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tv   First Ladies Influence Image  CSPAN  November 29, 2013 1:00am-2:36am EST

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commission, and circuit judge on the united states court of appeals for the d c circuit. along the way, he met and married virginia, his soulmate. [applause] in 1991, he was appointed to this agreement court by president george h.w. bush. by this time, he had emerged as an outspoken conservative. so the confirmation process exacted a personal toll. by following the example of his grandfather, he persevered. and our nation is very fortunate that he did. on the court, justice thomas has been a steady and committed originalist, playing a pivotal role in the recovery and restoration of the original method of constitutional interpretation. he has made substantial and
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important contributions to our law. both in his opinions for the courts and when writing separately. perhaps most notably in the areas of federalism and the federation of power. the jurisprudence of protection and the guarantee of trial by jury. and the law of free political speech. his opinions reflect a deeper appreciation for the liberty- protecting structure of our constitutional system. he has advanced in understanding in the constitution, informed by the vital truths expressed in the declaration of independence, connecting our political and derivative documents. his personal fortitude is example to all who withstand the principal. please join me in welcoming clarence thomas. [applause]
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good evening and it is so good to see you again. [laughter] he was really loose at the table so i think this is going to be a lot of fun. >> thank you, thank you. >> as i talked about in the introduction, your path to the court is a remarkable american story. i would like to begin our discussion in the middle of the story with your decision to go to law school. that was your genesis or the genesis of your journey in the law. you went to seminary and were a student at holy cross.
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it was the late 1960s, a very turbulent time for our country. you decided to go to law school. you are accepted at some of the best law schools in the country. if i recall, you turn down harvard law school in favor of yale because harvard was too big and too conservative. i get the big part. but the conservative part, i think you have to explain. >> first of all, thank you for the introduction. i should just quit while i was ahead. [laughter] this is really embarrassing. there is a lot of attention on me and it makes me uncomfortable. but you know, i think when you come up from a part of the country and you are in new england, there are a lot of things that are happening.
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i had quit the seminary, the only dream i had ever really had. i have been a devout catholic, an altar boy, and i eschewed all of those things in 1968. like most kids, you eschew things. everyone thinks they have a vocation, if you are in the convent or trying to be a priest. that is the orientation. i thought that law would be a substitute vocation, something similar to the priesthood, where
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you did well so that you could do good, so that you could go back home and do the right thing. that was all there was to it. now that is about as deep as it got. this was 1968, 1969. woodstock is going on. that can be considered in the very same thinking. [laughter] >> you were something of a campus radical, weren't you? [applause] >> the 60s were different. [laughter] there were a lot of things happening involving breaking down the structure in society. i was suddenly out of the seminary and in new england.
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there were no rules. things were falling apart. without structure, it is very difficult to navigate. i was extremely fortunate to be at holy cross. i was extremely fortunate to still have had a residual of the way i was raised and the structure that the nuns had given me, the structure that the seminary had given me. i was also extremely fortunate because i had already been in predominantly white schools. i was the only black in my high school in savannah. a transition to a school with very few blacks and a very difficult set of circumstances otherwise, i had sort of a jumpstart. i was ahead of the game. i had something. it allowed me to continue to do well even though it was very difficult.
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i do want to get to harvard. i do not want to get lost in that. i was a bit of a radical. that is what happens back then. you were black and things were changing. we were very upset. that changed at a riot in harvard square, where i finally realized, this is going too far. this hatred that, as my grandfather would often tell me when he saw me, you were not raised to be that way. i can give you the exact date. the road to damascus date was the morning of april 16, 1970, the day after harry blackmun was announced for the supreme court.
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we were in the newspaper. that is how i knew. [laughter] so having come back from the riot at harvard square, i am not understanding exactly what i had just done. i stood in front of the chapel at holy cross and that is where i made a promise to god that if he could help me get this hatred out of my heart, i would never hate again. it is sort of ironic when i hear people trying to tell me that i am supposed to be overwhelmingly race-conscious and have this sense of get even. a sort of effort to get even in my life. that is the opposite of the way i was raised. that is the opposite of what we believed in. it was the opposite of the deal i made with god on april 16, 1970. with respect to harvard, harvard was a dream. i had no plans. what do i know about harvard? i am from georgia. if someone said to me, that is as impossible as harvard, i would've just laughed.
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that was a reach for me. but i was confused. we are meeting at the radical bookstore and wondering why the fbi was looking at us. [laughter] you meet at a store with a little red book behind you. other people might be interested in what you're doing. and they are not all called nsa. [laughter] but at any rate, i was accepted, to my surprise. and i went to cambridge and i remember that there were a lot of people in the law school and
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it was very confusing. i escaped from that madness. it was sort of like the scene that you see in "the stranger." having this weird experience out there. that is what happened to me at harvard. i became like breathless, a panic attack. i got back to holy cross and said, there is no way i can go there. it is big and all these people are walking around dressed up like they were going into the corporate world. back then, we were anti- corporations. i decided to go to penn. i had not been accepted at yale. i was going to go to penn law school. yale sent me, you knew you were accepted if they sent you a big packet of materials. yale sent me the thinnest of letters. we are not into the catalog thing. we are yale. [laughter]
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not only that, but they sent it to my grandparents in georgia, who never open my mail because they could not read what was in it. so they never looked at it. they essentially sent it to me, so i get this hidden letter from yale. i went to yale and quite frankly, as bad as the things are that i may have said about yale, the experience was very beneficial to me. [applause] >> what were you hoping to do with your law degree? >> go to savannah, georgia. that is my number one dream. i was going to become a priest
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to go and help. i was going to become a lawyer to go and help. it was that simple. i could not get a job in my state of georgia. it was that simple. some people make it very complicated. i could not get a job. i look at the firms in atlanta, lots of places. i got zero job offers. jack danforth, a good man. the biggest problem i had with him was he was a republican. [laughter] but i only had one job offer. [applause] >> tell us about what the first job meant to you and your future. >> it was the best job i ever had. i learned things from jack danforth. i learned that you do not judge people or use labels, a
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republican versus this or that. i also learned that you can treat people fairly and be decent and honest with everybody. he was always absolutely honest and ethical. watching him be that way, you learn how to be that way with others. he was a compassionate man also. he was very good to me. every day, i thank god that along the way -- again, remember, i had absolutely no one to give me guidance. i thank god that i met so many good people. my years at elc, being protected by people) hatch and strom thurmond. i did not know strom thurmond. but i had over 60 hearings and some of those were pretty brutal. every time, the people i could count on in the senate were orrin hatch and strom thurmond. [applause] in any case, that job meant everything to me because it was
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a model for how i would conduct myself and what to expect in the future. >> let's talk about your decision to come to d.c. in 1979. at that point, a major political shift was underway. what is now called the conservative legal movement came just a few years later. when you came here, your arrival coincided with this shift. it was that just a coincidence? or did you come with an affinity for the legal ideas? >> i was trying to get to savannah. i was getting promoted in a job that was a fine job with good people. that is not why i went to law school. as i said then, i was beginning to feel the golden handcuffs. and i wanted out. so i quit my job and i thought about it, i quit my job in 1979. i was 31 years old.
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packed up the u-haul to move, and fortuitously, again, good people looking out for me. senator danforth offered me a job. so i came here. and then i was going to savannah. one thing led to another and i wound up on the court. [laughter] [applause] honestly, people come up with all of these things. i love people with bad intent who write these things, how you did this or how you did that. it was totally forrest gump. i did my job and i showed up in pictures. one day, i showed up in the supreme court.
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i cannot give you a better story than that. >> there must have been people you turn to. >> i met her in 1986 and that was the beginning of me going back to things that were most important in my life. and we prayed about everything that happened. good people who believed in me, like president bush. i did not know president bush when he nominated me. my good friend, ricky silverman, insisted that i think about it. [applause] larry silverman counseled me about it. at every turn, and it will probably be boring to you all because my life is pretty
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boring, there were a series of good people who showed up. one of the things that became a priority, if you talk to people who come to new places and they do not have family, you can ask anyone in this room who does not have a structured family, you begin to assemble a family. that was the source of my difficulty with yale. yale had become the only family that i had. at a critical juncture, they abandoned me. that was the big problem. at every point, you build a family. the people i just mentioned to you became a sort of substitute family. think about it. my wife goes with me -- my wife and i are really close.
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[laughter] we spend a lot of time together. we go down to savannah and she sees the family and it is the pathology, in many ways, of the social experiments of the 1960s. my grandparents are gone, that anchor is gone. i am sort of without that base. you look for people to fill that in. the people who i just mentioned to you, who gave me that guidance and became that substitute family, it was very important to me. i always think that i am blessed because god has sent all of these good people. he sent my wife. my wife is a gift that i prayed for in the 1980s. i got to the court and my friend, justice scalia, was there.
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and it was a godsend. we quickly became friends and he looked out for me, that sort of thing. just the way orrin hatch and strom thurmond looked out for me or that jack danforth looked out for me. >> let's turn to your time on the court. three weeks ago, you market your 22nd anniversary. >> i did. [applause] oh, my goodness. >> i did not need to look that up because i have my own personal marker. my son alex, who is with me here today, was born two days after you took your seat on the court. he is my own personal marker of your anniversary. >> i hope you did not waste any of your time watching my ordeal. >> he was two weeks late. >> at least that sort of kept your mind off that. [laughter] i am trying to look for the good side of that.
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>> if you would, share a few thoughts on your initial transition to the court. how did you get your bearings on the court? how did you learn the ways of the court? >> first of all, a came through the d c circuit. the people there were fabulous, absolutely fabulous. i got advice from a good friend, larry silverman, who was just a wonderful mentor on the d c circuit for the entire 15 months. [laughter] and he continued to be a friend afterwards. when i got to the court, i was enormously blessed. byron white was still there. but my closest ally and friend
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when i got there was justice scalia. [applause] at the expense of embarrassing him or the risk of embarrassing him, as beat up as i was when i got there with the workload, i do not know how i would have gotten through it if he had not been there. he became, quickly, a friend. he began family. he and maureen just became -- you know what? it was not that we always agreed on every case, but we agreed quite a bit.
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it was that i could count on him and i could trust him. i could go and talk to him. there were days when i was getting beat up and he was a friend and a colleague. but oftentimes, a friend. he was very kind to me. those on the court were delightful to me. chief justice rehnquist, justice marshall, all of them, justice brennan. they all gave me sage advice, but in the end, the closest person who made it doable was justice scalia. >> tell us what has changed during your 10 years on the court. >> i am older. [laughter] you know, it is really interesting. i have to take my hat off to
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people like john stevens, people who have been there a long time. after you have been there a while, you sort of come of age and get used to that. then it changes. new colleagues come on and you make adjustments and it is a family. it is a different court. they are good people, all of them. i have been enormously fortunate. justice alito is there now and we were at yale together. [applause] he and martha ann have become family.
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you meet new people and you get new colleagues and friends. but i have to say that, with all of that, i look back on the days that i came of age as the years that i will treasure. they were really, really hard. i feel like you take justice scalia and we were in the trenches together. you learn a lot and you treasure now the moment, but you really look act at those days as the critical days. i have been there so long now and seen a lot. back then, you were quite fresh and you are a novice. >> has the style of the presentation of the case is changed at all? >> there are a lot of briefs and people have done a lot of talking. [laughter] [applause] i mean, it is law. i must say, when i went on the court, i resisted being a judge. that is not what i like. but it is your j-o-b, so you do it. now you get to a point and you see it.
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it is, this is what you're called to do. this is what i do. it is not that the words have changed, but the way you read them, the way you absorb them. i never thought that i would treasure doing my job. i have reached that point. even the most boring cases are fascinating. one of my clerks today was saying to me -- i was reading some opinions and he said, you need to put on your green tie shades. i said, i think it is fascinating. i think he wanted some medication for that. [laughter] but i have gotten to a point where it is like the priesthood. this is what i was called to do. i would not say enjoy, but i love what i do. [applause]
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>> some things, two observers from the outside, have definitely changed that the supreme court. we had the rise of the specialty supreme court bar, of course. i do not know if that has changed the way, the quality of the oral arguments. >> it is like the gargoyles or something. they are all that bad. [laughter] i do not know the legal profession that well. i just show up and do my job. [laughter] >> something else has definitely changed, the kind and degree of attention that is paid to the court and its work. >> i do not follow the attention that is paid. >> we now have social blogs -- >> i know nothing about that. >> you do not read the new media? >> god, no.
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i try not to read anything about what we do, because i was there. [laughter] [applause] >> fair enough. >> i really don't. i do not read. that is just hearsay. >> we will move on. ok. >> i am sorry i am the way i am. [laughter] >> ok, moving on. i think it is fair to say that you are the most consistent originalist on the supreme court. >> i am. [laughter] he said i was a cold-blooded originalist or something. >> he says now he is a stout, hardened originalist.
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>> i am or he is? >> he is. >> he is a courageous originalist and a brilliant one. [applause] that is right. >> i think it is fair to say that you are the justice most willing to re-examine the precedents. >> it is because of my affinity for starry decisiveness. it is not enough to keep me from going to the constitution. [laughter] [applause]
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i guess they do not care much for it either. i do not mean to make light of it. >> and that is fine. i want to ask you about your approach to writing separately. you do write separately quite a bit. you support your own path in those separate opinions. one of your separate opinions on the application of the sixth amendment to the jury trial rights, the sentencing facts, became the majority view of the court. others of your separate opinions may be less likely to command the majority view. >> maybe like a fine wine, it just needs aging. >> is that your philosophy of separate opinion making? >> eddie harlem took 60 years but he eventually won in plessy. >> you ask a very good question.
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i think that i may lose, but i think i am obligated and encouraged by my colleagues, if you believe that, you write it. i try not to do it in a way that is not polite or respectful, but i think that someone should have kept writing that segregation was wrong. [applause] regardless of what the precedent was, i think you have to say
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certain things. when i first went on the court, people thought that great people like bob bork and justice scalia, the originalist, everyone thought they were not a gimmick, but sort of an oddity. earlier, in the introduction and the speech by jean mayer, original is and is respected. so they had to do it. maybe in some of these other cases, we are obligated to say what we really think. in your job, you are more constrained. but you get cases of first impression. this precedent, perhaps, you might question. you feel obligated to say
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something. that is the way i feel. the other thing is that it was very unpleasant to, in my case, to go to the court, for a variety of reasons. when you go through that, you feel that you have your -- you have, you are obligated, with the blessings that you have, with the opportunities you have to do your job, to stand up for certain principles. i have to say, i hope -- i have been encouraged by my colleagues. they have never discouraged me. they have their approach and i have mine. and you know -- if you notice, in all of those cases, i try to do it with a certain degree of respect for my colleagues. maybe 100 years from now, someone will excavate it and say, this guy was out of his mind. i do not know. but i think -- i am one of these people who still remembers, as a
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little kid, standing in the schoolyard and saying the pledge of allegiance. little black kids at an all- black school, every morning, saying the pledge of allegiance. who remembers watching tv sign offs at night with the national anthem. and high flight, which you can see on youtube now. i still get goosebumps from these things. i still believe in this stuff. i still believe in the constitution. it means more to me than an academic document. it is really important. i feel obligated that the opportunity that i am given to be there, to try to get it right.
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it is just an opinion. but if you have it, i think you are obligated to say what it is and why. if you look like a fool, so what? that is the reason you do litany of humility. you do not worry about it. you are humble enough to know that perhaps you run the risk of not necessarily looking like the most acceptable person. >> you described having a sense of the weight of history of what you do and the duty and obligation of the job to get it right every time. on a lighter note, i want to ask you how you escape it weightiness of your job and the cloister of the courts. let's talk about the venerable practice at the supreme court known as the summer recess. you are, as i understand it, a famously collegial group of justices. there are no scorpions in a bottle on this court. all of those really hard and closely-divided cases at the end
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of the term must produce some frayed nerves and the need to separate for a while. is that fair? >> i never have a problem with it. i mean, you know, i do not know. i did not ever have a problem with it. [laughter] >> i get out of there as soon as i can. [laughter] >> the truth is that, actually, we always have a very pleasant visit before the term. there are some people that you want to take your leave from at the end. >> you have a different way of unwinding over the summer recess. some of your colleagues retreat
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to teaching excursions in europe and so forth. you have a very different style. >> i go to europe sometimes, only to come back. [laughter] i would not be characterized as a europhile. i like the united states. [applause] i have nothing against the other countries, but i love the united states. i love this place. i cannot get back quick enough. i am not really anxious to leave. and about the cloistered life, i like the cloistered life. i was in the seminary, you know? i enjoy going in. one of my colleagues called me brother clarence. i love that. i love my law clerks. i love the work that i get to do. it is just wonderful. think about it. every day, i go in and have this wonderful opportunity to do this
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job. i cannot say that is the way i felt at the beginning, but that is the way i am now. i feel blessed every day to have the chance, one more day, to go in and be a part of it. i do not care how hard it is. this is not nearly as hard as being in the field. this is not nearly as hard as thinking beings or stripping fodder or powers. you walk behind a horse in that georgia sun and you do roofing work or sewer work. this is a calling. this is not that bad. [laughter] how can you complain? you get a chance to do what we get a chance to do, i love the people i work with, i love seeing them. some days are better than
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others. my colleague, justice scalia, my friend, i hear his voice in the hall or something. these are my friends. >> talk about your relationship with your law clerks. >> i love my law clerks. i absolutely love my law clerks. i told you before, i had to pick my family. these kids are my family. >> how do you go about hirings now? >> arbitrarily. [laughter] i do not want you to think that i just randomly hired them. i rely on people i trust. the other judges, good friends, clerks. i have taken clerks from friends like larry silverman, steve
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williams, people i know, edith jones. just lots of judges i know, people who will call me and say, this is a good person. they know that i do not care which school they went to. it could be lsu or yale. i hire a small percentage from the ivy's. i hire quite a few more from the non-ivy's, simply because they are smart kids. i try to take them from the south. that part of the country. i prefer kids who come from modest circumstances, whose parents did not have all of the benefits or advantages. that is just a preference. i am not going to bring kids in who disagree on printable's.
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i am not interested in arguing about that sort of stuff. i like kids who are not jerks. [laughter] i require kids to work together and i do not need all of that disruption in my chamber. i have been enormously blessed with the kids i have had. very smart, very pleasant, very hard-working. they brought joy to my life. tomorrow, i will have lunch with about 35. we have monthly lunches. that is one of the monthly high points for me, to see my kids and to see how well they are doing. >> i understand that you take a pilgrimage to gettysburg every year with your law clerks. >> those poor kids, i drag them there. i take them on my bus. i love going to gettysburg. at the end of the term, i think
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people tend to be a little jaded and a little upset about things. i am more of an idealist than i was before i took the job. i want them, after they see a term, i want them to go to gettysburg and think about the price that was paid for this country to exist. thanks to martha ann alito, we saw the wounded warriors today. [applause] it is one of the most heartfelt things that i have ever done, to see young people who have been mortally wounded in the sense of this nation.
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it is hard to see them and not believe that we are doing -- that we have an obligation to continue to do the right thing. what i am trying to do in taking my clerks to gettysburg is to think about lincoln and that horrible war, the carnage that took place at gettysburg. think of all the animals that were killed, all of the human beings, all of the destruction that occurred there. three or four months later, november 19, to dedicate a 4- minute speech or whatever it was, and the things that he said to elevate that tragic moment, and what i am trying to get these kids to understand, after they see a term, after they see the imperfections, that they still believe. that they are still idealistic. even with the reality, they still believe that this is important and they understand why.
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we go and i drag them across the battlefield. the point is simply to pull it all back together after you see how the sausage is made. that you still believe that it is all worthwhile. [applause] >> of course, next week, we will be celebrating the 150th anniversary of the gettysburg address. i do not know if you have some final thoughts on what lincoln's words meant to the country than and what they mean to us now. >> first of all, i would like to thank you and i would like to thank you all for staying so late. [applause] very briefly, lincoln's words mean a lot to me personally because he was a great emancipator.
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i happen to be from the slaves that were affected after the emancipation proclamation. also, i have to say that what lincoln had to say and what he did has affected our country enormously. we know that. but it has affected me too. no 13th amendment, no 14th amendment, no 15th amendment, my life would be different. i would not be sitting here. but in this speech, you hear this voice. it is perfectible. the country is perfectible. not perfect, but perfectible. the war was all about that. when i go into the building that i'll work in now, that is the theme i tried to carry with me and my clerks. it is perfectible. it is worth, every day, getting up and trying to make it right, trying to make it work.
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you cannot do that if you do not do it on principle. it is not necessarily just about your methodology, this or that. it is about whether or not your principles are right and they are the principles of this country. i thank you all, i thank you for this opportunity and god bless you. [applause]
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>> thank you, judge sykes and justice thomas. thank you, in particular, justice thomas, for sharing many of the lessons that you learned in that life well-lived. for those of us younger than me, who will be the future of this country, we appreciate your sense of calling and commitment to that calling to help perfect our union and to do it without hatred for those who oppose us and with cheerfulness. thank you again for your service and your lessons. the dedication ceremony for bust inton churchill the nations capital.
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later, two female u.s. senators on how they are able to work together. on the next washington journal, congressional reporter discusses efforts to raise the minimum wage. your e-mails, phone calls, and tweets. washington journal is live at 7:00 on c-span. supreme court justice elena kagan talks about the workings of the nations highest court
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during a lecture at the university of alabama law school in tuscaloosa. >> i have to get used to that title. we appreciate your service in this role. my family and i are welcoming justice kagan to the university of alabama. we are honored by your presence. i want to give you first a few vital statistics about our speaker. she was born in new york city. she received her a.b. from princeton. then she went to oxford where she was awarded a masters of philosophy. then she got a jd from harvard law school. after law school, she clerked for a judge in the united states court of appeals.
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then she clerked for justice marshall. then she became a law professor at the university of chicago. she went from there to serve at president clinton's administration in several roles. then she went back to teaching at harvard. she was subsequently named as dean of harvard law school. she was the first female dean of the law school there. in 2009, president obama nominated her for solicitor general of the united states. she served in that office for a full year. she was then nominated as an associate justice of the supreme court. she took that position in 2010
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and she fill the vacancy left by justice john paul stevens after his retirement. he was our last lecturer here at the law school. i brought this along so i could read it. this year, in time magazine, she was named one of their 100 most influential people in the world. i want to read to you what they had to say about our speaker today. it starts off with elena kagan, the persuader. people love to talk about the swing vote, but the truth is that every supreme court justice has only one vote to cast. what makes a justice influential is the ability to persuade others to agree. that depends on the effectiveness of the justice. in that respect, elena kagan has
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what it takes to be a highly influential supreme court justice. she has demonstrated herself to be an incisive legal thinker, both in her written opinions and her questions for the bench. she is also an excellent communicator with a crisp and direct style that will make her persuasive, not only among her colleagues, but among be court's broader audience. she is an important voice on the court for decades to come. it is our pleasure to welcome our speaker and have a conversation. justice elena kagan. [applause]
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>> can i think everybody first? i just want to thank the judge for that warm and gracious introduction which i hope a little bit of it is true. and i want to thank the whole law school for inviting me here and to the judge for endowing this lecture series. we had dinner last night and i was saying, i do not know how to sit in this chair. i was saying at dinner last night, when i became a justice, i got a letter. it said that i had a lecture series, an endowed lecture series at the university of alabama law school, and the following people have participated in the lecture series. it named all of my colleagues and some of the former supreme court justices and some of the world's greatest non-american justices.
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my colleagues and i frequent lead lunch together. we talked about it and i had this letter and i said to them, what is it about this lecture series that everybody goes down there for? it is true, every law school has some kind of lecture series. but they do not get every single justice of the supreme court. in one of my colleagues said, is a command performance. i said, what makes it a command performance? i got two answers. one is when you said something about persuasiveness and how we judge needs to be persuasive. the word back from my colleagues was that you are a very persuasive man. [laughter] the second thing they said was that people just have such a good time when they go.
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then they come back and each justice comes here and goes back and tells all of his or her colleagues, you have to go down there. each one of us has gone. the warmth in the hospitality and the graciousness that you will show me in the last 12 hours, proof that all my colleagues are right. i will give you one example. the chief justice mentioned that he was a little disappointed and then he came here and had a great time, but there was one thing he did not get to do. that was go to dreamland. so i mention this and i said it wasn't on my schedule either. i am merely got an offer of raise -- of ribs to take back with me, as well as a surprise for the chief justice. huber tends to be a newbie at
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this business, but he seems to me to be a complete professional. you are very lucky to have them. i know about dean's, i was one. thank you judge. thank you to your entire family. thank you to your university community who that has been so gracious. so far at least. [laughter] we have a few hours left. [laughter] we will handle the next 40 minutes or so anyway. >> i must say that justice kagan has been one of the more gracious guest that we have had as you can all see from our first few minutes together. it is a real honor to have you here. i was tempted, listening to the introduction, about all the things you have done, it reminded me of president kennedy's quit about thomas jefferson. harvard law dean, officer in the white house counsel, senior
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apostle -- senior paul c -- senior policy advisor. it amazing to find them all in one person. if i may, i would like to start a question. it will tie our law school together with your own experience. a few weeks ago at first your orientation we had a wonderful presentation. a former alabama attorney general came. and we had a former u.s. attorney general. it was about reopening the prosecution in the 16th street baptist church bombing case that occurred about 50 years ago. i thought the presentations were inspiring. they were inspiring to me as an old guy. i will they were inspiring to all people. you may also know that the offer of -- the author of "to kill a mockingbird," harper lee, studied at our law school.
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i was wondering if there were fictional or real stories that have been meaningful to you over the years? >> what a great question. so i think what i would do is go back a lot of years in my life to when i was more the age of the people sitting in this room. i had graduated from law school and served one clerkship. then i had the chance to go to the supreme court and serve another clerkship with thurgood marshall. it was one of the most meaningful, incredible years of my life in many ways. it is a special thing to be a clerk on the supreme court for absolutely anybody. you are there in the building were all of these important cases were decided. you have a sense of the importance of the institution. and the small role that you play in it. it was something beyond that to work for justice thurgood marshall.
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he was approaching the end of his life. he turned 80 the year i started working for him. he had a few more years on the court and then a few years after that. he was in rickety health. he was maybe even more so than he had been early on in his life, taking stock of what he had done and what he had accomplished and what it all meant. for clerks that year were privileged to sit there in his chambers and listen to him. he was telling his stories about his life. we would go into his chambers everyday or every other day and we would talk about the cases. we would do the typical thing that clerks do with judges. at a certain point in time, we said all that we had to say about all of these cases. he was put into a storytelling
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mode. he was the greatest storyteller i have ever heard in my life. in a year of telling stories, pretty much every day, i don't think he ever repeated a single one. he could make you cry, he could make you laugh, he could do anything at all with you. but in addition to that, he had some awfully good material. [laughter] the material of his life was so thrilling and inspiring to think about what lawyers could do to advance a society and make it more just. to make it more equitable for all people. some of his stories, i think when i went to clerk for him, i was more familiar with his appellate work in his work at the supreme court. he was a great appellate advocate. i am making this up a little bit, but he had something like
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30 cases that he had one almost all of them. everybody well knows how magnificently he carved the strategy of bringing down the system of separate but equal and bringing down the system of jim crow. he knew he could not do it all at once. he understood how to get a court to move towards an end result is little bit at a time. would allow the naacp legal defense fund to make incremental arguments, the kind of cases that the court is going to accept. and that the legal defense fund would win. i know a fair amount about that, but i did not know he was one of
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the greatest trial attorneys of his time as well. he spent enormous amounts of time crisscrossing the state of the south, representing a wide variety of people, mostly in criminal cases. and frequently in capital cases. and he was subjected to incredible danger himself. he would come to town and it was not clear that he was going to be safe. and of course, the indignities of traveling in a place where you could not stay at a hotel. you could not eat at a regular restaurant. and then representing why people before all-white juries. it was not clear that anybody had justice in mind.
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the stories that he told us of those cases, it all came back to me the summer i read a very fine book. it had just won the pulitzer prize. it was called "devil in the grove." it is a gripping story. it reads like a whodunit. it is about him and the incredible lawyering skills that he had. and the great ethics that he showed in all of his work. he was a great lawyer and a supremely ethical man. i guess he is the person -- it is important that me and my clerks, we were poor kids who
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have not experienced anything in the way of discrimination. to be exposed to that at that time of my life day after day, it was an experience that changed me forever. it made me think about the potential of law in a way -- i hope everybody in this room does. >> that is very interesting. we got some insight into your beginnings. some of your earliest experiences as a lawyer was there with justice marshall. i would like to ask you about -- >> it has not changed that much. [laughter]
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>> that is something we are interested in. through the years, in a serious way, you have seen the process from the outside. i understand that when you were in the clinton administration, you are involved and assigned to work with ruth bader ginsburg and in connection to her confirmation hearing. then i read a law review article that you wrote for the university of chicago. it was critiquing a book about the process. now you have been through the process yourself. i wondered if you would comment on your thoughts on the nomination and confirmation process. >> sure.
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you know, i had a good time actually going through the process. i will say a little bit about why. notwithstanding that, i think the process is sort of broken. everybody agrees on that. it is hard to see how to fix it. i will tell you a little bit about why i had a good time going through the process first. the part of the process that the public sees is the confirmation hearings. the two or three days were the nominee sits in front of the judiciary and answers questions. each senator gets a half an hour and it goes one by one. then it starts all over again. that is an extremely important part of the process. it is the tip of the iceberg. before that happens, the nominee does visits with individual senators. they're called courtesy visits. i did 81 of them.
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my colleagues, justice sotomayor, i think she did 92. 81 senators, i went to them one by one to each of their offices. some of them would just be kind of meeting great, 10 minutes, you take a picture and say hi, you go your merry way. others of them were extremely substantive and interest in serious conversations. senators would try to figure out what you were all about. and what your approach to the law might be. and for the most part, i enjoyed all of those conversations enormously. there were rules about what you could and could not say. sometimes it was difficult to figure out what the boundaries were. it was a little bit of a challenge. but for the most part, these were called courtesy visits for
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a reason. everyone was very gracious. people knew that they were going to vote for me. people knew that they were going to vote against me. there were relatively few people who were undecided. i enjoyed them. i enjoyed putting names to faces and seeing what these people were like. i enjoy conversing with them. that was pretty much it. then you get to the hearings themselves, and i have to admit to you, maybe it will be obvious after today, i have to admit you to -- it meant to you that i am a little bit of a ham. [laughter] i was nervous going in. all the lights are on you. the first day, when i gave my opening statements, because you are on tv, you get professionally made up. we had to notch down the makeup on the second and third day.
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you definitely feel like you are in the center of things. there are tons of people taking pictures of you. as it got underway, senator leahy was first. then your senator was next. once i got through those two, i thought, i got this. [laughter] it just seemed as if there were words coming out of my mouth that seem to make some sense. in a way, you are very much in control of the thing. they are very polite. they do not interrupt you. they let you say what you want to say. and i love talking about law. [laughter] i had a good time. with all that said, i think the senators are very frustrated by the process.
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they basically want to know how you are going to decide cases. that is what they want to know. i do not blame them for wanting to know. that is an important thing for them to know. how we decide the next abortion case. the nominees are not going to say that. the nominees, to a certain extent, cannot say that. there are clear ethical boundaries that the nominees cannot cross. and to be frank, there are some things that even if you could say, you would not say them. as a nominee, your goal is to get through the process. it did not seem to work out all that well for judge bork when he was open about absolutely everything. [laughter] all of us, since then, have
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stopped short of saying what the senators would really like to know. i don't blame the senators for being a bit frustrated by that state of affairs. as a result, i think the senators, and i say this of both parties, the people who work for you and the people who are against you and the people who are trying to figure out which is which, maybe least of them, of the people who work for you and the people who are against you, it becomes a little bit of the theater. it just becomes a place for all of them to make their statements about what they think about the courts and the issues. the court decides. it becomes political theater and you are just sitting there. you are the excuse.
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you are the excuse for both sides. for republicans and democrats alike to do their set pieces and make their speeches. that doesn't seem all that helpful. i totally understand why it has come to that. why senators may feel frustrated. i do not know the answer to the question. some people say we will just get rid of the thing entirely. i think senators have every right to see who it is that has been nominated as you try to get some sense of who that person is and how they might approach the job of a judge. it is hard to make the hearings themselves really work. >> if i could follow-up on the workings of the political process, one of the things that is different about you as compared to some of your
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colleagues is that instead of the normal way of coming to the supreme court -- progressing through judgeships -- you worked in a clinical job. you were one of president clinton's senior policy advisers. how did that experience affect you and your service on the court? >> the chief worked in the reagan white house. he worked in the reagan white house. justice scalia worked in the reagan justice department. i worked in the clinton white house. in the clinton justice department. maybe i am missing somebody. i think the chief justice and i are the only people who worked in the white house. i think it is a different job. when i think about those four years of my life, it was the
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equivalent for my colleagues. it was a very different job. one of the great things about lawyerly careers and my career is that at different points in my life, i have worn different hats. i have done different things. i have different responsibilities and obligations. when you are working in the white house for the president, and i have worked both as a lawyer and is a policy person, you're mostly thinking about policy and politics. as a lawyer, you are thinking about law too. but always with some politics attached to it. your job in the white house is to marry law and politics. i cannot imagine any judge describing their role that way.
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it is not to say that law is a science or a mechanical enterprise. you obviously know that it is not. we disagree on many things. sometimes we disagree incredible ways that follow from -- predictable ways that follow in our own theories of how to interpret the law, constitution, statutes. all of those are so different in thinking about policy and the way people in the elliptical branches do. that was when i was in my 30s. it was a different role. it was a different set of responsibilities. as the judge, i think about law and what i am doing and what i am called upon to do in a very different way.
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of all the things in my life that affect what i'm doing now, i honestly think that affected the least. one thing that i bring to the table from those years is an understanding of how certain political processes work. sometimes it is relevant to particular cases that we may hear because of course, we do review a lot of executive branch decision-making. but other than that, the ways of thinking and the goals of what you are doing are pretty divergent. >> let me expand that a little bit. at the trial level, the theory is that diversity of all kinds
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on a jury will help in fact finding. jurors from different backgrounds all bring different life experiences to the table. that is what you are talking about today. there's been some talk in the press and other places about the lack of that kind of diversity on the court. is there any room for a theory that more diversity on the supreme court would be good in legal decision-making, as opposed to fact finding? >> i do think -- i would like there to be a more diverse court in some ways. the way in which i think you are very polite not to say so, but the way in which the court is not diverse is that this court
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is a very coastal and urban and elite law school court. you know, a tremendous number of life years of the justices on the court have been spent on the acela line of amtrak. it goes from boston to new york to d.c. if not there, maybe there is a little bit of west coast. but there's not a lot in between. a few justices grew up in indiana. justice thomas grew up in georgia. but they spent most of their professional lives in washington, d.c. the rest of us are pretty eastern or california. all of us have gone to the same two law schools basically.
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it is just one of these weird flukey things that all of us are graduates of harvard or yale, except for justice ginsburg who spent one year at columbia. that is crazy to me. it is not a good thing. i would say this, it is not a good thing for reasons other than that the cases would come out differently if it were more diverse. diversity is good because we are an important institution. there are nine of us. when a nine person institution looks more like the country, it has greater credibility. people can identify with it a little better. those things are important for an institution. i would say the same thing about
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why it is important that we now have three women. it is a great thing. my colleague, justice ginsburg, she always says, what about nine? [laughter] i think it is a really good thing. i look out onto the court room all the time and there are all of the school children who come in, school groups, and i think, it is a great thing that young girls and young boys are seeing me and justice ginsburg and justice sotamayor and none of us are shrinking violets. they are watching us and the fact that we contribute in the exact same way as our male colleagues do. that is terrific. i think it would be good if we were diverse in some other ways that i mentioned for the same exact reason. but i do not think it makes all that much difference in the conference room. when the doors are closed and we
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are deciding cases. i am not going to say that it never makes a difference because i do think there are particular kinds of cases where somebody might have a very strong intuition about the way the world works that comes out in the decision-making process. i think in particular about a case a few years ago when i was a solicitor general and justice ginsburg was the only woman on the court then. i think she had a very different reaction to a case involving the strip search of a 13-year-old girl. there are occasional cases like that. they are rare. i think when a door closes and we discuss cases, there are three women there. it does not make difference to either the women or the six men. i think that is true most of the time. it is not to make the decision- making process different.
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it is because we are a public institution. we are supposed to be the eyes of the country. it is important that the entire country can see -- to be able to identify a little bit more. >> you referred a couple of times in those remarks to the decision-making process. that process is a deep mystery to the outside world. what can you tell us about it? not only how it works, but for example, how you observe your colleagues changing their minds about cases along the way? what makes the difference? >> people do think hard along the way. because they think hard along the way, sometimes they change
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their minds along the way. the first thing that you get in a case is the brief. the briefs are the first and most important thing. especially in terms of one's thinking about the case. if you are doing appellate work, i suspected as much the same. getting your argument down in the most persuasive form. in the written materials that you give to the court, it matters the most. that is where you are really going to start thinking about a case and the arguments on each side. that is the most important thing. and we have oral arguments.
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you can lose a case in oral argument, you can win a case in oral argument, but rarely both. sometimes i will go into oral arguments and have a kind of lean, and the oral argument will confirm that or it will make the draw back and say, maybe i am wrong. maybe i need to look at this more. maybe i need to figure this out again. the oral arguments can make a difference. they are also important to the supreme court for his strange reason. it is the first time that the justices talk with each other. in some courts, especially overseas, the justices talked before they hear arguments. we do not. part of the argument is communicating with your colleagues about what you think
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about a case. in conference, when we sit down together for the first time, we follow a pretty stylized format. we go around the table and everybody speaks once before anybody can speak twice. if you are like me, eight people will have spoken and cast a vote by the time i get to say anything. that means if i want them to think about a certain thing, if i have what i think is a bit of an unusual take on a case, a take that has not been presented so much in the brief, i will try to use oral arguments to preview it, if you will. i am trying to get people to think about it. many of my colleagues do the exact same thing. sometimes you feel sorry for these lawyers. they are standing on the podium. it is kind of an excuse for us to be having a conversation with each other.
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you can tell that the lawyer is a little bit like, i have some points to make too. [laughter] we're like, too bad. [laughter] >> i think some law students can identify with that. >> then we have conference a couple days after oral arguments. i like that. a lot of appellate courts around the country, people go into conference right after the arguments. i like the fact that we have a couple of days where we talk about it with the clerks, i talk about it in one-on-one conversations, and we mull it over. it works for me. i mull it over, what i have heard and what i am thinking. then we go into the conference room and it is just the nine of us. we have no clerks, no
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administrators. the chief justice starts things off. he frames the case and reminds everybody, here are the issues and here is what we need to decide. he is the first person to state his views. he casts a preliminary vote. and it goes around the table. in seniority order. so i always speak ninth. it is actually better than speaking eight, 7, 6. it has a certain drama to it sometimes. [laughter] and then sometimes, but not always, free-form conversation breaks out. my first conference, i thought it was the weirdest thing. we came in and there was an important case. it was the kind of case that
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would appear on the front pages of the newspapers. the second case, nobody -- not a newspaper in america would write about this case. it was a very complicated procedural case. the first case, we went around the table and each of us siad his or her piece. it was one of those 5-4 cases. it was 5-4 and the chief justice said, next case. we did not say anything else. the next phase, we went around and it was really hard i complicated and nobody knew what was going on. then we went around the general conversation broke out. we talked about this case for a good 40 minutes. i went down and i thought, this is the strangest thing i have ever seen. this really important case, 10 minutes. this case that nobody has ever
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heard of, 40 minutes. what is that about? as i thought about it and as i have experienced more cases, i realize that there are some cases where you can talk until you are blue in the face. in the end, people might think it is interesting. they might think that you did the best you could for that argument. but they are not going to be persuaded. there are cases where we are not going to persuade each other. there are two different ways of looking at this, or three. in the end, talking probably will not change that. there are other cases where talking can change a lot. people can start thinking about things in an entirely new way. i love those cases. i love cases where people do not have strong priors. they are really susceptible to arguments and persuasion. i like the feeling of being persuaded myself. i like the feeling of persuading others.
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it is not true of every case. there are some cases where we just disagree. we know that we disagree. but there are lots of others and some are less important. some are more important. we are really trying hard to think about real issues, complicated issues, issues that people have not thought about before. issues that people do not have going into -- do not have convictions on. i love that process. >> these law students are reading the final results. from reading some of the opinions and some of the language, some of them and some people may have the idea that there's a lot of animosity among the justices. what has been your experience on a personal level? >> this is the thing that surprises people the most.
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you are exactly right, judge. sometimes you read a majority and then you read a dissent and you think, wow these people must hate each other. they are throwing things at each other. they are close to calling each other names. the truth of the matter is, we like each other quite a lot. i think it is a testament to the institution and the way it works, particularly with the chief justice, that the institution runs this way. we actually a very collegial court. we have very firm friendships. enduring friendships. possibly the best friend, the best friendship on the court, is between two people who no one usually put in the same category. it is between justice scalia and
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ruth ginsburg. they've been friends for decades and decades. they share a new year's eve dinner together every year for all that time. they really love each other. i think that is -- i think we all like each other and i think we all have enormous respect for each other. i think we all believe in each other's good faith most importantly. that is not easy every day. it is not easy on cases that you really care about. you think that there is an obvious right answer to them. you have to listen to a colleague who has come out in the exact opposite way. you must not entertain the possibility -- it is hard
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sometimes to realize that people, two people can approach the same problem in other good faith and diverge so dramatically. i think all of us know that it is true. one of the important lessons of life in the law and something that the court really depends upon is understanding that. i think we do. i think there've been historic periods where that is not true. there's been dislike and disrespect. there've been pathological hatreds on the court. i read a book by a former colleague of mine called "scorpions." it is a fascinating book.
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it is about four supreme court justices, all giant figures, who were all appointed by the same president. they were all appointed in some respect to do the same thing, which was to save the new deal. they were roosevelt's appointments. a justice from alabama, justice jackson, justice douglas, they were all appointed by one president within the space of a few years. it was a particular thing that he hoped his justices would do. but then it turned out that these justices were serving years and years and years and different cases come before them that have nothing to do with the reasons that franklin roosevelt appointed them. they go in all kinds of different directions. they develop all kinds of different theories about how to interpret the constitution. in the case of those four, they develop real animosity between
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themselves. it was justice frankfurter who said about justice douglas that he was the second most evil man he had met his life. leading everyone to think, who was the first? [laughter] but i'm really happy to say, i am really happy to say that this court is nothing like that. it was really a joy to come into the institution as a newbie, a junior justice, as my colleagues often remind me, but i do have an example in front of me. the chief justice really sets the tone for the institution. that is a great thing. >> you mentioned justice scalia. i had her stand that you have a
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friendship with justice scalia as well. >> i have. i knew justice scalia before he came on the court. he is a total crack up. i love the guy. he is such a good guy, so generous, so warmhearted, i love spending time with him. he did me a big favor. if you don't mind, i am going to tell the story. this goes back to your first question about the confirmation process. when you go through the confirmation process now, at least if you go through the way i go through it, there is the nominee of a democratic president and if you characterized by demographics, i think they would say that i am a jewish woman from new york city. i am not known to have particularly strong feelings about guns maybe. when i went to all of these courtesy visits, the question i


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