Skip to main content

tv   Key Capitol Hill Hearings  CSPAN  May 7, 2016 2:00am-4:01am EDT

2:00 am
it takes a significantly larger increase in absolute dollar gains for people to move up the income ladder. still, a lot of researchers joke that if you want the american dream, you need to move to denmark. is of the middle class larger in canada? guest: i don't know about that. we did look at what could differentiate the united states and canada. canadians defined the canadian dream differently. they believe that the government has a different obligation to the population than we do. public polling did not reveal that difference. canadians define the canadian dream very similarly to the way americans do. there was no discernible difference in the public attitude toward government
2:01 am
responsibility to support a quality of opportunity. americans very much believe there is a role for government to play in helping everyone move up the economic ladder, especially people who are working hard and playing by the rules and doing all the right things. europe usewestern the term middle-class? i don't know that it is as critical a part of their discussion as it is for ours. i would like to take something from that wonderful question from the caller. it is true that in these technician, or decline of the american middle class over the last corner century has coincided with a massive rise of poverty for millions of people around the world and that the opening of global markets and advancement of technology has absolutely helped, and the liberalization of economies in china, we have far fewer poor
2:02 am
people in the world today than we did a quarter-century ago. that is amazing and something everyone should celebrate. it is not true that that is a necessary trade-off. there is no reason to look at the distribution of global income and say that money had come from the american middle class or the western middle-class to go to those people. the simple counterfactual is if america had taken some of that money away from the very rich and giving it to the global poor, that would have been just as efficient as a transfer. there's lots of good economic research on this. suffice it to say that free trade has a role to way in this. this is a huge point in the election right now. the rules of free trade, the way free-trade has been conducted i think has absolutely contributed to where the money has come from and where the money has gone. we should not be confused by saying just because the middle class has stagnated in america, that is the only way people could get out of poverty
2:03 am
globally. , from a studyreer that you did recently. the state of american family finances. many families are unprepared to deal with financial emergencies. over the course of the year, most families experience financial shock. it can cause significant strain. unfortunately these events are often costly. spendsical household half of its monthly income on these shocks. once such a shock occurs, the least expensive solution is for families to return to their liquid savings, funds that can be accessed quickly. but many households have very little savings in the typical household cannot replace even one month of income through easily accessible funds.
2:04 am
guest: this is the perfect storm i was referencing earlier. what we are trained to do with our research is think beyond income. income is a really important metric for understanding where a family falls in the overall distribution, but it is not sufficient if we want to understand whether they are financially secure. our research has been looking at lots of different metrics including incidents of financial research we have done shows that 60% of americans experience an unexpected financial shock in the last 12 months. the typical shock costs $2000. most families don't have that kind of liquid savings on hand. and so when they are experiencing a financial shock in addition to fluctuations in their income, fluctuations in expenses, it leaves them in a precarious place. they don't have the savings and
2:05 am
they don't have the wealth. it becomes a cycle of not having enough and being constantly stressed and behind. host: the april job figures are out. bureau of labor statistics. unemployment rate, 5%. jobs added, 160,000 jobs. give us a quick assessment. guest: a quick reaction is that is lower than some economists expected. it is still a decent number, a good number. it is less than the sustained rate that you would want to start seeing continued wage pressure coming out. the unemployment rate being at 5% is a good thing. it probably has farther to fall, frankly, to bring people back into the labor force. the tighter the labor market, the faster wages go up for everybody is the general rule of economics. we want as much job creation as possible.
2:06 am
but growth has been very low. we can't expect to be adding 200,000 jobs a month in perpetuity with growth less than 1% annualized per quarter. it is a way of saying this is not a surprise. it would to me set off a small amount of alarm, about is the economy needing a little more juice to get back to that place where we can have a comfortable wage growth we are just going to see set in? host: robert, maryland, thank you for holding. you're on with our guest talking about the state of the middle class in america. caller: good morning. the one thing -- i might -- i'm a pipefitter. i am watching the construction field be decimated by the amount of cheap labor coming across the southern border. you can't get on a jobsite if you can't speak spanish. you can look at the classifieds,
2:07 am
you see that all over the place. the politicians increasing these visas bringing in more cheap labor, they are doing everything they can to hurt the middle class with those two items alone. the politicians are forcing companies to do these things because they are taxing them to death. in the state of maryland, they are taxing me a flush tax. right now, i am paying for the rain because i have a rain tax. they are pushing the companies out. there are so many different tentacles to this thing. you are pushing companies out of the country in order to make profit. the politicians and all of the regulations are what is killing us out here. look at paul ryan. this guy is pushing these h-1b visas to bring more cheap labor in here. to sit there and say there is no inflation, i go to the grocery
2:08 am
store once a week. a loaf of bread is two dollars. that is ridiculous. do you consider yourself to be middle-class? caller: this year, i made under $30,000. there were better times. like i told you, i'm a pipefitter. we put pipes in the ground. the way they push the labor down, bringing these illegals into this country. we run a $19 an hour job down to $15 an hour. it has gotten so bad. things are -- it has got to stop. host: that is robert in maryland. guest: in general, the complaints about immigration resonate most in the construction industry in the following way. we have seen an absolute job loss in construction compared to
2:09 am
the previous levels. that has nothing to do with immigration. that is the burst of the housing bubble. we have seen, and this is because of immigration, an absolute job last for native born americans within construction. there are a few nativeborn americans working in construction than there were before. on the other hand, when i talked to people who run jobsites and carpeting firms, they say we would love to hire english-speaking nativeborn americans to do this work, but we can't. so the color is right. wages and construction or any other field that see a large amount of competition will fall so that there are more people for if you are number of jobs. wages will fall. the research on whether immigrants hurt actual median wages for typical americans
2:10 am
tends to find a fairly small effect localized mostly to people without high school degrees. even that is controversial. all of that said, the frustrations robert is expressing are exactly the frustrations you hear going on around the country and that is absolutely correlated with the rise of donald trump. working-class americans, particularly working-class american men who feel frustrated about taxation going up and government regulation intruding upon their ability to make a living, that is the sweet spot home run fastball for donald trump. i think robert has articulated very well the frustrations that are behind that. host: ray is calling from englewood, california. ray, good morning. tell us about yourself. caller: good morning. i'm an african american male. i was born and raised in california. quickly, i followed my childhood dream, got into the aerospace
2:11 am
business as a designer and worked in the industry until it pretty much died. because of the aforementioned regulations and what have you. the last c-17 flew out of long beach a year and a half ago. i went down to see it. but to my point, i said, what best say to my fellow americans to describe the situation i think we are in? you have to go back to when i was working in aerospace. i would go on job assignments and i ended up in cumberland, maryland. there was a position across the border in west virginia. i can't tell you what i did. it required secret clearance. but i had a security guard that i became acquainted with who would walk us to our car at night. we got into a conversation about america and where it was going.
2:12 am
she said something that was profound. i will never forget it. she said, mr. davis. we live in america. i know they have the classes, the rich, middle-class, and poor. she says the way things are going, you're going to look up one day and there is still going to be the rich, but there is only going to be the poor and the puddle. i chuckled. what are you talking about? she said you heard me. the puddle are the people living hand to mouth who are waiting for something in a mail to save them for another month before our the folks who used to be in the middle class but now, it is a rat race. one fork in the road and you are in a ditch. the rich, she says the rich, they have money. they can hang in and hold on. that is how i feel it has
2:13 am
transpired for me. i was doing quite well in aerospace. but we all know how that ended in california. i bought my first house at 23 and that is the only thing that is saving me. living in englewood, you hear about this football team moving back. that is what i am going to get by on. i will sell my real estate when it spikes. i have got to leave the state. that is the only way you will have any sort of quality of life when you retire. host: that wasn't ray in california. guest: that reminds me of survey work we did where we asked people if they felt like it was more important to be financially secure or to move up the income ladder. 92% of americans said they were just more interested in financial security, financial stability. i think that underscores all of the conversation we are having today, the idea that families feel like they do not have
2:14 am
that kind of stability. more than trying to get ahead, a lot of americans are trying to tread water. his comment about retirement security resonates considering research shows that one in five americans don't think they will be able to retire. they don't have any plans for. they don't think they can afford it. host: from a washington post article that you wrote in 2014. the stock market is soaring. the unemployment rate is finally retreating after the great recession and the economy at a -- added 21,000 jobs last month. all of that growth has done nothing to boost pay for the typical american worker. average wages haven't risen over last year after adjusting for inflation. real household median income is still lower than it was when the recession ended. make no mistake, the american middle class is in trouble. could you write that today? guest: i think the figures would
2:15 am
be different and i would be more optimistic. i would like to point out that that story was about aerospace in california. in downey, california, and the decline of a rocket plant and a town waiting for something else to come along and replace it. very much like what our caller just described. downey was not at lucky enough to get an nfl team. today, the situation looks better for the middle class. it doesn't look right. it is nowhere near where we thought it would have been after a typical recession. we didn't have a typical recession. we have seen little bits of wage growth like we talked about. we have seen sustained job creation over the last year and a quarter since that story ran. a ticke seen a bit of up, although not a time, and consumer confidence, people's optimism. presidents obamas rating is going up.
2:16 am
we are still not in a good place. when you look at the long view, it is rough. even looking at the longer view of this administration, i talked to vice president biden about this a couple months ago. they asked to be judged on how well the middle class is under their watch. by that judgment, they have failed. the vice president said it is a fair criticism, and we think we would have succeeded more if congress had passed part of our agenda for the middle class. but the typical american family still makes less today than they did when the recession started. that is mind-boggling. host: margaret in dover, new hampshire. good morning. tell us about yourself. caller: i think the gentleman stole my thunder when he talked about the rich, the poor, what i was going to name my book was the house, the have-nots, -- had.s, and the have
2:17 am
host: give is a quick snapshot of your life. caller: i'm the daughter of a swedish immigrant who came here at 17, and by the time he was in his 50's, we had a nice business and with a fifth grade education, was on the bank board. i have a university degree. i have been a social worker, a personnel director, a union organizer, and i have spent my life, early life as a republican. but i am a big fan of bernie sanders right now. host: do you feel as secure economically today as you have throughout your life? caller: this is the worst. i have inherited a home after taking care of an elderly mother for a decade. it needs paint, the chimney cleaned, all kinds of work. i need a car.
2:18 am
it goes on from there. i consider myself lucky because i can have three good meals a day. and a roof over my head. host: thank you. erin courrior. a lot of our research has focused on how people if they come from a low income background are able to move up into the middle or even the on -- even beyond the middle. the things most impactful for that movement included things like post secondary education, even the neighborhood in which someone lives, and also having a second earner in the household. that is something that i think a lot of americans felt did not used to be the case. they can recall their parents being able to survive with one earner and a stay-at-home parent and they were still considered
2:19 am
middle-class and could take vacations and the research more and more is showing the need for that second earner, that second source of income coming in to a household to move a family of -- up the income ranks. all of these pressures across, a post secondary education, a need for more than one income, point to the challenges so many american families are facing as they try to get by. host: have you done better than your parents? guest: that is a great question. i am focused on whether i am financially secure just like everyone else is focused on whether they are financially secure. host: have you done better than your parents? guest: i would love to ask my parents that question. i think i have done as well as my parents. my parents worked really hard to make sure both their boys could go to college. i feel incredibly blessed my
2:20 am
that. my father is probably laughing at me. i have written a couple of articles about how their generation has destroyed america. but my parents personally have been wonderful in that regard. my dad is a lawyer, my mom is a librarian. small town, oregon, solidly middle-class, upper middle class in our town. i think they have a son who is a newspaper reporter and a son who is a tenured professor. i think both their boys would say we are doing as well as our parents had hoped for us. i also think that makes me rare among the kids i went to high school with. that many of their parents had better paying manual labor jobs in town of that allowed them to have a solid middle-class living and several of those kids are not able to do as good, good paying work even know they are just a skilled with their hands as their parents. this is a constant research frustration of mine and question.
2:21 am
what happened in america that the talents of those classmates of mine aren't utilized in the same way as the talents of their parents were? that is another part of the middle-class identity that we have. it is not just am i making as much money as my folks, it is do i have the same sense of fulfillment from the work that i do being valued that they have? morning.s article this obama unlikely to meet his goal on manufacturing jobs. what percentage, how many manufacturing jobs have left the united states? and in what time period? guest: that is outside of the scope of our research. but one thing i want to take a stab at, especially based on what jim just said is this idea of upward mobility across generations. what the data on that makes
2:22 am
clear is that the vast majority of americans do have higher income than their own parents did. 80% do. but when you look at whether that increase in income is enough to move them to a ng of the wrong -- ru economic ladder, that is where the story becomes more of a glass half empty and we see a full fifth of americans have higher family incomes than their parents did but have actually fallen to a lower rung of the income distribution because others around them might the having larger income gains. when we think about whether people today are better off than their parents, it is important to think about both of those things at the same time. not just whether people have higher levels of income, but also whether they have made any progress claiming the income ladder over a generation. host: elaine in eagle river, alaska. hello. caller: can you hear me?
2:23 am
host: are you middle-class? caller: i would say so, we are. host: what is middle class in eagle river, alaska like? caller: the earlier caller mentioned a loaf of bread being two dollars for a loaf of bread. up here, it is six dollars for a loaf of bread. the amount of income you need up here is higher. what i would like to bring to the table is some optimism. my husband and i have been married almost 23 years. we started when we first got married. i don't know if anyone, if you have heard of dave ramsey. he has a program, a baby step program for what he calls financial peace. that is what we did.
2:24 am
we didn't make very much money when we first got married. i was in school for physical therapy. my husband was making $1600 a month as a second lieutenant in the military. we saved and lived according to the principles, very similar to the dave ramsey financial peace university. it is so true. it truly works. the government is not going to solve our personal problems. it is us taking personal responsibility and maybe not having that five dollar latte and saving. it does pay off. i just want to bring some optimism to the table. that middle-class is very achievable, but we have to be intentional with our money and with our lives. host: the bulk of entitlement
2:25 am
program spending goes toward the middle-class. this is the center on budget and policy priorities. article in the washington post. guest: we have done some research looking at this with interest on which portion of the budget is mobility enhancing and how much of that investment gets spent at different parts of the income distribution. because of the tax code, particularly around things like the mortgage interest reduction and incentives for putting money in retirement accounts and other very smart mobility enhancing type investments, what we are left with is that the vast majority of low income americans don't reap any of the benefits of that mobility investment. middle and upper income americans get the vast majority of those tax benefits. one of the things we would love to see, particularly a group of bipartisan advisory board members to our project had suggested was thinking not about
2:26 am
whether the government needs to spend more money to enhance economic mobility, but maybe just think about the ways in which that money is targeted so that lower income families who are the ones who are the least likely to experience economic mobility over a generation are receiving more of that mobility investment. host: ed in fayetteville, north carolina. caller: good morning. for the benefit of young folks, millennials, so we can get a better perspective, could your panel please compare and contrast obama's first seven years compared to what reagan's first seven years? these same people who are complaining about the economy, they are the people that voted for obama twice in a row. the lady from new hampshire, i don't feel sorry for you. i worked my but off.
2:27 am
i have two jobs and i drive for uber. i am not ashamed to say that. i was taught don't have a kid unless you can afford to raise a kid. don't get married unless you can afford to provide for your wife and whatever. host: do you consider yourself middle-class? caller: yes. i worked my but off. host: have you done better than your parents? caller: yes. my dad is retired military. do you think you've had the same opportunities as your parents? caller: we are all given the same opportunities. that is what the united states is all about. host: we have to leave it there,
2:28 am
in fayetteville, north carolina. we have 30 seconds to put a final period on this conversation. guest: i am struck by the range of people that we have heard from today. the frustrations, despair, and the optimism. that is a nice cross-section of what i hear from middle class folks are in the country. aaron curry are with pew charitable trust. thank you for being on the program. >> coming up on saturday isning, how congress addressing the rising number of a student loan defaults. and then corresponded dealer when will analyze the recent job numbers. court, willseven discuss her story on an unusual federal grant awarded to relocate an entire community in louisiana struggling with
2:29 am
climate change. it is the first such grant of its kind. finally, we take a look at the high school advanced placement from with teachers lincolnshire, illinois. they will discuss the plan for the preparation test and answer questions. be sure to watch "washington journal" on saturday morning. join the discussion. book tv has 48 hours of nonfiction authors every weekend. here is some programs to watch for. 1:00aturday and sunday at p.m. eastern, they are at the 13th annual black writers conference in new york. it features conferences on hip-hop. and it race and gender with cora daniels. -- panels onniels
2:30 am
diversity in the digital age. reed and that gordon peter on a discuss thomas jefferson. on sunday night at 9:00, peter marx. bob benmoscheow revised aig after the financial crisis. peter marx is interviewed by bethany mclean. the only person who thought this was possible, essentially. the government did not think this was going to happen. cut -- company did not
2:31 am
figure was happened, and the american people had no expectation this would happen. that idea that he was a little crazy, you had to be a little crazy to take this on. he was the right kind of crazy. tv.org for the complete schedule. conference,cial john paul stevens and elena kagan discuss their careers and the daily life of a supreme court justice. circuitfrom the seventh judicial conference in chicago. it is 50 minutes. >> let me begin by offering our thanks and welcome to our two circuit justices. john paul stevens and our current circuit justice elena kagan. generouslym has a
2:32 am
given their time to be with us this evening, and i'm very much looking forward to this conversation. thank you to both of you. [applause] >> justice stevens, let me start with you. you joined the supreme court on beinger 19, 1975, after confirmed unanimously by the senate. he left on june 29, 2010. the world changed quite a bit over those 35 years. do you think the supreme court also changed, either in the nature of the cases or in the way the justices went about daily work, or in any other way you might identify? or do you think the court is a constant? briefing first say one
2:33 am
-- briefin thing. i want you to know that he also was a very good caddy. [laughter] caddied for me more than once. to answer your question, i'm reminded of barren white, he said that every time there is a new justice on the court, it is a different court. you cannot summarize the changes in terms of time that goes by, but each member of the court changes it and it is a different institution. that is the most important change that ever occurs on the court, the appointment of new justices. assuming there will be another new justice in the court someday
2:34 am
, i also should say i am very happy to say my successor is a very excellent justice, because i was never disagree with her. [laughter] although i think i might have disagreed with her on the case they decided this morning. 4-4,they could've been they struggled to keep the case alive. i'm sorry, what was the question? [laughter] how the court has changed over the. in which you've been involved with it. facte major change was the that they do a much better job of managing their docket. take twice as many cases as they are capable of hearing, which we did. we had many to many cases.
2:35 am
the court is better at managing its docket than it was. i assume that will continue. say, every court is different when a new justice comes on. >> how many justices came and went while you were on? >> i am not sure. i think about seven or eight. sandra, david, tony, nino. , deep fryer -- stephen breyer. >> and pamela. >> that was a lot of change. >> yes, a lot of change.
2:36 am
kagan, you have been on the court not quite as long. forwardwe are looking to this anniversary in the future. one of the things that has changed, certainly since i was a law clerk is the way the court uses technology. we used to have typewriters, which was a device, for those of you who are young, it was not hooked up to the internet. you created text rackley -- directly. how has technology changed the way the court does its work? >> can i say something about collins? congratulations collins. now i know to come to you for a caddy. [laughter] can i also say something about being up here with john?
2:37 am
the last time we were in public together was six years ago. date, john wally b 102.- will only be it is a special thing to get a phone call from the president and he says he would like you to be on the screen court. but it is a special thing to know you are the successor of john stevens. that is a special honor and it makes a quite extraordinary. i think all of the time about all that he accomplished in the seat i now hold. an inspiration to me in anything i do. a few. -- thank you. [applause] so technology.
2:38 am
i think the way you framed the question is that technology has changed the court since we were clerk there. it has changed, but maybe not as much as you would think. the court, it was about 25 years after i started. in this 25 years, and information revolution had taken place. we do not use typewriters anymore, we still have messengers who literally walk memos around the building. didn't none of you hear any of that? >> better. people here the justice before? >> ok? yes?
2:39 am
should i use both? how about now? now it is on. look, this is not the most technologically sophisticated institution you are ever run across in your life. but really, what is to pay -- institution made up of people all over 55 is? we do our best. i think all of us understand that aside from just the court running well, we have to understand technology to handle a lot of important cases. i think we all make a great effort to learn what we need to know to decide those cases in a sensible way. it is good that we have clerks who are young and can instruct us on things. --etimes i think my clerk
2:40 am
the most important thing my clerks do for me is to tell me what snapchat is or something. [laughter] >> i understand that. i have been known to check with my son, who is sitting right here, about twitter or instagram facebook --or facebook i knew about, that is passe. so, another interesting contrast. both of you have spent some time working in other branches of the government. justice kagan was the solicitor general and before that had worked in the white house and some capacity. and justice stevens served as counsel to the sub council on monopoly, the house judiciary committee. it will be interesting to know whether or how that experience outside the judiciary affected
2:41 am
your understanding of what the courts do, and-- asgive you a perspective opposed to those who went straight into judicial work? this sincet about you sent me a copy of the question. >> you are not supposed to tell. [laughter] >> that was probably one of the most important parts of my education. many times i think back of the experiences i had on the subcommittee. , younk that kind of work get a feel for legislation that is not available in any other source. you cannot read in books, and you appreciate the fact that the legislative process is very different from most other --cesses your involved when
2:42 am
involved in. i think steve fryer has the same feeling. he learned a great deal as chief counsel for the senate judiciary. -- the senate, rather. specificpin down remember,f things i but i am constantly aware of the experience. it helped me a great deal and understanding what goes on in the law. , i i remember one time explained in some detail to one of the members what might happen with legislation down the line, and he got back and said to me, we will of the judges figure that out.
2:43 am
the point of it is, the congress regards the judges as partners in projects rather than adversaries and totally separate branches of government. i think i got a feel for that fact, members of the legislature really look on the judges as allies in our common work. i feel the same way about congress, although i must confess that in recent years congress has become much more adversarial in their work than when i was working there. >> it sounds to me, just a aslow-up, you did not end up a skeptic about legislative history, which are late colleague justice scalia certainly was, perhaps based on his own exposure. is that right? have a different view
2:44 am
on that? >> i have a very different view from ninos, i will cut you that. that is not unusual. [laughter] think debating legislative history was basically nino against the world. i don't think anyone on the court has even considered the extreme position that nino took. he was an extraordinarily persuasive person, and rather than put in some legislative history and then court a separate opinion debating whether it was appropriate to use it legislative history, many opinion writers i think simply do not cited to avoid
2:45 am
unnecessary debate. specifically mention that -- -- salmonella when he came on the court, there was an argument that sam put in an nino tried to persuade him to put it out, and nino was unsuccessful. relevantht it was very and he used it successfully in the case. differencemarked the between those who are firmly against the and those who think it is appropriate. i really think there are very few judges who are not persuaded , who do not rely to a certain extent on legislative history because it does help us understand what congress is intending to do. so i feel very strongly about that. >> what about you, justice
2:46 am
kagan? you are in the executive branch. the executive branch. has a move across the street helped you? >> is this working now? speaking of technological sophistication. the thing you should know about these things is you should always have the green light on. [laughter] it did. i've had a couple of different jobs in the executive branch. celestial -- solicitor general was quite extraordinary. general doesitor is think about the supreme court. for the 15 months i was solicitor general, i was completely obsessed with the greed, when they didn't agree.
2:47 am
your whole job is to figure out how to convince these nine members of the court. my first year or two, i used to iink all of the time, now only have to convince eight members of the court. members.er >> that is right. that was great preparation for me. especially, i have not been judged before -- been a judge before. great legalf the jobs in america. inpent four years earlier the white house, and that does not have such a direct relationship to what i do now, but i think i learned an enormous amount there about how government works, and a large part about what the supreme court thinks about and many of our cases are trying to make
2:48 am
sense of how government works and what it is doing, what is trying to do, where it is overstepping and where it is not. i think that background, not in a direct way, but in giving me some understanding of the institutions of government from the inside, i think it does help quite a lot. >> so that is at a very grand level. i wonder what your thoughts are on a more granule level. their people live noted that with the exception of justice sotomayor, no one has really been down in the trenches doing trials, whether for the government or private practice. the current court is a very cerebral group. their thin appeals justices, dean of a law school, solicitor general. and yet the court has issued
2:49 am
opinions that are of tremendous import -- importance to the practicing bar. think the court should be doing that? leavenk the court should those kinds of detailed things to the rules committees? >> it is the core of who -- court of who. there are thousand things we do everyday that we have to learn. not all of us come in as expert in every area. ithink you picked one where is a kind of appellate heavy group. not a lot of in the trenches litigating experience.
2:50 am
think being in this job, you have to commit yourself to learning a lot, and certainly everyone gives us their opinion. in all of these cases, we get many amicus briefs. i think we have the materials that are necessary for us to be able to learn a lot. i think it is something that a future president might think about in terms of new members of the court, is to try to broaden the experience. i think as long as we are there, we just have to do as well as we can. >> let me ask both of you, maybe i will start with you because you mentioned it. briefs.ioned amicus we have debate in our circuit about which ones are useful,
2:51 am
which ones are just sort of "me too" and which ones are not useful. do you find them useful? >> i can't say i read every one of them, every civil page. 100.me cases we get them and tell me which ones to read. and i read those. sometimes on big cases, i will flip through the mall and check out the summary of argument. some of them are not worth reading, because they are just repeating the parties arguments, often not as well as the party itself. but sometimes there is a different perspective, some kind of factual knowledge that they bring to the table, a different way of looking at the issue. be a differentn legal argument, sometimes it can just be adding facts to the mix
2:52 am
in a way that might be helpful for cases. i know what isay at stake here in a way i didn't. they run the gamut, but the most useful ones are very useful indeed. sayink our approach is to anybody can cement anything, and we will somehow figure out a way to filter and find the ones that are significant and helpful. i think it works pre-well. >> did you find them useful justice stevens? similar to a very lane is -- elana's. there were brief worth looking at, but i did not as a regular matter read any amicus briefs unless my work recommended it.
2:53 am
my view was the same as yours. >> we had a program this afternoon about something which has been a topic of active discussion in our circuit. justice kagan just mentioned fact in the amicus brief that might not been run up by the parties. orthink any supreme court any court should be looking at fact that the party did not put into the record, or is that out of line? >> it is a little bit like youing on the internet, find things you're not necessarily looking for, you learn a little bit about the case from outside sources, that it is not part of your planned preparation for decision. i don't really recall learning anything -- any factual matter in amicus brief that i did not have other access to. >> what do you think about
2:54 am
looking at the internet? [laughter] >> i think maybe this is the wrong room to talk about it. [laughter] >> i think you have to be careful. nothinghink that we do in a way that is hermetically sealed from life, we bring our own experiences to the table, we bring our own knowledge base to the table. i think we have to be careful. >> one thing that reminds me of that is kind of relevant, in the indiana voting rights case, which i wrote for the court. onhought there was material the internet and in general knowledge that was not in the record itself, and i clearly remember my own concern about trying to decide whether the losing party had proven their case. i didn't think they had, i
2:55 am
thought it was not in the record , although i think i learned outside the record a lot of reasons that made me very concerned about that particular statute. so i had to question, should i rely on my own research or what is in the record? case, i had a duty to consign myself to what the record did prove, and i thought it did not prove t plaintiff's endedand as a result, we up with an unfortunate decision. even though i think the case was correctly decided on the record, i do not think it would be correctly decided in the universe of facts that are available generally. >> that is very frustrating as a judge, although something that we all have to live with, given that we have an adversarial system and the record is -- >> would you do it the same way again? >> i think i would.
2:56 am
that is a tough question. i really do not know for sure. i think the record did not support the position that the plaintiffs maintained. you may remember, there were two different majority opinions in the case. i saw david wrote one of his best opinions, partially influenced by material outside of the record. that is a very good question, i will try to think it through. it deals withhink how you write your opinions, too ? this is how it comes out, then people go off and read it without paying attention to the qualifier. i'm not sure how you can get people to read opinions carefully, but that would help. >> it is a tough question. >> justice kagan, you mentioned a minute ago the need for the
2:57 am
supreme court of the united states to assimilate vast amounts of information across virtually every subject matter anybody can imagine. have you ever wished that you had tools available to do that that you do not have, or is this just kind of, i'm going to plunge in and do the best i can? -- cantrict court appoint a master, but you don't really see that the supreme court level. thoughertainly sounds as , you sort of think there ought to be ways to channel information. but then when you think about what those alternatives are, i'm not sure i could come up with any that are better than what we have. picking a master, who would you pick? sounds as if it could be as controversial as the case itself.
2:58 am
so i guess i cannot come up with a better solution than just to say we accept amicus briefs from all comers, and people can throw out is what they want, and we will try to assimilate the information that is available from them. experts, masters -- i guess i am a little bit skeptical that that would do any better. >> when you have a case like this, are you more inclined to do you notwly, or take that into account one way or the other? >> i think it is important to have some humility when you're in areas that you are afraid you don't know a lot. there are some things we do where we look around the table and go, this is an area that is rapidly changing and none of us
2:59 am
are experts in it. i think that does indicate to , iple, i think to all of us think this is a good one to take piece by piece and give ourselves an opportunity to adjust if we get something wrong. set -- ans are opportunity to learn more. wanted to get a sense of a step at a time. in thesek especially areas, it can come up in some a s, whether ittext is fourth amendment questions or first amendment questions, rapidly evolving technology is creating different questions. where i get the sense that we should be humble about what we know and what we do not know, and you have to answer the question.
3:00 am
but there are ways of answering the question that gives you >> justice kagan mentioned the fourth amendment which is notoriously has been one of all those facts and circumstances kind of areas which makes it a little difficult for lower courts, whether it is the district court or court of appeals, to look at a new case and say what are we going to do with heat imaging technology, or the next step? is there anyway the supreme court can be more clear than that? are you a fan of this 16 factor tests we are supposed to balance? thestevens: i still believe
3:01 am
judicial process is a little different of the legislative process. judges have to decide cases on the basis of the facts that are developed in the proceeding itself and the record. diluteseally think it the strength of the judiciary to the extent they go outside the record and do their own independent research. i really think the process historically has been one of an adversary proceeding. they put together the facts that support their point of view and i think that is how cases should be decided and are decided for the most part. >> let me turn to a broader view. recently, justice breyer american lawook, in the new global reality. he expresses a certain viewpoint about ways the supreme court
3:02 am
should be aware of legal doctrines, not necessarily bound by them. there was a debate that was going on while you were still on the court, justice stevens, at looking at foreign law at all to serve as a reference. did you have a view about that? justice stevens: several times. i really think looking at foreign law as a matter of intellectual integrity is no different than federal judges looking at state laws around the country because you can learn about legal issues from all sorts of sources. there is no reason in the world to say i will look at what they do at nebraska but not south america or someplace else. there is athe extent
3:03 am
feeling that it is un-american to look at what happens to other parts of the country, it seems to me that is quite wrong. there is no reason in the world -- a judge should not look for instance, out of the united precedent may shed light on the issue the judge is working on at the time. i think criticizing judges and looking at foreign law is unwise. >> what about you, justice kagan? i think then: controversy about looking at foreign law is narrower than people might think. book,tice breyer's recent a lot of the book is about using international law and foreign law in places where nobody things you should do anything else. where you have issues, and some
3:04 am
dimensions that are international. i think the controversy really arises in the context of a few constitutional areas. toticularly, with respect cruel and unusual punishment. everybody says, oh, there is the foreign law people on one side and the not foreign law people on the other. it is narrower. it is more that there is a few areas of law that people look at foreign law and others not. on the one hand, i agree with john that you should never close yourself off to sources of information. that would be like saying i will not read an article with respect to some particular area. tish ofple who make a fei this are wrong to do so. on the other hand, i think there
3:05 am
is something curious about the notion that we have our own constitutional system that is very distinctive in many ways. and that the idea that one could go about and pick and choose from any country whose practices you happen to like on any given occasion -- that would be a wrong way to think about the development of american constitutional law which has a long history and a set of traditions and practices. think there is some grounds to be skeptical about some uses of foreign law as being a little bit -- the picking and choosing element of being outside a tradition of american constitutionalism. >> with you say that even in situations where, you know, out
3:06 am
of the almost 200 countries in the world, 196 of them have one view and we are among the four, or does it matter? justice kagan: i think there is something to notice, but not necessarily a product of the question you are answering. >> true. do you think lawyers do a good job of calling international materials to the court's attention or do you think they are wary of doing so? justice kagan: i do think you get a significant amount of information about a four and practice. there will be oftenly be briefs that do this. >> a little bit on outside sources, our friend on the seventh circuit who is not here
3:07 am
tonight, judge richard posner published a book in which he argues that the academy iand the judiciary are drifting apart. my question for you, justice stevens, is whether you think he is right, whether you agree with chief justice roberts that people are writing arcane and useless things like the state of the law in 17th-century bulgaria, which there was not a bulgaria at that time. basically, are legal scholars in their own corner useless to you or did you find academic writing helpful sometimes? it covers aens: broad subject. i do share john roberts' view that very often lot reviews are filled up with what happened in bulgaria rather than what happened in hyde park.
3:08 am
i understand that. i think there is a lot of legal writing that is the product of people having tenure. i do think there's merit so the also stumbleou across some awfully interesting and important stuff when you go through loaw reviews. like anything else in law, you do the best you can with what is available. variety,a tremendous to answer that question in a simple way. justice kagan: you do the best you can. >> it is a modest theme. [laughter] so, justice kagan, at harvard law school people did write these meta-theory things.
3:09 am
maybe not as much as yale. [laughter] they do that. i have looked at the table of contents at many harvard log aw reviews. maybe i will read it someday but i don't have the time today. advice.ld be your justice kagan: i think it is great there are some legal academics in some fields who do think about the courts. i often, not always but sometimes, find things that are useful in law reviews. dean, if i were to say to my faculty this is your audience . you have to be writing to the
3:10 am
supreme court or the appellate court -- i don't think that would be the right thing to say to the faculty. faculty might think about writing for legislators. some faculty might think about writing to practicing lawyers. some faculty might think about writing to other departments in the university which is also important for law schools to be in touch with historians and economists and sociologists and so forth. different faculty have different audiences. i think that is a good and appropriate thing for law schools. the idea that there is this divergence between law schools and the legal profession is not a new thing. people happen talking about it for 30 years. good 25wards wrote a
3:11 am
years ago -- i think it might have gotten better. good that law schools are diverse places where people write different kinds of things to different audiences. i think within that very diverse field, there are people who will think about the kinds of decidens that we have to and who will write useful things. legalt think it is academia falling short. they should not be clerks to law judges, right? they should think of their jobs that way, i don't think. >> do you find empirical legal research helpful or is there enough of it going on by anybody? sociologist, political scientists? in not kagan: speaking
3:12 am
as my capacity as a judge, i think some of the most interesting work in the academy is empirical in nature. people are coming up with fascinating things without the legal system works in various fields. >> that is very interesting, too. istice stevens, your memoir something that we have all enjoyed reading. it is something that makes the court accessible to a much wider audience. justice sotomayor youwrote her memoir for that. it raises the question -- how does an individual justice or the court communicate with the broader public? is it through its opinion, speeches, books? are there limits you would recognize? principalevens: the method is through opinions, as it should be.
3:13 am
i wrote my book after i had retired. i think sonia's book is a really good read. you read about an important person and different ways her life was influenced by her experience. a very valuable book to read, it was written on statutory construction and very valuable stuff. to judge's primary job is decide cases. the extracurricular writing is a function of how much time might be available for that activity. everybody has different problems in that regard. writing i think is fine. >> you mentioned at the very white whenice byron
3:14 am
he left the court burned all of his papers and background and said my opinions are what i have to say. that is what i'm leaving behind. is that what you plan to do? justice stevens: i have already given my papers to the library of congress. i think they should be available. >> did you keep everything? justice stevens: a lot of stuff. anotherecently am doing book now. i found i have my yellow original draft of chevron. >> wow. [laughter] justice stevens: i don't think people want to read my handwriting. -- i realize we should wrap this up, but let me ask both of you. first, justice kagan, what do you do for fun and if you have
3:15 am
any time for fun -- i hope you do -- and what advice would you give to young lawyers today? justice kagan: we have great summers. i work awfully hard from mid-september through the end of june. we have these terrific summers so we have fun. gosh, i like to travel in the summer. i'm a baseball fan. i go to lots of movies. a fair amount of reading novels and things like that. for me, it is really important even during the term to be able to get away sometimes and refresh. i expect it is like that for most people. you just have to give yourself a little bit of downtime. >> what about for the young people? who have tremendous pressures from the lawfirms.
3:16 am
do it anyway? what about you, justice stevens. you are telling me about swimming. [laughter] to sce stevens: i do like wim and i love to swim in the ocean in florida, provided i have a big strong person nearby to help me get out of the ocean which is a problem as you get older. [laughter] differencevast between the spare time after you retired and while you are on the court because while you were on the court, you have very little spare time during the term. of course, i'm not sure i can speak in the present circumstances because your workload is about half of what we had. [laughter] i really can't -- can't --
3:17 am
kagan: when i clerked on the court, there were about 140 cases. now there is about 80. i always tell my clerks -- oh, when i was young we would trek 25 miles to school barefoot. what it wasi know like to work and you guys don't. justice stevens: that is true. you were a little earlier. justice kagan: we just had to do it for a year. you didn't year in and year out. >> it was probably worth being a justice. justice stevens: it is a serious problem during the term. one of the questions that sometimes comes up -- you stop hearing arguments so apparently you have nothing to do. the truth of the matter is the busiest time of the year is after you finish hearing
3:18 am
arguments. sometimes you produce opinions like the one that came out this morning that was totally unintelligible. [laughter] i'm glad i did not write that one that. justice stevens: it is not just the opinion, it is the whole case that is unintelligent. there was a case in which i thought the perfect solution would have been we have eight justices, lets four one way and four the other, and we would not have created the monstrosity. [laughter] >> tell us what you really think. well, i should thank both of you so much. [applause] i'm stepping on your clothes.
3:19 am
justice kagan: this is not the first time john has told me what he really thinks. offices that are near each other. i get messages from him when i vote the wrong way. [laughter] n'ttice stevens: she has had a message like that. >> thank you so much to both of you for coming, for participating, sharing your thoughts with us. we are privileged to have you here. justice stevens: thank you. [applause]
3:20 am
both countries i helped with their constitutions being a facilitator of agreement on key afghans.ong iraqis or the influence is considerable. the state of government is very anxious to meet with you. >> sunday night on q&a, fothe foreign u.s. ambassador discusses his memoir, the envoy. >> we saw the extremists exploited, although we then corrected it towards the end of the period i was there, by the
3:21 am
surge. by reaching out to the sunnis, building up iraqi forces, establishing a unity government and then to bring about security. pilots was way down, but unfortunately, when we left the vacuum is filled by rival regional powers pulling iraq apart, violence escalated and now we have isis. >> sunday night at 8:00 eastern on q&a. this weekend, the c-span cities tour takes you to san bernardino, california to export the history and literary culture of the city east of los angeles. on december 2 of 2015, 14 people were killed and 22 were seriously injured in a terrorist attack at the inland regional center. we will talk to congressman aguilar about the attacks.
3:22 am
his district includes the inland regional center. >> when we talk about terrorism, the fight against terror, is not something in the abstract anymore. it is something that across the country means something because this is not a big city in san bernardino that was attacked. this could happen anywhere. sane will speak to a bernardino city councilman about establishing a permanent memorial. >> it provides a sense of rememberance. it highlights their lives and what they contributed to our community. it will be a near and dear place for us to provide a place of consolation. we are thinking of a serenity garden, a prayer chapel. >> on book tv, we will learn about the family of quiet earth. his book talks about the books
3:23 am
notoriety and the connection to san bernardino. >> the connection that the yearp have goes back to 1862 when the father of wyatt earp, nicholas -- hehe was basically left his family temporarily. they were living in monmouth, illinois. he heard about the gold rush in northern california. he went back to the midwest. he ventured down to southern california and passed the san bernardino valley. >> from american history tv, we will visit the san bernardino history and railroad museum and talk about the importance with the historical society vice president. objectsum contains many related to the city's railroad history. >> construction was completed in
3:24 am
1980. 18. and replaced the wooden structure 100 yards east of here. lot largert a because they decided to house the division headquarters at that time here. >> watch the cities tour today on noon eastern on book tv. sunday afternoon as well on c-span3. the c-span cities to her working with our cable affiliate and visiting cities across the country. campaign 2016 bus made a visit to pennsylvania during its primaries, stopping at grove city college, washington and jefferson college and harrisburg area community college where students, professors and officials learned about our road to the white house coverage and online interactive resources found on c-span.org. visitors were able to share their thoughts about the upcoming election.
3:25 am
our bus and of the week at warrenton, pennsylvania to honor seven ninth graders. a special thanks to comcast and armstrong cable. you can view all the winning top online.ntaries >> now a discussion on the legacy of the late justice antonin scalia. a group of his former law clerks discusses influence on the american legal system at a meeting of the university of california berkeley federalist society. this is one hour and a half. >> welcome to the federal society final public gathering. justice antonin scalia's exceptional legacy. i'm the outgoing copresident of the chapter. we are grateful to you for the
3:26 am
gracious and kind support you have given us throughout the year. you have meant so much to us. we are indebted to our distinguished pala who have come together to celebrate the legacy of of antonin scalia a. . this to our panelists. today's event is to the storied legacy of antonin scalia. he was a justice for nearly three decades, one of the longest tenures. as a location marking one of his milestones, chief justice roberts said that since justice scalia came on the supreme court, the place has not been the same. justice kagan remarked that justice scalia will go down in history as one of the most informational supreme court justices. his views on interpreting text has changed the way all of us think and talk about the law.
3:27 am
the justice's contribution and its subspecies original iism, courageousled and opinions and areas in areas of american law and his personal decency provided a paradigm in which all judges could inspire. he served on the court with such valor and this tension. i had the good fortune of meeting the justice. age, butll 22 years of even then, we appreciated the mind, the soul and the heart of his. he often acknowledged he wrote for contemporary law students and young lawyers. he has inspired several generations to maintain stability and generosity of spirit. our four distinguished jurists a formerpractitioners,
3:28 am
solicitor general of texas knew him personally. one clerked for clarence thomas often calledscalia brother clarence. we have ms. miles. she is a litigation partner in the san francisco office. her practice has focused upon complex business litigation. she was recently selected as one of the outstanding women lawyers. she has been named among california's top women lawyers. ms. miles served as a law clerk for justice scalia during october 1989 and judge ginsburg. laudeaduated magna cum from harvard in 1988. mitchellave jonathan
3:29 am
who served as the solicitor general of texas until january 2015. he is a visiting fellow at stanford and a visiting professor of law at the university's law school. he received his law degree with high honors from the university of chicago law school. mr. mitchell argued before the supreme court, the federal courts of appeals and the supreme court of texas and numerous trials. after graduating from law school, mr. mitchell was a law stice scalia in 2002. advisor fored as an the justice department. to professor michael ramsey from the university of san diego. orogress a ramsey clerked f justice scalia during october term 1990. he practice international business law. he joined the university of san diego school of law faculty in
3:30 am
1995. professor ramsay teaches and writes in the areas of constitutional law, foreign relations law and international business law. he was awarded the professorship for the 2012-2013 academic year. arely but not least, we fortunate to have dr. eastman, professor of law and community service. he also served as the dean from 2007 to 2010. he is the founding director of the center for constitutional jurisprudence. prior to joining the faculty in 1999, he served as a law clerk to justice thomas during october term 1996. degree from the university of chicago law school. policy isderalist interested in the current state of the legal order.
3:31 am
its founded on the principles that the state exist to preserve freedom and the separation of governmental powers is essential to the constitution and that it is the duty of the judiciary to state with the law is, not what it should be. we will hear from our calvinists and then pose a couple of questions about justice scalia. and then we will close your -- entertain your questions. >> hi, my name is kristin miles. when justice scalia joined the court, i was still in law school. harvard was the home of legal studies and other deconstructionist series. constitutional law seemed like a blur of policy thinking and balancing tests. contract law focused little on interpreting contract language or applying the rules of construction in fairness, equality of bargaining power. statutory interpretation was not a subject at all, it was not
3:32 am
taught in law schools including harvard. only by the time i graduated in 1988, justice scalia had an influence on legal thinking. even professors who disagreed with him, which made up most of the harvard faculty, assigned his opinions because they were compelling statements. a quarter of a century later, justice scalia's legacy in law schools is undeniable, just as his legacy on the court. as justice kagan explained at the second annual antonin scalia at harvard, he has brought about a revolution in the way law is taught. said, justice scalia, she law school teaching was common law method. now, she notes more legal
3:33 am
thinkers consider the words and meaning of text as the starting point and sometimes even the ending point of analysis. i make that last point because in chambers, justice scalia used to rail against opinions that use the common expression we begin as always with the text of the statute. he used to say why not begin and end with the text? when i started my clerkship, justice scalia just begin the process of trying to persuade the other justices to rethink the way they approach legal analysis. heparticular, to -- frequently dissented on statutory interpretation in cases where the court adopted an approach that used policy, fairness or legislative history. write as, he would single paragraph opinion
3:34 am
refusing to join because it cited some report or statement by senator on the senate floor. in his view, the only legitimate authority was law passed by both houses of congress and signed by the president, not a passage of that snuck into a legislative report or announced on the floor in a way that could manipulate the language. these materials, he thought, are used to make words appear to come from congress's mouth which was spoken or written by others. text be followed despite countervailing economic or social considerations, or having to do with the doctrine. he said despite justice steven'' trend innd the clear both congress's amendments to
3:35 am
the relevant statutes, nonetheless, the core of the doctrine remained in the statute. he said if that skeleton, you must read it for what it says. justice scalia was relentless at the words of the constitution controlled as well, not the whims of a majority of justices. we will get to some of the particular cases later in the it if it, but it meant was enumerated in the constitution such as the confrontation clause, the fourth amendment, protection against searches and seizures, he would enforce the right despite either opinions by other justices or other social developments that made it inconvenient to enforce. likewise, in the case of unenumerated rights, again,
3:36 am
sorry -- the first amendment which i think we will talk about in greater detail. if it implicated the first amendment, justice scalia would be lining up the justices to enforce it. with respect to unenumerated rights, justice scalia felt equally if the right is not articulated in the constitution, it cannot be imported into the constitution through some creative use of the due process clause which provides certain person cannot be denied to certain rights without due process. allowedsprudence justices to rewrite into the constitution which a person cannot be deprived at all. justice scalia could not have that approach. scalia has justice had a profound effect on the way law professors, law students on the one hand and other justices
3:37 am
on the other to look at and think about law. as justice kagan said in the same comment that was just quoted, in addition to saying he was one of the most transformational justices of our nation, she said his views on interpreting text have changed the way all of us think and talk about the law. so, with that, i think hopefully we will get a chance to talk later about the legacy. what this means for the future. i see justice kagan as someone who could carry that torch forward into the future. she seems committed to that. you will be interested to see how this plays out in the court over the next couple of decades in the extent in which justice scalia's legacy in law schools among students, such as many of whom present here, will carry that same view of the tax
3:38 am
forward as the go into the legal profession. >> thank you, ms. miles. dr. mitchell: there is little doubt justice scalia's presence in the supreme court has transformed the court's view of statutory interpretation. the 1960's up from and 1970's, you will see very little reliance. now, it is mostly dissenting opinions, if at all. it has become paramount in the way the supreme court interpret statutes. at the same time, justice scalia's tenure on the court has been less transformative in the field of -- the majority still subscribes to the living constitutional mindset which delivers constitution such as roe v. wade. if you read the opinion authored by justice kennedy, it gives judicial precedent over taxed.
3:39 am
it departs radically from the original understanding of the 14th amendment. time onjustice scalia's the court and his advocacy of sotualism, original is ilism effective in statutory construction but less transformative in the field of constitutional law? that is one of the key questions surrounding his legacy. are many possible answers one could give. i want to give a couple in my remarks. first, i think one of the reasons for this disparity in the influence of justice scalia on the way the supreme court approaches law is the fact that so much of the constitution by the time he got to the court had already been interpreted in previous supreme court rulings that did not employ textual list ist or originalist methodologies. when combined, it makes it very difficult for any member of the
3:40 am
court, especially someone who is saying textualism to reconstruct an established doctrine the supreme court already made. a related reason his new constitutional provisions are seldom enacted and justice scalia and others on the court have opportunities their dominant methodologies to new constitutional provisions that are not weighed down by the baggage of earlier court rulings. if you look at the opinion anin argued the majority from really based on the text of the constitution and historical evidence. that is somewhat unusual, but the second amendment had very few judicial precedents. when you see a decision like that reach the court during justice scalia's time, text and original meaning took center stage even for a non-originalist jurist like justice stevens. it has been much more of a
3:41 am
challenge for justice scalia and fellow textualist on the court. there is a second reason why it has had not much of an impact on constitutional law even after 30 years of justice cooley on the court. that is because they are ultimately political appointments. the political accountability to the people demands they take that into account but at the end of the day the president and senators are looking for jurists who will issue rulings they approve. the interest groups that influence the process do not care whether they are political goals or part of the text of the constitution. as a result, we have jurists being appointed through this process who don't regard text or original meaning as the touchstone of proper interpretation. this may be an inevitable
3:42 am
consequence of having a constitution that provides for the political appointment of supreme court justices. i don't think it is inevitable in a don't think we should regard it as inevitable. the political seduction of constitutional law ultimately depends on illegal culture that except the idea of the living constitution as an acceptable approach. its legal academy, the organized bar insisted on fidelity of the constitutional text. if they denounced the creation of a textual prosecution right as illegitimate, the president and senate would be able to find qualified jurists who would impose that. it would be akin to finding is a supreme court appointee that would issue advisory opinions. it cannot be done because there is an entrenched norm in the legal coulteulture. it is something that exceeds the proper and legitimate role of the judiciary. instead, the legal academy and
3:43 am
the organized bar not only except but applaud the ruling to create constitutional doctrines that have little or no connection to the text of the fundamental charter of government. this involves interest groups to demand jurists who want to have other political agendas, whether conservative such as the abolition of conservative action, or liberal. justice scalia may not have vanquished that during his time, but the challenge he threw down to the idea of a living constitution remains unanswered to this day by any member on the spring court. here is the challenge he threw out. if the meaning of the constitution changes and evolves over time, then what is the supreme court get to impose its preferred interpretation of constitution on the rest of us? if we have a living constitution, why shouldn't the political branches disregard the supreme court's past pronouncements and adopt new
3:44 am
interpretations of the constitution that they think is superior? the supreme court tells us the constitution's meeting changes accepts theires, but interpretation is fixed and immune until the supreme court overrules it. that brings considerable tension. if the underlying law is a morphing and changing thing, then there is no basis for the announceiary to adopting it in constant flux. those judicial constructions are up for grabs just like the constitution. if the post-scalia supreme court propagates the idea of a living constitution, there is no reason why anyone should defer to the pronouncements of what that evil thing document means -- evolving document means or if there is a reason to, the justices on the
3:45 am
current court have not provided one. >> thank you, professor. professor ramsay? professor ramsey: i would say not only have the justices not provided one, but neither have academics. thank you very much to the law school and to the berkeley federalist society for having me back here. i agree with all the things that my panelists have said. i will take a different tact. i will tell a little bit of an anecdote that tells something about scalia as a person and maybe something about his legacy at the end. here's my anecdote. so, scalia was much of a hero of mine when i was in law school. ever since i read his dissent in mrars. v olson. may be the most influential
3:46 am
thing i read when i was in law school. it was such a great honor to go to washington to be his law clerk. i was a bit overwhelmed by it, but i came in the first week and it was in the summer. we didn't have that much to do in the summer, but we had one opinion left over that was not finished up. when i got there, the justice said we have to get this done. i want you to do a couple of things on it and get it on my desk and we will get out of here. i did. morning, saturday did the things he asked me to do. he was not in the office so i went into his office and put it on his desk. then, i decided i was done so i left and went out for a bike ride. we didn't have cell phones in those days so i was out for a couple of hours. when i got back to my house -- we did have answering machines in those days. when i got back to my apartment,
3:47 am
there was what seemed like a 20 minute message on my answering machine. it was probably only 20 seconds. "where are you? i need your help. i cannot believe you are not here." and so forth. this is bad. i rush and so the court -- into the court still in my biking outfit. that was probably a mistake. i went in there, reported to the justice. he was furious. a lecture followed about how he expects his clerks to be available and how he specifically told me to get it done. i document sometime in the next couple of weeks, but he meant that they. i apologized, for the justice did not take apologies really well so be lectured me even further. i went back into my office and put my head down on the desk and figured i had completely blown it. i cannot believe this is the way my clerkship was starting off
3:48 am
and he would never forgive me. i sitting there in this mood. thet 20 minutes later, justice came in and he had the opinion in his hand. he was chuckling. he poked me in the arm. he said, hey, i added another zinger. isn't it great? i told him it was the funniest thing i have ever heard. he said, yeah, yeah. he slapped me on the back and said do a couple of more things and finish it up. great job. i'm really happy with this. and he went back to his office. at the time, i was a little bit relieved. survive and i might this guy is a bit ric mercurial. you never mentioned that in the beginning to me but i never forgot it.
3:49 am
at the time, i guess i was not as impressed, inside from the fact i still had a job. i was onlytrospect, 24 years old at the time. as i have grown up and had my own kids and thought more about this in retrospect, i saw that it was more than just he was a littlem -- just that he was a little mercurial, but he thought of us as his own kids and treated me in the way like i treat my own kids. you want to let them know. this is not acceptable behavior, but at the same time, you cannot hit them so hard that it depresses them and take the energy out of them. so you give them a little hard time and then you treat them like you always what, like they were your kids. he treated us like we were part of his family, part of his extended family.
3:50 am
i came to value that so much for the rest of the time i was there. and then throughout the rest of his life, when i had the pleasure to interact with him. when you asked me about his legacy, a large part of his legacy is all of us who have been touched by him and made so much the better for that. in just two minutes, i will say one thing about the law part of his legacy. it follows up on something that kristen said earlier. when i was in law school, originalist thinking generally was really focused on the idea of judicial restraint. it was a reaction to the excesses of judges of making up their own ideas of what the law should be. courts should step back and not interfere with
3:51 am
the political branches. that was reflected by the dominant academic voices like robert berger who talked about the political branches. legacy part of scalia's is that we don't think so much that way anymore. was the caselson of the independent council where all of the judges were deferring to court and congress and the president and creating this statute. it was 8-1. he said, no, that is not what the constitution says because the constitution vests the executive power to the president. it says -- it does not say some of the executive power. it means all of the executive power and that includes the power to control independent counsel which the statute denied.
3:52 am
what he, what morrison stood for for him was the idea not just that the court should not interfere with the political branches when the constitution does not warrant, but that it should interfere when it does warrant because we live in a regime of limited government, limited by the constitution, and that limit is enforced by the court. so, his role further court was not the restrained role that previous conservatives had emphasized, but it was an active role when the constitution warranted. i think that now is much more taken for granted, but it was not taken for granted before he came on the court and before he made statements like his dissent on morrison v. olson. i think that is perhaps not the thing he is most remembered for, but i think it is a very important part of his legacy. thank you. >> thank you, professor.
3:53 am
>> i was not a clerk for justice scalia, but justice thomas. during the course of the panel discussion, we will get to some of the minor disagreements and judicial philosophies between the two because i think it is some of the most interesting things that occurred in the last generation. before i get there, i want to talk about the legacy. i'm a co-author of a constitutional law textbook. those things can be pretty dry. justice scalia's opinions find greater presence in most constitutional law textbooks than any other justice. and, i think there are two reasons for that. the impeccable logic of his opinions and reasoning forces you to confront the logic and analytical skills we are trying to teach. it matters not whether they are
3:54 am
majority, the logic of his opinion helps us advance that tool. there are also so much fun. justice scalia, and i think, in the ordinary citizenry is best known for his quips. church and state would not be such a difficult subject if religion were, as the court thinks it is to be, some purely personal application that could be indulged in secret, like pornography in the privacy of one's home. you get these things. even people that came under his directly,nife most justice ruth bader ginsburg, praised him not so much for the language sometimes, but for forcing them to make their own opinions stronger. oneink the most memorable was a love note to justice ginsburg. ever were to join an
3:55 am
opinion like that, i would hide my head in a bag. so, those are the kinds of things that embellish his opinions that make them so fun to read, but it is the logic and impeccable reasoning of them that make them such a long-standing tool, but also had a transformative effect that everybody else has talked about. i have my own anecdote. i think he loved the intellectual sparring of his role in the court, but also his role as teacher. i remover some years ago we invited him to give a commencement speech at my law school. the invitation got lost in the mail. this is when the anthrax scare was going on. i bumped into him when i was visiting, i said we never even got a decline. he said i never got it. i do want to come out, but just graduation.
3:56 am
what you want me to talk about? anything you want. he looked me in the eye, he said you are wrong about laka v. new york. i will talk about that. that is great. why don't we reenact it? we had a wonderful exchange about due process. he said what kind of due process of law do you get substance out of? i said maybe it is the word law. where do you get that? i know one day your successors on the court will not like citing foreign sources. that one is cicero. i think the state of sicily. it was a great sparring contest, but in substance, there was a fundamental point to be made about the nature of our constitution. this brings me back -- by the way, when it was handed down last year. i often times in these major cases, my former boss justice
3:57 am
thomas, has written his own opinion. i start with his opinion. he said something about the word liberty and the 14th amendment means protection against government interfering if you are walking in the street. of manufacturing materials of their own growth. justice scalia joined him. i said here is an opening and he is finally came around. but, i find out him and justice thomas joint chief justice roberts which includes them attacking it. the fundamental point and the disagreement, the judicial philosophy between justice thomas and scalia, which i think warrants our attention for a long time is on the rules of the intervals of the declaration of independence and understanding the constitution. whether it is filling in the meaning of hard to understand words like republican guarantee
3:58 am
or privileges and immunities, or the backdrop principles, as justice thomas said, that are inherent in the constitution. this fight has been around. it's has been around since the lung -- lincoln-douglas debates. justice scalia kind of steaks out his position most forcibly in a case dealing with parental rights and grandparental rights. i may think they are unalienable rights and i may think they deserve to be protected, but i don't think i have any title to enforce what i believe to be right that our unalienable if they are not in the constitution. justice thomas responds in a very short opinion which dealt with affirmative action against the federal government, where there is not a specific laws that deals with the federal government. clauses on equal protection.
3:59 am
it only applies to the state. he said and violates the principles of equality that is inherent in our constitution. for that, he cites the declaration of independence, paragraph two. the sparring back and forth between the two of them, that somehow involves the issue. this this comes to the forfront of the disagreement of the getting to the second amendment case incorporation of second amendments to the state. justice scalia had written heller he found there's a personal right to keep and bear arms that operates against the federal government. then they're confronted with the question does it apply to the states. he probably from the conservative side of the bench the most vocal opponent that we've ever had on the cour, the most vocal critic of lock never
4:00 am
is given the opportunity to apply the second amendment to the states via the privileges immunities clause where the legislative history of that was quite clear that was one of the core things they intended. or to accept the existing precedent of the court this substantive due process process he criticizes. leaving justice thomas alone on that. so i think there's a lot of fruit for further inquiry that we can gain by looking at those areas. they don't often agreed but got there by different routes and telling and worth our inquiry. >> thank you so much. and thank you all for your brilliant and moving statements anecdotes and your own mag nam anymorety. i'm going to start off on some questions before we open up to the audience. famous commnt tator, not an ally,

25 Views

info Stream Only

Uploaded by TV Archive on