tv The David Rubenstein Show Peer to Peer Conversations Bloomberg December 8, 2018 9:00am-9:31am EST
♪ david: you were happy with your successor? justice kennedy: over a very short time, you will see the system is working and the justices are working very well with their colleagues. david: do the justices lobby each other? justice kennedy: that's a felony. you can't do that. [laughter] david: one of your famous 5-4 decisions is citizens united. kennedy: it is true that there is power of money in politics. the rest of the world is looking at us to see what democracy means, what freedom means. >> would you fix your tie, please? david: well, people wouldn't recognize me if my tie was fixed, but ok. just leave it this way. alright. ♪
david: i don't consider myself a journalist. and nobody else would consider myself a journalist. i began to take on the life of being an interviewer even though i have a day job of running a private equity firm. how do you define leadership? what is it that makes somebody tick? justice kennedy, you've been in the news a little bit lately. you retired from the court after 30 some years on the court. justice kennedy: yes. david: any second thoughts about retiring? [laughter] justice kennedy: none at all. [laughter] justice kennedy: i spent 43 years reading briefs and never yet found one i couldn't put down in the middle. [laughter] justice kennedy: were it still my term on the court as an active judge, by this time in
september, i would have spent already 200 hours reading briefs, and mary and i wanted to enjoy life in a different way, so it's important. [laughter] david: why do you think lawyers like to call these things briefs, because they are not brief, really. why don't they call them something else? do you get great writing in those briefs? justice kennedy: occasionally. [laughter] justice kennedy: the english house of lords, the briefs are very skimpy, but that's because their hearings go for two or three days. and the judges are learning from the lawyers during the argument and they'll actually get books off the wall and so forth. ours, with the briefs, it is more efficient.
maybe not as much, but the english have a great tradition. it is one of plurality. the english language is one of the great treasures of the world. one time i was sitting in the house of lords. i was sitting in a chair, visitors weren't. [laughter] justice kennedy: one of the barristers, the queen's counsel in the case said, "now the lord's wish to turn to the statute." and lawyers know what's coming up. the maximum statutory construction and they cancel each other out, either one. [laughter] justice kennedy: he says, 'i shall be forced to leave the room.' [laughter] justice kennedy: and the counsel said, " oh, my lord, i would not wish to precipitate such a calamitous event." and we don't have time for that
stuff. [laughter] that's why we have the briefing. david: so, justice kennedy, justice stevens stayed on the court until he was 90, some of the other justices obviously stayed longer than that. you're obviously in good mental and physical shape, so you could have stayed longer. why did you decide to retire now? justice kennedy: because it's hard to leave something you love, but you can do it if you do it for something you love more. [applause] david: so, some justices retire upon the confirmation of their successor. you actually did something different. you retired on the date you handed in your letter, resignation to, i think, to president trump. why did you do it that way? justice kennedy: it seems the way you described it, the second way, my choice, was the traditional way. i haven't researched it. but to retire contingent upon the employment of your
successor, it seems to me not a good idea, because the confirming authority knows that there's no urgency. some people might prefer the sitting judge to the judge that's nominated. i just think that they should be concentrated on the qualifications and the temperament of the judge who has been nominated, and not have this other background consideration. david: the hardest thing to do in washington, it seems, is keep a secret. you managed to keep a secret. how do you keep a secret when you are getting ready to retire? justice kennedy: part of it was a secret even from mary and the family. we were trying to balance these various things. i think it was a wednesday, which was our last conference
day, and i made up my mind tuesday night that this was what we should do, and told mary. so it wasn't much of a secret to leak out. then i told my colleagues on the court at the end of our final conference. i said, this is going to be my decision. the definition of a secret is that it is not valuable, it is only valuable if you can tell one person so i said, you can't tell anybody about this until my appointment at the white house is over, in about an hour and a half. i brought the letter to the president. david: so when you call the the president of the united states at the white house and say i want to come see the president of the united states, they say, what do you have in mind? to get a sense of what you are thinking about, was it hard to get an appointment with the president? justice kennedy: i talked to the white house counsel and told them that it was important for me to see him. they might have guessed. but they didn't tell the
president who it was that was coming, i'm not sure. [laughter] justice kennedy: but anyway, we had a conversation. i gave him the letter, he was very gracious, and thanked me. david: you were the last justice to be confirmed unanimously. so, your successor was not confirmed unanimously. obviously, it was more political, you would say. do you think the confirmation process has become unduly political since the time you were confirmed? justice kennedy: we were careful not to comment on the confirmation process. david: i'm trying to sneak in something that you don't normally say, so what can you say? [laughter] justice kennedy: in fact, we have a rule, david, the minute someone whom we know, in my case, neil gorsuch, very well, was my former clerk, and the same way with brett kavanaugh, -- the minute the nomination is made, we have what they call a chinese wall. no communication, nor do we call
clerks that are helping them or their wives and say be sure to answer this question, whatever. zero communication. because we simply cannot have either the reality, or the perception that the court is in any way involved in the nomination and confirmation of our own members. this is critical. so we kept absolute distance. i remember when the chief justice, now chief justice, john roberts, john roberts was nominated to the court of appeals for the district of columbia in the waning days of the bush administration. and the nomination failed. it was in the last few months when the gate usually closes. i saw him a few weeks later, and i said, john -- i called him john in those days -- i said, you will be a judge if you want. maybe you don't want to hear this, but it will be good for you to be in private practice. he was like, oh, you're right.
i don't want to hear it. i said, ok. [laughter] justice kennedy: but, when he was nominated and confirmed, the first call he made was to me. he said, you know, you're right. i said you'll find i'm always right. [laughter] david: just to finish, you were very happy with your successor. you think you will be a good justice, is that correct? justice kennedy: the public will see that the system works. we are the only branch of government that gives reasons for what we do. [laughter] justice kennedy: and this is to compel allegiance to our decision. we can talk more about this if you want. it seems to me the public will very soon see that the court is operating in a collegial, deliberative, thoughtful, inspiring way.
our conferences are being conducted with the greatest degree of collegiality. you'll see that in the opinions that are written. over time and over a very short time, you will see that the system is working, and that these justices are working well with their colleagues. david: you must take some pride in the fact that in the long history of the united states supreme court, only one justice, you, has two former clerks who have been appointed to the supreme court. justice kennedy: all we need is seven more and we can rule the world. [laughter] david: so when they were your clerks, did you ever look at them and say, you can be on the court someday? justice kennedy: i don't think so. i was always very proud -- i have a number of former clerks serving on the federal courts. david: justice gorsuch, who was the first of one your former clerks to become a justice, you
were the only justice in supreme court's history that was on the court at the same time one of your former clerks was on the court. justice kennedy: right. david: when you're in a meeting and talking about a court decision and he has a different view, do you say, look, i appointed you to my clerkship? [laughter] you know, can't you at least have the courtesy to -- justice kennedy: no, i told him the opposite. you didn't do what i told you to do when you were my clerk. start doing it now. [laughter] david: eventually ronald reagan gets elected governor. justice kennedy: oh i'm glad you told me about that. i'm against that. [laughter] justice kennedy: the world's most undiscussed successful lobbying commission. [laughter] justice kennedy: it began to unfold before my eyes. ♪
moment to your earlier days and how you got into the legal world. you grew up in sacramento. justice kennedy: yes. as did my beautiful wife, mary. we knew each other since childhood. david: and you've been married how many years? justice kennedy: 55. still trying to get it right. david: you're not sure. 55. how many children? justice kennedy: three. david: how many grandchildren? justice kennedy: nine. david: ok, you are obviously a very successful family. your father was a reasonably prominent lawyer in sacramento. did he say go to law school or did he not say that? justice kennedy: no, he was a solo practitioner. we were very close. i didn't enjoy school much. i had learned to read at a lot -- at an early age, and a lot in the library and didn't spend much time at school. i would go to his office and keep him company, and he would have me stapling papers, proofreading things, and i probably saw 10 trials before i was out of high school. i'd go with him.
sacramento was a center for people from agricultural, less-populated counties nearby that come for legal advice. we would go to the counties around sacramento or to the court houses. david: you went to stanford. justice kennedy: yes. david: you must've done reasonably well because you got into harvard law school. you didn't stay in the east. you went back to pick up your father's practice or take over his practice? justice kennedy: well, it took over me. he died. in those days, david, the law profession was an old-boy network, literally and figuratively, in a small town. my father knew every lawyer in town, just about. if not by name, certainly by reputation, and the judges knew each other. and when we went back after my father died to see if i could get the practice going, two of
the most senior attorneys in town, each with a major law firm in that town -- those days, a major law firm, 15 people -- took me to lunch and said, both of us want you to come with our firm, and if you're interested, we'll each have a separate lunch with you and tell you why. we have talked and we think you should stay right where you are. it's best for the legal profession, and best for your family that you keep this practice going. you have two trials coming up. for each one of them, one of us will send one of our trial attorneys to sit with you, no charge, to make sure everything works. that was the old boy network. the old boy network had to change. in my class in law school, we had close to 500, maybe 450, and i think six women. and in the sacramento bar, very few minorities and women. that had to change.
but the old boy network is where i started. david: what type of area did you practice in? justice kennedy: whatever your problem was, i was an expert. david: ok. [laughter] david: you're practicing law and then eventually, somebody named ronald reagan gets elected governor. how did you get to meet ronald reagan? justice kennedy: it's not clear. he came to sacramento. he and some of his advisers asked us about places to live and rent. i did some legal work for them on small little matters. i got to know him. nancy always liked mary very much. i said to the governor, there are two things you can't ask me about. he said, oh, what's that? [laughter] justice kennedy: you can't ask me whoever should be appointed a judge, because i practice in the state courts. he said, what else? i said, don't ask me about
politics. i don't know anything about it. so he and nancy knew that if i saw something wrong -- i was in the office one time and someone came running in and said, governor, your friends from hollywood are here today. we thought they were coming tomorrow. he said, oh, what do they want? he said, they'll tell you. it's nothing. so in walks john wayne, henry fonda, and charlton heston, and they did their thing about how good everybody looked. [laughter] justice kennedy: i told the governor, i said, i'm leaving. he said, no, stay. he says, oh, what brings you to sacramento? they said we're here about the arts commission. he had just been elected and he said, what is the arts commission? they said, well, that is a state commission that gives grants to
poets, playwrights, and sculptors, and painters. the legislature has cut the budget. i forget the numbers. it was from $18 million to $14 million. reagan says, oh, i'm glad you told me about that. i'm against that. [laughter] justice kennedy: he said, i will veto it. they said, no. we have the 14. we want the 18. he said, no, i'm going to veto the 14. the government shouldn't get involved in saying what's good art, what's bad art. that's not much money. you can get it. the world's most unsuccessful lobbying commission began to unfold before my eyes. [laughter] and he vetoed the whole thing. [laughter] david: who was more impressive? henry fonda, charlton heston or john wayne? justice kennedy: i think they were all equally dismayed.
[laughter] david: what is it like when you are the most junior member of the court? i understand that you have to sit in the sessions discussing cases, and if anybody knocks at the door, you have to answer the door. justice kennedy: it doesn't happen very often, and when it does, you are glad to stretch and not have to listen to your colleagues. [laughter] ♪
♪ david: you must have gotten to know president ford at some point, because he appointed you to the ninth circuit court of appeals. justice kennedy: it wasn't clear to me that i really wanted to be a judge, although my practice has taken me, not only around the country, but around the world, and i didn't have a chance to be with the family. i really wanted to be a district judge. that's the greatest job in the
world. there's nothing you can do to a district judge. it's their own empire. i love it. [laughter] justice kennedy: and i like the trials. but watergate came along and there weren't taking any positions for federal district judges, then the circuit vacancy came along. then-governor reagan told me he wanted me to take that, and he called president ford, so i went on and took it in 1975. david: you were the youngest federal court of appeals judge in the united states at the time. justice kennedy: right. david: but you had to give up some income, because you were practicing law, presumably, you are making more than a federal judge makes. so did you say to your family, we will have to shrink our living style? what did you do? justice kennedy: mary was teaching at the time. we were living in sacramento, so the expense of living was not that much at the time.
sacramento is not as expensive as los angeles or san francisco. the kids have been very good. they never complained about the fact that there's not a lot there, but we thought the service to the government had its own intrinsic value, and they recognized the value of that. david: 1975, you're confirmed unanimously for the court of appeals position as well. in 1987, i believe it was, president reagan nominated robert bork to the court. he did not get confirmed. justice kennedy: it was a three-month -- there were long hearings. david: long hearings. justice kennedy: and very acrimonious. david: he was not confirmed. president reagan then appointed harvard law professor doug ginsburg. justice kennedy: he did not appoint him. david: he didn't actually appoint him. he thought about appointing him. but he did not actually appoint him. so, then, when professor ginsburg didn't get the appointment, you get a call from the white house. did you say, how come you didn't
call me earlier? [laughter] david: what did they say when they called you? justice kennedy: they asked me to come back to washington, which i did. i told the president that mary and i talked about this and i did not want to come to washington. mary had a couple of years left her -- left for her teaching retirement, and this was our hometown, and we thought the kids would be californians. the youngest was a sophomore at stanford. we knew they wouldn't come back to washington. i told them i'd rather them look for someone else. and i said i don't know anyone in washington. he said oh, you know me. [laughter] justice kennedy: i said what am i supposed to do, come for lunch every day? [laughter] but then again, he liked mary, and he said mary will like washington. i guess you cannot turn the president down. but as it turned out, all the children moved not because of , us, but for their jobs and
marriages, to the east coast, so it worked out. david: you get on the supreme court, again confirmed unanimously. so what's it like when you're the junior member of the court? i understand you have two responsibilities as a junior member. one is that you have to sit in the sessions where they are discussing cases, and if anybody knocks on the door you have to answer the door. secondly, you're in charge of food, the cafeteria committee. is that a big responsibility? justice kennedy: i was able to handle it. [laughter] by the answering the door, it doesn't happen very often, and when it does happen, you are glad to stretch and not to have to listen to your colleagues. [laughter] justice kennedy: each of us has a circuit where we're the circuit justice. when i was first on the court, my appointment was to be the circuit justice for the 11th circuit, florida, georgia, alabama. and we try to meet with our lawyers and judges once a year. we were in alabama, and it was a
saturday and the judges were very polite to come and meet me here for an hour, and the attorneys, but they were dressed up to play golf or tennis did hear me at 9:00 a.m. one of the lawyers said, how do you read all of those briefs? i said, well, i assign them to my clerks. each of them read a fourth of them. i have to read them all. they're very difficult. i read them again over the weekend. i play opera in the background. i have one opera and two opera briefs. [laughter] the minute i said that, they were too polite to roll their eyes, and i thought ahead lost -- i had lost audience. this guy from the east talking about opera, saturday morning. i said, i have lost the audience. the attorney said i have a one-six-pack brief and a two-six-packs brief. [laughter] i said, i remember your last one, i think it was a three sixpacks brief. [laughter] david: do the justices lobby
you're asking the court for a writ of certiorari. we have probably close to 9000, maybe recently about 8200, petitions a year, and they come in all year long. the clerks are in charge of organizing them and doing memos on them so we can review them very quickly. it is like doing push-ups. you do so many every morning. they come in all year long. and any one of us can make a little check mark on the petition, and if anyone of us does that, it means all nine of us must discuss it. it takes four votes to grant the case. sometimes there are three votes, but one of the justices wants to hear the case and thinks it is very important, and asks it to