Skip to main content

tv   Richard Posner  CSPAN  November 26, 2016 7:45pm-9:01pm EST

7:45 pm
but there is a lot of history for them to draw upon in one of the themes is the new problems that we confront has a history if we look hard enough reconsider the similarity of our own situation. >> added 89 swayed to conclude. [applause] [inaudible conversations]
7:46 pm
>> of lawyer and legal writer 30 years a author of
7:47 pm
three previous books and from the connecticut school of law and english from university of california riverside. the united states court of appeals and senior lecturer joining in conversations tonight at the law school in is here please 22 bulk of them now. [applause] >> so now i will plunge into a question of the biographer so when you were the age of some of the people in this room as an undergrad as a fabulous scholar with interest in literature what made you decide to go to law
7:48 pm
school? >> and was the default graduate choice and my father was of lawyer. but then to decide not for me. i don't think i considered anything else. >> was at n informative impression was. >> talk about the academic experience. >> it is next but they do something clever they put their best teachers and to the first year of law school
7:49 pm
so you get a good start and then the second third year is when was interesting then i realized i skipped my last year high-school the was only 16 solution under than either kids and i was brassier. -- and i cannot conceal that but at harvard had been griswald into being
7:50 pm
unprepared and irresponsive and this is right out of "alice in wonderland" every year with the need with some trust. and with a griswald. so he was very upset. why? because there is a refrigerator in the building for the faculty that contained to arts and some
7:51 pm
of them were missing. so he thinks they may have had access i don't think i could keep a straight face said he really disliked me a lot. to the extent the first teaching job at stanford when i was under consideration during to harvard law school he said he should not hired him. [laughter] that's terrible.
7:52 pm
later he became friendlier to me but they did begin retrospect the other students in law school made me more difficult to did not hurt and then begin working in earlier age. >> can hear with that profound intellectual was
7:53 pm
dave brilliant economist and then move to california and i knew the name and this saw his name on office door entomb introduce myself and became friends. >> so what brought you back here brecht's why did you decide to leave california quick. >> and that got a very good offer from the deep with a big raise with the n tenured associate professor. so i did like that but more
7:54 pm
important just by chance had spent one quarter of my year at stanford. and we became friends. fight the canada of all of that year -- i think in the fall of that year in august or something that was the year when nixon was elected. nixon had appointed or heading a committee of
7:55 pm
antitrust policy i was put on the committee that he organized then another distinguished economist from the faculty. so getting to know the chicago economist made the move from chicago attractive i only spent one year in california. i enjoyed it but had no commitment. >> see you have known than judge many years when did you decide to write a biography? i had read the article from
7:56 pm
friendly that can mount in 2012 he had research but he did not have access people to when he was growing up so there was a rule generation that had passed on. so he made the best of that but i thought what they want to know is what they were like when they were younger and as they developed. so i approached him to ask if he would cooperate there really meant that i could record with some conversations an opening is archive and if people said if it is okay to talk to him that he would say yes. he did all the time so as a
7:57 pm
result i could talk to all sorts of people beginning in fifth grade and exactly what i hoped it would be to get information about a great figure as a young person and then going to law school teaching writing judging and with the personality comes off the page because i had such great good fortune with a resources mostly the people i mentioned so that is hell i got involved with of project. i did not want to happen to him as havilah whole generation of people contribute information and not do it. >> what was the biggest surprise?
7:58 pm
>> how funny he is. going through his archive some of it is wickedly funny . in his opinions i don't want to say make a joke but describe something that is amusing but the sense of humor that i could find in his letters sometimes they were laugh out loud that was the biggest surprise not they didn't think he was funny before but to the extent. >> any big challenges doing this work quite. >> a mountain of paperwork that would cover this poll area that i think has written 3,000 pages? probably 3100 by now. 3300.
7:59 pm
[laughter] i am behind so there were more than 500 articles or 50 books so i felt an obligation it was not a chore but i felt an obligation to read everything so why did so that was an obstacle to take along time. by really it was with the as john of the judicial biography.
8:00 pm
>> the personality, the person who's not wielding the pen, but clattering away at the typewriter. so that was the big obstacle, was the genre itself. >> yeah. dick, of course, you've written a bit on biographies, you've read a number of judicial biographies. do you have thoughts on what makes a good judicial biography? >> well, i think it's mainly whether the person who's being written about is interesting. otherwise -- [laughter] it'd be a boring book. i haven't read too many, actually. i like the friendly biography. there's an endless biography of
8:01 pm
cardoso which i don't think i read every word, but it certainly covers everything. it's hundreds and hundreds of pages long, many hundreds, and it took the author, it took him, what, 30 years or something? and similarly, a biography of learned hand which was kind of a flop because most of what learned hand wrote -- well, he wrote, actually, only about two or three constitutional opinions, and the biographer was a constitutional lawyer. and finish -- oh, for example, learned hand wrote very influential opinions about copyright, copyright law.
8:02 pm
and the author delegated the writing of the chapter on hand's contributions to copyright law to a student at stanford, this professor at standard who is now a professor at the university of chicago law school. so that was a rather questionable biography. there are several biographies about john marshall and oliver wendell holmes. there was supposed to be biographies of others who never, which never got written, like robert jackson was a very good supreme court justice. >> of course, this one's unusual in that it's a biography of a sitting judge. and in your -- >> you mean alive. [laughter] >> living, standing -- [laughter] >> that is unusual. they're all dead can, aren't they? -- dead, aren't they? [laughter] >> and, hopefully, he'll be with
8:03 pm
us for a while. but i'm wondering if you would -- so one question that comes up, and in your judging, you're always sort of i'd say pushing the boundary in terms of other judges in terms of being an intellectual and your view of the role of the judge, taking facts and so on. finish i guess the question in terms of the biography is, is it possible to know too much about a judge? a sitting judge? should there be some things which are off limits? are there -- is a biographer, should a biography be limited in terms of what they're asking about? >> what kind of limitation do you have in mind? >> well, i'm wondering if it's, if the public knowing about it -- some of the criticism about judges serving as public intellectuals is that they're stepping outside their role, and it might somehow compromise their neutrality and such. i know you don't agree much with
8:04 pm
that line of thought. is it possible that some of the majesty of the judge -- >> oh, that's such crap, you know? [laughter] i really can't stand that stuff. i actually am writing a book now, well, it's almost finished called "strength and weaknesses in the american legal system." it's actually almost entirely about the federal judiciary. i thought that'd be, make the book sound too esoteric. so i have about 10 pages on the strengths and about 320 pages on the weaknesses. [laughter] finish yeah, i'm very critical. i don't think the judges are very good. i think the supreme court is awful. [laughter] i think it's reached a real nader -- nadir. probably only a couple of the justices, breyer and ginsburg, are qualified. and they're okay.
8:05 pm
they're not, they're not great. of course, the politicians don't care about the quality of judges. they figure with the supreme court, they're politicians. they're interested in politics. you're not interested in having good judges. so in the case of the supreme court, what has been a tremendous boon to the politicians, basically to the lower courts also, that all the federal judges have law clerks, and the supreme court justices and many of the court of appeals justices have really good law clerks. they're really smart. so the politicians figure, well, we're appointing this person because he or she or this is a particular race, comes from a potential part of the country, this or that, is liberal, is conservative. and this person is not particularly bright, doesn't have much experience, never been in a trial courtroom, for example.
8:06 pm
but, you know, they've got all these brilliant law clerks working. so he or she will -- their opinions will be all right, because the law clerks will write them. so we can -- we don't have to worry about quality. so that's very, that's a very serious deficiency in our system, and there are zillions more. >> if we were to demand that judges write their own opinions, do you think that'd be a good thing? >> oh, it'd be great. [laughter] half of them would resign immediately. [laughter] >> bill, in terms of writing about someone who has such strong opinions about opinions and strong -- [laughter] opinions about judges, did it change your view about judging and judges? >> well, it deepeninged my -- deepened my belief, my conviction that dick is right, that judges should write their own opinions.
8:07 pm
one of the things that would happen if they didn't resign, they would write shorter opinions. drastically shorter opinions, which would be a good thing. they would also be less likely to publish their opinions which would also be a good thing. the truth is when you read a lot of judicial opinions by a particular writer, you really get a sense of what animates them, what interests them. and one of the things that, for me, distinguishes dick's shelf of opinions is how engaged he is and, actually, how much fun he's having in writing. so i walked away from the project thinking that the circuit judges who to not write their own opinions -- and that would be all of them except three or four, probably -- are depriving themselves of the fun of engaging with the law. and they're also depriving us of
8:08 pm
what we hired them for. i think it was hand who said this is what i'm hired to do, is to write opinions. so i
8:09 pm
8:10 pm
8:11 pm
8:12 pm
8:13 pm
>> for the most part, do not do a very good job of running the place. if you had a chief judge who said, ah, forget about all this stuff. a judge friend of mine in denver says he requires all of his law clerks upon arrival to read george orwell's famous essay "politics in the english language," which is a great introduction to, you know, how to write. but that kind of, you know, sort of taking hold, if you're going to have law clerks do any writing, they'd better know how to write. judges don't do it, and chief judges don't try to impose any
8:14 pm
progressive improvements on their flock of subordinate judges. >> bill, you had described earlier today, actually, that judge posner has what you call a literary mind. what do you mean by that? >> oh, it's a sensibility, i think, that merges the understanding of the real world, and tic -- dick certainly has that especially with an economic analysis that drives so much of dick's thinking. but it's also a sensibility that is aware of emotions, human emotions, human drama, i think, is one in particular. and every now and then you have one of these eureka opinions from dick where he'll have a reference to shakespeare which
8:15 pm
is completely and utterly apt, and you say, well, how else could it be described but to do it that way. so it's an awareness of people in different ways. it's how people live in the real world, one that we all know, but then there's the fictional world which has so much of the real to it, but it also has the imaginative, and it has the empathetic, it has philosophical. i said earlier -- you're referring to this thing we did with the law students today. i think this is true. i think, dick to my right here, has shakespeare in him. i think he has shakespeare living in him in the sense of not only knowing the plays so well, bunsing them -- but understanding them so that when in real life something comes up that shakespeare wrote about, it connects. and so we have the literary mind recognizing the grander sense of
8:16 pm
description that goes with literature infused into dick's opinions. and it makes for something that we just don't find anywhere else. as great a writer is holmes was, he wasn't interested in allusion, historical or literary. and there are some -- i've written critically about some -- judges who have literary allusions as ornaments, trying to show that they're smart. and they don't work. it has to be something that coarses through you. and i'm pretty convinced that dick has shakespeare coursing through him, and that's why they come so easily or seemingly easily and are so effective. if nothing else, there's a section where i talk about how often and it gives some examples of dick using literary allusions, especially shakespeare. and when you see the examples i describe, you'll say, yes, that's it exactly. how else could you describe it?
8:17 pm
so that's what i meant by the literary. and be also just -- it's not that dick is just a great writer, he's certainly that. it's his awareness of writers that i think also comes through in the opinions. >> do you spiel shakespeare in you -- feel shakespeare in you? [laughter] >> i like shakespeare a lot, yeah. >> would you, can you imagine yourself having done something different? can you imagine what you would have done had you not been a judge? >> oh, you mean not being a judge and not being, not going into law at all? >> right. having an alternative career? >> alternative law career. >> law or not law. >> no. i don't -- i mean, i did major in english in college, and i went quite deeply into it. and my mother, who had been a high school english teacher in new york and was very, very much
8:18 pm
imbued with literature and pushed me hard. when i was 3 or 4, she read me "thethe odyssey." in english, though. and the edition she had had a picture of the cyclops, you know, with the one eye in his forehead. no other eyes. and i was terrified of that picture. and i forced my mother to rip it out -- [laughter] of the book. so this is, so she was, you know, force feeding me with literature and culture generally. i remember -- and so 1944, i was 5 years old when she took me to henry v, you know, the lawrence olivier movie. it's a wonderful movie. and that always stuck in my mind.
8:19 pm
she actually taught me to read in the first grade, i happened to be sick when the kids were being taught to read. so she taught me to read at home. a week or something. and so throughout my youth, she was giving me a lot of help and steering me toward literary interest, which i've always retained each though i didn't become an english professor. >> well, why don't we stop here and take some questions from the audience. you may have some questions for either the biographer or the biography, and we can open it up for some time. and remember to come up to the microphone to ask your questions. >> yeah, i have a question for
8:20 pm
the judge. your work in law and economics masker obviously, been one of the most important contributions in, like, modern legal thinking. how do you see this new behavioral economics fitting into that kind of interplay between law and economics? >> oh, you mean the notion of people as pushed by their psychologying rather than by -- psychology rather than by cause and benefits? >> correct. >> well, i think there's a lot to that. i haven't really had that kind of issue arise in cases. i don't think any -- anyone who's argued cases or -- i don't think they've ever mentioned that. but i've read some of the material by cass sunstein and others, and i think there's a lot of merit to it. is it, is it -- if things don't come up in my cases, i tend not
8:21 pm
to pay much attention. but is it still as big as it was, say, ten years ago? >> yeah, that book "misbehaving," and the author talks answer about the evolution, and it seems like it's gaining traction in economic models as they're incorporating more of that psychology base. >> is cotman still going strong? >> yes. yeah, he is. >> he's very aggressive. >> he is, indeed. >> that's good. i really -- i've lost touch to a certain extent with economic analysis of law because it really doesn't come up much in my cases. i thought when i was appointed in 1981 that i'd have a lot of antitrust cases because that had been my potentiality as an academic. my specialty. but then antitrust kind of -- it
8:22 pm
hasn't dried up, but it declined. it diminished. so i haven't had many antitrust cases. and while we have a lot of commercial cases, financial cases, they don't usually depend on the kind of principles that economists have developed. they're more on specific rules about financing, debt, so on. so i haven't done much. >> thank you. >> judge posner, i've bought almost all of your books. i read your blog with becker, and you told us that you wrote 3300 opinions. so you are very hard working but still, sounds to me, a myth, your hard work. so i just want to know how you manage your time, how you manage
8:23 pm
yourself and what suggestions you can share with, you know, ph.d. student working in this university who are plagued with, you know, procrastination. [laughter] >> well, i only do a little teaching at law school -- in fact, i feel bad about having really lost contact for the most part with the law school. i haven't even met probably half the faculty, because it's expanded in recent years. so i haven't spent much time. i do have research assistants, bill landis, economist at the law school, he and i have a taffe of research assistants -- a staff of research assistants. the leader of the staff, tracy. and that's very helpful. i do some, you know, academic writing be research. writing and research. but that that's sort of very
8:24 pm
part time. and the rest of the time is mainly devoted to my judicial work except i have written, i have continued doing act themmic writing -- academic writing. like this book i mentioned, strengths and weaknesses, this has taken a lot of time. it's a long book. so, yeah, i work most of the time. >> so one image jumping in my head is when i read the book, it says when you type on the typewriter, it works so fast. especially like working -- >> well, i got my first, my first typewriter when i was 13. so i taught myself to type and have been typing furiously ever
8:25 pm
since. now, of course, on a computer. yeah, i'm a good typist. when i was full-time teacher, i was once sitting in my office typing, and a student -- i'm not even sure it was a student, but a person came into my office and said would you mind typing my, i don't know, resumé or something? [laughter] so i typed his resumé. so i actually experimented recently, it was a flop, with dragon. you know dragon? yeah. the dictation. you tick tate it -- dictate it, and it's converted into type. first i found very protracted learning process where the machine keeps telling you to,
8:26 pm
you know, repeat yourself and keep going. so that was painful. but then i was told that when you dictate, maybe it's changed, when you talk to dragon, you have to give it the punctuation. it doesn't put in the punctuation for you. and that's tedious. you know, comma, period, all that. so i gave up on dragon. i'm back to just typing. i imagine there'll be developments that will create a smooth connection between speech and printing. >> thank you. >> so i gather you don't have problems with procrastination, it sounds like. >> no, i don't. [laughter] >> all right.
8:27 pm
oh, yeah. go ahead. >> one question. it's mostly for the biographer but also for mr. posner. did you note these events, persons or ideas, of course, especially at least in economics that really influenced the life and the line of thinking of mr. posner? and mostly if there are persons or ideas that we wouldn't expect to influence him in such a way. >> well, that's a good question, and i think the answer is found in the acknowledgments that dick would write for various books and articles. so, for instance, for the first two articles that dick wrote when he was at stanford about, one was on old develop byes, i forget the other one, there were these very effusive acknowledgments for aaron directer. i think there was one article
8:28 pm
where the acknowledgment was, essentially, this is his idea, i'm just writing it up. which is a very gracious thing for dick to have done, but it also indicates, obviously, the depth of the connection between them. i was very fortunate to talk with someone who actually was able to listen to aaron director and dick talking when dick was at the stanford law school. he had the office next door, and he was able to tell me a story of hearing the two of them next door, days on end, talking about law and economics with aaron director sitting on a bookcase and dick at his desk with that typewriter just clattering away, taking it all down. so i thought of it as kind of a eureka moment where this birth of interest. now, certainly, dick had an interest in law and economic analysis before going to stanford, but i think meeting
8:29 pm
aaron director based on what i've been able to figure out was a pretty significant development. then, as dick mentioned earlier, george stigler was another very important figure. so when you trace the acknowledgments, and actually i try to do in my book -- this in my book, i show in the acknowledgments the connections between dick and director and stigler and cose and some others, gary becker being a very important one as well. so i think that's one way. because dick has always been very gracious. i show up three or four times in books as someone mentioned in the acknowledgments, and all i did was just read something and hardly commented. so these acknowledgments where dick was saying things like without you i couldn't have written this, pretty powerful evidence that the person being acknowledged was a important influence. >> judge posner, in your last
8:30 pm
book i know you took aim at the judiciary and the academy, and it seems like in your upcoming book, you'll be taking further aim at the judiciary. but, of course, there remains the law schools, and you haven't spoken much about the law schools today. i'm curious to know what do you think law schools could be doing better? and relatedly, how to you, you know, speak to maybe the law students in the room including this one here and advise us, if you could, how you think we should be best spending our time at law school in addition to trying to get the best grades? thank you. >> i think the law schools have a lot of problems. one is the tendency to hire -- and tom can correct me on this, i don't have really firsthand knowledge. my impression is that there's a tendency to hire people, teachers who have no real, who have no practical experience in
8:31 pm
law and never will have because some of them, you know, they got ph.d.s in another field, psychology, economics, what have you, so they went -- and then they went to law school which was already late because they had spent years on their ph.d.. and then, and then after graduating law school, they want to be professors, having this background of, you know, another field. and they didn't want to become professors of english or something or history, because they knew that jobs were but and pay was low. now, maybe after they graduated from law school they have a clerkship, that's recommended. maybe after the clerkship they have a teaching fellowship at a law school. so by time they're ready to become law professors -- or by
8:32 pm
the time they've finished all their training, it's too late for them to go into practice as preparation for teaching, because they're going to be too old. so i think as a result, you have a lot of law professors who really don't have firsthand contact with the legal system, the practice of law and so op. that, i think, is a deficiency. you see that with judges also. a large number of -- now, if you look at the supreme court, for example, there are nine judges -- i'm bringing scalia back from the dead so i can have the standard number of justices. [laughter] of those nine, one had been in a trial courtroom.
8:33 pm
now, it's ridiculous to have an appellate judge who doesn't have trial experience. so when i was appointed in 1981, i'd been an expert witness, and i'd argued cases, but i'd never been a trial judge, certainly. and the senior, one of the older judges said to me since you don't have, since you've never been a trial judge, you should volunteer to conduct trials in the district courts of the 7th circuit. is so i did that. so i've been doing trials for the last 35 years. and mostly civil trials. i have recently done a couple of criminal trials. i actually -- i don't know why i delayed so long. they were real eye-openers. and a lot of these trials have been jury trials.
8:34 pm
and i've also done pretrial work and settlement, sort of everything that district judges do. although, obviously, on a much reduced frequency. i think all appellate judges who haven't been trialing judges should be required to conduct trials. because if you've never conducted a trial, you really don't understand a lot about the judicial process. you've never watched a jury, never looked at their faces as they puzzle out the gibberish that's being thrown at them by the lawyers. and you haven't seen witnesses, you haven't understood how difficult it is to tell whether a witness is telling the truth. you know, there's this myth that through cross-examination you
8:35 pm
equip a jury to learn whether someone is telling the truth. that isn't true at all. you don't learn anything about that from cross-examination. what you discover is some people are very nervous when they testify, and some jurors will think that person must be lying. be other people are very confident when they testify, and some juries will think that person must be telling the truth because they're so confident. actually, there's absolutely no support for that proposition that you can infer a person's reliability and credibility from what are called demeanor cues. is the person nervous, squeaky,
8:36 pm
doesn't look the questioner, you know, cross-examiner in the, doesn't look them in the face. it doesn't mean anything at all. there are confident liars, and there are timid truth-tellers. you just can't do that. well, if you've never been in a trial courtroom -- especially if you're a judge and you're supposed to be figuring out, you know, evaluating credibility also -- you're not going to understand. we have judges who say, oh, the adversary systems, that's so great because it means that credibility is determined by a jury on the basis of, you know, the adversary presentation of witnesses. and that's nonsense. and i think anyone who actually conducts trials would know it's nonsense.
8:37 pm
but most appellate judges have absolutely, have had no experience trying a case. partly because -- chief justice rehnquist, who had never tried a case, he decided that he'd try a case. so he tried a case, and he was reversed by the 4th circuit. [laughter] so that was the last time, almost the last time anybody tried that. so as i say, it is the supreme court justices and several of my judges, you know, my colleagues and loads of appellate judges actually have never been -- i mean, some of them have been in courtrooms as trial lawyers. that's something. many have never been in a trial court. so that, i think, is a serious
8:38 pm
problem. >> hi. my question is for judge posner. i'm a student, so i don't know much about the judiciary. >> from where? >> pakistan. >> oh. >> so i want your opinion. who do you think, which justice is i truly representative of what the american judiciary should be about or is about? and as a law student, which judge would you recommend should we read the opinions of? >> was it -- i think the only two justices are qualified, i think, are ginsburg and breyer. and their opinions are readable. and sometimes, sometimes quite eloquent. the others i wouldn't, i wouldn't waste my time
8:39 pm
reading -- [laughter] >> and another question -- >> i have to tell you, i read recently the most tedious opinion i've ever read. i don't know why i read the whole thing. but there was this texas abortion case, and there was an issue. and, of course, alito wanted to i don't know if it was affirming or reversing. whatever it was, he wanted to uphold -- oh, yeah. what texas had done, we had that in wisconsin, and we invalidated it. so we had them done, what they've done is they did two things. the first was to say that an abortion clinic had to be within 30 miles of a hospital so in the
8:40 pm
event of an emergency during the abortion, the woman could be quickly transported to a hospital. wait, i left out something important. it had to be within 30 minutes of a hospital in which the abortion doctor had visiting privileges. he could admit a patient. and the notion was the abortion doctors would not get, would not be granted visiting privileges by the hospital because hospital doesn't want to be associated with abortionists. and also most of the abortion doctors are not qualified for privilege, because all they do is abortions. they don't do hospital work. if there is an emergency
8:41 pm
involving an abortion, what you do is you call 911, and an balance are take the -- an ambulance will take the woman to the nearest hospital. not necessarily a hospital in which the abortion doctor has privileges if he can get privileges, which is very difficult for abortion doctors. so texas had the same thing and worse, because they required special vehicles, hospitals had to be -- i mean, the ambulances had to be equipped. so the supreme court invalue candidated that. invalidated that. and justice alito's hyper-conservative. he wrote a very long deterrence, descent. forty pages. but the only thing he said in his descent -- dissent was that the case should have been dismissed on the basis of race
8:42 pm
judicata, because some of the plaintiffs attacking the texas law had filed a previous similar case which had been dismissed. and you're not supposed, you know, relitigate the identical case. and breyer, in his majority opinion, discussed this and pointed out there was some overlap. some of the plaintiffs -- there were loads of other plaintiffs in the case that had nothing to do with the earlier case. and what he should also have said which he didn't say was, you know, race add jude cat saw is this common law -- race judicata is this common law rule about trying to create finality in litigation, which is fine. but, you know, it's not part of the constitution or anything. and this is an important issue, and if you want to get it settled, why would you fuss about race judicata? especially for 40 pages?
8:43 pm
[laughter] but i interrupted you. >> this'll be the last question from the floor. >> okay. oops. >> so, judge posner, given your feelings about some of the members of the judiciary and the opinions that they write, what is the role that you think preston should be playing ideally, when did you share his reaching decisions, and what role, if any, should obiter be playing as they reach -- >> should what? >> obiter as they reach -- >> oh. i have a very low opinion of precedent. it's part -- what i don't like about the legal system is it's so backward-looking. like precedent or the constitution. you know, the constitution, the original constitution ratified in 1788, that's 228 years ago.
8:44 pm
and smart people at the time like jefferson said, look, you can't, you can't write a constitution that's going to be meaningful in the future, in the distant future. in fact, he thought you should have a new constitution every 30 years. and that, of course, didn't sell. but a number of the people then said, yeah, it's not -- you can't treat this as some sort of straitjacket because the world is going to change, and that, in fact, has been the attitude of supreme court. the body of constitutional law today bears only an incidental resemblance to the text of the constitution and all the amendments and so on. and that's how it has to be. that's, that's fine. but, of course, the supreme court justices and the
8:45 pm
profession generally is reluctant to admit that. so you have this, you know, originalism, textualism. scalia was big on this, you're supposed to decide cases according to what people thought in the 18th century. ridiculous. [laughter] and very little attention actually paid to it, and there are very few honest originalists. certainly not scalia. [laughter] and precedent is very similar. the supreme court is reluctant to overrule previous decisions. that is not -- i guess they worry that people think, well, the supreme court isn't very good because they decide these cases, and then ten years later they overrule them. but, of course, the precedent issue isn't a constitutional issue. it's a text and it's a judicial opinion x. after a few years or many years, it's obsolete.
8:46 pm
you ought to say we're not paying any attention to that anymore. but the supreme court's notion -- the supreme court justices, they feel under pressure. for one thing, congress doesn't like the supreme court. the supreme court has a way of, you know, invalidating congressional legislation. so the justices worry about congress. and, you know, maybe they won't get raises if congress doesn't love them. so they want to create some sense of infallibility. so the notion that they decided a case a hundred years ago and they're still following it makes it seem as if, well, the supreme court must be really great, because it's, it can decide a case, and 100 years later it's still the law.
8:47 pm
so i think that looking backward is really, that's the worst thing about the profession, looking back. they made such a fuss last year because it was the 800th anniversary of magna carta. about which people don't know anything. [laughter] so they think magna carta is the beginning of the jury, and it's, you know, great charter of liberty. magna carta was about, it was this very unpopular king of england, john, really bad. and the barons who were, i think were a higher tier of distinguish aristocracy than they have come to be. is that right? so they, they didn't like this guy. and they managed to get him to agree that if a baron was prosecuted for anything, his
8:48 pm
guilt would be decided by a jury of his peers. i mean peer literally, it had to be other barons. they weren't saying ordinary people were going to have juries. so after a few years, john -- i think it was still john -- repealed magna carta. eventually, it was restored. but it's not really anything. i went to, i was invited to some kind of bar thing where people were talking about the magna carta and, oh, they were all salivating over magna carta. [laughter] it was so great. shows what a great system we have. had it for 800 years. forget magna carta.
8:49 pm
you can see i'm a sour puss, right? >> let me close with the last question. be back to the personal. cats versus dogs, which is the best house pet? >> well, actually, that's a very important issue. [laughter] and the only mistake in bill's book that he misnamed my cat. [laughter] he called her dye -- dinah. dinah was a cat of ours, in fact, a famous cat because the new yorker ran an interview of me back in 2001, and they were very insistent that dinah be -- they wanted to have a photograph, and they put a photograph in the new yorker of me holding dinah. they were very insistent about that.
8:50 pm
i actually got some hate mail -- [laughter] because, not from the dog people, but that was very shy, and she did not want to be photographed. and i got at least one letter from someone who said, you know, looking at the picture, looking at the eyes of that cat, that cat was, you know, did not want to be held. [laughter] and photographed. they shouldn't have done that to your cat. [laughter] so that was -- i thought, well, i thought it was hilarious, the fact that the new yorker has circulation of several hundred thousand. i love that, several hundred thousand people are going to look at my cat. dinah was not able to capitalize on her finish. [laughter] on her celebrity. and eventually, poor creature
8:51 pm
died. now, now we have -- our current cat is named pixie. so another paperback, because pixie, needless to say, she read the book. [laughter] she was bothered when she came to dinah -- [laughter] yeah, so i'm a cat person. [laughter] i admit it. >> yeah. are you, is it because you're anti-dog, or is there just something about cats? >> no. and we've had, my wife and i have had cats -- i mean, had dogs. we had a dog, i had a dog when i was growing up. i think the cats -- well, okay, here's the big difference. the dogs are, the dogs are kind of servile. we had a dog, we had a norwegian
8:52 pm
elk hound when we lived in washington, and it was a large dog, and it was, you know, a formidable dog can. but if you so much as frowned at our dog -- charlie, what did we -- i've forgotten his name? >> fang. >> fang. so, yeah, he had a great name, right? fang. he sounded frightening. but i say, if you frowned at fang, his lips would tremble. [laughter] because, you know, the dog -- they tend to be servile toward people. and cats, the opposite. they don't -- our cat, wonderful cat. she regards us as servants. [laughter] and treats us accordingly.
8:53 pm
and i think it's just a much more interesting relationship. then you feel how it is to be servile, to be a member of a lower class. [laughter] because the cat, yeah, they're el grant and -- elegant and graceful and bossy and very definite. pixie likes to, when i'm typing which is most of the time, i have a mouse pad to right of my laptop, and i have a mouse, a wireless mouse on it. and pixie likes to come over and sit on the wireless mouse. that, of course, paralyzes me. so if i try to reach in under her for the mouse, she'll scratch me. so she enforces her decisions.
8:54 pm
and it's delightful. i love it. [laughter] >> all right. well, the books are available. you can also get kittens at your local shelter -- [laughter] and join me in thanking both judge posner and -- [applause] [inaudible conversations] >> after the recent presidential election, "the new york times" suggested six books to help understand donald trump's win.
8:55 pm
first is "the unwinding," in which new yorker staff writer george packer argues that people across the country have suffered at the hands of the political system over the last three decades. national book award finalist arleigh russell hochschild in "strangers in their own land." also on the list is "hillbilly elegy" in which j.d. vance chronicles the decline of white working class americans in the rust belt. "the new york times" recommends in order to better understand election 2016 read thomas frank's "listen liberal," where he argues the democratic elite has abandoned its commitment to the middle class. john judas contends that both major parties are turning elections into a circus of populist ideas, and historian nancy isenberg provides a
8:56 pm
history of class in america in "white trash." that's a look at the books "the new york times" has suggested to help understand the 2016 presidential election. many of these authors have or will be appearing on booktv. you can watch them on our web site, booking tv.org. booktv.org. >> i could not think of a more apropos story than that one that really kind of described how people view flyover nation, because you had a reporter from bloomington, indiana, who went down and, i mean, really went out of her way to find some sort of christian mom and pop shop that she could stereotype. >> this was during the freedom -- >> the rfra battle in indiana. and they were getting -- and that was basically allowing people to say, well, if you own a business and you want to choose how you want to run your business, that's fine. if you don't want to violate your religious conscience -- there are limitations. people think it's a free-for-all, no. if you're actively ening gauging
8:57 pm
in discrimination, you're going to run afoul of the law. but if you are sincerely professing your faith and saying on this one instance of a wedding ceremony grant to give you -- i don't want to give you my artistic skill or labor, then that's understandable. this reporter actually went out of her way and went to this really little, you know, really tiny, little small town where you have the storefront windows, and people still park kind of out in the middle of the street. went in, and she saw some crosses on the wall of this pizza shop and thought, here it is. walked inside. crystal, who's the daughter of the proprietor, was at the cash register, and she said, well, would you serve -- would you cater a gay wedding? the period thing is there was no actual service done, no goods or money were exchanged, it was just a hypothetical question, and crystal said, you know, we serve gay and lesbian customers every day, you know, that's one thing. but the act of a wedding
8:58 pm
ceremony goes against what we believe as christians, so we probably wouldn't participate in that. and i was just thinking the reporter was going to go to a quick trip or something next and say can i buy some fudge rounds and stack them up for a wedding cake or some hors d'oeuvre. it was weird that they went to a pizza shop, and i wrote about this too because i have gay friends and family members, and i'm sorry, i'm from the ozarks. we would never cater a wedding with pizza. i'm not throwing shade, but do these people not understand? our neighbors threw a block party in st. louis, gay neighbors, fabulous, and they had bottle service. no one's going to cater their wedding with a pizza, for crying out loud. anyway, so that became a big story. and this restaurant was, all of a sudden they were at the center of all of this maddening debate. they had to close up shop, close their blinds, they were getting death threats, all of this for a hypothetical question. and it was maddening because not only was it something that never
8:59 pm
actually happened, there was no discrimination that took place except the discrimination against christian proprietors of a pizza shop because, you know, you should -- this is more than an issue of whether or not you are serving a cake at a gay wedding or photographing a gay wedding or giving pizza to a gay wedding reception. ..
9:00 pm

4 Views

info Stream Only

Uploaded by TV Archive on