tv National Judicial College on Verbal Attacks Against Courts and the Media... CSPAN January 3, 2019 6:49pm-7:29pm EST
but someone who is loved. you might bring us together. one of our board members i will start out a couple weekends ago and i just wanted to pass on his grievances today.>> i want to start off with a softball question, what is your favorite moment with the supreme court? >> i can't say that there is a moment, but it would probably best be symbolized by the
courts announcement of its decision in the affordable care act case. i'm one of the very few journalists who continues to go up to the courtroom to hear the announcements of opinions. the reason most people don't as they have to get something out right away and so if you are in the press room, you can hear the announcement of the decisions that mainly what journalists do is they take the opinions, they do a quick scan of synopsis and they tried to write paragraphs for the web. they did that and they got it wrong. why they did not get it wrong, a lot of people did. the question we all thought was the big question, whether they
violated the constitution limits on congresses power, that was decided against president obama's signature legislation. however, the chief justice who wrote the opinion decided that nonetheless this was tax and it could stand. no court had ever decided that for these particular people. it was a very dramatic moment and the chief justices read into it. when they get to the congress cause and said that, i am still sitting there waiting and he does this incredible flip and it was a very dramatic moment and i went tearing down the stairs, we didn't screw it up and thank goodness because we
had 2 editors who had the opinion in front of them, check it again and we didn't screw it up and i was live on the air moments later and i think those moments of great drama which tend to be when cases are decided are very nerve-racking for a journalist but they are the best. >> it seems like when you report out and you get the gist of the opinion message to the public, how do you do that? >> the worst is usually the 11:00 newscast or 1030 if i can get down there by then, but when i am on the air at 11, it is prime radio time on the west
coast and if i am live i might be live for a while. you are really trying to digest what is there. sometimes, i don't feel poised at all. are critical questions i am asking myself that i have not answered and by scanning whatever i can scan and using every trick i have as much as i can because you can't read the whole thing. you read the synopsis, i almost always read the beginning and the end and look to see what they are most test off about. sometimes that doesn't tell me those important questions and occasionally there is not an answer.
>> we asked our judicial alumni to come up with questions for you.>> some of them i might not be able or willing to answer.>> we also ask our judges to greet you. >> thank you, that's better than i used to get in college.>> what do you think of roberts remarks to obama? >> they were appropriate and i think it is good that he finally said something instead of just ignoring it. having said that, when you however generously put your foot in the pigpen, you end up
with you know what on your leg. as soon as he said that, my hat is off to mark truman who had the sense to ask if there was any reaction, i'm so used to there never being a reaction and no one else asked. mark confessed and he wanted to see if there was another story he could write so he asked the question. my hat is off to him because it provokes him to issue this very measure and after i pounded out for digital i went running upstairs and i said what time did he get off the golf course and they said we are just waiting right now. the tweets are predictable and
i'm sure the chief justice does not regret having said anything but i doubt they will do it again. >> a recent survey of our alumni found that 90 percent believe judicial independence is threatened by a variety of sources. what do you think is the greatest threat to the judiciary? >> it's what sandra day o'connor was campaigning against and about which is a threat to the judiciary and the notion that people didn't know much about civics these days. i think this will help a little
but they will not understand the judiciary or the function. because people don't interpret constitutions or laws, everyone can have his own set things. liberals can say they are here and there and everyone who calls themselves an original is there for the constitution as it is not legislated so it is very difficult to have a set body of rules that you can present to people and say this is their job. that is the first thing.
the second thing is trumps attacks are extremely damaging. they make judiciary look like another political institution which if it ever becomes that, it will have tarnished out of the crown. lastly, i think that although the president has named conservatives, there are others who never would have passed in any administration of either party ever before and that is partially in the president's direction. >> you have seen the processes through the years and recently we have seen the lack of confirmation for president obama
and the confirmation is there for the hearing, what do you feel are the long-term ramifications of these events? >> i do think the confirmation hearing should look into someone's background completely and when they are rest that makes it that much more difficult to do it with any propriety or respect for the nominees privacy in any way. this is true in the confirmation hearings of justice thomas and even more so true in hearings where the time
schedule was honest the train from japan somewhere and no one was going to interrupt that. is not to say the democrats performed admirably, they did not figure out what to do ahead of time and of course the story leaked. then, i think that is one of the problems. this is a political process and it has become more and more political and unprecedented holding up a garland nomination said that he did not get any consideration because there would have and votes i think if there had been a hearing. it will maybe get to be a
longer period of time but between the time that vacancy occurred in the nominations, there were 10 months where it was held up but it was almost a year to the nomination of a successor. i keep hoping it will get better but it never does, it always gets worse and i wish i had a solution, but i don't. i don't have one. >> kind of depressing. >> it's extremely depressing. and. you know it's not like there is a lot you can change. the independent counsel law which eventually burned both parties that can happen.
this is politics running amok and i don't see a solution to it. except for strain which people are not known for. >> after all these years of covering our federal and judicial systems, how would you rate disability to defense justice? >> i can't do that. i don't know enough about state courts, city course, they are very different in different parts of the country, so that is an unanswerable question for someone like me and i would bet it is unanswerable for you as individuals as well. >> thinking of one dissent that most surprises you and why?
>> well, in the early days in some of the sentencing cases, i think this alternates back to their strong belief in the power of jury, in the beginning they surprised me we would not expect them. >> i'm assuming we have a lot of interaction with the justice system?>> i had some and less with others. the ones i knew well before they came justices, i knew her since she was in her 30s and
that is a long time. it's like 50 years and 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 and i was frantically reading everything i could and fortunately i worked for the national observer but it was weekly so i had time. i was reading this brief and i thought to myself well, i don't really get it. i thought the 14th amendment was for african-americans and i flipped to the brief and it was written by a professor and i said i didn't understand. she gave me an hour-long lecture and i felt like a goose
by the time i was done. eventually, we met and i got to know her so i have known her the longest of all of the justices. i knew steve breyer when he was chief counsel for the judiciary and i have met justices before they became justices. i knew her when she was in the clinton and carter administrations. the clinton administration and the obama administration. so, the people that i probably
know the best are the ones i have known the longest and i knew john roberts when he was a lawyer arguing cases in between his deputies and he used to come in and do interviews with me and i knew him pretty well then. i've known him since we were very young people in the washington and reagan administration.>> either any story you can tell him to humanize him a little?>> they are all human in their own way. you know the stories as well as i do and i miss the ones who retired and even some who are not with us anymore. i knew justice pretty well by
the time he retired and knew him and his retirement. i knew luis and his retirement very well and one of the most interesting stories i can tell is i was having lunch with him after his retirement and would always order this large lunch. hamburger, french fries, and ice cream for dessert. i would order a salad and i would end up eating part of his lunch. i said to him these are the days he was part of the majority and i was very surprised.
when i was a lawyer, there was a messenger who worked for the firm and a young african- american boy he called me, he was 18. he was living with an older woman in her 20s somewhere. she became pregnant and one day i got this call at the office from him and he was in tears and he asked me to come to where he lived which was in the black part of town and i went there and the older woman was dead and she tried to abort herself with a coat hanger.
it was desperate, he came home and found her bleeding to death. he persuaded local prosecutors not to break charges but he managed to get him out of having a criminal record and he said from that day on what i thought to myself this is not the business of the government, we should not be legislating this kind of behavior and i thought it was a telling example of a very dramatic experience and it was a view of the law. >> this includes the judges in
houston, what do you think about that? >> i think it's great. i covered the court for so long but this is great. it's about time. i don't imagine judges will be dramatically different but they are. they need a better consensus and not everybody, my sister is a federal district judge and she has the patience of a saint. she will say things to me like i am very embarrassed, and i will say what did you do? she said i kept telling the counsel not to do certain
things and they kept doing it. i finally got so passed off i threw down my pencil and said i will see her after lunch. this is her version of losing her temper. it is not my version. believe me. >> can you usually predict how this will go? >> i can most but not all of the time and the more thought a case is the more you are likely to see how it will go. if you know the characters in the justices, you sort of knew where it was likely to go. there were times when i couldn't and it really has nothing to do with anything political at all
if it is a patent case or something. it is not easy to tell and every once in a while you get surprised. >> do you have any thoughts on matthew whitaker's opinion of marbury versus madison and she declares constitutional legislation. >> this is what he thinks or doesn't think. >> okay. telus about some of the questions the court can be deciding in the next term that relates to the future of democracy?>> we do have a case
of the census. what kind of challenges they are bringing. we will probably revisit the whole idea of what the standard should be for what is acceptable and not acceptable for the government to do and this expression is a giant cross on government property. there may be other cases here and the office is up to the court to stop things from happening in the lower court. it has been a little bit successful but not as successful as it would have like to have been.
any of that could turn into a big deal but my sense is that the court would like to keep a low profile as it possibly can, at least for this term.>> we have a few minutes left, we can open it up for some questions so if you have any questions, and has total control. any questions? >> mike goodness, what a quiet group. >> the question is why does the
court appear so political today and it's more political than it's ever been and if that's the case, why? >> after all there was a pretty political court and the size of the supreme court is only determined by statues and it has changed sides 10 times in its history, mainly for political reasons. i think the chief justice understands this fully, most liberals are terrified about a conservative court and i think even if it did happen, they wouldn't change the court in the short run at all.
the only thing that would would be the size of the court. i don't think that is really on the horizon right now because packing the court has become such a bad idea but i would not put it out of the realm of possibility is the court that very unpopular by overreach in terms of conservatism. having said that, until recently, there always was a lot of back and forth. democrats were conservative and
republicans who were moderately liberal, but the court only lasts since the reagan administration has gradually become more and more conservative. i think in large part because for republicans at least, especially about social issues, a substantial part of the party base cares so adamantly about it and therefore whether the president say so, there are limits. there are many tests for republican candidates, they would be hard-pressed to imagine a democrat would nominate someone pro-life to the court. it's not that i don't think democrats have tests as well, but there is no center of the court right now except for potentially the chief justice
and he is pretty conservative. it's not that he will never vote or that the vote won't be scrambled in other ways and in other cases, but on the cases people care about so passionately in both parties, the political pressure has been to nominate the people who would be with them and that is more true for republicans because there is a greater number of issues they care about so passionately. i don't think the court will ever reverse itself on same-sex marriage but it's entirely possible and likely that laws will allow people to turn away customers based on their sexual orientation because of religious reasons.
you will see more of this and i am perhaps betraying my own views here, but i think the democratic nominees on the floor were appointed by clinton and obama, both ironically were professors at one time in their lives but they did not actually do that much. they believed the legislative process would work very well and they did not actually have a strong ideological bent of the time of people they wanted on the court. they wanted liberals and
senators who had middle-of-the- road liberal voting records and i think she is more liberal on this court than she was as a lower court judge. even a considerable centrist liberal on the court of appeals, i think i had argued that she would still be characterized that way. this is just like justice stevens. they were considered the most liberal and i don't think they changed that much. that is because republican presidents have a base that cares passionately about very
conservative and i don't use this term lightly, idealized. this is how to view issues and they have no more suitors. it is not any secret but they are adding to the society and that's for the list came from. when you have that kind of political pressure and a president who is inclined to accept that pressure, that's what you get so that answers the why. >> i think we have one more question. >> if you don't mind putting your question on a piece of
paper, that would be great. >> thank you so much for the wonderful conversations. i wonder if given your perspective if you have an opinion on education in the united states and whether there is something different they should be doing than just giving all the issues that are facing us right now. >> since i did not go to law school i'm not sure i am the best person to answer that. i think it is probably the bar association will be stricter and forcing ethical concerns. people think either through nondisclosure agreements or whatever, we have the ones that
existed for national inquiries that have been finally confirmed and the fact that those things exist, i don't actually think they are very ethical and it seems to me associations are doing more on that score. obviously law schools teach ethics but the minute you get out of law school no one seems to care and it doesn't help very much.>> thank you, i'm glad you said yes when we invited you so we can't thank you enough for being here joining us, i know you have to rush off to a flight. >> yes i do. >> if you have any comments to the press?
>> keep fighting the good fight. if judges don't speak up for their own independence, no one else is going to. it is really important i think that associations range but you do presumably agree with the necessity of having judicial independence. this will not be beaten up by political figures to make your jobs more difficult and you can take unpopular positions. i wish all of you were not a elected. that is not a radical proposition. my hat is off to people who
don't speak up in their own defense. the importance of your own independence is more than the people you will be trying to persuade but when you see a case where someone took a difficult stance and eventually was vindicated, write it down and use it as a narrative. for future speech or interviews or something like that. and is always counterintuitive things that sway people when they say oh, that person should have gotten 30 years and it turns out he was innocent and it gets approved. you need to remind people that they can be that person that there will be technology that might vindicate them even if