Latest Breaking News On - Douglas adam - Page 1 : vimarsana.com
candidates is a first amendment fundamental right. it says that i was quoting buckley i'm sure or citing buckley to that effect. then the question becomes what level of scrutiny should we apply to that case? buckley suggests it's something less than strict strikeout me in the first amendment context for contributions. that's the instruction that i as lower court judgev in the first amendment context. but this was an equal protection challenge okay, saying it's not just contributions it's the inquality of contributions that's the problem here that this system favors major party candidates over minor party candidates. and normally when we have a fundamental right in call protection analysis we apply strict scrutiny. i was placed in a situation where do you take this little less than strict strikeout me out of the first amendment context and import it into the quality protection context or do you apply the normal strict scrutiny. and i pointed to two wonderful pins by judges in the area -- >> okay. all right. i really did read it. here's the -- okay. i understand that. here's the deal. the other judges were happy to decide it on the narrow basis. you write the concurring opinion to bring up this other issue. i think again about justice white, who is your mentor or was your boss and, there is a law review article from the dean of tulane time and time again justice white avoided broad theoretical basis for a decision when a narrow fact specific rationale would suffice. and yet you write this concurrence. >> may i tell you, senator, i'm almost there a. >> oh. >> i'd like to point out this conflict in the supreme court's directions that i saw. >> okay. >> all right. and then i said, in our case, byron white, it doesn't matter, because colorado couldn't meet even rational basis test. forget about whether it's strict scrutiny or something close to strict scrutiny. it couldn't meet rational basis test because colorado couldn't articulate any good reason, maybe there is one out there, i don't know, but i said they have articulated nothing. >> let's continue on now with some other cases because it is a bit of a pattern. not a concurring opinion, but in the hobby lobby case you found the corporations were legal persons and could exercise their own religious beliefs. for me when it comes to campaign finances opens up the possibly in a you would strike down then this idea that corporations shouldn't be given money directly to campaigns. do you think these creatures of statue have the same constitutional rights asiving breathing human beings? >> goodness no, senator. hobby lobby had nothing to do with the first amendment of the constitution. >> but it was about corporations. >> it was. >> uh-huh. >> under rifra. >> you don't think then -- maybe we can end this line here. you don't think that they would have these rights, a corporation would have these rights under the first amendment? >> i don't think hobby lobby speaks to the question of the first amendment at all. what it speaks to is the question of the religious freedom restoration act and what a person is as defined under that statute by reference to the dictionary act which is congress's direction to us when we're dealing with statutes, what words we're supposed to use and what definitions are. and senator, if in rifra, again, if this body wishes to say only natural persons enjoy rifra rights, that's fine. i will buy that direction oochl anot here to make policy i'm here to follow it. >> onto another policy that's pretty important, it's a chevron case. in your gutierrez concurrence, this is where you wrote the actual fin and then wrote your on concurring opinion i noted is better than writing a dissent to your own opinion, but you wrote a concurrence to your opinion. to me, this move, if, as you imply in your concurrent -- you don't imply. you say, it could have titanic real world implications when it comes to our 13500 casesos on the book since 1948. in your book you say you don't overturn precedent unless it is universally accepted affirmed by courts repeatedly and people have extensive reliance on the decision. my question is why you are concurring -- senator feinstein asked you about the case. i got your answer, and that was good. in your concurring opinion you say there is an elephant in the room with us today -- sorry, guys, he wn't referring to the republican party. there is an elephant in the room today, we have studiously attempted to work our awarned it and even left it unremarked. but the fact is chevron and bran x concentrate federal power in a way that seems more unanimous a little difficult to square with the constitution of the framers' design. quote, maybe the time has come to face the behemot. end quote. that sounds to me like again you are going a step further and talking about overturning a major precedent. i want to know if that's what you mean, if you think it should be overturned and if you considered the ramifications of that when justice scalia himself was the original champion of the chevron doctrine. >> senator, all i can do is explain to you why i was concerned about chevron in that case. and i was concerned because, again, we had an undocumented immigrant who was following judicial precedent. >> i really do understand the facts. but i am -- want to know why you did a concurring opinion to your own opinion in order to make this broader sweep and talk about, you said the time has come to face the behemot. you were clearly talking about overturning chevron. >> senator, i'm trying to an your question as best i can. and i was concern about the due process implications that arise in cases like mr. gutierrez where an individual who isn't aided by an army of lawyers or lobbyists, can they anticipate changes in law by agencies back and forth willy-nilly, even to the point of overruling judicial precedent? that's a process concern i raised. i raised a due process concern about the ease with which people like mr. gutierrez can be singled out by way of judicial branch that judges are supposed to protect. i raised a separation of power concern about judges are the ones saying what the law is. >> as a supreme court justice, if you were to make this decision to overturn chevron, would you consider the implications on all of the cases in the u.s. and the rules and the uncertainty that it would create? >> goodness, senator, yes. >> and would you overturn it? is that what this means when you talk about maybe it's time to face the behemoth? >> smart my job as a circuit judge is when i see a problem i tell my bosses about it. like any good employee. and my job there, as i conceived it was to say, hey, listen, look at some of the implications, the real world implications of when we are doing here. >> but you would be the boss if you were the supreme court justice. and what rule do you think should replace sit in should we have denova review? that better. what do you think should replace chevron precedent. >> what preexists was skid more. written by jackson. that's what deexisted. agencies would issue rules and decisions. i don't know what all the consequences would be. and i would pledge to you, i wasn't thinking about being a supreme court justice then. i was identifying an issue for my bosses. if i am so fortunate as to become a justice, i would try and come at it with as open a mind as a man can muster. and i would tell you, remind you who i would bear in mind would be david sentel. when i was with him as a law clerk, issued a panel opinion at the beginning of my year with him going one way. and then by the end of the year wrote for the full court reversing himself. now some people think that's -- that doesn't show a lack of sufficient steel. i think that shows an open mind and lack of ego, that a judge should bring to bear when he or she puts on the robe. and that's what i would commit to you. >> okay. let's go to another piece of this philosophy. that's originalism. in other words, whether words and phrases in the constitution should be interpreted according to their original public meaning or how the founders and their contemporaries would have understood them. regardless of whether you characterize yourself as an originalist you have applied originalism in several decisions including last year where in a separate concurring opinion you stribd the constitution as a, quote carefully crafted text judges are charged with applying according to its original public meaning, which are the buzz words for originalism. criticisms of the principles underlying originalismr not new. in fact i believe some lines from chief justice john marshal's opinion in 1819, let me two centuries ago are still relevant to our discussion of the upon today. he wrote that the founders must have intended our constitution to endure for ages to come, and subsequently to be adapted to the various crises of human affairs. he continued, to have prescribed the means by which government should in all future time execute its powers wouldave to change entirely the character of the strunt a give it the ports of a legal code. it would have been an unwise attempt to provide by immutable rules for exxon gentsies which if foreseen at all must have been seen dimly and which have been best provided for as they occur. he added if we apply this principle of construction to any of the powers of the government we shall find it so pernicious in its operation that we shall compelled to discard it. due agree with the point that justice marshal made in mikilucs? >> well, senator, i would certainly agree that the constitution must endure. and that it's a lot bigger than any of us. and it will live in that sense, hopefully, a very great deal longer than any of us. our children's children. i do think it's important to try and understand law according to its original understanding, public meaning. words have meaning. >> so you don't agree with mikilucs about adapting to the crisis of human affairs? >> no, senator. >> so you do agree? >> i'm trying to answer -- >> i just want a yes or no. that's all. >> these are complicated things that take more unanimous a yes or no, respectfully. what i would say is the constitution doesn't change. the world around us changes. ande ha to understand the constitution and apply it in light of our current circumstances. that's -- that's what we're trying to do as judges. so for example, one of my favorite cases in this area is jones. right? supreme court of the united states is faced with a gps tracking device attached by police onto a car. is that a search. the court goes back look at the time of the founding what qualified as a search? found that that would have been qualified as a trespass to panels in regards to a search. and if that sort of thing was offensive 200 years ago, it has to be offensive. the constitution is no less offensive to the people's liberties. >> when the constitution refers 30 some times to his or he when describing the president of the united states you would see that, as well back then they actually thought a woman could be president even though women couldn't vote? >> senator, i'm not looking to take us back to quill pens and horses and buggies, we live in the 21st century. >> could you answer that question, that's important to me. >> i'm trying to. of course women can be president of the united states. i'm the father of two daughters and i hope one of them turns out to be president of the united states. >> okay. how about the air force. i agree with you. that's good. in that case you say we can't take it at its literally world. then the constitution hayes congress has the ability to oversee the land and naval forces but there is no mention of the air force. and i can assume that you would interpret that to mean the air force? >> i think the generals can rest easy. >> lets a keep going because i'm almost out of time. in united states v virginia, they upheld that virginia violated the 14th amendment. scalia criticized the majority saying the decision is not the interpretation of a constitution, but the creation of one. is the interpretation of the equal protection clause in u.s. v virginia consistent with if original public meaning? >> the majority in that case argued that it was. and the majority said that the words call protection of the laws -- whatever the secret harbored intentions of the writers had an original public meeting was quite radical and significant. and that was what the majority of the supreme court of the united states held. >> you would agree then when you look at other things would you be willing to apply this same approach to call rights for minority groups, lgbt, including transgender people, racial minorities, the same approach we argumented when you just made the statement about the he and his in the constitution. about the not having the air force, about the virginia military decision? >> senator, a good judge applies the law without respect to persons. that's part of my judicial oath. >> so do you see it as your textualism, the original public meaning then, would you apply it to these other contexts as well that i just mentioned. >> senator what i'm trying to say to you is i don't take account of the person before me. everyone is equal in the eyes of the law. >> okay. i'm just trying to figure out this. because i think for some thing a lot of people who subscribe to this theory they say we can have originalism for some cases and not others. i call it leg issive originalism. it seems to me when you look at some of the opinions that use originalism that you have and some don't. >> senator, if i might respond to that. >> uh-huh. >> i'd ask you to take a look at jones again. cilo, in search of a home using a heat seeking device. i woulask yoto take a look at crawford. the right to confront witnesses. maybe as well the presentee and booker line, written by justice stevens, an originalist opinion about right of an accused to be able to have all of the elements of an offense that increases his sentence tried by a jury of his peers. those are all what one might characterize as originalist opinions protecting individual liberties. >> you know what, we can do it on the second round. that will be good. >> all right. >> just some minor things here at the en. when the supreme court temporarily blocks a lower court ruling they need five votes, a practice known as the courtesy fifth has developed this which a fifth justice will provide vote needed to stay the lower court ruling even if that justice might not have been otherwise inclined to do so. do you think the practice of the courtesy fifth is good thing? >> senator i haven't studied that. it would be presumptive of me to offer an opinion in a court i haven't sat upon. >> it may have relevant when this refugee case comes up. so you might want to study up on it. i'm going to -- i'm going to do a lot of work on anti-trust in the next work. i know you are an speaker. senator lee and i have been heading up that committee. imi'm going to enon freedom of press in conhonor of my dad. he was a newspaper reporter his whole life. i'm especially concerned in today's world about maintaining the press's role as a watchdog. our founders enshrined freedom of the press in the first amendment as thomas jefferson said, our first objective should be to leave open all avenues to truth. and the most effective way to do that is through the freedom of the press. "new york times" versus sullivan the court issued land mark ruling in support of first amendment protection force the press by aterming that when newspapers report on public officials they can say what they want. maybe we don't always like that. but they can. unless they say something untrue with actual malice. do you believe, under "new york times" v sullivan, that the first amendment would permit public officials to sue the media under any standard less demanding than actual malice and can you explain to the people here today and those watching on tv what that standard means to you. >> that was a land mark decision. and it change dramatically the law of defation and lie bell in this country. rather than the law of defame apgs and laborel applicable normally for a long time the supreme court said the first amendment has special meaning and protection when we are talking about the media, the press, in covering public officials, public actions. and indicated that a higher standard of proof was required in any defamation or lie bell claim. proof of actual malice is required to state a imclachl that's been the law of the land for, gosh, 50, 60 years. i could pointd point you to a case in which i have applied it and i think might give you what you are looking for senator in terms of comfort about how i apply it. boostos versus a and e network, it involved a prisoner who was concerned he had been misrepresented as a member of the aryan brother'd hao. claimed he wasn't a member, just a fellow traveler. and sought damages for that. our court declined to grant that relief saying that substantial truth is protected even if it's not strictly true, and much more is required by the first amendment in order to state a claim. >> in bransberg v hayes, supreme court case, they didn't recognize the reporter's privilege at least in context of criminal grand jury testimony. could you just ends here by talking about the scope of the bransberg decision and whether there are instances where courts should recognize a reporter's privilege? >> senator, i know those case come up from time to time, so i have to be very cave. but your description of the case is entirely accurate. >> thank you very much. >> thank you. >> before we recess i'd like to enter into the record a commentary in the chicago tribune called crying wolf over neil souch written by dennis hutchinson a life long registered delts. he talked about experience over chevron deference. he writes, quote, there are two sides to deference, my guess is that prochevron advocates will soon be begging federal courts not to deter to federal findings of agencies. ends of quote. enter that into the record without objection. we will recess for ten minutes. that means we will reconvene at 3:31. >> 83-year-old charles grassley of iowa. when he says we will reconvene at 3:31. he means 3:31 and not 3:32. if you don't have many people in your life who come naturally to expressions like gosh and golly, then judge gorsuch is for you. a very earnest appearance, withering testimony from senator klobuchar of minnesota who we may have to put in the no column when it comes down to judiciary committee votes. we are here in the studio during this ten minute break. ari, you are the lawyer among us. how did he do? >> i think he continued to do well. what we saw in the second sequence that s fferent an the first was a few democrats who wanted to go direct low at him raising questions about his propriority, whether he would go beyond the commitments he has made and abouto bean aggressive originalist on the court. and i thought most extremely questions around whether he has benefitted too much from the decisions that loosened up all of this money in politics. that was stinging because the suggestion, which he rebutted forcefully what is that somehow the money that has gone to support his nomination could cloud his judgment as a supreme court justice if confirmed, what would he do about recusal, a word that has been familiar lately in the news for other reasons. that struck me from senators white house bush skpin klobuchar as the most aggressive questioning. and it shows a cleave between the reception we've seen, folks like senator feinstein and lay leely who stayed on the issues and talked about how do you rule and this other bloch who are going at him. >> katy tur, we take this day as part of the whole in the trump presidency. we also broke away to see sean spicer's briefing. >> sean spicer was doubling down on health care, which is if other big topic of the day. donald trump of course earlier visited capitol hill to speak to respect tiffs whether or not they would vote yes on the house health care bill telling them if they voted no they would likely be primaried in 2018. sean spicer was asked about that. he would not say if the president is keeping track of any names. right now, it is unclear whether or not this bill will get past the house and make it onto the senate. so far they have been reworking it every so slightly. to get more conservatives on board. that is one thing that he discussed. he also discussed a moment yesterday in the comey briefing when fbi director comey rebutted a tweet that the white house sent out under the potus account, the potus twitter account, that said that the russians played no part in deciding the election, the outcome of this election. fbi director comey said i did not say that. i was saying the russians did not tamper with voting machines. sean spicer was asked about that. and he said, well, he wasn't really rebutting him. he was answering a question. and then went on to say that ultimately they believe that this investigation will find no evidence and that everybody has been briefed by intelligence sources or those in the fbi and those in the d.o.j. have said that there is no evidence. a bit of a circular argument, though, because right now they are investigating for that evidence. they have just said they don't have any yet. >> pete williams among our family members watching with us. our justice correspondent. pete, your assess men of this afternoon's session? >> senator white house said yesterday he would be asking some tough questions. and he did. one thing was brought up, and judge gorsuch answered it. it's an allegation that had surfaced just before the hearings began. a former student of judge gorsuch's in an ethics class that he teaches at the university of colorado filed a complaint saying during the class he asked wouldn't it be improper of a company to inquire of women applicants whether they intended to get pregnant so they could know in advance whether they were going to take advantage of the company. what judge gorsuch said it was an example, he was using an ethics textbook that raises just that situation. he said it was something that students have to be prepared that they might confront, they might apply for a job at a law firm and the employer would say, well, of women, are you going to get pregnant? if you say no, you might not be telling the truth. if you say yes, you might be being truthful and getting out -- not getting the job. that it was an ethical problem and that he asked students the raise their hands and say how many of you have been asked this question. not that he was approving it but he was raising it as an ethical dilemma they might face. that was his answer to that student's allegation. you know, several times today, brian, he has been asked to say how he would rule on certain cases. and he has done like all nominees, he says i can't really go there, respecting precedent saying several times today that he would -- that he would defer to precedent, including noting that it's the case with row v wade. >> yeah, he has been pretty strict on that count. another break for us. when we come back, more expertise from our panel and we'll go back into the resumption of the hearing. and follow the ancestry leaf far into your family's past. a past filled with stories that intrigue. and inspire. and in doing so, reveal the one unique, improbable, and completely remarkable path that led to you. discover your story. start searching for free now at ancestry.com the search for relief often leads here.s, today there's drug-free aleve direct therapy. a high intensity tens device that uses technology once only in doctors' offices. for deep penetrating relief at the source. aleve direct therapy. another break for us. let's party! [kids cheering] [kids screaming] call the clown! parents aren't perfect but then they make us kraft mac & cheese and everything's good again. we're back with our live coverage. senator grassley, to be condid has us a bit unnerved because if he is he's they will continue at 31 after the hour we only have 30 seconds to rouse introduce our other guest who has been watching with us. jeffrey rosen arc noted author and supreme court expert that we've interviewed many times in the past. jeffrey, you wrote for the atlantic that judge gorsuch was a jeffersonian for the supreme court. for those who are lay people is don't know the minimeaning of that, what did you mean? >> jefferson favored individual rights and states rights and wanted to check extreme presidential and congressional authority. and in that sense he was different than hamilton, the rap star of the moment, who favored a broad federal government and a strong executive. justice scalia was more of a hamiltonian, and ihink tt judge gorsuch is differe in being more willing to check the prident and more willing to defend states' rights than scalia was. that's why i drew that contrast. >> because you have written about the court so many years in so many venues, a question we keep asking, perhaps to keep things interesting, what is the chance that this nominee could be a surprise to the president who nominated him along the lines of a brennan or a suitor? >> i don't think that elie involve to a brennan or a suitor. but it is possible that judge gorsuch could check president trump in a serious way, whether it's on the executive order and the travel ban or some other form of executive overreach. judge gorsuch made clear he thinks the job of the judge is to enforce the constitution regardless of the politics. just as the guy who he is being nominated to replace, justice jackson voted to oppose trueman in the steel case. judge gorsuch says i believe in independence and i am willing to check the president. >> this may get textbooky, but what senator klobuchar was talking about was a kind of selective originalism. this is the kind of thing that bedevil a justice or a nominee who is very proud to call themselves an originalist. it's tough to apply in 2017. >> absolutely. and the democrats are right to note a series of cases where justice scalia the noted originalist seemed to betray constitutional text and history, most notable brown versus board of education the case that struck down segregation. but it's hard to reconcile with original understanding. judge gorsuch said i want to translate the original meaning into a world of new technologies. he kept citg the gps case the 19th century horse and buggy age. but the democrats are going to press him and say do you agree with the cases where justice scalia was a fatless originalist. >> do you see any reason, jeffrey in what we've seen and heard so far from neil gorsuch, that this won't be -- not to diminish it in a any way, this won't be a net/net, basically no chaepg on the court from suitor to gorsuch? >> i think could be a change on the court. >> excuse me, from scalia. >> scalia to gorsuch. no, not at all. there is differences in the lack of agency decisions, that's the chevron decision that we are hearing about, and he may be more liberal in his willingness to check the president and the last exchange about first amendment rights was interesting. justice scalia was a first amendment defender, it soun sunds like judge gorsuch is as well. >> i was going to ask you about that. i suppose there is difference between the two men. scalia was justifiably proud of his decisions on the first amendment. jeffrey, anything else that sticks out to you from the gorsuch testimony so far before we get into the late afternoon session? >> there was one word that came up a lot and surprised me aed lo. and that was quality. judge gorsuch began by saying the words before the supreme court equal justice under law are the most radical promise of the constitution. and defending himself about the campaign finance and immigration decisions he said we have to treat large and small companies and donors call. quality was not a central concern of just scalia. if it is a big concern of gorsuch,hat could lead to surprising results. >> jeffjeffrey, always a pleasu. thank you for being part of our coverage. republican senator ted cruz of text resumed the question. >> let me start with something lightser and a topic on which i believe you have some familiarity. what is the answer to the ultimate question of life, the universe, and everything? [ laughter ] >> 42. >> thank you, judge. and for those who are watching who may be a bit confused at this exchange, could you explain what it is to which we are referencing? >> well, senator, sometimes we have young people who come to court to be sworn in. often, they are my law clerks. there are a couple of them right there. they haven't enjoyed this privilege yet. and they come to court and they are very nervous. and the clerk tells us about their career, and their record, and then submits them to the court. i move their admission to the bar. are there any questions from the bench? it's sort of like this. it's a bit intimidatinintimidat. this has been a reminder to me of what it's like to be down here and rather than up there. and last time i had this kind of interaction with senator lee it was when he was down here and i was up there. at any rate. i sometimes asked them that question to put them at ease. they all know the answer. they all know the answer because they have all read douglas adams' hitchhiker's guide to the galaxy. if you haven't read it, you should. it may be one of my daughter's favorite books. so that's a family joke. >> well, it is a book i very much enjoyed as well. and it is, i think, a delightful example of the humanity of a dge that we -- that your record has demonstrated. you began your career with the opportunity to serve as a law clerk to byron white. byron white is an extraordinary man. byron white was the only justice that john f. kennedy put on the supreme court. byron white is, i believe, in fact, i'm quite certain, the only supreme court justice in history who lead the nfl in rushing. and also to graduate first in his class from yale law school. could you share with this committee what it was like to be a law clerk for byron white and to interact with him every day during your clerkship? >> you know, he really was my childhood hero. and to actually get picked out of the pile to spend a year request him as senator lee's dad did -- that's something we share in common, too -- was, and remains, the privilege of a lifetime. and it has everything to do with why i'm here. i wouldn't have become a judge but for watching his example. and the humility with which he approached the job. and i don't mean a phony humility. i mean a real humility, every day. he always said two heads were better than one. he'd sit down in my office, plunk himself down in a chair across the desk and be talking about a case and say -- always started with a grunt. i mean, that's how he started a conversation. it was like hello. so what does the great justice gorsuch think about this one? and you were expected to have a view about pretty much anything, and everything, that he asked. and he would just sit there and chuckle at you. and he would laugh at you. and you are wondering what he thought. he never revealed his hand. and he would just walk out of the office. say oh, that's what justice gorsuch thinks. okay. and then he would go back and think about it himself. and then he would come back in again. the whole thing would repeat himself. as he was working through each case himself he would want to bounce ideas off of this know-nothing 20-something-year-old kid. that to me taught me everything about what it means to be a judge. and the fact that when asked his judicial philosophy in this sort of seth, he said it's to decide cases. i know a lot of people think that's just mundane, or maybe cover, dishonesty, in some way. it's just not true. it was the humility of the man. that he knew that lawyers worked really hard, because he had been a lawyer, a work a day lawyer for 14 y i think it was in a law firm. he tried cases, small cases. big case. he knew what it was like to have to be the lawyer in the well and how hard it is to have all the answers, how easy it is to ask the questions. >> you and i both had the experience of clerking at the supreme court after justice white had ended his time on the basketball court. or maybe you were luckier than i. for those who do not know above the supreme court, above the roof of the courtroom is a basketball court, which is referred to, tongue in cheek, as the highest court in the land. and justice white, for many years, would play in the basketball games, nfl hall of fame football player with a bench of pencil neck law clerks. >> yep. >> and his elbows and fouls were legendary. when i was clerking he was no longer playing. were you lucky enough to get him up on the basketball court? >> he would come up for a game of horse with the clerks, form law clerks and reunions. >> how is his jump shot? >> his best shot at that age -- we are talking in his 70s, late 70s, was from the free-throw line back up over his head like that. and he could had the it pretty regularly. his eye-hand coordination was just uncanny. so i remember those law clerk reunions on the basketball court where he would come up and stiffly throw it up and sink it. i remember walk through with him in the basement, arm and arm. liked to walk arm in arm at tha age. and we wou wk past all the portraits of the former supreme court justices which are down on the ground level. and he would ask me -- grunt -- how many of these guys do you honestly recognize? i was one of those pencil necked law clerks. the truth was i thought i knew a lot about the supreme court, the and law. the answer was about half. the honest answer. and he said, me too. he said the truth is, we'll all be forgotten soon enough. me included. and i remember saying, justice, that's impossible. you are one of the greats. no way you are going to be forgotten. his portrait now hangs down in the basement. >> well, there is wisdom in that humility. let's shift to another topic. a topic that has been raised some in this hearing, which is there are some democrats senators on this committee who have raised a challenge to the notion of originalism and indeed have painted originalism as some quaint and outdated mode of interpreting the constitution, have suggested that their view ofhe constitution is it is a living breathing changing document flexible enough to become -- to ok date whatever policy outcome the particular judge might desire. the alternative is that a judge is obliged to follow the constitution, the text of the constitution, as informed by the original understanding at the time it was adopted. do you share the view the democratic attacks that originalism is somehow a quaint and outdated notion of reading the constitution for what it says? >> senator, i want to say a few thing about that. and i appreciate the opportunity. the first is that sometimes we in our discourse today, our civil discourse, use labels as a way to not engage with other people, to treat and divide us and them. as a judge, i just don't think that's a very fair or appropriate or useful way to engage in discourse. so i'm worried about using labels in ways that are sometimes an excuse for engagement with the ideas. sometimes pejoratively. the truth is, i don't think there is a judge alive who doesn't want to know about whatever legal text he or she is charged with interpreting something about its original meaning as enacted. and i don't think this is an ideological thing. i look at decisions like jones, which we've talked about, or decisions like kilo, the thermal imaging of a home. is that a search under the fourth amendment. it's give len to peeping thomas which of course would be a violation of the fourth amendment. the constitution is no less protect oif of people's civil liberties today than it was 200 years ago, or when we look at crawford and the right to confront witnesses and not just have pieces of paper flying in evidence that you can't confront reasonably, to cross-examine your opponent, fundamental right of the sixth amendment. look back to the original understanding. that informs us. or in the fifth amendment, just stevens in aprendy, wrote a very fine examination of the original history of the constitution, and said it's not right that an individual should be sentenced to prison, hand sentence on a base of facts a jury hasn't found. those are all originalist, if you want to put label on it, opinions. every one them. you could look at powell versus mccormick, that was written by chief justice warren. it was a very careful -- you might agree or disagree, but it is a very careful examination of the original history and understanding of the relevant provisions of the constitution. or heller, second amendment case. just scalia and justice stevens both, majority and dissent, wrote opinions that are profoundly thoughtful in examining the original history of the constitution. i guess i'm with so many other people who come before me, justice story, justice black, and yes, just kagan, who sitting at this table said we are all originalists in this sense. and i believe we are. >> judge, i thank you for that very scholarly and erudite answer. you were right that justice kagan gave an answer that had similar aspects and said we apply what the say, what they meant to do. son that sense, we are all originalists. and you know, you referenced the kilo case. i think it does -- it serves well to rebut the caricature that some on the left try to paint of originalism. there dealing with thermal imaging, that gosh, how could the framers possibly imagined modern contrivances, modern contraptions. well, thermal images did not exist in the 1700s. >> right. >> the framers had no idea what it was. under the caricature that some of the democrats have suggested you would assume the originalists in the case would all line up on the side of saying well gosh the fourth amendment doesn't cover that. and yet the kilo case, the majority fin, 5-4 opinion was written by justice scalia, perhaps the leading originalist on the board. it was joined by justice thomas. and indeed, justice stevens dissented in that case. so i think that case illustrates that any judge doing his or her job, a thorough understanding of the original understanding of the language is essential to effectively doing your job. would you share your thoughts about how the constitution intersects with modern technology, how a 200-plus-year-old document can possibly be applied in a world of internet and technology and changing reality? >> well, it's just these discussions we've been having. right? you go back and you look to the evidence of what it was understood at the time to protect. of course madison didn't know about thermal imaging or gps tracking devices or dna or e-mail. and no one is looking to take us back to the horse and beingy day. or quill pens, or to turn back the clock on anything. the point is, to apply the law in a way in a allows us to be able to say as judges it's not what we wish. it's what the law was understood to mean. it has a fixed meaning, as madison said, and the should had meeting. and, the judges may disagree over what that is. we disagree once in a while. not as often as some would like to portray. but our disagreements are not political disagreements, they're not disagreements over what the law is. that's very important to me. and the other thing it does, it's a due process value. we're interpreting the law in a way that we can charge people with notice of. because we're judging them. for their past conduct. and seems to me it should only be fair that there are interpretations we can charge them with notice of. you go to jail. what does that mean to the context of a fisherman who knows that the coast guard's after him and he's got an illegal catch and throws it overboard? that case went to the united states supreme court. it's a great case. and it divided in a way that people don't expect, right? along with justice alito saying, fish this statute's about you now. no. justice kagan and justice scalia wrote a dissent, saying fish, that's a tangible object. you shouldn't have done it. and so these things don't divide along any kind of ordinary ideological line. i am confident that there are justices who in that case or in heller or any of these cases would as a matter of policy have come out differently than they did as a matter of judging. and that to me is all the difference in the world. we're not doing what we would like or what we think the law is. >> let's turn to another topic. some of my colleagues on the democratic side have raised some questions about the federalist society, and have raised it with a tone that suggests it is some nefarious and secret organization, indeed, i was waiting to see the question, are you now or have you ever been a member of the federalist society? and given that context for the sake of cantor, i'll go ahead and self-report now, i am, and have been a member of the federalist society since i was 21 years old and a first year law student when i happily joined. and, indeed, there are over 60,000 members, law students and lawyers and indeed those just interested in the constitution and the rule of law. and, one of the things that has struck me about the federalist society is the incredible range and diversity of opinions within the federalist society. you have conservatives, you have libertarians, you have those with who believe in fidelity the law and would ascribe to either of those links. and i understand you gave a talk at a federalist society event at the problems of overcriminalization. can you tell us a bit about that talk? >> yeah, i think it's fun to go into audiences and challenge them sometimes a bit. ic it's important. and i really don't want a back statement for past due dues. but i attend maybe one event a year or something like that. it's all along my forms that you all have. and if that's speech, i did talk to the society about the problem of overcriminalization. as i saw. on the books today, we have approximately 5,000 criminal laws. that doesn't count, of course, all the criminal laws at the state and local level. and congress pours out a lot of new criminal laws all the time. most of those laws are relatively recent vintage. and i asked the law clerks to go okay now, how many of those -- how many laws do we have that have cminal penalties that are in regulations too. just out of curiosity. and i thought they'd be able to come back with a number. and apparently they reported back, i just they came back and said that scholars have given up trying to count the number, they gave up around 300,000. and madison warned, he lived in a time when there were too few written laws. so that the king could pretty much do as he or she wished. that's the experience they had. but he mourned about a world to the point where the people can't know what the law is. and of course, there's the great example of clig la. who posted laws, ancient roman emperor, deliberately posted laws written on a hand so small and up so high that nobody could tell what the law was, better to keep the people on their toes. sorry. and that's a problem too. right? for due process, fair notice. and the truth is in like so much else in life, we're aiming for the golden me, not too much, not too little. point where people have enough fair notice, but aren't overwhelmed. that's what i spoke about. >> well, and i agree with you, it is a significant problem, one that this committee has addressed multiple times. and i hope will continue to address, indeed, i'm reminded of one legal thinker who famously observed in heaven there is no law, and the lion lies down with the lamb. in hell, there is nothing but law and due process is meticulously obeyed. and living in a situation where by the account you just shared, there are over 300,000 potential crimes and irregular la tir sense. at some point, makes it exceedingly difficult for honest citizen to conduct himself or herself in a way that doesn't run afoul of the law. and then that is something that should concern all of us. you know, i would note when you gave this speech, would you say it is fair to say that not everyone at the federalist society who heard your speech agreed with everything you said. >> oh goodness, that was the whole point of the speech, senator. >> well, and in my experience, a great many federalist society debates, events are structured as debates where you have sometimes sharply contrasting views for the purpose of intellectual discussion and hopefully thinking in addressing hard problems. >> and there's a counterpart to the federalist society now, the american constitutional society. >> right. >> one of my friends whose just here is on the board does similar good work. >> sure. >> i think these societies debating societies, useful to ideas percolating, being shared in a civic way. in a way that we can discuss with one another calmly, cooley, thoughtfully, not yelling at one another, not using labels to dismiss one another. that's what i get out of it. i learn things. >> i would note that the federalist society describes it's purpose as, "it is founded on the principles that the state exists to preserve freedom. that the separation of governmental powers is central to our constitution, and that it is emphatically the province and judiciary to say what the slaw, not what it should be." and i can think of very few people qualified to be a judge who would not agree with those basic precepts about the foundation of our country. let me turn to a different topic. which is several colleagues on the democratic side have focussed on corporations and have been critical of decisions such as the supreme court decisions and citizens united for lobby hobby. >> i'm stephanie rule. we're going to take a quick break from the senate hearing to share some other news. we have to take a look at the markets. as today's markets close, we're looking at the dow sharply declining down 247 points on the day. we have not seen this coming off 109-day winning streak. the market is up 13% since president trump was elected. so the question is why? why now? and it is a story of accountability, promises, and credibility. in the last two days, we have seen fbi chief james comey refute president trump's wiretapping claims the same type of refuting we saw from senate house and excuse me from the house intelligence community. went and spoke to house republicans trying to sell that health care reform bill. promises of pro growth, pro business policies, tax reform, promises are just words unless they turn into action steps. and the president has lost some credibility in the eyes of the market in the last two day as we see thearket going down
United-statesNew-yorkCrawfordColoradoIowaMinnesotaVirginiaRussiaChicagoIllinoisRussiansAmericanWin a STIGA A1500 Autonomous robotic lawn mower - BBC Gardeners World Magazine
gardenersworld.com - get the latest breaking news, showbiz & celebrity photos, sport news & rumours, viral videos and top stories from gardenersworld.com Daily Mail and Mail on Sunday newspapers.
United-kingdomDouglas-adam