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tv   Arizona Supreme Court Justice Clint Bolick Discusses the American Judiciary  CSPAN  September 2, 2017 9:06pm-10:22pm EDT

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writers. the records will be open for 100 years. instead we are paying for celebration and legacy building. >> sunday night at 8:00 eastern on c-span's q&a. now arizona supreme court justice clint bolick talks about recent rulings by federal and state judiciary's at the conservative forum of silicon valley. this is an hour and 15 minutes. >> [applause] justice bolick: thank you so much. and welcome and thanks to each and every one of you. i was not going to start out with this anecdote but when i heard the very strong round of applause for ann coulter. i thought i would begin with a brief anecdote about ann who i've known for many, many years.
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and i might not be here tonight if ann had not made a different decision careerwise than she made. when i was at the institute for justice many of you probably know that ann was a lawyer before she became the celebrity and commentator that she is today. and she applied for a position at the institute for justice. we offered her a position working as an attorney for i.j. and she turned us down. and the reason she turned us down was that washington d.c. had adopted an anti-smoking ordinance and she was wondering where the heck she would be smoking her cigarettes. they would not be at her office unfortunately for her. subsequently we hired a different lawyer and that lawyer and i organized a group of parents in south-central los
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angeles to fight for school choice, to file a lawsuit arguing that the quality of education in south-central los angeles was so appalling that it violated your state constitution's guarantee of a high quality education. they sought a voucher remedy, that essentially the opportunity to leave the school system altogether. and my colleague and i went into south-central los angeles to meet with parents at a little shopping center. and unbeknownst to us, a riot was beginning to form and it became a very significant event. we were among the first people attacked. we were attacked by rioters who came out into the road and started attacking our car with 2x4's, and we drove off and, you
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know, sometimes civilization does not leave your mind. i remember as i am driving through the red light to get away from the marauders, i'm worried that i'm going to drive over their feet. nonetheless, we get to the shopping center where the meeting is taking place and the tv is on. and i'm saying, we need to call the police and let them know what is happening here. of course, the police knew. and they were nowhere in the area. and we went on to have the meeting. the shopping center was burned to the ground that night after we left. one of the parents drove us to safety but often since that time, my colleague and i escaped with our lives, often during that time i talk to myself -- i thought to myself what if ann had taken that job and she had been with me that night instead of my friend? you know what she would have done.
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she would have gotten out of the car and confronted the rioters. and i suspect that neither ann nor i would be with you today. so, thank you, ann, for turning down that position. i was disappointed at the time, but it turned out just well for both of us. it's so great to be back in northern california. i have a tremendous number of connections here. what i was a youngster, i lived for a year in the beautiful metropolis of daly city, california. and one of my classmates at ben franklin junior high school went on to become congressman jim rogan from southern california. just a phenomenal american. like erica, i went to u.c. davis for law school. as she said in her introduction, i was very eager, i just could not wait to start suing
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government. so, i didn't wait. my first two lawsuits were as a student. i first sued the president of the university of california, which did not endear me to my dean. then i went on to sue the city of davis. just on general principle -- no. >> [laughter] >> in any event, until becoming a justice that is what i gleefully did for a living. i'm happy to say we won many more battles than we lost. i am honored to be on a tremendous court that values the rule of law very, very highly and to be addressing the issues of individual rights and constraints on government power from a different perspective. i want to commend you for your involvement in this
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organization and with advancing the principles that you hold dear. i'm sure it's a view that you agree with that silicon valley, of all the places on earth, should be the epicenter of freedom. >> [applause] justice bolick: there is no place on earth that has more prospered from the soil of freedom than this place. and so, i hope that you will continue to spread the philosophy of freedom to others here in silicon valley who have prospered from the freedom they have. i was appointed to the arizona supreme court by governor doug ducey in january of last year, 2016. so, i'm still fairly fresh in my role.
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and with my appointment, i was, i scored a number of firsts. i am the 44th justice appointed to the arizona supreme court but the first ever independent. every other justice has been either a republican or democrat. and so, i am the first to is not affiliated with a party. i am also the first justice to hang up on the governor when he called to offer me the position. this was not intentional. i am embarrassed to admit it in silicon valley of all places, i am a total technophobe. to this day, i cannot figure out how to get off one call and onto another without to disconnecting both people and that is exactly what happened. my friends have told me that the better explanation was that i was just exhibiting my view of the proper separation of powers. but, nonetheless, for surely, governor doucey took my call and
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he offered me the position. i am also the first member of the arizona supreme court and possibly any supreme court and the country to be openly inked. among the many clients i represented were the owners of a tattoo studio in tempe, arizona, which is a place that houses a major university. so you would think there would be some tattoo studios there. these were salt of the earth people. they had a successful studio in mesa. they got a permit from the city to open a tattoo studio in a half empty strip mall during the most recent recession. and they invested $25,000 and refurbished the place. then the city decided, yeah, we do not want a tattoo studio so they revoked their permit. i read about this on a saturday
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as my daughter was in gymnastics class, and it was so nice to get really irritated about something and be able to call the person and say, you want to sue? and the answer was, i can't afford a lawyer. my response, which i always loved giving was, i'm free. so, we filed a lawsuit. i used to get very, very passionate about my cases. as were filing this lawsuit and trying to get their permit and their opportunity to earn an honest living back, i vowed, if we win this thing, i am going to get inked. we did win. my wife said, you know what? i really wish you would not get a tattoo. >> [laughter] justice bolick: and at that time, she was thinking of running for office and she asked me what i thought about that. and i said, i really wish you would not run for office.
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>> [laughter] justice bolick: and she did. and i did. and we're still happily married. i am happy to say. but i have befitting my status as a desert dweller, i have a tattoo of a scorpion on my typing finger. i have typed every book, every article, every decision, every brief i have ever written with one finger. it now bears a tattoo of a scorpion. i have been after my colleagues to get inked. i don't know. i thought i was a fairly persuasive guy. so far not a single one of them has gone openly inked. i'm going to continue working on that. my talk tonight is about an essential, yet as erica mentioned, often overlooked part of the story of american freedom. and that is a judiciary committed to the rule of law. it is something we often take
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for granted, but we can ill afford to do so. there are two recent incidents that i read about that really show how unique america is with regard to his judiciary and how important it is to safeguard that system. in china, as you may know, there are now a lot of chinese students learning, studying in the united states, many of them law students. and a lot of american lawyers go over to china, and they talk about our system. and the chief justice of the chinese supreme court apparently grew very agitated about the infiltration of western ideas of justice in china. and he grew very, very concerned about it. in an article in "the new york times," he said, "we need to
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banish these western ideas because the purpose of the judiciary is to sustain the regime." just imagine that. if we had a judiciary whose purpose was to sustain the regime. how different our society would be. venezuela recently, the venezuelan supreme court abolished the legislature, the national legislature, and assumed its powers. imagine that. you know, our congressional ratings are not very high, but just imagine what they would be if the supreme court said, you know what? we're going to start passing laws from now on. you know, as angry or frustrated as people can legitimately be about some decisions that courts make in our country, when you
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think about the judicial systems in other countries, the fact that if you seek to enforce a contract or your private property rights or something like that, you will walk away empty-handed even though you deserve to win. it really makes you realize how important the judiciary is here in the united states and how lucky we are to have a judiciary that will enforce the rights of individuals. the framers of our constitution considered an independent judiciary a essential to preserving liberty. and the role that the framers intended for the judiciary was to act a limitation on the powers of the other two branches of government. it was the only body capable of holding the executive branch and the legislative branch to their
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defined limits of power under the constitution. additionally, only the judiciary was thought to be capable of, of vindicating the individual rights in our bill of rights and our constitution. the framers, as you know, considered the judiciary the least dangerous branch of government for precisely this reason -- because when they exercised power, it would be restraining the power of the other two branches of government. but the framers did warn in the federalist papers that the judiciary could become a very dangerous body if it ever took on the powers of the executive or the legislative branches. and indeed when it has done so and it has done so in many instances, it has been a very dangerous branch of government. so, there is a constant battle
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going on in the judiciary between those who believe that the constitution is an evolving document, that is a document that the judges should look at and say, really, in our time, how should this read? not, how does it read? and the judges in our system who believe that the constitution is eternal. that there is a way to amend the constitution. it is not by judicial legislation. by the amendment process that the framers set out in the constitution. it is a legitimate -- it is illegitimate for judges to themselves amend the constitution and the resolution of that in during battle is absolutely vital to the future of freedom in our country. as a result of that, in my view, and i think especially recent
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the mostear this out, important and enduring decision a president will ever make is who to appoint to the united states supreme court and to the federal judiciary. >> [applause] justice bolick: justices usually far outlast the presidents who appoint them. and just think about it. ronald reagan has not been president since 1988. but as of only a year and a half ago, two members of the united states supreme court and now one were appointed by ronald reagan. boy, that is a legacy that far outlasts the president. justice kennedy remains on the court. he is the remaining ronald reagan appointee. and the impact of those justices
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can be extremely significant as well. for both good and bad. in fact the dwight eisenhower, some of you may be familiar with this quote, was asked after he was finished being president, what his biggest mistakes were as president. he said, "the two biggest mistakes that i made as president are both serving on the united states supreme court." they definitely outlast the president and if the president goofs in his or her judgment, that can be an enduring thing as well. the appointment of justices today is more consequential than ever for two reasons. the first is that the value of lifetime appointments have increased. the framers in their wisdom said in order to be a truly independent judiciary, we must provide lifetime tenure to our judges.
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in fact, justices have tended to often lead very long lives. in fact, there is a saying that if you wanted to live a long life, be appointed to the u.s. supreme court. if you wanted to live a short life, retire from the u.s. supreme court. and so, justices have tended to stay for a very long time. my very favorite quote from thurgood marshall. toward the end of his tenure he was interviewed by the washington post and they asked him if he planned to retire anytime soon as he was in his 80's. he said, "absolutely not. i was appointed to a lifetime tenure. and i intend to serve every single day of that. not only that, i plan to live to be over 100 years old, and not only that, when i finally die i plan to be shot by a jealous husband." >> [laughter] justice bolick: that's quite the aspiration. nonetheless he served on the court for a good, long time.
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but of course, longevity has dramatically increased lifetime tenure. at the time of our nation's founding, the average age of appointment of a supreme court justice is about the same as it is today. it was age 50 and that time. however, life expectancy at that time was in the 30's. so, the average age of the appointee was older than the average age of death. so that the logical explanation would be lifetime tenure would being that you die instantly as soon as you are appointed. some of these folks did live a good, long time but lifetime tenure did not mean all that much. today, the average age of a supreme court nominee is 52. life expectancy for a 52-year-old is about 85. which means that the average term of the u.s. supreme court
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justice today is roughly 32 years. that is 8 presidential terms. when you think about that, that is a breathtaking legacy. and so, the importance of, of supreme court appointments is going to outlast any presidency. clarence thomas, for example, was appointed at age 43. if he lives to be the same age has his predecessor thurgood marshall, he will set the all-time record for longevity on the u.s. supreme court and serve for 40 years. of course, he could well live longer and serve on the court longer than that. presidents and senators are figuring this out. so they're appointing nominees at an earlier and earlier age. and you may have read in the
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most recent nomination that basically if you had a six in the first digit of your age, you were probably not going to be considered for the court. mitch mcconnell, a person who is not known for his ribald sense of humor, was recently reported as having had a conversation with neil gorsuch in which gorsuch said, i would really hope to serve for 20-25 years on the supreme court if i'm confirmed and mitch mcconnell scoffed and said, "no, think strom thurmond." >> [laughter] justice bolick: so, who knows? in any event, this is obviously, you know, this is obviously part of the calculus now for the u.s. supreme court. the second reason why the appointment of justices is more consequential than ever is that the science of predicting judicial opinions and judicial
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philosophies has grown better than it ever was in the past. both abraham lincoln and franklin delano roosevelt tried to pack the u.s. supreme court. in lincoln's case, he was trying to pack the court to uphold his controversial executive orders during the civil war, and roosevelt of course was trying to pack the court to uphold the new deal. but both of them failed ultimately because they appointed justices who were very independent, very unpredictable, and often went in different directions. richard nixon, the same thing. but it has been a long time since a president has nominated a justice who did not live up to his expectations for that justice. in fact, the most recent such appointee, david souter is not even on the court anymore.
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and that is not to say that the justices are in philosophical lockstep. there are lots of unanimous decisions. they are independent thinkers and they often go their different ways. but generally speaking, you can fairly confidently predict on a controversial constitutional issue how a justice will come down based on the party affiliation of the president that appointed that justice. and that is now permeating not just the u.s. supreme court, but the lower court decisions as well. one thing that struck me recently, and i'm not allowed to talk about it -- i don't intend to comment at all on pending cases -- but for example, the recent challenges to trump's immigration executive order as i've been following it, almost all of the judges who voted to strike down those orders were appointed by democrats. almost all who voted to uphold
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them were republican. what that suggests to me is that presidents are taking the philosophy of judicial candidates very, very seriously. we are now in the 26th year of a fairly consistent conservative supreme court. in no particular order, the first this private property rights. we have numerous protections of private property rights in our bill of rights and yet they have
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been largely eviscerated by previous courts, especially in the area of takings, when the government would take property, not just through and over use of eminent domain, but through regulation that would actually lower the value of your property and reduce your ability to use your property as you intended. and that has largely changed. the main exception to that was the kilo eminent am a decision that i will talk about in greater detail. but by and large, there are far greater constitutional protection for private than there wasy before the nomination and confirmation of clarence thomas, which was the turning point on the court. the second is the area of racial preferences. that thethe idea government may discriminate for the nine purposes to -- b nine
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gn purposes toni promote racial diversity, particularly in universities. again, the court just retreated from that area in the university of texas case, again, there are far greater constitutional restraints on racial preferences today than there were 26 years ago. an issue near and dear to my heart because i litigated this issue for a majority of my litigation career, school choice. the idea of a school vouchers or other forms, allowing children school of their choice using a share of public funds. this is an issue that was confronted to the establishment clause. the establishment clause reads
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that congress shall make no law respecting an establishment of religion. this is one of those provisions the court really rewritten. successfully that we now think of it as separation of church and state today. separation ofrict church and state in the u.s. constitution and there is a prohibition against the establishment of religion. when i see those two terms, i see a very different thing. the court had done a confusing rewriting of the constitution and the current court has really changed that and limited the scope of the establishment clause. the case that went to the supreme court that i litigated was a case involving the cleveland voucher program in
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2002 and it was upheld by the resounding vote of 5-4. just to show the divide on the court, the dissenters in that case argued that if we upheld, if the court upheld that voucher program, that we would see religious strife of the same degree that we saw in bosnia and northern ireland. of course, as a litigator, i thought that was ridiculous and in fact, we have not seen any such religious strife flowing from that decision, but nonetheless, that illustrates the divide. an issue of course that a lot of about feel very strongly is the second amendment. and of course, the united states supreme court, reading the second amendment and applying it plain meaning and historical
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meaning, ruled that the second amendment provides an individual right to the ownership of guns. issueat obviously is an that had not been resolved before then. the issue of political speech, particularly the exercise of political speech through campaign contribution before the , political speech could be very heavily regulated by state governments and federal governments. today, those restrictions are far less permissible. and again, the court reading the plain language of the first amendment amendment that says, congress shall make no law abridging freedom of speech and giving meaning to those words. the commerce clause of the united states constitution, now i am getting into nerdy jargon
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here, but this could not possibly be more important. the power of the federal government to regulate commerce has basically been interpreted by the supreme court to mean the power to regulate anything, even the power to regulate what individuals did in their own homes that never passed into the stream of commerce. cases,the most infamous wickard versus over, while individuals work growing food on their own farm for their own consumption, congress regulated that and the u.s. supreme court of course it is a commerce case because after all, these people are not buying something from some other state, therefore it affects commerce. again, a plain reading of the commerce clause would have you believe that it actually requires commerce for congress to regulate it.
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the u.s. supreme court has rolled that back pretty significantly. then an area near and dear to my heart, the issue of federalism, which i think is more important today in the divided red and blue america than ever before. it is so important states be able to reflect the maximum possible degree, the values of their citizens, whether it is for greater regulation or greater freedom. reduced to what the u.s. supreme court in the 1940's called altruism. ital agian. ai even in the obama case, the courtn. ruled 6-3 that are funding could not be used to coerce states into adopting the federal government's medicaid or medicare regulations.
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so federalism now is alive and well. areas wereof those 5-4 decisions, nearly every single one so the switch of a single vote in any of those areas could be very, very decisive and very, very sweeping. mi optimistic about what the future holds with regards to the u.s. supreme court? i am fairly optimistic. court's fulcrum is the california representative , anthony kennedy. on the one hand, justice kennedy is more conservative than not. and i know all of you can think of instances where the not part is true.
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but generally speaking, for -- in fact, on all the areas i just listed, justice kennedy has voted with the conservatives more often than not. that i viewo say, justice kennedy's decisions as unmooredcreasingly o to the rule of law, even decisions i agree with. like the case involving the interstate transportation of sale of wine to consumers, which people outside of california care very deeply about. 5-4 and eveneld it that decision, while i was so grateful that justice kennedy wrote the decision, i thought it could have been much, much stronger.
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he is, of late, tended to focus on things that are wonderful what he calls, the constitutional right to define and express one's identity, nobility, dignity. all of these things are wonderful that they are not -- wonderful but they are not constitutional principles. i worry about a court even when i agree with its decision, hitching its decisions to things like nobility and dignity. because they are in the eye of the beholder, they are not words that have clear ascertainable meaning. and when you give judges words that have no clear or ascertainable meaning, they can invest their own views on this subject. dustup withad a
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regard to a decision by justice kennedy. in a criminal case. and i do not practice criminal law, that i find criminal cases often to be the most interesting cdocket.urts' one of the areas the courts have been the most active lately is juvenile killers and what i spent they can be needed. one of the areas of the court has essentially committed constitution is in the cruel and unusual punishment context which they have reinterpreted to be cruel or unusual punishment. if it is either, it is unconstitutional. i disagree with that because the words of the constitution say cruel and unusual, obviously for a reason. heldtheless, the court that juvenile killers cannot be sentenced to death. recently, the court held
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that juvenile killers cannot be sentenced to life in prison without possibly of parole unless there is a determination made that they are, at the time of their sentencing, irreparably corrupted. in a recent decision by justice kennedy, he said, a court has to determine -- and this is all coming from, i don't know where, it is not coming from the words of the constitution. and in fact, he gave a hint as to where this is coming from. he said, there has to be a determination that the youth at the time of the murder was irreparably corrupted as opposed exercise -- and these are the words out of the decision -- transient immaturity.
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transient immaturity. and i wrote a concurring opinion in my court applying this decision, which we have no choice but to do. transient immaturity is when my 12-year-old daughter slugs her 15-year-old brother. it is not when a 17-year-old commits a cold-blooded, premeditated murder. and the court then went on to say something else and this other me even more than the transient immaturity language. the court said, it is our instinct that the vast majority murderniles who commit are not irreparably corrupted. in a vastore, majority of cases, they must be given parole. this is like a crystal ball kind of thing and getting into the minds of these people. ofound that to be so bereft
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mooring in anl opinion in which we now have to go back in the state of arizona, the state of california, all 50 states, and it resentenced every single juvenile murderer who is not given the possibility of parole. some of these go back decades and the courts have to figure out whether or not at the time they were convicted and sentenced, they were irreparably rubbed it. often,'t read about this it's not front-page news. but as i go about my job and i have to apply in the area of federal constitutional law, decisions to the united states supreme court. when i see cases like this, i think to myself, there is something seriously wrong having said that, i think the glass is more than half full and i think
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the glass got replenished by justice neil gorsuch. [applause] i had the occasion to read a couple of dozen of his opinions as a federal court judge in a circuit and i loved what i read. i was actually inspired by what i read. there were two aspects of it that i will share with you. the first is, that no matter what the issue was, judge gorsuch always started with the text of the constitution or the text of the statute that he was playing. every single time. he credited opposing views, he acknowledged in some cases that there might be different outcomes, different meanings, ambiguities and so forth. and as a textual list, and this
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is something i really need to emphasize, if you are at genuine textual list, you believe in enforcing the rule of law, sometimes you are going to produce outcomes with which you personally disagree. and i can say that personally in a year and a half that there have been multiple cases that i have joined or writ that i would not have supported as a policy matter, but again, i'm not a legislator, i am a judge. sometimes that means you enforce the law in a way that you disagree with. i saw instances where i think he did that come up but he unfailingly starts with the text. if the text is clear, that is the end of the analysis. you don't look to foreign law. you don't look to instincts. you look to the law.
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[applause] the other thing, and this was also inspiring as well, gorsuch is one of the nicest judges i have ever read. and he is always come from entry ,f his colleagues, sincerely so and even to the divergent views with which he is disagree for and as you may have -- disagreeing. and as you may have heard, this is not the case with justice scalia, who could be caustic with his commentary. i think gorsuch was a to justiceal heir scalia, but he is a bit more of a sweetheart, at least in terms of his prudence. the prospect for change on the court are significant. three justices are in or nearing thiss, the
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composition of the court and i hope that this president or any forsident will look candidates like a justice gorsuch who adhere to the rule of law. optimism source of my is the area that is closest to home for me and that is state courts. enforcing state constitutions. we often talk about our devotion to the constitution. of course, all of us have two constitutions. and it was our state constitutions that were intended to be the primary source of the protection of our rights. and indeed, every state constitution contains greater constraints on the power of government and greater
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protections of individual rights than the national constitution does. and too often, we overlook state constitutions as an independent source of our rights. what is really nifty about state constitutions is that state courts can interpret them to provide greater freedom than the national restitution, but they cannot interpret them to provide less protection than the federal constitution. i call this a freedom ratchet because you can only decide in one direction. obviously, if you decide your state constitution gives you less protection, the federal constitution steps in and gives you greater protection. it is really a tremendous thing. just to give you one example of a case that i litigated a few years ago, most state constitutions contain a
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provision that i wish was in the federal constitution called, the gift clause. the gift clause provided gifts of public funds to private corporations, individuals, or associations. you can imagine no such provision in the u.s. constitution. we use that to strike down taxpayer subsidies of shopping malls in arizona. and you can imagine, and you know as californians, you know that the myriad instances in which taxpayer funds are given to private individuals for various purposes. and i am happy to say that our supreme court before i was on it did rule that subsidies of ruddick corporation's were unconstitutional -- of private corporations were unconstitutional. that is one example that state
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cuts editions can provide theter freedom than national constitution. i hope you will all debate the state and direction of the judiciary committee both here in california and at the national level. the president and the senate and court of public opinion are all implicated by this and all of you can be influential in directing how that turns out. sayingto finish by again , and again i acknowledge the tremendous mistakes that courts have made over the years and increase since of power, but one of the things i love about the judiciary and one of the things that attracted me to a career as a lawyer, was that it was the ultimate level playing field. no matter how much money you have, no matter how much power you have, when you get to court,
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you have the same number of pages in your brief, the same number of minutes of oral arguments, the same opportunity to present witnesses as the other person. reasons i am not really sure about, i often think of a case that my colleagues and i at the institute for justice litigated in the 1990's. it was a case involving eminent,. i'll -- eminent domain. a lady named vera had lived in her house for many years. she was a widow there much wanted to live out her life in that house. and unfortunately, the very rich and powerful local developer had other ideas. useanted that property to as a parking lot for his limousines. so he went to the city of atlantic city and said, i would .ike to have that property
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and the city's head, we will use eminent domain to take that property and give it to you. i'm happy to say we went to court and as an example of how david can defeat goliath in the courts of law, we won. well, it turns out that the story has a very happy ending for everyone involved. vera was able to live the rest of her life in that house. the developer went on to be elected president of the united states. [applause] and my colleagues and i can say we beat the president of the united states in court. [applause] how much better can it get? i want to thank you for having me. i'm delighted to take your questions and i just want to finish by saying, go get them.
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they do so much for having me. [applause] -- think you so much for having me. havingk you so much for me. [applause] there are three areas i cannot comment on. one are cases that are currently pending anywhere. i mentioned the immigration cases as an example. secondly, any issue that is likely to come before my court, and finally, politics. [laughter] >> everyone is going to leave. not answery have to some questions, but i'm happy to answer the questions that i can. >> i'm going to use my executive privilege because i thought of something as you were speaking. i was very impressed by the thought of it. have to go what is really there versus -- not policy, but it is the law and
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constitution. perhaps it is my myopic view, but it seems like only our side does that. can you comment on, we are getting where we want to go regardless of the law? that was my impression. clint: i think it really comes down to intellectual honesty. neither side has a monopoly on that. there are liberal judges and liberal scholars who are ists andy textual believe they are constrained. there are conservative judges and scholars, some, who picked the outcome and just go in that direction, do whatever it takes. and both of them, whether i thinkor conservative, they do damage to the rule of law. but nonetheless, constitutional
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fidelity has generally in a hallmark of conservative scholars and conservative judges. and it's just the way that we see the world. philosophy that our law thation is higher mortals,us not as mere but from a higher source and that these are the rules that the constitution embodies, the laws by which we should live and we believe in them very, very strongly. everthink it is simply nature to be drawn to that. and i think it is very important that we are intellectually honest because that is the sort of thing -- when people see consistency, when people say,
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well this president's executive orders are terrible and go president's re constitutional boundaries, but this president's don't. you have to be consistent area you have to believe in the separation of powers whether your person is president or not. and it now, i think it is important for us to show our intellectual consistency and honesty. this is a short question and maybe has a very long answer, but what do you about dividing the ninth circuit? clint: i support dividing the ninth circuit. [applause] having said that, it is much easier said than done. i support dividing the ninth
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circuit for one very, very strong reason. it is sois, that large, that you cannot get all of the judges in the same room for the same hearing. and as a result of that, you have competing, conflicting decisions from the very same court. you can say this panel of the court is saying one thing and this panel is saying another. you cannot have that. you cannot have that. and other circuits result that to a process that is called en banc review, where they all get together and decide the case. the next circuit cannot do that. they cannot establish a consistent rule of law. so i do support dividing the ninth circuit and it is merely a huge question of how on earth you divide a circuit that is
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overwhelmingly dominated by one state. it is very difficult to divide the state because then you could get conflicting roles in northern california and southern california or eastern versus western. and that would be -- and jurisdictional issues and so forth. so who gets california and are circuit is the real problem with withg up with a solution which the problem is very, very real. >> we have a variety of questions around much of the same topic, which is a polite way to say that perhaps the old and decrepit judges, is there recourse for judges that have life terms? is there any point in time something can be done about that? clint: in arizona and some other states, we have a mandatory
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retirement age of 70. that is, in my view, perhaps a little -- as people work longer and state mentally acute longer, that may be too young. as far as the federal judiciary is concerned, there really is very little evidence for this. i know a tremendous amount of pressure if one of the judges is losing it, his or her colleagues will definitely let them know. it means a tougher burden on them. , whichrt of impeachment obviously has only been done a couple of times in american history, that's the system that we are living with. >> we have a few younger people in the audience and this question came up. which law schools in your opinion are good and not biased? clint: ok. [laughter]
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first of all, if you are an aspiring lawyer, please introduce yourself to me. --ave meant toward a lot a lottoward -- mentored of young lawyers. my favorite part of my job is having two law clerks every year and teaching them and learning from them, especially the technology stuff. really, really love my work with aspiring lawyers. know, the world of legal -- the world of law schools has changed dramatically since i went to law school. and the main thing that has changed it is an organization hold in enormous the high
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esteem, and that is the federalist society. done law not only schools, but also the judiciary committee. they have had in a norm on the judiciary. what they have done is not taken over law schools, republican and libertarian students still constitute a small minority, but what they have done, they have first of all made it a congenial thing to go to law school. you have friends who you know you share values with and the federalist society also has basically introduced the idea of civil debate into law schools. and so, a lot of deans, liberal deans, have told me there would be no debates and law school if it wasn't for the federalist society. and it is wonderful. what that means is
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that any law school that has the federalist society is a fine and congenial place to go to school and almost all of them have active federalist society chapters. davis, own, modern, uc mater, uc own alma davis, two of my commencement speakers were jane fonda and ralph nader, which afflicted the ideological competition of the school. instead of spending my graduation date with ralph nader, i spent it and in napa valley. i have never regretted that decision. vibrant chapter now. it is a congenial place to go. thing, and i did not know this because i did not have any mentors when choosing a law school, the two things that are
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most important about a law school is the law schools reputation first of all, because doors will close to you if you noto a law school that is as highly ranked as you possibly can get into. so go to the highest ranked school you can possibly get into. and the second part is, the law school that is the most congenial environment. it can be three years of utter hell, so you want to be in a place that you enjoy being. whether that means and why you because you love new york or drake law school because you placehe midwest, go to a that is congenial. you can tell i do this a fair amount. i am happy to do this on an individual races as well. >> would you comment on some u.s. courts talking about sharia law as a cultural metal --
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cultural law? because that is an ongoing issue. t: >> do you really type with one finger? clint: i do. it is really, really test. it has even been on tv. back in my single days, flight attendants would always pay attention to me. they would say, i have never seen anything like that before. i learned to type when i was four years old on one of those old, manual typewriters, bang, bang, bang. and it just got really fast. and i never even found a use for any of the fingers on my left hand. i do occasionally hit the shift button, but it has transitioned me well to the world of cell phones because i am very very fast at that, too.
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>> you said that schools are a favorite subject of yours and perhaps related to other things you talked about. is there a point where a judge it needs to recuse himself from the case? lint: yes. judges, except for supreme court judges, they do not have a rule of ethics applies to them. so they basically, literally have to make it up as they go along. state for judges, if not all judges, are bound by ethics and you must avoid the appearance of bias. that is why i thought you the things i cannot talk about because the last thing i want is for someone to tell me, you expressed a view and the outcome of that case. and as a result, i have had to recuse myself from all cases in
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which i was involved at the goldwater institute. so i have recuse myself from several. i had to recuse myself from a case where i own stock in a company and that sort of thing. large, judges can express views on philosophy. and on cases that are already decided. without tainting their view. and i hope that even those who don't agree with me when they see my decisions, believe that i am an unbiased judge. but in any case, where i felt that i was compromised where i knew the outcome before i look at the briefs, i would recuse myself. >> anyone who follows the courts at all always hears about the
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diametrically opposed living constitution versus protection protectualist. where did that come from? clint: good question. this is one area that i regret that those with whom we would disagree on matters of judicial philosophy have seized the rhetorical high ground. of course our constitution is a living constitution. relevantiples are as to us today, perhaps even more relevant than they were when the document was started. so it is very much a living document. what it is not is a self -amending document. it stays the same and let's the people amended.
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it. [applause] so i would try to recapture that term. thisis them -- if i looked good one i have over 200 years old, i would be pretty darn happy. amusing because it comes out of a declarative statement. why do lawyers in general have so little respect to the highest laws of the land? you can comment on if they do and if they do, why? clint: honestly, and this is perhaps even more damning than the question, i don't think lawyers think about it very often. they think about the area of practice in which they are engaged. and that could be wills, personal injury. and that is an interesting phenomenon in arizona. with the election of governor doug ducey, who appoint me.
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predecessors,his judges are names sent to the governor through nominating commissions. and he has personally interviewed every single judicial candidate in the state of arizona. me these are not -- tell about something yourself interviews -- these are, tell me what your philosophy of the religion, the free exercise of religion versus the establishment of religion. what is the best u.s. supreme court decision in the last 50 years? who is your favorite justice and why? and a lot of people go to that interview and they have no idea what their answers are to these questions. think thatly ignorance is worse than an
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active disdain because you can age with someone with a lack of disdain. most lawyers don't give the constitution much thought. , it of the remedy of that try to be a part of solutions to problems i identify. by making my teaching debut this fall at asu. i will be teaching and what inal law 2 want to teach my students, and i really hope i am able to do this, is not just what the law is, but a love, a love for the constitution and a love for constitutional law. and if they have that, even if they go into water law, there is reading u.s.o be supreme court decisions and internalizing them and analyzing them.
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and if we have lawyers who really care about the constitution, boy, that is a huge part of the battle. [applause] >> we talk about dividing the ninth circuit. what would it take to divide the state of california into two to six states? [laughter] i have no idea. i would like to hear from you how to do it. >> i have heard two or three. six would be interesting. we have a couple questions about article five. we talked about that. clint: this is a controversial subject and that is whether the people should invoke article five of the constitution. some enthusiasm for that idea. the framers, in their wisdom,
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give us not one, but two ways to amend the constitution. the convention idea has not been used since the 1780's. but it is a mechanism that the people themselves can use to alter the constitution. there is a tremendous division among conservatives and it's one that i hope does not spill over because the people on both sides of this debate are of entirely good faith and i hope they will respect each other's opinions and the good faith with which they hold opinions. i do note, and some of you may not know this, i am sure all of you know former senator jim demint stepped down as the president of the heritage foundation. he has not joined the convention of the states idea.
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in a formal capacity. i tend to support the idea. and i am not hugely educated on it and i am not directly involved in the effort. here is the ultimate safeguard of the convention. i know people are terrified of the convention. 38 states have to ratify any constitutional amendment proposed by a convention. ratifying 38 states and anti-freedom amendment, it's done. we are done. all right? and i don't think that will ever happen. and as a result, i am not as concerned about the negative aspects of a constitutional convention. the positive aspect is that oftentimes, when the people view,exerting this
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congress responds in a positive way because it puts chairman is pressure on them. let me give you just one really quick example that i am a normal sleep out of. it is not the convention idea, but the goldwater institute started an idea called right to try. some of you might be familiar with it. it is a state provision that says that individuals with fatal diseases have the right to choose, the right to access medicine that is experiment and not approved the fda. -- approved by the fda. that has gone through clinical trials. the state may not have the power to do this. this idea spread like wildfire and now over 30 states have approved it, including governor jerry brown, signing california's law to this effect.
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we thought that the fda was going to file a lawsuit to ofllenge this as a violation federal sovereignty over international commerce. we were sure that was going to happen, we were preparing for litigation. instead, they backed down. they changed their process, forh took months to apply an individual use of an extremity drug. -- an experimental drug. almost no one had the resources to do this. ofy cut it down to a number hours. and that is what i see potentially happening the convention idea is, it is a title way. .t is a tsunami -- tidal wave it is a tsunami.
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the last thing congress wants to have its hands tied with a constitutional amendment. it is a fairly pragmatic perspective i am voicing. , could be dissuaded from that but by and large, it is an idea that i think is a good one. and the framers intended for us to use it. [applause] >> good answer. we will end with something a little philosophical. when evaluating a lot for constitutionality, which is more important? the perceived intent of the law or how the law will likely be implemented? clint: that is a really good question. how the law will be implement it or the perceived intent. first of all, as i've said over and over again, the text of the law is what is crucial. and it to give you an example of that, segregation was a widespread one of 14th amendment was passed, but the 14th
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amendment guarantees equal protection under the laws. if we interpreted it according to what the framers meant, we might have segregation today. instead, the courts rightfully, inimately, interpreted it according to the plain meaning of the language of equal protection and the philosophy underlying that. i think that is the right thing to do even when it leads to an outcome that you might disagree with. that -- this think is such an inch in question -- i think that intent is much more important than how the law will play out. isrecting its own mistakes the role of the legislature, not the role of the courts. scaliafact, this is a quote that i absolutely love.
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passes crazy laws all the time. he says, our job, if they sent us garbage, is to send garbage back. garbage in, garbage out. [laughter] -- i am veryly effects ofabout the this sometimes, but we are not in the business of correcting legislative errors. we are in the business of enforcing the will of the people , especially through legislation, unless it by late the constitution. thank you so much. [applause] wonderful audience. thank you. >> thank you. see you next month. [applause]
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[captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit] >> sunday on c-span, we look at how teachers is current event to show students learn about government and politics. >> mr. president, a great nation is not simply one judged by how many millionaires and billionaires we have. and by how many tax breaks we can give to billionaires. a great nation is judged by how we treat the weakest and the most vulnerable amongst us. those people who don't have fundraising dinners, those people who don't contribute hundreds of thousands of dollars into the political process. a great nation is judged by how we treat the children, the elderly, the sick, the poor. the people who have disabilities. that's what a great nation is. this legislation is not worthy of a great nation. this legislation must be
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defeated. i yield the floor. many andice out of what topic has consumed washington. health care in america. >> it plays out in the classroom and all day long. when the days of the house voted on the bill, i was watching the bills and it was my student saying, my brother is diabetic. this is going to change his life. what do i do? i should have been paying attention. i think for this issue, it is so resonant and in the classroom and we have to talk about, what do you do? it starts with making your voice heard of it don't get cynical. it's all the lobbyists, it's all the special interests. they can't vote. you can't. >> watch the entire conversation with two high school teachers. -- theirdozens


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