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tv   Key Capitol Hill Hearings  CSPAN  February 13, 2016 11:03pm-11:32pm EST

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product of my judicial career to be demeaned by justice scalia: i will know when i have lost it. and i have many friends and enemies who will certainly tell me. susan swain: the name of the book is the interpretation of legal text by antonin scalia and brian eckhart. thank you very much. ♪ announcer: >> for a dvd copy of this program, call 1-877-672-7726. to give us your comments about this program, visit q&
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programs are also available as c-span podcasts. ♪ >> the reality is the best presidents, the greatest presidents, have been willing to recognize they were not the smartest person in the room and surround themselves with people they thought were smarter than themselves. announcer: sunday night, robert gates discusses his look. mr. gates has served under several presidents, most recently president george w bush and barack obama. to believei became very strongly the american people had given the cia a pass
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on a lot of things because of contract withl the soviet union. i believed after the end of the cold war we would have to be more open about what we did and why we did it and to an extent, how we did it to help the american people better understand why intelligence was important to the government and presidents and why presidents valued it. at 8:00r: sunday night eastern on c-span's q&a. supreme court justice in tildenscalia -- -antonin scalia. this is just over 30 minutes.
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susan swain: associate justice antonin scalia, would you discuss what the role and responsibility of a supreme court justice is? justice scalia: to try to come out the right way on cases that the court has agreed to hear. and also, secondly -- and this is the only respect in which the job differs from the job of a court of appeals judge, to decide on which cases the court should agree to hear. there are essentially two functions areas the latter is prior, decide what to put on our docket, and speculate what is on the docket, try to get it right. susan swain: what is the supreme court saying in society today, and has it changed over your tenure?
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justice scalia: i do not think it has changed. its proper role is in democracy to give a fair and honest interpretation to the meaning of dispositions that the people have adopted, it either congress in statute or the people when they ratify the constitution. simple as that, no more, no less. i don't think we are a leader of social causes. we are not pushing the society ahead the way, we are supposed to be interpreting the law for the people they have made. susan swain: what do you like best about the job? justice scalia: justice scalia: what do i like best? i like figuring out the right answer to legal questions, believe it or not. and not everybody does.
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i think some people who lust to become an appellate judge, they find it quite unsatisfying when they get there. you have to have a rather warped mind to want to spend your life they bring out the answer to legal questions. it is a very isolated job. the only time you see people from the outside is when you are listening to arguments from counsel. other than that, it is very disembodied, intellectual work, probably most closely resembles the work of a law professor, which is what i was before i was here, so i am no more unhappy than i was before. susan swain: after two decades of doing it, is there any aspect of the job, if you had a choice to pass on to somebody else and avoid? justice scalia: i think undoubtedly, in my mind, the most -- what should i say? onerous and for the most part uninteresting part of the job is enrolling court cases.
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when i first arrived, if i am correct it was something about 5000 a year. now it is approaching 10,000. every one of them we have to consider, if not by reading the actual petitions, we rarely do that, by reading the summaries of the petitions law clerks have prepared. 10,000 of those a year, that is not a lot of fun. susan swain: with the increasing number of petitions, why always 80 to 100 cases a year? justice scalia: we have been averaging actually 75.
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that number is not out of line with other supreme courts in other jurisdictions do. i think we could do more than 75. i don't think we could do 150. why? your guess is as good as mine. i certainly have not changed my standards for deciding what cases we should take, and i don't think my colleagues have. if i had to guess, i would say that what has happened is that in my early years on the court, 20 some odd years ago, it was a lot of major new legislation that had recently been enacted, new bankruptcy code, there is not that much major legislation in recent years. and new legislation is the principal generator of successful petitions, because it takes 10 years or so to get all
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of the ambiguities in the statute resolved. that is our main job. we don't take cases because they were decided wrong. caserarely would we take a for that reason. a death case, we would. we usually take cases because the analysis of the courts below reflect disagreement on the meaning of federal law. and you can't have two different federal laws in different parts of the country, so we will take one or both of those cases. as i say, those have been on significant questions, which have been rare in recent years. we do not always sit down at the end of the term and say, how many cases do you want to take? 120? that is not what happens. they trickle in, we vote on
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those we think are worthy of our consideration. the last few years, at the end of the term they have been adding up to about 75 or so. susan swain: when you make those decisions, are you aware at the time which ones will be the blockbuster cases? justice scalia: usually. you can usually tell which ones pertain to a major piece of legislation, a legislation that is a major impact on society, sure. susan swain: does it affect your decision process? justice scalia: not mine. you may have to talk to other people, but i don't think it does. i put in as much blood, sweat, and tears on the big ones as the little ones. people ask which site you have been on the bench, you would not want to know. it is a relatively insignificant case. it was relatively hard to figure out. there is no relationship whatever between how important it is and how hard it is. susan swain: can you tell me now that you have discussed it? justice scalia: you don't want
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to know. susan swain: i would like to ask you about the clerks role in what you do. you have had many of them over the years. do you stand with them? justice scalia: we have an annual clerk class reunion. it is great to see them. it is one of the most enjoyable parts of the job. you work closely with four young people every year. there are new ones every year, full of them and vigor, they are not jaded. it is all new to them. it rubs off on you. and you work closely with them over the year and you become very close. and they go off. it is like acquiring four new nieces and nephews every year, none of whom will be a failure. they all go off to do significant things. it is fun to follow their careers.
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susan swain: what jobs -- how do you use them? justice scalia: i can say how i do it, but that isn't necessarily how the others do. i let them take the cases they want to work on. something like an nfl draft, first pick, second pick areas i figure they are less likely to do cases they are not interested in. so i let them take the cases. i usually discuss the case very briefly with a law clerk who has chosen it before oral argument. and after oral argument, i sit down with that clerk and the other three, who know something about the case but not as much
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as the clerk who really is responsible for it. and we take it around for as long as it takes. it could take an hour or two. and then, if i am assigned to the opinion or the dissent, that clerk will normally do a first draft of it all. what is supposed to be in it, he will write it out and i will put it up on my screen and take it apart and put it back together. so, i kid you not, i tell them at the reunions, i am indebted to my law clerks for a lot of the quality of the work that comes out of my chambers. i could not do as well without the assistance of brilliant young people. susan swain: in a week when the court is in session, how many hours you spend in the court? justice scalia: i have no idea. susan swain: 40 hours, 60 hours? justice scalia: one of the nice things or the non-nice things, you do not have to be here to be
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working. i could, and some judges on the court of appeals do only come into court when there is oral arguments. i could do this job from home. the main thing it would deprive me of is consultation with my law clerks. it would deprive them of my company too. so i like to come in. it has no relationship with how many hours i am putting in. i never counted the hours in the week, but i almost always worked weekends. not all weekend, every weekend, but some of the weekend every week. susan swain: is there ever really a break in the summertime? justice scalia: yeah, the summertime is great. we clean our plate before we leave at the end of june, so it is really a summer without guilt.
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the only work we have to do over the summer is it stay on top of certain petitions because there is a monster conference at the end of the summer to vote on all of the circuit petitions that have accumulated during the summer. you've got to stay on top of them. that is a manageable job. for the rest of them, we have continued to function the way all three branches of the federal government used to function. this town used to be deserted in july and august. there would be nobody here. now we all come back in september to get ready for the arguments in october. during the summer, you have time to do some of the reading you did not have time to do during the court term, and to sort of regenerate your batteries. susan swain: you mentioned that the court has retained what the other branches used to have. the court is also quite well-known for other traditions. a few came to mind, including
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the courtroom itself, the selected formal address. i wonder why they matter to the process and why they are retained in 2009? justice scalia: oh, i think traditions in a way define an institution. an institution is respected when it is venerable tradition, and certainly one of the remarkable things about the court it has been here doing this job for 220 years. i think traditions remind, remind people of that fact. you know, i guess we could sit in a bus station and not wear robes but just business suits or even tank tops, but i don't think that creates the kind of image you want for the supreme court of your country. susan swain: on the road, looking at a little bit of history, your earliest successes
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here, you did not wear them? justice scalia: did not wear robes? susan swain: according to the documents. it began around the 1800. justice scalia: john jay, over your shoulder, was the first chief justice, and that was before 1800. he is wearing a glorious robe, not just black but black and red, but what you told me is news to me. susan swain: i will go with john jay, but let's say it is 2009 and tank tops aside, what is the symbolism behind the robe? why do people continue to wear them in our society? justice scalia: i'm sure we could do our work without the robes, without this glorious building that you are designing to have this conversation in. the roads are like the building, in part to the people who come here, is the significance, the
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importance of what goes on here. that is nothing new. public goings don't look like bus stations. they should not. susan swain: this is a symbol of the american initial process internationally. when you come to work here, are you conscious of that when you drive up here after doing it for such a long time? being part of the american judicial process? justice scalia: i can't say it is in the middle of my mind. i usually thinking about what case i am working on that day. you get used to it. you take stuff for granted that maybe you should not, but i take for granted working in his glorious building, i take for
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granted wearing a robe when i go out on the bench. susan swain: when you have the opportunity and it is quiet around here, are the special places in this building where you might reflect on the history? justice scalia: not really. i hang out in my chambers most of the time. the center of the building, what is really the reason the building is here is the audience chamber, where we all argue. as the august nature of that has a c --gests, it can barelyhigh you
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see it from the ground. that is the center of the court, of course. susan swain: let's talk about what goes on in that court and the process of oral argument can you talk about how you use oral argument and white, in fact when there is so much paper before hand on making all of these cases, oral argument is even needed? justice scalia: a lot of people have the impression it is just a pony show. i read and 60 page brief by a petitioner, a 60 page brief by the respondent, a reply brief, some very often by the solicitor general. some veryus brief, general.the solictor a dozen other because briefs, not all of which which i will read, and i have seen passages where there is nonsense in the margin -- what someone can tell me in half an hour will make a difference. the answer is it is probably quite rare, although not unheard of, but it is quite common that
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i go in with my mind not made up. a lot of these cases are very close. you go in on a knife's edge. persuasive counsel can make the difference. there are things you can do with oral argument that can't be done in a brief. you can convey the relative importance of your various points. sometimes, so you have four points and one of them is very complicated. it is not the most important, it takes a third of your brief. if i read your brief a week ago, i have a misconception of your case. you can set that right to in oral argument. so with the oral argument, very often the third point, the difficult point may be the first point you address in your brief because that is the logical order. you don't put jurisdiction last, you put it first. even if it is the most complicated, in oral argument you can say, "your honors, we have five points that are worth your attention, but what it comes down to, that point here."
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it can make a difference. counsel, is there some reason why this point is not nonsense? sometimes, they can tell you. so i am a big proponent of oral argument. it is very important. you would be surprised how much probing can be done within half an hour, an awful lot. susan swain: what is the quality of the council who come before you? justice scalia: you know, to chiefs ago, chief justice burger used to talk about low quality of counsel. i used to have just the opposite reaction. i used to be disappointed that there were so many of the best
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minds in the country who were being devoted to this enterprise. i'm being, there would be a public defender, and this woman is really billion. why is she not out inventing the automobile or doing something productive for the society? lawyers after all don't produce anything. they enable other people to produce and go on with their lives efficiently in an atmosphere of freedom. that is important, but it does not put food on the table. there have to be other people that are doing that. i worry that we are devoting too many of our very best minds to this enterprise. and, they appear here in the court. even the ones who only argue once and will never come again,
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i'm usually impressed with how good they are. sometimes you get one that is not so good. by and large, i don't have any complaints about the quality of counsel except maybe we are wasting some of our best minds. you should not -- how can i put it in another way? law clerks of law firms spent enormous amounts of money to get the very, very brightest. there is a small amount of difference between that guy and the next, but it is worth it because the law is complicated and complex. the legal system probably should not put such a premium on brains, but it does. and our lawyers are really good. lawyers generally are smart people. susan swain: moving on to the next stage, conference.
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did you talk about conference and how it works? justice scalia: i can't talk too much, but if we sit down together and there is nobody else in the room -- i am not giving away anything because chief justice rehnquist wrote a book in which he acknowledged the conference is probably a misnomer. it is really -- it is not an occasion on which we try to persuade one another, very few minds are changed in conference. each justice states his or her view of the case and how he or she votes right around the table. and if in the middle of somebody's presentation you disagree with something that that person says, if when john stevens is speaking he says, wait john, why do you say that? or if it did happen, you do have your turn, john.
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let him finish. when we get all around, at the end you can speak a second time and raise some of these questions. but it is not really an exercise in persuading each other. it is an exercise in stating your views and the rest of us take notes. and that is its function. you take notes so that if you get assigned to the opinion, you know how to write it in a way that will get at least four other votes beside your own. that is the principal function. susan swain: when it comes to writing opinions, the chief told us in our conversation that he worked fair to be fair with the distribution of assignments. are you able to lobby if you are particularly interested in a case? justice scalia: i wanted to if i could. on very rare occasion, i like that case. i bet more than three times i
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have been on the court -- i pretty much take what i am given. both of the chiefs that i have served under tried to be fair in giving you good ones and bad ones. sometimes, what they think is a good opinion you don't think is a good opinion. chief justice rehnquist used to love fourth amendment cases involving searches and seizures. i just hated those. fourth amendment cases. it is almost a jury question, whether this variation is among -- in a unreasonable search and seizure, reason number 542. yeah, i will write the opinion, but i don't consider it a plus. chief justice rehnquist thought he was entitled to give you a dog. and i did not much like that. susan swain: you are a writer. you have written three books
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now, is that correct? justice scalia: two. susan swain: two? writing is something it seems you enjoy. justice scalia: you don't want to be an appellate judge if you are not good at writing. susan swain: do you enjoy the writing of opinions and to the exchange of precise words -- justice scalia: as i have put it, i don't enjoy writing, i enjoy having written. i find to writing a very much difficult process. i rewrite, i write again. before the opinion goes out, clerks say it is going out this afternoon, do you want to read it one last time? yeah, i will read it one last time. and i guarantee you, every time i read it, i will change it something else. it has to be wrestled from my grasp and sent down to the printer. now, i am not a fast writer, but writer i am not a facile
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, but i think writing is a job that is worth the time you spent on it. susan swain: has technology in this time here made the process easier? justice scalia: we have word processors when i arrived, so i cannot say it has made it easier. i had wordprocessors when i was a law professor. it makes the job of writing, especially when you are editing someone else's first draft, enormously more simple. you don't have to write balloons. you just highlight the part you want taken out, bang, it is gone. then you put in the new parts, bang, it is in. it makes it a lot easier. susan swain: when you strongly disagree with someone's opinion, how do you keep it from being personal? justice scalia: you just criticize the argument and not the person. and an ad hominem argument is


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