tv Charlie Rose Bloomberg December 26, 2016 1:00am-2:01am EST
♪ announcer: from our studios in new york city, this is "charlie rose." charlie: welcome to the program. we begin this evening with two supreme court justices in conversation at the new york bar association. we talked to ruth bader ginsburg and sonia sotomayor. justice ginsburg: i thought of myself in those days as a teacher. my parents thought that teaching would be a good occupation from me. women were not welcome as doctors, lawyers, and engineers.
i realized i was facing an audience that did not know what i was talking about. they understood race discrimination, that was odious. but most men at that time thought that the law was riddled with gender-based distinctions but they operated in the women's favor. like, a woman did not have to serve on a jury if she did not want to. so that was a benefit. justice sotomayor: a woman didn't have to serve on a jury pick if she did not want to. so that was a benefit. eavesdropping reflected curiosity. i think that is what drew me. charlie: a rare conversation with ruth bader ginsburg and justice sonia sotomayor. they talk about the death of antonin scalia. tonight we hear all about the court and the love of law from
two justices. let me take note of the fact they have both written books. sonia sotomayor's book, "my beloved world." justice ginsburg's book, "my own words." it is a compilation of speeches she has written. i want to start with this. looking back on your life, justice ginsburg, thinking even though it was incorporated in speeches, what was that like for you, to put your own life in focus? how was that? justice ginsburg: "my own word" as you said is a collection of speeches, bench announcements, tributes to colleagues. it is not a biography of me to the extent that my life is told. it is in the introductory passages that my official biographers wrote. that biography will come out sometime in the distant future. [laughter]
charlie: in your book, "my beloved world," you said "i am my mother." what did you mean? justice sotomayor: as i tell her, good and bad. [laughter] justice sotomayor: i am my mother's child. she aspired to be more than her circumstances. she wanted to go to college. she lived in the poorest circumstances in her community. and she would watch the college girls walk by her house, going to the post office because that was the center of the town's social life at the time. all she dreamt about was someday going to college. and getting my brother and i
into college was her living her dream. she wanted me to be a journalist. i don't think she was ever convinced there was value in the law. [laughter] justise sotomayor: perhaps when i got on the supreme court she might have changed her mind. [laughter] justice sotomayor: but i lived that dream for her. i have lived all of her dreams because she set the example for me of striving to do better, to try to be the best person i humanly could be. that is how my mother lives her life. i try to emulate all of those things in my mother that are the best. when i do the things that are bad i remind her that that is the problem with being a little duck -- you copy everything. charlie: you once said as a child you eavesdropped on
conversations and it was an important aspect of growing up for you. justice sotomayor: who doesn't like to eavesdrop? i think the eavesdropping reflected curiosity. and, i think that is what drove me as a lawyer. i always tell people, being a lawyer is like being a voyeur in other people's lives. you participate a little more than lawyers do. thankfully. but you get to learn about how people or an industry or a government entity interact and what is important to them. to be able to enjoy that process, i think you have to have curiosity. listening to others and their conversations was a way of teaching myself things that i would not have otherwise learned so easily.
charlie: justice ginsburg, when did you fall in love with the law? justice ginsburg: people sometimes ask me, did you always want to be a judge, a supreme court justice? when i think of what life was like in this city in the 1940's, no girl, it would not be their wildest dream to be a judge. because there simply weren't any. franklin delano roosevelt appointed the first woman to a federal appellate court in 1934. she was from ohio, she stepped down the year i graduated from law school in 1959, and then there were none. and then johnson appointed shirley hufstedler.
she became the first-ever secretary of education. and then there were none, again. so, i didn't think about being a judge until jimmy carter became president of the united states. he looked around at the federal bench and said, "you know, they all look like me -- " [laughter] justice ginsburg: " -- that is not how the great united states looks." he was determined to appoint members of minority groups, and women in numbers, not as one-at-a-time curiosities. he appointed over 25 women to the federal district court, the trial bench, and 11 to courts of appeals. i was one of those lucky 11. no president ever went back to
the way it was. president reagan didn't want to be outdone. he made it a nationwide search for the first woman justice on the supreme court. charlie: sandra day o'connor. justice ginsburg: and it was a brilliant choice. charlie: you have said when she left the court it marked a change in the court. because she was gone. justice ginsburg: i have said more than once that the term that she left, whenever the court divided 5-4, and i was one of the four, i would have been one of five if she remained with us. there was that an enormous difference. charlie: my question going back to both of you, have you been influenced by people, your mom, your husband marty, your late husband had a huge influence on you. justice ginsburg: yes. charlie: you have said to me you would not have made it to the
supreme court without him. justice ginsburg: no question about it. people at the time said, "ruth would have been on a list. maybe she would be 22 or 23. but it was marty who made her number one." charlie: how did he do that? justice ginsburg: he had a little book of people he contacted. [laughter] justice ginsburg: they were mainly my academic colleagues in those days. i was teaching. this was before my first good job in d.c. he got in touch with academic colleagues. it was lawyers who knew me. they knew me from the lawyering work i had done. and he had many letters sent to the president. but i think the most important thing of all, and this was
almost out of the blue, my rabbi, my guide, was senator moynahan. how did that come about? well, it was a connection marty was pleased to have but it did not come through him. the president was on a plane with senator moynahan going to some democratic function and said please tell me, who would you pick? for the supreme court? and, senator moynahan said, mr. president i am not a lawyer, so you should not be asking me that question. the president said, i value your judgment. who would you pick? and senator moynahan said ruth bader ginsburg.
why? he said, because dean griswold, the longtime dean of harvard law school, thinks she is very good. and this is the dean that said i could not have a harvard law degree because i did not stay there for my third year. life is -- so many chance things occur and you don't know if they will turn out to be good or bad. this was certainly good. there was a celebration at the court of the 50th anniversary of the building. so, the building was completed in 1935. this was 1985. dean griswold was solicitor general. he was to make a speech about great advocates before the court. and by 1985 he realizes that he cannot have a list with all men.
so, after he finishes with thurgood marshall, the next person he mentions his ruth bader ginsburg. charlie: yes. justice sotomayor: when i went for my nomination process, i was told everyone should have had a marty ginsburg as a muse in their life. [laughter] justice sotomayor: he apparently came into the preparation session with folders including all of ruth's speeches, her entire schedule for her entire life, and binders filled with information. justice ginsburg: that part the press reported inaccurately. because they said the reason ruth ginsburg had no problem with the taxes or the babysitter was because marty was a tax lawyer. [laughter] justice ginsburg: but in our home, our personal life, i did all of the taxes. [laughter]
[applause] charlie: and guess who did all of the cooking? justice ginsburg: when all the presidents men, and there were only men, when they descended on my apartment to go through my papers, marty made a delicious lunch for everybody. [laughter] charlie: it was at one point, he would do the special occasions and you would do dinners for the kids during the weekdays. finally your daughter said maybe you should just give that up, too. [laughter] justice ginsburg: in fact, my daughter, who was an excellent cook herself, she learned from a master. i was the everyday cook. so, i had seven things that i made. [laughter] justice ginsburg: when i got to number seven, we went back to number one. they all came out of "the 60-minute chef."
that meant no more than 60 minutes from when you walked in the door until it was on the table. marty would never allow me to cook for company. he was the weekend cook. so my daughter jane, in her high school years realized daddy's cooking was infinitely better than mommy's, and mommy should be phased out of the kitchen. [laughter] justice ginsburg: the result is that my wonderful daughter comes once a month. she cooks for me. she fills the freezer with individual dinners. we do something nice together at me evening. she feels responsible for getting me out of the kitchen and doesn't think i should go back in it. [laughter] justice sotomayor: the supreme court refrigerator is filled with some of the leftovers. charlie: what is the best experience for a supreme court justice? because, you were on the court of --
justice sotomayor: interesting question. charlie: tell me. justice sotomayor: well, i am biased. i think being on the district court was. and since all of my colleagues have only had court of appeals experience except for elena kagan, who was never a judge, and there have been three supreme court justices in the history of the court with this experience, i find it hard to understand how you can really appreciate the life of a case if you haven't really sat in the courtroom to see that case develop, to understand the dynamics that create a record. that create the discussions that end up coming before the court on appellate review. in my judgment, if i were ever privileged to be asked by a
president what should he or she look for, i would say someone with district court experience. charlie: doing that you see not only the case, but you see the stories? justice sotomayor: the stories are the people. justice ginsburg: it helps to be a lawyer, as sonia said, who knows the story. who probably knows more about the case than the district judge. charlie: oh! [laughter] charlie: we have a debate going. [laughter] justice ginsburg: i should say i started out my life in the law. as a clerk to a district judge. i was a clerk in new york for two years. from 1959 to 1961. justice sotomayor: do you see appellate practice as being the same as trial practice?
even accepting your premise, which is being a lawyer is critical. there is a difference between trial and appellate lawyers. justice ginsburg: there is an enormous difference. the important thing at the trial level it is to build a record. justice sotomayor: and to know how difficult that can be. justice ginsburg: yes. charlie: when you decide cases, do you think about -- are you looking and saying, we have to do what the law tells us? looking at precedent, looking at the constitution. but do you also say to yourselves, what is going to be the impact on people -- these decisions that we make? justice ginsburg: i think those two are entirely harmonious. when the constitution says no person shall be deprived of life, liberty or property, nor shall any person be denied equal protection of the laws, the
constitution tells us to think about the individual. and the rights that the individual has. so i don't think there is -- charlie: but it is not an abstract. it is a reality in terms -- justice sotomayor: it is inescapable for us to be aware of the impact of our decisions. in virtually every case of any significant social impact, we are receiving briefs. friends of the court briefs from virtually every segment of society. so, we cannot decide the big issue case without hearing about people and the impacts, positive or negative. so, that is an inescapable part of our work.
ruth is i think, talking more fundamentally, which is obviously you can't rule without at least understanding what the consequences will be of your ruling. not just in terms of the law, but since the law is responsive to human developments, you have to know what is going to happen more broadly to be able to understand the choices you are making. justice ginsburg: there are some cases when the law is clear and certain. like you have to be a certain age to run for office. but that is not the kind of case that we get. the special thing about the supreme court is for the most part we don't take cases where everybody agrees. we wait for what we call splits. that means other judges
disagreeing about what the federal law is. what a constitutional provision means in a particular context. more the statutes passed by congress. so, the wonderful input that we have, we have the benefit of s on other good mind benches, state and federal have said about it. charlie: the interesting thing is from the district level or appellate level court, there is a higher place that it can go. but if you are on the supreme court, the buck stops here. this is it. you are making the final decision. justice ginsburg: not you. charlie: the court is. theice ginsburg: district judge sonia was talking about is. they are the real power holders
in the system. they sit alone in the courtroom. you can't get out. you are stuck with that judge on the day the complaint was filed. until the final judgment. you go up to the court of appeals. you lost power when he went to the second circuit. you are not the lady of the manor anymore. you had to carry at least one of the minds to prevail. in the supreme court, the magic number is five. i have often said, when i write for the court, it is never as if i am a queen. i have to take into account the views of my colleagues and their opinions. ♪
i had a fantastic fortune in that i was alive and a lawyer when the women's movement was revived in this country. what we were saying in the 70's, successfully winning case after case, the same thing women have said ever since abigail adams and even before, but society wasn't prepared to listen. in the 1970's, society had already moved. the changes in the law were catching up to the changes that had already occurred in people's lives. so, to be able to advocate for that cause, to see results that could not have been achieved even in the 1960's was a fantastic opportunity, totally
exhilarating, also exhausting. charlie: but if that argument you made, those briefs that you wrote and those decisions you influenced, what was the proudest achievement? were they the proudest achievement of your life? justice ginsburg: yes. i would say yes. i thought of myself in those days as a teacher. my parents thought teaching would be a good occupation for me. women were welcome there. they were not welcome as doctors, lawyers and engineers. i realized i was facing an audience who didn't know what i was talking about. but they understood race discrimination. that was odious. but most men at that time thought that the law was riddled
with gender-based distinctions. but they all operated benignly and in women's favor. like, a woman didn't have to serve on a jury if she did not want to. so that was a benefit. to get them to see that says something about a woman as a citizen. a citizen has rights and obligations. obligations as well as rights. men know that they are an essential part of the citizenry because they can't escape civic duty. but women, they are expendable. we really don't need them. to get across that message, there was this pedestal that many men thought women were on, they were spared the necessity to earn a living. that was a myth. because it was never true for poor women.
to get them to see that what they regarded as favors, and the wonderful expression justice brennan used, the pedestal much more often the and not turned out to be a cage because it confined women and limited what they could do. so, to get the court to understand that there really was gender-based discrimination, that was a challenging job. justice sotomayor: i was just going to say, as groundbreaking as your work as a litigator was, i think the notorious rbg will live on a lot longer. [laughter] [applause] charlie: what do you think of that? justice ginsburg: i think it is absolutely amazing.
that an 83-year-old woman should be notorious. [laughter] justice ginsburg: i have said, i understand where it comes from. you know the famous rapper, notorious b.i.g. we were both born and bred in brooklyn. [applause] justice ginsburg: but more than that, i think that the nyu students who dreamed up this notorious rbg, it started with my dissenting decision that took the heart out of the voting rights act of 1965. she was angry. then she thought that is not a productive emotion. i want to do something positive.
so, she took my dissent in the shelby county case and that was the beginning of the notorious rbg. [laughter] charlie: you are a role model to many. how do you see that? and you have spoken before about the supreme court may be very beneficial to have, to see how a latina woman sees this world. justice sotomayor: earlier we were in conversation with your editor. your book editor. we were talking about when i embarked on writing my book i asked my editor, what makes a great memoir? and my editor and yours as well have said the identical thing. honesty.
and, that readers can read and feel when truth is being spoken, or when it is a put on that is not to be believed or accepted. to the extent that i continue to try to live my life as a normal person, and with an honesty that i define as valuable, trying to be both human and a justice, not that you are not, then i think i give people hope about being able to achieve the things they want to achieve, even though they might perceive in themselves limitations that society has otherwise imposed on them.
so -- charlie: you too can dream your dreams. justice sotomayor: yes. you don't have to let the limitations others might impose on you, or the ones he might feel yourself, disable you from both trying and potentially achieving. that is what i perceive my role to be. to continue being as much sonya as i can be. so those who have lived lives somewhat to the one i have can also hope. charlie: and feel they are part of the fabric of american life. justice sotomayor: i am. they can be, too. [applause] justice ginsburg: there was a line i used in the introduction to the book about five jewish
justices. the question was what is the difference between a bookkeeper in the garment district and a supreme court justice? my answer was "one generation." the difference between the opportunities open to my mother and those open to me. charlie: one generation. justice ginsburg: it was important generation. charlie: i once asked you, you are often called the thurgood marshall of the women's movement. you have said to me, that is a comparison you reject -- because? justice ginsburg: when thurgood marshall went into a town in the south -- in the morning he didn't know whether he would be alive at the end of the day.
i recommend to everybody a book called "devil in the grove." you will get that sense of what those lawyers were up against. they in fact did not know whether they would live to see another day. that was something i never encountered. my life was never in danger. that was an enormous difference. as far as technique, i copied thurgood marshall's technique. [laughter] justice ginsburg: he was a brilliant lawyer. he led the court to get to brown v. board. step-by-step. he argued cases. court, these facilities are vastly unequal. they knew they had to have some
legal training for african-americans. so they set up this vastly inferior law school. when he had his building blocks in place and made the big pitch, and so the aclu women's rights project, which i co-founded, that is what we tried to do to get there. not in one giant step, so that by the time the big step came it would be inevitable. because they had all the building blocks that led up to it. justice sotomayor: do you think you have reached that stage? justice ginsburg: no. but considering where we were, considering that in 1961, the liberal warren court told wendell and hoyt, the woman we would call battered, who had
been humiliated to the breaking point by her philandering abusive husband, she couldn't bear it anymore. she spied her son's baseball bat, picked it up with all her might, and she beat her husband over the head. that was the end of the humiliation. and the getting of the murder prosecution. -- and the beginning of the murder prosecution. and florida didn't put women on juries in those days. not all that long ago, 1961. the supreme court said we don't understand what this complaint is about. any woman who wants to serve can go to the clerk's office and sign up. if she doesn't sign up she is not going to be called. the thinking was, if there were women on my jury, perhaps they wouldn't acquit me, but there's a good chance they would have convicted me of the lesser offense of manslaughter and not murder.
well, she was convicted of murder by an all-male jury. the warren court thought that was ok. as late as 1961. the change did not come until the burger court, the court that had a reputation for being conservative. and yet, that court brought down one federal law after another, one state law after another on the ground that they discriminated arbitrarily on the basis of gender. charlie: what does that say about the way the court works? and time? justice ginsburg: there was a great constitutional law professor who said the court should never be influenced by the weather of the day.
but inevitably it will be influenced by the climate of the era. that is what the court of the 1970's was influenced by. charlie: is that what the court of the 21st century has been with respect to marriage equality and same sex marriage? influenced by what was happening in the larger community? the climate. justice sotomayor: i'm wondering whether i should answer at all. [laughter] justice ginsburg: i will say -- [laughter] justice sotomayor: she gets more cover than i do. charlie: that is an interesting expression in itself. meaning? she is given more what? latitude? justice sotomayor: i think so
and rightfully so. she has earned it. no, no, no. she has fully earned it. justice ginsburg: it is only because i am old enough to be her mother. [laughter] justice ginsburg: but i will say something about what happened. when i was growing up, people who were not heterosexual were in the closet. they did not reveal who they were. i remember the first time in this very space, there was a program in the new york city bar about the problems gay and lesbian people encountered. things like renting a house, or finding a dentist. i was on the post-admission legal education committee. one member of the committee or
another would sponsor every program. no one volunteered to sponsor a program gay activists alliance asked to have at the city bar just to explain the problems they encountered. so i volunteered, i was the only woman on the committee. one of them giggled. i said, what is so funny. they said, ruth, do you think they will feel comfortable dealing with a woman? i said, what makes you think the gay activist alliance is composed only of men? [laughter] justice ginsburg: the truth was they sent their vice president who happened to be a woman, as one of the people to speak. what happened i think is people came out of the closet. people stood up and said this is who i am and i am proud of it.
and we looked around. who were they? our next-door neighbors. our child's best friend. maybe even our child. when that happened there was no longer the same we-they difference. they were part of "we." these were people we loved, that we worked with. that was part of something that gave impetus to the gay rights movement that was much harder with racial discrimination. people tended to live in neighborhoods that were either all white or all african-american. there was that sense that once people stood up and said this is who i am, that made an enormous difference. justice sotomayor: if you count
the decades from plessy versus ferguson and accepting segregation as compatible with the 14th amendment, to brown versus board of education, it was over 50 years. it took that long to lift societal expectations about what true equality had to mean. i think ruth is pointing to the fact that we have a society that begins to think about notions differently with experience. that experience, those experiences teach society, and yes at times justices. charlie: is there a bond amongst the three justices that are women? justice ginsburg: there's a special pride that i have in my newest colleagues.
because, don't you know the old nursery rhyme, what are little girls made of, sugar, spice, and everything nice? that is what little girls are made of. little boys, nails and snails and puppy dog tails. well, all of you who have visited the supreme court know that my newest colleagues are not shrinking violets. they take a very active part in the colloquy that goes on in the oral arguments. justice sotomayor: if i may take relaying a story, that day our newest colleague was sworn in, the president as is customary was there and came in to greet all of the justices. and, he got to justice ginsburg
and said something like, justice ginsburg, are you happy with the two sisters i have brought you? [laughter] justice sotomayor: and ruth paused and looked at him and said i'm very happy. but i will be happier when there is five. [laughter] [applause] justice ginsburg: the answer to that question, when will there be enough? when there are nine, of course. ♪
♪ charlie: there are only eight now. justice ginsburg: it is not a good number for a collegial court. charlie: and you hope that this after the election, that there will be a consideration by the senate before the new president takes office? and to act on the issue? justice sotomayor: we hope there will be nine as quickly as possible. we function as nine. justice ginsburg: i thought we did remarkably well last term when there were only three cases
that could not be decided because there was an even division. but they were important cases. it means uncertainty will continue on those issues until there are nine. charlie: you have said to me, you missed justice scalia. justice ginsburg: yes. charlie: justice breyer was on with me in new york last week and he said i miss the spirit of justice scalia and the debates with justice scalia. i am sure you feel the same way. justice sotomayor: he made us laugh. charlie: that is what it was. justice sotomayor: and he made us think. he challenged us to think. those are ingredients for interesting conversation, and for lively discussion. charlie: you once said to me you both loved opera.
but you said he could sing better than you. justice ginsburg: i can't sing at all. [laughter] charlie: but they are writing lines for you in the opera that you will perform in when? justice ginsburg: november 12. it is a speaking part. [laughter] justice ginsburg: there is an opera. scalia ginsburg. it is a comic opera of course. but the composer, he tried to say in a nutshell what is the difference between the two of us? it opens with scalia's rage aria. the musicians, you know a rage aria is typical of of handel. the justices are blind. how can they possibly spout this?
the constitution says absolutely nothing about this. he is searching for bright solutions to problems that don't have easy answers. but, the great thing about our constitution is that like our society, it can evolve. so that sets up -- and then we have a wonderful duet at the end. [laughter] justice ginsburg: it says, we are different, we are one. different in the way we approach the interpretation of legal text, but one in our reverence for the constitution and the court. charlie: one thing justice scalia said, it probably wasn't the best idea that how many supreme court justices came from harvard or yale.
that wasn't necessarily a good idea for the supreme court. do you agree with that? and most of them had judicial experience at court of appeals level. justice sotomayor: i thought he did not think that. charlie: didn't he say something like that? ok, regardless of whether he said it or not. [laughter] justice sotomayor: i will give you that. since i am from yale and ruth spent part of her time at harvard -- justice ginsburg: columbia has had a lot of great justices. charlie: you got your degree from columbia and when you switched to columbia from harvard for your third year, harvard would not give you a degree. you got a degree from columbia. justice ginsburg: they said i had to stay for the third year. charlie: your husband was moving to new york. justice ginsburg: yes.
i did not want to be a single mom. there were two things. marty had been diagnosed with a severe cancer. we did not know how long he was going to live, and we did not apart that year. i didn't want to be a single mom to my three-year-old daughter. so i asked the dean if i successfully complete my education at columbia, well i get a harvard degree? absolutely not. you have to spend a third year here. i had the perfect rebuttal. a classmate of mine had taken her first year of law school elsewhere. she transferred into our second-year class. i said to the dean, she will have year two and three and you're going to give her a degree? the first year is the most
important. you say that. i have year one and two. charlie: to come back to the point, what is lovely about this story, they then wanted to give you a degree to the law school. justice ginsburg: that is when my now colleague, when she became dean. elena kagan. when she became dean, every year she said ruth, we would like you to have a harvard law school degree. my husband said hold out for an honorary degree. charlie: and they gave it to you. justice ginsburg: sadly one year after he died. charlie: there is a picture in your chambers of you receiving that in your crimson. one of your heroes singing to you. justice ginsburg: being serenaded by placido domingo. can you imagine? charlie: she has labeled the photograph, "woman in ecstasy."
justice sotomayor: i said just recently, there is no way the supreme court could ever be reflective of the society in terms of experiences. in part because we are appointed for life. that means that a change -- fundamental changes in the court take a very long time to occur. so we are never going to be completely on an even keel with the sword of experiences of the society. we are going to be off a little bit. but i do worry, a little bit. not a little bit, a lot actually. not about diversity in its general sense, in ethnicity and gender. but i do worry in terms of the lack of professional and life experience diversity that our court has. i say that despite being a
little bit different than my colleagues in some of my experiences and certainly my life. justice thomason i came from backgrounds, somewhat dissimilar from our colleagues. but none of us have the breadth of important experiences to the law. we have no criminal defense lawyers on our courts. we have one civil rights lawyer. ruth right now. there are so many other incredibly important civil rights issues out there, we have a few practitioners with small and medium-sized practice experience. and we have very few people from geographical differences in the united states. and as you noted, very little in
terms of religious differences, and even less in terms of educational experiences. that is a lot of areas where we don't reflect the general society. do i think it does harm to our judging? not necessarily. but it certainly i think does harm to the court's reflection of attempting to be broader in its outreach to people. charlie: it is great to have two new yorkers back home. [applause] ♪
♪ angie: coming up on "bloomberg best," the stories that shaped the year in business across asia. china's economy showed signs of stability even as growth sometimes seemed to sputter. >> i think we have a hard landing in the stock market already. >> the old economy drivers are back in action. it is the new drivers that are stalling. angie: japan's leaders went back to the stimulus well again and again with mixed results. >> we have to continue our accommodative monetary policy. >> i think japan has become this sort of test tube for the rest of the world. angie: it was an eventful year for many asian companies, from smashing successes to corporate crises. >> this is a huge deal.