tv National Judicial College on Verbal Attacks Against Courts and the Media... CSPAN January 3, 2019 12:21am-1:01am EST
almost as many different reasons to come to the p are as our people that come to visit. the walked on the p are today on many different given day. they all have different reasons. >> watch c-span city tour saturday noon eastern. c-span twos booktv. sunday 2:00 p.m., american to history tv on c-span three. we explored the american story. in pr legal affair correspondent, talked about covering the supreme court at the annual national additional conference in washington. she discussed president trump's criticisms of judges in the federal courts. this is 40 minutes. >> is truly a pleasure to be here and have an opportunity to have a talk with a legend, icon, someone --
[laughter] someone i think loved by both sides of the aisle. i think you might be one can bring us together. one of our members actually to start with joe biden, wanted to pass on -- he couldn't be with us today. what is your favorite moment covering the supreme court? >> i can't say there is a moment but it was probably best symbolized by the court announcement of its decision in the affordable care act case. i'm one of the various, very few journalists who continued to go up to the courtroom to hear the announcement. the reason most people don't is they have to get something out right away.
if you are in the pressroom, you can hear in the press secretary's office, you can hear the announcement of the decision but mainly, what journalists do is they just take those opinio opinions, they do a quick scan of the synopsis of the opinion and they try to write four -- five paragraphs. or more. they do that daca case and got it wrong. the wires interesting we did not do it wrong. a lot of other people do. that's because the question we all thought was the big question to be decided whether daca violated the constitution limit on the commerce power, that was decided against president obama's signature piece of legislation. however, the chief justice wrote the opinion, decided
nonetheless, this was a tax. it could stand because it was a tax. no other court decided that on this particular piece of legislation but it was a very genetic moment and the few justices read anything and when he gets to this, part and says that it the commerce clause, i'm still sitting there, waiting until the end and then he does this incredible flip toward the end. it was a very dramatic moment. i went peering downstairs and we didn't screwed up. thank god neither did he because we had two editors who had the opinion in front of them, checked against the ap and we didn't screwed up and then i was live on the air moments later and telling what happened in the
courtroom. i think those moments of great drama which tend to be when cases are decided i really -- they are very nerve-racking for a journalist but they are the best of times. >> it's like a drama behind the scene. when you report poise and can get the gist of the opinion, message to the public. how do you do that? >> i'm not always poised. [laughter] the worst is usually the 11:00 o'clock newscast or 10:30 p.m. if i can get down there by them. but when i'm on the air at 11:00 p.m., which is still prime radio time, drive time on the west coast. if i live, i may be live for on the newscast and a lot live again for several four -- fiv five -- six minutes. you are really trying to digest what is there. sometimes i don't feel poised at all.
occasionally, there is a critical question that i can't really, that i hadn't answered by scanning whatever i can stand and using every trick i have to read, as much as i can because you can't read the whole thing. there's no way to read it all. so you read the synopsis, almost always read the beginning and the end and look at the dissent to see with their most is off about. [laughter] sometimes that still didn't tell me the answer to some important question. very occasionally, there is an answer. >> we asked our alumni to come up with questions for you. i'm going to turn to those. a little harder. >> some of them i might not be able or willing to answer. [laughter]
>> we have to ask our judges to grade year. >> thank you. that's better than i used to get in college. >> what you think of roberts remarks, the president about obama judges or bush judges. >> i think they were appropriate remarks and i think that i think it's good that he finally said something instead of just ignoring it. having said that, however tenuously, put your foot into it, you end up with you know what at least on your leg. [laughter] as soon as he said that, soon as he issued that statement my hats off to mark sherman from the ap,
who had this sense to ask if there was any reaction, i'm so used to their never being reaction. he said if the court, i didn't ask, nobody else asked. mark said they had given him the millionth time to read about the circuit. he decided he would see if there's another that he could write about. he asked that question. my hats off to him because it provoked the chief to issue this very measured statement and when i went -- after i found about whatever i did, i went running upstairs and said what time does he get off the call was? they said, we are waiting right now. and boom, boom, boom. the tweet. the tweeter predictable and i'm sure chief justice does not regret having said anything but i doubt he will do it again. >> changing the theme, a recent survey about the alumni found
90% believed judicial independence was threatened. by a variety of sources. what you think is the greatest threat to the judiciary? >> it's hard to rank them. one of them is, has nothing to do with the president. it's what sandra o'connor was campaigning against and about which was the threat to the independence of the judiciary. the notion that people don't really know much about civics these days. they are starting to be some movements in the stage that you have required civics courses which i think will help a little bit but people really do not understand the duty she and what his function is. the make it, because they are not, people don't agree about how you interpret constitution or even laws. everybody can have their own
little pet sink. liberals can take therefore 11 constitution and their and their. everybody who's now claiming, coming themselves in original, they are for the constitution as it was written not as it was legislated. they quote school year or whoever. it's very difficult to have a set body of rules that you can present to people and say, this is their job. so that's the first thing. the second thing i think trump on the judiciary is extremely damaging and they make the dj looks like it's another political institution, which if it ever does become that, it will have tarnished and plucked the gems of the jewel and crown.
lastly, i do think that the president has named very distinguished conservatives to the bench, there are a lot of others who never would have passed muster in any party ever before. that is partly due to i think you put that someone as president was that but maybe you probably have to put it in mitch mcconnell. >> you see a number of process through the years. i know you covered that, in recently we've seen the lack of confirmation hearing for president obama's appointee, garland in recently justice kavanaugh confirmation hearing. what you think or feel and the long-term ramifications of these events? >> i think it's sort of -- i do
think the confirmation hearing should be, should look into somebody's background completely and when they are rushed, that makes it much more difficult to do it with any propriety or respect for the nominee privacy in any way. this was true and partly in the confirmation hearings of justice thomas and it was even more so true in the kavanaugh hearing. where they were just basically, the time schedule was on a speed train from japan somewhere. nobody was going to interrupt that. that's not to say the democrats performed admirably either. they did not seem to be able to
talk to each other and figure out what to do about blasey ford ahead of time. the story week. i think that's one of the problems but this is a political process. it's become more and more political. the unprecedented event, holding up of the garland nomination so he didn't get any consideration because there would have been the votes to confirm it. there certainly would have been the votes. i think it would have been confirmed if there had been a hearing. i think it would repeat itself and maybe even be a longer period. i think it's ten minutes between the time, almost a year actually between the time it was heard in the nominee held off. it was almost a year from scalia's death. the nomination of a success and
i keep hoping it will get better but it never does. it always gets worse. i wish that i had a solution but i don't. >> i was going to ask about a solution. >> i don't have one. >> depressing. >> is extremely depressing. it's not like there's a log that you can change. the independent counsel law, which eventually burned both parties may agree to let it set. that can happen but this politics run of mark, i don't really see a solution to it. except for strength. which people are not known for. [laughter] >> after all these years of
covering federal digital system, how would you rate the ability to justice? >> i can't do that. i don't know enough about courts or city courts, they are very different in different parts of the country and in different states. that's sort of an unanswerable question for someone. i would but it's actually if you think about it, and answerable as you end of individuals as well. >> think of one descent, that surprise you and why. >> in the early days, and some of the sentencing cases, i think scalia's dissent, which traced back to his strong belief in the
power of juries. those were, i think in the beginning surprised me. but over time, i know them and expect them. >> ever since they saw you appear on our bg document, i assume you have interaction with the justice. >> i have some, along with them and less with some of the others. some i've known -- the no one's i knew best were once i knew them well before justices. i've known her since she was in her 30s and i was in my 20s. that's a long time. it's like 50 years. i first met her when i was in my early 20s and i was assigned to cover the supreme court and i didn't know anything really
about the supreme court. i was frantically reading everything i could and fortunately, i worked for the national service but it was weekly. i had time. i was not on a daily deadline. i was reading this brief and i thought myself, i don't really get it. i thought the 14th amendment was for african americans. risk construction. i would to the front of the reef and it was written by a professor and i called her up and said i didn't understand. she gave me an hour long lecture. i felt like a goose had been force-fed. [laughter] i was going to be fed off that evening. eventually we met and i got to know her. i've known her probably the longest of all of the justices. but i knew breyer when he was
chief counsel for the judiciary committee working for senator kennedy. i had met justice or such before he became a justice. but i didn't know him. i sat next to him i dinner i think. i knew kagan when she was in the clinton administration and mccarter in the administration even. the carter administration -- the obama administration. getting that mixed up. those are the people that i probably know the best, the once i've known the longest. but you get to know -- i do john roberts when he was a lawyer, arguing cases in between his extensive deputy fg and he's the common of npr and i knew him pretty well then.
so i've known him since we were very young people in washington. the reagan administration. >> are there any stories you could tell us, humanize them a little bit. they are all very human in their own ways. you know stories as well as i do. i miss all of the ones who retired and even some who aren't with us anymore. i knew justice brennan pretty well by the time he retired. i knew him in his retirement and i knew lewis powell in his retirement. very well. one of the most interesting stories i could tell you about lewis powell is that i was
having lunch with him one day, this was after his retirement. he would always order this large lunch, i hamburger, franchise, french fries, ice cream for dessert, i would order a salad and i would end up eating part of his lunch. he'd say, eat something. this was the days when row versus wade was really new and settled but he was part of the seven majority and i said i really was very surprised by his position. he said, you know me when i was a very young lawyer. i had a, there was a messenger who worked for the firm. a young african-american boy, he
called them, he said he was a boy. he was 18. he was living with an older woman, in her 20s somewhere. she became pregnant. one day, i got this call at the office from him and he was in tears. he asked me to please come to he lived. it was in the black part of town. i went there and his, the older woman was dead. she tried to abort her son. with a coat hanger. he was desperate, she was bleeding to death. justice powell said he persuaded the local prosecutors not to bring charges and so he didn't
do that. he managed to get him out of being, having a criminal record. he said from that day onward, i thought to myself, this is not the business for the government. this is not our business. we should not be legislating this. i just thought it was a very telling example of a very dramatic human experience that a judge had views of the law. >> the recent election, there's been a wave of women elected to the judicial office. recently including the black judges in the group. in houston. what you think about that? >> i think it's great. i cover it so long when there was no woman, how could i not think this is great? it's about time.
i don't imagine that women judges are going to be dramatically different than men judges but i do think they are different. i think they are more conciliatory by and large, able to broker assesses a little better and not everybody but my sisters a federal district judge in atlanta. believe me, she has the patience of a saint. she will say things to me like, i'm very embarrassed. i lost my temper in court today. i will say, what did you do? i kept telling the council not to do certain things in the kept doing it. i finally got so this off, i just threw down my pencil and said, i've had enough, i'll see you after lunch. this is her version of losing her temper. [laughter] it is not my version of losing my temper. believe me. [laughter]
, did you. >> most of the time, but not all of the time. the more sort of politically fraught cases, the more you are likely to see how it's going to go. if you know the characters, the justices and what they are, the first amendment case when kennedy was asking a lot of questions, he sort of knew where it was likely to go. there are times when i can and sometimes it just has nothing to do with anything political at all. in the grander sense, political. it's something like that. it's not easy to tell. every once in a while you get surprised by. >> is another one. you have any thoughts on acting
attorney general, massey matthew whitaker's opinion, when it was wrongly decided, the third branch does not have the authority to declare legislati legislation? >> i think would be unwise. to answer this. [laughter] what he thinks or doesn't think. [laughter] >> tell us about some of the questions of the court to be deciding in the next term. >> we could have, we do have a case about consensus and how you take the senses. and who, what kind of challenges they can bring. there's a case, i think we will probably revisit lemon versus chrisman and the whole idea of what the standard to be for
what's acceptable or not for the government to do and on government property in terms of religious expression. it's a joint cross on government property. giant cross. i think this will, there may be other cases, we could get the asylum case, the office seems to be intent on raising cases to the court to try to get, to stop things from happening in the lower court. it's been a little bit successful but not as successful as it would like to have been. it tried to week frog over the court of appeal and it has not been successful in that. so any of that could turn into a big deal but my sense is that the court very much would like to keep a low profile, as low a profile as it possibly can. at least for this term.
>> i think we have a few minutes. we're going to open it up to questions, maybe a couple. if you have questions, ed, have the mike -- >> any questions from the floor? >> my goodness. what a quiet group. >> why does the court appear so political today in what it's more political than it's ever been? why? >> i don't know that it's ever, more political than it's ever been. there was a pretty civil war court that was pretty political.
the size of the supreme court is only determined by statute. it has changed size ten times in its history. mainly for political reasons. you say you heard this, if it gets -- i think the chief justice understands this fully. most of the ideas you hear from liberal about american conservative, like term limits and things like that, it's going to happen and even if they did, it wouldn't change the court in the short run at all. the only thing that would, would be to change the size of the court. i don't think that's really on the horizon right now. packing the court has become such a bad idea and bad odor,
since president roosevelt tried it. i wouldn't put it out of the realm of possibilities. the court up to big it for its riches, it's got very unpopular by overreach in terms of the conservative. having said that, i think, until recently, there always was a lot back and forth. democrat voted, who are somewhat conservative and somewhat -- republicans who were interest to moderately liberal but the court over the last, i'd say since the reagan administration, gradually become more and more conservative. i think in large part because for a republican at least, especially about social issues, substantial part of the party
dates, cares so adamantly about it. so passionately about it. therefore, whether or not president say so, there are limit tests. there are many missed tests for republican candidates. it would be hard-pressed to imagine a democrat would nominate somebody they thought was pro-life to the court for example. it's not that i don't think democrats have some litmus test but there is no center of the court right now except for potentially the chief justice and he's a pretty conservative guy. it's not that you will never vote with the courts for liberals or that they won't be, the vote will be scrambled in other ways and other cases but on the big cases, the ones that people care about, so passionately in both parties,
the political pressure has been on the parties to nominate people who will be with them and i think that's probably more so, more true for republicans because they are a greater number of issues they care about so passionately. i don't actually think the court will ever reverse itself on things, same-sex marriage but i think it's entirely possible and unlikely that public accommodations laws that allow people to turn away customers based on their sexual orientation because of religion region reasons, but it might be as well. i think you're going to see more of this. the other, i perhaps in betraying my own views here but i think the democrats nominees on the court were appointed by
presidents, by clinton and obama, both ironically were professors at one time in their life. constitutional law but they didn't actually think the court should do that much. they believe the process, the legislative and executive process would work pretty well in the court -- they didn't actually have an ideological, strong ideological bent of the kind of people they wanted on the court. they want liberal folks like elana kagan and a middle-of-the-road rapport photo record. she's more liberal on this court that she was in the lower court judge. even dennis burke considered
centrist liberal on the court of appeals and i think i'd argue that if she were on a different court, she would still he characterized that way. but she is on this court, just like justice stevens was. he was considered the most liberal member of the course before he retired and i don't think he changed that much. he was a conservative, ford nominated him. he changed a couple of things but not anything big. the court changed. that's because republican presidents have a base that cares passionately about it, once conservative, very conservative, i don't use this term, ideologically. people who believe something very specific. how to interpret the constitution, how to view issues and the mantra was, no more suitors.
that is the mantra for republicans and that is why -- it's not any secret that president trump's farmed out his choices to the federal society. that's where that list came from. so when you have that kind of political pressure and presidents who are inclined to accept that pressure, that's it. that's the answer to the wife. >> one more question. put on a piece of paper, i see you waiting are hand. [laughter] >> i didn't have a chance to read it on. thank you so much for the wonderful conversation. i wonder, given your perspective on the court, whether you have an opinion about legal education in the u.s.? whether there is something more,
better, different in law schools that the u.s. should be doing and given all the issues that are facing us right now. >> since i didn't go to law school, not sure i'm the best person to answer that. that's number one. number two, i think it's the bar associations that are, need to be stricter. enforcing ethical concerns. the fact that people think they actually can be there through, either through nondisclosure agreements or whatever, or agreements such as the ones that existed at the national inquir inquirer, that have been finally confirmed in the : plea, the fact that those things exist, i
don't actually think they are ethical. it seems to me the bar associations are to do more on that score. muscles teach ethics but in law school, nobody seems to care. that doesn't help very much. >> thank you. i know we invited you, you said yes when you heard about the topic. we can't thank you enough for being here, during us. i know you have to rush off to flight. >> essay due. [laughter] >> if you have any final comments -- >> i just, keep fighting the good fight. if judges don't speak up for their own independence, no one else is going to. it's really important, i think that as associations, and i
assume you range at this association from very conservative to very liberal but you do presumably agree on the necessity of having judicial independence. not having interference of not being beaten up by political figures so that you can make your jobs more difficult, to make it more difficult for you to take on popular positions. some of you are elected, some of you aren't. i wish all of you were not elected. i don't think that helps the independence of the judiciary. that also is a radical proposition. my hat is off to people who speak up in their own defense. you know that the importance of their own independence, more than the people you be trying to persuade, but when you see a case that, or somebody took a
difficult sand and eventually was vindicated, write it down. use it as a narrative. for a future speech or a future interview for something like that. it's always the counterintuitive thing that persuades people. when they say, that person was just awful and he should've gotten 30 years. it turns out that whoops, he was innocent. he gets proved by dna. you need to remind people, they could be that person. there will be some future technology that might vindicate them or that even if there is no technology, the system can just sort of grind people up. it's up to judges to at least float down the grinding process. thank you for having me. [applause]
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