quorum call:

mr. reid: mr. president. the presiding officer: the majority leader. mr. reid: i ask unanimous consent the call of the quorum be suspended. the presiding officer: without objection. mr. reid: i now ask unanimous consent that we move to a period of morning business, senators

allowed to speak for up to ten minutes each. the presiding officer: without objection. mr. reid: i now ask unanimous consent the senate proceed to s. res. 287. the presiding officer: the clerk will report. the clerk: senate resolution 287, designating october, 2011, as filipino american history month. the presiding officer: is there objection to proceeding to the measure? without objection, the senate will proceed to the measure. mr. reid: i ask unanimous consent the resolution be agreed to, the preamble be agreed to, the motion to reconsider be laid on the table, there being no intervening action or debate, and it printed in the appropriate place as if given. the presiding officer: without objection. mr. reid: i'm told s. 1660 is at the desk and due for a first reading. the clerk: s. 1660, a bill to provide tax relief for american workers and businesses to put workers back on the job while rebuilding and modernizing america and to provide pathways back to work for americans looking for jobs. the presiding officer: is there

objection? mr. reid: mr. president, i ask for a second reading of this matter but then object to my own request. the presiding officer: the bill will be read for the second time on the next legislative day.

mr. reid: mr. president. the presiding officer: the majority leader. mr. reid: we're not in a quorum call, is that right? the presiding officer: that is correct. mr. reid: i ask unanimous consent that when the senate completes its business today, it

adjourn until 9:30 a.m. on thursday, october 6. , 2011. following the prayer and pledge, the journal of proceedings be approved to date, morning be deemed expired and the time for the two leaders be reserved for their use later in the day. following any leader remarks, the senate resume consideration of s. 1619, the currency exchange rate oversight reform act, with the time until 10:30 equally divided and controlled between the two leaders or their designees. the presiding officer: without objection. mr. reid: the second-degree filing deadline for amendments to 1619 is at 10:00 a.m. tomorrow morning. there will be roll call votes at 10:30 on the motion to invoke cloture on s. 1619. if there is no further business to come before the senate, i ask that it adjourn under the previous order. previous order.

>> the supreme court's new term began monday. today, supreme court justices scalia and breyer were discussing the constitutional role. they were there for a little less than two and a half hours. [inaudible conversations]

[inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations] >> good afternoon. first, i just want to express my appreciations about justice scalia and justice breyer being back here in the senate

judiciary committee. when, having been there for both your cop fir mages hearings, we didn't have this great room at that time. i also want to thank all the students who are here, and i know when i was at georgetown law school, i know i would have loved to do something like this. we have scores of students. we have other americans attending the hearing, following the procedures over the internet and television hoping to here a civil-minded conversation about the role of our constitution. i believe such public discussion serve our democracy. as public officials, we owe it to all americans to be transparent about what we do in our official capacities. we justify that trust by

demonstrating how our government works because it works to uphold our common values, how we're guided by the constitution, and how that constitution's served over the years to make our great nation more inclusive, more protective individual rights, and our continuing effort to become that more perfect union. as the great chief justice john marshall many years ago, our constitution is intended to endure for ages, and consequently to be adapted to the various crisis of human affairs. in recent months, there's been renewed focus on our constitution, almost every week, i open the newspaper or see an electronic posting that involves radical invocation of the constitution serving birches from what -- difference from what i was taught many years ago. it could be somebody suggesting

the congress get rid of dozens of judges or the assertion the three branches of the federal government are not of equal importance under the constitution, or even the assertion that the fundamental charter was drafted solely to limit the federal government's ability to solve national problems. these comments show the need for more opportunities to increase understanding of our democracy. that's what gave me the idea to invite two of the nation's leading jurorrists about the role they play with the leading constitution. i know in the court, both chief justice roberts and justice scalia remarked the fundamental genius of the constitution is the separation of powers. the legislature, executive

branches have different powers and they check each other and interact quickly. the 222ndanniversary of the congressional judiciary act that established the supreme court and the federal judiciary, and we, in the senate, have an obligation to provide advice to the president to fill the vacancies, and on this committee, we work diligently to address the serious vacancy crisis that chief justice highlighted in his report, and i thank the senator from iowa for his help in that regard. we have the judicial conference of the united states in order to help the third branch operate fairly. we appropriate resources to fund the work of our independent judiciary, and the judicial branch including the supreme court decides cases to resolve controversies in accordance with the rule of law.

called upon to interpret and applies to statutes passed by congress to specific disputes and determine whether the acts violate the constitution. in a rare occasion, court decisions can be overturned with legislation or with an amendment to the constitution. many of you remember four years ago i invited anthony kennedy to appear before this committee to discuss jew dish issue security and jew -- jew dish independence and other matters of the appropriation request introducing which including appearances by chief justice taft, chief justice hughs in the 20s and 30s and justice jackson in 1941 among others. i would note one of my friends probably remember those, and i sure you i do not, but fortunately, the staff found

it. justice kennedy recognizes the supreme court's rulings would be debated and criticized but noted this is a dialogue that makes democracy work. there's been hearings highlighting the significant impact for recent supreme court hearings on hard working americans and an effort to raise awareness of the court's interpretation of laws that congress enacted with the intent of protecting american workers, retirees, consumer, and small business owners. today's hearing has a different focus. the upcoming decisions of the supreme court discuss the proper role judges play in our democracy. you know, in a time of increasing political rank, some like to exercise the visions as though they are between warring factions. although the witnesses before us have made decisions in many cases in different way, i know in a personal matter they

demonstrate a profound respect for each other. that's the example the ranking member and i have tried to achieve in our work together own this committee. people expect the government to work for them. that requires us to uptold our national -- uphold our national values. we all need to work together to pull the rule of law for liberty and prosperity can thrive. i'll conclude with what -- [inaudible] the spirit of liberty is the spirit that's not too sure it's right. the spirit of liberty seeks to understand the minds of other men and women. that's the spirit we open this today, and again, i can't tell you how much i appreciate both justices being here, and before i began, i'll yield to ?arts grassley and then the witnesses. >> thank you, mr. chairman, for holding this very important hearing. i appreciate your efforts to secure the testimony of our distinguished witnesses. this hearing will be an

enlightening experience to discuss the role of judges in our constitutional system, and, of course, this is a question as old as the constitution itself, and it will always be debated. i welcome each of the witnesses and for you, justice breyer, you ought to feel at home here since you served as chief consul of this committee. i remind you of your statement in your recent book, "criticism of judges and judicial systems -- no, i'll start over. >> you got that right. >> "criticisms of judges and judicial decisions traces back to our founding. it is a healthy thing in a democracy." i hope you will feel that way at the end of the hearing. [laughter] we appreciate that you did not have to appear before us and that your schedule is very busy for both of you. justice scalia, glad to see you

here. you have a real flair for judging. that's an understatement as i see it. you, as much as anyone, strongly advanced traditional views that a judge's role under the constitution is to interpret the law according to the text. from my own part, i believe that the role of judges under the tiges is an important, but limited one unless the constitution provides otherwise the people through their elected representatives govern themselves. in determining the meaning of the constitution, judges are to apply the intent of the frameers because that's the extebt -- extent of self-government that the people agreed to impose on themselves. when judges change the meaning of the constitution and create new rights or grant government powers that it was not intended to have, they reduce the right of people to govern themselves

through the representative government process. historically, these are the circumstances in which judges and their decisions have been fairly criticized. it is rare for sitting supreme court justices to appear before the senate judiciary committee, so i thank both of you for sharing with us. thank you very much. >> thank you. you know, we -- these two distinguished jurors have a lot in common. both received law degrees from harvard. both serve as associate justices of the supreme court, both well-respected administrative law scholars, both elevated from positions on the federal appellate bench, justice breyer in the first circuit, justice

scalia in the dc circuit. i voted for both of you on the circuit court and both of you on the supreme court, and there for the hearings both times. now, despite the different perspectives on constitution interpretation, they were confirmed by a whopping margin. in the past, they've agreed on the importance of presidential judicial independence and decision making. justice breyer's been on the supreme court for 17 years. justice scalia, a quarter of a century. it's up to you who you want to go first, and i think i just got the -- i just got the word from justice scalia, in case i practice law gip, i'm listening, so justice breyer goes first. >> [inaudible] >> is your microphone -- >> we introduce the question as

we see it, and both very glad to be here, particularly because i did work here which i loved, but also because you've invited high school students, college students, law school students, and we both talked to those groups of students a lot, and we want to do that, and the reason we do in special part is because there's a lot of skepticism and cynicism about government in the united states, and i'll say to the students, i understand that, and probably some of that is justified, but if there's too much of it, well, the government just won't work because you're a part of the government, and if you're not going to be a part, we don't have a government. that's what i want to tell them. all right, now, how can i tell them that? how can i do my bit on this? i'm a judge. you know, i don't run for office. it's hard to get people's attention on a general question like that, but my bit consists

of trying to explain my institution. is it i do? what do we do every day? what do we do that affects those students and they have to understand and explain to others. the way i put the question, and this is all i'll say is how i think of the question, and i think from my institutional point of view, i want to tell people why maybe they give our institution support. suppose i have the intention of a man or a woman who's going into a supermarket. now, that's tough to get their attention. a woman is busy. they may have two jobs. they may have a agreeing family. they have bills coming in every month, and they don't have too much time to listen to judges. suppose i get their attention on this question just for a few minutes. what would i say? the first thing is i have to tell you what the question is. question is this -- the nine of us are not elected, but we live in a democracy, and we do decide

matters that will affect you, so why should nine people who are not legislated have that -- elected have that authority? it's worse than that. if you look at why hamilton give us the power and why the founders gave us the power to set aside a law of congress confrere to the -- contrary to the document, the constitution, you read federalist 78. she may be asleep by this time, but i have to get her attention. in federal 78, here's what he says. he says first, "look at the document. it's a great document." it is. if nobody's going to say what anybody else goes beyond its boundaries, let's hang it up in a museum, put it in the national gallery. he didn't say the national gallery because it was not built at that time, but nonetheless, you understand the point. somebody should have that power. who? the president?

the president has a lot of power, but he could become a tyrant with that as well. congress is legislated. yes, that's the advantage, but that's also the problem because congress will have just passed a law because it's popular. this document gives the least popular person in the united states the same rights as the most popular. are you sure congress having just passed that law says it's unconstitutional when it's very unpopular to do so? here we have judges. they are there. it has something to do with law, and they don't have the power of the purse, and they don't have the power of the sword. wonderful. they don't have much power, and in addition, they are sort of judges, and it's not congress and not the president, and he stops there. i say, ma'am or sir, we are not elected. we are supposed to decide things

that are unpopular on some occasion, and, you know what? don't tell anyone. we're human beings. we may be wrong. indeed, when i'm in decent, i think the majority is wrong. we can't be right if we're opposite sides. there we are. unelected doing unpopular things and quite possibly wrong. why should you ever give us your support? that's the question, and i get that question not just from people in supermarkets, not just from students or their teachers. i get that question from people all over the world. there's judges in the court that visit, latin american judge, asian judges, or a woman who was chief justice of ghana, and she posed that very question. why do people do what you say? it's, you know, have henry the iv here, it's a question. i can call spirits from the vast

deep, and another says so can i and any other man, but will they come when you call them? to answer that question, there's a synopsis in history, but in four minutes i sketched out the question, and now i'll turn to my colleague who can address that or anything else he'd like. >> thank you, mr. chairman, members of the committee, i'm happy to be back in front of judiciary committee where i started this pill -- pill gram imagine. i'll get for fundamental than my good friend and colleague. like him, i speak to students, law school students, college students, and even high school students quite frequently about the constitution because i feel we're not teaching it very well. i speak to law students from the

best law schools, people presumably especially interested in the law, and i ask how many of you read the federalist papers? well, a lot of hands go up, and, well, not just 48 and the big ones. how many have you read the federalist papers cover to cover. never more than 5%. that's very sad. i mean, especially if you're interested in the constitution. here's a document that says what the framers of it thought they consider doing. it's such a profound exposition of political science that it's studied in political science courses in europe, and yet we have raised a generation of americans who are not familiar with it, so when i speak to these groups, the first point i make, and i think it's even a little more fundmental than the one steven has just put forward. i asked them what do you think

is the reason that america is such a free country. what is it in our constitution that makes us what we are? i guarantee you that the response i will get, and you will get this from almost any american including the woman that he was talking to at the supermarket. the answer would be freedom of speech, freedom of the press, no unreasonable searches and seizures, the bill of rights, but then i tell them if you think that a bill of rights is what sets us apart, you're crazy. every banana republic in the world has a bill of rights. every president for life has a bill of rights. the bill of rights of the former evil empire, the evil social republics was better than ours.

i mean that literally. we guarantee freedom of speech and press, big deal. they guaranteed freedom of protests and anyone who is caught trying to suppress criticism of the government will be called to account. wow, that is wonderful stuff. of course just words on paper. what our framers would have called a parchment guarantee, and the reason is that the real constitution of the soviet union, think of the word "constitution" means structure. say a person has a sound constitution. he has a sound structure. the real constitution of the soviet union, which is what our framers debated that whole summer in philadelphia in 1878, they didn't -- 1787, they didn't talk about the bill of rights. that was an after thought. that constitution of the soviet union do not prevent the centralization of power in one

person or in one party, and when that happens, the game is over, the bill of rights is just what our framers would call a parchment guarantee, so the real key to the distinctiveness of america is the structure of the government. one part is the independence of the judiciary, but there's a lot more. there's very few countries in the world, for example, that have a bicameral legislator. there's a house of lords, but the house of lords has no substantial power. they just make the commons pass a bill a second time. france has a senate. it's hon risk. italy has a senate. very few countries have two separate bodies equally powerful. that's a lot of power has you know to get the same language through two different bodies elected in a different fashion.

very few countries in the world have a separately elected executive. sometimes i go to new york to talk about separation of powers, and when i get there, i find all i talk about is independence of the judiciary because the europeans don't even try to divide the two political powers, the two political branches, the legislature and the chief executive. in all the parliamentary countries, there's the creature of the legislation. there's never disagreement between them and the prime minister as there is with you and the president. when there's a disagreement, they just kick them out. there's a no-confidence vote, new election, and there's a prime minister then who agrees with the legislature. europeans look at the system and say wow, it passes one house, not the other house, sometimes the house is no control of the

-- in control of the different power, and then there's veto party. they look at this and say, oh, it is gridlock. [laughter] i hear americans saying this nowadays, and there's a lot of it going around. they talk about a dysfunctional government because there's disagreement, and they -- the framers would have said yes, that's exactly the way we set it up. we wanted this to be power contradicting power because the main ill that be set us as hamilton said in the federalists when he talked about a separate senate he said, yes, it's inconvenient, but in as much as the main ill that besets us is excessive legislation. it won't be so bad. this is 1787. he department know what excess of legislation was. [laughter] unless americans can appreciate that and learn to love the separation of powers which means

learning to love the gridlock which the framers believed would be the map protection of minorities, the main protection. if a bill is about to pass that really comes down hard on some minority, they think it's unfair, it doesn't take much to throw a monkey wrench into this complex system, so americans should appreciate that, and they should learn to love the gridlock. it's there for a reason so that the legislation that gets out will be good legislation. thus conclude my opening remarks. [laughter] >> you may not get total ewe namety on that gridlock, but i found listening to both of you to be fascinating, and i made a note to myself to everything

that might go wrong this week and all of this makes up for it just having both of you here, so i do appreciate that. justice scalia, the court of course often reviews passed by congress -- i apologize for the voice because of allergies -- but when the court passes a law with congress and whether it purports toot constitution, -- to the constitution, do you have a different standard of whether it's a law passing by margins or a law that passes overwhelmingly? i'll ask that of both of you. >> no, sir, a law's a law. it meets the requirements of the constitution having passed both houses and either being signed by the president or having been passed by two-thirds over his veto, it's a law, and what we do is law. >> justice breyer? >> yes. yes, sir. agree. >> thank you.

and justice scalia, under our constitution, what is the role if the judges play in making a budgetary choices or determining what the best allocation and taxpayer resources? is that within their proper role or somewhere else -- >> you know terrorist not within our -- you know it's not within our proper role, mr. chairman. of course it's not. of course it's not. >> it's a worthwhile question for this reason. when we try to talk about the document in general, what i say, and he'll have a version of it is what does this document do, the constitution? well, i can't tell you in one word, but i can in five. it creates a structure for democracy. that is the first part. that's the whole seven articles. it's a structure so people can make their own decisions through their representatives and decide

what kind of cities, towns, states, and nation they want, but it's a special kind of democracy. it garn -- guarantees basic and fundmental rights, ensure a degree of equality, and as justice scalia emphasized safeguards power, three branches so no group of government officials becomes too powerful, and it insists upon a rule of law so now we have five basic thing, and i tend to think the rest elaborates the five basic points, and i think justice scalia and others are not in disagreement at that level very rarely, so what people don't understand very often is given broad boundaries in the process, where's the boundary control? there's the radio program called sky king of the mounties or something like that. >> before my time. >> yes, it was.

[laughter] but, look, -- >> high king and sergeant presston of the yukon. >> that's it, the yukon. it's cold, on the boundary, cold, life on the boundary is tough, and we're in a sense the boundary patrol, and those issues are very tough. it's a choice inside outside, what about prayer in schools in what about this or that? there's two sides the questions. they are tough ones. what people forget is what you emphasized with the budget question that inside those boundaries there is a vast democratic space where it is up to the average american to decide what kind of cities, towns, states, and nation he or she wants, and those decisions are not ours. all we can say and with a forum like this is please participate in that democratic decision making, which is not our institutional job. >> with a smile on justice

scalia's face when i asked the question. i think he was anticipating some of the next questions, so i'll start next with you, justice breyer, in your making democracy work. you describe for the court system relies on the public confidence because it has neither the power of the purse or sword you both eluded to earlier. so then people ask well is the rule of law predictable? and because americans realize certain programs and so forth, do you feel the public's confidence is affected when judges overturn long standing precedent with expectations if they have something that people relied on for generations, and

then suddenly it's overturned. what's that do to public coved, and what does that do for the rule of law, the person, the sword, you have a question of what confidence the american public has, so, justice breyer, you want to try that first? >> on that, i think there's no definite answer. you want to say -- what you give is reasons against overturning something or strong reasons that plaxv ferguson that should have been overturned and brown vs. board of education, no discrimination, and so i think your advice is good means that the judge has to remember not too much, not too fast, not too often, be careful. people relied on formal law, but you cannot say "never." >> justice scalia? >> yeah, i think part of the

jurisprudence of the court and other courts is -- it's not an absolute rule, but it's a subject that should be given careful attention, and all federal court gave very much more weight in statutory questions. it's very rare that my court overrules on a statutory point. the reason being, if we got that wrong, you can fix it. you can amend the statute, but when we get something wrong with respect to the constitution, there's nobody that can fix it unless you're going to go through the huge trouble of enacting a constitutional amendment. >> well let me -- >> so throughout our history, there's a rule, but beginning with the marshall court, it's been less strict in constitutional questions than it is in statutory question, and i think that's as it should be. >> and, of course, it's easier

for the lower courts if there is a bipedding circuit -- binding circut opinion and supreme court, but the buck really stops with you, with you nine. now, you talk about many of the institution, we have been -- 13th amendment got rid of the slavery, nobody could think of that having racial discrimination, 19th giving women the right to vote, the 24th, young adults and so on, and, justice scalia, i hope i summarize this correctly, that we should not mess with the constitution by amending it. since i've been here in the

senate, i've seen probably 1500-# -- 1500-2,000 amendments proposed. probably more than that 6789 you get them from things that i think of a board in a small town would not have thought of doing because it was so ridiculous, but -- and some have serious issues, but is it in our country's interest to be tampering with the constitution if that can be avoided? >> well, no, 24 -- this is another respect in which we differ from most countries of the world. most can't understand our affection for the constitution. it's no big deal to amend the constitution in most of the countries of the world, and most of them, all you need is to have the legislature, pass the amendment, then there has to be an intervening election, and

then they have to pass the amendment again. >> it's almost like a statute. >> it's almost like a statute only it's passed twice with an intervening election. >> sure. >> this is difficult to amend. you're right, i have said that that's a good thing indeed i've said the provision i am sure i think about amending is the amendment provision because that sets a very, very high poll, but that's not going to happen, so i'm not worried about it. >> justice justice breyer, my time's run out, but do you want to respond? >> yeah, i tend to agree with that. >> it finds out -- >> we're unanimous 40% of the time. [laughter] we are about 20%-25%, and it's not always the same five and same four. you should be suspicious if we

don't have a lot of 5-4 decisions because the main reason we take a case is that there is a circut conflict below. that is very good federal judges appointed the same way justice breyer and i were appointed who disagree, so something's -- you would smell something wrong if there's disagreements below and the supreme court coming out 9-0 one way or the other. expect a lot of 5-4 decisions 37 >> thank you. senator grassley? >> i'll start with justice breyer, and a couple questions based upon a recent c-span interview you had. you remarked that although judges is not entirely about politics, you would, "not say zero politics, never." >> that's one of the hardest things to explain, and that's what i wrote about in the book. i think there's two great questions that i want to get across to the audience if it's a high school, college, or law school in particular.

first is the one we mentioned. when you call them, will they come? why is it that americans over the course of 200 years have begun, have responded to the supreme court? there's good stories on that, but i put that aside. the other thing goes this way. i know you're being very polite, but i also know a lot of you are thinking this -- you're thinking in those tough 5-4 cases, we really are junior league politicians. i say that's ridiculous. for one thing, that's not the job. i mean, didn't hamilton give us the job because he thought we wouldn't be politicians. second, read a case likebred scott, probably the worst ever. there, the most you can think of why they were doing this is trying to act like politicians. well, judges are terrible politic tigses. if you want to give this job to politicians, give it to congress. how do i explain it?

i explain it this way. in the 17 years since i've been a judge, do i see a decision turn on political considerations? i work in the committee, who's got the votes, the democrats or republicans, who are popular, who's going to win the election? in that sense i have to say my answer is never. i know you can think of this or that case where it's wrong. i need an hour to explain it to you, but i can bring you around. what about ideology? ideology, are you, you know, an adam smith free enterpriser? are you a marxist trouble troublemaker? what's good in general for the world? if i'm thinking of it that way, i know i'm doing the wrong thing, but i can tell you there's a third thing. i was born in san fransisco. i went to lowell high school, a public high school. i we want to --

i went to the university out there. live lived the life i led, and by the time you have ho 40* to 50 years in any profession, you begin to formulate very, very general views. what is america about? what are the people of america about? how, in this country, does law relate to the average human being? how should it? at that level of generality, people may have somewhat different outlooks, and there's no way that those different outlooks can fail to influence them some, and is that a bad thing? no. i think it's a good thing. this is a very big country. we have 309 million people, 308 million of whom to everyone's surprise are not lawyers. [laughter] now, and they have many different views, and it's a good thing, not a bad thing, that people's outlook on that court is not always the same, and by

outlook, i mean, those very, very basic ideas of judicial philosophy if you like or about the country and its people and about the law and how judges are there to act and what they are they to do and whatnot. that's what i meant by that word there. >> okay. i'll start with justice scalia on my second question. why would it ever be appropriate for american judges to consider foreign law in interpreting the meaning of the united states constitution, and justice breyer can respond as well. >> senator, i'm afraid we're getting beyond what i had planned to discuss with you gentlemen, the role of the courts, and we're getting into the manner in which the court's go about deciding their cases, and i have a view on that, and

justice breyer has another view, but i have no testimony on that, and i'd rather pass. i just -- of course, it's an issue, and i think my views on that issue are known, but that is not the level -- >> let's move on then. >> okay. >> to both of you, discussing the supreme court, a justice stated, "the most important thing that we do is doing nothing and -- how much do you agree on that? >> it depends on the case. it's important, yeah. i don't know if it's the most important. i'm not sure what he was thinking. what do you think? >> well, yes, i think that the normal state of things is rest. leave things alone unless there's reason to change it. i served in the executive branch for awhile, and there was -- when i was there, there was something that came to be known

as the moscow option which sounded cia stuff. it was named after a fellow named mike moscow, one of the president's assistants, and he ob received that whenever action memos went to the president, they always gave the president three options. number one, do x. number two, did the opposite of x. number three, do whatever who wrote the memo wanted. moscow noted that you will never see among the options do nothing, and that that very often is the right answer. it's the case for courts and don't make waves unless there's a reason for change and unless the agency or congress has done is wrong, you leave it alone. >> but your question brought to my mind was there's something in

tuckville which is i like the bill because it's amazing in 1840 what he's writing and you think he wrote it yesterday about this country, and one of the things he says which really stuck is whenever i come to the united states, the first thing that strikes me 1 the clammor. what's he thinking? everybody's screaming at each other is what he meant, and he meant they are debating. they are talking about things, disagreeing, and he thinks that's good, and i do to. you have a really tough problem. sometimes let's imagine when you want to figure out some bill, and it has to do with privacy and free expression, and there's all kinds of tensions right there with the internet and the new methods of twitter, facebook, and how do we decide those in this country? i think the regime word i use -- general word i use to talk to about that is "bubbling up."

people talk. they talk in newspapers. they talk in classrooms. they talk in articles. they talk in small groups. they talk to the policeman, the fireman. they talk with civil liberty groups, everybody under the sun, they debate, get into arguments, and eventually it's to you. you have hearings. you eventually decide maybe an agency should do it. maybe we should have a statute. maybe we change our minds five time, and eventually, things will settle down, and what i say about my court? it's really wonderful if we do not get involved until it settles down because our only job is going to be to decide that if what you decide is within the boundaries, and it's a subject where we know less about it than those americans who went into in depth, so be careful of intervening before this big debate, this clammor has a chance to take over, take effect, scream, change, try it on, try it off, and i think

that's really the wisdom that underlies this view of don't decide too much too fast. >> and we do a lot of nothing. >> we do. [laughter] . i told you the main reason we take a case is because there's disagreement below, but if there's no disagreement below, we don't get involved. we don't go prowling around looking for congressional statutes that are unconstitutional. it's only when there's disagreement below that we take a case with rare exceptions. if a lower court has found one of your laws to be unconstitutional, we'll take that even though no other court has held the opposite, but other than rare situations like that, we let sleeping dogs lie which is the way one should live his life, i think. [laughter] >> thank you. senator mccaul. >> thank you, mr. chairman.

justice scalia, in your opening remarks, you talked about how brilliant or system is, our institution, and the kinds of disagreement it provokes, and how difficult it is to get things done. that's the greatness of american constitution. in contrast of so many other countries, and yet we are described now by people all over the country as dysfunctional and unable to get anything done, and the level of dissatisfaction is now up to about 88 or 90% now among the american people because they say we can't get anything done, that the system doesn't work. how do you respond to that? >> well, i suppose there is a point at which you do reach gridlock, however, i think the attitude of the american people, and this is the point i was making, is largely a product of the fact that they don't understand our constitution, that its genius is precisely

this power contradicting power which makes it difficult to enact legislation. it is so much easier to enact legislation in france or in england, but, you know, the consequence of that is you have swings from one extreme to another as the legislature changes. that doesn't happen that much here, largely because of the fact that only laws on which there is general agreement, as a general matter, only those laws will get through, so, you know, this is one of the reasons why we have to educate the american people as we have not been doing for decades about what our constitution produces and what it is designed to produce. >> no, we've discovered it's the same problem sap dray o'connor talks about. we're limited in what we can do and probably you are, but she's out there nonstop trying to get

civics restoredded to the high school curriculum. i mean, what do most people think about taking a case which you were just discussing? those who know anything about it say oh, they were up in the big building and decided this is an interesting subject, let's decide it. i mean, that's very far from the truth. we have a system as you've heard described, so what we try to do is talk to people. anenburg does that, the foundation. they are in 55,000 classrooms and sandra and i and others discovered it's very useful to get a film taken of a case or something in the past and have us comment and try to get it into the high schools. they are trying to do that with carnegie. there's a different institution, but you try to communicate with the public quite a lot, and all i can say is it's probably harder for you than it is for us, but to get across the idea

that the student today has to know how government works, they have to know something about their history, and they have to be willing to participate. it's very easy to say, and it's very hard to get across. >> gentlemen, as you know, you have the power to decide cases themselves, but your power is also to decide which cases you're going to hear, and you have some 8,000 opportunities to make decisions every year on the cases you're going to hear, and last year, you decided to hear 77 cases, which is just 1% or less than 1%, so what goes through your minds collectively when you decide on which 1% you're going to hear, and what do you say to the 99% who don't get heard? >> the latter. we say "denied." [laughter] but for the former, your quite right. there ought to be some rules.

it shouldn't be random. it shouldn't be, you know, whatever tickles my fancy, and that's why we have a general rule, and unless there's a circuit conflict, you're wasting your time, and you're client's money to file a petition for asesh ri. it's likely we will not grant it. it is not the case. i assure you that we prowl about looking for an issue that we want to get up to the court. i don't know any of my colleagues that behaves 245 way. ..

even though it's not part of the job i will make an initial cut the cut. why? because they sort of speak out and the only other i will add is in the conference i know there are groups of lawyers and standard and was on the court and said this publicly we've got to get marquises here. nobody is making an effort to take fewer. that's not the attitude in the conference. the attitude is in the conference is take it, we have

room to hear more. nobody is thinking that there isn't room. >> let me just respectfully disagree and perhaps you can respond. when you can a court and 87 you heard 227 cases that year and when you came on the court, justice breyer that year you heard 105 cases last year you heard 77 cases. so, i don't understand. >> we never heard 277. when i came on the court i think we were deciding about 150, and i will tell you i don't think we can decide 150 well. if you go back and look at our opinions in those days if you ever read an opinion in which the majority opinion and the descent are like ships passing in the night, they never quite meet each other you turn to the first page you will see that it's a june opinion because we were rushing out opinions at the end of the term.

i don't think we can do 150 well. i feel we could to 100 well and frankly i am probably voting to take some cases i wouldn't have voted to take ten or 15 years ago. it's not as though we sit down at the end of the year and say cotton okay let's take the best 75 cases. that's not what happens. the trickle and week by week and we vote on one the ones that seemed worth taking and the end of the term these added up to whatever the fed to. if my standards have changed, it's only because wire trying to take more of rather than less. i suspect that the major reason for the decline was that in -- when i first came on the court there was a lot of really breathtakingly important new legislation, and a new

bankruptcy code, title vii. in the last ten years there's been legislation but nothing have very little of that magnitude. the major generator of circuit conflicts below is new legislation because it always has some in the committees that have to be decided by the courts so where there hasn't been a lot of new major legislation you would expect it to go down. >> i agree it on the theory that every word in the bill is an argument dhaka of and every word you pass lawyers to decide and so if a lot of legislation is passed that i think with the fight for ten years lagged you will suddenly see a lot of cases in the supreme court and if you go five or ten years and there is less legislation passed, you will discover diminished number of conflicts among the circuits. look at our when you pass the habeas law then in go back out

two or three years and suddenly you will see lots of cases coming up to it and the same is true with the immigration think so you are now passing laws with thousands of pages not budgetary but that are likely to come to us. >> my guess is that caseload will start going up. eda >> i've been sitting here trying to resist temptation and i want when you mentioned from henry for the discussion you have that in your book and i noticed going through that is one of my all-time favorites usually to express exasperation somewhere. >> senator hatch? >> i appreciate both of you be willing to do this. i think it's a very, very good thing.

and i know that it's unusual and so i'm grateful for the chairman calling this particular hearing. and i particularly grateful to both of you. you've been great justices on the court for a long time and you've decided the law of important cases and we now have this year it looks like a docket that is going to be pretty important compared to the last year's. >> you sound happy about it, senator. >> i'm very happy. i want you working really hard. [laughter] >> and you, too, justice breyer. i have hope for you. there is no question about that. i remembrance when you were here on the committee you were a terrific chief of staff for senator kennedy and you meant a lot to us then and now. let me just say when a federal judge's construe the statutes they try to figure out what we

meant by what we said. religious leaders on both sides of the aisle would object if the change the meeting of the statutes that we enact and as you know we might even hold a hearing about it, you never know. the plant is if we don't express clearly what we mean, it is still our game that counts. the basic approach is the only different where judges interpret the constitution in other words the statutes do not mean what the judges say they mean how could the constitution be and whether the judges say it means? >> in a sense the answer is it shouldn't when i have the statute when the judges have the text and it isn't clear in the questions they all have the same weapons, they read the text, look at the history, look up the

traditions aren't the words of habeas corpus, a lot of tradition there. you look to the president's and to what i call the purposes and the values and look to the consequences with in terms of the purposes or by the statute the first thing i want to know is somebody broke that statute those things may be hard to figure out what they mean when we were the other and i want to find out what that is and i want to stick to it. when you are talking about the constitution, because there are words like liberty or because words like freedom of speech it's not so much purposes i would use to describe that. i describe that as basic values, and i think those basic values that were enacted in the 18th century have not changed or at least not much. the values are virtually turtle the the circumstances changed so i say sometimes when we discuss

this which justice scalia certainly knows agrees with george washington did not know about the internet and a lot of our job is to apply the values that are there in the constitution which really don't change or at least not much to circumstances that change all the time every five minutes and that isn't so easy to do. but put at the level you put that which i think is a jury good level, should we follow those purposes in terms of the value of the free verse? a absolutely, yes. in terms of trying to apply it to situations that they did not foresee i think you have to figure out how those basic values apply to the world today her cooking with a word that is international in terms of commerce and the internet and in terms of a thousand different things that face you every day and then how much emphasis you give to what in trying to answer that question is a matter that

sometimes divides judges with the need to answer but i think is a matter that unites them. >> i don't agree with most of that. in fact i hate to say this but i'm not sure i agree with the premise that the object is to figure out what the congress meant. i think our object is to figure out what laws as of the infected one thing that says something else that is promulgated to the people come on i am bound to apply the law. that's what it means to have a government of all that is not of men and that's why i'm glad senator grassley is gone because this is what is a pet peeve. i don't use legislative history, but justice breyer does. i feel we are governed by law

and when i approach a statute or the constitution, i ask myself what do these words mean to the people to which they were promulgated? and once i figured that out i can sleep at night. >> i think it may take a few more years buying confident he will. let me just say it is common today for people to obey what judges and the decisions based on what they want people to do or on whether they like a judge's decision. both liberals and conservatives to that. i'm looking for a more principled objective job description given the title of this hearing, does the constitution itself offer anything to help define the role of judges and is there some practical concrete guidance that can draw from the constitution itself as a way of defining what the judges are supposed to do. justice scalia? >> you want me to start?

>> sure. >> that is a hard problem. your intro suggests a point i wanted to make to the committee. one of the difficult things about the job that steve and i have is we are chris eis in the press for our opinions and of course we can't respond to the press criticism, but that is just the tradition. but usually the criticism and the press and the reaction of the public to the opinion has nothing to do with a law. if they like the result it's a wonderful opinion. and these are wonderful judges. and if they dislike the results, it's a terrible opinion. they don't look to see with the text of the statute is that was before us and weather this result is indeed a reasonable interpretation. none of that will appear in the

press reports they will just tell you who the plaintiff was and who won and if you like the result it's agreed opinion, if you don't like it, it's terrible. that's just one of the disabilities we operate under and that's one of the reasons we are not supposed to effort to whether the public likes our opinion or not. we are supposed to just go down the middle the end interpret the text as we think ought to be interpreted. now how you are quite right that when those those who don't like it, one of our opinions we will call and judicial act itself dhaka could -- activism of what we don't like it to do -- i don't know any solutions. we are both judges. we've been judges awhile. we have a rough idea of what is

to be a judge, and we both know what we are trying to do is apply the law and interpret the law. no one at that level disagrees. how do you do that? i the guy can get a little more specific before i will fight this agreement and that's why i mention those things. if the tax says fish doesn't mean carriage to a cure it isn't an official matter your intent. you have to follow those rules and it rolls out a lot of things so the words are there and the history is there and the tradition is there and the precedent is there and the purpose it may be hard to find sometimes but sometimes it's not the consequence is you don't know all of them but you're some of them and said evaluation in terms of the purposes of you try to do that and justice scalia may place some weight on those things and i will place more weight on to the consequences but that's putting different weight on different parts of tools we all have cookhouse and

then we get into the constitution i say devotee of the values and how the point to the and we can find more in history. but i can see that i'm not going to see history is a relevant and i don't think he will say that sometimes you just don't find that much there and it's a question of the degree and so forth, but the bottom line for the appeals court judge and it's a very useful bottom line is you have to write an opinion, and that opinion is going to be based on reason. you can't prove it. it's not logic. we are not computers but i can honestly set forth my reasons for saying it's this way rather than that way. and he does the same and one of the great things about the opinion that he writes a dissent or i write a dissent, he will read it and i will read it and respond because i'm not going to let him get away with that or

him i don't know how that got in my opinion i ought to change it and so this streak since the opinions and ultimately they can be read by the public and they are read by some of the public. the strength is its reasoning tied back to the documents and tied back to this country and tied back to a lot of things. but there's the basis there for criticizing and for valid criticism and develop praise or blame of a particular judge, the discourse we love it if people take the opinion at that level rather than responding simply to press report but i think pretty much that's what we see is the job. >> sometimes i feel like i beckham my favorite seminars. >> a lot of times be in the appropriations committee or some other things during this, but i

do want to move this along and try to get time for everybody just because of the justices' time. senator feinstein, just want to know what your order is. i have and i received this from senator grassley, senator gramm, corydon, colburn obsessions senator feinstein, but of all, burba, white house and senator feinstein? speed bixby for mr. treen and for holding this hearing. and justices, thank you very much for being here. i was looking at the faces of the audience most of them younger, all of the glistening in the interested and i think really what it says is the respect that we have for the rules law in this country and the highest order of the rule of law rests with the authority that you have coming and i for one am very, very proud of it a

always proud when i travel that america is represented by the distinction of the great court and now i want to ask you something about 14th amendment, and if both of you could respond to meet its simple no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the united states, nor shall any state deprive any person of life, liberty or property without due process of the law nor denying any person within its jurisdiction the equal protection of the law. it is a woman included within the definition? >> yeah. >> well it's a person, i think it is published. >> the issue is not whether a woman is a person. it's what constitutes equal protection. >> all right.

our women included? >> of course they are included. sprigg well, let me ask you to read disconnect as equal protection mean that you have to have unisex toilets? >> no, no. your quote, mr. justice, in california certainly the constitution does not require discrimination on the basis of sex. the only issue is whether it prohibits it. it doesn't. nobody ever saw it, that's what it meant. nobody ever voted for that. if the current society wants to outlaw discrimination by sex, hey, we have things called legislatures and they enact things called laws. so, why doesn't the 14th amendment then cover women? >> the 14th amendment, senator, does not apply to private discrimination. i was speaking not title lxxviii

laws the 14th amendment says nothing about the discrimination. only discrimination by government. >> so -- i see what you meant. okay. all right. if i can, let's go to justice scalia. i think in the past you've advocated a constitutional interpretation called regionalism in which the meaning of a constitutional provision is determined based on the provisions meeting in 1789. e.u. have also said that government even of the supreme court level as a practical exercises and that well, let me just say what i'm trying to think in other words that the

constitution should be interpreted for meeting its origin and justice breyer, you have taken the position, that the constitution is a living document and therefore it adjusts to times and changes within this government within the time period. could each of you give us your legal interpretation of that and how you approach a? speed it's not quite as starkly different as it is sometimes painted. i tend to think that the value as i say in the constitution you have to go back and find out those values they haven't changed a lot. the fact freedom of expression was important in the enlightenment. it was. so is freedom of religion. so were a lot of those things. and those are the values that

underlie the word liberty. but in my own a few in a slightly rhetorical look simple, which i did, george washington was not aware of the internet. i think we agree on that. and so most of our job is applying those values which don't change very much to a world that changes a lot. and the freedom of speech, those words don't explain themselves. they don't tell you how they are going to apply to a really tough case where the internet wants to communicate something that is a private information about individual. which is it? the right of privacy or the right of expression that predominates there. very hard. and so if i had to incorporate four words i would go back to a judge in the 18th-century. i founded in the gordon were spoken connecticut near ryland but in connecticut. he says the american tradition

of judging involves prudence and pragmatism, reasonableness and utility. paul, i think those are elements of an effort by a judge in a difficult case to work out how those ancient values apply to the modern circumstances. >> i have no problem with applying ancient values as they were understood that the time to the new modern the circumstances. a ritualism doesn't mean the the retial is not covered by the first amendment. of course you have to apply the text of the constitution to the new phenomenon. but what original was some suggests is il's to the phenomena that existed at the time, the understanding of the society as to what the constitution prohibited at that

time subsists for a civil the death penalty. there are good arguments for and against the death penalty. is it prohibited by the amendment? torian the original list the answer is easy of course it isn't because it was the only penalty for a felony when the eighth amendment was adopted. nobody thought that the death penalty was prohibited. it continued to be used it nonetheless i sat with four colleagues all off the court now who fought the death penalty was unconstitutional. that's the difference between the living of rigid the original list approach. of course i will apply edwin ausley in plight the original value i apply it as those values were understood by the people who adopted the amendment. so i look to see what they thought was prohibited and try to carry that forward to the new phenomenon. that is the basic difference between original was some could topple hamas could into the

living constitution. i don't trust myself to be a good what should i say interpreter of money. you are much better at that the iranians. i have very little contact with the american people live sorry to say and the members of the house probably even more. so if you want to keep the constitution up-to-date with current american values you ought to decide what it means and kiss us goodbye. >> i would add one thing. we had this discussion from time to time in public we've had before i don't know if the audience feels so and i think that he's one of the best arguments because it is so funny when i produce very good arguments i think he responds with a joke.

[laughter] the only time i've got a really good arguments what he says is like the two hunters -- >> okay. i will tell it. [laughter] their those people always criticizing our regionalism because it is not perfect. you have to figure out history and what not and that's so difficult. my point is i don't have to show that our regionalism is perfect. i just have to show that it's better than anything else and the story is about the contras in the woods yet there's growling in the brush near them into the open the flap and there's a huge grizzly bear and the start running and the guide is heavier running behind says it's no use we are never going to have the tabare and the one in front says i don't have to outrun the bear i just have to

outrun you. [laughter] i just have to show what's better than his. [laughter] -- justice scalia, you remember my son who used to play when he was eight or 9-years-old soccer with your son. we would say stand there on a rainy saturday mournings and watch while they ran a marathon in the park in south africa with lions running around. he remembered that. that must have been 35 years on this committee. this is the most unique discussion that we've had in the committee. senator gramm? >> thank you mr. chairman. it is unique and farmer, too.

let's talk about some high school students. how do you become a judge of the federal level? by the president of the united states. >> there is a saying good luck beets -- >> from the politicians point of view you make one in the great and people mad. so it's a political decision under the constitution. is it fair, justice scalia, for a president to look at the philosophy of the person they would like to dominate the judiciary? who appointed you? >> ronald reagan. >> you think it was an accident that ronald reagan appointed you [laughter] maybe he would for the phone book and said this looks like a good guy. [laughter]

>> the europeans sometimes criticize our system because of the political a plate of judges. when you you don't touch anything that it doesn't become political it should be political. estimate to any high school student out there i think it should be. we agree to have an election in 2012 and the issues should be what will you pick if you get to the president of the united states? there's nothing wrong with that. in fact i think it's healthy for the public to say we're on a vote, the supreme court does matter. the leedy at the supermarket. i should think about who i am voting for because the court does have a lot of power, and by going to consider that. is that okay, justice breyer? >> yeah but you have to keep a couple things into account and one is when you put on the road you take of politics and that's over and over. >> if you just hang in there.

>> okay. so, the whole idea that a republican conservative would campaign on picking conservative judges is not only okay i think that is to be expected to meet you both agree with that in a liberal democrat -- >> here is my caveat. one, very often that any exposure level of detail a president is disappointed with oliver wendell holmes in three months decided the opposite liam antitrust case like encarved to george with more backbone of a banana and presidents are sometimes disappointed even if the level of general philosophy and that can happen but as far as asking be in a way about the rest of it is -- i see this a lot so i might as well repeat this because it has a point to it that when i asked about the confirmation process and the nomination process, i remind people why was the person who was nominated. i was not the nominating person

i was the person confirmed, i was not the comforting person and to ask me about those prophecies is slightly like asking for the recipe of chicken all came from the view of the chicken. [laughter] >> fair enough but that doesn't mean i can't keep asking. >> senator, i agree that the politics it is a political chet culver corker they get too big for its britches the one czech's the political confirmation process and the appointment process in my view with the court is operating properly, when it is not applying its own view of what the constitution of to be but is interpreting a legal text as illegals to understanding the meaning of those words and the history behind those words there is a lot less need.

tweedle dum and tweedle dee. there is no such thing as a republican good lawyer in the democratic good lawyer. you are either a good lawyer or a bad lawyer. >> the point i'm trying to make is we do have a political person dhaka of tv to appointing judges. that's the way that it works. from the socialist point of view, justice scalia, since i haven't read all of the federalist papers and don't expect to and that probably says bad things about me but at least one and being honest. should a senator say no to the plant meant because of a different philosophy and the senator himself or herself. >> i have views on that but i don't think it's appropriate. i leave you alone if you generally leave me alone. >> let's talk about the

confirmation process and how the votes to you get, justice scalia? >> 98, senator. >> at adel lagat 88 but who's counting. >> i bet you remember that well, don't you? [laughter] >> it's getting more difficult to get someone through the process and do you worry at all that the confirmation process if it gets to out of hand will have a chilling effect in recruiting the best and brightest is that a concern at all? >> it's at that already of the court of appeals level. as the liquid is the biggest threat to an independent judiciary as you see it in america right now?

>> this will surprise you might view is federal judges into what they used to be. when i got out of law school, there were 67 court of appeals judges. a two-thirds as many senators. it was a big deal to be a federal court of appeals judge. >> two-thirds of the people coming to the judiciary today come from the public sector. >> i was getting to that. >> we are becoming a european model. >> that was my point. spinet i've only got 18 seconds. >> that's exactly my point. and the mean difference in my mind between the common law system and the european system is the difference in the character of the judges in the european system, the judges of a bureaucrat who has been a judge -- >> i would argue that we are creating because of problems,

confirmation problems, we are going to get our judiciary to the best and brightest if we don't alter politics and the way we take care of our judges. would you please comment, justice? stick there is much truth to that. it's a great thing i think the federal judge. the federal judge always was and i hope always will be the federal district judge is where it's important, too. a federal district judge is a local person and he or she understands that community and he/she would sit on the bench and his is a fairly high level official added that officials will make it apparent to the community that he or she is willing to give up that personal time face-to-face with anyone in that community. rich or poor which has a problem that calls for the work of the judge at that time is given that is not a bureaucrat, it's not an administrator, it is an elected official as a different job but

here in this country this person who's supposed to be and is a pretty high level official gives you the time that your problem calls for and that's shown in the way the court house looks and its short and the attitude of the judge and in the wake of the community response to the judge and all of that is part of an institution, institutions are not built overnight and then can be heard and the thrust of your question is how we maintain the strength of what has been a unique institution in the world a visit to supreme court now it's the entire federal judiciary all levels and i but you're interested in that. i think it is a problem and some of the things you've mentioned certainly part of the mix. senate isn't just pay it is also the morosity a the newmar of

sevi, the -- tuberosity goes back to the laws that you pass and it's good to the routine drug offenses and to the federal courts and it is just routine stuff that used to be held by the state courts. if you want excellent federal judges you want an elite group and it's not as easily as it used to be. >> i would agree with you on that. boustany things going to the federal system senator gramm raises questions on this and we have pending right now waiting to be confirmed stalled on the floor by objections somewhere judges would represent over 100 million americans who have vacancies today the chief justices said that we are, he's calling it critically, he's

spoken of the critically overworked district frankly i think we have to do a better job getting these people confirmed i don't care who is president but we also justice scalia to many things before federal court they should be in the state court kaput like the old days of jay edgar hoover so they could say how much money they recovered. senator durbin, senator blumenthal, you go first and next but senator durbin. >> ever to thank my colleague from connecticut and think you all for being here for this historic meeting of the senate judiciary committee list are not aware of the fact we have a rather unique where the asset is its the supreme court and we have a chance to break bread and have an informal moment it i will not give the justices name but the last time we got together i mentioned to one of

your colleagues who's been on the bench for some period what time that i was the chair of the subcommittee on the constitution civil rights and human rights, and i ask your colleague without attribution if i could ask you what do you think i should be taking a look at in that constitutional subcommittee in gauging the issues that come before your court, the constitutional questions that present themselves to the generation under the civil rights commissioner redds category it was interesting the justices response was you wanted to give to the number of people who were imprisoned in the united states of america i'm aware of it and i assure you are, too. over 2 million people incarcerated in our jails and prisons were prisoners per capita than any of their country in the world of the is overcrowding it terrible racial disparities in terms of those who indulge in a prison in the

country african-american six times the rate of caucasians incarceration. 2001 studies show one of every 11 african-americans is in prison on parole or on probation senator sessions and by joint forces in a rare bipartisan show. address and address the crack cocaine sentencing disparity i think we could have done it differently but we reach an agreement and that spurred the historic when you consider the different philosophies that report that agreement and reduce some of his incarceration. i'm not going to hold you to that particular issue but ask you if you'd like to comment. where do you think we should be making inquiries at the congressional level when it comes to our constitution and the challenges we face today the sentencing part of that is mandatory minimums are part of that there are a range of things

if there's the articles of the newspapers about that are not controlled necessarily. they are really within your control in the sentencing hearing of the prosecution area in the criminal area that's a huge matter and i'm glad you're going into it. there are other issues that you think are worthy of at least increase at this point. this is within the category of, you know, i leave you alone, you leave me alone it's your call it a policy question i don't really want to get into. this is in the question of ethics which it turns out is handled differently in our different branches of

government. as someone who's been involved and public service for a long time for the need to only be honest in our dealings and the appearance with our work the major ethics law is accomplished this by imposing certain restrictions and the others are staffed in the entire executive branch of government that all federal judges from receiving certain gifts and outside in come under the ethics reform act of 1989 and the employees on the employees of the federal government exempt from these restrictions. do you believe the supreme court should be acquired by delta follow the same financial restrictions as everyone else in government. >> we are her to look. every year it's quite expensive to prepare where every penny that i take an or my life or

minor children, every asset judges have special restrictions there so i don't think the life of the judge in terms of ethics is less restrictive than the life of any other member of the government to my knowledge. i understand that the court is bound by these restrictions by the court resolution adopted 20 years ago in 1991, and i wonder if you could tell me about that resolution is not public law like the other reforms. would you agree that this resolution --

>> they do several different things and i feel one is what money you can take a court can take for the reporting requirements and some of the general ethics requirements that are in cases those a statutory and the blind as per -- period. there are some that were just in the ethics volume which that is probably what you're thinking of and if you ask me which ones are the specifically i couldn't answer, i don't know but there are some that fall in that category. so like most of us i have this whole it used to be seven volumes. i had an ethical question of when i recused myself someday i would look to see what they say whether they are legally binding or something i just follow. so i read them and if i have a public call an ethics professor

there's no one who wants to violate any of those rules, now there is a big difference between the supreme court and the lower court the difference is simply this when i was on the court of appeal if i had a close question i would take myself out of the case and put someone else in. one judge is as good as another wrinkly but if i take myself out of the supreme court that could take the result there's no one else to put in and the parties, knowing that i'm not saying it would but it's possible to try to choose your panel which is undesirable in the supreme court. so what that means is there is an obligation to set the of the north accused as well as obligation sometimes those questions are tough and i have to think them through and i have to make up my own mind others

can't and that's a very important part of being an independent judge. we are given tough questions to answer and so the answer is there is a big set that we are bound by law and there is a set that will not be bound by law but we around in practice and in that set, whether it is the law or the practice, we i think have to think it through and try to work out which is the predominant force there. tosk >> how much of this should be made live node public? the question is whether for example we make disclosures members of congress and lead to the conclusions as to whether we are in a complex situation. i don't believe the same public has made it the supreme court level.

i know sometimes we write opinions about it and usually the press gets an answer, so i'm not sure that there are things that matter and i have to take myself out of quite a few cases because my brother is a judge in san francisco and so if i recused or take myself out to see who's sitting on the kissell usually tel cathie our press officer i say this is normally off the record because i don't want to but the reason i'm not enough on this because my brother's in it, okay, and there's no kind secret thing that goes on to it i can't prove it so in every case but i can't think of any. if i have your indulgence and you can answer this one quickly, you talked about a form of u.s. to step out there's nobody else to step and we have three retired.

supreme court justices now in all of our courts of appeals and district courts those who devotee of the status can step in and there's been a refusal how would you feel if true about allowing the supreme court justices to step in if there's a recusal? who's going to the former supreme court justice. just to step in. i don't think that would make anybody happy i don't know that don't need anybody happy if it is for-for if we can stumble along the way we are your getting the reaction you don't change anything i haven't really thought that went through.

senator lee, thank you very much. >> i don't think it's much of a problem, senator. these are very few cases that we ever by an equally divided, how many? thank you. senator lee petraeus bixby for the justice scalia it is an honor to have you here today. justice scalia i want to follow up on some things you sit in your opening statement. along the lines that it is and probably should be difficult cumbersome time-consuming process in our constitutional republic to enact legislation - the courts can and should play a significant role in ensuring that is always the case the court certainly has played a role in the past in the case is like ims in which the court has

stepped in and said notwithstanding the fact that you, congress, may have found something that makes the process of legislating easier or more efficient or more collegial. you haven't gotten your eyes or crossed your teas in the same way that we contemplate the article 1 requiring the bicameral passage and then present. and so this provision is invalid. so let me ask the question is there also a role for the courts in other situations in which congress, some hypothetical congress might do something different that would prove easier and more efficient and more collegial but perhaps in a way that is antithetical to the constitution? for instance let's suppose congress when legislating on the delicate and pressing issue of maintaining proper records in the printing industry since we are talking about federal legislation these with of course be moving in commerce or taking

and vintage of the challenge and the law in which the congress passes a law that we are outsourcing and dillinger getting the authority to regulate the purebred dogs into the american kennel club that passes both houses of congress and goes to the president and is signed into law and we then have no source to the regulation of the practice to the american kennel club is that which you can step in? but i would step in. i don't know if the court would. i was the dissenting vote in the first case involving, heat to mention this with my friend here since he was on the sentencing commission. i thought when congress created the commission to decide how many years everybody should spend in jail because presumably

congress didn't have the time for themselves and just left to this commission to do it i didn't think that that was constitutional, so i'm sure i wouldn't like your dog breeding body either, but i can't speak for the court. i don't know what the court would allow it to respect for rescue personally looking at it and the fact it's more efficient not withstanding the fact you have bicameral presentment the problem is that you delegated lawmaking power. >> exactly. >> you have to be careful because i just read this and john stevens took the first chapter he says john jay and the first chief justice in george washington went to him and said i have a lot of questions here i don't want to do anything unconstitutional here are a bunch of them would you answer and he said no advisory opinions it's not giving any but the reason of course is he didn't know the answer. [laughter] and he was right.

his tenure on the court proved to be short-lived. >> the situation you poses different of course from your leading it to an agency. >> if you leave it to an agency coming you are giving it to the executives. the executives can make rules. you can't run an executive operation without making rules. the door opens at 8:00. for the interior department you can't have fire on public land. you can't raise private capital. it's up for the agency to make rules but there is an obstacle that discourages you from getting too much power to the executive agency because you are increasing the power of the president. you are a competitor you know the separation of power with different branches competing and there is no such disincentives

when you leave it to the private group that you're talking about to read the secure delegation of legislative power you are not authorizing and the executive to act like an executive but you are delegating legislative power to of to a group that has no executive authority. >> based on the fact this is and executive branch agency which at least in theory is subject to the control but to the direction of the chief of executive. >> i did that is right and you are talking about the doctrine of an unconstitutional delegation of legislative authority which is a bad name for it because there is no such thing as a constitutional delegation of legislative authority. you cannot delegate legislative authority. now when you give rulemakings to the agency, how far can you go? can congress just get together and say the president can do

anything he wants and adjourn? of course not. that has to be unconstitutional. but is it up to the courts to decide where the line is drawn between giving enough authority to the chief executive and too much of 40? it is simply a question and i for one would not apply, would not let the courts apply the doctrine of the constitutional delegation where the delegation this to the executive. >> as long as it is to the executive branch agency. >> some of my colleagues what i suppose. >> even the situation we passed the law saying for example we should have a good law. the power to make good law is delegated to the department of the could block. if a good and talking abut any real situation. i can't imagine sticking my toe in that water. >> okay. justice breyer, had a question

for you. i really enjoyed reading parts of your new book making our democracy work. it's very well written a fascinating and a good reading for any loss to did orval your or american who wants to learn more of the system. you suggest page 126 there is really an easy answer to question what level the government should be responsible for helping resolve the problems and potentially call for legislation

>> my point that i was making, by officials that the state, and so you will make such judgments on such matters as you believe are appropriate in light of how people feel and partly what you're trying to represent, but that it is a lot of that is your decision. >> of course you have to make those constitutional decisions. you take the very same hope that i take. the only reason i can look at the federal statute and say i have to disregard this because it does not comport with the constitution, the only reason is that i've taken an oath to uphold the constitution. you take the same of. so we give difference to legislation on the assumption that the members of the senate and the house have tried to be faithful to their growth. if indeed they're not even looking at or even thinking about the constitutionality of that, that presumption should not exist. yes, of course.

>> in that respect and to that degree, our oath to uphold the constitution and our commit to not overstep the bounds of federalism means more than doing that was the mind-set we can get away with in court. >> i think you have to make your own decision about constitutionality. in normal times you follow what the supreme court law has said, but we don't strike down any of your loss. people sometimes -- we never strike down your laws, gentlemen. it -- we just ignore them. [laughter] wear your law does not comply with the constitution, it seems to be a law that really isn't, and so we ignore it and apply the rest of the law the statute notwithstanding, as one of our early cases put it, but it is really, you have the first cut, and the most important cut. >> thank you. thank you, mr. chairman. >> thank you very much.

i thank you again for letters -- letting senator durbin go out of order. >> thank you, mr. chairman, and thank you for having this hearing. thank you, justice brown and scalia for spending so much time with us and having some much patients with our questions. before coming here and, as you may know, one of the more junior senators. i was attorney general of the state of connecticut. did not have the honor of knowing mr. roux for about 20 years. the highlight of those 20 years was that cases that i argued before your court, so i have been waiting for the day. >> this is payback. >> when i could interrupt you as mercilessly as you did and give you as hard a time. fortunately in those cases you decided the right way, some going to avoid the temptation. but i was very impressed and

moved by your explanation as to why you think it is so important for the public to understand and appreciate what judging is and what role it plays in our system. i agree with you totally that not only is there a need, but that no is a lack of that understanding. and so i guess i say it's not only one has argued, but also as a former law clerk who sat through a year of arguments and learned so much about the system in that process, why not open it to video recordings? one not in the federal courts give the public the benefits of seeing it firsthand in your court and other federal courts and so appreciate really the quality as well as the diversity and extraordinarily often excruciating difficulty of what you do.

>> senator, when i first came on the court i was in favor. you're just talking about televising the arguments, not the conference. the resilience of pre court, the televised conference. >> i would never think of televising. >> thank you. norwood night. i was initially in favor of televising, but the water i have been that the less good idea at think it is. the justification usually put forward is we want to educate the american people about what the court is. now, if i really thought the american people would get educated i would be all for it. if they sat through the day of our proceedings gavel-to-gavel, boy, what it teach them a lot. there would line up we are not most of the time looking up at the sky and saying, should there be a right to this or that? the real law, bankruptcy code,

internal revenue. people would never again come up to me and ask, as they sometimes do, justice, why do you have to be a lawyer to be on the supreme court? the constitution doesn't say so. of course it doesn't, but 99 percent of what we do is lock. stuff that all the lawyers can do, and if the people would learn that it would be a great piece of education. but for every ten people who sat through our proceedings gavel-to-gavel there would be 10,000 who would see nothing but of 30-2 take out from one of the proceedings which i guarantee you would not be representative of what we do. they would in effect be given a misimpression of the supreme court. i am very sure that that would be the consequence, and i'm not in favor of televising it. >> but it would for high-school students or even middle school students and for the general public who were interested in an

important and pertinent case provide a means for them to see what now only a very limited audience can view because of the size of the court. >> but for those who are interested in it, surely the tapes are good enough. >> well, the tapes, with all due respect, and i understand your argument, don't convey in the same way with as much interest the kind of debate, back-and-forth, the visual sense of the action in court. i know and you know really how dramatic it can be. >> to sit their like sticks on shares. there's not a whole lot of visual motion. there really isn't. it is mostly intellectual motion. >> certainly is gripping if you are answering the questions.

[laughter] justice. >> guest, to you have a different you? >> sort of. a little. i think we are conservative. you would be to if you're there. the court has lasted the country well as serve the country well over a long time. we are there for a short time. we're trustees. we don't want to make a decision that will be not reversible and hurt the court. the start there. then sometimes we have the term-limits case out of arkansas. i just wish people could have seen that. it was such a good case. you had jefferson on one side and madison and hamilton on the other side. it was the term limits. what you saw is everything evenly balanced with the president's. i won't go into the case, but if they could have seen that across the country everything, people would have been able to see nine individuals struggling with a really difficult and important

constitutional question that would have been good for the court and everybody. what's the problem? well, one problem is that we are assembled, and a fur coat of were a similar chord you could probably have every criminal case in the country and you would get rid of what. what about the criminal witnesses? you don't know what happens. or with people, put the misimpression, namely the oral argument is 5% of the case, 3 percent of the case. really done in writing. they don't see that. more importantly people relate to people. you relate to people, i do. when you see them they are your friends are not your friends or whatever, but we are making decisions that are there to affect 309 million people who aren't there. in our minds we have to take those 309 million into account. will that come across? then there is the problem that justice scalia mentioned, which

is you can make people look good or you can make them look bad, depending on what 30 seconds you take. it's already called the personality, and let's not make it worse. we wear black robes because we are speaking for the law, not for ourselves as individuals, and that's a good thing. add those up and you say, i don't know. i would like to know more. i really would. there are places that have it and don't have it. there are courts that have it and others that don't. canada has it, california and some situations. a hundred different situations in respect to that. why can't we get some real information, not paid by anybody that has an interest in this. you were some of the foundations and see what happens to attitudes, judicial attitudes to others. so what you are getting, i think, and maybe eventually it is going to be there is no other way to see things but visually and everybody is doing that. it just seems weird but we do

now. it will all change, but before that time i think information is something that would make be easier. and so i've become easy about it and reasonably convinced that it will hurt the institution, you're going to get a conservative reaction. that's what think is the truth. >> senator, it may be unfair to put this question to you since you are such a youngster here, but to you -- >> everything. >> to you really think the process in the senate has been improved since the proceedings have been televised? >> well, just as he took a pass earlier, i think that there are mixed views, but in general i think that openness and transparency improves institutions. for all the reasons that you have so eloquently talked about your role in educating the american public, i think that an

audio and visual recording of supreme court proceedings would potentially do the same, and i think that whatever the results of televising senate proceedings, and i was only facetious when i said i would take a pass, i do think that this has been a step in the right direction and providing more transparency and disclosure and understanding on the part of the public. now, i will let you and the public be the judge of how it views us, but i think in general americans should understand the challenges as well as the role that your institutions face. since my time has expired i want to thank you again for being here, and i am not at all dismissive of the points that

you've made. on the contrary, i have great respect for them, but perhaps we can provide you with some more information that would be persuasive in the advantages and the positives and in those kinds of greater availability or accessibility. thank you for being here today, and i also wanted thank you for raising the issue of state courts because i am one who has spent a lot of time in state courts. you often have to consider the results of state court. all too often we in this body fail to understand how to enter role the state courts are to dispensing justice in this country thank you. >> thank you very much he had been waiting patiently. >> thank you, mr. chairman and both of you for attending. your comments and insight. i hope the young people have appreciated this. i would cite to the young people having trouble around the world in this role for a number of years, we have the greatest

legal system in the history of the world. we really do. it is a marvelous thing. value to this republic. people can rely on their dealing in court. they can invest large amounts of money. taken place the liberty of risk and feel like consistently they're getting a fair day in court. i practiced full time before federal judges. united states attorney, assistant united states attorney for 14 years. when i had the law on my side i almost always won. the rulings were for me. if the law was with mayor lost. i think that happens in courts pretty much all over america, and judges try to do that. justice elliott, i do believe it's law. it does take a lawyer sometimes to dig through these matters. i understand the president, but i guess what i was saying is

american people to care they have a high opinion of the court. they believe they you should follow lal. the greatest threat to the court in my opinion is if the american people believe that judges are consistently redefining the meaning of words to the better their agenda with their views for the conservative or liberal. lama is not the essence of what you do. my own observation from the political world and the legal world. the more activist or more living constitutional view of the

constitution, but if it goes beyond that in my view the judge should not be confirmed. the nomination not be confirmed. i have to know that when they say that they understand and we will serve under the constitution and law that they're willing to comply with that. so that's how we wrestle with these issues. each senator has a different standard. >> you don't have to scare me, senator. >> no. professors and all steam made a speech to the 11th circuit one time, and he said in essence, he called on the judge's. in his few to enforce this constitution. we establish this constitution to the united states, and he said the good and bad parts, whether you like it or not in the long run, that document will

be stronger if the kirk -- course and force it as it is written, this constitution. do you agree with that? >> well as to built just to discuss that point. >> yes, sir. i certainly do. i don't think -- i said this and some talks. i think that the -- what shall i say, the controversial nature of recent confirmations is attributable to some extent to the doctrine of the living constitution because when you, indeed, have a supreme court that believes that the constitution means what it ought to mean in today's times, it seems to me a very fair question for the senate to ask for the

president to ask when he selects a nominee. what kind of a new constitution would you write? if you believe this isn't there. that seems to me it's much less important whether the person is a good lawyer, whether the person has a judicial temperament. what is most important is what kind of a new constitution you want to write. that is crazy. it's like having the many constitutional convention every time you select a new judge. i am hopeful that the living constitution will die. [laughter] >> i mean, what you said, of course i agree with that. this constitution, i said constitution because of likely to think of john marshall's famous words. it is a constitution we are expanding. he is thinking that that

document has to last us for 200 years. as i say that doesn't mean you change the words, but the hardest problem in real cases is that the words life, liberty, or property to not explain themselves and liberty, nor does freedom of speech say specifically what counts as the freedom of speech. and therefore there is a job and lower-court judges come to different conclusions on the same difficult question of what happens when you're on the internet and to reveal some of his personal information and then it's picked up in a newspaper. how does the freedom of expression and evade there? does it extend to that invasion is something the person would like to keep personal and does it depend? in other words, very complicated. trying to apply this constitution with those values on the words, to circumstances that are continuously changing is not something that can be done by

computer. neither of us think that. no one thinks that. and therefore it calls for human judgment. as soon as human judgment enters the picture fallibility as possible. and then some of us think that, oh, but the really reading that history carefully we can get answers. be aware of the judge let me who tries to look to see what our circumstances now and how it fits today because they're is a risk with me that unbeknownst to me myself i will become too subjective and will tend to substitute what i think is good for the constitution as it was written and intended to apply. what i say is, yes, you are right about that. all i could do is be on my guard right by opinions cannot try to look to objective circumstances, and i see the opposite danger. the opposite danger is called

rigidity. the opposite danger is interpreting those words in a way that there will no longer work for a country of 308 million americans who are living in the 21st century to work in the way the framers would have wanted them to work had they been able to understand our society. it is a constitution. >> do you have a hearing to determine whether it will work for not, like congress does? >> what do you do? you have to look to the examples. what's a good example? a good example where we didn't agree. there is -- you know, there are cases where you see will of work? the what you're doing is looking to what are the free-speech consequences? we had a case. we had a case where somebody took a tape recording of something that was in the public interest that involves some this personal conversation and then

threw it over the transom into a newspaper. they printed it and there was a law saying you could wiretap to get that information. how did that all fit within the framework of free expression? and so what you try to do is see what are the risks to the expression, what are the expectations of the individual. you have 42 briefs filed that are helping you on that. so i said -- >> those the new phenomenon. you and i don't disagree. >> he stayed right with me on that. >> you have to calculate the trajectory. let's take the first amendment. the freedom of speech. it was absolutely clear when the people ratified the first amendment that libel was not part of the free no speech. that included libel a public figures such as the gentleman. but the supreme court in a case called the york times versus

sullivan, a marvelous example of the living constitution decided it would be a good idea if there was no such thing as libeling a public figure so long as you have somebody who told you this that you believed. now who authorized the supreme court? that may indeed be a very good rule. the people are free to adopt the rule by legislation. could have amended its loss to eliminate the libel for public figures. don't charge in flexibility. let's and flexible is the inability now to change the libel law to the supreme court has instituted through the new york times versus sullivan. it may be a good law deadlock, but you can't change it. nobody can. i guess we can change it. >> mr. chairman, can i just think both of these witnesses for their great comments.

i vote for well over 90 percent of president obama's nominees, but i do think we have a range in which if you believe there are too flexible about interpreting then i would conclude there are not faithful to the constitution. therefore i could support them, even though they may be wonderful and decent people. intellectually gifted in that regard. so it's -- one of my standards is the death penalty case. in the judge that calls for the elimination of the death penalty really should be on the bench. they won't give my vote for the bench, but we all have individual standards, and we wrestled with that. all in all we have a great judicial system. i congratulate you. >> thank you. thank you very much. >> resist the temptation.

the white house will be of last question. i can't think the two of you enough for being here, and also something, but it -- >> gentleman, let me join the chairman and thanking you for being here. as to individuals who have been here for the confirmation process, impressed you're willing to return. [laughter] >> it was in bed for either of us i don't think. >> it has done livelier. >> we have talked a lot today about the role of the judiciary and the larger american system and architecture of government. i wish you would say a few words about the role of the jury within that architecture and whether or not you see the jury as it just the little piece of fact-finding machinery for

dispute resolution or whether the founders and you saw and see a larger role for it as a political small institution in our system of government? is it an important piece of our government so architecture as well as our dispute resolution? >> absolutely is, which is why it is guaranteed in the bill of rights in criminal cases and, indeed, and all civil cases involving more than $20. the jury is a check on us, a check on the judges. i think the framers were not willing to trust in criminal cases the judges to find the facts. indeed, at the beginning when the constitution was ratified cherry's used to find not only the facts but the wall.

this was a way of reducing the power of the judge's to condemn somebody from prison. absolutely is the structural guarantee of the constitution. >> judge. >> yes, i think it is very important. i have never been a district judge. i was an appeals court judge, but my brother is a trial court judge. i was there a while ago in san francisco. he said, what he to see me selected jury. i was on a jury in massachusetts, gun selected, but he said he shouldn't go through your life without seeing that. congratulations. he now know how to select a jury. i saw a morning pass which was just terrific. you take 12 people randomly from that community and two alternates. by the time they're finished their thinking that there is

this feature of this individual who is the defendant, in all likelihood in our hands. they take that because of the instructions and a level where the case as a very, very, very serious manner. they are participating, they are part of the government of the united states. you begin to think it is a wonderful thing. before you deprive a person of his or her liberty you go through this process where the community is broad and as really judges of the facts. they are just a fact finding machine. this is a way of saying to people in a community, it is all of you in this democratic system who will participate in this terribly important matter, a matter of depriving an individual of his freedom. just listening to the instructions and noticing the jury's reaction, they take that and, and i saw the same thing in the courthouse in boston where our room is set aside for that.

they have things for people to read in that room. the judges talk to them in a way that when a person comes away from the jury, and i think most of them do, they are very proud to have participated as a citizen in this exercise of application of kiddy power. i find that partly fact-finding, partly showing people how they too are part of the government of the united states and its most important processes in a way of overcoming isolation and bringing into our community into the legal process. very good thing. >> at the time that the constitution and bill of rights were adopted, my understanding is that the founders also had a fairly skeptical view of governors, the colonial governor said shown considerable arrogance and high

handedness. there were skeptical of assemblies. thomas jefferson had described the virginia assembly as 207 tyrants replacing one, and it was not a big improvement. i probably have the number wrong. [laughter] and i wondered if the stature of the jury in the architecture of american government could not just be as a check on judges, but also as sort of the last bastion where somebody who was put upon or set upon by political forces can get away from the political voice is that most of those cells to corruption, governors, assemblies, and get themselves before a random group of their peers if the cases right and that has a slightly larger significance than just as a check on the wall but also a check on all of bus and the rest of the system of government.

>> i think that is probably right if you believe the juries can ignore the wall. where they think fed in this case the law is producing a terrible results. they do that sometimes. >> are quite sure. that makes them a check not just on the judges, but of course on the legislature enacted the law to apply in this particular situation. i am a big fan of the jury, and i think our record is, too. >> let me ask one final question about, you know, the jury has this fact-finding role. what is the role of a court of final appeal with respect to the fact finding and hypothesize that you have a case in front of you from the state supreme court the state supreme court has indulged in fact finding that the supreme court level.

what standard of review or difference to you and the united states supreme court the court findings of fact that have been in builds ten by a state supreme court that is before you, whose decision is before you on review. >> the kate supreme -- the state supreme court has overruled the jury's finding? >> it is in the course of this discussion. no record to support it. that's not the issue. your credential. >> i think if it's a criminal case the somehow is being appealed to us for violation of federal constitutional provision, if the state supreme court has made a finding of fact it is not supported in the record and if that finding of fact is crucial to the conviction we would set the conviction aside. >> there is a rule the says if there are two lower courts that hold a particular finding of fact we will go into further. it is an area that i sort of

noticed over time, like the finding facts for particularly bad. but nine people and to try to get people to read this enormous record and come to a conclusion is we are just not very good at it. so we have a lot of rules. you can never say never. you never say never about anything, but by and large we stay away from a fact-finding. >> the last senator, i stand between you and the exit and i will not trespass on your patience with us rather. again, i do appreciate very much that you have returned to this chamber and share your thoughts with us this afternoon. >> thank you. >> my colleague and i have enjoyed it. >> to our surprise, i might add. [laughter] >> we did enjoy it. >> in the west, i appreciate you excepting the invitation. i will put it to the record the letter from the chief justice.

he was saying very approvingly. i think i can speak for all the senators year, all parties. this means a lot that you did this. i hope it means. now looked at the students here. i hope i schools we will look at this. i hope colleges to look at this, not just law schools. we made a copy and everything else. we are in a nation where too many times people look for a bumper sticker solution to everything. the right of the left. a little bit more complex than that the sense of history never heard anybody. the two of you have given us a sense of history. i applaud you both for that. if there is nothing further we will stand in recess. >> thank you, mr. chairman. >> thank you.

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[inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations] >> the supreme court began its new term this week and is expected to hear cases on topics including police tracking suspects with gps, indecency

standards on television, and possibly whether the federal government can require people to buy health insurance. every friday afternoon during this session we will hear one of the court's oral arguments on c-span radio. it will also be on our website, c-span.org. >> during deliberations the only people allowed in the supreme court's east conference room of the nine justices. who gets the door? >> my first or second conference i was paying very close attention to the discussions. i failed to hear the knock on the door. on my left and my right, they both got up and answered the door. then maybe feel like i was about 2 feet high. i learned from that that one of the most import jobs in the junior justice is remember that you are the doorman. >> retired associate justice john paul stevens on his new memoir, five chiefs, sunday

night on c-span q&a. >> in a few moments british prime minister david cameron speaks to the conservative party's annual conference. a little less than an hour, a forum on the history of race relations in the u.s. and then we will be aired the senate testimony of supreme court justices on the constitutional role of judges. a couple of live events to tell you about tomorrow.

>> the a new conference. the prime minister. britain will not join the eurozone. he also talked about the economy, education, and immigration. this is a little less than an hour. ♪ [applause] >> thank you. thank you. this week in manchester this party has shown the discipline, the unity, and the purpose that is the mark of a party of government. i'm proud of my team. i'm proud of our members. i'm proud to leave this party, but most of all i am proud of you. you have made this week the success that i believe it has been for our party and for our country. people have very clear instructions for this

government. lead us out of this economic mess, do it in a way that is fair and right, and as you do it please build something worthwhile for us about children clear instructions, clear objectives and for me a clear understanding that in these difficult times it is that we need. to get our economy moving, to get our society working in a year when the world will be watching us to show everyone what a great bird really means. first, i want to say something to everyone in this hall. despite the predictions you won elections all over our country this makes. let us hear it for those great campaigns that you fought and won.

[applause] [applause] thank you for something else. in that referendum you did britain and service, and you kick that excuse for a voting system of the political agenda for a generation, so thank you for that too. [applause] [applause] and next year let us make sure we keep london conservative. [applause] [applause] you are not just winners. you are doers. this summer as before conservatives went to rwanda to

build classrooms, teach children, help agribusinesses, social action, that is the spirit of the modern conservative party. here at this conference we have been recorded audio books for the blind. no, i look very carefully at the books that my colleagues chose. george knew exactly what he wanted. he went straight for the man who would be king. [laughter] so i am -- instead he chose the joy of. [indiscernible] there was one that i chose personally. i said, kent, this one is called crime and punishment. i want you to read it twice i think after yesterday we should probably have a group meeting. although if you read that book to your children at that time

you will remember that the cat helps the police to catch the burglar, not keep him in the country. [applause] [applause] this is a party, and ours is a country that never walks on my. earlier this year some people said to me, libya, that is not our concern. telstar what you can finish. some people even said to me, better do democracy. if we had stood beside the spring people in the does it would have been massacred. don't let anyone say that this was in our national interest. we remember when he did. he was the man who gave semtex to the ira. he was behind the shooting of a police officer and a lot of square. he was with possible for the bombing of a plane in the skies over lockerbie. i say let us be proud of what we

did to help the libyan people take back their country. [applause] [applause] in afghanistan today there are men and women fighting for britain as briefly as any in our history. they come from across our country, england, scotland, wales, northern ireland. they now have the equipment that they need and are on target to bring them home by the end of 2014. they're says been a campaign of the incredible courage and sacrifice. i know that everyone in this call we will want to send a message to everyone who serves and everyone who has served, to those in uniform and our armed forces and police, and to those not in uniform will keep us safe from terrorism on our streets. we thank you, we salute you, we are proud of what you do for our

country. [applause] [applause] the world is about moral strength as much as about military might. a few months ago i was in nigeria on a trade mission. while i was there and i visited a vaccination clinic. it is an experience so never forget. it was very hard, pretty basic. the lights kept alive off. the rows of women cuddling their babies, this place was a godsend. one of the nurses told me that if it wasn't for british aid many of those beautiful babies would be dead. in four years' time this country would have helped vaccinate more of the world's poorest children then there are people in the old england. of course we will make sure your money goes to people fled needed

most. it will do it in a way that was transparent and accountable. but i really believe that in spite of all our difficulties this is the right thing to do. it's a mark of our country and people that we never turn our backs on the world's poorest, and i believe everyone in britain can be proud of the fact. [applause] [applause] in tackling terni, in fighting poverty. but to help the libyan people there was something dispiriting about the debate here in britain. it was that some people thought we should do what we did. that is their right, appointed you. it was that so many people actually think britain could do something like that anymore. you hear that kind of pessimism. our economic future, our social

problems, our political system. our best days are behind us. were on a path of certain decline. i am here to tell you that simply isn't true. of course if we sit around and hope for the best the rest we will leave this behind. if we fool ourselves that we can grow our economy, but our society, give our children the future we wanted to have committed free flow so that we can do these things without effort, correct past mistakes, confronting vested interest that no. the auckland to get anywhere. if we put in the effort, correct those mistakes, confront those vested interests and put -- take on the failed ideas of the past we can turn the ship around. nobody wants false optimism. i will never pretend there are shortcuts to success. success will come to the right ideas, the right approach, the right. from government to set out the direction we must take and the

choices we must make. but also from new because the things that will really deliver success are not politicians and government. it is the people of britain and the spirit of britain. some people say that to succeed in this world we need to be more like india or china or brazil. i say we need to be more like us, the real loss. hard-working, independent, creative, adaptable, optimistic, can do. that is the spirit that has made this united kingdom what it is, a small country that does great things. one of the most incredible success stories in the history of the world, and it's a spirit that i believe is alive and well today. i see it in the head teacher that i met who started a preschool from scratch and is now four times oversubscribed. what is our ambition? to do it all over again.

i see it in the group of cheapies who have taken more control of their budgets and have their patients, some of the poorest in the country. that is. i see it in all that we saw this summer. dan hudson, he wants to the riots unfold on television. he didn't sit there and think, out just leave it for that council to clear it up, he got on the internet, setup the call, and with others to start of the social movement to be people picked up the brooms and reclaim the streets. the argument i want to make today's this. works. i know how tough things are. i don't for one minute underestimate how worried people feel, whether that's about making ends meet with the state of the world economy, but the truth this right now we need to be energized about paralyzed by

gloom and fear. half the world is building. let's go sell to them. many of our communities are thriving. let's make the rest just like them. there is so much that is great about our country. we don't have to accept that success in this century automatically belongs to others. we just have to remember the origin, the people of britain taking the lead. that is. [applause] [applause] that is why so much of my is about unleashing your, giving everyone who wants it a chance to seize the opportunity, support and above all the freedom to get things done. giving everyone who wants to believe that the competence of working hard and taking responsibility will be rewarded, not punished.

let us reject the pessimism, let the spring on the can-do optimism. let us some of the energy and the appetite to fight for a better future for our country, great britain. [applause] [applause] now, of course, that starts with our economy. as we meet here in manchester the threat to the world economy and to britain is as serious as in 2008 when the world recession loomed. the eurozone is in crisis. the french and german economy has slowed to a standstill. even mighty america as questions about her dead. it is an anxious time. prices keep going up. all the news is job losses,

cutbacks, closures. you think about tuition fees, house prices, the cost of a deposit. you wonder how our children are going to manage. of course government can hold, and this one is. we cut duties, skeptical whether payments. we closed council taxes this year, and as george said in that excellent speech on monday we are going to freeze it all over again next year. [applause] [applause] but we need to tell the truth about the global economic situation. people understand that when the economy goes into recession times get tough. normally after a while things pick up. strong growth returns. people get back into work. this time it is not like that, and people want to know why the

good times are so long coming. the answer is straight forward, but uncomfortable. this wasn't a normal recession, it was a debt crisis. it was caused by too much borrowing by individuals, banks, businesses, and most of all by government. when you are in a debt crisis some of the normal things that government can do to deal with the normal recession like borrowing to cut taxes or increasing spending, these things will work because they lead to more debt which would make the crisis worse. why? because it takes risks from higher interest rates, less confidence, and the threat of even higher taxes in the future. the only way to answer the debt crisis is a deal with your debt. that is why households are paying down the credit-card and the store card bills. means banks cutting their books in order, and it means governments all over the world

cutting spending and living within their means. this coalition governments, conservative and democrats, we have led the way here in britain. our plan is right. our plan we will work. i know that you can see it are feeling right now. think of it like this. the new economy we are building is like building a house. most important part is the part you can see, the foundation's. slowly but surely we are laying a solid foundation for a stronger future. the final point is this. if you don't stick with it it will work. there is something else. [applause] [applause] there is something else that we

have to stick to. because were not in the eurozone we can lay these conditions ourselves, on our own terms of our own way. let me say this. as long as i am prime minister this country will never join the euro. [applause] [applause] and i won't let us be sucked into endless bailouts to countries that are in the euro either. yes, we are members of the imf, and we have our responsibilities there, but when it comes to in the ural bailout mechanism my approach is simple. labor got us into it, and i make sure we are getting out of it. who. [applause] [applause]

now, of course, our whole deficit reduction program is really just one big bailout of the last labor government. we have been subjected to the sort of national apology tour by labor is last few months. sorry for sucking up to khaddafi, for not regulating the base properly, for crushings of liberty, failing to go green cannot building a house is. sorry for the infighting that made this the most dysfunctional government in the history of our country. you know what, nothing, not a peep on the thing there really need to say sorry for, wasting billions and billions of your money, no apology for that little. [applause] [applause] you know what the shadow chancellor said last week? labor didn't spend any more money than they had available.

hello. ed, you spent 428 billion pounds more than you had available. that is only, that is only one conclusion that you can draw from this. we must never ever let these people anywhere near our economy ever again. [applause] [applause] as before it falls to us to clear out after the labor government. i insist that we do it in a way that's fair. you can't cut the deficit the size of ours without asking everyone to make a sacrifice. those with the most money are bearing the biggest burden. we have imposed a permanent levy

on the banks getting them to pay more every year that labor did in one year. we raise taxes on people who make their money overseas but to live your command at the same time you have given real help to the poorest and the most vulnerable. we are taking over a million of the lowest paid people out of taxes together. after that scandal of the 75 ft. raised for pension as we are looking pensions to earnings so elderly people will be 10,000 pounds better off in their retirement. yes, this is a one nation deficit reduction plan for 01 nation party. [applause] [applause] and my friends there is something else that we, that we, the conservatives, have done. the national health service is the most precious institution in our country, the most precious

institution to my family coming to your family. at the last election it was labor policies that cut the in a chess. it was liberal democrat policies to cut the na chess. it was our policy, a conservative policy to protect the and hsn spend more on it this year, next year, and the year after that because we are the party of the in a chess and as long as i'm here that's the way this point to state [applause] [applause] but real fairness, real fairness is in just about what the state spends. it's about the link between what you put in and what you get out. as we debate what people get from the state let us remember how we generate the taxes in the first place. to the union is planning to strike or the products set to pensions i say this, you have every right to protest, but our

population is aging, our public-sector pension system is unaffordable. the only way to get public sector working at a decent and sustainable pension system, which i want to add to dubai by the taxpayer is to ask public servants to work a little longer and to pay a little more. that is fair. what is not fair, what is not ride is going on strike and sitting the very people that are helping to pay for your future pensions. [applause] [applause] dealing with our debts, that is just line one clause one of our plan for growth. it is just a start. we need jobs. e