he never thought to tell you and until quite recently and the other after years and so it's
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hard to believe that's his real reason and then there's the second argument, that he had about 40 different reasons and at least some of them could be valid. okay. if my grandson tells me i don't want to do my homework tonight at seven because i'm just so tired and besides, i promised my friend i play basketball and besides that, there's a great program on television and besides that, my stomach is upset but i want to eat spaghetti so he's now giving me five different reasons. what do i think of those reasons? >> in this case and again i think. >> on may be valid. >> correct. well, they only be valid but they only not be as strong as the first one but in this case, i think the important parts ... >> the point is he gave 40 different reasons and the very fact that he gives 40 different reasons and many of them are self-contradictory, not applicable, totally different from, that's why i use my grandchild analogy all right?i would say my answer
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to my grandchild's look, you're not too tired to do your homework and i think any reasonable person looking at this would say no, his reason was a purpose to discriminate on the basis of race. tell me why i'm wrong.>> i think because you have to look at the time. this was done. this was done not a year after batson came out and even throughout the transfer people, the defense counsel and prosecutors, they want to know where batson going so in this case the prosecutor dealing with batson for the first time, the first time in history anybody had to put stripes on the record book. >> he's simply wrong. he puts down that if it comes down to one of the black jurors, what it was mister jarrett might beokay question mark . >> that's the investigator. >> that seems to me to undercut the argument well, they are just scheming away and so forth. they made a mistake in batson , sure it was new but they are wrong.
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>> first let me say i think that's why there was a laundry list because he was espousing every reason he had but with regard on these notes, that was the investigator who says if we have to choose a blackjuror, she may be the best one . >> wasn't on the definite no list? >> the only person that was asked about that was mister lundy who was deposed that he could not identify who wrote that list x we know in the case from the das office. [overlapping conversation] the state says it's a definite no. >> i don't think that was a ranking of jurors because they did for jurors throughout. >> they did find african-american jurors and one of them was ms. garrett, as was pointed out. they said if we have to have one let it be jarrett but
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then derek shows up on this definite no list. >> correct and what we told that the only three people who did the investigation on batson were the two prosecutors on the case and mister lundy? so as mister lundy says, i didn't make that list, it has to be one of the two prosecutors. >> one was that not there on the day it was dropped. only mister monier was but that's not mister linear thought process of this definite no list and i don't see that that gets you to clear error in the striking mister hood or miscarriage area. >> and it now denies a false statement, the reason that's given, one of the reasons of garrett being struck is that our cousin was arrested. and then the prosecutor doesn't know that at the time .
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he doesn't know until after the voir dire that the person was could that possibly be a reason at the time of the question? >> i don't think the record bears that out. the highlighted notes that the justice wants to say this were used during the strike, in those notes and this is joint appendix 256, angelas written out beside miscarriage name. in mister lundy's nose where he said he wrote down things he knew prior to the strike, prior to what he knew about individual jurors, hero down as to marilyn garrett, angela garrett is the cousin so mister linear. >> i'm sorry. shouldn't the hideous court except that he didn't know at the time of trial? he just knew that one he didn't want her. >> that hideous court actually credited the fact
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that mister lundy had advised trial counsel that angela garrett had been struck that was his explanation for why the prosecutor didn't know about the prior arrest, right? >> know, i think the state devious credit that is one of the facts to strike and mister monday is one of them. >> that mister lundy didn't want her, he never credited or never said that he knew about the arrest. >> mister linear testified twice that he was aware at the time of jury selection that he knew about mister lundy. >> but the prosecutor didn't. >> know, in the motion coming to trial mister monier the prosecutor testified and said i did walk dear, mister lundy told me that. that's the joint appendix 125 and 112. >> didn't he also testify
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that this is on 14 of the reply brief, it has come to our attention since the trial of this case that angela garrett was arrested. >> it says on that page of the, that part of the transcript which i cannot explain to you the in contrast to the notes, it is noted that she's the cousin prior to the jury selection unless that means and i've read it several times, since that time she's been dismissed from her job. it's unclear. >> without giving a reason for dismissing her that she was close in age to the defendant mark she was in her 30s, he was 18 or 19. >> when mister monier initially explained the strike he does state her age so he is not trying to say she is 23. he states or ages 34 and throughout the overall theme was we don't want younger jurors. we are looking for older jurors closer to the age of
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the victim, 879 so i think it's not the most articulate framing but ithink it's more of a generational , she was younger and the age, i don't think was a make or break factor. working at headstart with underprivileged children, on a corporate factor. a similar situation with a white your also struck for that purpose but mister burton, would you agree in a lot of these batson cases you will have purported justifications which they could support of ballot preemptive strike right? but to the question for court is did they support this out in preemptory strike mark in other words, what was the prosecutor thinking question batson as a rule about discrimination, about intent so it doesn't matter that there might have been a bunch of valid reasons out there. if it was clear that the prosecutor was thinking about race . you agree with that, right?
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>> i think if his intent was to strike based on race. >> yet, is his intent was to strike on race. it doesn't matter that he could have had a different intent that would have supported a good preemptory strike so the question is whether you know, someone or other might have been properly struck by a prosecutor is really the question. the question is on the total amount of evidence before us including all these prosecutors notes, what was going on with respect to each strike and then you have the deal that it could have been this or that but you have to deal with all this information about what it really was was, they wanted to get theblack people off the jury. >> and i don't think these children. what the notes show again with mister hood and miscarriage , they are contemporaneousnotes taking at the time of trial in each of the jurors or the reasons
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they struck them. there's no derogatory comments within those notes . >> there are other reasons plausible but could be phony . sure beats the joint that hears the testimony whose both able to judge whether assorted reasons or phony reasons are not. is that right? >> it's hard for us to do it on a cold record. it's harder,not impossible . >> justice scalia raises a good point in a lot of cases but not in the case where all the evidence of intentional discriminationwas not before the judge at the time . >> again, i don't think there's clear error here on these notes of racial discrimination. their strikes are sound. as mister good, you would not want mister good on the jury regardless of his race based on his reasons so he gives a laundry list like i said and that may well have been because we're in 1987and you're putting out everything
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you can because you're not sure what you are supposed to do . >> on we turned over to earlier.>> the notes were not turned over earlier although one brought up in the motion for new trial in november after the trial in 1987 and the prosecutor, mister linear says i will give my notes to the court if defense counsel will do the same. defense counsel chose not to do so. thatissue raised on appeal to the georgia supreme court direct appeal , the georgia court found it was didn't have to be turned over. when we got to state haiti as proceedings, they found an open records request under genre law and were immediately turned over and i don't think there was any argument at that point. >> what does this have to do with the failure to ask miss garrett any questions about the issues that troubled the trouble. for example, her cousins arrest. there's an assumption that she has a relationship with this cousin area i have cousins wino have been arrested and i have no idea
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where they are in jail. i don't know when. so he didn't ask any questions. doesn't that show pretext? i'm not going to inquire because she might get off the hook on that. >> i think a number of times and i know this court precedent on not asking questions is particularly in voir dire but as a number of issues, i think when you are in voir dire and asking questions you don't necessarily care what the answer is because with regard to mister hood, if he had said yes, i have a son that's been arrested it'snot going to bother me a bit at you prosecuted my son . >> stealing hubcaps in my mind is decidedly different than murdering people or attacking them in the way this case was about. i can't imagine, why can you imagine a father saying it was stealing hubcaps and he
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should have been punished? he may well have but it's a risk i don't think the record supports. >> 's arrest the prosecutor didn't have to take. if you have someone call mister hood could have said that and meant that, never have been lying but in my mind i'm thinking he's going to get back there and he's going to say oh, i don't know what i want to ask a different question and i'd like you to respond to the question that justice alito initially asked and that is is there an independent state ground here question mark you are familiar with the record and i read on page 192 of your record for the decision and the first paragraph supports your view that you would like to hold, i think that this is based upon race duty, which is a state matter and then there is the paragraph that was read to on page 195 and 196 where the judge says the reason that i reached that conclusion is
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because notes and records submitted by petitioner failed to demonstrate purposeful discrimination on the basis that the race was the basis okay? now fight back into me. then he goes on to say and addition, there's no good reason given now or then and then he concludes accordingly, the court finds the renewed batson claim is without merit so if i read that paragraph, i would think the reason the judge found in your favor is he decided the batson claim in your favor. he didn't have to. he could have been on some of the ground that that's a grounddid go on but at first , why is it ambiguous and if it is ambiguous, then why don't we take note? if it's ambiguous, then are we required to assume that the judge went on the federal grounds okay?
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that's both alito's question, it is thehardest point for you to overcome and i want to hear your response . >> i actually agree that it's unclear. >> that the end of it, isn't it? >> it is the end of it,i think it is unclear. but one other issue . >> what you think destroys your race judicata law. >> in georgia if you havenew facts or new evidence . >> race judicata goes out the window. >> then the court gets to look at the issue and go beyond and i think in this case , in this case what you have our new facts and new evidence the court in this case find that they can review the evidence a new and a new review is had been i think you are but not beyond thatbar. >> i don't understand what you just said . say it again. >>
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>> that there are merits determinations being made about, and the court is very clear. first sentence, last sentence. first sentence the court finds the prosecution did not violate batson v. kentucky. last sentence, on the merits the
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person, the petitioner loses. so -- >> as much as i would like, as much as i would like it to be an adequate state law ground, i'm not sure finish. >> what do you make of the statement on 175, as a preliminary matter this court notes as cited by the respondent the following claims are not reviewable based on the doctrine of race judicata, and the first one it lists is the bathroom claim. does that suggest the court had two reasons for what it did? >> no, but that -- >> well, i'd like -- [laughter] >> sorry. >> yes, i think, if anything, it is an alternate ruling. >> doesn't georgia have the rule -- georgia supreme court has said georgia law allows claims to be revisited on habeas when new facts have developed since the time of the direct appeal because a claim that is based on fact did not actually
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exist at the time of the direct repeal -- this case -- is essentially a different claim. that's what the georgia supreme court said. >> yes. >> back to essentially a different claim. >> yes, your honor. >> may be right or wrong as a matter of inclusion law, but that is the law in georgia. >> that is the law. >> thank you, counsel. mr. bright, you have two minutes remaining. >> thank you. very quickly, with regard to what justice alito quoted, that it's just come to our attention since the trial of the case that ms. gaer et's -- garrett's cousin was arrested, that was after the death verdict had been returned in this case. secondly, if you look at the joint appendix on page 56 and 57 where they give the reasons for striking miss garrett, there's no mention of her cousin whatsoever in there. that's the time she should have been mentioned, after the strikes were made, and yet there's no mention of that at all.
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so i don't think there's any way -- and then six months later there's a motion for new trial, and now the prosecution is adding new reasons that it didn't give at the batson hearing. it's saying she was a social worker. she wasn't a social worker. it's saying her cousin was arrested. they didn't know that at the time they instructed the jury. they said she's low income, taking another thing out of united states v. cartridge. the reasons are the reasons articulated in morrell, and the prosecutor's got to stand or fall on the reasons. with regard to the questions, i just want to make one quick point on that because there's not much time, but with regard to miss garrett and martha duncan who were both teachers' aides who were at schools that were literally right in the same neighborhood, ms. duncan had kindergarten students, ms. garrett was head start. no questions, what kind of children do you have, ms. duncan?
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they also said familiarity with the neighborhood. ms. garrett lives like, 18 or 20 miles away. ms. duncan lived -- her school was 250 yards away, and she lived a half mile from the school. both of them answered that they they weren't familiar with the area where the victim lived. now then, some more questions after those answers would have provided a difference. but instead ms. garrett is treated as a liar, and ms. duncan is accepted and actually serves as a juror in this case. and there are other examples with mr. hood particularly with regard to the child. if you had asked what about your child who's arrested, he was put on probation -- $180 of -- can i have just a second? -- $180 restitution. and he went off to, this is in the record, went off to the navy, served his country honorably, got an honorable discharge and came back. >> thank you, counsel. case is submitted.
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>> associate supreme court justice sonia sotomayor recently spoke at rutgers university in new jersey about her judicial career and her time on the high court. she talked about how much harder it is to be on the supreme court than on lower courts and why the nation's highest court needs diversity. justice sotomayor is introduced by the university's president. >> that's a long way in from that far side. i guess in this arena you should be running in with a basketball or something hike that. but i do want to welcome you all here. i must say that the line coming in here was remarkable. orderly, smiling, longer than anything that i've seen at rutgers that did not involve free food. [laughter] so i'm glad you're all able to get in. i must say i've never seen those seats in the backfilled either. back filled either. yeah, good. [cheers and applause] [laughter]
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as they say, good on you guys, right? just don't fall, right? i can just see the tunnel effect could be brutal coming down here. but i do want to welcome you here. you know this is rutgers' 250th anniversary, and we're delighted to be able to celebrate that. [applause] but it is also the 60th anniversary of the eagleton institute for politics -- policy. [applause] so it's nice to have a 60th and a 250th on the same year. this event is a discussion on civic engagement that's part of a series that is done in honor of lou gamocini. is lou here, i think he is, isn't he? no, wasn't able to make it away. he was a senior fellow and commissioner of transportation under brendan burn and was
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responsible for setting up the new jersey transit system. so he sets an example for this, and what we're doing today is trying to continue that tradition of civic engagement. we also have several governors with us today, governor floar owe and governor mckiev i have, chief justice of the supreme court, i think, is here and a number of our senators and assembly persons. so thank you all for joining us today, and i hope that you'll have a good time with us. [applause] but my job today really is to introduce our guest, and it really, it's an honor for me to do this, to welcome our guest here to rutgers. she is, as you know, supreme court justice sonia sotomayor. and it took a venue like the rack to hold the crowd. we had this event scheduled for another space that only held 750 people. so i'm a little embarrassed that we don't have the columns and
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the white marble here. but considering the number of people who have an opportunity to see and hear what she has to say, i think we couldn't be in a better place than the rack. she's the ideal speaker for a discussion like this for civic engagement because that's what she's done her entire life. she's also a perfect speaker for our students here at rutgers. and i'll just take a moment to tell you a little bit about her. she was born in the bronx to parents who came from puerto rico -- [cheers and applause] all right. [laughter] she lost her dad as a grammar school student, but her mom worked six days a week to provide for her and her brother. and she was the first in her family to attend college. and i have to point out that of the 8,000 new students who joined rutgers last year, a full quarter of them, 2500, were the
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first in their family to attend college. [applause] so this concept -- as near as i can tell, that was perhaps the only questionable decision in her otherwise stellar career. she did make the choice to go south for her college experience to princeton. but we won't hold that against her, i assure you. she graduated summa cum laude from that institution down the road there and then went to law school at yale where she was the editor of the law journal at yale, began her career as an assistant d.a. in new york, was an associate and then a partner at pavi and harcourt where she litigated international commercial matters. her judicial experience began with her nomination by president george h.w. bush to the u.s. district court southern division
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in new york in 1992. in 1998 president bill clinton promoted her to the u.s. court of appeals for the second circuit. and then, as most of you know, when president barack obama was elected and sworn into office, his first nomination to the supreme court was our speaker today, and she took her office in may of 2009. and when president obama nominated justice sotomayor, he said this, and i'm going to quote: her career has given her not only a sweeping overview of the american judicial system, but a practical understanding of how the law works in the everyday lives of the american people. and i think that really says it all. she took her seat as associate justice in august of 2009, the first hispanic and the third woman on the supreme court. now, that -- [applause]
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that doesn't do justice to her bio, but she has a book called "my beloved world" that i'm going to put on the mandatory reading list. and i think it was reading that book that motivated ruth mandel to dream of bringing her here to share her story with us. i think for ruth and some of her students, this is a dream come true, to have that intimate conversation in this intimate setting with this intimate, small crowd. [laughter] i'd like you to join me now in welcoming professor ruth mandel and our honored guest, associate justice sonia sotomayor. [applause]
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[inaudible conversations] [applause] [cheers and applause] >> wow. [laughter] i was asked earlier today by a student if i still got nervous. i invite that student to come and look at this crowd. [laughter] and answer the question for me, okay? [laughter] thank you for coming, all of you. [applause] >> i don't think i have to do this in production. this introduction. very, very warm welcome.
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>> thank you. >> already getting a sense of how much we appreciate your coming here. it is such an honor -- [inaudible conversations] is this not on? [inaudible conversations] [laughter] >> they told me it would be on. >> hello. [cheers and applause] experience makes perfect. [laughter] >> you hear me now? [inaudible] how about this? >> better. >> thank you, thank you. i was saying, a warm welcome. we are full of joy and
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appreciation that you have said yes to come to rutgers university to help us celebrate some important anniversaries, the 250 anniversary of the university and the 60th of the eagleton institute of politics. what a pleasure. [applause] president barchi mentioned the background of today's event. speaking personally, i will underscore that this is what you dream about when you write a fan letter. [laughter] that -- or more than you dream about. that fan letter from me was on behalf of the remarkable student body. wewe are privileged to teach at rutgers, educating students about civic engagement and the importance of political participation, about taking responsibility for our representative democracy is at the heart of the eagleton institute of politics' mission
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and at the core of today's potential event. the response to this event has been tremendous, to say the least and, therefore, our move to this rather large venue, somewhat larger than eagleton normally invites guests to visit with us. that has made a casual question-and-answer session impossible. instead, students from the three rutgers' campuses in new brunswick, camden and newark have submitted questions in advance, and some of them have been invited to join us on the court. but before we hear from the students, i have the privilege of asking several questions, and i'm going to begin with the fan letter was written about the book that i read a couple of years ago, and -- which had such a tremendous impact on me as so inspiring. and i would like you to talk a
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little bit about the title for that book. it is called "my beloved world." would you tell us how you came to that title and what it means? >> as those of you who have read my book know, it comes from a poem by a puerto rican author, one who had been displaced from puerto rico for a period of time. and he was talking about the memories that he had of his puerto rico. and my editor called me up because we had been going back and forth on potential titles for about three years, in the process of writing my book. and he said, sonya, have you ever realize jose gaultier beany tez in college, did you read this poem? and i said, sure. he said, go back to it. it's a much longer poem than the excerpt i have in the book, but
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i finished the poem, and i said the title is "my beloved world." and he said, that's what i thought too. [laughter] and when i thought about it, i actually had some people who didn't like the title. they wanted something like "mommy dearest," you know? [laughter] the life and struggles of. and i realized that when i wrote the book, i had in me the object it and impartiality that is a part of my profession. it's a craft in my profession. you're taught to look at things as objectively as you humanly can. and so as i wrote about my book, i hope you're all aware that i was painfully objective in terms of talking about both the challenges of my life and the good times of my life.
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because for many of us, don't those go hand in hand? they're really the flip of the same coin. and what i wanted to do was to let people understand that i knew that both the positive and negative experiences of my life had crafted me. they made me. and they made all of the good that's in me. and my mother would say all of the bad too. [laughter] but who i am an amalgam of those experiences. and for me, each one was necessary to creating who i am. and so when i finished the book, i realized that i loved my life. when you're in the kind of position i've been thrown into, people always ask you what you
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would redo. and i tell people, not a thing. first of all, it would be disingenuous. how many people get to the supreme court, okay? [laughter] but even though i wouldn't necessarily want to change that, there are parts of it that i wish i could have done without. but i really do appreciate that with it, it made me a better person. and so, hence, the title, "my beloved world." 9. >> this will relate a little bit to what you're saying. you've written, as everyone knows who's realize the book and followed your career, from very humble beginnings to one of the nation's most prestigious and visible positions. what have you held on to from your earliest days? >> my gosh, read my book. everything. [laughter] just about everything. you know, i tell people that i'm the proudest american that you can ever imagine. when i'm asked what i am and who
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i am, i tell them i'm an american from new york city. but when i talk to people, i also tell them i have a puerto rican heart, because my culture -- [applause] is deeply ingrained in me. [applause] who i am is all of experiences i have had but also the values that i was taught. and it's unfair to attribute it just to being puerto rican. i think every culture instills common values. all of us have love of family, love of community, love of country. but there is something in the music that i heard, in the poetry that i read, in the food i ate, in the dances that my family had that stays in the very core of you. and that core is so vibrant and
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so important to me that it, i don't think it will extinguish the day i do, how's that? and i bring it with me to just about everything i do. [applause] by the way, i don't think you know, i don't -- i'll tell a story. >> yeah. >> i think it might interest the audience. the day the president called me to tell me that he had selected me to be his nominee to the court, he asked me to make two promises, and one of the two was to stay tied to my community. and my response to him was, mr. president, i don't know how to do anything else but. and i think that that response not only was genuine, it was who i am. and i don't know that he understood, however, that my
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community was just not my family or even my puerto rican culture, it is much wider than that. it's a world that i care very deeply about. it's a country that i'm very devoted to. it's issues that are critically important to me, education being at the foremost. [applause] so all of that is my sense of community. >> going back a bit to the family, but how the relationship has evolved from the book it's apparent and from what you're saying, of course, that family is such a key theme and priority in your life. being a supreme court justice is so high profile, and being in the presence of a justice can be intimidating, although you make it easy, i must say. >> thank you. >> has being on the court affected how people close to you, including those people in
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the family, treat you? the same especially in such a politically-charged climate as we're all living in, does that affect your family and your relationships with your family? >> well, the day i got the call from my brother telling me he was in a gym in california s and guess what? the president walked in, and he went up to a secret service agent and said, you know, i'm justice sotomayor's brother. and he got through secret service to shake the president's hand -- [laughter] he called me and said, okay, this is worth something, okay? [laughter] [applause] you know, you have good and bad things. like the person who bears my last name whose wallet was stolen and told the police she was my cousin. i have no idea who this person was. [laughter] and there are moments it affects
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family in and very dear friends. i earlier told stories of moments with friends where we've really had to talk through the relationship and the situation. moremore the situation. you know, people torture my family and friends to get to me. so i'll say yes to doing something. and at the beginning, it was very hard on many of my friends because they felt some loyalty to whoever was asking them to do the thing, and at the same time they understood that my life had gottennen very complicated. gotten very complicated. but i've found, just as i describe in the book, that really talking it out makes a huge, huge difference. and each of us has -- and them -- have found a protocol for dealing with it that takes the pressure away from them and from me. and so, yes, that does affect you. i earlier told the students who
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were at lunch that the first christmas that i went to our family christmas party -- we do it around new year's, because everybody has nuclear families elsewhere. my own is with my brother in syracuse, so i come back down to the city for new year's, and we have an outing at my cousin miriam's home. you'll know who miriam is, she's mimi in the book, okay? and i walked in, and i sat down at the couch, and there was silence. [laughter] deafening silence. in a puerto rican party? [laughter] nobody shuts up. [laughter] and all you hear is people above each other and screams from the other room and laughter and lots of it. and i looked around and i said, what's wrong with you guys? i'm still sonya.
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and the room burst out in laughter. and everybody started talking each other, and we started going through and catching up. but, sure, it changes the relationships. it has to. so there are events i miss because i can't leave the court, events that the family knows i would have been including my 90-year-old aunt's birthday. that's something i would have never missed except they decided to have it on a day i was away. my point is that, sure, it changes it, but we work hard at keeping it the same as much as we can. but it's a work in progress. one of this happens on its own -- none of this happens on its own. and it's them working with me. and so if the event is really critical to them, they've learned to call early so we can get it on my schedule. and they've even accommodated
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funerals so i can come in from washington and put it off a day so i could travel. so it's a sort of give and take that we're doing to maintain the relationship as close to the same as possible. >> as close as possible. >> as close as possible. >> in the memoir you touch on the role of politics in the judicial appointment process and the need to make yourself and your skills, one's self and one's skills, known to these in power in order to be considered for a judgeship. what was blowing your own horn like for you, and particularly for some of our students here, what advice would you give to young people about how and when to be your own cheerleader? >> hmm. i really believe in letting your actions speak for you. and the one thing that i know i did was to insure at every stage
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of my career that i was doing the very best job i humanly could. so i studied and studied and studied both in high school and at princeton and at yale. and i never, never cut corners with my education. my book talks to all of you about how i relearned how to write in college because i thought that my writing was inadequate -- [inaudible] >> sound, please. >> hello. okay. so i went back and reread grammar books, found a professor who helped me with everything paper -- with every paper to reteach myself and to relearn
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english grammar and how to apply it to actual writing. but i've done that in my professional pursuits. my first year at every job i have really not been distracted by anything else. i've put my head down, and i studied as hard as i could. and once i felt i was in control of the process i was in, then i would go out and do other things and try to become a leader in those things that interested me. one of the haroldest things to do today, i look at the resumé of students, and you're often involved in so many different things, i worry that you're missing the point. you should get involved in a couple of things that are really important to you and then excel at them. become a leader. do something noteworthy, something that people will talk
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about in their letters of recommendation about you. it can't just be, you know, she's a member of x, y, z and abc and d or she does this and that. it's really important for a letter to talk about what your passions are and to show how good you've been. and that's how i dealt with my professional career. it was putting my head down and being the best i could, the best lawyer i could be in the d.a.'s office, getting a reputation for being tough but fair. that was important to me. but most important to me was being passionate about the work i did. don't do any work that you're not passionate about. first of all, you won't be good at it. if the work doesn't interest you, if it doesn't satisfy something in you, then you're not going to be the best at it. but if you go into any work
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situation recognizing that you can learn things from any situation that you're in and work to milk that learning experience to its utmost, then you'll grow passionate about your work. because except for illegal activity, all other work has value. you know, i tell law students, especially those who are so passionate about public interest, it's not a sin to make money. [laughter] hurt? it's not. [applause] and commensurate with that, it's not a sin to work for a corporation or to work for a big law firm or to make money. it is a sin if you do those things without giving back to your community. if you do those things would want volunteering -- [applause]
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without using some of those resources -- both the company you work for and your own -- in helping public interest activities. then there's something wrong. but all work has some inherent value. all work can be intellectually stimulating. many all work you do -- in all work you do, you can help people. you know, on april 15th all of you are very happy with your tax accountants, okay? and you think, as i do sometimes to myself, don't they get bored with those numbers? but they don't because this is fascinating to them. and for the really good accountants who are working closely with you and really trying to help you not just save money, but to be honest and to be upstanding in how you report your income, you know that you value that.
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so you can value the taxi cab driver who takes you to where you need to go, you can value the bus driver who takes you to work every day. you can value the person who cleans your room in a hotel. just as you can value anybody that provides a service for you. and so don't be afraid of thinking of public interest more broadly. think of it as an opportunity to figure out what job satisfies your intellectual interest, makes use of your natural talents and where you can use those things to benefit. sometimes yourself, but to benefit others. and i think if you do that, you end up with a passionate life. and that is actually the most important thing that i think you should be thinking about as you study law.
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don't eliminate choices simply because others think, oh, my god, you're going to be one of those horrible corporate lawyers. there's nothing horrible about it. anything you do with honor can be put to good use, okay? [applause] all right. we're having a problem -- >> hello? i got it now. [laughter] i'll give it back. now that you're on the supreme court, do you view your role as a judge differently from when you served on lower courts, and in what ways? how does that vary? >> i don't know how we're going to do this, but they'll figure it out. all right.
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you see a lot of dressed-up people around the room, men and women in suits? they've got these little things in their ear. most of them are u.s. marshals and campus police and some of the local police, and their job is to protect me not from you, but from me be, okay? [laughter] i like doing something that they don't like a whole lot because they think it puts me in danger. i don't, so i do it. but i do it because you're going to make me a promise, which is you won't get up when i walk around among you, okay? i don't like sitting still -- [applause] if you read my book, you'll know that i was called la health care ie, hot pepper, by my mother because i never sat down. and i haven't stopped that way since. i also think if i move closer to you that you'll feel like we're
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having a real conversation. so just don't get up, because if you do, they jump into action. [laughter] and it gets a little messy. so i'm going to try to make it somewhat up there. [cheers and applause] but i'm not that young anymore, so we'll try, okay? all right. is there a difference. it's harder, much, much harder, to be a supreme court justice. when i was on the lower courts, the district and the trial courts, i always thought to myself when i got to the supreme court, how much different could it be. a lot. [laughter] and it starts with that i had not realized or appreciated when i was on the district and
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circuit courts how much comfort i took in making decisions from the fact that there was a court above me that could fix my worst mistakes. that really gives you an out, okay? you struggle with a question, you do the best job you can. it's much easier to let go. when you know you're not the final word. well, now i'm part of the final word. and although e congress can fix some of the things that the supreme court does wrong, can't fix others. on constitutional questions, we're the last word. on statutory questions, it's not easy for congress to act and change laws or change things that many of them, many congress people may think it's wrong. and so making a decision is much, much harder.
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and in many ways, i feel it more a burden, because i remember one thing in every single case that comes before the supreme court. we're announcing a winner. we're telling one side they were right. i'm getting past the nuances. sometimes we say they're right on one thing and wrong on another, but generally one side is going to come away feeling vindicated by our decision. and the flip of that is someone lost. and someone feels like something important has been taken away from them. either a right they thought they had or a recognition of a loss
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that was deeply felt by them. and that makes this job that much harder. and so that part of the judging is very different. the critical difference, however, is so the layperson can understand it, we're the court of last resort, and when do we take cases? we take cases when the lower courts have disagreed about answer to a legal question. it's what we typically call a circuit split. there are 13 circuits in the united states that cover the 50 states plus territories. the circuits are not of equal size, some of them are bigger in number of states, some of -- smaller in term of states but bigger in terms of the number of people. but if you start from the
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proposition that we have to have either a circuit split or a split among the circuits in a state court, the highest state court, or a split among courts generally before we take a case, what does that tell you? we take only the hard cases. and we take the cases where reasonable people have disagreed. because you have to start from the assumption that if courts below that are always made up of judges who are trying their best and they can't find the answer, then the answer for us is not easy. you know, there's a lot, a lot of complaint at times i hear because we don't agree more. and i look at people and say why
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do you expect a unanimity of opinion when the reason the case came to us is because other people couldn't agree? and so that is a fundamental difference from the other job, the other courts. in the other courts, you get a certain number of cases that are right on that margin. but the number is much smaller than the everyday work. as one of my colleagues once said about a case, the minute it comes to the supreme court, it's a supreme court case. as soon as we say, yes, we're going to hear a case, everybody ramps up to tell us every side of the case. and so it's harder, because every case is on the margin. ruth? >> ah. hi.
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is this working? great. i'm going to ask one last question, and then we're going to turn to some of the students. new jersey is a very -- do not let her go too high up. [laughter] >> why? >> not to nosebleed territory. new jersey is a very racially- >> oh, no, telling me no is the worst thing in the world. [laughter] go ahead. go ahead. start again, ruth. [laughter] [applause] >> as i was saying, new jersey is a very racially and ethnically diverse state, one of the top three most diverse states in the united states with respect to racial, ethnic and immigrant populations. we know that makes a difference here in new jersey. it certainly defines and shapes the culture in so many ways. does diversity on the court make a difference? how and why? this is my last question. >> that's your last question.
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okay. [laughter] then i get to students. we represent the country. we make decisions that affect every single person in the country. and sometimes in some of our decisions, the world. we also supervise, generally, the practice of law in the country. and we're influencing the work of lawyers in every single profession there there is in the country. and so to be able to represent all of those people, it's helpful when the justices have present among themselves as much and as varied an experience base as the country has.
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and it's not because the the sitting justices can't learn about how other people are feeling or what they're experiencing, because we do. but there is a personal ability to explain an argument that you know if your colleagues haven't had it, that your voice can let them see it in a different way. i give a very simple, simple example, okay? a number of years ago in a case called stafford, there was a 13-year-old girl who was in a no-drug school. and it was reported through three layers of hearsay to her principal that she had taken an aspirin. she was called into either the principal's office or the vice principal or whomever was in
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charge and strip searched to see if she had aspirins. she then came to court and sued, because it was a state school, for an unreasonable search and seizure. the court was hearing the argument, and i wasn't there when this happened, so i'm talking about something i read about, okay? some of my -- >> so the senate has gaveled back in. they're working on a house-passed bill that repeals new regulations on retirement investment advisers. they have used about two of the allowed ten hours of debate on the bill. f live coverage on c-span2. fiduci. this resolution which provides congress with an opportunity to express its disapproval with the administration's regulations is important for a number of reasons. on the substance, d.o.l.'s new rule is extremely problematic. as a number of my colleagues have already attested, the rule on its face would


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