tv Book Discussion on Understanding Clarence Thomas CSPAN June 4, 2016 11:30am-12:01pm EDT
deal with this, you know? and more generally to your question, i think there's a huge need in our societies at large to think about where is the taboo line in terms of violence. you know, every day i have those three cute kids. every day when they go to school, honestly, i get scared to death. the i love you is a deep i love you with the rare but plausible situations of the school shootings, things like that. the taboo line in terms of violation, i think, has shifted much too far in the wrong direction. we, as a, you know, as a country and as a globe have possibility to shift that as well just as much as working to shift it with these terrorist organizations as well. t means timeout? okay. thank you. it's been an honor, thank you. [applause] thank you very much. [inaudible conversations]
>> you're watching booktv on c-span2, television for serious readers. here's a look at what's on prime time tonight. we kick off the evening at 7:30 p.m. eastern with the son of the late author and journalist hunter s. thompson who remembers life with his father. then at 8:30 former state department official talks about the growing influence of china and india. michael peach, ceo of the publisher hachette book group, talks about his publishing career at 9:30 p.m. eastern. and at 10 on boob tv's "after words" -- booktv's "after words" program, mitch mcconnell discusses his
memoir, "the long game," with senator lamar alexander. we finish up our prime time programming at 11 with neil bass couple who recalls the nazis' race to build a nuclear bomb and the allies' efforts plan to destroy their nuclear facility in norway. that all happens tonight on c-span2's booktv. >> and you're watching booktv on c-span2. whenever we get the opportunity, we like to go to college campuses and talk with professors who are also authors. today we are on the campus of claremont mckenna college in claremont, california, and we're joined by professor ralph rossum who is the author of this book, "understanding clarence thomas: the jurisprudence of constitutional restoration." professor rossum what, in your view, is the biggest misconception about clarence thompson? >> guest: the biggest
misconception would be that he was somehow and ally ya's shoe shine -- scalia's shoe shine boy as it was disparagingly put after his confirmation. thomas is altogether his own man. i had a chance a few years ago to do a book on the jurisprudence of antonin scalia, and i admire him enormously. in fact, they've asked me to do an afterword for the book to come out in a new paperback edition, so i'm going through all of his cases since the book was published. an enormously able man. but thomas, having done the book on him, is deeper, is more profound, is more consistent, is a giant. he's not as glib, he's not as witty or car sassic in his -- sarcastic in his opinions, but he writes very solid opinions.
he's a remarkable presence. one of the things he does is each year when the court knows the big cases coming his way, he will assign a clerk or two to look at one particular issue that he hasn't really researched or thought through thoroughly in the past. and he will devote an enormous amount of attention on one case. and typically, he'll end up writing either a concurring opinion or a dissent, because in a majority opinion it's a committee report. you can't say all the things you want to say without losing supporters who will leave the majority. so he will do it in a concurrence or a dissent, and it will be 60-80 pages in length, and it will be enormously well-researched, and it will be his statement on that issue. when that topic comes up thereafter, he'll write a brief with an opinion in which he'll
spell all out. he's a remarkable man. >> host: is he consistent? >> guest: very. he has -- what drew me to thomas was having first done the book on scalia. scalia is an originalist, thomas is an originalist. and i wanted to compare and contrast their originalisms. scalia has a much nay roarer -- narrower form of originalism. there are basically three approaches to originalism. one is called original intelligent, -- intelligent, and that's where the effort is made to understand the original intentions of the delegateses at philadelphia convention, what they were attempting to accomplish. so you look at the records of the federal convention and letters and documents by people contemporaneous with the actual convention. the second is original
understanding. and original understanding is trying to ascertain what the document meant to the delegates in the various state ratifying conventions that brought the constitution actually into existence. so the focus there is on the state ratifying conventions and on the federalist papers, the various anti-federalist papers written to persuade the delegates elected to those conventions. the third approach, and this is scalia's, is called original public meaning. and what he wants to understand is what did the words in the document mean to the society that adopted it. and so, for example, in my book on scalia i have an appendix that lists five pages of dictionaries that he has turned to to ascertain what a word meant at a particular time. so he will read the federalist papers not to try to figure out what the ends that they were attempting to achieve were, but
to simply ascertain what the words they used meant. thomas combines all three into what i call an original general meaning approach. and so he'll use scalia's narrow focus on what words mean, but when he wants to strengthen the opinion, he'll turn as well to what were the intentions of the framers, what were the -- what was the understanding of the drafters. he'll want to look at what were the ends that they were attempting to achieve when they met that summer. what were the evils they were attempting to avert, and what means did they employ to achieve those ends and avert those evils when they used the words they did. and so bringing that approach on matters, for example, of criminal procedure -- especially the meaning of the various bill of rights provisions -- thomas is identified as perhaps the most conservative justice on the court. but on criminal procedural matters, he often ends up writing opinions that make him look like a liberal, because he wants the words to mean what
they meant at the time. he wants -- he will suppress his own impulses and prejudices, try to preserve judicial integrity by adhering to his original general meaning approach. and he does it repeatedly. you know, a good example, no one is probably more opposed to partial-birth abortion than thomas. and yet when the supreme court heard the case in carhart against stenberg, he wrote a concurring opinion saying where does congress get the power to the pass this lawsome congress has -- law? congress has, it's using the commerce clause to regulate this kind of question? he's very consistent. >> host: how often did he and justice scalia vote the same on issues? >> guest: about 87% of the time.
now, that's less than, for example, ginsburg and breyer. so -- and ginsburg and stevens on the liberal side. but the interesting thing is when they vote against each other. and during their 27 yearses together on the court -- 24 years together on the court, i found 16 occasions where one wrote a majority opinion and the other wrote a dissent. now, that doesn't mean there wouldn't be ore instances where -- other instances where one joined the majority opinion and somebody joined -- and the other joined somebody else's dissent -- >> host: and the writing in those cases, was it different? >> guest: almost all together
had to do with statutory construction. and scalia wrote this big, fat book called "reading law" on statutory construction. and thomas takes a more -- thomas is willing to consider more sources than is simply what the words the text says. he's more willing to look at let's call legislative history. what was the intent of congress when they passed an act rather than exactly what words they employed to achieve that act might mean. so on occasion they will quarrel on that. but on big issues, almost never. one is a first amendment case. scalia wrote the majority opinion in brown against entertainment merchants association. california had passed a law that made it a criminal offense to sell violent video games to minors without parental consent and that required a large 18 on
the packaging for such. before the law went into effect, the entertainment merchants association challenged its constitutionality. scalia wrote the majority opinion for seven justices. and just said, hey, the first amendment applies not simply to books and newspapers, but also to movies and the internet and a new medium like video games. and so he just employed traditional strict scrutiny and struck it down. thomas wrote this lengthy dissent saying when the first amendment was written, children didn't have any free speech rights. they were subject to whatever their parents said, and he went through early education law to show, you know, the whole argument that parental control
is absolutely essential and prominent. and so he writes about a 40-page dissent that is focused almost exclusively on the original meaning of the first amendment and its application up until about 1840. and, again, focusing on this original general meaning approach, he wants the first amendment to mean what it meant then. another instance, he doesn't -- another interesting case dealing with the first amendment and children was a case called morris against frederick. you may have heard about the bong hits more jesus case. for jesus case. this was up in anchorage, alaska. it was the winter olympics were about to begin, and the olympic torch was being carried through anchorage. so this high school allowed all
the kids to go out and watch the torch bearer as he was passing. and this kid comes out with a huge banner saying bong hits for jesus. and the principal ends up disciplining the student and suspending him for a few days. he challenges is the suspension saying i have free speech rights. remember, there was an earlier case, tinker v. des moines where a black armband was worn by some kids objecting to the vietnam war, and the supreme court unanimously said that's protected speech. this time the court was unwilling to extend free speech protections to this, and thomas writes the opinion saying, hey, free speech rights for students end at the schoolhouse door. the purpose of schools is education, not expression of
political principle and especially not when it ends up being disruptive to the educational process. so very interesting judge. >> host: why do you think he doesn't talk from the bench? maybe once in 25, 30 -- >> guest: well, i speak about this in the book. and, actually, two years ago, right in february, jeffrey toobin wrote a piece called -- it was thomas' outrageous conduct, the fact this he hadn't asked any questions for, at that point, eight years. we then got to the ten-year anniversary, and then about three weeks after that he asked a question just a couple of weeks ago. and i was asked to respond to toobin. and what's so interesting is how
thomas prepares for oral argument. every judge, justice typically will have one of his four clerks write a bench memo on a particular case that's about to be argued, and then he'll meet with that clerk and go over the kind of questions he should be thinking of asking, what briefs do i need to pay particular attention to, etc. thomas does the same, but then he has the bench memo sense to the three other clerks as well as to him, and then they meet for about four hours on each case and sit there and just talk about, okay, if we decide this way, what are the long-term implications for the law. if we decide the other way, what are the implications. and so he comes enormously well prepared. his view is i learn by listening, not by talking. calea had a big impact -- scalia had a big impact on oral
argument. when he joined the bench in 1986, often there might be three or four questions asked in a half hour of an attorney. today it's about 50 questions an hour. and thomas' view is what can you learn when 50 questions get thrown at an attorney in the course of an hour's debate? now, 25 questions aside because each side gets 30 minutes. and he said all they seem to be doing is enjoying hectoring the counsel. i was with him at the university of notre dame law school when he was giving some remarks, and he was asked about his silence. and he said that they had a case before the court, it was the myriad genetics case. and in this case the question before the court was under the patent act, is it possible to
patent unique dna strands. and he said, you know, that's a complicated question. and we had before us the two attorneys that knew this issue better than anybody else. and i was really looking forward to learning from them. but what did i get? eight of my colleagues wanting to show off how bright they were. and what's interesting is until the death of scalia, seniority determines where you sit on the high bench. and thomas had scalia on one i'd is and breyer on the other. -- on one side and breyer on the other. and observers of the court have noted that frequently thomas will lean over and say something to breyer, and suddenly breyer pops off with a question. and so in one interview he gave he said all of those questions breyer asks i guess i'm somewhat
responsible for. what's also interesting is giants on the court like oliver wendell holmes almost never asked questions. it's a very different era today. and thomas, you know, if you'd add one more voice to the cacophony, the attorneys would have almost no time to talk. i don't know that i'd want nine thomass in terms of how often they join the discussion, but a few more surely would allow alternatives an opportunity to better express themselves. >> host: professor rossum, did justice thomas participate in -- or cooperate with your book? >> guest: no, he didn't. i wrote him and i asked if i could interview him to clarify a few matters. i pointed out all of the common connections and people that we
had known, but he declined. so total arm's length objectivity on this project. >> host: what did you find to be his reputation among his colleagues? >> guest: he is, he's well-liked. he's especially well-liked by his clerks, his law clerks. when asked in an interview by martha minnow at harvard law school, he was on the campus and being interviewed by some law students and the dean, she asked him what he liked least about his job as a justice on the court, and he said lack of anonymity. and was asked what he liked most about his job on court, and he said my kids. the clerks. and thomas has a more diverse group of law clerks than any of the other justices.
a number of them will take them only from the absolute elite law school, and thomas will take them from a whole variety of places. he's taken people who have been iraq war veterans and come back and do law school and come by much more different pathways to the clerkship than most of the others. he has many more women clerks than a lot of the other justices. and he dotes on them. at the beginning of the term or their session or term as a clerk in the summer before the official beginning of the court's term in october, he has them all watch atlas shrugged, and he puts them all in his -- he's got a big diesel pusher
mobile home, and he takes them up to the battlefield at gettysburg and becomes very close to them. they have an annual monthly reunion for all of his clerks at a restaurant each month in d.c. so he gets along well with his colleagues but famously with his clerks. >> host: as a professor of american constitutionalism here at claremont mckenna college, what do you think about lifetime appointments for supreme court justices? >> guest: gotta tell a funny story. justice scalia was on campus a few years ago, and i was asked to introduce him to a big group down in orange county at the airport hilton. there were about 700 people in the room, and he was -- the college has an organization called res publica, and if you contribute a certain amount of
money, you get invited to things like the scalia talk. and there's a group known as the pacesetters at claremont mckenna. the school was established in 1946, and so the graduates of the first three graduating classes through 1950 are referred to the as the pacesetters. and i was so introduce him both, and i said pacemaker fellow. and the audience roared in laughter. and i'm wondering what -- and somebody said pacemaker. oh. and i walked away from the podium, pulled myself together, got back up there and said, well, there are a number of us who, because of advances in modern medicine such as pacemaker, wonder if we should reconsider the wisdom of granting judges lifetime tenure. huge laughter.
and when scalia finally got up and look down at me, he said, thanks, ralph. lifetime ten your's a problem. saw scalia was appointed in '86. he was five months short of completing 30 years on the bench. there is, there is something about housing voices -- men man, who left the court in '91, he was appointed by eisenhower in '8. i'm sorry, '56. that's an enormous length of time. eisenhower was born in the 19th century, and here you have a judge by him serving until the late -- early 1990s. i think a 10, 15-year term would make sense. you could at that point appoint somebody like judge merrick garland who's older.
i think the only reason he's being nominated right now is we can -- obama had a real shot at getting confirmed. he would have liked somebody in his 40s like thomas was. but you could appoint somebody who's older and allow him the full service of a more mature individual on the bench. right now you have to to go for young people hoping they can serve for a generation or two so that you can make your mark as a president that way. more turnover will better reflect the current citizenry. you know, you have justices on court dealing with the issue of cell phones. can the fbi or the police without a warrant upon arresting somebody search the contents of their cell phone. well, the court unanimously said, no. but when you listen to the oral argument, a lot of these justices don't have much of a clue about modern technology and the use of cell phones and all
the features, all the apps, all the things that are on there. there was a case a couple of terms ago concerning a case dealing with patent law with little antennas that were able to circumvent cable systems. and it was clear that scalia, for example, had almost no sense of cable tv. even though he helped write the cable tv act when he was back prior to his appointment as a justice. no real sense of contemporary technology. it'd be nice to have judges who rotate off so new can rotate in who have a better sense of those practices. one of the things early on when judges did have lifetime tenure was they rode circuit. in the 1820s when the supreme court wasn't meeting -- and it
didn't meet much -- the justices were riding carriages and on horseback from courthouse to courthouse hearing cases as other regular judges. that contributed to enormous turnover. because it was a very arduous way of life. and right now pacemakers and jet planes, justice stevens for the last decade on the courtlied in florida. -- court lived in florida. flew up every two weeks for oral argument. modern technology and modern medicine has, i think, would have been befuddled the framers and would have made them rethink the wisdom of lifetime tenure. >> host: and we've been talking with professor ralph rossum. his book, "understanding clarence thomas." this is booktv on location at claremont mckenna college in claire month, california. claremont, california. >> you're watching booktv on crushes span 2 with top nonfiction books and authors every weekend.
booktv, television for serious readers. >> and this weekend on booktv we're live tomorrow with author and publisher steve forbes for three hours. he will talk about his books and answer your questions. on "after words," senate majority leader membership mcconnell -- mitch mcconnell discusses his life in politics. and '60 minutes" correspondent leslie stahl looks at the changing role of grandparents. also this weekend, the son of hunter s. thompson remembers his father. former state department official anya emanuel reports on the growing influence of china and india, and booktv visits las vegas to tour the city's literary sites. that's just a few of the authors on booktv this weekend. for a complete television schedule, booktv.org. booktv, 48 hours of nonfiction books and authors. television for serious readers.
>> colleen boyle is a publicist at princeton university press. what is coming out this fall from princeton? >> our lead title for the fall is the curse of cash by kenneth rogoff. in this case he makes the case for phasing out paper money. so he argues that the economy would benefit for getting rid of cash, so think large bills, 50 dollars and up. and his reasoning is twofold. he says that, first, people who are involved in crime and corruption choose cash as their payment of choice. and then he goes on to article that economies would benefit in times of financial crisis by being able to lower interest rates to be negative, and with a cashless economied economy thise more possible. so he goes along to the address the challenges and makes a really great case for it. >> what else have you got coming out? >> next up in terms of science we have welcome to the universe
by neil degrasse tyson and michael strauss. so, you'll, of course, know neil degrasse tyson as host of the cosmos tv serious and director of the hayden planetarium in new york city. michael strauss and richard gott are leading astrophysicists at princeton. so they zoom out from the earth looking at things like stars, galaxies, some more quirky things like worm holes and time travel as a possibility in the universe. and in true princeton fashion, this book goes a little bit deeper than just naming different phenomenon, it describes the science behind what scientists know about the universe today. >> okay. one more title that's coming out from princeton university press. >> sure. so face, fashion and fantasy by roger penrose. of course, one of the most influential and important theoretical physicists of our time. and this is, basically, his take
on 21st century physics. and he's looking at it through three lenses. so faith in terms of our faith and belief in different theories, fashion in terms of what is envogue in the field at the time and fantasy in terms of fantastical ideas like the big bang theory. and so penrose is arguing that all three of these ideas have a place in science. they move progress forward and inspire researchers. but there's also the potential for researchers to be led astray, and he talks about this in relation to three different topics. so quantum mechanics, string theory and cosmology. so this is, basically, an expert in the field and his take on 21st century physics, a real critique of the field. >> colleen boyle is a publicist at princeton university press, and she just gave us a preview of three titles that princeton is publishing this fall. >> welcome to las vegas on booktv. located at the southern tip of nevada at the floor of the