Skip to main content

tv   MSNBC Live With Steve Kornacki  MSNBC  March 21, 2017 1:00pm-2:01pm PDT

1:00 pm
109-day winning streak. the market is up 13% since president trump was elected. so the question is why? why now? and it is a story of accountability, promises, and credibility. in the last two days, we have seen fbi chief james comey refute president trump's wiretapping claims the same type of refuting we saw from senate house and excuse me from the house intelligence community. went and spoke to house republicans trying to sell that health care reform bill. promises of pro growth, pro business policies, tax reform, promises are just words unless they turn into action steps. and the president has lost some credibility in the eyes of the market in the last two day as we see thearket going down almost 250 points. that is a big, big day.
1:01 pm
the market suddenly saying all talk, are we going to see the action? i'm going to take you back now to that senate hearing where we are seeing ted cruz question neil gorsuch. >> petitioning congress, speaking out publicly, and the first amendment exists to protect your right on one side or the other to speak and let the public domain resolve that
1:02 pm
issue. let me turn to a different issue. and return, perhaps, to a lighter topic. i understand that you like to take your law clerks,e of them very much not from the west to the denver rodeo every year. and to have them observe and react to cattle roping and bronc riding and mutton busting. is that true and can you share a bit of your experiences and even better there as in that regard? >> well senator, i get law clerks from all over the country. many from my region, i may be favoring my region, but i get plenty from out of the area too. and we have a great rodeo in denver every year. grand national. and it begins with a parade down
1:03 pm
17th street which would be like a parade down pennsylvania avenue in d.c. where you have cattle. it's a cattle drive, down the main road in denver. they shut it down. that's how you mark the opening of the grand national. and the closing of the grand national is celebrated by the prized steer getting to spend a little time in the brown palace hotel. now the brown palace hotel is like the willard or pick your favorite fancy at the plaza in new york. yes, they bring the prize steer into the lobby of the brown palace. and in between, there's a rodeo. and the stock show. and the kids show their animals. my kids never made it to the grand national, more county fair types with their chickens and their rabbits and dogs and whatever. but the kids compete to the grand national, it is b time. and then there's mutton buing.
1:04 pm
and i think my children still have ptsd from mutton busting. mutton busting, as you know, comes sort of like bronco busting for adults. you take a poor little kid, you find a sheep and attach the one to the other. see how long they can hold on. and, you know, it usually works fine when the sheep has got a lot of wool, and you tell them to hold on -- i tell my kids to hold on monkey style. really get in there, get around it. because if you sit up right, you go flying right off. you want to get in. but the problem when you get in is that you're so locked in, you don't to want like oh. then the poor guy has to come and knock you off the sheep. and my daughters, you know, got knocked around pretty good over the years.
1:05 pm
>> as a texan, i think everyone's life can be richer rendered -- >> i'm sorry. all right. we can talk mutton busting all day. >> senator franken. >> evidently there's no animal abuse laws. >> you sound like my daughters on that score, senator. >> you know, i wanted to get some questions. but first i want to talk about transam trucking. because senator durbin brought it up and senator lee brought it up. i want to just go through the facts real quickly because i understand the reasoning behind your decent. but i'm actually kind of puzzled by it as well. okay.
1:06 pm
notices his brakes are frozen on his trailer. okay. so he decides, i'm not going to go on, it's dangerous to go with frozen brakes. on to the interstate, frozen brakes on my long trailer. he's in the cab. and he calls in for a repair. gets to the dispatcher, dispatcher says well, you know, wait, hang on there, wait. okay. couple hours goes by, the heater is not working in his cab. it's 14 below zero. 14 below zero. he calls in, and he says, my feet -- i can't feel them. i can't feel my feet. my torso -- i'm beginning not to be able to feel my or it spoep and they say, hang on. hang on. wait for us. okay, now he -- actually falls asleep. and at 1:18 a.m., his cousin, i think cousin calls him, and
1:07 pm
wakes him up. and his cousin says that he is slurring his speech, and he doesn't make much sense now. mayo clinic in minnesota says that is hypothermia. and he had fallen asleep, if you fall asleep waiting in 14 below zero weather, you can freeze to death. you can die. he calls him back, and supervisor says, wait. you've got to wait. so he has a couple choices here. wait or take the trailer out with the frozen brakes on to the interstate. now, when those brakes are locked, and you're pulling that load on a trailer with it's brakes locked. you can go maybe what, 10, 15
1:08 pm
miles an hour? now what's that like on an interstate? say you're going 75 miles an hour, somebody's going 75 miles an hour, they come over a hill, slam into that trailer. also he's got hypothermia. he's a little woozy. probably figures that's not too safe. i don't think you'd want to be on the road with him, would you, judge? >> senator -- >> you would, or not? it's a really easy yes or no. would you like -- >> on the road with him? >> yeah? >> with the hitched trailer or the unhitched trailer, senator? >> well either, but especially with the hitched trailer with a locked brakes -- >> no, i don't think that was a serious option. >> i wouldn't want to be there either. and so what he does is he unhitches it and goes off in the cab. >> and then i believe he comes back 15 minutes later. >> and he comes back -- after he gets warm, so that he could be
1:09 pm
there when it gets repaired. >> right. >> okay. gets fired. he gets fired. and the rest of the judges all go, that's ridiculous. he shouldn't -- you can't fire a guy for doing that. it was -- there were two safety issues here, one the possibility of freezing to death or driving with that rig in a very, very un --ery dangerous way. which would you have chosen? ich would you have done? >> oh senator, i don't know what i would have done if i were in his shoes and i don't blame him at all for a moment for doing what he did do. i empathize with him entirely. >> okay. just -- we've been talking about this case. you haven't decided what you would have done -- you haven't thought about for a second what you would have done in his case? >> i've thought a lot about this case -- >> i totally empathize and -- >> i'm asking you a question, please answer a question.
1:10 pm
>> senator, i don't know, i wasn't in the man's shoes, but i understand why he -- >> you don't know. okay. i tell you i would have done what he did. >> i understand. >> and i think everybody here would have done exactly what he did. and i think that's an easy answer. frankly. i don't know why you will difficulty answering that. okay. a person may not fire a employee because the employee has reasonable apprehension of
1:11 pm
serious injury to the employee or the public because of the vehicles hazardous, safety, or security condition. that's the law. and you decided they had the right to fire him, even though the law says you may not discharge an employee who refuses to operate a vehicle because he did operate the vehicle. is that right? that's your -- that's how you decided, right? >> that's the jest of it. >> well no, is that how you decid? that's what you decided -- >> senator, there are a lot of words and opinions both in the majority by my colleagues and in disscent, but i'm happy to agree with you, that's the jest of it. >> right well that's what you've said, and i -- look, i'm not a lawyer, but i've been on this committee for about eight years. and i've paid some attention. so i know that what you're talking about here is the plain
1:12 pm
meaning rule. here's what the rule means. and the plain meeting of a statute is clear on his face. when it's meaning is obvious, courts have no business looking beyond the meaning to the statute's purpose. and that's what you used, right? >> that's what was argued to us by both sides, senator. >> but that's what you -- that's what you used. >> yeah. both sides argued that the plain meaning supported their -- >> and you used it to come to your conclusion. >> both sides. >> but the plain meaning rule has an exception. when using the plain meaning rule would create an absurd resu result, courts should depart from the plain meaning. it is absurd to say this company
1:13 pm
is in it's rights to fire him because he made the choice of possibly dieing from freezing to death or causing other people to die, possibly by driving an unsa vehicle. that's absurd. now i had a career in identifying absurdity. [ laughter ] and i know it when i see it. and it makes me, you know -- it makes me question your judgment. you stopped by my office a few weeks ago. i asked you about marc garland, one of the first calls you placed was to chief judge garland, and you said to me, i think the world of merck garland
1:14 pm
and i asked you a couple times if you were bothered by the way the senate treated merck garland. you said something to the effect of senator, i try to stay away from politics. now you'd been on the bench for ten years. so that sound the fair to me, and i decided to leave well enough alone. and i moved on to another topic. but your relationship with politics came up again yesterday, my good colleague senator elemented the extent as become political and suggested that you and other nominees are not equipped to navigate that process because confirmation politics are in his words, quote, still a little foreign to you. are still quite unfamiliar to you. it turns out that's not really entirely accurate. after you were nominated this committee made a formal request for documents relating to your
1:15 pm
previous nomination and to your time at the department of justice. this is standard procedure. those documents include e-mails back and forth between former bush administration officials and you in 2004 back before you joined that adnistrati, and the neil gorsuch, in those e-mails seems to be very, very familiar with politics. the neil gorsuch in those e-mails was looking for a job. here's a message you sent to matt schlapp, just after president bush won reelection. i spent some time in ohio working on the election. this is you. what a magnificent result for the country for me personally, the experience was invigorating and a great deal of fun. now that doesn't sound like someone who steers clear of politics to me. you went on to write, quote, while i've spent considerable time trying to help the cause on
1:16 pm
volunteer basis and various roles, i concluded that i'd really like to be a full time member of the team. you attach your resume which describes in detail your work and supported political campaigns and candidates basically had worked on republican and political campaigns since 1976, you worked for reagan, bush one, bush two, you were cited for distinguished service to the united states senate for work and support of president bush's judicial nominees. by the senate republican conference that suggests that even the political aspects of confirming judicial nominees is something that you are not unfamiliar with. now when we met earlier, i asked you what you thought about the way merrick garland, i try to
1:17 pm
avoid politics. but here you are in 2004 pledging your allegiance to the cause and shopping aroundesume touting the work on political mpaigns dating back to 1976. these messages established that for a good deal of your prior career, you didn't avoid politics quite the contrary, you were very politically active. so in light of that, i'd like to ask the question again, do you think merrick garland was treated fairly by the united states senate? >> senator, couple of things in response to that, if i might. going back, the absurdity doctrine argument was never presented to the court and it usually applies in cases when there's an every ro ror, not just when we disagreed. i appreciate the -- >> when there is a skriber in there. >> error. >> error. okay. i'm sorry. >> not when we just disagree with the policy.
1:18 pm
with respect to. >> reporter: well, if i read my statutory interpretation from -- let's see, this is from the notre dame law school national institute for trial, advocacy, this is a pretty well-known exception to the plain meaning rule. and i think you can apply it without it. i mean, don't you think it's absurd that this man was put -- given that choice and then fired for it? don't you think that was absurd? >> my heart goes out to him. my heart goes out to him, it's not my job -- >> how do you think merrick garland was treated? >> senator, since i became a judge, ten years ago, i have a cannon of ethics that precludes me from getting involved in any way, shape, or form in politics. the reason why judges don't clan at the state of the union.
1:19 pm
to register a vote in the equivalent of a primary. >> this is about how a supreme court justice nominated by the president of the united states, this is like in the constitution. i think you're allowed to talk about what happens to the last guy who was nominated in your position. you're allowed to say something without being getting involved in politics. you can express an opinion on this. >> i appreciate the invitation, i know the other side has their views on this and your side has your viewsen to. that by definition is politics. and senator judges have to stay outside of politics. i told you what i think. >> i understand. thank you, thank you. i don't mean to cut you off, but
1:20 pm
we have time. i think it's really important for us to how your portfolio work and your political views might inform the views of the law. and i know your -- i don't hold it against you that you did political work. most people didn't. >> 1976 i was walking the district with my mom. >> yeah. >> and the state house. >> looking again at e-mails, five or so months after your message to mr. schlapp, mr. melman was your law school mate, he was chairman of the republican national committee, you just interviewed for a job at department of justice, and you wanted him to put in a good word, so he did. mr. melman e-mailed the white house and he wrote, neil is a wonderful guy. was my law school roommate. did 72-hour effort in ohio for us and was part of lawyers for bush. mr. melman wrote, quote, he is a true loyalist. now ain, being politically active or loyal replican are
1:21 pm
not disqualifying characteristics, not in my book anyway. but let's think back to 2004 election, let's look at ohio where you volunteered. one of 11 states in 2004 where republicans working to support the reelection campaign also worked to put anti-gay marriage amendments on the ballot. these state constitutional amendments passed, all 11 of them. the text varied state by state, generally, the amendments defined marriage as being between a man and a woman. the amendment sent a clear message to lesbian and gay couples that their unions were not equal in the eyes of the law. now, you were a campaign worker in ohio, remember of lawyers for bush, cheney as a lawyer and as student of the constitution, how did you feel about the right to marry being put to a popular vote? >> senator, i don't recall any involvement in that issue during that campaign. i remember going to ohio -- >> were you aware of that issue
1:22 pm
at all? >> certainly. >> how'd you feel about it? >> my personal views, any revelation of my personal views about this matter would indicate to people how i might rule as a judge. mistakingly, but it might. and i have to be concerned about that. >> your friend ken melman said . he was interviewed in 2010 and said that the bush campaign had quote been working with the republicans to make sure that anti-gay initiatives and rempb da would appear on november ballots in 2004 and 2006 to help republicans. now to be clear, there is nothing to suggest that you were involved in crafting that strategy, but at the time this tactic received a lot of attention including in ohio. there's a profound impact on people's lives. but, a lot has changed since
1:23 pm
2004, mr. melman announced publicly that he is gay for one. he also voiced regret about what happened. he apologized. he said at a personal level, i wish i had spoken out against the effort. as i've been involved in the fight for marriage equality, one of the things i've learned is how many people were harmed by the campaigns in which i was involved. i apologize to them and tell them i'm sorry. that's a brave thing to say. it's hard to admit regret. mr. melman had a personal connection to the issue to be sure, but our country has come a long way in a relatively short amount of time. a lot of folks have changed their view about marriage equalities, but republicans and democrats alike in the meantime, supreme court settled this issue. marriage equality is now the law of the land, so you shouldn't have any problem answering this question, how have your views of marriage equality changed, if at
1:24 pm
all since the 2004 election? >> senator, my personal views, if toirp begin speaking about my personal views on this subject, whh every american has views on, send a misleading signal to the american people that might -- >> the law -- >> absolutely set a law. there's ongoing litigation about it's impact and it's application, right now, and i cannot begin to -- share my personal views without suggesting mistakingly -- >> i can move on then? thank you. i understand. you've given a version of this answer before. so, i understand. i understand.
1:25 pm
change the law. you and your colleagues here have said the job of a judge is to follow the law. even if he dislikes the results he said that. not change the law. but change 40 years of the law, but that's what reince priebus said this is about. with the friends at cpac, he
1:26 pm
says a justice' job, change 40 years of law. yet my colleagues and you say it's to follow the laws as written, well, it can't be both, so which is it? >> senator, it's to be a judge. to be fair, to follow the law, to afly to the facts and circumstances of each case. and to live out my judicial oath on whichever court i serve on, the tenth circuit which i've served for the last ten years -- >> okay. >> and where my opinions have been unanimous 97% of the time, senator. i've been -- >> i understand. and again, you've given many times that answer. so if you'll indulge me. mr. priebus wenten to say your nomination was central to prump fulfilling his policy objectives. neil gorsuch represents a vision of donald trump and yet referring to your nomination.
1:27 pm
fulfill us want promise he made to all of you. speaking to the conservative activists gathered at cpac. what do you think that mr. priebus was talking about? was he talking about that if confirmed you would be positioned to shape the court's decisions for the next 40 years or was he suggesting you could reach back 40 years? rov wade turned 44 this year. and president has promised to nominate judges who would overturn roe, chevron is 33 years old. i think this is a legitimate question. was mr. priebus suggesting that you go back and change 40 years or is up set a law or have an effect on the law moving forward? >> respectfully, senator, mr. priebus doesn't speak for me, and i don't speak for him. i don't appreciate when people caseworkize me, as i'm sure you don't appreciate when people caseworkize you. i like it speak for myself. i'm a judge.
1:28 pm
i am my own man. >> okay. i just wanted to just, you know, we've talked about this. i don't think we're crazy to think that the administration and reince priebus -- i don't think he was lying. and doesn't it -- doesn't it -- are you comfortable with your nomination being described as such transactional terms? >> senator, there's a lot about this process i'm uncomfortable with. a lot. but i'm not god. no one asked know fix it. i'm here as a witness, trying to faithfully answer your questions as best i can, consistent with the constraints i have as a sitting judge. here to answer questions about my qualifications. >> okay. >> my record. >> i got it. well, i find it unsettling that the administration is talking
1:29 pm
about -- the chief of staff is talking about the supreme court that way. i want to get back to the panel of cpac. after mr. prieb discussed your nomination, steve bannon talked about the president's agenda. he describes three priorities, and one of them was quote, the deconstruction of the administrative state. now here's what mr. bannon meant bay that. he said that regulation was a problem from his perspective, quote, every business leader we've had in is saying not just tax taxes, but it is also regulation. he said if you looked at the president's appointees, quote, they were selected for a reason. and that is deconstruction. the way that the progressive left runs as if they can't get a passed, they're going to put in some sort of regulation in an agency. that's all going to be, gonna be deconstructive. taking steve bannon at his word, do you think only cabinet appointees are selected to bring about this deconstruction or do you think the white house also sees a role here for it's
1:30 pm
judicial nominees? >> senator, respectfully, i believe that's a question best directed to mr. bannon. >> he's not here. i'm just quoting him. that's all. i think the white house does see judges as a part of this deconstruction. i think that they're seeing your nomination as an important step towards achieving this goal. you showed a willingness to disregard agency interpretations of statutes, you did that in transam trucking with the department of labor regulation, for example. you've done in other cases as well. and in august you wrote that concurrence to your own unanimous opinion in which you describe chevron, the supreme court's landmark administrative law case as quote permitting bureaucracies to swallow huge amounts of legislative power. you wrote, quote, maybe the time has come to face the behemoth.
1:31 pm
1:32 pm
courts should be wary of stepping in to overrule them without a good reason. this is skrooe ya's agrees with chevron. i'm concerned that this administration sees common sense health and safety rules as a burden. anne i'm concerned they're wanting to appoint judges for those of experts. do you believe that chevron was wrongly decided? >> senator, i'm a circuit judge. i don't tell my bosses what to do. >> i do tell m bosses when i see an issue. not because of corporate interests but because of what happened to mr. gutierrez. undocumented immigrant to this country. and the whip saw that he was
1:33 pm
placed in by a change in law effected by an administrative agency, bureaucracy overruling a judicial precedent and telling him he now had to wait not ten years out of the country, but 14, something like that. and senator, that's part of my job to say things like these. it's a due process and no one, senator, is suggesting that scientists shouldn't get deference or chemists or biologists section 706 is quite clear that on facts -- >> well, do you want to address this behemoth. and that suggests that the comments made by mr. priebus and mr. bannon know exactly what they -- what you think about these issues. and i think some of my colleagues on the other side of the aisle do as well.
1:34 pm
it was mentioned 30 times by four different senators. each four discussed the case while speaking in support of your nomination. three senators are members of this committee. so i know you're choosing your words very carefully and i know you're trying not to signal how you mighte in certain cases, but i think some of the signals have already been sent. thank you. >> senator sass. >> there are a number of things disappointing to you in the process. i'm disappointed in senator cruz partly because he stole a lot of my originalism plan of questioning, but also because he went to mutton busting.
1:35 pm
i was convinced i was the only guy that had mutton busting in today's pool. my wife also sent me a text a little bit ago and said, and i'm sure she didn't expect me to read it, but how in the world is gorsuch able to go so many hours at a time without peeing? i won't make you answer, but the scotus bladder is something the whole country stands in awe of. you're over half way through your 11 hours today. so congratulations. judge, let's do biography for just a second. you're a father. remind the ages of your children. >> boy, i don't even know what to say now. you really caught me off guard there, senator sasse. >> you're welcome. >> my daughters are 17 and 15. >> okay. besides fishing, have they ever played sports? >> oh my goodness, yes. >> have you ever gotten to a little league game early, pulled the umpire aside in the parking lot, and asked him or her to
1:36 pm
commit an advance that they will decide the games for the underdog? >> no, but i think some of my buddies have. >> have you ever asked a referee underneath the zebra stripes of their jersey to wear your kids little league jersey as the undershirt? >> no. that wouldn't have helped. my kids were rot ten at basketball. >> we're not going to pursue this very far, i want to make sure that everybody at home knows a little bit of what's been happeni in the room over the course of the last six or seven hours. because some of my colleagues are asking a bunch of tough questions that are really important for you to have to answer, statement, there are a whole bunch of questions that have been asked today that are really asking you to take your legal career and your legal ethics and set them aside and play politician on tv today. and that really isn't your job, and some of this questioning really hasn't been a fruitful use of our time. it's well meaning to talk about the outcome objectives of a whole bunch of these cases, but
1:37 pm
i would submit that it's dead wrong. i want it give you just a couple of the questions we've heard earlier today at different times, how can we have confidence that you won't be for the big guy and another point? how can we know that you feel for the little guy? to seek assurances for you like is like seeks assurances that they will pledge to a certain outcome before the tip off. is the law is wrong, and i'm somebody who believes that lots of our laws are wrong and overreaching. the question should be directed back at us on this panel and die yas why we don't fix the laws that are wrong we shouldn't ask you to commit that when our laws are clunky and bad and in conflict, you will devine thousand change the law on the fly. that's not the oath that you'll take.
1:38 pm
that's not the constitution that we've all taken an oath to and pledged to, and it's not what the american people want. so frankly, i applaud you for your perseverance and patience with us as we've continuingly gone down a path of asking you to answer questions, many of which are fundamentally political questions, and that you shouldn't be answering. and that we shouldn't be asking. so thank you for your endurance. i'd like to go back to something that's a little more productive for the committee and frankly, i think productive for the moms and dads at home. and the judges black robe reminds us of the meaning of your job. it reminds the plaintiffs that stand before the court. reminds the judge if hrhe dresses in the morning and reminds our kids or gives an opportunity to teach our kids and you've spoken eloquently about it in the past. i think it's fitting for you to unpack it label the more enlight of some of today's questioning.
1:39 pm
earlier today, you were implored to tell us a little bit more about what is in your heart. and i think that's fundamentally a confusing question for us to be asking of a judge, except in so far as we would ask you, are you a man of your word who when you take an oath in your heart, are pledging to keep your word? and to keep your oath. and i think we all know that the answer to that question is yes and it's why you're going to be confirmed. people believe you to be a good and fair minded judge. we are supposed to speak for 320 million american people. we are supposed to cast a vision for the country. those things we want to conserve and preserve and those things we should argue about and change. we are the ones who are supposed to weigh the pros and cons of various legislative options that are available to us. judges on the other hand are supposed to be following the law
1:40 pm
impartially. your heart is supposed to be inclined neither toward the rich nor toward the poor nor black, white, nor people with big bank balances or small bank balances, but your heart is supposed to be your commitment to the law as you find it. so, let's engage in a little thought experiment. 30 or 40 years from now, when you retire and hang up your robe and you're out fishing or sitting on the front porch of your surely lovely home, and you look back over your career, how will you know if you were a good judge? >> senator, that's a question i ask my kids ery semester when i teach ethics. finish the semester. but asking them to spend five minutes writing their obituary. they hate it. they think it's corny. and it might be a little corny.
1:41 pm
then i ask them to volunteer to read some of them. and people want to be remembered for the kindnesses they showed other people by and large. and when i point out to them, what i try to point out it's not how big your bank account brans is, no one puts that in there or that they build the most hours or that they won the most cases. it's how they treated other people along the way. and for me, it's the words i read yesterday from increased the tombstone. and that means as a person, i'd like to be remembered as a good dad. good husband. kind and mild and private life. big any if ied and firm in public life. and i have no illusions that i'll be remembered for very
1:42 pm
long. none. if byron white is as nearly forgotten as he is now, as he said he would be, i have no illusions. i won't last five minutes. that's as it should be. the great joy in life, shaw said, is devoting yourself to a cause you deem mighty. before you're thrown on the scrap heap. independent judiciary in this country, i can carry that baton for as long as i can carry it, and i have no illusions i'm ing toas as long as you suggest, and that'll be enough for me. >> well said. and would it be that more who taught legal ethics and business ethics and medical ethics and theological ethics would assign their students the obituary challenge. might live less in the sound byte culture and more in a way this think abouts service and duty and calling.
1:43 pm
it's a great assignment. neither cory gardner nor michael bennett have to fear that you're going to challenge them for a senate seat from colorado in the future? >> senator, i admire them both. i think it's a wonderful fact they're both here to introduce me and that they follow a tradition the lest. senator salazar and al lard, republican and democrat, introduced me last time and ten circuit nominations, thanks to -- he's not here at the moment, but senator hatch. cares about the tenth circuit. public and in democrat. generally gone very smoothly. and it shows. it shows. that you all have picked -- i don't know how it works. i don't know how this crazy process works. but the colleagues you've selected for me over the years are wonderful colleagues.
1:44 pm
wonderful people. and i've been richly blessed to spend ten years with every one of them. >> so when you distinguish between the rearview mirror of a justice later or a judge later in life looking back and the rearview mirror of the senator, we have different callings. and so, i think without putting words in your mouth, you're going to be able to say that you can be proud of your career even if you failed to advance your policy preferences in this calling, but unpack that for the american people. help them understand how the retrospective lock of a senator and her or his career is different than a judges retrospect of luck. >> i suspect, but i don't know because i haven't sat where you sit. i wouldn't presume to be able to walk in your shoes. but i presume gingerly, that you look back on your career and say, i accomplished this piece of legislation or that piece of
1:45 pm
legislation. and changed the lives of the american people dramatically as a result. i was fortunate enough to serve as a page in this body many years ago. it's an experience every young person should have. it'll give them a lifelong love of this body. it is the greatest deliberative body in the world. i believe that even sitting here. a judge looking back, the most you can hope for is you've done fairness to each person whose come before you, decide their case and the facts and the law and that you've just cared on the tradition of a neutral, impartial judiciary that each person can come to with some sense that they're going to receive a fair hearing. for their disputes. that's what we do. we just resolve cases and controversies. and lawyers are supposed or it fierce advocates, and i was once a fierce advocate for my clients.
1:46 pm
but a judge is supposed to rule impartially, listen courteously, and rule impartially. frankly my legacy should look and will look a lot smaller than yours. and that's the way the design of constitution works. >> in an earlier line of questioning, you were asked about 2004 and presidential election and your participation in it. i just want to clarify, you were t a judge in 2004. >> goodness no. >> correct. >> i was a private attorney. >> and when you went on to the bench, what changed in your life? >> justice jackson says a robe changes a man, or it should. now i'm sure you would add woman today too. psychological change comes over that person. he was the fiercest possible advocate, attorney general, for fdr. and he wrote a descent. he wrote the concurrence.
1:47 pm
it's a brave man. that's a judge's judge. calling it like he sees it. each case as it comes and writing clearly to the people can understand exactly what he's up to. and he's not hiding behind jargon, or four million footnotes. that's the best i can do on that. >> senator cruz earlier asked you a series of questions about originalism, and i appreciated your -- i'll probably paraphrase you inartfully, but you said you worried that the labels sometimes put us into boxes that eliminate the requirement or reduce the requirement we have to actually engage each other's ideas. so, i won't pin you down hard on the term originalism, but, many have critiqued originalism including today as backward-focussed or quote too rigid and adapting to our changing culture. do you believe that originalism is just oneudicial philosophy
1:48 pm
among many or a description of what judges do? >> i'm with just case kagan on this, it's what we all want to know. i don't know a judge who wouldn't want to know what the original understanding is of a particular term in the constitution or statute. that's information that would be value to believe any judge and considered by any judge. again in heller, for example, second amendment case, deeply thoughtful opinions. by both sides on that question. it doesn't necessarily decide the case, but it revises a language to talk to one another. in which we're trying to seek something outside of ourselves. outside of our own personal beliefs. about what the constitution or the statute at hand means. we're trying to do it in a way that's neutral and that we can say provides fair notice to those whose lives were effecting so that we're interpreting the
1:49 pm
law in a way that we can say, they should have known. they were on notice. we're not putting a person in prison willy nilly based on our preferences or taking away their liberty. but we're preserving it in accordance with the constitution as it was written. >> i'd like to talk a little bit about cultural civics. as you and i have discussed in previous meetings, i'm of a view that we have a crisis. we are not passing on the meaning of america to the next generation. something like 40% of americans under age 35 tell pollsters that they think the first amendment might be dangerous because you might use your freedom of speech to say something that would hurt somebody else's feelings. actually, that's quite the point of america. there are all sorts of things people might differ about, they might to want argue about, founders came here and they didn't have the same views of heaven and hell and they came together and they forged out of the many one colony where we
1:50 pm
have a shared framework for ordered liberty where we protect each other's rights. even to be wrong about fundamental things. wrong in our own views as we wrest wl these things, but we debate big and important questions in washington, but more fundamentally in boulder or in fremont or omaha, nebraska, and you do it in the town square and the church and the synagogue. you do it in a bar and fight about questions, but fight free from violence. and so we protect each other's rights to argue. and to descend. and we're not explaining that first amendment to the next generation. and i believe that all three branches, the legislative, executive, and judicial branches are led by people taking an oath about constitution that's about limited government. it's about principled pluralism, it's about intentionally distinguished and divided powers. and i think all three branches have an obligation to do some of that teaching about civics. president reagan long before he was republican president, before he was a republican governor, when he was a democratic labor
1:51 pm
union organizer, ronald reagan used to say in any republic, you're always only one generation away from the extinction of freedom. if we don't pass along the meaning of america to the next generation, it means the next generation of our rulers aren't going to understand why we have this beautiful inheritance that we have in a constitutional system of limits. as a judge on the tenth circuit and soon to be as a justice on the supreme court, can you explain what you think your responsibilities and freedoms are to teach civics to the american people? >> senator, as a judge on the tenth circuit, i've tried hard to do that, literally teaching class, speaking where i'm invited, when i'm invited. going to law schools. talking to students who visit the courthouse. anit's been a great privilege and a joy. i think here of justice o'connor, sandra day o'connor
1:52 pm
and when she retired, she did an awful lot of this. she's done an amazing amount of work. and i do think that there is a need to remind people how to talk to one another, how we talk to one another, and more fundamentally about how brilliant the design of this constitution is. not perfect, but e plur bus ewe know. for many one. and we are all, not republican judges, democratic judges, we're judges. and i think we do have an opportunity, and that's one of the things i look forward to as a justice. my little talks might be a little better attended on civics. and i hope to do that. maybe that's a western thing. i don't know. from midwestern thing, senator. but i really believe in this country. and i'm optimistic about it's future.
1:53 pm
i see the young people -- i teach them, i get law clerks, they really care about this country. and they give me hope every day. senator coon serks s share the scholars and picking the next crop every year. harry trueman didn't want a monument as a memorial here in washington. think about that. the humility of that. instead, he wanted a living monument. a scholarship to young people who will go on to do public service. well, got two of them here. and every year when i go down that selection process, i don't know about senator counce, it's one of the best days of the year for me. i see enthusiasm for this country and anxious to make it better. i look forward to working, if
1:54 pm
i'm so fortunate to be confirmed, on just this topic, senator. with you, with senator coops, and anyone else. >> talk a little bit about the role of writing in the life of a justice. justice scalia was obviously a writer with a flourish, you've discussed having tapped in the past to participate in speech-writing. talk about the purposes of both concurring decents and traditional desints and what you think the objectives are at the appellate level and your opinions, and is there a distinction when you're on scotus. >> people ask meho'm writing for. i'm writing f myself. trying to convince myself that
1:55 pm
i've got it right, and i go through a lot of drafts and i sometimes as my law clerks know change tack as i'm drafting. i don't know how many drafts i've gone through in some opinions, but 30, yeah. >> he actually said 130, but whatever. >> i'm trying to get it right. and i find i test ideas as i write. it's one thing to say to somebody else, oh, go write this up. it's another thing to have to sit down and write it yourself. and it exposes holes and causes you to question yourself whether tough right. so for me, it's an exercise of getting it right and persuading myself at end of the day and writing in a long that persuades me and us lawyers are guilty of
1:56 pm
that. that doesn't persuade me. i want to know through a clear line. i want to see my argument from my pocket sentences and maybe it's that. i don't know. then i want is torn apart myly law clerks who tell me i'm wrong. it's a process. that's what it's all about. it's about the test of my colleagues and i take my colleagues very seriously. i believe two heads, three heads, nine heads are better than one. authorship and has to have have constructive criticism and incorporate or deal with that criticism. maybe that's why my opinions have attracted few decents, i don't know. but i take it very seriously.
1:57 pm
as to writing separate opinions, i don't do it very often. and when i do it, it's usually because i'm just stuck. i might be wrong, but i'm just stuck, something doesn't seem right to me. i bend as far as i can bend. i tend to follow the law where it reads me and try hard to treech, when i can't, i write up what i can as respectfully as i can and usually in a few words as i can. i enter a separate concurrence. sometimes because it's just where i'm stuck. sometimes because i see an issue that my bosses need to be aware of, like any good employee hey boss, think about this one. seems kind of tough to me. and i think that's part of a
1:58 pm
good judge. >> one of my advisors say you kept pounding me. it seems scattered all over the place and persuaded know put a picture of my ant on the farm on my computer and she's smarter than i am, but she knows nothing about my topic. and he said if you recognize that your audience should be smarter than you, but ignorant of the subject matter, you're finally going to find your voice. is there something in the writings of the supreme court where yore just not writing but you have an obligation to write if the the american people? >> i think you're right on target. i think if i'm persuading myself, everybody will be able to at least track what i did, maybe not agree with every opinion, every single one of the
1:59 pm
2700 decisions i've issued, but they'll understand why i got where i got. i was candid about it. i didn't hide. i stood up. i was clear. i was honest. i was forth right. plain spoken. and you can judge my opinions for better or worse on their merits. and i think that's what a good judge does, candor. the duty of candor. >> we finished voting a day early last week, and so a lot of us were back in our states traveling and doing town halls and rotary clubs and schools. i ran into three different teachers who planned to use these hearings on c-span to teach civics. i wonder if you could help those teachers explain as one of them asked me about why we have a bill of rights. remind the american people, the constitution's a negative document. it is not the government giving us freedoms, it is us giving the government a limited set --
2:00 pm
>> all right, i'm steve kornacki here in new york. we have been watching the supreme court confirmation hearings for judge neil gorsuch. we're going to continue to keep an eye on that, but right now we are also going to go down to washington for our rejly scheduled mtp daily with katy tur in for chuck todd. starts right now. if it's tuesday, under the cloud of an fbi investigation. president trump wants a win. tonight closing the deal. warns weary republicans to get behind the obama carrey peel or lose their jobs. >> i think we're going to get a winner vote. >> we'll talk to one of the republicans who's not buying the president's sales pitch. plus the russia ripple effect. how the dark cloud of an fbi investigation could cast a shadow over everything on the president's agenda. and filibuster or bust. if you think congress is broken now, just wait till they tackle th

24 Views

info Stream Only

Uploaded by TV Archive on