tv Neil Gorsuch A Republic If You Can Keep It CSPAN October 27, 2019 12:51am-2:01am EDT
please stand for the pledge of allegiance. i pledge allegiance to the flag of the united states of america. into the republic for which it stands one nation under god indivisible with liberty and justice for all. >> before we get started i would like to take a moment to recognize with the board of trustees with pete wilson and his terrific wife gail. [applause] from north carolina. [applause]
former congressman who is retired and his wife janet. so now ladies and gentlemen it is my honor to invite chairman of the board of trustees from the reagan foundation. [applause] >> welcome to the reagan library. and with justice gorsuch it is understood after being confirmed to the supreme court you never have to answer questions again that you don't want to.
[laughter] instead you can ask the questions that we appreciate you making an exception this evening. i promise i will make it a better experience in the senate judiciary committee. that is a low bar. i know. [applause] and then to have two collaborators and we are pleased to have david in the audience with us tonight. [applause] again to be joined by his grandmother who was special to us and has been at the reagan library for more than 20 years.
[applause] you should never underestimate the power that they can bring a supreme court justice to the reagan library. ninety-three and 94 serving as a clerk to supreme court justice anthony kennedy 23 years later justice gorsuch is the first clerk to serve alongside his former boss fellow supreme court justice. for this the supreme court reflects the reagan legacy it's no secret what the president wanted that legacy to be. and to interpret the law, not make it.
that those principles are law based on the constitution. it is a user's manual to the faithful interpretation of the constitution and then to stray too far off those constitutional principles. the title is a republic, if you can keep it. and that is how franklin answers citizens questions about the government the founders created at the constitutional convention. now vigilant they must be to preserve them. and freedom is never more than one generation away from extinction. so tonight we look forward to what citizens can do with the
constitutional freedoms of the next generation. please join me to welcome to the reagan library justice gorsuch. [applause] >> we are delighted to have you here on the day of publication of your book. >> i am so happy to be west of the mississippi. [laughter] thank you for having me. is something i have been looking forward to. it's a real treat. >> your book opens with an interesting series of events on the occasion of your
announcement of your nomination to supreme court. in many ways it is like the screenplay of an action novel. >> to say it was unexpected doesn't begin to capture how it felt and i have a few stories to tell but i will share one with you so not only do we have to sneak out of our hometown in colorado, we had to sneak into the white house. and take us in through the kitchen. when you probably know this better but there are scars from the war of 1812, bullet holes and fire marks where it was burned. then it was gracious enough to
lend me the lincoln bedroom as an office space. while. i sat writing my remarks that evening at the desk where the gettysburg address was written. the president gave my wife, who is an immigrant from england use of the queen's bedroom across the hall. and was allowed one phone call. [laughter] and it had to be in england not america. so she called her dad. you will not believe it it is going to be neil. and it's about to happen. he said i have stayed up very late and i have been watching your television programs over here. and there is another fellow
driving to washington so it will not be neil. [laughter] in-laws. [laughter] and she said dad i am in the queen's bedroom. i think it will be neil and he said that the other guy could be down the hall. [laughter] so that's a feel of what it is all like. and. >> leaving your home in colorad colorado. >> and i tell that story in the book that's a big change for me and a loss of anonymity. more or less peacefully and
happily and everywhere to be recognized everybody has something nice to say. [applause] >> they may say voted for the president or against the president but i wish you well. i love our courts and constitution and if i look forlorn that day and i was taking planes back and forth. so i am feeling sorry for myself.
no reason that i am the luckiest guy. we are on the plane and i was seated next to a little girl five or six years old. she didn't know or care who i was and she said may hold your hand? and i said of course. it reminded me of my girls at that age and then the flight smoothed out and said would you like to draw? [laughter] so we spent the next two and a half hours drawing and coloring. that was my favorite two and a half hours of that process. [laughter] [applause] but afterwards after that happy moment of anonymity and her mother behind us had recognized me and she made sure that a thank you note was sent to my office two weeks
later and drawn by that little girl. to stick figures in front of an airplane saying thank you for the fun. to me that is what america is about. so when god take something away he gives you something in return. that's i have got to see. it's a real privilege. and the selection. >> i result in the confirmation process but it has changed a little bit when president reagan nominated justice scalia to the court
the great man smoked a pipe during his hearing. [laughter] i don't think we will see that again. and byron white with whom i clerked. his hearing lasted 15 minutes. that's how long mine lasted the first time in circuit court of appeals. that was a little different. [laughter] and in some basic things about our country. we all need reminders. all of us do about the wonder of our constitution and how blessed we are and all of us have a role to play in that republic. it's not supposed to be run by
a small group. it's the first three words of the constitution, we the people. people think we wear capes rather than robes. and that we must like that kind of person. and that was so foreign to my experience as a lawyer and as a judge. lawyers that i admire. law is not politics and the judges are not supposed to be politicians. and it is the greatest charter of human liberty the world has ever known and it's a great privilege and nothing more to uphold it and pass it down to the next generation. that's what i wanted to write about because that's my experience.
so you can see for yourself how different it is. they are elected to do your will as a politician but not to exercise legal judgment. the federalist papers 78. but then they said i want to talk about that. [applause] >> 30 percent of americans can name the three branches of government. about another third can name one. is so you know this.
so i respect judge judy i like judge judy that she is not one of my colleagues. [laughter] and then before we go another step further and to do that with my wonderful law clerks. so to come from a family of mexican immigrants and holocaust survivors. and as an undergrad to achieve harvard law school. [applause]
so jeannie is every bit as special. her family escaped communism. she came here got degrees in statistics and physics and then went through harvard law school and just like me and justice sotomayor. these are the people for whom i write this book and they give me hope for the future. [applause] both of them served with your law clerk did she have those with her quick. >> with my role of the constitution is very simple.
so we will get along just fine. i don't care what hours you work i would like to see you from time to time. but first, please don't make anything up. just follow the law as plainly as you can. that's the judge's job. so help me with that. so what the law is and what those pages mean or the original meaning. that's rule number one. rule number two when people start yelling they tend to make stuff up and tell you that you're a terrible person if you don't make stuff up maybe they will not invite you to their cocktail parties.
>> getting into your book one of the major themes is separated powers that blurs the lines of separation so talk about why that's so important. >> we all know our first amendment rights and fourth amendment and bill of rights but sometimes i wonder if we don't appreciate enough separation of powers. many countries have wonderful bills of rights but careers is my favorite. [laughter] it promises all the rights you can find in our bill of rights and more. education healthcare and a
right to relaxation. i don't know how that's working out for the political prisoners in north korea but the point i is, and madison knew this when he wrote the constitution that those are just promises. he didn't think we needed a bill of rights and knew that men are not angels the key to liberty is keeping power separate one night of one third of the federal government of divine power. so this is academic and walkie. i was bored by it but as a judge and i have been a judge for a while now with day in
and day out cases in the circuit i can't see what happens what on - - when you blur the lines. so what happens when the legislative power? two houses of congress responsive at different times. the whole idea is to make minorities a part of the legislative process. that's how he thought minority rights would be protected most of all. what happens if you take that process to put it into the hands of the executive branch?
to enforce the law and not make it. and making it through that difficult process it should be vigorously enforced. and then decided against management by committee. if you take out 435 elected representatives? i don't want to exaggerate but what happens when that is delegated? a small business in colorado where mom-and-pop type of operation. they are accused by the federal government of medicare fraud. they are fined $800,000. but later it turns out many years later in litigation they complied with all the rules at
the time that the agency had so many new laws enforceable with criminal sanctions that even the agency could not keep up for quite asked my law clerks how many of these criminal regulations are out there written by federal executive agencies who is responsible to the president or not at all? they said academic stopped counting years ago when they got to over 300,000. so what happens when the power to judge is transferred to the executive branch? i have veterans and immigrants have come before me. and they deserve to win. but independent judges should preferred the interpretation of the law by executive
bureaucrat. even though i think veterans and social security veteran benefit should win. what happens to the independent judge? and your right to participate in the lawmaking process? it supposed to be a republic. >> thinking of the three branches are they coequal quick. >> i hope so. >> to the always consistently maintain or over time does one become more powerful than the other quick. >> one can question if by virtue and a lot more power has devolved to the executive branch in the framers had in mind. and a lot of that judicial
powe power. >> early in the book one is original is in the application of the constitution and contextualism and the interpretation of statutes. can you give us a summary of these concepts and why they are important quick. >> yes. this is very important to me. the term original is a had not been uttered by any of my professors at law school. until justice scalia showed up to give a lecture prick is not something i fully embraced until i became a judge. it's a simple idea they should
abide the words on the page as they were understood at the time they were drafted and that is it. always on coming to written laws statutes or contracts and to apply those words as they were meant as they were written that's what they put down on paper with those obligations. if you want to change it they give those directions it otherwise they knew the english practice of the unwritten constitution and they rejected that. with real cases and real lives
we see what happens when judges ignore or override the words on the page instead of what they call a living constitution. when we go that route on the page but the sixth amendment you have a right to a jury trial in a right to confront your accusers. doesn't take a scientist to figure out what that means we get the supreme court of united states in living constitutional said you're right to a jury trial sometimes a judge can try your case instead your rights are diminished and sometimes you
don't have a right to confront your accusers sometimes a piece of paper written by police officer introduced as key evidence against you enough to send a person away 20 years or more. what are the most infamous decisions of the supreme court took rights away from a whole class of citizens that the japanese americans could be rounded up and detained during the hostilities of the second world war without any due process or any recognition of equal protection judges thought they were doing something important to keep the peace and help the war effort they ignored the words on the page then they put things in there that are not
there in the most infamous example is dred scott with a parted from the original meaning of the constitution white persons could old black persons as slaves and that was guaranteed by the fifth amendment due process so stare at that clause as long as you want it into their. and they thought they were doing something good that judges make rotten politicians when they start exercising that legal judgment they got it wrong so for me original is him is recognizing that i can
say that i just had a birthday whenever supposed to govern that is not what the framers had in mind it is a republican it is for you to keep. >> some critics of original is some say you cannot accommodate supreme court decisions like brown v board of education so those that are viewed as progressive could reflect the originalist approach? spirit there is a definitive article and why that fits with the original meaning of the constitution. if you look at the 14th amendment it says equal protection and i have over my fireplace in my office john
marshall the first justice he was the sole dissenter in plessy versus ferguson not to be consistent with the original meaning of the constitution. he looks pretty tired and haggard. that he knew segregation is not equal protection the equal protection of the law is one of the most radical and important guarantees and as to the notion to take us back i say rubbish. [laughter] in these decisions from the last term that i wrote as a great originalist into
conserve the original meaning of the constitution? you bet but does that lead to political results? so to have your cell phone data and of the living constitutionalist. double jeopardy ruth bader ginsburg and i were the only dissenters of the double jeopardy cases this year. [applause] on originalist grounds. your right to confront accusers and have a jury trial and to uphold that right is that liberal or conservative?
i don't know it's a sixth amendment. so people have been selling that line then i have a bridge i want to sell you. [laughter] >> then you discuss the first amendment as well as original intent why do the founders believe press freedom is successful one - - essential to the republic quick. >> day that all of those were essential. you may have your favorite. >> that is very high on the list. >> i bet it is. and mine is not to pick favorite. >> do you think now with the first amendment that it is realized quick. >> i think the supreme court was not a bad institution and my colleagues are delightful.
i know people like to focus on this case or that case but not just on the forest but the trees let me give you a few facts there are 50 million lawsuits every hour and i'm not including tickets we are a pretty litigious bunch that the american spirit. the federal system 95 percent are resolved by trial or without an appeal. i love being a lawyer i was a lawyer a long time you help people solve their problems i had clients that were unhappy with the result but they accepted it with their chance
to have their say and they were heard. they accepted it and that is powerful 5 percent go to the court of appeals we sit in panels of three so covering 20 percent of the continental united states and incredibly diverse court going all the way back from obama to johnson we can reach unanimity the three of us in those cases that were appealed 95 percent of the time. okay. so what about the supreme court? we hear 70 cases a year. and those are the hardest cases in the country where the
lower courts have disagreed on the underlying legal issues. that's we take them so people in california have the same rights and freedoms as new york and in between. that is our job to resolve the circuit split. seventy cases out of 50 million. think about that. think about the sturdiness and reliability and predictability of rule of law is incredible. of those 70, there are nine of us, not three appointed over 30 years by five different presidents from all across the country. so the boroughs of new york continue to be well represented. [laughter] out of those 70 cases 40 percent are resolved unanimously.
do ever hear that? 40 percent. do you think that happens magically? we cannot even agree where to go to lunch. [laughter] that yet we can reach that through hard work and mutual respect and a little bit of fun along the way. i have fun stories i could shar share. i will share one in a minute but what about the others? first of all that 40 percent has been the same almost since the second world war. back then president roosevelt appointed eight of the nine justices. [laughter]
okay. so now is talk about the five / 425 or 33 percent of the docket that number has been consistent since the second world war. nothing to get excited about. people say they break it down versus conservative and liberal. no. the last term there were ten different combinations of justices with five / four decisions. that's i have to say about that. spirit talk about you and your colleagues on the court. >> what makes this place work as mutual respect and sometimes find. we shake hands every time we meet a tradition going back to the 19th century.
we have lunch together, not everybody but there is lunch in the lunch room together with argument days and conference days and that's a lot of days. we go out to dinner together like normal people. and we have some fun traditions and break that once in a while. sonia sotomayor or came in after the yankees had a good run and she had a robot with pinstripes. [laughter] and the new york yankees emblem on her chest. we were in the robing room getting ready to walk out. mike colleagues thought is she going to walk out there like that? we get lined up to go out and somebody says sonja are you really going to go out there like that? she said no but i was waiting for somebody to ask.
[laughter] we have a tradition the junior justice has to have a dinner for the next new justice of the supreme court. justice kagan through a fabulous dinner for me and louise. she knows that she loves indian food and justice kagan happen to know a great indian chef who cooked up a storm it was fantastic. i had a tough road to hell when justice cavanagh came on board i had wanted to throw him a good party but he's also a meat and potatoes kind of guy so a dinner would be boring so i had to do something with the entertainment department after dinner asked everybody to come
down to the great hall for some entertainment c probably think there is a string quartet. he is a huge baseball fan the washington nationals the mascots are presidents with the giant foam heads that are 12 feet tall. [laughter] my assistant jessica went online and to find out you can rent them. [laughter] so we hired two of them and as everybody walked into the great hall i handed the chief justice the checkered flag and we had a race. [laughter] i wasn't sure how that was going to go over. but i figured it's better to ask forgiveness than permission. [laughter] >> going back to 50 million
cases do you think we have too many lawyers in america? [laughter] >> i talk in the book about access to justice. i do worry where lawyers graduate law school unable to afford their own services. lawyers are way too expensive and it takes way too long to get to trial when you get there you don't get a jury i'm a big believer in juries. look at the criminal laws of the books. some professor say anyone over the age of 18 has done something to bake federal criminal law. i worry about access to justice. >> you talk about citizenship and civility. your book reflects on new
citizens certainly value shared by president reagan how does your experience as a judge reflect your views as the president one - - is the husband of a naturalized citizen quick. >> i worry when 60 percent of americans fail the naturalization exam my wife had to take. would only 30 percent of millennial say it's important to live in a democracy. and i applaud the groups like the presidential libraries and others trying to do something about civic understanding because i don't know how you run this government if you don't know anything about this government. when i talk to young people who say is not important to live in a democracy and i'm a citizen of the world, i'm torn.
if by that they mean i recognize and respect each person i'm with you 100 percent. but if you tell me there's nothing special about the united states of america, the constitution you have been bequeathed, our republic, then think again perk i think we have been given an incredibly special gift with our constitution. jefferson said if you expect ignorant people to maintain a republic you want something that never was in history or will be. but republics are fragile thing things. they have a checkered record in the court of history and
then they dim quickly. ours is already the longest lived national constitution in history. we need to make sure young people, all of us not a criticism of anyone, part of my duty, to recognize yes we have our problems, but we also have a great gift. we all have an obligation to make sure everyone realizes they have a great gift and there's a responsibility that comes with that gift. [applause] >> nearly 70 percent of americans have a major civility problem. do you think that level of civility waxes and wanes or is
there something that causes us to be uncivil like the internet? >> there are institutions in our country that are incredibly civil like our courts are one of those places. there is a lot to admire with my own court. are public supposed to be raucous? you bet that's what makes us strong the marketplace of ideas so the voices can be heard. he only speak freely in that place you know you have a right but the raucous of our republic is a testament to our rule of law and we all know we have a first amendment right to speak. but if you ask me about all of
us may be just a bit i do worry when people say they are dissuaded from public service because of our culture and those that have been reporting cyberbullying and how may have to pull their kids out of school because of it. yes i worry about civility. washington had a great example he was the first to write out in hand 100 some odd rules the jesuits had laid down in 1575. they are full of good rules. some of them are funny like do not be so enthusiastic in your
speech or come so close with whom you are debating that you give the other man your spittle. [laughter] teenagers say say it, don't spray it. [laughter] but there was a time we taught something called manners and civics and civility was not a bad word or two timid. think we have to remember those with whom we disagree love this country every bit as much as we do. i don't know if we have to go back to washington's rules.
and said you will have a lot of regrets in your life. i hate to break it to you. you'll do things you wish you hadn't and say things you regret brekke left unsaid and undone but the one thing you will never regret is being kind. [applause] >> you point out the importance of good men and women on service and the judicial confirmation process employees tactics in his words that are better suited for campaigns and elections then supreme court nominations do you think the process is working today the way the founders intended quick. >> you think i will touch that with a 10-foot pole? [laughter] >> i can try.
>> i will not touch the confirmation process i believe is judges taking in their lane i'm now article three and i'm happy to be back home. [laughter] [applause] but i will say to young people out there look at people like david and janie. they are not afraid. don't be afraid. [applause] we need you we need your participation we need your help. somebody has to run the zoo. [laughter] why not you? the words don't hurt that much when you know what you are doing is something more important than yourself. what life can you live that is
more worthy to carry on this wonderful republic cracks is no way to live a life. [applause] >> you talk about the justice you replace and the one you clerk for. can you share what are the major elements of their legacies for the supreme court. >> starting with justice kennedy and later to become his colleague the first time they've ever had the opportunity to serve together. the legacy for me is that we've been talking about right now you will not meet more courteous man all these values
to inculcate our profession he is a model of civility in a great teacher of civics and a gentle man. so when i became his colleague he said i like to work at home i don't get bothered as much the it office will help you set up an office. that's great if you ask they will even give you a fax machine. [laughter] i have been a law clerk 25 years earlier and i remember that fax machine. [laughter] when i wrote my first opinion i did it late in the day that justice got wind i circulated
the opinion he told his law clerk to use the fax machine and send it to him. he wanted to read it right then. but it was broken. said he had the clerk drive it out to his house. i quickly got back a hand written note he joined with my first opinion. that is anthony kennedy. now justice scalia. a lie in a man in public but hostile in private. so much to admire. a fierce originalist unapologetic and i'm happy to follow in that mold occasionally we had our disagreements came out fishing with me, fly fishing in colorado. we have very different
approaches. [laughter] i would say i know this river perk i fished it my whole life if you walk over there and gently unfurl your line you will catch a trout. he is the son of queens and he stomps over there. with all the enthusiasm and slaps his line on the water as hard as he can as if the enthusiasm will make the fish hungrier. [laughter] then he says i thought you said there was a fish there. [laughter] as indeed there had been. [laughter] i have a wonderful reminder of justice scalia in my chambers.
in the past mrs. scalia was kind enough to give mementos to all the clerks from his office but there is one thing left over it was a giant elk head named lee roy that he had secured on a hunting trip in colorado with one of my friends a former law clerk. mrs. scalia did not want leroy in her house. so she paid to have it take back to the law clerk's house in colorado it was sitting in a giant crate in his garage occupying space and said if mister trump becomes president and if he nominates you i have a gift for you. [laughter]
honestly i foolishly discounted all of that at zero. and six months later and then to have the first scalia law clerk reunion when one - - since he has passed. would you be my date? of course it halfway to dinner my betty with a big grin on his face rolled out a gigantic crate and presents me with leroy. [laughter] i'm very happy to have him watching down over my law clerks because we have a few things in common. we are both native coloradans. [laughter] we are both stuck in washington for the rest of our lives. [laughter]
and neither one of us will ever forget antonin scalia. [applause] >> i once had the pleasure to receive a tour from him he took me up to the top floor and showed me the basketball court the supreme court chambers and said is the highest court in the land do you ever seek a way to shoot hoops? book i like to ride my bike and row and ski and do a lot of things. occasionally i will go up there my old boss by red light who is now largely forgotten. the first justice from
colorado. there are two special places in the core i think of him and that is one. is one of the great athletes of his day. road scholar highest-paid nfl football player leading rusher. i don't think that will happen again on the supreme court. that would be neat if it did. he had a mean game of horse. we would go up there and play horse. when he was younger he would although the law clerks and take them down apparently. but by the time i got there it was horse. the eye hand coordination was so good he had a shot from the free-throw line over the back of his head he could nail nine times out of ten and didn't mind taking your money when he did. [laughter] i also think of him down on the first floor of the united states but really it's a
basement without a lot of windows and where they put you when you are going and they hang your photo there. one day he said so justice how many of these old dogs do you recognize? and i thought about it i said i could identify about half and then he said something that shocked me. he said me to. [laughter] and then something that depressed me at the time and said that's the way it should be.
and that will happen to me to. i thought that was terrible and unbelievable. not only star nfl and were road scholar but a war hero. would've jack kennedy's best friends and help to desegregate schools with bobby kennedy served 31 years how could anybody forget justice white plex i walk those hallways now and those tourists have no idea who they are looking at. it wasn't depressing the judge's role is quiet and upholding the constitution not changing it. it's up to you if you want to do that that's what he was
trying to teach me that day i think about that a lot walking to the court. >> we are just out of time to talk about how important your family is to you i am the father of daughters so when they have the occasional argument that takes place between siblings how do you render judgment? [laughter] >> my jurisdiction does not extend that far. [applause] [laughter] speaking of young people.
and you have encountered from time to time what advice do you offer quick. >> this will lead you to where you want to go. find something you love to do and you never work a day in your life and my grandfather taught me that. he would come home after surgery and pray for the patient he just had surgery on. he loved his work my grandfather pulled himself up with trolley cars with humble beginnings and started a law firm during the great depression what is now
colorado boulevard came up with the donkey with his twin brothe brother. great man on whose shoulders i stand and say do what they did. follow their footsteps and everything else will work out just fine. [applause] >> this is corny but i love teaching and people legal one - - legal professionalism that is not an oxymoron ff by the end of the semester i would ask the students how they would like their obituary to read but after five minutes
the room was always doubly quiet. they had really come to grips with the question. then i ask a few brave souls to read that they had written and some would. not one of them ever said i was the richest lawyer, i had many when the door or abroad in the most clients or the fastest car or the biggest house everyone spoke about being useful to their community and their family and friends and their faith and i asked my students do me a favor hold onto that and when you feel blue and have doubts about where your life is goin going, take a look at that and talk about those metrics and a
follow that same advice myself there is an inscription on a tombstone or many founding fathers are buried it's a beautiful inscription that speaks to me and i keep that in my desk drawer and i look at it often. >> i want to ask about your obituary but in closing decades from now when historians write about the core in your tenure. >> i expect they will say very little and that's as it should be my role is head down and that is work enough we need grant great man to found it in great and to keep it people
who love the country and if i have forgotten i have done my job just right. [applause] >> on behalf of all of us thank you for this incredible opportunity to spend time with you and thank you for putting together this incredible book which even those of us find that to be quite useful for those who want to have a great understanding of the constitution. thank you for that. [applause]