Skip to main content

tv   Supreme Court  CSPAN  January 1, 2010 12:00am-2:00am EST

12:00 am
it is a legitimate concern, but you cannot worry about it. thank you, guys. [applause] >> we will take a half-hour break and come back at 3:30 p.m. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2009] . .
12:01 am
>> we spoke with the nine supreme court justices about the role and the history of the supreme court. coming up next, our interviews with the associate justices antonin scalia and ruth bader ginsburg. after that, and look at foreign policy challenges since the cold war. >> c-span, new year's day, a look at what is ahead for the new year. russian prime minister vladimir putin discusses the future on his call-in program. the creator of that segue and the co-founder of guitar hero on innovators and entrepreneurship. >> now, our interviews with associate justices antonin scalia and ruth bader ginsburg. we start with justice scalia, who served on the supreme court
12:02 am
since 1986 after being nominated by president reagan. in this 30 minute interview, he talks about how the court reaches decisions on cases and about the attorneys to come before the court. we spoke with him in the east conference room in the supreme court building. >> to try to come out the right way it -- right way on cases that the court has agreed to hear, and secondly, and this is the only respect in which the job differs from the job of the court of appeals judge, to decide on what cases the court should agree to hear. it is essentially two functions.
12:03 am
first of all we decide what to put on our docket, and secondly, to try to get it right. >> what role do you see the supreme court playing in society today? has it changed over your tenure? >> i think the same role as it has always played. i don't think it does change. it is proper role is in the democracy, to give a fair and honest interpretation of the meeting of dispositions that the people have adopted. either congress in statutes or the people when they ratify the constitution. it is 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. we are supposed to be interpreting the laws of the people.
12:04 am
>> what do you like best about the job? >> i like figuring out the right answer to legal questions, believe it or not. not everybody does. some people who lust to become an appellate judge fined the job will law quite and satisfying when you get there. you have to have a rather warped mind to want to spend your life figuring 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 this embodied an 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
12:05 am
than i was before. >> after two decades of doing it, is there any aspect of the job that if you had the choice, you would prefer to pass on to someone else to do or avoid? >> undoubtedly, to my mind, the most onerous and often interesting part of the job -- and an interesting part of the job is really on all of the ce rt petitions that come into the court. i think it was about 5000 a year, and now it is approaching 10,000. everyone of them we have to consider. if not by reading the actual petitions, rarely do that, by reading summaries of the
12:06 am
petitions that the law clerks have prepared. 10,000 of those a year. that is not a lot of fun. >> with the increasing number of petitions, why only 80-100 cases a year? >> less than that. we have been averaging about 75 recently. i don't think we can do 150 well. i think we can do 100. your guess is as good as mine. i certainly have not changed my standard for deciding what cases we should take. i don't think my colleagues have. if i had to guess, i would say that what has happened is, in my early years on the court,
12:07 am
there was a lot of major new legislation that had recently been enacted, new bankruptcy code, erisa. there has not been that much major new legislation in recent years. new legislation is the principal generator of successful cert petitions, because it takes 10 years or so to get all the ambiguities in the statute resolved. that is our main job, of course. we don't take cases because we think there were decided wrong. very rarely would we take a case for that reason. we usually take cases because the analysis of the courts below reflect a disagreement on the meaning of federal law. you can have two different federal laws in different parts of the country, so we will take
12:08 am
one or both of those cases. those disagreements have been on significant questions and have been more rare in recent years. it is not as though we sit down and ask how many cases you want to take. they trickle in week by week and we vote on those that 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. >> when you make these decisions, are you aware which ones will be the blockbuster cases? >> i think you can usually tell which ones pertain to a major piece of legislation that is a major impact on the society. >> does it affect the decision process? >> i do not think it does. i put in as much blood, sweat,
12:09 am
and tears on a little cases as i do on the big ones. if someone asked me what is the hardest case i ever decided on the bench, you would not want to know, because it is a relatively insignificant case, but it was very hard to figure out. there is no relationship whatever between how important it is and how hard it is. >> so can you tell me now that you have described it? >> you do not want to know. [laughter] >> we have heard so much about clerks. i would like to ask about their role in what you do. you have had many of them over the years. do you stay friends with them after they work for you? >> i do indeed. we have an annual quirks reunion every year. is good to see them. -- an annual clerks reunion. he worked very closely with four young people every year.
12:10 am
they are full of vim and vigor. they are not jaded. it is all new to them. their enthusiasm rubs off on you and you work closely with them during the year and become very close with them. and then they go off. it is like acquiring four new nieces and nephews every year, none of whom will be a failure. they all go on to do very significant things. it is fun to follow their later careers. >> how do use them in your job? >> what i do is not necessarily what others do. i let them pick the cases they want to work on, sort of like an nfl draft. i figure they are likely to be the best work on the cases they are most interested in.
12:11 am
i usually discuss very briefly with the law clerk who has chosen the case before oral arguments, and after oral argument, i sit down with that clerk and with the other three, who know something about the case, and we keep it around for as long as it takes. it could be an hour or two hours. then if i happened to be assigned the opinion or the dissent, that clark will normally do a first draft of it all. i'll tell them what is supposed to be in it. they will write it out and i will put it up on my screen and take it apart and put it back together. 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.
12:12 am
i could not do as well without the assistance of really brilliant young people. >> in a week when the court is in session, how many hours do you spend in this building? >> i have no idea. >> is that 40 hours a week, 60 hours? >> one of the nice things about the job, you do not have to be here to be working. i think some judges on the course of appeals do only come into court when there is oral argument. i could do this job from home. it would deprive me of consultation with my law clerks and would deprive them of my company, too. so i do like to come in, but that has no relationship to how many hours i am putting in. i have never counted the hours, but i almost always work weekends. not every weekend, but some of
12:13 am
the weekends. the summertime is a break. we clean our plates before we leave at the end of june. it is really a summer without guilt. the only work we have to do over the summer is stay on top of cert petitions, because there is a monster conference at the end of the summer to broke on all of the cert petitions that have accumulated over the summer. that is a manageable job. for the rest of it, we have continued to function the way all three branches of the federal government used a function. this town used to be deserted in july and august. there was nobody here. now we are generally not around in july and august and come back in september to get ready for the arguments in october.
12:14 am
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 regenerate your batteries. >> you mentioned that the court has retained some of the traditions that the other branches used to have in the summer. the court is well known for many other traditions. including will pens, the solicitors in formal dress. i wonder why the traditions matter to the process and why they are retained in 2009. >> i think traditions in away defined an institution, and is respected when it is venerable with tradition. one of the remarkable things
12:15 am
about the court is that it has been here doing its job for 220 years. i think traditions remind people of that fact. 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. >> your earliest chief justices really did not wear robes. it began around 1800. >> john jay, over your right shoulder, was the first chief justice, and that was before 1800. in that portrait, he is wearing a glorious robe, not just black, but black and red.
12:16 am
what you just tell me is news to me. >> let's say it is now 2009, and tank tops aside, what is the significance of the rope, and why is it important to continue to wear them? >> i am sure we could do our work without the robes. we could do our work without this korea's building that we are deciding -- we could do our work without this glorious building. what in parses people who come here -- what it imparts to the people is the significance of what goes on here. that is nothing new. public buildings do not look like bus stations, and they shouldn't. >> when you come to work here,
12:17 am
are you conscious of it being a symbol of the american judicial process? >> i cannot say it is in the middle of my mind. i am usually thinking about whatever case i am going to be working on that day. you get used to it. you get to take stuff for granted that maybe you should not take for granted. i take for granted working in this glorious building and i take for granted wearing a robe when i go out on the bench. >> are there special places in this building you might go to reflect on the history of the court? >> not really. i hang out in my chambers most of the time. the center of the building, the reason the building is here is the audience chamber where we hear oral arguments. as the august nature of that
12:18 am
chamber suggests, it has a ceiling so high you can hardly see it from the ground. that is the center of the court, of course. >> let's talk about what goes on in that room. can you talk about how you use oral arguments and why when there is so much paper beforehand, that oral argument is even needed? >> a lot of people have the impression is just a dog and pony show. i read a brief by the petitioner, a 60 page brief by the respondent, a 40 page reply brief, sometimes dozens of other amicus briefs. i have underlined significant passages and have written at best nonsense in the margin. what can someone tell me in half an hour that is going to make a
12:19 am
difference? the answer is that it is probably quite rare, although not unheard of, that oral argument would change my mind, but it is quite common that i go in with my mind not made up. a lot of these cases are very close, and you go in on a knife's edge. persuasive council can make a difference. there are things you can do with oral argument that cannot be done in a brief period you can convey the various importance of your points. say you have one complicated point. it takes -- if i had brought -- read your breve a week ago and have a misperception, you can set that right in oral argument. very often that third point may
12:20 am
be the first point address in your brief, because that is the logical order. jurisdiction has to go first. that is not your strongest point, even though you discuss it first in your brief. what the case comes down to, and then you make your big point. that can make a difference. the brief cannot answer back when i make nonsense in the margin. i am a big proponent of oral argument. i think is very important. he would be surprised how much probing can be done within half an hour, an awful lot. >> what is the quality of
12:21 am
counsel who come before you generally? >> chief justice burger used to complain about the low quality of counsel. i used to have just the opposite reaction. i used to be disappointed that so many of the best minds in the country were being devoted to this enterprise. there would be a public defender from podunk's, and this woman is really brilliant. why isn't she a out inventing the automobile or doing something productive for society? lawyers, after all, do not produce anything. they enable other people to produce and go on with their lives efficiently in an atmosphere of freedom.
12:22 am
that is important, but it doesn't put food on the table. there have to be other people who 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 here once and will never come again, i am easily impressed with how good they are. sometimes you get one who is not so good. by and large, i do not have any complaints about the quality of counsel, except maybe we are wasting some of our best minds. how can i put it another way? law firms spend enormous amounts of money to get the very, very brightest. it is worth it because the law is so complicated and so complex.
12:23 am
our legal system probably should not put such a premium on brains. but it does, and our lawyers are really good. i think lawyers generally are pretty smart people. >> can you talk about conference and how it works? >> i cannot talk too much about it, but i can tell you we sit down together and there is nobody else in the room. i am not giving away anything, because she justice rehnquist wrote a book about the court in which the knowledge that congress is probably a misnomer. it is really not an occasion on which we tried to persuade one another. very few minds are changed at conference. each justice states his or her view of the case and how he or she boats.
12:24 am
-- how he/she votes. if in the middle of a presentation you disagree with something they say, the chief justice would say you can have your turn at speaking. at the end, you can speak as 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. you take notes so that if you get assigned the opinion, you know how to write it in a way that will get at least four other votes besides your own. that is its principal function. >> with regard to being assigned the riding of opinions, the chief told us that he works very hard to be fair about the
12:25 am
distribution of the assignments. you said earlier with your clark's that you try to give them the cases they are interested in. are you able to lobby if you are particularly interested in a certain case? >> i have not done that. i could if i wanted to. on very few occasions have i said i would like that case probabl. probably three times i may have done that. i take what i am given. both of the chiefs i have served under try to be fair in giving you both good ones and dogs. sometimes what they think is a good opinion is not what you think is a good opinion. she justice rehnquist used to love for the men in cases involving searches and seizures. i just hate those. it is almost a jury question whether this variation is an
12:26 am
unreasonable search and seizure. i will write the opinion, but i do not consider it a plum. >> you are a writer. you have written three books now, is that correct? >> no, two. >you do not want to be an appellate judge if you are no good at writing. >> do you enjoy the riding of opinions in the exchange of precise words? >> i do not enjoy writing, i enjoy having written. i find writing a very difficult process. i sweat over it. i write and write and write again.
12:27 am
i will read it one last time, and i and my grasp and sit down to the printer -. i think writing is a job that is worth the time you spent on it. >> has your time here made the process easier? >> we had word processors when i arrive, so i cannot say it has made it easier. i had them when i was a law professor. it makes the job of writing when you are editing someone else's first draft enormously more simple than it otherwise would be. you just highlight the part you
12:28 am
want taken out, bank, is gone, and put in the new part. it makes it a lot easier. >> when you strongly disagree with someone's point of view, have you keep the opinion from being personal? >> you just criticize the argument and not the person, that's all. an ad hominem argument is one that is addressed at the person rather than the argument. i feel quite justified in whacking the argument as hard as it deserves. that is not impugning the individual who made the argument. i always want to write a majority. why do you want to write a dissent? they are more fun to write, i have to say that. when you have the descent, is yours -- when you have the
12:29 am
dissent, it is yours. when you are writing the majority, you do not have that luxury. you have to crafted in a way that at least four other people can jump on, and you try to craft it in a way that as many people as possible will jump on, which means accepting some suggestions, stylistics and otherwise that you do not think are the best, but nonetheless, in order to get everybody on board you take them. >> we are talking at a time when the court is about to say goodbye to one member accept a new one. how does the institution changed during that process? >> the institution does not change at all. i think the relationships change. you lose a friend and hopefully acquire another one. i will miss david souter.
12:30 am
i will miss him a lot. he has sat next to me for his whole time on this court. depending on which side of the bench i happen to be sitting on, he is to my left are to my right. he has been a constant companion, and we chat back and forth sometimes during argument or pass notes back and forth. he is an intelligent, interesting, good man. so that changes. i miss a lot of my former colleagues on the court, from byron white to bill brennan. but that is the process. they go, and new people come on. >> during your tenure there have been seven new arrivals. when you welcome you justices into the system, when they come from the appeals court, is
12:31 am
there an acclamation process? >> not really, is the same job. it is the same job as being an appellate judge on a lower court. you read the briefs, hear the argument, write the opinion. we have the added job of deciding what to decide, which a court of appeals court judge does not have the burden or that luxury. you take whatever they bring you, and you have to. except for that additional part of the job, it is the same, with maybe one other exception. on the lower courts, if there is a whole line of supreme court authority that you fundamentally disagree with, it does not mean it is easy. you just follow it. you do not have to worry about whether it ought to be changed. on the highest court, if it is a
12:32 am
stupid line of cases, if you are stupid line of cases and you have to decide if you leave it alone, do you refuse to extended any further, or try to get rid of the whole thing. you don't have to worry about that on the court of appeals. >> we are out of time. for people for whom the supreme court is just an item in the newspaper, i wonder what you would like to say to them about this place, how it functions, and what they really ought to know about the court. >> it is really not a point distinctive to this court. it is a more general point that applies to this court and to all others. you really cannot judge judges unless you know the materials that are working with. you cannot say this is a good decision simply because you like
12:33 am
the result. it seems to you that the person who deserved to win won. we do not sit here to decide who ought to win. we decide who wins under the law that the people have adopted. very often, if you are a good judge, you don't really like the result you are reaching. you would rather that the other side had won. it seems a foolish law. but in this job, it is garbage in, garbage out. if it is a foolish law, you are bound by law to produce a foolish result. so don't judge judges unless you really take trouble to read the opinion and see what provisions of law were at issue and what they were trying to reconcile, and whether they did an honest job of reconciling it. unless that is what you want to
12:34 am
judges to do, you have a judiciary that is not worth much, that is just making it the law instead of being faithful to what the people have decided. that is my main advice, be slow to judge judges unless you know what they are working with. >> justice antonin scalia, thank you for spending time with us. >> thank you. >> we will continue our supreme court interviews in a moment with a conversation with justice ruth bader ginsburg. for more information on the court, visit our website. read about the history of the court and learn about the construction of the supreme court building. now, more information about our supreme court programs. >> all this week, a rare glimpse into america's highest court, through unprecedented
12:35 am
conversations with 10 supreme court justices. >> the most symbolic, a meaningful moment for me during my public investiture was sitting in justice marshall's chair and taking the oath with my hand on the bible. it was like history coursing through me. >> our interviews with supreme court justices conclude friday night at 8:00 p.m. eastern on c- span. get your own copy of our original documentary on the supreme court on dvd. it is a free disc set including programs on the white house and the capitol. >> now our interview with associate justice ruth bader
12:36 am
ginsburg. she has served on the supreme court since 1993 after being nominated by president clinton. we spoke with her for about 35 minutes. >> we are with justice ruth bader ginsburg in her temporary office and we will take a look at some of the items you have in this office. the first thing i noticed was this photograph over here of former chief justice rehnquist. >> that picture was taken in october 1993. it is traditional when a new justice comes on board for the chief to welcome the new justice at the bottom of the stairs. we walked from the door down the stairs together. he greets me, and then we go back into the court together. >> what is your philosophy in your office?
12:37 am
there are a lot of pictures in here. >> i have to paintings from the national gallery, at about five from the museum of american art from a collection called the false collection. -- defrost collection. >> did you pick them yourself? >> yes. >> which one is your favorite? >> my favorite is in the outer room. it is called "and nt." -- it is called "in affinity." these are too early mark rothko. they are my favorite from the
12:38 am
items from the museum of american art. >> talk about these photographs over here. tell us about anyone that comes to mind. >> in this photo, justice kennedy and i are taking part in the washington national opera production. we were supernumeraries. this is the scene where the prince welcomes guests of various times. he welcome to the ambassador of russia, the ambassador of hungary, and then he greeted the three supremes. we marched onto the stage and set on a bank for the rest of the act and watched the show.
12:39 am
>> what about the gavels? >> there were given to me by various people. they'll have inscriptions -- they all have inscriptions'. there is a photograph there that was taken in 1978. justice marshall and i were judging a moot court at the university of california at berkeley law school. it is one of my fondest remembered this. he was still in very good hel alth. >> when you work in an office like this, what atmosphere do you want? does it matter where you do your writing and thinking? >> i like to be in a quiet place. i like to have my law clerks close at hand in my regular chambers.
12:40 am
now i have two that are in that office and to downhaul. i like a quiet place -- two down the hall. >> what are these masks right here? >> these are from my first trip to china in 1978, when china was barely set up for tourists. someone gave me this set of masks while i was there. >> there is a whole series of photos that here. >> those are also from that 1978 trip to china. i was with the first american bar association delegation to visit china at the request of their government.
12:41 am
i was most fortunate because i was the only woman on the delegation. china was not well set up for tourists yeah, so i had a room of my own. these distinguished gentleman had to double up in their rooms. this is the same photograph that was on my book cart. that was taken also in 1993 when i was the new justice. it is my example of how a relative most things are. if you ask me and my short? i would say yes, compared to cheat justice rehnquist -- chief
12:42 am
justice rehnquist, but next to center mccarthy, i am a giant. >> this in desk, is that your personal selection, and where did you get it? >> all of the chambers have similar desks. the variations in these chambers is that i have put a granite top on the desk, as i have at the worktable. >> what kind of books do you keep right there on the shelf in front of you? >> books that i consult most often. i have them in two places, and also on this card will be books to which i referred. >> what would be the books they refer to most often? >> it would be a tossup between
12:43 am
these two. this one is the federal courts and the federal system, the seventh edition. the constitutional law casebook 5. gerald gunther produced this book by himself. two editions ago when kathleen sullivan joined him, and she has carried on the work since his death. most justices will have some constitutional law references. i don't know that they would all choose the same ones. this is one of the finest casebooks and all of law school
12:44 am
, and gerald gunther was my teacher at columbia and my friend ever after. >> what do you remember most about him? >> his brilliance and his humanity. >> on the underside of your desk you have a president's corner. -- on the other side of your desk. how many presidents have you known? >> we start with jimmy carter, who gave me my first good job in this capital city. there's a photograph that you may have seen in association with this one. when jimmy carter became president, there was only one woman on a federal appellate
12:45 am
bench in the entire country. jimmy carter was determined to change the complexion of the u.s. judiciary. there is a photograph that shows president carter in october 1980, when he may have sensed that he would lose the election, but he held a reception for women he had appointed to the bench and said that he hoped he would be remembered for changing the face of the u.s. judiciary. he chose people of the very best quality, but people who had not been looked for before. after he said that, no president ever retreated from that until president reagan was determined to be the president who appointed the first woman to this court, as he did.
12:46 am
he made a splendid choice in justice sandra day o'connor. it was president carter had decided that the federal judiciary should draw on the talent of all the people of the great united states and not just some of them. >> what did you do in his administration? >> i was on the u.s. court of appeals for the d.c. circuit. >> before that, you had not had any government experience? >> before that i had been a law teacher for 17 years and general counsel for the american civil liberties union. >> you were before the court representing the aclu? >> representing a client that was supported by the aclu. >> what is the difference between standing in front of the court and then being on the other side?
12:47 am
>> on the other side, you ask the questions, and being at the council podium, you answer questions. >> from your own experience of standing before the court, have been treated the attorneys in a differently because you have that experience originally? >> i think have a keen understanding of what it is like to be on the receiving end of questions. but i also know that as an attorney, i welcomed questions from the bench. some lawyers regard questions as an interruption in an eloquent speech that they have prepared to make, but an advocate wants to know what is on the judge's mind, so they will welcome
12:48 am
questions as a way of satisfying the judge on the matter that the judge might not resolve as well without counsel's response. >> i have to ask about this picture right here. >> that is my husband of 55 years, martin david ginsberg, professor of law at jonestown -- georgetown university school of law. that is a typical pose on our patio. >> he is the master chef in our house. 30 years ago. >> did he ever cook for the court? >> martin is much in demand at the quarterly lunches that supreme court spouses have. i may be a little biased and
12:49 am
prejudiced, but i think he is one of the best cooks. >> how to the lunches work? but they just for the justices? >> just for the justices and spouses. they also regularly in by the widows of justice'sd. they are regularly at those lunches. >> who else do you want to talk about on this table? we have bill clinton, george w. bush. >> this was condoleezza rice's
12:50 am
swearing-in as our secretary of state. she lived in the building where my husband and i lived, and she is an accomplished musician. we were fortunate to attend one of her musical evenings, and she called me and asked if i would administer the oath of office. i thought that was a great thing to do. it showed a bipartisan spirit, and we are all proud to be servants of the u.s.a. it should not matter that i happened to have been appointed the bench monday jimmy carter and president clinton, both
12:51 am
democrats. i thought that was a very nice gesture on her part. >> who else on this table do you want to talk about? >> this is my granddaughter, one of three granddaughters. it was taken in the fall of 1992, when president clinton was running for office and his wife, hillary clinton, happened to be visiting the nursery school attended by might then 3-year- old granddaughter. they are doing the toothbrush song together, and this picture was featured in "the new york post." when i saw it, i got a copy and send it to my granddaughter.
12:52 am
she is now 18. i wrote on the bottom, may you always know where to stand. >> who is this lady right here? >> that is my mother. perhaps the most intelligent person i ever knew, but sadly, she died when i was 17. >> i read that she died the day before you graduated from high school. >> right. >> what impact did that have on you in those days? >> it was one of the most trying times in my life, but i knew that she wanted me to study hard and get good grades and succeed in life, so that is what i did. >> behind you are some more pictures. i want ask you about this one over here. this has actually been published before. >> yes. that is a photograph of justice
12:53 am
cilia and -- justice scalia and me. we are taking an elephant ride at the palace of the last maharajah. it was a very elegant carriage, but a very bumpy ride. >> it is often reported that you and justice scalia are good friends, and people do not understand how you could be so different in your thinking and still be friends. can you tell us how that happens? >> i have known justice scalia since the days that he was a law professor, and i was so taken by his wit and his wonderful sense of humor.
12:54 am
i disagree with most of what he said, but i love to the way he said it. justice scalia is a very good writer. he cares about how you say it, and he is a very amusing fellow. when he sat next to meet on the d.c. circuit bench and when justice o'connor was with us, i would sit next to scalia. he could say something that was so outrageous or so funny that i had to pinch myself so i would not laugh out loud in the court room. it is humor, and because we both care about families and each other's families.
12:55 am
>> tell us how it works on court day. >> on a court date, robes are kept in the robing room, and we all have attendance to help us put on our roabe. in this clause that i have the robe i've used most often in court. this robe is from england, but the caller is from cape town, fell back. the standard robe is made for a man, because it has a place for the shirt to show and a tie.
12:56 am
and today o'connor and i thought it would be appropriate if we included it something typical of a woman. i have many colors. this is one of my favorites. >> what is the symbolism of this being from south africa and is being from england? >> i saw this in the museum in cape town. >> what is the importance of the road for a judge? >> it is a symbol that we are all in the business of impartial judging.
12:57 am
the great chief justice john marshall said that judges in the united states should not wear royal robes. they should wear plain black. every once in awhile, not in this court, i will use this robe. this one was a gift to me by the people's court in china when i was in china in 1995. i was a guest of their highest court and visited several courts in major cities.
12:58 am
when i was in beijing, i admired the robes. they made up a rope and presented it to me as a gift. this is my chinese robe. in canada, but the lawyers and judges wear robes. this is the standard french scarf. the women jurists that they should enhance it with a lovely lace collar. >> tell us about the traditions around the robing room before an oral argument begins. >> as we enter the room, the
12:59 am
first thing we do is go around the room, each justice shaking hands with every other. that is a symbol of the work that we do as police body. you may be temporarily miffed because you receive a dissenting opinion from colleague, but when we go to sit on the bench, we look at each other, shake hands, and it is a way of saying we are all in this together. we care about this institution more than our individual egos, and we are all devoted to keeping the supreme court in the place that it is as a coequal
1:00 am
third branch of government and i think a model for the world in the collegiality and independence of the judges. . .
1:01 am
>> one justice decided that we should have an annual [inaudible] when the hearings are done, we should take time out for a musical interlude that all of us
1:02 am
can enjoy it. he started that in 1988. for the last seven years, i have been attending this. >> where they happen? >> they take place in our conference room. this is where our lovely stein weight is. the we can accommodate not more than 200 people. each justice can inside a to six peopl
1:03 am
-- can't invite six people. >> in the justice ask you about what they should know about the court, what do you tell them? >> i would say you would be surprised by the high level of congeniality. i think we are divided almost 5- 4 in 1/3 of all cases. one might get a false impression on the degree of disagreement.
1:04 am
justice scalia said there was no justice with him he disagreed with more often print them com. these are taking and that generally liked each other and enjoy each other's company. >> what do you see that we don't see sitting on the court? >> i see the wonderful are to and the magnificent proportions of the court room.
1:05 am
this is one of the most beautiful court rooms in the world. >> you talked about the lunches. where are they held and what is the atmosphere. >>
1:06 am
1:07 am
1:08 am
1:09 am
but unbow >> you have to take account of what they think. we don't have any observers in the conference room. no one has entered the room. there was not a justice. not even an message bearer.
1:10 am
the notes were taken by each of justice my hand. this is a private conversation among the justices about the case. what the public will see essentially is an opinion with reasons. we have to get reasons for the decisions that we make.
1:11 am
you began to say am i right, did i overlooked this question or that question. i was wrong at the conference, i will take the other position. we will either agree or disagree. the justice will end up writing for the majority of. the conferences are what you would see in most appellate courts except the typical appellate bench as a
1:12 am
conversation among three as among nine. you have to respect your colleagues are not there to here a long speech from you. we speak in order of seniority. it is great to go first because you can tell the rest be in a persuasive statement. thyou have an advantage. you know what the others think. you can incorporate this into your own statement.
1:13 am
>> the most symbolic moment for me during my public investor. it was sitting in justice marshall's chair and taking my oath. it was like a history coursing through may. >> our conversation concludes at 8:00 p.m. eastern with sonia sotomayor. you can get your own copy of our original documentary on our
1:14 am
website. this is a three disc set. >> the berlin wall fell more than 20 years ago. up next, security challenges after the cold war. after that the news and politics from 2009. afterwards, the life of abraham lincoln. tomorrow morning, we will talk about immigration. after that, a conversation on at the obama administration's handling of foreign policy and
1:15 am
diplomacy. as always, we will take your phone calls. now a conference on global relations since the end of the cold war. this a panel examines potential threats to the u.s. in the coming years. this was posted by the university of virginia and is one hour and 45 minutes. >> when the walls came down, berlin, 9/11, and the uncertain times.
1:16 am
>> i want to thank and mulligan for all she has done to make this happen. the format will be as in other panels, we will take power panels in order. let me introduce them to you briefly. first is the professor of international relations at the university of southern california school of international relations. she is a historian who studies international relations. she just came out with a book ought. it just received the 2009 prize for distinguished scholarship in
1:17 am
german and european studies. she is currently at the american academy anin berlin. we are joined by bruce cummings it is an expert in modern korean history, 20th century international history, east asian economy and american relations. the author of many books and influential articles.
1:18 am
our next guest is william wohlforth. he is the editor in chief of the journal "security studies." our first speaker will be dr. s uparotte. >> i have just cannocame out wih this book "1989." this is an international history of 1989. it builds on earlier work.
1:19 am
i had the advantage of having more sources. i had the opportunity to go to russia, poland, germany, britain, france and look at their documents on german unification as well as materials and the collection of james baker. also in the bush library. it has been possible for scholars to request to these under a freedom of information act. there is an extraordinary source basis available for historians. it is unusual because often documents are kept closed for 25 or 30 years. you have to wait 25 or 30 years to have your initial look at the documents.
1:20 am
usually there is a 30-35 year gap between the historical studies. that is not the case here. we can do serious historical scholarship. i realize that the sources were open largely because of personal decisions contem.
1:21 am
when you have dramatic moments that revealed the long-term social and military pressures that have come together the to produce a moment of great change, what does that dam meanr mastering the chaos and moving forward? that is the question that interested me. i was an undergraduate on a year of study abroad that the free university of west berlin in 1988 and 1989. i went back to the u.s. to go to graduate school in september of
1:22 am
'89, i had a good sense -- i did not know the berlin wall was going to come down. of course, you have the mass flow of refugees across central europe. in 2001, i was serving as a white house fellow. my first day will september 4th, and 2001. then september 11th occurred. before i was a student, i had no authority and i was a spectator. i had personal recollections of the context. as a scholar, it has been gratifying to look at the
1:23 am
original documents. let me give you a sense of what is in the paper. i tried to establish a narrative. this is a story full of a lot of chance and contingency. this was accidental. that is well understood in europe but curiously not understood in the english language literature. it is important and that the opening of the wall is accidental because it catches everyone unaware. the date on which it occurs is significant because it happens early enough that gorbachev has
1:24 am
enough time to determine the outcome. if it had happened after gorbachev possible plurality had fallen apart, there are a lot of what else. this is very significant. when i looked at the documents, i saw on that policy makers to describe what was happening used the language of architecture. james baker was talking about a transatlantic security architecture. i kept seeing these metaphors
1:25 am
again and again. i decided to follow the lead and use that as the organization for the book. the way that i addressed the question of how to policy makers respond to the aftermath of these dramatic events? i decided to think about what happened after november, 1989, as an architectural competition. you had different architects proposing different the prince in a highly competitive fashion to try to succeed. if you went and architectural competition, that does not mean that you get to build anything. there is a long process of realizing your model. ambac thi saw four kinds of modt
1:26 am
were at one point or another seriously proposed. i am not trying to say that these were all equally likely. the restoration is an architectural term meaning to copy something exactly. it means to rebuild something exactly like it looked before. it is it an attempt to recreate something exactly as it was before. i saw this in the immediate
1:27 am
response to the soviet union. this was what happened after world war ii. that is how they result what happened. briefly, the other powers played along. there is actually a meeting between the four pallorowers. there is a speech from the russian leader, they said they had to reconstruct germany. helmut kohl proposed his model which i've called revivalism. this is an architectural term that is different. that means something that is informed by an older style that
1:28 am
is modernized and updated. this is something that thomas jefferson would have appreciated. helmut kohl decided he needed to counter the notion that he did not matter. he proposed to revive a confederation. he proposed through his shocking 10 points speech that there should be a confederation of just two german states. over the course of decades, he thought if he was very lucky, over a long, time, at two 21st century germany's would grow into unity. he proposed this model which it thought was very viable.
1:29 am
the area known as germany had existed for quite awhile. he decided to withdraw the model. he went to east germany and realize that he could be the chancellor of german unity. he decided to push for rapid german unity. the russians abandoned their restoration model and proposed a heroic model. the term in architecture is ambiguous. heroic architecture is a kind of foolhardy architecture that might reach for the skies. is a term used to describe exercises in the 20th-century often in service of authoritarian regimes. he had a very vague vision and of the common european house.
1:30 am
it was interesting to hear how the u.s. new that he had not firmed up his ideas and they needed to move quickly. would eventually wins is the prefabricated model. this is the addition of the pond in washington to take the prefabricated institutions of western union and duplicate them in the east. it is important when i say this that i'm not trying to infer that these were inferior. these were some of the most successful institutions that the world of international relations had ever seen.
1:31 am
prefabricating is a very fashionable word among architects. the structures were crated and shipped by the cold war and crated for the western alliance in the cold war. they were duplicated and put it in the east. this is a perfectly fine solution. you have to be honest about the problems that are created later. is that structure specific for the site that you just put it on. on the problems that we see now is that there has been at perpetuation of a front line with russia which did not have to be the outcome of 1989 and 1990.
1:32 am
james baker argued that russia, if they embraced free-market and democracy, they should be part of nato. if this is an organization to support political development, it should be extended to russia. he said that every achievement, every solution to a big problem contains the seeds of a future problem. i found that to be a profoundly wise statement. the prefab solution which worked very well does contain problems that we are now on seeing today in our relations with russia. thank you. >> i would like to thank the miller center for inviting me. i commute from charlottesville because my wife works here.
1:33 am
my paper has a fairly simple point that was also made in different ways at the previous panel which is that the assumptions and premises that policymakers bring to bear weather on predictable event or one with a high probability that tend to be very important in the way they filter information. i go on to talk about concepts and metaphors and how we build up our assumptions. the simplest line in the paper is the one about the plastic dummy that has sent in the bottom.
1:34 am
i take several case studies. the second is the call of the berlin wall. as a historian, i bring to bear a different perspective external to the world policy-making panel and also external to inside the beltway debates. i have never been a policy maker. i have participated in a number of debates. i have read thousands of policy papers in the course of my career. that has taught me to be humble before the task of making life- and-death decisions without enough time.
1:35 am
george can list a person who had studied the turn of the century diplomacy. he had come to a basic assumption which is realpolitik. he became the head of policy planning in the state department in the late 1940's. there might be a billion e-mail in the bush administration or a million papers in the truman administration, i think it is true that someone who knows what they're doing and has access to a president or to a secretary of state, rises above the daily flux of all the papers.
1:36 am
as you all know, there was a theory that there were five industrial bases and the world that gave the country fundamental war making power on a major scale. we had four of them in our sounds and the russians had one. containment was a fairly limited business of keeping things that way in the post war world. i believe through a deft and artful containment, the soviet union over time will be forced to see the error of its ways and will change its system is not transformed and collapse. he was wrong for 40 years roughly from 1947 until 1989 or '91. suddenly, he was right. as i say, this is a typical situation. i believe i have to write for 20
1:37 am
years that north korea will not collapse in the post air-post war era -- in the postwar era. everyone has an explanation for the fall of the u.s.s.r.. some people say that reagan with his arms buildup did it. no one had the virtue of predicting it.
1:38 am
for the most important aspects of trying to understand the world is to learn from our mistakes. ithere are a number of ways to figure this out. this slaps in the face. you realize that your assumptions and your understanding disinfect wrong. many people on the left on a world scale had a rude slap in the face. there are other examples or people can slap in the face. a second way of thinking about of learning how we are wrong is to use gorbachev's phrase, life will teach us. he would say that life will
1:39 am
teach us. that is a profound judgment because we all hopefully live long lives. as time goes by, we find out whether the predictions, strategies, carry any weight or not. i think the most popular method of finding out we are wrong is to have history proved it to us and we don't change one thing. all you do is redefine to the issue. i think that many people on the left and did that in 1989 and 1991 but i think that we all do it all of the time.
1:40 am
history can show us we are wrong and even so we continue with our basic assumptions because our world view and ou[inaudible] i don't have this time to talk about each of the four cases that i take up in the paper. with the dean acheson, the president in 1945, you see someone who had developed a very clear logic for reconstituting the world economy after the collapse of the world economy during thethe great depression.
1:41 am
if you wanted to name one person who was the person who constituted a logic of the post world war two era, it would be dean acheson first in the treasury department and then as assistant secretary of state and then as the secretary of state under truman. when you go from 1945 to 1989 and you enumerate the institutions that were polled and in 1940 by acheson and others, the imf, the u.n., the
1:42 am
united nations and a soft piece for japan and germany, you see a world that could have been one world in the late 1940's that turned into two worlds. i have not heard anyone else say this to day, maybe it is so obvious that it does not require repetition. it was possible to see a long piece in 1991 that was not seen in the cold war. it was almost impossible to imagine major industrial powers fighting each other.
1:43 am
when my friends and i have discussed the return of german in the to with the french retargeting their arms on germany. this is profoundly mistaken. it is because of the assumptions on how the world works. not everyone would like to aggrandize their power. most of the realists got things wrong. atchison wanted to reconstitute the world economy. he wanted a soft peace to reconstitute it japan and germany. by 1947, the third major problem was how to contain the soviet
1:44 am
union. the third thing that attkisson never thought straight was the force deployed by anticolonial people movements in vietnam. also in many other places. it is card for people to recall the towering influence of third world leaders just 30 years ago and movements that assessed the u.s. most of the people thadid not believe that there would be problems. racial prejudice was sometimes involved in this.
1:45 am
one crystal ball in 1945 would have been rather predictive of the constitution of the economy. they would have been flabbergasted if they were told that they would fight two major wars in south korea and vietnam. you would have a stalemate in one and lose the other. they did not pay attention to millions of people who were in colonies or trying to get out from under them. my analysis of september 11th can be a [inaudible] very briefly. we have grossly over estimate of the threat that came from that terrible act. i anders and what policy makers in this room were saying just a few minutes ago about the
1:46 am
extraordinary shock that this produced and the unknown fears like something like an anthrax attack, whatever you want to call that, would generate. and the idea that you don't know what is around the corner. i could not sleep for five days after 9/11. it was an extraordinarily shocking event. one of the things that we need to do is step back and ask ourselves if these 19 hijackers represent something like the soviet union and not to germany and militarist japan and they clearly did not. life seems to have told us that they got lucky. north korea, you can read what i have to say about north korea in
1:47 am
the paper. might encounter with the beltway consensus on north korea has been that the images and assumptions people have get in the way of securing out a policy that might have an impact on that regime. on any given day, it looks like an opera. research and my career that we have under estimate of the north koreans at your peril. that happened when douglas macarthur says that you can turn backe the country with one hand behind your back. he said that they had better formations and the japanese did. its stars from there and it just goes on. -- it starts from there. if you have an army of a million men. you have some 50,000
1:48 am
underground security chambers or facility. also a leadership that believes that the soviets and the chinese have screwed them. you can begin to appreciate what the regime has not collapsed. -- why the regime has not collapsed. please read my last section where i "frederick nietzsche on metaphor and the way in which we human beings have a wonderful and a terrible tendency to think in these terms. to say that we are terrorists conjures up someone who looks like a bin laden, to say communist is someone like kim jong il.
1:49 am
in general, to constantly try to examine and reexamined and examine again the premise, concepts, metaphors, assumptions that we bring to bear on our work because the whole point is that those things are more and pointing to than the daily flotsam and jetsam of information that might be coming across your desk as a policy maker or a scholar. thank you very much. >> thank you. >> thank you for inviting me to conference. thank you to the miller center for organizing it. thank you for bearing up this whole long day and being so attentive. my paper holds a mirror up to us which is to say independent, non-governmental scholarly experts. how well do we do when paradigm
1:50 am
shattering event happen that we did not do a job of predicting and scholars. my question is, how well to independent scholars do at policy evaluation after event occurred at alter the foundations of a major geopolitical [inaudible] how well do we do? it policy evaluation involves an assessment and criticism of a given policy, usually for experts. it implies even an endorsement of that policy or the recommendation of another policy. in either case, it implies a forecast around the world, namely that the world will be better off if you follow the policies that i advocate. how good are the scholars at forecasting under these circumstances? i looked at this and the defense considered under this project.
1:51 am
9/11 and the fall of the berlin wall. i brit fees down into four events, four decisions. the immediate decision in 1989 is to support unification. the decision is the use force to respond to al qaeda in afghanistan. if you look at these decisions, what stands out from the outside expert committee is opposition to criticism. three of the four decisions were opposed or met with strong skepticism by strong majorities of outside scholarly experts.
1:52 am
the only exception is the invasion of afghanistan which i think among securities dollars was widely endorsed. this was a consensus decision. all of the other three met with opposition. what i want to do is to look at least early decisions and then look at the three cases in which you saw some early assessments against the government policy and find out how well we do. the first section, i want to talk about the conventional wisdom which among scholars is that the government should pay attention to us. normally, how can the government really pay attention to us?
1:53 am
if the scholarly community, if independent experts converge on a position, a consensus among experts outside of the government, the view is that they should take this seriously. why? well, it is important that we bring some good assets to the table. they are independent, they are not necessarily in thrall to hire local bureaucrats. they are not in fault too deeply in party politics. yes, they tend to be democrats, not all of them. they are not party people. most importantly, they have years of expertise and headed by a peer review. years of effort put into
1:54 am
understanding a problem and they bring this to the problem. if they converge on a view that the government is taking a wrong step, there is literature on this. it is the expert opinion which is one of democracy's biggest advantages over autocracies. this basic conventional wisdom fails to distinguish between which we might call normal uncertainty and the profound deep uncertainty that it follows paradigm shattering events like the fall of the wall and 9/11. i suggest an argument that scholars might not be in the best place to put their best foot forward. the first reason is that they might be at a strong
1:55 am
informational disadvantage. the government will have critical information informing their policy that the scholars will not have. they will know more about what other governments are thinking. the traditional methods will be at a disadvantage in these fast moving times. the government actually knows what it wants to do. the scholars might not know what the government would like to do. if the government had this to be very powerful, that can influence the future. scholars are at an informational disadvantage. more importantly, independent experts might be at a cotton to his advantage. they might make particular kinds of investments, particular types of reasoning and knowledge which
1:56 am
are ill suited to ferrvery uncen times. they have a theory, which they care a lot about and they invest a lot about. they also have systematic research. whether they are historians or political scientists, the incest -- date c to understand things in general. -- they seek to understand things in general. seeking explanations is a very different intellectual enterprise than deciding what to do in a massively fluid situation such as what happened
1:57 am
after the fall of the berlin wall. the very strengths that scholars have in normal times become a handicappe and in these uncertan times. when the paradigm is cut loose from its moorings, and that essentially the values the investments that scholars have made. in 1989, the bottom line is that scholars were way behind the curve. they were much lower than the government to see what was happening. when they did figure out what was happening, the overwhelming preponderance of scholars all
1:58 am
thought that the idea of rapid unification was a very dangerous move. overall, their views were much closer to the views of margaret thatcher than helmut kohl and george h. w. bush. their theories predicted that massive change is almost always associated with war. this was pregnant with the possibility of war. that is what motivated the argument that was just referenced, mainly the bipolar the vision of europe has maintained peace. if you want peace, prop up the soviet union. i did not recall from the policy
1:59 am
maker that people in government actually paid that advice much heat and i doubt that people wish they had. scholars were behind the curve and dramatically over estimating the risks involved. i think for reasons that are connected to this comment of style that i am talking about. --, it is styl cognitive bstylem talking about. i recall a lot of historians and not at all shy about applying their knowledge to contemporary their knowledge to contemporary politics.


info Stream Only

Uploaded by TV Archive on