Skip to main content

tv   Former Clerks Discuss the Supreme Court  CSPAN  October 4, 2019 1:07pm-4:01pm EDT

1:07 pm
and in about 30 seconds i will adjourn our six annual. it is the friday before the first monday, can mark your calendar. herell be back, hopefully next year, and with that i think our moderator and speakers exceeded expectations, please join me in thanking them. [applause] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] [captions copyright national cable satellite corp. 2019] >> if you missed any of your -- of our coverage, you can see it on our website, [no audio] -- c-span.org and type supreme court in the search box.
1:08 pm
a live look at the upcoming term continues with remarks from former u.s. supreme court law clerks. the george washington law overview and the national constitution center started about 10 minutes ago. >> one thing that just struck me was that there was a component to the interview, but the result was a very personal component and what she talked about is that she really cares deeply that the clerks are civil with each other, and are good people and we'll get along with each other and with clerks for all the other chambers. she will try to screen for that. that was that, and i got a call a week later and i was obviously thrilled to say yes, and it was an amazing year. >> so, i will turn to rory little. au really did in a red -- and real sense clerk for five justices which has to be the modern record. tell about how you got hired by justice stewart, and then how
1:09 pm
you came to be the serial law clerk. many boston's we have in the crowd. if you are still looking for a job. got there through the backdoor door in the sense that i applied twice to the supreme court, two different years and was rejected by all nine justices two years running. and, i had a visiting professor at yale i was disenchanted who wrote a letter for me, and when he wrote the letter he said to me oh, by the way i will write for you, but you, but you've got to remember that this is like being struck like lightning. he was trying to let me down easy. like, you will not be in that group. not welltewart, it was known that the retired justices had clerk, and a friend of mine was clerking and said you are
1:10 pm
done. you did not get picked, but have you thought about the retired justice. and i said i had not. i sent a letter in, and what i did not know, i had interviewed with powell, and powell had sent a note saying if i could've hired a fifth clerk i would've hired this guy. i got that job through interviewing with powell. i just want to say that you cannot prepare for these interviews. i thought that there would be a substantive component and justice powell really wanted to talk about nothing other than who i was, where i grew up, but my parents had done and what their parents had done. it was very personal. i was not prepared for that. there, i wouldt just say justice stewart sent a note around saying this guy is available because i only have halftime work, at which point chief justice burger let me do memos for him.
1:11 pm
two months with powell, stevens, and o'connor, and then brendan took me up as a full-time clerk with dutch is a full-time clerk. at the end of two months with stevens, he died could you stay with me full-time. i i went to brandon and said would be looking for these others. and this said -- and they said it does not matter. there is no confidentiality here. so that is what i did. and two months with powell. the only person i did not work or it justice o'connor. when she learned that i would be full-time, she said i will pull out of my two months with you because she was worried about confidentiality, and she later said to me that i was new. it shows you how long it has been. it was great. >> you have been able to hold
1:12 pm
down a job a lot better since then. , a two partquestion question. it is great being able to ask multipart questions. my question is this, tell us about your interview with justice stevens. as a sitting justice on this panel, tell us about how you interview candidates? >> i was a little afraid he would ask this question, because i remember everything about the day i interviewed for my clerkship in extraordinary detail. themember getting off metro, walking out in front of the library of congress and walking into the marshall's office to wait to be picked up. i remember virtually nothing about the interview. experiencet of body thinking oh my gosh, i am talking to john paul stevens. i remember one question that he asked, which was what supreme court decision did i think was the worst. of ever, ormoment
1:13 pm
recently? but the remainder of the conversation apparently went fine. >> what was the answer? have you wiped that out too? justice leondra: i may have as well. i may have named a recent decision. unsurprisingly, he had dissented from. >> that is a sympathetic way of putting it. talk a little bit about how you interview clerk candidates? justice leondra: i try to get a sense of why they are interested in the job, what interests them and clerking on a court as a last resort because the role that we play in our system of appellate review in california is different from the other courts play including a mint -- intermediate courts. i like to get a sense of what is the candidate's interest in
1:14 pm
working on these issues and the law generally. where does this fit into the set of thoughts about the range of things that might be of interest to them after the clerkship experience. one thing i learned from working with justice stevens and returning to visit with his law clerk family is the importance of not only competence, but also character. one of the real -- one of the things that strikes me about the way justice stevens selected clerks was that he was interested in finding people who were not only very good at learning the law and doing the research, but were also nice people, people to be around and people who were inclined to lend a helping hand to people around them. that is something that i try to look for as well when i do my hiring. >> just a point of clarification, you are not a court of last resort, i am about
1:15 pm
to file on one of your last decisions. just to be clear, you did not write the opinion. the odds are mathematically in our court's favor. john, tell us about your experience being hired by justice kennedy? john: it is a very complicated, or was a complicated process. he had two rounds. you had the screening interview with former clerks, and then you went into the justice's chambers. both the screening interview, and the interviews with the clerks tended to be substantive, so you literally prepared for iq what an exam. he read a stack of justice kennedy's opinions to get a sense of his work, and answer questions about it. it came at a good time, because i was given a screening interview right after the
1:16 pm
blizzard of 96. so i was literally trapped in my crummy apartment in crystal city , and i had nothing to do but read the opinions anyway, so that was fortunate. muchnterview itself was more, if you had gotten to him, to-- all of his people talk you and he has decided that you have the stuff. the question is what kind of a colleague you would be. so i pulled the wool over his eyes. how he began.er he said, "so how am i doing?" and that is kind of an open ended question and potentially fraud. but not remember my answer, apparently i did not offend him. an incredibly was gregarious -- good -- gregarious person.
1:17 pm
that may reflect personality differences. >> are you going to tell us about your interview? access theg to moderator's prerogative. but i will say i remember everything but the interview. i will throw a fast all at the panel, and it is this. one of the criticisms of the clerkship is that it is a very elite and clubby institution. and this people convinced -- consists of five people, two who went to harvard and the others went to another well-known law school. aidard and yale provide vastly disproportionate number tendw clerks and justices to hire disproportionately from the small number of court of appeals judges, any of whom are
1:18 pm
their friends. what do you say to the criticism that this is not a terabit -- terribly meritocratic institution? nobody wants to answer that question. i have tenure and i will not get nominated for everything. i will say of course it is not a meritocracy entirely. it is a set of connections and it is horribly that way, each does not mean you cannot break out of that. -- which does not mean so -- that you cannot get out of that. some of the justices are trying to hire from a diversity of law schools. some of it has to do with the belief, which may or may not be true that these law schools do produce really good lawyers, and that they today at least screen. >> half true. nobody got my joke. rory: we all probably could tell
1:19 pm
in candid moments if we were thinking of our futures, good stories of connections that were developed through schools. add, ione thing i would think i am somebody who went to law school not really knowing what it meant to be a lawyer and a lot of lawyers very up close and personal. i think i went to yale law school, where there was a very substantial culture of clerkships and a focus on the importance of clerkships and the value of having that experience. i might not have gotten quite as much as if i had gone to a different school. that is part of what set my mind and opened my mind to the possibility of clerking after law school. and part of what ultimately led me to throw the applications into the mail where i might not have done that if i had not gotten the same degree of
1:20 pm
encouragement. when i was in law school, that was part of a culture of clerkships, and a lot of can zaidi -- of anxiety among the students of developing the relationships with the professors who knew the judges and so on. i found that dynamic pretty offputting and difficult to navigate. to bypass it as much as i could. part of what ultimately led me to apply for the clerkship and part of what ultimately helped was the set of relationships that i developed after law school when i had started working. day-to-daytual working relationships with practicing lawyers who both provided the kick in the pants that jane was describing to get the applications in, and necessaryhe support and the willingness to vouch for me and liabilities, and my
1:21 pm
potential -- my abilities, and my potential of -- as a lawyer. any other thoughts on the subject? i think that there is a much broader pool of people who can do the work than who are what yourbut profession or -- or what your professor told you about lightning striking is bright. there is a fair number of people who could do this work, and so it really kind of just depends on winning the lottery once you are there. so i was oneale, of the schools that produces a lot of the clerks. but i did come through a judge, i was his only supreme court clerk ever.
1:22 pm
why understand somewhat of justices go back to the same clerks and judges so often, just because certain things are so important. having the recommendation of somebody that you trust and somebody who has given you reliable advice in the past can be very helpful. i understand, and you see the cases that they take that are so hard, you can see that they do not want to leave anything to chance. have all that much to add. it felt like lightning struck, and it is lightning striking. there are certainly more qualified folks out there that can do it than people who get the job. the only thing i would add is that i think it is getting better, i think the justices are making an effort to look at schools beyond the top five or the like. i noticed that just as gore
1:23 pm
shakes -- or sick has a committee and looks beyond schools like harvard or yale. and, lunch you are -- once you are out of the pile i would say it is substantive, and personality. and, then the only other thing i would add is that i think it would help, and i also felt that it was offputting in law school ly compete forive a clerkship with professors so i lucked out and having as a circuit court judge someone who was a phenomenal mentor for all of the clerks, so they really pushed us to achieve what he believed we could achieve. i do think it is important nevertheless to have someone behind you or some mentor behind you pushing you to take those steps, and also be willing to make a phone call, because they
1:24 pm
do matter. thatnot know if you -- if makes it elitist because phone calls are based on merit and is a professor saying this is the best of the crew i have had, you should take a close look. it does not mean that the person will be hired. that is one piece of advice i would have. rory: this is for the students here from gw. there is no direct path from this -- to this. my strong advice is follow your and not some sense, some preordained path that you think works. one, i turned down a circuit had been sentch i to buy a screening panel at yale. when i got back the professors who had set me up to the circuit judge said why did you pick this obscure judge, and i said this guy was a jerk to me, frankly in the interview, and i liked this
1:25 pm
district court judge. i did not have any pretension of going to the supreme court. two years later, justice o'connor had picked another clerk from the same district court judge. at which point the national journal that said this guy was a feeder to the supreme court. i did not have a letter from a prominent professor. i had to use a visiting professor who did not like yale. so we would run together. he was willing to write me a letter. and it turned out that he had clerked for justice powell and it -- and justice powell had interviewed me. -- sheget stuck in the is exactly right, don't get stuck in doing the right thing to position myself and something five years from now. it does not work that way. is about the
1:26 pm
clerkship experiences, we should probably talk about them. just give us a sense of what it was like to clerk for your justice, what you did, and what the day-to-day life of being a supreme court clerk was like. john: i had the office closest to justice kennedy, which meant that he used me as the administrative person. he used me for all sorts of default rings. once i got a call from him when he was on the road, and he was in asheville and he said, john i need a good barbecue place. the internet,fore so i had to go on to look. i found him a place and it was located next to the hospital. the opinion work and getting them ready for the arguments, so there is merit work, and then there is the emergency stuff
1:27 pm
like death penalties and things like that. and then the bullet that i dodged, speeches, i never had to write a speech. i feel like karma is going to bite me at some point for that favor. whateverhappens to me, grievous disease i die of, it would have been worth this -- worth it. is just constant, you have to do that every week. and stay on top of that. glamorous work is the stuff. by that work -- you mean review of petitions to the court. john: yes. the most noteworthy is that justice kennedy wanted to talk about all of his cases with all of his clerks, and so we would sit around the table and we would have an opportunity to talk about it.
1:28 pm
we would take it seriously and we would talk about it endlessly. are soap cases that secure, like admiralty cases and we would talk about them for hours on end sitting around a table. i thought about the three stooges joke where you paint eyes on your eyelid so you could fall asleep, and they think you will staring at them. but he took them all very seriously. one thing he was fond of is that he had a big pad, and he would find a way to do a diagram for almost any case even if you did not think -- we would use the diagram for the admiralty case, so i do not understand that. that was one of the good things, you would get an opportunity to chime in, although it was also a curse. --justice stevens was fate purdue -- was famous for doing a lot of his own graphing --
1:29 pm
drafting. did that make the experience a little different? justice leondra: it made it a little bit different. it did not make it as different as i had expected it to be before i started it. justice stevens famously would write his own first drafts for the purpose of assuring himself that he had cast the correct vote in the case after the opinions had been signed. he wanted to make sure that his reasoning held up. for him, writing down his reasons for a particular vote was a disciplinary function to make sure that everything held together. at the very beginning of the year, sometimes the dress would come in and they would be fairly complete. it would be some additional research and citations. we quickly learned that that was not always the norm. he would write just enough to perform the function of making sure that he cast the right to vote, but not more. sometimes we would be sitting around the table talking about a
1:30 pm
case after conference when he was reporting what the vote had been and what the likely outcome was, and he would go back to his office and half an hour later an email would pop up with two paragraphs with the seeds of the separate opinion. it was my job to and makehat reasoning it into a full-fledged opinion. it was really remarkable in a lot of ways. justice stevens, at the time i clerkedfor him, -- i for him, he had been on the court almost 30 years and just brought to every case a wealth of background knowledge and inside baseball about the set of precedents to this point, but also he treated every case as an
1:31 pm
opportunity to learn something new about a new area of law or life that he may not have learned much about before. in addition to being an incredible educational experience, it was a lot of fun. kannon: rory, you are in the unique position of being able to compare and contrast across multiple chambers. give us an idea of how the various justices differed. with i will share an idea the clerks in the audience. one of the huge values of this much thee is not as relationship with the justice as co-clerks. myse are still some of
1:32 pm
closest friends and some of us are still having a reunion this weekend. that is a huge thing to think about. there is a basketball court in the court. did you ever play in the court? >> not very well. but: nobody plays very well that is why we are all law clerks. it is important to do that because the collegiality among the chambers was important to the way the term went. no earthew decisions, shattering once, but the clerks all got along. the idea i want to put out there, i don't know why justices don't share law clerks across chambers. i will publish this in the gw law review, the idea of sharing clerks across chambers. lots of clerks do this.
1:33 pm
attorneys work for lots of the judges. it leads to a better exchange of ideas and work product. what is different? first, justice stevens did exactly what you said. he would sort of go into his chambers and produce a writing. justice brennan never did anything on paper. we would just sit for hours. it was called coffee with brennan. until 1:30 in the afternoon. by the time you sat down to write something, you had talked it through so much that you were just holding the pen. one time when i was writing something for justice stevens, i was sitting at coffee with brennan and he was writing the other side. i said i should leave the room because i working on the others. he said, no, sit down.
1:34 pm
i want john to know exactly what i think. on the other hand, justice stevens wants hand me an opinion, a draft. it was an obscure case. he said, i think this is pretty good but you can work on the footnotes. [laughter] which i thought was a pretty clear signal. they were different but i don't think they were different in how they treated their clerks. i don't know anyone who clerked for brennan or stevens who has anything good to say. you will hear from judge wood later but judge blackman was the opposite. they would produce 30 page bench memos and the brennan clerks would just sit around and have coffee. [laughter] foron: jane, you clerked
1:35 pm
two justices who i think it is fair to say have somewhat different jurisprudential views. talk a little bit about what it is like as a law clerk when you are clerking and might have a different reaction to a particular case. jane: i get this question a lot. think the experiences to me were more similar than dissimilar. my job was pretty much the same and the justices were focused on pretty much the same thing. they wanted a bench memo. sotomayor wanted a more thorough bench memo whereas gorsuch wanted us to talk it through so he had a short memo. but they just were both interested in, what does the law say? one was more interested in what does history say, one less so. but that is a little bit in the
1:36 pm
details. the process of doing the bench memos, talking with the justices, creating the opinions, it looked very similar. of sayingy, in terms how i would feel if i differed with the justice, i would say something that justice gorsuch always told me, that justice white said when he clerked for him, that no one appointed me and i was not confirmed by the senate. at the end of the day, it was not my job to push my jurisprudential view. there was one point with the justice where i disagreed quite strongly and we talked about it for weeks on end. the justice said, thank you very much, i appreciate your views, we just disagree. we went around to every chamber
1:37 pm
and tried our best to get other justices to agree with that view because that was my job. it didn't make it difficult for me to work for two justices from what some might perceive as different ends of the spectrum. the differences between the justices are often and weated in the media, shouldn't forget that 40% of cases are decided unanimously, these are the hardest cases in our system. nine justices. are cominges together unanimously 40% of the cases and that number has remained essentially consistent for the last 100 years. the number of 5-4 cases this past term was maybe 18 but most
1:38 pm
of those were not the 5-4 we think of. the 5-4 we think of our just a handful. the differences are exaggerated and similarities should be looked at as well. , both justicese gorsuch and sotomayor treat their clerks the same. sotomayor routinely officiates wedding. justice gorsuch has people over. they come to thanksgiving, christmas if they are not flying home to be with their families. they are fundamentally very good people and treat their clerks well. kannon: let me ask about the role of the law clerks because there has been a lot of writing with some criticizing the law clerk system for giving law
1:39 pm
clerks significant power and responsibility. having spent a year, more than a year at the court, what is your reaction? anyone can weigh in on this. justice kruger: my view may be a little bit colored by who i there was really thatrt of, no doubt justice stevens, was such an independent thinker and so many ways, was going to make up his own mind. he was already a very experienced judge by the time i clerked for him. the value of the clerkship from his perspective, i think we tend to forget in the outside world that really conversations about these difficult cases are
1:40 pm
confined to a small number of people. a judge can only really talk about these difficult issues with the set of people who work in their chambers. for justice stevens, as for his colleagues, the clerks fulfill this role of sort of being sounding board for thinking through these difficult issues, running down loose threads in the doctrine as it has developed over time. is any doubt there that at the end of the day the decisions belonged to the justices. >> let me pull the veil away a little bit. i don't disagree with anything you said but i think the reality is that clerks have a large impact on what i call the footnotes, the details. this is part of my sharing of law clerks idea. i can do give instances where i went running or had a cup of
1:41 pm
justice's clerked from another chamber who was opposed to the decisions of my justice. i said, what about this from that one footnote, could you just change that one thing? sometimes they would. law clerks have an impact on the details. the details often come back to haunt us later when we are making the decision or trying to apply them. chambers, nothing got out of the chambers until all four clerks worked it over. with justice stevens, they really was more of a one-on-one dialogue. of course, he was a smart lawyer. it seemed to me that, the wider the range of discussion, the better the work product.
1:42 pm
i'm going to throw that out there that collegiality along the law clerks matters. kannon: what about the fact that a lot of the communication that takes place within the court takes place among law clerks? not always. justice o'connor preferred her law clerks not to talk to other law clerks about her views. but there is no doubt that a lot of the decision-making process flows indirectly through the law clerks. is that a good thing? >> i never got a perception that a lot of the communication came through the law clerks, i don't think that gave power to the law clerks to affect the outcome one way or the other. a lot the years when i think law clerks have disproportionate power is deciding which courses -- which cases the court takes.
1:43 pm
the sheer volume. pool that seven of the nine justices participate in, then you have two justices review all of them that come in. there were occasions when i recall coming upon a memo that was pretty short and in good faith, but it really took me going and pulling the original papers and bringing it to the justice. then, in the chambers that don't participate, i think the justices rely on the clerk to really flag the repetitions the justices should look at. that is one area where there is discussion around where -- around whether clerks have fortunate power -- have disproportionate power?
1:44 pm
associating the decline in the grant rate in part by the accept orlaw clerks deny every case. it is really at the pool where clerks have their most influence. justice kennedy really marked up things very heavily. thing i can say for , in an entire term, i only know of one word that i think, that is because of me, because i took three semesters of college math. i won't even tell you what it is, but it is math related. even though there is or was a popular impression that justice kennedy had no backbone and he
1:45 pm
hisputty in the hands of law clerks, that is not the experience i had. he would do things with opinions that all four of his clerks would say, don't organize it that way, and it would go out organized that way. it was definitely his work product. i would say, about the footnotes, justice kennedy never used footnotes. there would periodically be a footnote-sized addendum to the opinion but there were never footnotes. wrote an entire tribute to justice scalia that my contribution was a single word and single opinion. we have about 10 minutes left so let me raise one other big topic. i don't want to trespass the jurisdiction of the next panel,
1:46 pm
on life after clerking. i want to ask a question about the supreme court clerkship more generally. do we attach too much importance to the supreme court clerkship? does it have disproportionate cachet in our profession? the argument would be that the last three supreme court justices to join the court were themselves supreme court law clerks. that is a relatively new trend. an ever larger number of the judges appointed to lower courts are former supreme court clerks. the bonus for supreme court clerks at most major law firms is now $400,000, which is several times larger than for arguably equally qualified folks who clerk on courts of appeals. it is many times larger than the clerkthat i got as a law
1:47 pm
20 years ago. it is one year in a lawyer's career. do we attach too much significance to it? >> yes. there were no bonuses when i was there, by the way. kannon: you could have collected like $2 million for each of your many clerkships. rory: do i think that supreme court clerks are untalented? no. i think it does give you a certain insider perspective and likely somebody who is a talented lawyer. there are certainly a ton of people who are amazingly talented who didn't clerk there. i won't name names but i do know one professor at yale who never got a clerkship. incredible
1:48 pm
influential scholarship as a result of him feeling, i will prove to them that i should have. he is probably one of the most influential scholars in the united states today on certain subjects. i say yes, but -- but does that mean law firms shouldn't try to hire clerks? no. because,d hire us here's a clerk for justice x. firm, i had occasionally been trotted out as part of a team to sell to the client and that makes me uncomfortable. john: i agree. this is kind of a corollary to my point previously that there are a lot of people who can do this job. clerks whoeme court are not very good lawyers or not very good writers.
1:49 pm
i know plenty of people who were never supreme court clerks who are vastly more talented. i think it is a very inexact fit. on the whole, they are a tremendously talented lot. -- i think the odds are pretty good that they are a candidate, and i think this is why they command such a premium, because there has already been a difficult screening process. we hired two supreme court clerks this year. one of them, i was so impressed. harvard ins prize at like eight classes. the next one had 15. i thought, they are both a lot smarter than me. one thing that i think is kind of funny. there is another clerk for justice kennedy who likes to joke that the two people who
1:50 pm
justice kennedy hired with the worst grades were me and brett kavanaugh. it is good company. one thing that has been really noticeable, and jane, maybe this is a question for you, is that more and more people are doing the supreme court clerkship later in their key greers -- later in their careers. abouthat reflect anything the clerkship, the changing nature of the clerkship? jane: from my personal experience, it was their preference. justice sotomayor preferred people who had worked in the real world. --re was some of what what of what justice kruger was talking about, more people speaking to you are both as a person and lawyer. another component is she just
1:51 pm
wanted people who were plugged in in the real world. justice gorsuch, we have a joke on the committee that at some point we will run out of professors who want to clerk for him. he is cycling through old law clerks, professors. pinpoint aw if i can broader trend, but it seems as though the justices are increasingly preferring folks of a little bit more experience. it makes sense. you want folks who are inexperienced enough not to be set in their ways but not to have egos too large but experienced enough to bring something to the table. >> can i raise the question about the metaphysical importance of the supreme court clerkship? it seemed as though it was an apprenticeship, an opportunity for somebody fresh out of law school to do this as a first
1:52 pm
experience in their careers. now, not surprisingly, it seems that the justices think, the more experienced, the better. choosing somebody fresh out of law school who has never litigated a case versus someone who has years of experience in government write a law firm, you would invariably choose number two. justice kruger: my chamber staff is composed of both permanent law clerks, which the supreme court does not have. i have two of those in three annual law clerks. i have lived experience of sort of the best of both of these models. tohink there is real value having experienced clerks who are deeply familiar with the body of jurisprudence which is coming up repeatedly in the cases that have institutional memory. at the same time, i think it is
1:53 pm
healthy for the institution to have people who come in without a particular way of thinking about how the law works and are willing to do the background work and have the curiosity and drive to figure out, when these questions come up to which there are not clear answers or to which different judges across the country disagree, however we gotten here? how do we think about these questions as a matter of first principles to figure out how the law should develop going forward? there's a lot to be said about having the outsider, fresh perspective in the mix. it is a bit of a specialist's job, so i think that justice sotomayor's idea to hire people who have not done three clerkships is a good idea. someone who has clerked three
1:54 pm
times, you have to want -- you have to not want publicity for yourself, be bound by a strict confidentiality rule, you have to pretty much want to go to the library and research and write and not be actively involved. in be that are successful two clerkships are better at this specialized job. but i don't know a lawyer who doesn't feel badly about something they did in their first couple of years out of law school and those are some of the people now handling some of the most important social cases. on ane court granted cert abortion case this morning and that will affect a lot of lives. that itwith sotomayor is a healthy practice to hire someone who has done something else. i don't know if three courtships -- three clerkships is what i am looking at.
1:55 pm
kannon: john, i will give you the final word? john: what is the one word? kannon: you can have the final two minutes. the: i turned 30 in october year i clerk. i was relatively experienced. i spent two years at the justice department. let'se kennedy would say, hear what the member from doj has to say. i think my years at doj were more beneficial than my time spent clerking, but i do think there is a virtue in getting people who are still junior enough to be terrified. thing isery important to be worried enough about screwing up that you are extremely careful, running down things, a potential for mootness
1:56 pm
, vehicle problems and cases. sweet spotre is a where you have a little bit of experience but you are still willing to work like an insect to make sure things are done correctly. kannon: with that, what a wonderful and collegial discussion. please join me in thanking our distinguished guests. [applause] thatn: i am led to believe the next panel will start at 2:00. [captions copyright national cable satellite corp. 2019] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org]
1:57 pm
[indiscernible chatter] breakyou heard, a brief in our live coverage at a look on the supreme court term, which begins next week. remarks from former supreme court law clerks. this is being hosted by the george washington law review in the national constitution center. up next, a panel on life after clerking. a little bit later, a panel on clerkships and the constitution. this is live coverage on c-span.
1:58 pm
[indiscernible chatter]
1:59 pm
2:00 pm
2:01 pm
2:02 pm
2:03 pm
2:04 pm
2:05 pm
2:06 pm
>> celebrating the 100th anniversary of supreme court courtships. -- clerkships. i'm a lot professor here. thenational conservative -- national center is there to be here to celebrate the 100th anniversary of the federal statute creating the clerkships and we have just heard a wonderful panel about experiences during the clerkship and that we will hear one about life after the clerkships. moderating this panel is the publisher of the take care blog, adjunct professor at georgetown. he is a constitutional lawyer and author of the important book on impeachment which came to the national kesterson center to
2:07 pm
discuss with riveting -- national constitution center to discuss. joshua: thank you for coming. i would like to start by introducing my colleagues. i'm joined by julia, who clerked for justice is brennan and souter, chairman of the fcc and director of the carlyle group. shari at -- clerked for justice kennedy. practice, worked at a usa and now is on the third circuit. gretchen rubin clerked for justice o'connor. she is the author of many best-selling books. if i listed them all, we would be here a while. she is the post -- the host of the happier podcast. and one who clerked for justice breyer, his time includes , works in ausa baltimore, attorney general of maryland, now a candidate for
2:08 pm
the mayor of city of baltimore. thank you for joining. today we are going to be discussing life after clerking. this is a strange topic because every clerk has had a life after lurking and the paths are as diverse as the diverse world. every field of government and practice, far beyond the law. they are like you. the risk of fighting the premise of this panel, there is something to be said that scotus clerks are like all other law school graduates. they come early in the career. they have had limited exposure to the wild world of practice plenty of hard decisions about what we want to be when we grow up. there is no denying the experience of a supreme court clerkship is powerful and transformative. to clerked at the court is to be entrusted with an awesome
2:09 pm
response ability early in one's career. it encompasses every area of federal law. stakes are high not only a blockbuster cases but in every case because they shape the rules by which we live. the pressure to get it right and to serve justice well is intense. not to matter the sleep deprivation. a the supreme court is amazing for those who are short-lived lightning. it can be -- struck i lightning. it can be maddening, merciless and overwhelming. to complete a clerkship is to emerge from a blast furnace, one that passes those who shape -- shapes those who pass through it. i received the same advice over and over again. it was the coolest job you'll ever have by far. nothing else you ever do through the rest of your life will ever compare.
2:10 pm
that was depressing advice to get at the end of my supreme court courtships. it is all downhill from here. the advice was misplaced. the role of a clerk is to serve and advise, execute another's vision, act as their agent, bound by rules of confidence and acting in the confines of those issues that reached the court for resolution. has more torld offer. approaching that world i have been -- benefited greatly from insights from the justice kennedy. i would like to talk about the us since i took from my clerkship and meditate on how practice inaped my the cases i have chosen to work on or engage in. most clerks to justice kennedy would say the first lesson of life in his chambers practice in the cases i have chosen to work is that civility is a virtue and a paramount concern in addressing hard questions.
2:11 pm
a civility can be a challenging -- challenging virtue to live especially in polarized times when accusations of bad faith and democracy are ready to hand and more and more americans are quick to assume the worst of their fellow countrymen and women. it was a sustained education in living civility the way he treated us and expected us to treat each other and the way we approached the cases before us and interacted with other changers -- chambers. that carried through to my own practice. i work on issues that raise tough questions about the intersection of lgbt writes and religious freedom. represent victims in charlottesville under a lawsuit under the ku klux klan act. these are not always lawsuits in which litigants and opposing counsel show civility, in which they show respect or where it seems there is a middle ground to be had in which we can find
2:12 pm
common virtue and build out from there. one of the lessons i bring to all of these cases is that part of the rule of the good lawyer is to treat everyone with who they interact with incivility and to try to present issues to courts and judges in ways that, if i can say this, which appropriately reflect the balance of equities in the case and show respect to all sites even when you are advocating for only the one. not every case is an all or nothing venture. justice kennedy was committed to that. there is balance in the law and that has informed my own work on those questions. the second question, there is more to the world than the federal government. this is something justice kennedy shared deeply about -- cared deeply about. many former clerks and lawyers and commentators fixate on the federal government as though it
2:13 pm
is the other thing that matters and on the federal courts as if it is the only place justice can be had. we all know there are 50 state governments, not to mention the district of columbia in which were important -- in which important work is done. i have taken efforts ranging from transgender people in iowa, women in virginia -- as is the case for many clerks my practice has trenched eons the federal judiciary where the question is not only what do those nine people think of this and into many other states. i have also in that context worked in areas of civil society where justice can be done. this is something justice kennedy was important. it is not the states but institutions of american life you can help build and nurture to try to advance the cause of liberty and human dignity.
2:14 pm
that result may not always be had to the courts. i worked hard with roberta kaplan. helping to build the legal defense fund and #metoo movement and shipping other institutions like integrity first -- shaping other institutions like integrity first america to discourage white supremacy. a lot of good and be done without resorting to the federal government or courts. the third lesson he would impart on his clerks is it is important to be a good lawyer but also to be a good citizen and teacher. lawyers have obligations that transcend mastering doctrine and winning the cases before them. justice kennedy loved the law and doctrine and was a if he could have any job, other than the job he had, he would be a district court judge. he was fascinating the way -- fascinated the way the law works, you are in the court making things happen. i have my share of that love of the law.
2:15 pm
who doesn't enjoy a good brief? i sure do. but justice kennedy was as much a poet and professor as he was a legal engineer and how he thought about the law and role of lawyers. some cases require a 10,000 foot view. the highest calling is not just to litigate but to consider. that is what led me in my own practice to go and find opportunity to teach at georgetown where i teach constitutional litigation and try to carry forward his lesson one of the ultimate roles of the court is not just to make the law but teach it and expound on lessons of the constitution and the framers' design. point justice kennedy would emphasize is the structure of our government exists to protect and is the guarantor of freedom in the united states. he cared about individual liberty cases but a few cases --
2:16 pm
few woke him up compared to the system. he recognized the rules that mark out the plan of our government are the rules in which freedom and equality and dignity is protected and preserved or not. these are i think we can difficultll agree times for american democracy. we may not agree why they are difficult or who is to blame, but my suspicion is many would agree these are challenging system.r our democratic it is in no small part because of justice kennedy's teachings and focus on not just one off pieces but the underlying health of the system i have steered the mythic and parts of my own work and progress in that direction. i helped design and bring the first cases over the president under the emoluments clause is, representing people from new york, district of columbia and
2:17 pm
maryland. it helped me work on cases involving efforts to enforce congressional subpoenas against the executive branch and represented health -- last but not least it led me to the one justwith mentioned to end the presidency and power of impeachment in which the question we fundamentally sought to answer was how the impeachment can work and should in a society that is polarized -- as polarized as ours. in many ways one of the highest calling of a lawyer is to uphold not the rights of any litigant of the cases in front of them but to defend the rule of law and institutions on which the rule of law is based. that was one of the guiding commitments of justice kennedy's career and hope it will remain one of them of my own. we will turn to julius who will the about his background in fcc and carlyle group and many other exciting forum.
2:18 pm
got to the point where i said, he will cover it. julius: i clerked for justice justice got loaned to souter. listening to the panel, reminded me when i clerked for justice brennan it was at the tail end of his career. i was the 100th clerk i think. i don't know if it was annual but i remember one reunion of brennan clerks, and i remember thinking, those former clerks are so old. >> [laughter] julius: although they have had interesting careers. it has been 27 years since i clerked and i am now in that category. it is a little bit strange. i will tell the story of my career since clerking. 90%s about 10% strategy and
2:19 pm
serendipity. feels been great fun and i as lucky and privileged as the career i have as i did when i was at the supreme court getting those clerkships. i am not the only one with a story similar to this but my parents are immigrants, and thet survivors, chance in this country to go to a law school like harvard and clerk at the supreme court was amazing. one of theeme court, most pleasurable moments was bringing my parents to the court and explain to them why nazi germany could never happen because of the supreme court which i assume is still true. with myad that chance parents over the course of my career. lovedd clerking -- clerking. i loved every minute, the
2:20 pm
intellectual challenge, subject .atter, the people it was all great. it was not my first job like some other people. this was a topic in the prior panel. i worked for three years between college and law school, worked for chuck schumer on the hill, the iran-contra committee which people don't remember it but i worked for that. over the course of my clerkship, i had begun to realize i was not sure i wanted to have a conventional legal career. while i loved it, i have begun to believe that for me it would be more enjoyable and rewarding to commit not to expertise in and around the law and legal practice but to commit to expertise around a subject matter. and then have option allergy around that, what i do for the rest of my career.
2:21 pm
the area that i picked was technology media, telecommunications. there was a few reasons for that. my dad immigrated here and became an engineer. i inherited some of that, the love of tech. i had always been an early adopter of different technology and kind of in a happy coincidence, it was just at the very early days of the internet. the internet was up and running. you can find a computer in the basement of a school like the gw or georgetown. it was before routers. when i was clerking, a fellow who is still around and writing interesting stuff now, early to the internet, he said come with me after clerking and i will show you something interesting. he showed me the internet in 1992. when i clerked on the d c
2:22 pm
circuit, i have some interesting fcc and other technology, telecom related cases. when a fellow named chris wright who was a solicitor general -- general'sicitor office, he sent a note around to the court saying i took a odd job as deputy -- anyone want to work in the fcc? general'sat that time not a loe court clerks went to work at the fcc. it was a backwater agency. [laughter] you know that part of the story. but it fit into something i had been thinking about and talked to chris. one thing led to another and i got hired as and to the general counsel's office. pretty quickly the chairman at comeime said you have to work for me. i did that and worked as chief counsel for the chairman of federal permit occasions decision -- commission for three years in the late 1990's, a
2:23 pm
really interesting time. it was the first options of spectrum, telecommunications act of 1996, digital came out in the world of communications. i worked with terrific people. it was great. then i had to figure out what to do next. i decided i wanted to move into get awayess world and from what i had done in washington and try something different. i decided i wanted to find a job which i was too young to realize did not exist but looked for it anyway. i wanted to do something where i would be general counsel and have clear business was possibilities. i talked to various folks and got lucky and got an offer to do that. it came from barry diller who at that point was just starting a company that became icy interactive core. being at abc,or
2:24 pm
reinvented, movie of the week, miniseries area created fox news. people were dubious. he offered me the job i wanted and i became general counsel for his tv operations. no idea what i was doing, but had a great time doing sports rights deals, setting up tv stations. after a couple of years where he had done acquisitions at the parent level, he came to me and said i want you to be general counsel of this company i am building. i said i came here because i wanted to move away from law and to business. i don't think it is what i want to do. eventually i realized i did not have a choice. [laughter] he created an office of the chairman with one other grown-up like him, and the other kid was
2:25 pm
a guy named -- he went on to run expedia and now uber. the four of us worked in that office. it was a little bit like a clerkship in that there was like 1.5 justices and we were sort of the law clerks. maybe we had more responsibility but i did that for a while. 1.5 justices and we were sort of the lawi want to become chief of business operations at the company. it was a fairly large ,ulti-business internet e-commerce digital media company like with expedia, ticketmaster, traditional media companies, entertainment. and then we decided to break up the company into six public companies. if any of you were shareholders at the beginning of the ride it would have been good by the end of it. after that, i had been working hard for a long time.
2:26 pm
i tried to retire. i was commuting between new york and d.c., and back to d.c. and put together a portfolio of fauna committees. i started an incubator for early-stage tech companies, worked on some boards and spent time with law schools, worked with barack obama who had gotten elected to the senate. i thought i might have some advice for him about the role of the technology in politics. this is a topic we had talked about for some time. i can come back to that later. media policy and various ideas, why he should run and why he might win. didn't expect him to. got very involved with that effort and then he won. i would asked whether come in to government and i was open to it. he said work at the white house.
2:27 pm
i said i don't think so. i said i used to work at the fcc and i think i should run that. and he said ok. so that worked out and i became chairman of the federal medications commission. it was a wonderful experience. i wish we could move back to -- had been a lot that i at the fcc and the private sector, had time in congress. those years were filled with net neutrality, wired and wireless, cybersecurity, on and on. and then it was exhausting. and i tried to retire again after that. was old and it was too early to retire. one thing led to another and i took a job as a partner at the group where i am now. i am an investing partner,
2:28 pm
investing and buying companies in the u.s. and around the world. space ing in the same decided to be in at my clerkship, media telecom. that world has evolved and it has been great fun along the way. i had a chance after the fcc to serve on the president's technology advisory board. i served on other boards outside of carlisle where technology is a theme. it has been great fun. i'm sure i will think about retiring again soon and start another career. i will conclude by trying to answer the question josh posed which is, what was it about my clerkship that helped inform the rest of my career? the three ideas i point to our, , as weine and you know
2:29 pm
all know, you all know, discipline is a key attribute of surviving the job at the supreme court, much less doing it well. any mistake is immediately exposed. you learn analytical rigor, discipline, hard work. second, humility. you learn humility in a number of different ways in a supreme court clerkship. people it is the amazing you work with as colleagues and on the bench itself. humility is a good thing to carry around with you. and then finally i took away from the supreme court clerkship audacity. the sort of by that, i mean the idea anything is possible, that ,f a child of immigrants
2:30 pm
holocaust survivors can clerk on the supreme court and give advice to justices, you can do anything. if you can survive a year with soamazing group, and something seems interesting, worthwhile, important, why not? that, i think someone else should talk. that person will be judged kraus. -- judge kraus. >> this perhaps speaks more generally to aspects of a clerkship that informs people's careers. >> [indiscernible] >> i don't know. is that better? the supreme court courtship is different in the kinds of cases and number of cases, which is a lot less than we have on the docket is certainly district courts.
2:31 pm
it and thensity of experiences of it. many aspects are also, can be generalized to clerking elsewhere including on state courts. clerkshipe effective was, first of all direct and practical in that it prepared me for this job. we started 35 years ago, i had some idea of what it might look like. some ideas about how to run the chambers that were in the vein that josh expressed in terms of the lessons incivility, the ways to interact with clerks, to bring clerks from many different perspectives together, to work through issues from all angles. to think about that experience, one that carried responsibility for mentoring them as well as
2:32 pm
the focus we have on deciding pieces properly under the law. to areas ofsed me law i had some exposure to in law school but thought of as quite foreign including criminal law. it was in the course of clerking on the court of appeals that i realized these twentysomething ausa's were speaking to what they actually did at trial. even in that i could the next few years the running of trial and then arguing the case in the court of appeals was really intriguing and inciting -- exciting. it led me after the clerkship ended to go to the u.s. attorney's office in the southern district of new york. that would not have been on the radar for me had i not seen that in the courts.
2:33 pm
the other practical effect is the network one gets. it is a next ordinary network as the last panel was discussing. but it is also extraordinary group of people who choose to clerk and have the remarkable opportunity to look. -- clerk. as i tried to encourage my own law clerks now, they can't for c the kinds of opportunities that will be provided down the road. i have no doubt i would not be in the job i am in but for one of my clerks who has spent time in the white house counsel's office. when i wanted to do some teaching on the side, as i was working at the u.s. attorney's office and continued to do that as a lecture at various schools, the ability to call up someone
2:34 pm
who is now there, a professor who is a co-clerk or the dean of the law school after a few years and hasase of columbia those openings to teach what i would like. and the support of the faculty in doing it. it also even in the course of private practice meant there was this array of experts in various fields that were happy to answer calls and to share their views. because it is a real bonding experience and it is in formulaic years as a professional. alsoxperience of clerking in short made me a better advocate. i spent many years in private clerking,fter i was visiting scholar at stanford, briefly at a firm very
2:35 pm
in the u.s. attorney's office and many years of practice until i was appointed to this position about five years ago. , you see issues from all sides. far beyond what you do in law school of taking one side and the other. it is tracking down every lead and thinking about it from different angles and thinking about more broadly the consequences of things you do as well. you have exposure to the good and bad of advocacy. it is in a way you can learn and is antand the on what academic notion because as a law clerk you actually know the case. you know the issue. sometimes you know it better and the record even better than the attorneys coming to argue. you can evaluate when a judge
2:36 pm
asks the question and counsel is giving an answer, did they get it? understand where the judge is coming from, and to they understand how they can best positionheir answer -- their answer to advocate for their client and gain the confidence of the court that they have thought these issues through? is anotherg issues one. at the supreme court you realize quickly the depth and quality of argument is far more important than the quantity of argument. get rates raising 7, 8 different issues and touching on the moment briefly as opposed to a handful, they are really researched and argued. andlearn to be responsive end up being conversational.
2:37 pm
the best advocates who came before us at the court were those who, in short they were terrified. they were able to conduct themselves in a way that was really a conversation, ways,tful but in many expressing that they were an in trying topeer get the right answer here and trying to help the justices or judges as the case might be figure out how the law should be evolving in this area. advocate,f being an but as the other point i wanted to touch on. i think in the course of clerking and on the supreme court when you are looking at it
2:38 pm
and perhaps -- you are really looking at it zooming out to see the broader forpectives and zooming in the concrete principles or doctrine that needs to be applied. the ability to zoom out and think about a case and your advocacy for a client in that case, not simply to win that one matter but to realize where it falls in the element of the law itself. that is part of what judges are thinking about, the continuity of that. story decisive and not deciding things that were not brief, that have not been thoroughly -- because of damage
2:39 pm
that might be done. out andbility to zoom have the perspective as an advocate and to craft arguments that way and to respond to questions from judges that way i think was very helpful to me in private practice and with and workolunteer work for the city and the board that i did for several years. is finally in a way that less tangible, but in many ways , it profound, the clerkship taught things about life. one is that it humanizes figures of authority. you realize in the course of clerking judges and justices are human beings. they have families.
2:40 pm
they are juggling things like all of the rest of us. so there is an evolution that fromwith that of moving anxiety and awe to admiration and respect for human beings who are dedicated to the law, working very hard to try to get using right, and who are the opportunity they have been given, the privilege of observing at that platform to also better the institution of the legal profession. whether it is through academics or community service or civics education. the confidence and competence you get having to play devil's advocate with someone of that stature.
2:41 pm
the broadening of the meaning of success, which is something we need in this profession. that is to say that co-clerks, there are co-clerks of the law in a wide variety of things, but there are also co-clerks of mine who went into private equity became novelists or school administrators or opted out for from thermanently office environment and decided to, after the clerkship for example, to focus on raising a family and using the skills and insights they had gained for community service and took -- and volunteer work. that sense of confidence and autonomy i think are things that are very helpful and useful things to import into the legal professions at a time when the happiness and satisfaction in
2:42 pm
the profession is struggling in many ways. jeffrey: i think it is a wonderfully natural transition. please take it away. we have 10 minutes. we are right on track. written nineave books of nonfiction and three novels which are safely locked so they will never see the light of day and i have a podcast called happier. this is nothing i would have envisioned back when i was in law school. i would not envision i would wind up -- would end up here. i clerked for the second circuit and then came to clerk for justice o'connor. there i was. one of the things that always happened when i would get intensely focused on weird issues like i went through this with color.
2:43 pm
i am obsessed with aphorism. if you have any favorite ones, i am collecting them. so this is something i knew about myself. when i was clerking, there was a day i went for lunch, during my lunch hour to go for a walk around the beautiful capitol hill and i was looking at the dome against the bright blue sky and asked myself, a rhetorical question, what am i interested in everyone else is interested in? fame, sex and these words kind of locked into my mind and overwhelmed me and i became interested. i was clerking the supreme court, working, working, then i had free time and would stay late or i would come in on the weekends because it is before the internet area i would run giant searches on lexis-nexis.
2:44 pm
also little-known perk of being a supreme court justice is you can check out books from the library of congress. everyone else has to look at them in the library. you can check it out if you are a justice. i would request all of these books and ask her books like deep in the heart of texas, the troop story of three sisters who were all dallas cowboy cheerleaders. what the library and thought, they never asked. it is an extraordinary meditation on fame. i was doing this in the background. i have done this throughout my life i knew what it felt like but it was getting bigger and bigger. i went to go work for the fcc where we overlapped. i was continuing to work on it and it occurred to me it is the kind of thing somebody would do if they were going to write a book. i went to borders downtown and check out a book like how to write and sell your nonfiction
2:45 pm
book proposal and started following the directions. law that hadng up reached the point where i thought i would rather fail as a writer than succeed as a lawyer. i don't know what i would do in law. if i am going to take my shot, this is the time. i don't think it will risk it again. i will be deep into a path. i won't want to step off and do something like write a book. my husband and i were moving back to new york. he was leaving law as well. he took financial accounting at night. we were in new york and the day came where we got notices from the new york state bar association. time to pay the bar fees. i looked at my husband and said are we going to pay them? he said of course not. i was like, this is really happening. i got an agent and started writing books and that is what i
2:46 pm
have been doing ever since professionally. when i look back about what was it about sort of the extraordinary experience i had as a clerk and as a lawyer, part of what it was for me was the level of excellence. it is rare. you realize how rare it is to be involved in something where every single person is straining with all of their might to work at the uttermost of their capacity. even people who disagree with what the justices believe and argue, i don't think anyone would say they are not doing according to their own rights what they believe to be the best for their country and trying to do their best work. that standard of excellence i felt was a rare opportunity and taught me the pleasure that comes from working at the level of excellence. also the logic of it. i read stuff and am like this is not, you are not arguing something logically. you are asking me to assume something you have not proved
2:47 pm
and i reject everything. this is the rigor of it. checking sources, all of it has paid off. i have learned some negatives, which you will share my pain. legal writing. the convoluted sentences, the jargon, reading all of this stuff, scholarship case lot, the briefing, made me commit my life to clarity. i have spent so much time, can i cut out these phrases and say whisper instead of said softly? i learned that from legal writing, seeing how much more efficiently and effectively people were able to persuade when you could understand what they were trying to communicate easily instead of struggling to understand what they were saying. it showed me that hour of persuasion comes from clarity. -- the power of persuasion comes
2:48 pm
from clarity. there are two things i was moved by with justice o'connor. she was an icon. she was a supreme court justice where people recognized her. she was a figure. she had tremendous humility. one of the things that was a tradition in her chambers was we would celebrate birthdays. she is a party giving type of person. a year before they had given her a birthday book. it is like your birthstone and astrology sign and funny that happened in history. the clerks had given that to her. we were looking at my year, what happened in our birthdays. on her birthday she said, tell born -- itortant was is you, justice. she got a strange look on her face. i thought it is strange to be justice o'connor. she told me something about
2:49 pm
happiness i have never forgotten. i read about happiness and was having lunch with her, stopped by her chambers and said, justice, what do you think is the secret to happiness? she clearly had thought about this before. she said work worth doing. the more i have thought about that, the more profound and true it seems to me to be work worth doing really is a secret to happiness and one of the things about the clerkship is we feel like we are doing our best at work worth doing for ourselves and we hope for the country. it was a wonderful experience. nothing brings a moderator greater joy than someone who finishes on the 10 minute mark. take it away. be herea privilege to and honor it was to be a clerk. i want to spend a minute -- i see students in the room.
2:50 pm
reminding people how much a supreme court clerkship may not matter because i think so much ,f what we become as lawyers adults, professionals is defined by things that happened before and after. i am an immigrant. my family were refugees from sri lanka and we came over when i was three years old escaping civil war. my parents got a chance in baltimore city. my parents were teachers, my mom retired at a reasonable age. my father taught at a bunch of different schools and retired as the oldest teacher teaching in the state of erland. he was 80 years old. act 83,look 83, doesn't doesn't like people telling he is 83. went to public schools myself and then i went from the schools, harvard for law school. i was resident of the log review
2:51 pm
for barack obama made it cool. i devoted myself to public service. i think about whether that would have been that different if i had not gone to clerk for justice breyer. i am not sure. i thought i would be a law repressor. while clerking, we had a case involving school segregation. naturally because his father was the lawyer for the san francisco school board and my parents were teachers at some hyper segregated schools in baltimore, which was a school like the one i have been to, it was naturally the thing i devoted a lot of my time to. at the end of the year, the plan well laid as president of the harvard law plan, to become a professor with the last thing i wanted to do. i went to justice breyer. he was so evenhanded and even keeled about what had happened. i was up in arms.
2:52 pm
i was apoplectic about the fact of this 5-4 dissent would become the law of the land and that work he had done was in the words of dissidents. i said i don't want to go become a law professor to write about these things when there are fights to be fought. i had -- he had this reaction to calm down. you are here for a year. we do this every year. he gave me some great advice that helped me define and decide what i want to devote my life too. i think of the lessons, not just from justice breyer. it was from my clerkship with greater calabrese as well. the mentor relationship you form with the judges and justices are the most important thing. in that regard it doesn't matter whether it is a justice or judge or law firm partner. there are insights that come from them. from judge calabrese i remember
2:53 pm
there was a lawyer for the justice department. they were before the court and it was an immigration case read the immigrant was pro se. the lawyer had the better argument. the question the judge had asked was, counselor, we understand the department's position, but isn't there another way this violence -- filing speaker could have gotten a silent? the lawyer said yes. opponent that my he could in fact -- and through that obtain relief. the judge interrupted and said can you sit down and ask the pro se litigant to come up? is it true the lawyer shared that with you? he said yes. you should continue with your appeal but if i don't get this, there is a parallel route. he called the lawyer and said early memory of my, he said it
2:54 pm
is nice to be reminded you don't work for the department of deportation, department of convictions but department of justice. he wrote a letter of commendation to the justice department for what this person had done. at that moment, it stayed with me. you realize even if the level of supreme tort, commercial issues being decided every year, the way in which these incredibly thoughtful, brilliant jurists approach the most impassioned issues with a level of dispassion, you really see it is important. they don't rewrite to the entire constitution. they don't shout and scream from the rooftops, they find a moment of measure. i remember toiling on this dissent and new it was important to the justice and i wrote .omething that was a scream he said no, this will not do. you spend 20 pages writing
2:55 pm
evenhanded history of what happened. no adjectives, no hyperbole. then you write 20 pages of evenhanded analysis, no exaggeration, no amplification. and then you can explain why the sky is falling. you will persuade people that are already convinced you are right and they will make them angry but it will convince no one else. the art of advocacy is convincing people on the fence or the other side they have to open their mind to change. it was an extraordinary lesson. i didn't know what i was going to do. i didn't plan on being a prosecutor or aspiring politician but it was an insight that state with me for a long time. the last lesson i thought was really potent, and it was mentioned a couple of times, there is an individual humility and pride that comes with working at such rarefied heirs. there is also, the perfect word
2:56 pm
was audacity. there is a realization that the most important things being done in the world are done by them in beings. the ideas that are hatched are hatched by ordinary people. sometimes 24-year-olds that are a couple of years out of law school provide an insight or piece of research and it changes things and allows you to go off into the world and have a level of confidence there is not another room down the hall where the great decisions are being made. oftentimes you are in that room and expected to be that person. that has been very powerful. i will end with a story about baltimore and about how little value as a report can have. president obama didn't waste any time with supreme court clerkships. the other person that did not do that was a young man from baltimore named thurgood marshall.
2:57 pm
he went to frederick douglass high school where my father taught. he went to link the university and wanted to go to the flagship law school, university of maryland law school. but blacks were not admitted. went down to howard law school and he started studying and was discovered by the dean. dean houston was the first african-american editor admitted to the harvard law review. his portrait is the only portrait that fits in the law review building or not barack obama or supreme court justices. just charles hamilton houston. it was not because he was the first african-american editor but because he discovered thurgood marshall. as 18 he saw this student -- a dean he saw the student who was so brilliant, advocate, writer and he meant toward him and graduated top of his class. he could have gone to any law firm, but he went back to
2:58 pm
baltimore. fresh out of law school he hung up a shingle on a redwood street downtown. suit for notw admitting blacks. he made an argument no one had made before. he made the argument no court .ad accepted before and he won university of maryland law school became the first law program desegregated. in same argument he made 1932 he made 30 years ago -- years later when he argued brown versus board of education. i am proud of the fact that kid is from baltimore but it is also a reminder the audacity and confidence, you can make an argument no one has made before doesn't require you to clerk on the supreme court. it requires you to appreciate the power of the law and advocacy and day ats we saw day after
2:59 pm
the courts but it lives and breathes in advocacy everywhere. i feel silly trying to add or improve on that. we are coming on the 3:00 deadline so thank you for joining us. [applause] [captions copyright national cable satellite corp. 2019] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org]
3:00 pm
[indistinct conversations]
3:01 pm
histhe final break in ti live forum, the former supreme court law clerks today expected to discuss clerkship and the constitution. it is presented by the george washington law review and the national constitution study. it will resume here in a few minutes. [indistinct conversations]
3:02 pm
3:03 pm
[indistinct conversations] [laughter] [indistinct conversations] ladies and gentlemen, in this
3:04 pm
rich and illuminating daylong discussion, celebrating the 100 anniversary of the supreme court clerkships, once again, for those just joining in, i am jeffrey rosen, a law professor here at george washington university. the constitution center is so honored to convene former supreme court clerk's to discuss how the supreme court influence their lives, and i am honored to sit here with two of the greatest appellates judges, two distinguished intellectuals and jurists that i have had the pleasure to get to know and discuss the law with at the constitution center over the years, and both supreme court clerks are acclaimed across america for their opinions and their rigor and their approach to the constitution, and i cannot wait to ask them how their clerkships influence them,
3:05 pm
so that is what i will do, and i briefly introduce them by saying judge -- sits on the court of appeals of the sixth circuit. he is the author of such an important book. importantade "51 among many other important works, and he clerk both for justice powell and for justice scalia. diane wood is the chief justice court of appeals for the seventh circuit. she has transformed the law with her opinions, which are definitive on so many of the areas that she writes and tedious in at the university of chicago law's will, including antitrust, federal procedure, and international trade in business, and she clerk for
3:06 pm
blackmun.rry i will start with you. clerkshipse two influenced you? >> yeah, well, thanks for not noticing this. a lot of people have noticed it. it comes with throwing a 98 mile fastball. i am a righty. i would notlefty, have been a law clerk to your first of all, jeff, thank you for doing this, and thank you for all of your leadership at the national constitution center. it is really helpful to all of us care about the course, constitutions, all 51 of them, but thank you. i really was lucky in so many ways to have these clerkships.
3:07 pm
i had gone to ohio state. it was not a traditional path, so that was very lucky to start, but the greatest thing for me that here was working for two people that spoke entirely different languages about the constitution. justice powell came to the court as a practitioner. , a forerunnertic of justice kennedy, case-by-case, embraced the totality of circumstances test. justice scalia was very much not that. his key article of the rule of law is below ruled, which kind of gives it away, and it was so remarkable that year to be dealing with two people, both my mother and father, i love them both, but they disagree on everything. [laughter] sutton: my mother and father, they got divorced, actually, so it is really quite parallel, but i really adored
3:08 pm
them both, and it was so interesting to be thinking about justiced think, well, powell would have thought about this differently, and i was with justice scalia, and he would have a test that would be unpredictable, so as a young lawyer, that was so striking to me to see two people that i adored and admired at so many levels speaking utterly different languages, so the to comeft for me was out of this experience certainly not knowing how to speak those languages fluently but being a interested in mastering how to speak them fluently, and that really influenced me, first as an advocate and then as a judge, you know, so, i have been influenced a lot in a different ways on both of them, but i really do, and my opinions, try to speak all images and try to write an opinion that is not tong to just be convincing
3:09 pm
somebody who believes in textualism, which happens to be my preference, but can read it a lot of different ways. that has been healthy. me ambiguousmakes sometimes, but as a court of ways,s jo judge, in many that is my training. and of them are original nature, and half of them are not, so i think it is good training for a court of appeals judge, because we are supposed to be able to honor both sets. rosen: it is so striking that you took from justices powell and scalia all of the methodologies, and i have your equalityion and the case where you do exactly that, you run through all of the constitutional methodologies and explain why the result that you chose, you felt compelled by all of them. judge sutton: perhaps that explains why it was reversed.
3:10 pm
[laughter] judge sutton: but not for a lack of speaking all the languages. mr. rosen: you did, just not one of them well enough. judge wood, what did you learn about the art of judging, from clerking for the detail-oriented justice harry blackmun? justice wood: i learned a great deal, both from justic clerkingr justice blackmun and at the supreme court at the time that i was at the supreme court, the so-called originals um, plain court was not really until just the supreme court when justice scalia came in that became more popular. my observation of justice actually goes all the way back to the fact that he
3:11 pm
came to the law as a mathematics major. his undergraduate degree and harvard was in math. cum laudesumma co awardee of that degree, and i think it carried over to his approach to law, and it is something that i have thought very much about 30 was very comfortable with the scientific method. he was very comfortable with working from the ground up, from up withs up, and coming a rule of law that was solidly based in facts. "idid not like a top-down, have already figured out what all of them are, and i will shove it into one case or the other." at the supreme court, there is some value in a fax-based approach, but because it is the final court, you lose some
3:12 pm
asserted the when you do not have a clear, theoretical construct that your opinion is going to fit into, because you are speaking for the entire country. it i actually think of that, is not the whole country, but it is three states -- when i am , you owepinions here it to the parties who live in your circuit, you owe it to the business community, you owe it to individuals to be clear. this is why this person won, this is why this person lost, and we are going to make it possible for you to follow these presets in the future. the famous justice powell balancing test, to which jeff has referred, is not my favorite, either. be nice to him. [laughter] justice wood: i am being nice to him. thenthey are weighted,
3:13 pm
they begin to work, but when you say here are the following 10 factors, balance them, i can maybe chat about all 10 of them, but you will not really know why one of them is important. i thought a lot about the importance of theoretical constructs, the importance of the underlying facts, and i felt less critical of justice blackmun for his reliance of those facts, because, face it, there are areas, especially in constitutional law, i would say, where it behooves the court to move slowly, it behooves the court to move incrementally to make sure the path they are charting for themselves of the right path, and i have not overlooked some major qualification that we just did not know about. you thought it was all clear that some of the opinion, but it turns out to not be so clear.
3:14 pm
piecesosen: i wrote many as a young journalist that were proven to be wrong, but one about justice blackmun talked about his famous opinion for justjoshua, he had been working on a case called "s states," itnited was not called "poor schmuck." [laughter] prof. rosen: justice blackmun was driven by fact, not emotions. justice wood: that is what i saw. prof. rosen: jeff, give particular encounters with the justices or illuminating moments that change their philosophy. you mentioned preferring justice orlia's textualism,
3:15 pm
balancing them both, but can you show us a moment or two with either of those that helped push you in that direction? judge sutton: yeah, so it was so much fun to just listen to this last panel and try to think a little more than i usually do about the roots of where i am and my problems. i think i took half from both of them. justice powell is a good virginian, and he believes in federalism. theme ofreally a key his jurisprudence, and that became a key theme of my advocacy. the reason i was excited about working for the state of ohio, as a solicitor, that a bunch of those section five commerce clause cases, and that has really been the interest i have had in terms of writing. and that is not justice scalia, by the way, justice scalia is definitely creature of the beltway, by the time he was on the court, so i do not think you have the same the, so in that sense, i
3:16 pm
rejected scalia a little bit and followed powell, but it is true on methods of interpretation, and that was a little bit of the influences of scalia for sure. what really grows out of his something all of us share throughout the day. it is hard to work and not leave it saying i care so much about this case, i love every employee, every feature, i would come back to argue, they would all remember your name. you felt like they were rooting for you, like they were rooting for every advocate. of course, one is going to lose, but i love the court as an institution, and one reason i embrace textualism, and perhaps people will disagree with me, i think it is more likely to protect the court as an institution, and get away from the politicizing. that have influenced me.
3:17 pm
in terms of my experiences with them, one that has influenced me, justice powell -- which has nothing to do with law, although maybe it does eventually -- he was 85 at the time. if you are a retired supreme court justice come a little warning to you, if you're going that route, people do not invite you to lunch anymore, so he was stuck having lunch with his law clerk. we would have lunch was her twic or twice a week. he treated me every time. every day, he would get the same thing, a cheeseburger, he would 1/8 of it, get a glass of chardonnay, but just one, and he would treat me to whatever. you would have thought during that year we would have spent all of this time talking about lockheed and his great cases and the court and interpretations. i had to pull him, kicking and screaming, to those topics.
3:18 pm
he wanted to talk about winning the war, richmond, the richmond andeboard -- school board, above all, his family. it was my for six parents talking to someone i cared about in hearing them talking about challenges with raising children and grandchildren. it was so striking to me to see an all-powerful, retired justice of the supreme court talking about well, gosh, i am really sad my child is getting a divorce, or something. he was stuck with me as the person to talk to about it, and that was really powerful, kind of putting it all in perspective, and our first child was born the night of the state of the union, that january, tay --e scalia had to s back then, a lot of them went to those things, so the justice said, "jeff, do you want to go for a run?" i should not have done that. my wife was in labor. it was a pretty selfish thing to do, but she approved it. we go on this run.
3:19 pm
he knows we are about to have our first child, and he's the whole talk, the whole run say and you know, jeff, raising kids is so important, and you have to have a balance in life, and i did not have a lot self and steve then, and i thought he saying "you are not going to make a good lawyer, at least you should be a good father." [laughter] judge sutton: we will come up to other ways of influencing, but i did not want to lose the personal side, which is the theme of some of your panels, you so want to respect them and want to be like them, and then you hear them talking about things that have nothing to do with interpreting constitution statutes or courts, so it resonates perhaps a little more than it would be if it was just your buddy or your uncle. woods, some judge personal encounters with justice blackmun, where you got some
3:20 pm
life lessons that influenced you. justice wood: life lessons. people think of justice blackmun, as we talk about in earlier panels, bench panels and marking up the memos and writing, writing, writing. i am a really fast writer and an amazing typist, and this was many years ago, so it was an typewriter, and the cost of an error was too high. you had to be good. but it was a very spontaneous thing. he would just walk through our office, where all four of us sat, myself and my three co-clerks, and he would suddenly say, "what do you think about that opinion," he used initials "brwveryone,"
3:21 pm
circulated," etc. and you had to be on your toes that second, and you had no way of knowing which one would cross his mind, and he would do the same thing, by the way, if you saw him for breakfast. i was living in a dumpy basement apartment on capitol hill the year i worked at the court, and i usually showed up on the dot, when breakfast began, with my hair dripping wet, because i was lucky to actually manage to get out of the shower and get over there, but you had to sit over there and listen to a fair amount of chatter about baseball, which he did love. everyone may remember -- students won't, but the famous footnote of float versus -- kuhn, i am an ok baseball person, but i learned to maintain my part of the conversation. prof. rosen: did you start
3:22 pm
watching baseball -- judge wood: i read about it. [laughter] prof. rosen: did you feign enthusiasm, or what? judge wood: i feigned enthusiasm. you had to do that at least. but there would be, "what did you think of this opinion?" and if you thought that you might want to do something different based upon what he had set in the past about that issue, again, you had to be on the spot. i am not a morning person at all, so this is one of the greater challenges of the clerkship, but that is the way he liked to do it. and the other thing that really opened a window into not just justice blackmun but the entire court was his famous conferences with us after the conference, so the justices would sit down to discuss whatever the cases were, the monday cases on wednesday, or the tuesday/wednesday cases on friday, and then we would all go into his chambers, and he
3:23 pm
would sit down, justice by pretty -- i give us think practically a transcript, exactly what each of those said about the court they heard an argument in. "justice x said this, and justice y said that," and he drew himself in order, and what an insight. i mean, it was just an amazing insight into the way the justices were working their way through the different viewpoints, and sometimes it was outcome-determinative, of course. many times, it was more, "what is the right reason for this?" know, "is this a statutory case or a constitutional case? is this a case in which we need to say something great about the meaning of due process, or is it actually something much more granular, or at least if you get a majority of the court on a more narrow ruling, is that something you should go with or not?"
3:24 pm
so we had amazing conversations with him about that, and it certainly taught me a tremendous amount, both the way in which the justices themselves when about their decision-making, and also, of course, in later years, how i have done it. prof. rosen: did that uniquely granular view give you more or less respect for the way the court functioned as a nonpartisan estrogen? -- a nonpartisan institution? judge wood: it gave me tremendous respect. we happened to have a case, four year, maybe we hear maybe five, it is not many, but we have heard this particular case end, and we go and we talk,om, and you kind of crisscross in questions, and then you go around the room and vote. in as we started the voting,
3:25 pm
this case -- it was before i was chief judge -- i thought, i am really sorry the public cannot see this. i am so proud of this court, you know, people are grappling with these issues. they are hard issues. at which people, on a personal level, feel passionately, but everyone is being respectful. everyone is thinking of the way our law ought to treat those questions, not just the way your personal preference should. we are all acutely aware that whatever it is, the 23 million people in the seventh circuit, did not elect me to do anything. they trust me to follow the law. i have seen that in justice blackmun's account, in the way the justices were handling their discussions, and we certainly strive to do the same. prof. rosen: jeff, do you feel the same way about the sixth circuit as you do about the supreme court? the sixth circuit, like other
3:26 pm
circuits, have had time of great what might have affected it? intense, but it is it is just two other people, and that makes it a lot easier. i cannot imagine having all of my work with nine people. that is hard to imagine. i am not a big fan of the in bank process, because i do not enjoy decision-making in a group of 16. it is fun to hear us talk about it, but it is hard, you only have seven hours. but, you know, the thing i was going to say about something you see about developing the right answer, what the reason was, i found justice scalia was like justice blackmun in this respect, after every argument
3:27 pm
day, he would pull the justices together, and we would debate the case. we had an adversarial process, and then afterwards, we had a very adversarial process back in the chambers. he did not want to talk to the clerks too much before the argument. in fact, he asked for, this is a contrast with justice blackmun, and would ask for invention in which was no more than two pages. i hope there was spaces with no margins, right? windd not want a a lot of up. he did talk a little bit before, but not too much. but then after the argument, the clerk whose case it was would present the case in the group, and everyone was an equal in that debate, and that was a really striking thing to learn after a couple of these conferences. he did not respect you if you do not push back. he would just ignore you. he did not want to hear that he was right. in did not interest him. d him with why
3:28 pm
he might be wrong and different things. the most unbelievable to dates conferences. i find that influenced me more with our work with my clerks than, perhaps, how i work with my colleagues. we don't debate that much. unlike theassign -- seventh circuit, we preassigned opinions or responsibility for opinions. obviously, if a preassigned author is up in dissent, they do not write a majority, but that means we have a lot of communication in most cases before an argument. it is not unhealthy that california supreme court justices, the ninth circuit does it, you can see competing arguments on both sides, it was a practice before i got there. but what happens is we really put a premium on, maybe a bench circulated, there would be
3:29 pm
byfts back and forth, but the time it is there, many have a sense of whether colleagues think, so it usually means with shorter conferences which, you know, again, i can see both sides of this. probably not the approach of would have developed on my own, but on the other hand, i see some virtues of it. morets opinions out quickly. arguments are unbelievable, because everybody is really prepared and really ask -- that does not happen at the supreme court. they do not preassigned opinions, they do not circulate bench memos in other chambers, much less opinions, so that is quite a striking difference. prof. rosen: both of you are unique among appellate justices and supreme court justices and having written deep and powerful constitutions of your own philosophies. judge wood, you gave the madison lector at nyu.
3:30 pm
you gave an account of why the evolve inon should light of the social and technological change, and you defend that approach against an approach.t to what degree does your dynamic approach, how was it influenced by justice blackmun? titlewood: that is the and i was influenced to write the thing by the fact that there are certainly some parts of the constitution -- everybody thinks of the eighth amendment where the supreme court has said in never overruled the notion of our standards of what cruel and unusual punishment means of evolved with the times. if they are hanging horse thieves in 1791, we probably
3:31 pm
don't want to be today. that made sense to me. over the years that i worked for justice blackmun and observed the court, i saw applications of the broad ranging language in the constitution that seemed to me really just contemporary applications of a broad principle. moren thinking is probably contextual at this point. i think the people who wrote the constitution were bright people. i think when they wanted to be very specific, they were very specific. they said the president had to be 35 years old. i'm not going to go into something where the 35 counts the nine months of gestation or something. the title of nobility clause
3:32 pm
hasn't brought any litigation as far as i'm aware. they wanted to be particular when they could. when you want to state a standard. equal protection of course comes later. due process in the fifth amendment, obviously the eighth amendment. when they wanted a standard, they gave a standard and they expected this would change. if you want to take an originalist approach to the 14th amendment, you would say women were not included, and the supreme court crossed that bridge as well. it took them a home while to do it but -- it took them a while to do it but they are there. it is a very broad principle. i think some of the most litigated parts of the constitution are in fact the parts that are just inherently broad and sweeping.
3:33 pm
due process, equal protection, cruel and unusual punishment, etc.. my view is that it would be unfaithful to the constitution itself not to give them that flexible meaning. part of that lecture, i don't know how well it came out, but part of that was a complete -- was a plea to consistency. if you are going to say that a president's power over foreign relations includes the things we would now put in that list, you can search long and hard in article two and not find those things set forth. you will not find the president's ability to wage war without congress's permission whichme period of time,
3:34 pm
is now sitting there in the war powers act. if you wanted to be a strict constructionist, a lot of the iings you talk about article would go out the window. it is not my sense of the interaction among the branches of government, congress and the president have their own constitutional responsibilities. that it one who thinks is necessary to throw out the administrative state just because that was not originally set forth in the constitution. i think the reason our constitution has worked is because we have had a flexible and evolving approach to it. prof. rosen: judge sutton, you have set out your distinctive philosophy. in many places, your state constitutions book, your opinions, and this powerful essay, "the role of history in
3:35 pm
judging disputes about the meaning of the constitution." i would venture to say that your original is him and -- isginalism and textualism distinct from justice scalia. -- judge sutton: i don't think justice blackmun influenced me as much as diane. let me say something that i am confident that the two of us would agree about. labels are important. but i think they are utterly inaccurate in one really important sense, in terms of how judges really interpret the constitution or statutes. it is not this binary either or
3:36 pm
-- either/or, it is the spectrum. all the judges, when they read the fact section of the brief, have a reaction. we would not one judges to not have reaction to fact patterns. i don't think there is a judge who ever lived, when they are done with the fact pattern, they don't have reactions. judgesally distinguishes and why i think it is better to think of it as a spectrum, is what it takes to get off of that reaction to the fact pattern. for some, justice scalia being an example, it doesn't take much. he has a statute. he may be very unhappy about what the statute or constitution means when applied to this person. it doesn't take much for him. for others, it takes more. for some, it takes a lot to get
3:37 pm
them off that reaction. when we think of our colleagues on our court, you wouldn't say a camp, b camp. i guess i would start with that. originalist. i don't think it is a sin. i am proud of it. it is important to ask why would people say that or think that. i am very worried about the role of the courts deciding the biggest questions in society. the had been a justice in 1960's and 1950's, i strongly suggest i would have been in the majority in a lot of those cases. i'm not saying we don't have problems today. happenedeen what has in the time since in terms of people caring deeply who are on the court.
3:38 pm
when our elected representatives or senators are voting essentially 100% partisan not just for justices but all federal judges, you have a real problem where the american people are turning to say, i don't care what chief justice roberts or judge sutton or judge would is saying -- or judge wood is saying. if our elected officials are treating it as a political matter, how are they not going to draw the collude -- draw the conclusion that it is not a political body? that really drives me on this. evolve, there is nothing about evolution that says it always goes in the right direction. you can give justices when they penconfirmed a framer's that allows them to add words but it also implies they have a framer's pen to delete words.
3:39 pm
at me finish by someone of compromise -- somewhat of a compromise or a little humility. maybe i am wrong or maybe there are imperfections to it. what we should all be able to agree about is that if we are going to have times where the court, mainly talking about the u.s. supreme court, will evolve the meaning of a universal rights guarantee, it should be fairly rare. that should not be a run-of-the-mill thing or we will destroy this crown jewel of american government because it will be political. if you will evolve rights, i borrow from justice jackson, when the president has the most power and least. least when congress has no, middle when they said nothing, and the most when congress has
3:40 pm
approved it. if the court is going to innovate new rights, at least wait until a serious majority of state legislatures or state courts interpreting their own constitution have done it. it makes it very problematic to me when the court is evolving and at a time when states are completely the other way or still sorting through the issue. i think that will help us get through some of the resentment, i think depoliticize some of the court appointment. i will say one thing, which shows how audacious and foolish i am. i defend chief justice roberts' analogy, calling balls and strikes. empired it is to be an -- an umpire. but there is one thing about it
3:41 pm
that i have never heard anyone talking about, which drives me. when the court is: balls and strikes about the meaning of -- strikesng balls and about the meaning of the constitution, it is no longer a and between the nats dodgers. when they call it a strike, when they say the constitution applies, the referee just became a player in the game. the next time this topic comes up, the people will go to the court. goodmakes the metaphor so is that you don't come to the game to see the referee. every time the court, particularly when it involves something, evolve they write -- evolves a right to say it is in
3:42 pm
the constitutional strike some, it involves three players, not two. it is a power grab. not the state legislatures, not congress, not the president, it is us. that is important to remember and that is changing who decides. i'm not saying it is a power grab in terms of what motivates them but don't deny the reality of what happens when they constitutionalize something. that is why the body gets more politicized. the people want a say in who they are. it is very legitimate. prof. rosen: thank you for that extremely thoughtful defense of originalism as you see it. i have to ask you, judge wood, what is your response? taking you back to baseball. i heard you didn't like baseball. ofgave us defenses
3:43 pm
originalism, keeping the courts out of politics that avoids giving a blank check to judges. 11 rights the laws, it should be done -- when one writes the laws, it should be done parsimoniously. judge wood: i wish that were all right. [laughter] surprisingly, i don't really see it that way. i think when the court applies a constitutional provision to a situation that hasn't come up before, that doesn't mean the court is creating a new right. when they apply the equal protection clause to the rights many letters,ver to new people, they are understanding here is a new situation, we are applying the same old concepts and words to
3:44 pm
end. any of these situations are accurately described as just reaching out and writing new words into the constitution. we could sit here all afternoon and talk about things that are not specified in the constitution that are uncontroversial. it is also critically important to know that, as jeff points out, these things go in two directions. when the supreme court says in citizens united that money is speech and you can't have an effective campaign-finance system because it would violate the first amendment, a whole area of public concern has been removed from the legislature. it has been removed from state legislatures, from the federal legislature.
3:45 pm
that was something done, well, the first amendment must mean money as well as individual votes. we came within a hair of that happening in the first of the affordable care act cases when justice roberts wrote his famous opinion that we can't quite do this under the commerce clause, and no onef the gdp, can tell me to buy broccoli, but we can do it under the tax clause. suppose justice roberts had andd with the other four the affordable care act was not just called out for being unwise legislation. congress had passed it. the democratically elected part of our government had passed it. if the supreme court had said
3:46 pm
that the constitution itself forbids this kind of experiment in health care reform, that would have had the exact kind of paralyzing effect that judge sutton is bemoaning. i agree. i am a big fan of letting things be handled by congress. if congress does something because of lease -- something colossally stupid, maybe later congress will fix it. i think the approach that many on the supreme court has taken has not left that kind of flexibility. think thatarlier, i when we think of -- let's take the commerce clause. the people who wrote the commerce clause weren't really thinking about amazon. they weren't thinking about the internet, a lot of things. i don't think that means we have a practically defunct commerce
3:47 pm
clause. i think that means that we have principles that the constitution has set out that we apply to current facts. prof. rosen: judge sutton, you -- judge sutton: can i respond? not in a rebuttal way, in a common ground seeking way. prof. rosen: i will just set it up i noting that you reach similar conclusions to chief justice roberts in both the health care case and the o burger fell case -- in the obergefell case. chief justice roberts doesn't call himself an originalist but he does talk about the importance of deferring to congress. affirmedton: i was because i was wrong twice.
3:48 pm
in the merits case, i was reversed because i was wrong once. which is better? you would think being wrong once is better. sure diane thinks about this as much as i do. i certainly went on the bench thinking i was a usual restraint judge. i think justice powell thought of himself that way, certainly how justice scalia felt when i was clerking for him. the more time i spend as a judge, the more time i think, what does that mean? if congress and the president are having a fight about article i versus article ii. you don't necessarily defer to the legislature if it is article i and vice versa. i think what i found myself thinking is -- found myself
3:49 pm
thinking amounts to still a form of judicial restraint but one that honors what the role of the court is. i think originalism counts here and that article is saying that if the history doesn't help you -- and god knows we judges are not the best historians -- if history doesn't help you, then the best argument has to be that democracy has a role to play. judge wood: can i ask how you apply that to heller? judge sutton: yeah. that is sadly too much in my wheelhouse because it is all about state constitutions. 43 state constitutions have a right to bear arms. before heller, 41 of the 43 said it was an individual right. to me, i think that is fairly clear. what it means beyond handguns and different weaponry strikes me as different.
3:50 pm
other 41 of 43 and the two had not said the opposite, it just said nothing. article on that is pretty powerful. prof. rosen: at the founding, only two of the 13 state constitutions recognized right to bear arms as an individual right. how much does that they are on it? -- does that bear on it? judge sutton: there were only two provisions. it just hadn't been decided. prof. rosen: the text of the 13 constitutions. vermont and pennsylvania say the people have the right to bear arms for the defense of themselves and killing game. the others talk about the rights of state militias not to be disestablished by the feds. judge sutton: i am 100% confident that it is true, as to
3:51 pm
those early constitutions, they have all been construed to mean that. that seems pretty powerful. if we are talking about heller, why didn't justice stevens have something to account for if he was a living constitutionalist? ok, you don't agree with originalism, let's apply living constitutionalism to this debate. do we think that the average american doesn't think they have the right to a firearm next to their bed? that gallup poll would be 80% at least. to the extent living constitutionalism is the way to think about this, i feel like that is a case where that should have been acknowledged. no one said anything about it so got only knows what the answer is. what i wanted to see what we can to with our old bosses -- wha
3:52 pm
judge wood has just shown is that you can constitutionalize in a red and blue way. the u.s. supreme court being more and more the decision-maker. this is the fundamental choice we americans have to make. if we are comfortable with that, great. but i promise, you will win only half the time. resentful't be deeply on the half of the time you lose. there is no point if the court is going to aggressively construe the constitution. passe, that is the path we are on. politicize this crown jewel of government. path b would be detente.
3:53 pm
if justice blackmun and justice scalia were alive today and had us as their agents and asked us and justice scalia said, here are the five constitutional lysing -- constitutionalizing decisions i like the least, justice blackmun said hereof the five i like the don't i promise they overlap, can we do a trade? i don't know what the answer to that is, but that is the stakes. either you go back to a world in which you win some and lose some democratically or you stay with the current path. i don't know the answer. justice glia famously said, i can -- justice scalia famously said, i can't negotiate over originalism. but i think he would think
3:54 pm
carefully about this deal. prof. rosen: when you? suttonld you and judge want to do the deal right now? [laughter] judge sutton: i don't think we got anything in writing about our authority. judge wood: a parent authority. i can't imagine justice blackmun doing that either but i have given a lot of thought to what jeff is getting at and what we have thought about, which is one of the most important things we need to do within our system is really say, in whose court does this fall? whose decision is it? the affordable care act, heller, abortion, death penalty, is that something that legislatures do or is that something that there hasome fundamental law that been laid out in the
3:55 pm
constitution that confines the power of the legislature to do anything about it. i can say on heller that many of cases have been acts striking down state and local laws passed by the legitimate bodies of the state legislatures and cities. judge sutton: i will make the trade. we can do it right today. prof. rosen: what will you give up, judge wood, for heller? think -- i i don't am not quite prepared to answer that. with cert grant this morning in the louisiana case -- prof. rosen: would you give up roe for heller? judge sutton: or citizens united. heller, forted plus roe plus shelby county.
3:56 pm
prof. rosen: then a no trade clause. judge wood: the thing that bothers me about citizens united and shelby county as they go to the root of who participates in our democracy. prof. rosen: shelby county is the voting rights case. judge wood: the closer you get to protecting the sound functioning of our democratic institutions, who votes, who can get to the polls, what things belong to the legislature, the more i would say that has to be protected. something that is further out from that will sort itself out over time. prof. rosen: like your courtrooms, these constitution center discussions have to end on time. i have to say how dazzled i am for this discussion, how grateful. convening former supreme court
3:57 pm
clerks coming to washington was not just to celebrate the 100th anniversary of the institution but to model how people can disagree without being disagreeable, and to have sat here with two of america's greatest judges, talking about the constitution, is a rare treat. at the constitution center, it is like saying that we are working in constitutional heaven. for all they have done to illuminate our understanding of the common -- of the constitution, please join me. [applause] [captions copyright national cable satellite corp. 2019] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org]
3:58 pm
[indiscernible chatter] >> coming up shortly, remarks
3:59 pm
from president trump speaking at a young white leadership summit. a reminder you can follow all of our coverage online at c-span.org and listen with the free c-span radio app. >> today at 6:00 p.m. eastern, hillary clinton and her daughter, chelsea. watch our live coverage from the bookstore and washington, d.c. today at 6:00 p.m. eastern. on book tv on c-span2. sunday on q&a, the history of tariffs and managing the u.s. economy. >> the supreme court ruled that a tomato was a vegetable and not a fruit because of a tariff. any botanist with the you that a tomato is a fruit.
4:00 pm
tariff put a1883 tariff on vegetables and not so an importer of york pointed new out that the tomatoes he was bringing in from the caribbean were a fruit and he didn't have to pay a tariff. at the battle went on for quite some time. eventually, the supreme court ruled that tomatoes are actually vegetables. it's an interesting ruling in that it has repercussions beyond just tomatoes themselves. sunday night at 8:00 eastern on c-span q&a. senator mitt romney sent out a statement on the basement investigation and president trump's recent comments. he said when the only american citizen president trump signals hisfor the investigation is
4:01 pm
political opponent, it strains to suggest that it's anything other than politically motivated. he went on by all appearances, the president's brazen appealed to china and ukraine to investigate joe biden is wrong and appalling. speaking outside of the white house today, president talked about the impeachment inquiry and democratic presidential candidate joe biden. the president begins with comments about the latest job numbers. [indiscernible] the unemployment numbers just came out and know the best of numbers we have had in 50 years.

37 Views

info Stream Only

Uploaded by TV Archive on