So i think it was that quality about him. And he had the ability to bring out the best in people by trying to figure out what do you want, what are your ideas, and i think it was that capacity to reach and he servedle, president s, regardless of party. He served president nixon. He served president nixon and president ford at the u. N. , and in the months before he passed away, he had worked on a commission that george w. Bush could together on social believe that it was that capacity to reach across the aisle. I went to get some background on you for growing up in new york, but before we do that, i want to show you a video of someone who looks awful lot like you. He also went to columbia university, and he is currently on the massachusetts Circuit Court, and tell us who this man is when we see him. I have had the privilege of knowing him since 1980 when i served as his first law clerk on the u. S. Court of appeals for the first circuit, and i also appeared before him on numerous occasions in my capacity as chief attorney, and supervisor of appellate litigation, and one judgeaway from knowing breyer with the sense that here is a man whose goal is excellence, but excellence in and oneuit of justice, can feel good about the future of america when people such as judge breyer are considered for the Supreme Court. Who is that man . That man is my identical twin brother gary, and he is a judge on the massachusetts appeals court. I think he is an extraordinary judge and also a very kind human being, and he has had an amazing career. Court has been on the doing basically what i do but in the state court system for some and he has been a prosecutor in the department of and he is an author and scholar. His book has been translated into russian. His work on securing justice for , resulting in a book with the workings administration. He has been actively involved in boston in civic engagement, me,ic engagement and like he is a cspan addict. Well, go back to the beginning. Where are your parents . Are they still with us . My parents are still with us. My parents are my heroes. 88, and he is a refugee from nazi germany, and incame to the United States 1941 with his mother. Andfather had died, 1938, my mother is from brooklyn. She is 85, and her parents were and my parents are really my heroes. They have really given all of us, the four children, a sense that anything and everything in life is possible, and that whatever you do, you should do it with modesty, with concern of others, and with the idea making the world a better place. Worked for 40 years and went to night school. What was his job . He was an engineer. He would come home from night School Classes and never and iined about anything, think that i am often asked, and i often work with immigrants, trying to provide counsel for immigrants, and i think part of the inspiration is that i can still remember the voices and accents, and those coming to the country to make it a better thought itthat they would make the country a better place, but they thought this was a great nation, that they wanted to make it even greater. Siblings, what are they . Girls or boys, and what do they do . I have a boy into pewter is, and he is in connecticut, a very smart guy, and a sister who has and has raised a great family. On worked several years ago and were allcer, very close. What about mom . What is the background there . My mother was raise the and what a great job she did in terms of attending to each of our needs. Single placember a where my mother ever said to me, and i think this is pretty imarkable, and i do not think am idealizing it, because i was talking about it to my siblings, anything she said that was unkind. We have had the blessing of having two very supportive parents. The difference between, and who is older, gary or you . I am eight minutes older. I used to think i was five minutes older, but about 10 years ago, i saw the birth certificate, he jokes that he anyway, andt, but, we basically do now the same thing but in different systems, one in the federal court, the other a state court system. What would you tell a lawyer who is going to come before your court not to do . I would say that is a great question. I would say do not caricature the arguments on the other side. Its a lawyer is to have credibility in court, certainly with me, i want to have the sense that that lawyer is fully respectful while advocating for his point of view, the point of view of the other side, but at is not and at the same time is not exaggerating the other sides arguments. Also, another thing not to do is not to know the record. If i ask a question about something that happened or that was in the record, i would want the lawyer to be fully knowledgeable and prepared to , and then that record the third thing for me is answer the questions, which is to say dont think if i ask a question, dont answer it with an answer you want to give to another question. Please answer my question. Is a clip of here a man i know you disagree with. Watch a little bit of this. This is from a 2012 interview, and this will give us a chance to get into this book you have written. Lets watch. [video clip] said in some Supreme Court opinions that sometimes the letter of the law is its experience and that experience must prevail. At is nonsense. The letter of the law is the letter of the law. That is what we are governed by. There is some determination of ,pirit, which could be anything but the statement comes up often. It is an in powermad of judges, and judges can simply say, oh, yes, the text says that, but that is contrary to the spirit of the law, and were going to go ahead and do whatever we like. A democratic selfgovernment of people, that they cannot have which is. T, here it is, the new book, and could you be farther apart on this, and what is the issue . Well, let me first begin with what we agreed. Do youissue is how interpret a statute if you are a judge . Do you look only at the words of the statute, or can you also materialse body of that congress produces in the process that accompany the statute . The court. To come to an agreement with what it is they are doing, and often there is a vote of confidence, or the Committee Report they often give background about the backgrounds. Can you define what a statute is . A statute is a law of congress, so it could be the Civil Rights Act of 1964. It could be the hobby protection act of whatever year that deals with protecting memorabilia from being copied or coins from being copied. It could be the clean air act. When Congress Passes a law, that is a statute. So where Justice Scalia and i i that theld agree is language of the statute, the law, where it is crystal clear, then, of course, fidelity to written meanst is you do not have to go beyond the words of a statute because it is clear, so if i said to you, there is a law that makes it distribute in a 30day period three grams of a and not you personally, because you would never be involved in any of this, but lets say a person had been his grams,rams, having 30 well, it is very clear that the statute says three grams. The interpretation is very, very clear, but what if i were to say to you that there is a statute it will be unlawful for anyone who has been convicted in any court of a crime punishable by more than . Ne year to possess a gun now, what does convicted in any court mean . Court in theany United States . Does it mean any court in the world . That congress could go either way. You have a case you talk about like this. Yes, i do. I have a case like this. Or three judges that sit on these cases. Yes, yes. Were you there . , and you can there say to be convicted of the court, perhaps in the world, or maybe the United States, but then you think about it, and you think, well, theyre all crimes in parts of the world for freedom,g religious for trying to practice freedom of the press that are punishable by prison of more than one year. Do we really want to say that if you are convicted anywhere in the country, with a court that does not have the same values that we do, that that should count . It, why you think about could we not then look at the accompanying materials . Would Justice Scalia look at that . Look at that. T here is the way i look at it. Congress is part of the law. That is the first article. Charged by the constitution with in enacting laws, and so what congress thinks of as important, in terms of our understanding as judges, as administrators, as citizens of its work product, it should simply not be discarded, but it should be paid attention to. Obviously, some of the materials are more important than other, but we should not simply discard it. Scalia notesce that legislative history increases, legislative materials the judges, and they can pick and choose, and the real problem is if the statute, if the law is unclear, and the only thing i am going with on is the words of the statute, and it is ambiguous, and i do not look at anything why use my own discretion . Because i am not constrained by trying to understand what the legislators meant and how they thought the statute was meant to work, often with language in their Committee Reports. You understand your book say that Justice Scalia and Clarence Thomas are the only two who are textualists . They are the only ones who do the text. Ond i mean, Justice Scalia, for a career sitein his , but he no history longer does so, and you know why . I think yes just come to an issue. You would know better. But i think that is his view. Case some years ago where i actually cited his reference to legislative beenry, and that may have one of the last cases that he cited, where he cited legislative history. You are saying about this case of the Second Circuit, how beingo you think about reversed by the Supreme Court . I do not really think about being reversed by the Supreme Court. I think about trying to follow the law where the president aecedents directly to go in direction, and there are times when i will reach a where, if i could rule the world, i might have written the law differently, but it is my job to follow that president , so i believe that we would have a lawless judicial system if we were not attentive to what the Supreme Court directed us to do, but where questions are left open, we have more discretion to try to answer the question, and the, of course, can lead to Supreme Court. Do you have any idea how many cases you have actually 1999 . Cated since that is a great question. I would have to think about that. It is in the thousands, in the thousands of cases, because i think there are probably about, argued, and0 cases then we have the immigration docket. It is probably about 500 cases a year. From the court . Is that what you sit with . I sit with a threejudge panel, so every judge with me. I sit with all 22 judges, but we sit at any one time in a threejudge panel, except in those rare instances where we hear it as a full court. Sat all ofer the judges on an appeal with in the court . Very rarely. Our courts go in bank rarely. Other courts go in bank more infrequently. Why is there a difference . I think itd difference is if the case is that important, it should go up to the Supreme Court right away. Apecially if there is threejudge panel, and there is a strong dissent, and lets say is,s 21, then the issue the issue is the differences are firmly drawn, and they should be the case should just go up to the Supreme Court for resolution. In other courts, the view is rest thee the court does not like what the is injudges did, it consideration. It is unwarranted. I think one of the reasons our court is so collegial is that we do not go in bank that much because there is often a lot of proceedings, and i for one think the tradition that we have had which goes back to leonard hamm of not going like a wise tradition. What is the politics of your appointment . By billointment clinton, but you also give a nod to gene sperling, with barack obama for helping in the fall thing whole thing, and there is also patrick moynihan. Did you want to be a judge . Primarilyhe position because of senator moynihan. And he had i had worked with him on so many projects and there was a vacancy. The persondentified who works for senator moynihan, now a judge. Senator moynihan was the force, and gene sperling, who had been a Research Assistant to steve i firstbrookings, when got to brookings nine who used to work for eisenhower. Who used to work for eisenhower. And so he was helpful on the white house and, and then the other thing that was really quite fortunate for i was known to people in the hill because of work that i had hatch was veryor supportive of my potential and his team let it be known, and senator hatch was chair of the committee, and he that i would get through, and senator leahy was and so i supportive, was nominated in a few months. 1999 confirmed in july of by a voice vote. The first court of appeals in 19 99. T confirmed as you look at the court, there is 700, 7 hundred 50 federal judges in the United States. How many of those are determined to be on the court by the members of congress, do you think . I think the district judges are almost certainly largely senators, whenhe the senator is the same party as the president. The court of appeals appointments are traditionally viewed as white house and that is why, i think, in my case that senator to getn worked overtime and theation through, white house and john podesta, they were very helpful. On another issue, Justice Scalia a again on this, and i will explain why we do it in a moment, and watch what he says about this is not a legal issue, but it is an important issue, as you can see, before the Supreme Court. [video clip] really thought it would educate the American People, i would be all for it. If the American People got together and watch our proceedings gaveltogavel, they would never again ask, because i am sometimes asked, Justice Scalia, whyd you have to be a lawyer to be before the Supreme Court because the constitution says you do not have to be, that is right, but we are normally dealing with the Internal Revenue code, with all sorts of stuff that only an lawyer can understand and perhaps get interested in. If the American People saw all of that, they would be educated, but they would not see all of that. What most of the American People 15second takeouts from our argument, and those takeouts would not be characteristic of what we do. They would be uncharacteristic of what we do. It almost sounds like a setup, and i do not know what you think of this, but your court is allowing us to cover monday the aclu versus clapper tuesday, in the court in new york, and we have covered several things in the Second Circuit court. Why can we cover the Second Circuit court, and what do you think of his attitude about television of the Supreme Court . What in terms of the court of appeals, the reason that we can cover it, you can cover what we do is that the judicial conference, which does not include the Supreme Court as part of its jurisdiction, essentially in 1996 allowed for a local option, so that each circuit could determine for itself whether to allow cameras in the courtroom in noncriminal and the ninth circuit are the two circuits, i believe, that are participating in this, cameras in the courtroom, and the way that it works in our circuit is that a request goes to the panel, and if the panel agrees for the coverage, then there is coverage for you if a member of the panel has any concerns, then the to decline the request for cameras in the courtroom, but by and large, i isnk that the experience that there have been a number of cases, as you have said, brian, where there were cameras in the courtroom, and i think that in terms of the court of appeals, i a positivethis is development. Has it ever appeared, in your opinion . No, there is no record that it has ever interfered. That often,happen because there are not that many cases as exciting where people want coverage, but i think the value of cspan is that it covers everything. It covers the whole argument. I think that that is important for the educating process. There is also now an experiment that was authorized in 2010 and began in 2011. I think the project will end in of5, the pilot project, various civil proceedings in the District Courts across the country. I know there are many District Courts you are participating, and there is a website where you can go and watch the proceedings. The district court, doesnt always have a jury . It does not always have a jury. There are many cases which are so we will see how that experiment works out. Does the Circuit Court ever have a jury . A Circuit Court never has a jury. And does the supreme or ever have a jury . Know, the Supreme Court never has a jury. Judges, andthree the lawyers come before us, and we do not have the excitement of the district court, with the defendants and witnesses, and you see. The court of appeals does not have that. We have some video that was taken earlier, just to show what your court looks like. There are more judges sitting up there than the normal three, which we will show, run just a little bit of this, and then ask you to explain what we are watching. [video clip] the United States court of appeal of the Second Circuit. Shall be heard. When they are working with the syrians, providing the syrians a dossi