tv Retiring Justice Anthony Kennedy on Legacy and Court CSPAN July 31, 2018 6:50pm-7:29pm EDT
affiliates as we export america. -- explore america. >> supreme court nominee brett have now continues to meet with senators on capitol hill. follow the -- cavanagh continues to meet with senators on capitol hill. watch live on c-span. watch anytime on c-span.org or listen with the free app. night circuit judicial conference held, justice anthony kennedy talked about his decision to retire from the supreme court effective today. this is 40 minutes. much.nk you all very what a great privilege it is for andof us to be here particulate for us to be appear on this stage with the justice kennedy. as i mentioned monday, this is a very unique conference. justice kennedy is our
representative. you will see something in a moment and he has been with us at these conferences and has been fully supportive of the circuit. this is his last is a sitting justice. he will always be our friend and welcome to come back. with that backdrop, this conversation has special meaning to all of us. i do want to recognize and thank justice's wife, mary, for being here. thank you. [applause] things when you meet with folks you have not seen in a while and in talking to marry i discovered she began her teach -- mary i discovered she began her teaching career in menlo park. i said i live there. and she said the school i worked
at was such and such, and i said do you mean, and she said yes. i said i live right across from that will. life has its moments. you forkennedy, thank being with us this morning. i suppose it is a time of reflection for us, maybe not so much for you as much. i did want to start things off to reflect this, and i hope you will pardon this. you grew up in sacramento. it was a small town. you spent time in your father's law practice, and you shared with us that you read many of the briefs and letters and things at the ripe old age of 10 or 11. you helped your father in his practice. you ultimately were a solo practitioner in sacramento. there were time in the oil fields and army that disrupted those things. you went to the night circuit and then -- ninth circuit and
then was one of the most theuential justices on supreme court. i wonder if you'd care to reflect about that journey and path? >> good afternoon, the morning. wonderful to be back in california. california are still part of who we are. as you indicated, my father was a solo practitioner. to have company. i was not very good attendant school. i would go home all of the time. [laughter] >> they do not have homeschooling in those days, but my mother was a certified exemptions we got and i read at home a lot. whenther took me with him sacramento was a jumping off
point to go to the small counties to the north and to the east. he would let me drive with him and i would work with his papers and read his books -- briefs. when i was old enough, i drove. the law is the story of my whole life. was a very fine, they used to be called attorneys and counselors at law. i still miss my years of practice. i loved to practice. i was a civil attorney and i had an eye problem that was disturbing and i took on partners. had five, i didn't even
know what i was doing so i left for the bench. [laughter] >> thank you. >> the counseling function was important. some people had never been to an attorney's office before. whotime i had a client had a very successful business, yet he lost his wife at a young age to a tragic illness. 18, 17. were 21 and i kept saying you have to come in for the estate planning. said that i leave all to the littlest one and he will take care of his brother and sister. i wasn't going to do this. you don't just say no at once. you talk, and it wasn't going far. and i said there is something i want you to read over the weekend and then give me a call. i went to the bookshelf and i gave him king lear.
[laughter] he said we are going to do it your way. and i said, no, it is your way. my office was not far from capital park. the client would come to me and we would go through the options to leave the employer or soup or whatever. ue or whatever. i said go to the park and then come back and tell me. i saw sumon reza in they said they still remember the walk in the park. i never thought about the bench, but it came out that way. congratulations to you, judge, for being on the bench. >> that goes to my question. >> that handshake will get you
far. >> try it again. room, tell in that us about what it was like to get the call that you are nominated. share with us what it was like for you receiving that from president reagan. >> i had just returned from sitting on theas high court for the samoa, the only court that passed several laws that can't be reviewed in any other court. i got a phone call at 2:00 in the morning that they wanted me to come back to washington, which i did hea. i met with the president and knewwas before -- and i when i was traveling with him with governor, i said i really don't want to come back.
all of our kids were in california, the youngest was a sophomore in college. justin was just out of college. we knew they would never come to washington. i said i don't know anybody back here. he said, you know me. [laughter] i said what are you supposed to do come to lunch everyday. nancy, they-- always said that washington is mary's kind of town. mary would be good for washington. he had good instincts about people. he used to tell me, and i said i tell you the rules. he said, oh, no, the rule is. he said -- i said are you going
to tell me the role again? moved to theds east coast. >> with frequent flyer miles to go back to see the grandkids. it turned out very well. >> justice, we know you love teaching and that teaching is a big part of your career for many years. you taught summer school. tell us about how you got into teaching. i understand there was a transition that you are expecting. justice
i i wanted to teach. i said, what do you mean teach? i can barely complete my work. said, after a couple years -- night law school. oldest night law schools since 1905. i said, maybe after a couple years i could teach corporations and contracts. they said, no, next year, we want you to teach constitutional law. constitutional law? >> what did you get paid for that? $1.5 for a dollar or 1500 books. it was a lot of money. the interested i teach con.
town.n't teach or leave i began. i wanted to do it for two years to get the thing right. then the warren court started coming out with decisions in the criminal procedures area. gideon, miranda, escovedo. i have done some criminal work, but other lawyers hired me, especially for the pretrial stages, that they take all these new cases. my appearances were in the criminal system. what happened was con law teachers said, we can't teach marbury versus madison and the first amendment. they said the almost uniform
solution was to take the cases out and call it criminal procedure. rehnquist and o'connor had never heard of criminal procedure. the thinking is sometimes affected by courses you had in law school. they thought of every case as a case of exercising federalism. should we extend the federal power to the state courts? in a more modern era, we think of unified seizure as a -- unified procedure as a whole. aught for 1965 to 1988, night law school. timeaught for 1965 know you spe fields, working in the oil fields, working in the oil fields, a stint in the army. i know you have a very fondness individualworking
and the struggles they go through. could you tell us what, if there is something? justice kennedy: well, there is a lot of wisdom in the working man and working woman. >> dollars that inform your jurisprudence? justice kennedy: it makes you realize there is a person be hind the whole idea of the law. my father was in the oil business. he was lonely. i went within in the summer. -- with him in the summer. in the oil fields, they had what they called a dog house, a tool shed. they wanted me to nail the siding on. i had my hat and overalls. at 10:00, the foreman came over. i said, i am going to show this guy. i nailed my glove into the wall,
and i couldn't get it off. >> [laughter] justice kennedy: hey, things are going just fine. i left the glove on. he said no, you leave the glove right there. so of course every salesman was shown the glove. >> [laughter] >> looking back at your judicial career, would you share with us, if you have an opinion on one of the most significant decisions you were a part of? i will let you define significant in whatever way you feel. justice kennedy: more important for other people to say than me. the whole idea of written opinions is we give reasons for what we do. say the courts, particularly the supreme court
is an anti- majoritarian institution in the system. that might be true at the moment a decision is made. but if you give the reasons in a proper way, pretty soon the people begin to understand. those decisions become accepted. over time, i think the supreme court is a majoritarian institution. the majority of the country begins to see that these litigants, these people, real people, had a real injury that the court addressed. and our system, our commitment to the rule of law, our suchtment to decency is that i think most of our decisions are accepted over time. i talked about the flag burning
case, maybe one of the first hard cases. lawrence versus texas, it was a case in which there was a generational divide, white rehnquistrehnquist and stevens l fought in world war ii. they were horrified by the flag burning, as were we. it was 5-4. i wrote a short opinion, saying it is poignant but fundamental. i was visiting the children -- i think it was just the two boys at the time in california. they were eating breakfast on highway 80, someone came up and said, are you justice kennedy on the supreme court? i thought, this is some c-span junkie. >> [laughter]
justice kennedy: he said, i want to tell you about this flagburning case. i said i am an attorney. i am a solo practitioner like you. i live there with my father, i out --ur decision came he said, you should be ashamed to be a lawyer. -- he shhe said i did not know whao do, i gave him a copy of your opinion. he said he was a prisoner of war for three years in germany. they used to make a little flags,they used to make a little flags, red, white and blue cloth. find them would
that's the dynamic, that's how it works. that's the dynamic, that's how it works. >> justice, justice kennedy: has the judges know, my case is called senior status. it means you are still a sitting judge, you still have the chambers in the secretary and the clerk, but you take a reduced work load. in my case, i am still at senior status. i will be doing special assignments for the chief justice and maybe sitting on other circuits and doing judicial work. it is an interesting matter of history. chief justice rehnquist really
wanted precision. a 4-4 case really bothered him, as it should. is -- if one of usprecision. is recused because of a financial interest or someone involved in the case, or you are out of the case, and we are 4-4, we wasted a tremendous amount of time. the system still needs an answer. iswe only take cases to get the system an answer. his idea was a senior justice could sit if there was a recusal so we would not have an eight judge court, we would have a nine justice court. my recollection is that he felt he could do this just by rule, and not by statutory change, because we have senior status. i was very much against this. i thought it is important for people to know who is on a court. the court of the european union
in luxembourg has -- what is it, 27 countries in the eu? no one knows who they are. in fact, you go to czechoslovakia -- the czech republic, hungary, and you say , who is your justice on the court? they don't even know there is a court in luxembourg that has control of their lives. so we have to be transparent. theought this would blur transparency you have and lower the accountabilities you have for your decisions over time. i thought it would lead at least to the suspicion, even if unfounded, that some people voted for a case knowing one of the justices would be out so the senior justice can take over. justice brennan ultimately sided
with me. senior status -- we can do many things, but we cannot sit on our court. >> you will have some time, can we expect a book soon? justice kennedy: well, i don't know. [laughter] my habit is to give speeches, and not text. i want to see if i can get some of my speeches together. we will see. >> we are happy to receive your comments. this conference is comprised of judges, new judges and seasoned judges, like my colleagues i see out in the audience. i just wonder, what words of wisdom could you impart to make us better judges? justice kennedy: to begin with, a trial judge -- it was always my impression that i would have been the world's greatest trial
judge. i did not do much work and practice as a trial judge. warren burger would not allow us to be assigned to the district court. we only had 13 judges on the ninth circuit, one of which found it difficult to work because of age. we had a 4500 case backlog. we were sitting with judges from all over the country. my first 18 months on the court, my recollection is i sat with four four score of judges. we would line them up, we had senior judges, judges from the court. they became my good friends. you can't be said, sending all these judges. he did not allow us to go to the district court. i did try a few cases in guam saipan.
saipan. trial judges, as all of you know, have to do some very difficult things that we don't. number one, they have to determine credibility, sometimes with help of jury, sometimes not. dober two, you have to sentencing, which is a very difficult task. my only advice to the judges is the advice i would give to people who are not judges, always re-examine the principles that are motivating you to act. the judge should always ask himself or herself, why am i about to do what i am about to do? what is the principle? you owe it to the parties who have argued before you not to have a preconceived notion. this is not indecisiveness, it is fidelity to your oath. even if you have done something 100 times, you have to ask in each case, why am i doing this?
in law school, the whole dynamic is you ask the student what an answer should be, then the student has to give a formulation. semantic terms of what the principle is, and it has to accord with the rules of grammar, or logic, and common sense, the constitution and the law, your sense of ethics. any at any point -- if at point you see a problem, you have to go back and do it again. our job is reflective when it is allowed to be. >> what are your current thoughts about some of the practices of the supreme court, the circuit, or the lower court that we might consider at this conference for our entire point of meeting to discuss how to better the administration of justice? justice kennedy: not a long list of specifics. i think three-judge district courts are quite unfortunate.
incidentally the late judge stephen reinhardt shared this view. the last three george -- three-judge court i had was at the california state prison, and they did a very good job. structurally, it doesn't make sense. it is reserved for the hardest cases, particularly in gerrymandered cases. we have a three-judge district court. we get it without the benefit of an opinion from the court of appeals. the idea is it is for the most important cases, but it means for the most important cases, we have the least information. i definitely don't think we should have three-judge courts. maybe i will talk to the congress about it. another thing i will talk to them is conferences. i did the budget for the courts.
there were some controversies at circuit conference in hawaii. i said, a, the airfares in the hotel are competitive anyway. it doesn't cost that much. our attorneys are gracious enough. they pay their own way. i said we do this to see our constituents. the judges see the district judges, the district judges see their lawyers. lawyers think the judges are their constituents as well. i said if you want to rule, and we're going to have this conference, you can see your constituents only once every two years, congress can save a lot of money. so they never asked me another question about it. the last panel talks about the pacific.
have judges from the federal states of micronesia, coming from guam, samoa, they have to travel further to get to hawaii, even from where they are. they not only look west toward the mainland -- they are so proud to be american -- but they also look east. they are our frontier. i think we should be very conscience of the tremendous service and dedication to the rule of law that our fellow judges among lawyers, and citizens have in guam and the pacific. did you know we have more ships in okinawa in world war ii than in normandy? we have a tremendous investment
in the pacific. it is where we can begin teaching the meaning of the rule of law.in the pacific. >> i have been a criminal defense attorney most of my career. a lot of people don't realize you had an actual practice that involves criminal defense. you have a story to share about one difficult client, trying to arrange a field trip for that client. can you tell us about your feelings of when you were in practice? 60's, itennedy: in the was thought of as unethical to have a plea agreement. then there would be wink, wink, nod, nod. i thought there had been an arrangement. the state assistant district attorney didn't follow through with it. i told him i would never plead guilty again. i was able to get the sentence reversed.
plea agreement are closer now. part of the dynamism, it means the government sometimes overcharges. what thequite sure dynamic ought to be. what was the other part of your question? >> a field trip for a difficult -- >> when you represent clients, when you go through certain stages. in white-collar criminal cases, they come to you -- you can take care of this with regulatory thing, it is not a big problem. then you get serious, and he gets mad at you. after that, you begin to tell him, and the client begins to cooperate and sees the gravity of the situation. i had one client i couldn't get him to stage two. i took him to the sacramento county courthouse, pushed the elevator button for the third
floor, and i showed him all these cubicles. i said, these are all the people working on your case. so that got his attention. [laughter] >> justice, it has been a great privilege and pleasure for us to sit here and chat with you. we are going to yield the floor to you, sir, and invite you to make any closing comments. justice kennedy: well thank you, very much. >> you can use the lectern. justice kennedy: like when i used to teach? >> yes. justice kennedy: thank you very much and congratulations on your conference. it was fascinating.
the law is an essential instrument for learning who we are. some years ago, i was teaching at the school for judges in europe, which is in the netherlands. in europe, if you wish to be a judge, you begin almost right out of school. you begin as a hearing examiner. you don't come from the ranks of the practicing bar, like we do in the anglo-american system. i was teaching at the school and a young lady raised her hand and said, how can i be a good judge if there's still so much for me to learn concerning the world around me? people were quiet. it was one of those questions you did not expect. and i said, if you always ask yourself that question, then you will always be a good judge.
europe is the place where i think we must always remain close to. concern to me that we seem to be drifting away from europe. we cannot be islands unto ourselves. europe is part of our heritage and we must remain close to them. not long ago, at my request, we had a conference with ambassadors in the eastern european countries and i asked each one to bring a judge who they most respect and one attorney to the small conference. then i met with a young attorney , after which he said there are two tragedies in my country. one tragedy is the rule of law is slipping away and the other
is most people to know about it and few seem to care. we must always care about the rule of law. that's why we have this conference, and why it is so successful and so important. years ago, one of my favorite books, we didn't get to talk much about prison reform. where did my panel go? they all left. >> [laughter] >> we didn't get to talk much about prison reform. i think it's very high on my agenda of things to do. i think solitary confinement is wrong. our sentences in this country are eight times longer than sentences for comparative clients in western europe. we must always think about improving the rule of law. there's one one of my favorite
books -- a wonderful writer. later in his life, he said some bizarre things. he was invited to give the charter day address at harvard. harvard thinks that is like getting the nobel prize or something. >> [laughter] justice kennedy: this was pre-fax days, so i had to wait for a couple days for the new york times to get the text of his speech. it said, he spent much of the speech attacking the west for its attachment to the law. he said, any civilization that defines the tissues of existence in legalistic terms is doomed to spiritual mediocrity. and i said, this was my hero. then it became clear to me that law for him means something different than what law means for us.
for him, law was a dictat, a decree, a mandate, in order. for us, it is a promise. it is the promise of liberty, the promise of freedom, the promise that we can plan our own destiny. that is what we do as lawyers, as judges. that's what we do at this conference and i congratulate you for being here. thank you. >> [applause] [laughter] >> i would not sell yourself short as a trial judge.
didn't you preside over the trial of hamlet? it's on youtube if you want to watch it. it has been so wonderful having you as a circuit justice. i think this is your first conference, her last conference, and you have been with us since 2007. as we said in my opening remarks, he was conference chair two times, which is a feat that i don't think that has been replicated. of your attendance at all of our circuit of your attet all of our circuit conferences, we have a poster we will unveil. the quotation on the poster is -- are the remarks you gave in hawaii. you were under intense criticism
, as you alluded to. what you said was this, "if the american public knows, and they should know what we do at this conference, they would be and should be immensely proud, not only of the judiciary and the members of the academy and of the bar who are here, but of the idea of law itself." those are wonderful words. us atere inspirational to the time, and we put this on this poster for you, along with the covers of all the conferences you have attended. >> [applause] >> before i turn it over, one of the great heartening things is to look over this audience and see all the young people. the children you brought today -- they are the future.
if you don't mind, justice kennedy, we will gather all the kids who want to come up and do a group picture with you. a commitment to civics education and the future. i'm going to turn it over to you for some final remarks. >> [applause] >> today marked anthony kennedy's final day on the supreme court after serving since 1988. and on monday, we look back at his legal career, why president reagan chose him for the high court, and his legacy in the future. our guests look at key cases he wrote for, and why the court -- and why he has been thought of as the court's swing vote. watch that monday on c-span. >> supreme court nominee brett kavanaugh continues to meet with
senators on capitol hill. follow the confirmation process on c-span leading up to the senate confirmation hearings and the vote. watch live on c-span, anytime on c-span.org, or listen anytime with the free c-span radio app. earlier today, senate minority leader chuck schumer called on republicans to release all documents from supreme court nominee brett kavanaugh's time in the white house while serving under president george w. bush. he was joined by democrats and legal experts during this hearing. morning to one and all on a beautiful summer's morning in washington dc. i had a joke, but i will skip it. it relates to d.c., but another time. i want to thank my dear colleague,