>> author and speaker expert joan biskupic talks with the politics of court nominations and decisions and the justices whose lives she's explored. the former correspondent for congressional early, usa today and the "washington post" has written three biographies including saturday but o'connor and the 2014 release on justice so to -- sotomayor, "breaking into the >> host: joan biskupic in the recent book the rise of sonja sotomayor in politics of justice you will did someone is did someone is saying i knew she would be trouble. >> that would be my earlier subject. antonin scalia who said it kiddingly after justice sotomayor shook up the end of

the terms of an art party by getting all the justices to dance with her. i use that is at the scene of what is done between the woman who was so genuine and herself coming into this institution that is so wonderfully traditional and used circular rhythms but frankly she did this wonderful display that showed everybody up at the end of term party and justice scalia who watched it is usually somebody that shakes people up and said i knew she would be trouble. we said it kiddingly but it is a perfect line for a little bit of prepare her bare. >> were there. >> were you allowed to go to that party? >> guest: know and it was tough to get the information. you know how secretive the court is. a lot of people are not aware of how we never know what goes on in the conference on the cases. the journalists were never invited to the end of the term

party. in fact when chief justice john roberts sent us the invitation for this particular party, he reminded all of the stuff that it was just full-time staff and not any contractors or part-timers. it's a very tight family. of course all the justices are appointed for life if it seems like many of the employees are, too. i wasn't at the party but after it occurred, a good source of them told me that a source of justice sotomayor braking and after the law clerks put on -- for the entertainment the justices that with other people and watched. they put on the salsa music and got everybody to give her including the justices. i started snooping around and somebody gave me the actual program and then i went to the individuals that i know are there and talk to the justices

themselves. so in my" i say journalists are not allowed there. most people are not allowed to thereby he re-created it. against the people of that nervous reactions. they like things to go as planned. the supreme court has acclaimed institution. those in the spectator sports store to get nervous because we know they are getting nervous. i cannot stress enough how this is a down to the second sort of institution. and also more broadly certain expectations about people behave and there are certain gets to go here and there and when they line up the reporters lined up

one place and the lawyers lined up another place, the justices come in through the back. everyone has a certain place to go and at the end of the term party it's been going on forever. the law clerks put on this. and the justices themselves perform. then people start to get into it and people are crying and a few justices told me as she approached me i thought i'm not going to get up again and then they get up because she has a sort of leaning way. remember it was a party that happened to come at the end of a difficult term. this was in june of 2010 and this was the term of citizens

united and the term in which marty ginsburg was ill and actually died three days before the party so peter peter ginsberg just endured some of the most difficult days of their life. so she shakes her head and says i don't want to get up and the justice system for marty would have wanted you to. he was a very personality debate the big personality who was the life of the party. so justice ginsburg got out of her seat and danced for a moment with justice sotomayor and then she puts her hands up put her hands up to justice sotomayor's cheeks and says thank you. as if it was uncomfortable and to some some people were not sure what to make for it. the clerks are entertaining or

not. so anyway it was a great thing to find out about and i'm glad i did. >> host: from your book you write about the justice sotomayor but the justices varied in their personal assessments as it is natural that any group. some on have found her warm and amiable and others abrupt and exacerbating. the human level, the differences with her were not small in the larger scheme of the law. >> guest: isn't it interesting? i don't want to make a big deal about the personality clash when it is not a big deal when it comes to the law and also you should know that they always close the brink. among them they have their differences and rolling their eyes constantly. get a load of so and so and they would be very taken aback. an outsider could criticize one of their own and again they have a family dynamic going on.

they have great incentives to go along even though they are different. they are not small in the larger scheme of the law. i want to be able to convey that sort of delicate balance and i wanted to be able to convey the way in which she has been breaking in all her life and i used that incident tuesday if she had waited to another point. she wasn't the kind of person that that is if the term and that's why she became the first hispanic ever appointed to the supreme court so you said metaphorically and i feel like it's actually helpful to the readers to see this clash. some people side to say she

should have never done that and other people say well, you know, you go kind of thing. so i'm hoping people see it in the spirit of the kind of woman that she is into the kind of that kind of justice she is becoming and also may be back the curtain a little bit on what the supreme court is about. >> host: using to emphasize the puerto rican roots more than hispanic. is that fair? >> guest: here's the thing she identifies herself barely as a puerto rican because her heritage comes from the bronx but she has used the term hispanic on herself and she is latina and just so the viewers know those words latina and hispanic are used interchangeably by just about everyone in the u.s. census, researchers, academics associated device is also very much as puerto rican but she also identifies herself more broadly as latina.

when she became a plaintiff she became the symbol for all hispanics in america and something i should say is i haven't quite appreciated the 1990s when the others were being mentioned. the difference is within the community of how puerto ricans are viewed and how mexican-americans are viewed and how hondurans are viewed so i felt like she should've helped educate the differences within the larger under allah and i think that she referred to herself in many ways. >> host: again from the newest book breaking and in the early 1990s, john roberts was a subtle tactician than the aggressive sotomayor but neither black raw ambition as it would be proven when they ended up in the high court together within a decade later. in 2005 george w. bush would nominate roberts to be the chief justice in the early 1990s

roberts worked in the u.s. office of the solicitor general, nearly involved the eagle physicians writing briefs for that office. roberts was a smart political operator whose judgment was sought throughout the administration. for her part of the sotomayor worked the two sides of the nomination process. as a nominee and as a conduit for information. >> guest: she was so politically savvy and they are stylistically very different. we have the chief justice of the united states john roberts very buttoned down individual. i could probably do not give he had before he did and put it on facebook. she is much more out there and she has always been much more free with her movement and with her feeling like she can assert her identity. he's a much more reserved man but they are both incredibly politically savvy.

and i love discovering that in the early 1990s when he was in the solicitor general's office, he actually advised george h. w. bush administration on the judicial candidates and blue and the behold name comes before him but that is sotomayor for the seat so they are crossing paths and if they were sitting around they would say i wasn't that ambitious but no one gets to the supreme court without ambition. the one person i would say that should have an asterisk by his name would have been david souter who he succeeded. he was more of an accidental justice but he still did not lack ambition. but here you have john roberts seemed to always be making the right moves and always quite effectively. and sotomayor who came from a different background but who really picked up on the political channels. and to remain visible in the nomination politics she learned a lot from the first nomination.

i also want to see that she did acknowledge in her own memoir that once she's at her feet on the path of the federal judiciary and once she knew that she would be in some ways giving her career more emphasis than her life she denounced on the admission process she acknowledged just i think sometimes people don't want to be perceived as overly ambitious >> host: how valuable in the research was her autobiography that came out a year or two back? >> guest: i signed the contract it was in 2010 and i have been aware behind the scenes that she was doing her memoir at the same time and mine was never intended to be a biography of them i would've done justice sandra day o'connor and justice scalia. i wanted to do a history of how she ended up on the court and how her trajectory matched the rise of the latinos in america.

i knew i would i would have to build in a biography, and when i found out that she was doing this memoir and a half not been bath and quite announced yet and i found out in a way that i couldn't write about it but it would have been neat here she is barely on the court getting an agent signing the contract again i will never underestimate her. she's very smart and she knew she had a very compelling story to tell as we saw in her excellent memoir entitled my beloved world. at one point i thought well maybe mine will come out before hers. i wasn't finished by those glad i this glad i hadn't because i benefited so much from hers. when i talked to her once in the chamber she said to me did you learn anything new because she was aware that i was retracing her footsteps and reading all of her old speeches and i was visiting the bronx and puerto rico that i learned so much from

the book and i also learned more about her attitudes on things because if you were aware of what she had said in her speeches leading up to her nomination and at the time of her nomination and how she writes in the book you see a much different attitude about how she regarded her mother and how she regarded her father. she revealed her father was an alcoholic and she revealed what it was like living with her mother who she characterizes very cold and detached something that i never would have realized from her earlier speeches so i was helped by her own autobiography s.. >> as the long-time supreme longtime supreme court reporter for usa today, "washington post" are the justices approachable and available to reporters? >> guest: i have had good luck getting in to see them just about as long as i've been

covering the the court but it takes a lot of work because they don't like to have outsiders come in. they don't like to talk for the public record. they don't even live to talk casually to some of us. but as i said they are generally reserved and cautious, nervous. and what and what i had done over time is to try to win their trust and to say i will be very straight with you for how i'm using the material. if you do not want to speak for the record i will look very hard to make sure that what i learned from you first of all is not attributed to the youth but that i use it in a carefully to find out more information. and i think that over time i built up a record of trust because in 2003, 2004 and 2005 i got all of them to talk to me and most of them did speak for the record and then for justice

scalia both of them spoke for the record and gave me 12 different interviews. for justice sotomayor, they didn't want to speak for the record and i think part of it is that she was a new colleague and i do think that the whole ethnic racial overlay does make things a little tricky and i wanted to capture that in the book. and i think that it became to do. with two new 20 thunderbird yet i was able to find things out and i was glad. so it is a work in progress and i think that other reporters have gotten in to see the just justices. when they are selling books books they speak a lot because that is the nature of selling books. >> where did you come up with the title on the american original? >> guest: titles are hard to come up with. you overthink it. editor's overthink it and then

everybody keeps trying and that the brilliant title came from and editorial assistance to my fabulous editor. but she saw from the casual reader was first of all his originalist -- i was explaining his approach to the constitution and i just thought it was really great. it captured it and then as you know the subtitle is the wife and the constitution of supreme court justice antonin spirlea so i've always liked that title and i take no credit for it. a scenic view right of spirlea was shaped by the experience and it's striving. the singular place in the family alone among the adults and in the deficit of his early years with the determined it had been shaping the ark of the future justices white and his views on

the law. >> guest: do you want me to tell you how i found out about his unique place in the family? anybody covering the court would know about the fact that he was an only child. you will just know that he got lots of attention and both of his parents were academics. the father todd romance languages at brooklyn college. the mother was a public school teacher in queens. said he'd gotten a lot of attention. i would not have known that he was the only offspring of his generation if this hadn't happened. i happened to run into the justice and his wife had a social occasion. and i tend to be curious about birth order and i tend to be curious about the fact that he was an only child. i raised an only child that i was to the justice and his wife only children can have certain demands of attention and she

said it do know that none of the brothers and sisters of the parents of both sides have children? and i thought isn't it interesting that he was not only, you know, the staff in his own little family but the star in this huge italian-american clan because his mother was one of seven if i'm remembering right. his mother was one of seven and his father was one of two that he was the only offspring of that generation. and i thought, you know, that isn't the kind of thing that you can pick up through research and the library of congress. you have to find that out from somebody close to the family. >> host: what is your psychologist tell you about him being the only offspring sex >> guest: well, you know, they can only be shining on him. that doesn't take past psychology. that takes observations in the corner. he does bring a lot of attention by what he says. in fact, you know, my book came

out in 2009 and there have been so many incidences since where people would say can you believe that the spirlea said that tax >> host: he didn't be needed softening the position. he believes his job was believed his job was to say whether something was constitutional or not and not to care whether he looked reasonable or not. >> guest: he would say i always looked reasonable don't i. he didn't have a strong self-consciousness. others do. i think it is human nature to be conscious. my subject sandra day o'connor was quite aware of how she was being seen but we are happier to just plunge ahead and if you don't like it that's your problem. >> host: your first subject

sandra day o'connor will be her subject do you think that's a >> guest: she did so much. she was the first woman justice and in 1981 the appointee of ronald reagan's or his legacy lives on in her. she moves on for nearly 25 years. i cast her as a politician on the court. she was an arizona state senator. she was the first woman to be the majority leader of the state senate house, state senate and i thought that contributed a lot to her political sports. i like to say that she came to washington know how to count votes and her legacy was figuring out how to prevail. winning meant a lot to justice o'connor. on the cases and tennis, just about everything she did she was really competitive. and i say on the wall per legacy has been abortion rights. she helped craft the standards that we now have for abortion rights and when the state can pass regulations.

she wrote the opinion that prevailed until today and we are not sure how secure it is, but to be 2003 affirmative-action opinion from the university of michigan case that allows colleges and universities to use race as one of the criteria for assessing applicants. she was quite influential in a federalism area, so she has a pretty deep legacy now because she was more moderate as a conservative as some of that has been erased with the addition of samuel alito more to the right and justice o'connor. >> host: welcome to the tv on c-span2. our guest is joan biskupic. she's written three biographies of the supreme court justices. she is a long-time supreme court reporter currently with reuters and formerly usa today of the "washington post." if you would like to to dial in to talk about some of her books into some of the justices, some of the court cases, we are going to spend the next three hours

talking to the visiting club. (202)585-3880 for those in the east and central time zone 585-3881 if you live out in the west or in the mountain time zone and you can also communicate via social media. facebook.com is our -- you can go to facebook.com/book tv ad booktv at booktv is our third handle. she developed an incremental approach taking her cues from the country and pushing ever so slightly. try to improve the integrity of the local judicial election

she's still very active person x. program trying to help young people understand the three branches of government into what goes on in the supreme court. she's still doing okay. she's 84 now and i hope that we are all like her. >> host: the first sentence in that quote from your book once she found the middle she never left it. did she know, was she aware of her position in the court? yes. if you are the fifth vote you know you are the fifth vote and it's so tight. think what it's like she comes onto the court in 1981. warren burger is the chief justice. the conservatives have more power. she's more in the camp of taste good chief justice burger and her old pal at the time is an associate justice who then will

become the chief justice himself and she is aligning herself more with conservatives and she is resisting pressure from william brennan was the liberal at the time and i think that justice o'connor had a little bit of a reaction going on. the more they try to to push her to the liberal side, the more she was in her early years stay on the right wing. once william rehnquist became the chief, once he left the court and we have more conservatives who are farther to her right i think she she found at the center to be more comfortable. what happens in 1986. rehnquist becomes chief she's not happy with with the way that brennan is pushing her to the left with a disability i want her to go more to the right and i think she sounded very comfortable home and she very much is aligned with the late conservative lewis powell was also much more of a centrist

conservative. >> host: do lawyers taylor their cases and now do they tailor them to anthony kennedy tax >> guest: completely his is the votes to get. he once said to me that is overstated but face it he is the critical swing vote, and on things like affirmative action and abortion and on same-sex marriage he has been the author of the leading opinions on the rights of men and lesbians and he will probably hold the key to whether this supreme court takes up the marriage and how this court rules and the lawyers would tell you directly it's no secret they are trying to figure out what does anthony kennedy want. >> host: how the first woman on the supreme court became the most influential justice.

throughout the confirmation process come even when confronted by bombastic senators coming antiabortion picketers and pushing reporters, she had a picture of the decorum. a lady in pastels. her appeal was nonthreatening and the nation was captivated. now to the most recent book breaking income adjusted for sotomayor didn't mind in the confirmation process talking about her health especially given how public she was with her insulin shots to the administration's probing of other aspects of her personal life particularly related to the former fiancé made her. years later she would complain about the process. you know i don't mean to be graphic but one day after i had been questioned endlessly for weeks at a time, i was so frustrated by the minutia of what i was already being asked about and i said to a friend i think that they already know the color of my underwear. and she leaves the fact that she was a woman a single woman

played a role in the inquiry there were private questions i was offended by it i was convinced they were not asking those questions of the male applicant. you have sandra day o'connor who worked very hard to be the picture of femininity. i remember her saying that she didn't even like wearing pantsuits because she thought they compromised her femininity. and she's born in 1930. she comes of age in the 50s. she is not a rabble-rouser by any stretch of the imagination, but she is trying to figure out how to be most effective for her time. she wants to be visible, she doesn't want to be challenging. she wants to change things but she doesn't want to be overtly challenging for the change. i think they're very comfortable for her.

when she was out there with the horses and cows but once she was in the public eye she tended to adopt the conventions of the day. flash forward. the justice of the mayor born 1954 and things are much different. she is able to look at conventions in some ways and she's also -- she's a new yorker and she's already going to be bold with her personal style. she isn't going to tap it down. one person said she doesn't happen to be puerto rican, she wants that to be upfront. so she did for the confirmation hearings get rid of the dangling earrings and the red nail polish and talk about how she got rid of those things to conform to what the administration wanted. and that's -- that's part of this how it works.

if you want to get confirmed and the administration wants to get you confirmed, the place to sort of show your identity in every way isn't going to be during confirmation hearings and both of my subjects got back. and that. and frankly so did justice only a. all three of them and knew how to be nominees. and so did john roberts. and let say that he sort of did but not quite. and he went into it a little bit more competitive and there were many reasons why he was then defeated that this was all part of the public theater in washington. >> host: has the nomination process always been as contentious but we have grown up knowing it could be? >> guest: it has been contentious in different planes certainly dating back to the late 17 hundreds it was contentious and there were other times even in the lifetime of those of us that are a little bit older.

and remember -- don't act like you don't know those names. i'm talking about the 60s and 70s and harry blackmun got his spot on the sitting court in the 1970s as when he referred to as old number three. he was the third nominee put up in haynesworth and so, we have had some tricky moments before. but think of the '90s when justice ginsburg got through and justice breyer dot through and appointees of william bill clinton and they both were confirmed i believe justice ginsburg certainly it was a 90 something vote and stephen breyer writing was 89 votes. both were approved overwhelmingly by the bipartisan supporters, and for justice

sotomayor and samuel alito and the lesser extent john roberts of that the votes were more divided. >> host: how did you come to cover this up in court and when did you start? >> guest: it was back in the 1988, 1988 or 89 when i switched over to congressional curly and they have an opening for the legal affairs reporter. i was initially interviewing for a labor reporter job but it turned out that the editor knew that i was crazy about the law. i hadn't even gotten my degree and i was mostly covered in politics and government at the time. i always had an interest in courts. and that's why his editors had let her cover the court and cover legal affairs. so i started ages ago. this was in the late '80s covering the senate judiciary committees at legal affairs on the hill and then also picking up the supreme court as an

additional beat. the supreme court wasn't supposed to be at the core of my coverage. i was doing mainly things that were happening on the hill and it was an exciting time. those were the years of immigration reform, they handgun control bill. we had two terrific nominations in clear and thomas and david souter they were contentious moments. so i kept breaking off as much as i could to cover the court and then in 1992 i was hired by the "washington post" to be the supreme supreme court reporter so then i shifted into the supreme court .-full-stop in. and really haven't left. i picked up on other things along the way. and in 1989 is when i started giving the law school last night at georgetown. reporters can't do that now because of the 24/mexican culture that we have but at the time that at the time i couldn't because i was writing for a weekly magazine and i could taste my schedule. then even when i pushed over to

the "washington post" in 1992, i had about a year and a half more to finish up with my my law degree and somehow it worked out so that was good. then i stayed at the "washington post" for eight years and pushed usa today. and now at reuters i am the main person covering this up in court. that is my partner. i do write about the supreme court, but i have broad obligations now. >> host: often supreme court nominees are supported by the president presidents of the most quite person in the country to be on the court. >> guest: aren't they all. that's right. there are many qualified people out there. the years all three of my subjects were chosen there were people who were equally call the fight if not more. the year that antonin scalia was chosen he was chosen by robert bork who they then picked the next year. they had flipped to republicans and democrats after he was

chosen and obviously it made it to work for him to get through. but the year that sandra day o'connor was chosen -- i don't know if ronald reagan would have said she was absolutely the most qualified out there. certainly she was called by for the job but remember she had never served on the federal court. but he has promised to appoint a woman and she knew she was being chosen because she was a woman. so what. that's great. that's what she would say. i was qualified. was i the most clicks who's to say what who that is a number what criteria? and that's the thing i still get a lot with not so much with sylvia. his detractors don't want him there. they just don't want him there. but certainly with my current subject, i still here and i know she years questions about her qualifications but look at the background of 17 years on the lower federal courts and princeton and yale qualified

certainly. but two people she was in contention with at the time were judge diane wood from the seventh circuit. she got the nomination the next year and a judge would have been perfectly qualified for that job. so, there isn't just one person out there for the supreme court and for the many things. >> host: why is clarence thomas so reticent about talking to the media or giving interviews? >> guest: i have to say he gives me good access and i'm glad. i'm sorry that he doesn't talk from the bench. he hasn't spoken since 2006, february of 2006. i think that it actually hurts him and his public profile because things are -- people are puzzled by it and the children that come to the court are puzzled by it and they think does he not have anything to say, is he ashamed of something, what is this all about? he gets several reasons. he thinks while my colleagues

are doing plenty of talking anyway and i want to hear from the lawyers. he once told some schoolchildren that he had felt somewhat self-conscious because the way that he spoke because of his roots in savanna and he was a little bit self-conscious about his dialect. but he's a fabulous public speaker. he has a really great voice. the deep running voice teresa, when you do hear him speak it is quite strong and quite commanding. i remember off the top of my head a little snippet that was done when here's his voice he is like wow where is that coming from. but he has a fabulous voice and he's his part in the visual and he could ask many questions that could shed light on the issue before the justices but he has for reasons only he knows stop asking questions. >> host: it is pretty well-known that antonin well known that antonin scalia and ruth bader ginsburg are friends. are there other friendships on

the courts that are not as well known better special like that? >> guest: that's really special. that one is really special. they got to be very good pals when they were on the dc circuit together. that's the washington, d.c.-based federal appeals court and they were both former professors, so they would exchange their opinions and ask each other for advice just like to academics would do. they are both incredibly smart and they both love opera. one of them is obviously much more out there in terms of his personality. scalia won't stop talking and she speaks at such a lopez i cannot do any kind of imitation of her. she happens to be very personally shy. sometimes she has trouble meeting your eyes but she's actually quite commanding and what she does on the law and it's a good matchup. i will never forget when she said to me talking to her about

that relationship and she said i just love me but sometimes i would like to strangle him. he hasn't been so good to return the favor that way but he really enjoys her so they spend their new year's eve together with their families at a dinner party, and they do lots of social things together. i don't think that there is another pair on the court that could ever be comparable. in the earlier years justice o'connor and lewis powell were very tight. lewis powell is the justice that retired in 1987 opening up the seat that robert was nominated to. the wonderful thing about that relationship for me as a journalist and an author is that he saved all of her correspondence in his archives that are at washington and lee down in lexington virginia. so when i was researching the book on her i was able to find that correspondence and to see you not only her personal

observations about maneuvering on the cases with lewis powell but also how she felt when she was diagnosed with cancer and went through the loss of her parents while she was on the court. so, those two had a very special relationship that i would say was almost as tight as the one between the the justices korea and ginsburg. >> host: you probably saw this in the "washington post." this is robert barnes writing about her when the retiring and dean of the university of california irvine law school. >> guest: he's not retired. as it is a retired? >> host: i apologize. i made that up. he just came out with a new book. [laughter] this is something he writes in his book that is reported. we should realize this is an emperor that truly has no clothes. for too long we treated the court as if they are the high priest of the law or at least if they are the smartest and best lawyers in society.

and then he writes his conclusion and the court has frequently failed throughout american history at its most important task and at its most important moment this isn't easy for me to conclude or to say. >> guest: he used to edit the supreme court. when we go back i write his book as a reader the reader to kind of help with things and he actually read all three and it was tremendously helpful and he was really helpful on justice sotomayor. he really understands the justice into the court. what i ever adopt that view of the supreme court? no. now, irwin who i weigh heavily great praise for is an advocate and he comes out at this from a very distinct point of view. i'm a journalist and author that comes at it from a different point of view.

i'm not as ready to throw up my hands. there are times i'm sitting there and i hear an opinion announced and i think like really. but i find. i've got to write about it and get both sides and get some understanding of why. other times i sit there and think this is really good that this happened but it didn't put in the direction that some might have thought. but i would never say something as bold as the dean would. he has watched the court very carefully. he was a war worn in 1954 i think as sotomayor was. he went to harvard and he's been awol professor.

he has a very wise perspective but it is definitely a perspective that is pretty far on the left and pretty scrutinizing of the supreme court that has throughout its whole history. he is not just complaining about the current court is more conservative, he's also taking issues with things that the warren court did. that really stands the work of liberalism. >> host: or people in the audience myself included who see the supreme court as a kind of calculus equation that is completely understandable how they operate and what they do but at the same time it is very orderly. >> guest: if you are one of my editors i would say it's very confusing.

this is a supreme court that is glad to stand for justice. erwin thinks that it lets us down and i'm sure that it has inevitably it has let down america but it's one of three branches and there are checks on each branch. here's how it works. i was talking to a group of students the other day in the masters program they said you mean that we don't start in january? no and that's maybe why they think it's hard. they begin the first monday in october that is their official start date. but as your viewers know they jumped the gun and with the orders list they haven't said what new cases they are adding for the new term. so we are in the term that starts on the first monday which is october 6 and it will run until the end of june just like

school. what they are doing during this time is deciding what cases to take and the justices have discretion over what appeals and petitions they hear. they don't have to take up every case it comes to that comes to them the way that lower courts have. they get literally hundreds, thousands of appeals formerly known as petitions to them each year. they are on the cycle they are deciding what to take starting in october they are also now subjecting the cases to the oral arguments and the first week in october you are viewers and listeners are going to hear them take up cases having to do with the criminal law issues and religious freedom issues, labor

issues and then they will meet in private. when they meet in private they don't even have any of the secretaries with them it's just the nine justices taking up a vote and they do that on wednesday and friday at the supreme court and then basically in november you start to see some rulings and they it will be mostly the easy rulings. in some of the tougher ones will come out and by the end of june is when we get the hardest cases that were the toughest to resolve. >> host: who gets to the fact the case graft the cases? >> guest: that is a good question because it is a majority deal. say tomorrow, not tomorrow but say october 6 they hear a case involving the fourth amendment protects people from

unreasonable searches and seizures and in this case it excludes the idea of may police stop a car that has a broken tail light and then used that incident to search the car and inevitably find cocaine in under north carolina law you don't have to have have to have two working kbytes you may have to have one so it is the sort of thing that could have been to a lot of people except for the cocaine part. but they will look at whether it was reasonable that the officer stopped the car when they searched and found that cocaine. they will hear oral arguments and it will be an exciting our arguments for those of us and in the wednesday they will take a private vote. sorry again and giving dates at october 8 debate will take a private vote on that case. everything is in a rhythm.

monday cases they then talk about on wednesday. tuesday and wednesday they talk about on friday. i know it's private funding needs for sure. it's able to give pulmonary vote. chief justice john roberts will be at the head of the table and he will say the cop didn't know under north carolina law you only needed one working taillight it was a reasonable mistake or he might say it's the letter of the law we don't want officers not enforcing the actual wall is. i don't know what will go on because at this point i haven't heard the arguments get. so they take a culinary vote and would say that it's 5324 into the chief is in the majority of the five and ruth bader ginsburg the most senior liberal justice is with the minority, chief

justice roberts roberts would then assign somebody to write for the majority. the most senior justice on the winning side assigns that opinion and although losing side they decided the dissenting opinion. anybody can read the current on either side of the general thinking of the court at least now is you want the strongest opinion that has many names to convey the ruling rulings of the court judges and the public so that let's again that they can take the north carolina for the amendment case and say the chief has assigned clarence thomas and ruth bader ginsburg assigned to dissent. this end. they start writing and circulating the draft. they all work on computers but the court is in session and the

messengers take the paper draft and run them from chamber to chamber and that's when i had tremendous access in the first books for thurgood marshall and harry blackmun it was great to see the drafts and the recipient of justices said they would ask for changes and this goes on again if it's a straightforward case they can resolve it in a couple of weeks and if they start having the war of the rhetoric down to the footnote it could take literally months. we just know what happens near the end. i love when i can find information and i love even more when i get the documents because then you actually see what happens. it's like anything if you have only three justices telling you what happened you know that you are lucky enough but you also know that it's just three

visions of what actually went on we could hear as early as november but if it turns out to be tricky with what here the ruling and it will be announced from the bench for justice because the majority opinion will announce a brief synopsis from the bench. the dissenting justice does not read his word is sent except if there is real anger and we live for those moments because it is more dramatic. it gives us something to write about and it gives the public tension survey in june we get them read from the bench but generally speaking the dissent will speak only on paper. >> host: how important are the oral arguments and how much time have the justices spent on the case prior to the oral argument?

>> guest: will arguments are important in many respects. i wouldn't say that they are determinative because the justices -- these are people who have yellow highlighter xander just like us understanding the documents. the rulings are based on prior rulings in the precedent and that's what this court is all about. they loved precedent they don't want to disrupt the pattern of where the law has been before so the main thing that would influence how they rule and again let's use the north carolina criminal case the main thing that they are going to look at are the past rulings on the reasonable stop, what is the fourth but is the fourth amendment jurisprudence of unreasonable searches and seizures so that will guide where they are going to go and then the written briefs from each side and that's where the lawyers better be the shortest

because they want something in writing super justice can go to the writing and perhaps pick up language and perhaps be convinced of something he or she hadn't been convinced of before then you have this great bubble argument moment where the justices over on this slightly bent mahogany bench that is elevated and then the lawyers in front of them and we are all off to the side watching and eagerly trying to see if to figure out what do they think is important and what do they think it might be about and in several dynamics emerged. the most obvious one is the justices get information and the justices might again they get to troubleshoot both sides.

they signal to each other perhaps their own persuasive argument. think of into the case thinking if they are invested in the fourth amendment law they want the case to come out a certain way. they have some instincts that they would like to signal to their colleagues and so they the city might ask questions a certain way saying have we ever ruled that an officer can stop someone based on this understanding of the law. shouldn't the officer had his act together to know what it says. i thought you had to have two working taillight in the carolina cu might have those kind of questions although they don't talk like that. so they might signal this. i'm usually actually a kind of b. grade case but let's take the same sex marriage case. you are going to get the arguments in the justice to each

other because, peter, they haven't talked to each other about this case you for this moment. they don't know where each other stand on this issue so we are going to do the oral argument in the case is of great importance. so you have a couple different agendas from the justice point of view. ..out what do they need to know to rule for me, and to head on confront the other side. they have dueled inviting but they have not been matched up in the moment. and tomorrow, again, i'm sorry to say do more, but let's just say the date, october 6, jeff fisher was a stanford law professor will stand up and represent the defendant who was charged with cocaine trafficking that arose out of this stop from the headlight. and you will make the strongest origin he can all be have opted

in fy that conviction shouldn't stand. but what is going to do is he will have two or three points that he wants to make sure that when they go back to the private conference, that they have in their head, and he he also wants to hear what might be troubling individual justices so he can meet it head-on and he also wants to hear what the other counsel is going to say for the state of north carolina so that he can say wait, you might be sympathetic to this point of view but just turn the lens a little bit and think of it this way. a lot of going to happen in this hour and again because they october case is not one that many of your viewers would know about it it's not going to get a lot of attention but pretty soon we will have other cases. the obama sponsored health care law. probably same-sex marriage and what i just described is going to happen in going to happen any more intense fashion overlong. not because i bet the chief justice that they take up

same-sex marriage is close to two hour rather than the traditional one hour. >> host: so in this theoretical case that we are working, the official vote is done wednesday after the monday hearing in around nine justices. do they raise their hands? >> guest: they don't raise their hands. i would say it's primary. it's official but nobody is set in stone. you can change your mind. in fact you know we have lots of reports about during the first episode of the obama health care law of you are allowed to change your vote as you go along. you may not want to change your vote as you go along because it puts everybody in a different direction but that happens and actually the justices are happy when they can convince a colleague to change her vote.

it's like anything, its rhetoric and they will come in with their idea where things should go but then they see whether it's right and that's a phrase i hear often from justices. is it right? and maybe you would be convinced of something. in fact one of my favorite chapters in this book is one justice sotomayor actually convinced her colleagues in an affirmative action case through some writing and through what she was preparing them a position that she said she sort of tear them in the position that they had taken on affirmative action and certainly we saw shifting votes on that. that's what's going to happen is they take this preliminary vote wednesday and friday and then they continue the dialogue. i love the idea of this conversation in writing. they have this conversation and i want -- it doesn't sound as natural as it would be to the way you and i would convert but it's natural to them.

they feel really comfortable with that. justice william brennan was known for visiting offices. justice breyer asked to call people on the phone and talk but generally speaking this isn't a group that goes against the face of a colleague today. you are voting that way? come on. >> host: you talked about precedent but how important are the dissents to the rules? >> guest: they are very important because maybe they could convince people down the road and the justices themselves dream of the day a dissents becomes a majority opinion and that is certainly happen. dissents to become the majority opinion in subsequent cases especially 5-4 and you have a change in the makeup of the supreme court. it could become quite influential.

there's a little bit more leeway to speak to the public. you can get a lot more speech and dissent because first of all a justice may be speaking for himself sometimes and could really become unhinged or say you know you will rue the day when this plays out in america. so they speak to colleagues who might change their minds down the road and they often speak to the public and here's another thing they can do. they could speak to lower courts and say you might be reading this and the majority opinion but take caution not to do this and this or famously most recently justice scalia in his dissenting opinions on has said these rulings are opening the door to same-sex marriage and in the winter case from june of 2013 when the justices really did something narrow in striking down a provision of the defense of marriage act didn't even

comment on marriage acts. justice scalia so this is over. the lower court said yeah i believe we will rule that windsor takes it much further for same-sex marriage nationwide. >> host: joan biskupic is art guess. if you can't get through to the phone lines will put the numbers up and you can get through on social media. he can send an e-mail to booktv at c-span.org and finally make a comment on our facebook page facebook facebook.com/booktv on callers thank you for your patience. we will be right with you. don't hang up but i want to start with this e-mail because you talk a lot about the 5-4 decision. this is from allen steinberg. mr. steinberg e-mails and i'm nervous about 5-four decisions decisions. has anybody responsible parties suggested a decision should require a supermajority say 6-3? guesto justices don't like 5-4

decisions either but if you are the majority you will take we can get. they don't like to appear so divided or polarize which they are. they brag about their 9-0 decision. they are unanimous in the wants of art is controversial. the 5-4 ones are the ones that can really affect their lives. for example in the winter decision that i referred to earlier which is at the heart of that by a woman named edith went through who was trying to seek benefits and estate taxes even though she was married to another woman and not the man and at the time that federal law said the benefits can could only extend to marriages that have a husband and a wife. now your e-mailer suggests that something like that that decision like that maybe it should have been 6-3.

they won't go there. they feel like and they feel like look majority is a majority and we are only dealing with nine people. it's hard enough to get a majority in some of these cases and if you get 6-3 would be virtually impossible for a lot of these. the most recent abortion rights cases have all come down 5-4 and affirmative action attempt -- typically comes down 5-4. a summation of institution and supermajorities work in the legislative branch but they don't work in the jujitsu brands. >> host: legal editor reporter and author joan biskupic is our guest. "sandra day o'connor" how the first woman on the supreme court became its most influential justice came out in 2005. "american originals" the life and constitution of the supreme court justice antonin scalia, 2009. her most recent book is on sonia so the mayor, "breaking in" the

lives of sonia sotomayor and the politics of justice. nancy and la grange georgia you have been very patient. you are on web joan. >> caller: good afternoon. i wanted to ask ms. biskupic about justice o'connor. i know she was -- of lindquist and my question is about the fourth amendment case. it was chief justice rehnquist's dissent in philadelphia versus new jersey that got me interested in the core but i know that he clerked for justice jackson and i wondered if she knows of any cases out of nürnberg that impacted the cord and if that decision actually impacted the rehnquist dissent in philadelphia versus new jersey? guesto thanks to the caller and i'm not familiar off the top of my head on the details on that case i'm going to jump to what

you are asking with justice jackson and william rehnquist in the great friendship between justice o'connor who the caller is interested in and william rehnquist and i'm glad she mention this because peter you are asking about other friends on the court. nancy just mentioned in her ca call, justice o'connor and justice rehnquist knew each other as youth and they actually been dated when they were both at stanford law school. he went out and visited the family ranch in arizona and she tells a fabulous story about that in her own memoir. they were good pals. they were good pals personally. she separated herself from him on the law by the end of her tenure but william rehnquist is interesting in terms of the connection that i would tell the caller something about that. he got that clerkship in a way that other western law students

probably would have never gotten clerkships. justice jackson came out to call -- palo alto and 62 i believe to help dedicate what was then a new stanford law school building and while he was there he met rehnquist. he was able to say you know i would like to clerked for you, here are my skills and sort of persuade justice jackson to take him on in a way that as i said didn't really travel to washington for interviews wouldn't be able to do. your caller knows a lot of the history of these relationships and i'm sorry i can't comment more on how his experience of the nuremberg panel and what trickle down to rehnquist and until o'connor but there was an interconnectedness there. >> host: noted in your book

"sandra day o'connor" can starr was involved in her nomination. guess god loves learning that story. that's the most fun part about doing these books, it's what you find out that you had known before. everybody was listening knows that can starr is a former solicitor general. the mono-- monica lewinsky star report. >> host: and now president of baylor. just go right. he was also solicitor general of the united states and people forget that sometimes because of the star report on monica lewinsky. but yes he is still prominent lawyer and president baylor but back in 1981, he was an assistant in the justice department who was passed to go to visit arizona and to visit

this woman he had never heard of sandra day o'connor to see could she possibly be material for the u.s. supreme court. he goes out there with a guy by the name of jonathan rose who is still an active lawyer in town and they go to her house in scottsdale. >> host: paradise valley. guesto paradise valley, how could i forget. i sell a? yes, and this is something interesting. she was recovering from major surgery. she was recovering from major surgery during this incident. she's someone who these guys in washington had never heard of. she has said impress them with your constitutional law ability and impress them with withstanding what goes on in the nomination process and she's got to hold it all together this postsurgery mode. she serves this exquisite salmon salad that she brags about them they can still remember. so they are there and ken starr

and john rose said later that they really understood what kind of person she was. she was quite effective in making your own case even though i say said she had not even been on the federal court and she was at the time she was on an arizona court but it wasn't the arizona supreme court. he was an intermediate court that she was ready for them. she was really ready for them. both she and sonia sotomayor were politically savvy and they knew what it would take and they both did their homework. >> host: john and laurel new york, good afternoon to you. >> caller: good afternoon. i actually have a comment and i would would like to guess to comment on it and that is that in my perspective presidents have limited their appointments, recent presidents. the candidates who have served on courts and graduates of prestigious war schools. in the past it was common for

presidents to select candidates from the political arena. you mentioned robert jackson and they brought a practical feel to the issues. they had to decide on the court. in my opinion that's absent today and another quick question is where to do for judge rule come from determining what cases the courts are going to take? disco they are great questions. one is nice and broad and one is down to the specifics of how this place works. first of all i'm glad the caller raised it because it's so true. when you think of the warren court, earl warren former governor of california you had done -- people that cabinet secretaries and you have people who have been out there. you had people who had run for public office ended all change. that's sandra day o'connor -- o'connor was the only one among those nine who had stood for public election. again back in arizona and now

with the exception of elena kagan every single one of the justices came from a lower federal appeals court bench. so your caller is absolutely right. the experience level has been narrowed and also all of them have either graduated from, i'm going to put in on this, all of them attended yale or harvard for law school. justice ginsburg attended harvard and didn't finish at harvard. she finished up the columbia which of course is no slouch school itself. she finished up the columbia because she moved to new york city with her husband for his job at the time in the 50s. so you have all these justices to come from a fairly narrow band of experience. of course clarence thomas and sonia sotomayor and to a lesser extent ruth bader -- ruth bader ginsburg have their different backgrounds being only the

second woman on the court justice ginsburg the first latina and of course the second african-american clarence thomas so they will bring a different perspective. they still come from a narrow range of experience. the caller has hit upon something that presidents themselves have thought about booking. book clinton spent a lot of time trying to persuade mario cuomo who at the time had just recently been new york governor to be a nominee. he tried to persuade george mitchell who had been senate majority leader beyond the court. he tried to persuade richard riley who at the time i believe was education secretary and he seriously considered bruce babbitt too was an interior secretary. bill clinton thought about going that route and i think president obama might have been a little way thought about that but the safer nominees are nominees who

have a track record in writing opinions and that's what presidents have gravitated toward. i think many people think it's a loss to the country and in regionalism we have five justices now who are from burroughs of the bronx are from new jersey. so it's definitely an east coast dominated court. someone like sandra day o'connor really understood water rights and the great west is gone. two of our justices grew up in the west but they hardly are westerners in the traditional name. stephen breyer grew up in san francisco and went to harvard and taught at harvard. he has more east coast sensibilities than west coast in some ways and anthony kennedy grew up in sacramento. but he went to, he also went to harvard in the london school of

economics. >> host: the second question on the four judge rule. guesto okay, this is good and it's important for people to know. thank you for remembering that he asked that. he's talking about how many justices it takes to grant certiorari or to say that we will take that case. right now is the justices decide whether to take up the same-sex marriage as an issue it takes five justices to decide it but only for to say we want to hear it. that's been the way for as long as i can remember. i don't know when it started. it's usually not known to the public mainly because people don't get interested in what happened that way but only takes for justices to grant. sometimes one of those four justices might think we shouldn't take up this case because the lower court ruling doesn't seem so wise. my friend would vote against it

not wanting the supreme court is a majority to come in and field into national law or rule that may be could do more harm at least in the justice point of view. there are defensive votes on that. >> host: javier from miami. >> caller: hi. i have an observation and a question for john. referring to the justice and you describe her as the champion quote unquote of -- writes. the right to life in which all human life emanates from that basic one and how about duties also? thank you so very much and have a great afternoon. i woke. the question off-line. >> host: justice o'connor in abortion cases. guesto i appreciate the questi question.

i don't think she sees herself that way. she actually voted in some ways to curtail the right-wing justices brennan and marshall and blackmun would have gone further but her legacy certainly does involve abortion rights. i presume what the caller is saying is how fair is that? how fair is that in terms of a woman's right to end a pregnancy versus people on the other side who say life begins at conception. there is no right to abortion in the constitution. where did the supreme court get off doing this? that is an enduring dilemma. the supreme court in 1973 issued its roe v. wade decision and it has remained so controversial until today. so i think it's one that people struggle with. it's one that judges continue to struggle with. i wouldn't be surprised if you

we didn't get another case back there soon. we had a very controversial ruling out of texas recently that has caused several clinics there to start to shut their doors. abortion remains an incredibly difficult topic. i remember when i first started writing about abortion rights, i likened it to controversy over the vietnam war. nobody is talking about the vietnam war anymore and they're still talking about abortion rights. >> host: in a the chapter from your book on sandra day o'conner shifting grounds on abortions. the right at bottom for opinion reflected her brand of judging. in the face of strong anti-roe rhetoric from the chief justice and the new majority she retreated from a position that could have reversed a 1973 landmark. this would happen in other areas of the law to man. she would step to the brink of them back away. her opinion in webster peco reproductive health services was a pivot that would set her in

another direction but that would be clear only when she took her next step. guesto that was right. that's right. that probably took me a long time to craft also but that's right. also tell the caller that she was actually more in the camp against abortion rights in her early tenure there. she always had very mixed feelings on it certainly. it's a tough issue. it's a very tough issue. she would technology and there are people of extremes who would say i don't see why it's so tough. she found it tough and what happened after the 1989 webster ruling which caused huge upward nationwide and they were big barges in washington d.c. against the ruling justice o'connor pulled back and she realized how important the right was and she helped engineer the decision the nation got a 1992

in the casey ruling that upheld abortion rights and set the standard that we now have that says state regulations may not put an undue burden on a woman seeking to undo a pregnancy. i don't know if i would say she changed her mind but she offered her thinking enough to become a stronger supporter of the basic right. >> host: , from carlsbad california were on with joan biskupic. >> caller: good afternoon. i am very interested in your opinion on the passage of citizens united. i'm really quite disturbed by this and i would like to know if you think this will be reversed. >> host: velma my guess is that joan biskupic won't necessarily share her opinion on the case. what is your opinion on the case? why does it discourages you? >> guest: it discourages me because i feel is a threat to

our democracy and also because you know, how it will affect the power of the individual vote of an american. >> host: thank you, maam. joan biskupic. guesto yes, the caller is referring to a case that is not as controversial as rove v. weight but a good one definitely. issued in january 2010 by a 5-4 vote to your other caller there, the justices said that congress was wrong to set limits on certain spending by corporations and labor unions and it allowed much more corporate money into campaigns. it's been seen as giving a boost to super pacs. it's been seen to letting much more money and to the democratic process and favoring corporations over individual

speech rights. and it's 5-4. there is a chance it could be reversed down the road but that would take a change in the makeup of the supreme court. right now those five conservatives who ruled that way chief justice john roberts, anthony kennedy, antonin scalia, clarence thomas and samuel alito are all bared all fairly healthy none of them giving signals about retirement and as i'm sure you're caller knows because she was so concerned about this ruling they have followed it up with other decisions and actions that essentially reinforce it. i should note that the one time that we had a major disruption in the courtroom going back to the earlier part of our discussion there were major disruptions at the supreme court oral arguments. somebody stood up and actually complained about citizens united and the chief justice had him

taken away but at the same time someone secretly recorded him with recording on youtube. as result of that incident which again was sparked by citizens united so you can feel there's a lot of passion about that case, the security screening to get in the courtroom is as much tougher now. >> host: fellow citizen ridge press california. phyllis you e. whereupon booktv. >> caller: thank you, how are you? i have one question that i've had for several years now which is how come such an important body of politics subject to justices are able to sit for their whole lifetime if they choose to do so? how come they aren't given a term like 20 years or maybe three terms? then they would be making more value judgments and thoughts and ideas of the american citizenry isn't always reflected in what they themselves are making when they make these judgments,

judgment calls. so maybe sometime in the future we should consider at least having them appointed only as long as the precedence that appoints them is in office as well as may be giving them a 20 year term just like anybody else it gets the job. you don't sit there and work everyday of your life on that job. everybody burns out so i think we should consider taking these justices and giving them a term of serving so that we can get a better reflection of the ideas and the moral values that the american people believe. >> host: thank you maam maam. guess that's a discussion that comes up it is in the constitution they are appointed for life for better or for worse. if rumors of the constitution thought that would be the best way to insulate them from politics so they weren't effectively running for office or they wouldn't have to please the person who appointed them.

so there were benefits to the idea of this impartial judicia judiciary, a judiciary that would have more integrity, certain political constraints at the other branches would face. so that's the background of why fire supreme court justices and frankly every member of the federal bench from judges to the appeals court level to the supreme court level on the federal bench are appointed for life. now you get complaints about that but they tend to be, the caller is raising concerns about burnout, bringing your own moral judgment to it that might be updated after time. usually comes down to questions of politics of one justice over another. sometimes it comes down to why is that liberals still hanging in there or asked justice john

paul stevens retired at 90 and boy was he an active freethinking 90-year-old. justice douglas basically -- so it depends on how long they hold on. chief justice rehnquist really wanted to hold on but what hold on to what is he to? he died in office september 3, 2005 from thyroid cancer. he thought he could last another term and they couldn't. so they tend to think that appointed for life means appointed for life until death and they hang in there. not justice o'connor left just shy of 25 years she loved impractical to take care of her husband who had alzheimer's at the time. he ended up dying a few years later and her colleagues including joe justice ruth bader ginsburg said she regretted leaving when she did.

>> host: why? >> guest: well it's twofold and it's both personal and professional. she went to take care of her husband was ailing but she couldn't adequately take care of him so she ended up in an assisted living home because his disease had progressed far enough. she ended up herself being quite active and able to keep being out there professionally so maybe she didn't need to leave when she did. it's a personal choice and once you leave the world just isn't the same. >> host: just to follow up on that we have e-mails in and she asked the questions whether not justice o'connor regretted leaving the court which you talked about but number two to bring up what the last caller brought up there's a belief that the supreme court's decisions in the last 20 years have become increasingly politicized. what is your opinion? guesto i will take both of them.

first of all justice o'connor herself was never said to me i really regret leaving. i don't think she would ever say that to anyone. she's the kind of person that makes a decision and sticks with it and keeps rowing in the same position. i know it's been subject to speculation and ruth bader ginsburg said directly to me you know i wonder if sandra regrets it. that stands for that question and i think if i had to bet money i would say somewhere deep in her heart justice o'connor does regretted in some way. it's been nearly a full decade since she's been off. okay now the political polarization. i think that this court is polarized in politics and ideology but it's not all that it is a nice surprises sometimes. but the chief justice's vote they upheld obamacare. they have taken more incremental steps on hot-button issues like

affirmative action when i didn't think they would. so it's not complete truth but if you look just in terms of who's on this court now compared to the kinds of differences we might have had in earlier decades, all five of the strongest conservatives were put on by republican presidents. the four more liberal justices would have put on by democratic presidents. we didn't have that before. there were democratic appointees like byron white the former by jfk and we had republican appointees like john paul stevens who voted more liberal. so that might've given more confidence to people that politics wasn't playing a role but now we have this neat political division of 5-44 which i think helps feed the public perception about politics. >> host: is it unusual to have two former living relatively

healthy justices john paul stevens and sandra day o'connor? guesto no. in earlier decades for example warren burger stepped down to have the constitution committee. he stepped down in 86 and didn't die until the mid-90s so he was around. harry blackmun stepped down in 2005. no, no he stepped down so brier succeeded him so he steps down the 90 foreign dies later. byron white stepped on the 91 he was succeeded by ruth dadar ginsburg. you are testing me for all the states i can tell. anyway it's not unusual. >> host: currently in the court there are 2% obama nomination to clinton nominees one reagan nominee, three george w. bush justices and one george

h.w. bush justice. stanley in suburban maryland please go ahead with your question. >> caller: there are two myths regarding the supreme court. one is that it is rational into that it's based on the constitution. i had a professor in law school many years ago that was also a circuit short -- circuit court judge who said every judge should be psychoanalyze before his own accord. struck by all the people considering conservative justices are catholic men and all of the usually liberal justices are jewish or -- and i'm wondering whether that gives us confidence that the court is a rational body? >> host: stanley are you a lawyer? book lawyer? what kind of law do you practice. [inaudible question] though i was a mediator.

i'm retired now. >> guest: i'm glad you talked about demographics in terms of religion and gender. you know is the court rational? again that is in the eye of the book holder but i want to talk about something the caller raised that serious in terms of how the public should perceive the religious differences. the caller is absolutely right that the five most conservative justices happened happen to be roman catholic. the five managers mentioned are roman catholic. sonia sotomayor is also roman catholic. she was raised roman catholic and she doesn't vote with them on most of these tough social issues. the three others in the liberal wing happen to be jewish. everybody has a different degree in how they adhere to their religious thinking, how much they abide. a couple of times i will see justices coming out on ash

wednesday -- coming out with ashes on ash wednesday. what they would say to a person is they don't. let me tell you something about catholicism. william brennan was a catholic and he was one of the strongest supporters of abortion rights. so i can't say that this breaks down on religious grounds for their reasoning but it does break down as a matter of identification that the five catholics would vote more conservatively and the three jewish justices along with sonia sotomayor tend to vote more liberally. i do have to say that i think it tells us about the place of religion in america that when barack obama according to elena kagan -- to succeed our last her

religion wasn't an issue. she happens to be jewish. it meant that we would now have a quarter of six catholics and three jewish, no protestants. protestants of course are from the world forever so was kind of interesting that the wasp idea suddenly disappeared from the supreme court. people didn't object. there was a time actually in the early 90s when i had lawyer say to me now that ruth bader ginsburg has been appointed it will be harder for stephen breyer to be appointed and it wasn't and it wasn't hard for a elena kagan to succeed the last protestant. so it is interesting to see and it does shatter in some ways some of the stereotypes about how the public might view religion. the religion cases are almost as tough at the court as the abortion cases. >> host: what is the red mass? >> guest: the red mass is

celebrated as we are speaking on the sunday before the first monday in october. it's held at st. matthew's cathedral church. the apostle here in downtown washington and it's essentially the kick off, and sufficient traditional mass with i think it was originally red garments that priests and bishops would wear and that's how it got the name red mass. attended by not just catholics in washington d.c.. stephen breyer as i said is jewish often will attend and it's quite ceremonial and mostly just to pray for good judgment. i would go on occasion just to see the justices there. >> host: we are showing you this year's red mass on bt -- booktv. ucla that kagan there. red robed priests and john roberts.

>> host: guesto there is a elena kagan. >> host: so it's not anything traditional? guesto i want to characterize what the catholic church is saying but i believe that saying you know here is to encourage good judgment and not necessarily religious just been dashed judgment but for all that are involved in the law. >> host: we have in our half left with their guest joan biskupic. she has written about were some incidents we have sandra day o'connor and ruth bush recently on sonia sotomayor. an hour and a half left. first we went to her house to see her writing. >> by process is basically the same. i put a lot of energy into the proposal itself because i want to be sure that i want to live with this person for many years

and i don't want too late to work late at night on the weekends. i read an in-depth proposal and then once i get the okay from a publisher than i basically do a lot of research. a research for months and months and then i start research writing, research writing and i do mix it up and i found even to the end with just a sotomayor i was still doing extra reading as i was writing and i find it's quite motivating for me at least to mix the two processes. this is the hardest part. this one was much harder than the first two. for the justice o'connor book i took off my meds for my day job. i split up the time and for the justice scalia book i spent six months. for this but that is summer at the woodrow wilson center and the woodrow wilson center in

town is fabulous. people like me and other journalists who write books so i took off sometime early on but then improve for 2012 when i went to writers and had a more demanding job i thought i was never going to finish this book. i would come home late at night. i would fix dinner and my husband would go read or watch tv. i would come in to the computer. i'll was working on the upstairs one but that one broke so i would come down here and work on this computer. of course you are exhausted because i have to get up very early for work. then i work on weekends and i would do all sorts of things for motivation. mainly you know i'm a deadline person so i tend to get things done. it's hard to get things done when you're exhausted that i would do research and i would work in here and work in the living room and go downstairs

and go to the library of congress. i just kept going. i would break down my increments of time and i would think, my daughter when she visits home i said that if anyone -- if anything happens to me please destroy these posts is to say in the next 15 minutes you do this. i find if you work in a short chunks you are getting things done. okay, cross that off. i'm a great list make then list make her look to cross things off my list so that's how it gets done. ♪

♪ ♪ ♪ ♪ ♪ ♪ ♪ ♪

♪ ♪ ♪ ♪ ♪ ♪ ♪ ♪

♪ ♪ ♪ ♪ ♪ ♪ ♪

♪ ♪ ♪ ♪ ♪ ♪ ♪

♪ ♪ ♪ >> host: joan biskupic southside of chicago? >> guest: yes. >> host: why? why are you from that area? >> guest: i couldn't control my birth there. my parents came from first-generation homes. my mother irs's and my father croatian and a grip on the southside of chicago in the beverly area for people who know the southside. those of us who are from the

southside tend to identify ourselves that way. when i was at the "washington post" there were three or four of us that had us that have to do these mini-bios that would go in a book. a couple hundred employees, those of us on the southside would say we are from the cells shied -- southside of chicago. i was born and raised there and move to the suburbs when i was at the end of high school. both parents live there and i love that my own daughter when she got old enough went back to the university of chicago which is on the southside. i always say the brainy southside know exactly where i'd row. >> host: were your parents college graduates? >> guest: they were. they were. they were slightly unusual in the neighborhood. my father was because he had a law degree. he was a lawyer. they met at loyola actually. they both went to loyola at different points, mind bother for law school and my mother for undergrad. she taught. she was a teacher until i was

born which was pretty quickly after they were married so she taught. they were both educated and they both were very much interested in words. my father went to do a lot of municipal law, represented the fire department at different points and then was essentially in a small office with the partners he did that. >> host: do you remember the first time you are interested in law? >> guest: i was always interested in it. my early journalism jobs were covering government and politics but i found that i gravitated towards the courts. i was always interested in court rulings, interested in cases and then when i got to washington it became very convenient actually to go to law school on the site. i kept saying to myself because

i had full-time jobs. and i had a baby in the middle of it. i also thought this is getting kind of hard and if i can't finish, i kept giving myself permission not to finish law school. it's okay come you have a good job and you don't need to finish but i did. i finished and i enjoyed it. a kind of like liked the pace of school and i'd like law and i found that with politics and government it's mutually reinforcing. i actually know several journalists who either went to law school or aspire to be lawyers at one point. i think journalism and blogs tend to be quite compatible. >> host: why? >> guest: both had to do with words. writing is a big part of the law. when you take, you write lots of essays when you're in law school and writing is a big part of journalism. i think it attracts people with the same sort of skill set. i was reminded of something you

said about how you think the supreme court is calculus and something you are afraid of. i find that it's very easy for me to swim in the world of law, humanities, journalism, those kinds of things. it's more science and patent law which has become important the supreme court that i find they were so smart. i would resist more science and calculus then i would resist the law. i have a good friend is very smart on patent law. he said the trick is not to be afraid of it. it's not, and that is what i would say to you about the supreme court, don't be afraid of it. don't think of it is calculus. think of it as something you can learn about. >> host: 202525887 who want to talk other joan biskupic, if you

can get from the phone phone lines try social media booktv and and facebook.com/booktv if you want to make a comment there and finally can send an e-mail to booktv at c-span.org. from our facebook page dan says what if anything can be discerned about the three justices you have written from the working relationships they have had with their law clerks? >> guest: talk about bonds that are very tight between a justice and his or her clerks. in fact justice o'connor really liked to fix law clerks. nothing made her happier than a marriage between two clerks. she called the children of her law clerks the grand clerks. she was very tight with her clerks and once the supreme court block clerk always a supreme court law clerk. as some of your viewers might know it's an incredibly difficult job to get.

each chamber has for clerks, nine chambers, for clerks, 36 and a couple for their retired justices some sum up many people can hold these jobs. they last for just one year and typically a justice will hire a person who has graduated from law school and then clerked for a lower court judge. there are certain judges who are known in the business of being thinking intellectual judges who might send clerks their way. it's a very prestigious limited spot. the young clerks have a lot of face time and interaction with justices. the justices rely on these people to help them as with drafts, help them with research and again this is an incredibly insular institution which is why when justice sotomayor came on the scene there were some sparks

flying. but she will even herself hire mainly from other lower court judges chambers. she is not breaking them all. clarence thomas tries very hard to hire people who aren't just from the ivy leagues. he says i want to go for the top student who might graduate from the university of georgia. justice byron white was out way too. he likes going beyond the ivy league so you are getting the elite of elite students in all chambers and i would say including justice sotomayor's chambers. she certainly has her own elite markers with princeton and yale and let them do now. we are not talking that anybody who attended anymore north western and northwestern is a fine school but that is where justice john paul stevens had gotten his law degree. he was the last of the nonip's for a while. >> host: i don't know if he did this on purpose or not but

in "breaking in" i noted to significant references to the ivy league, number one dad justice sotomayor chosen the ivy league school on purpose and that it has become so exclusive. just go this is where i understand how much she appreciates having those markers. she's not going to lose her puerto rican identity but boy when she had the opportunity to go to princeton or an ivy league undergraduate she was going to seize it. she told me when she had that experience and realize how important that was not just for the learning but for the credential she was not going to go to law school that was not the ivy league. others might have thought georgetown. there were plenty of people that don't supreme court at different times he led perfectly fine legal credentials without the stamp of the ivy league. she even is the own woman in her

20s was not going to change course when she got to an ivy league school. she now advises young people get the best education you can come in the best credential of education that you can. go into hock and do what it takes, get it because she realized how in some of these more elite snobby worlds that can make a difference. now it doesn't always matter. certainly. i don't think i can imagine in the next couple of confirmations that we will have somebody that went to a state school. that would be okay. it would really be okay for but right now there's something else going on that seems to place a high value on certain selective schools. >> host: back to breaking and. the experience of clarence thomas at yale and the experience of sonia soto mayor at yale. guesto thomas claridge produced in his own memoir called my

grandfather sun about how painful it was any and he felt like he didn't get a good education that everyone there at the time and afterwards i see god in only because affirmative action and i use some of his passages from his memoir in this book about how he felt as if he was really mistreated by people who thought they were doing him some good by taking him under certain conditions and signaling to others that may be he might not be as credential this white students that graduate from yale. it was a pretty painful experience. i do know that he know that via skype know for certain degree of that enough that he has gone back to yell now. for a long time he would not go back to yale and in october, mid-october or maybe it's october 25 a reunion weekend for the yale law school. justices sotomayor, alito and clarence thomas would all be together at yale and all three

had very different experiences. the most notable would be clarence thomas with the time felt like the school had let them down. >> host: joan biskupic is our guest, mike in kinston north carolina thanks for holding. you are on the air. >> caller: thank you for taking my call. i've got a three-pronged dialogue here. first of all i definitely read 71% feels there should be term limits for the supreme court as well as the congress. they are totally political especially in the last years. they totally reflect the background of those who aspire to be elected to the courts. i think there should be term limits and my second prong is i think the news media has been the biggest purported as of this and this is my opinion.

there is no such thing as same-sex marriage know more than you can marry two -- [inaudible] bears no such thing as abortion rights no more than anyone has a right to take a life outside of the womb. this is my last comment and hopefully constructive criticism. i think people in washington spend way too much time just talking and talking instead of getting social media or telephone calls. just like a visit to the office house. nothing wrong with that but a lot of people should get the book and read instead of spending so much time on glorifying the people you have on there and i thank you for taking my call. >> host: thank you, sir.

and the polls are showing that the american public has come to accept that more than before, but i am mindful of the fact that right now only 19 states and the district of columbia actually allow gay men and lesbians to get married. you know, 31 states it's still illegal. the it's a very real issue out there, and even though i am one of the people who actually thinks the supreme court is about to take that up, there's a chance they might not. they might feel like the country is not ready for them to take it up yet. so i think it's always good the hear from people who don't like the trend as it's going, because it's a bit of a reality check sometimes on the east coast. but it's also, it's something that we're constantly monitoring. we are constantly polling on this. and there's not a story that i write on same-sex marriage that i don't mention that it varies

out will in terms of public support. but i think there is no denying that public support has really, taken off for allowing it. and whether the justices will declare that there is a constitutional right to marry, we'll know in the next couple months. >> host: roger, decatur, georgia, hello. >> caller: hi. joan, thank you so much for remembering father dryman. >> guest: oh, yeah. yes. >> caller: early on in the show you said but this is washington. and washington is really social, okay? so i'd like to know with whom the justices socialize. and i'll do the easy ones, leave you the hard ones. we know ruth bader ginsburg's a culture vulture, and we hear that justice breyer hangs out in georgetown which for me means sally quinn, and we know that justice thomas likes nascar, but his wife's well connected, and,

you know, john roberts is definitely well connected. so when they go out, who do they go out with, who do they hang with, who do they listen to? >> host: roger, why is that important to you? roger's gone. sorry about that. >> guest: okay. well, what i know is limited, of course, because they're not hanging out with me. [laughter] so i can tell you what i pick up on, and i'll start at the top. you know, look, the chief justice of the united states, john roberts, is raising a couple of youngsters, so he's hanging out at, you know, hockey rinks, hanging out at places where his kids will be, but then, but he also, of course, has longtime connections here in washington with people from, you know, the late '80s and '90s who were in the reagan administration, who are part of, as roger would recognize, some of the elite legal club. so he's hanging out with them in some way socially, but he's also someone who's raising two kids, so he's got that on his plate.

justice sotomayor lives in a really neat, up and coming area -- or it's not up and coming, it's already come -- area of washington, d.c., and elena kagan, and they both bought in this region. and so they're doing, they're going out to restaurants with their pals, they're mixing with folks who they knew at earlier points in their life. elena kagan has been in washington a long time, and she was, you know, back and forth between here and up at harvard and the town of chicago. but they're all hanging out with friends from past experiences and here in washington. when you, when they're -- according to the court, they're usually older in life. justice kagan was reported at roughly age 50, but she was a youngster and still is the youngest member of the court. she was born in 1960. but the others are older, so their social groups are established, and that's a little bit about what roger's getting at, is that they're not branching out to that many new

people. they're sort of is sticking with the folks they know. .. so he likes to, and he likes to travel. out west and down south so they all have their different pals. i'm trying to think of anything notable for roger to say about

any of these justices that he might not know. >> host: do they pal around together? besides scalia and ginsberg? >> guest: justice sandra o'connor was social glue. that after oral arguments they all eat together at lunch. justice souter said, i don't want to eat lunch with you people. i want to eat my apple and yogurt. she would say, david, now you eat with us. she was saying it is important to shake hand and touch people and get connected. constantly organizing field trips for the clerks and field trips for the fellow justice. i would say that there is not that kind of person on the court right now and they do things together. justice kagan goes overseas with the other justices. the newest justice. they do social things and celebrate each others birthday with a little wine conference.

so there you have it. >> host: in fact in your book on sandra day o'connor you write that one of her conditions did not get circulated on time. this is the reason why. apparently her tennis game with first lady barbara bush this morning and luncheon appointment precluded her final precirculation review. next call comes from joseph in pittsburgh. joseph, you're on booktv on c-span2. joseph, are you with us? >> caller: according to the supreme court, to be appointed, according to the constitution to be appointed to the supreme court you simply have to be law knowledgeable in law, not necessarily an attorney. can we foresee down the road person who is not an attorney being appointed to the court? and one other thing? i think the red mast is in

dedication to st. thomas moore. thanks for taking my call. >> host: thank you, sir. >> guest: right. st. thomas moore. david: hero for justice scalia. thanks for filling that in. the loop on the quote, those were not my words about justice o'connor, those were a clerk, right? >> host: i think justic blackmon who wrote that. >> guest: i know it wasn't me. i want to make sure you let viewers know. >> host: it was from a clerk. >> guest: someone critizing her social calendar. >> guest: thank you to the calendar. the red mass was thomas moore. >> host: non-lawyers on the court? >> guest: not in my lifetime. not in your lifetime. i can't remember the last non-lawyer. i is absolutely right, you don't need to have a law degree to be

on the supreme court. >> host: not boeing to happen? >> guest: first of all, law degrees are a dime a dozen. you could have experience with the law degree. that is what all the other justices of the past did have. early warren had a law degree and was a governor. so you had very, a lot of variation with the law degree and traditional legal experience. i would endorse what the scholar is saying trying to broaden the experience but just not talk about, to not have a law degree in this day and age would be hard to get up to speed. it is very hartford new justices to get up to speed anyway because of the way cycle of the court and all that. >> host: tr tweets, in to you, joan biskupic, would you comment on the court's relationship with congress? >> guest: okay. >> host: why the hesitation?

>> guest: it varies. it varies among justice. take somebody like antonin scalia. that is the branch he didn't work in. he works in the executive president and third branch the judiciary. he never really liked the messiness of congress and how laws get made. justice stephen breyer worked for teddy kennedy on the senate judiciary committee. he helped write the legislation for the sentencing commission. he helped write the legislation that deregulated airlines. justice breyer gets and appreciates the congressional process. so individual justices have different relationships with congress just in terms of understanding and appreciating the work of congress. isn't it funny to appreciate the work of congress? when we think of how polarized it has been in recent years. they are different that way. elena kagan worked for senator joseph biden when he was

chairman of the senate judiciary committee when justice ginsburg was being reviewed. interesting how the court reads the work of congress and understands in interpreting the law. the majority of justices do look at legislative history and do try to understand what congress wanted to achieve in a law. justice scalia is against that. justice sklar leah says, look at the black and white letter reading of law and what penalties are with regard to that law. at different times depending on the issue and there is tension among the branches and in some ways that can be very healthy because they're supposed to be checks on each other. i think for the machinery to run smoothly, there should be understanding of the constraints each of the branches are up against. >> host: is the supreme court a

supplicant of congress? >> guest: supreme court has nothing but its ruling. it doesn't have money. it can't enforce its rulings. it doesn't have the power of the purse certainly. it doesn't have the power of the sword. it doesn't have, it has only its own institutional authority. the justices can be nervous and timid how they might appear, i'm talking all ideas. they don't want to compromise the integrity of the court because it doesn't really have power. doesn't have enforcement power. it doesn't have money at all. if people follow the rulings, people have to believe in it. that is what it has.

early warren, i never covered him. we have a person in our ranks that did cover the warren court. didn't coffer earl warren and mainly covered rehnquist area and covered chief justice john roberts, all those men took seriously the concern about engendering high public regard. they care about public opinion. they try not to show it in their rulings. they try not to show it in the public speeches but they want the public to believe in the institution. >> host: but they have to come to congress for money. >> guest: in a way that is very minimal. congress does oversee the court's budget, the federal judiciary's budget through the commerce justice states of committee but it is in a minimal way and they can't have, they, congress has only limited way to cut back its jurisdiction and only limited way to effect its

salary. so no, not at all. >> host: deb business, al about kerr key. hi. >> caller: hi, joan, i don't know if you are able to answer the question but i'm always waiting to talk to somebody about the supreme court. section 2, article iii of the constitution says congress is going to decide how the supreme court is set up. jefferson really had a problem, i think it was john marshall in the early 1800s, the supreme court should not be the final tribunal of all laws made and enacted by congress and signed by the president. he waited until after jefferson died of course and turned around made them the final say on everything. when the constitution doesn't say that much. so it makes, it was supposed to have a three equal branches. if everything the supreme court can overturn anything, you say they have no power, they have power because they can turn around and mold the constitution into anything they see fit. basically we don't have a democracy. we have an oligarchy, nine

people who weren't elected sitting there for life. i don't care if they're there for life but they were the weakest part of the three branches. now all of sudden, nobody ever questions what they did, because the first couple of decades of our republic starting, nobody ever thought that supreme court would turn around overrule any kind of law that was already passed. i was just curious on your going back into -- >> host: got the point. >> guest: actually she raises, what she just raised, referring to marbury versus madison, 1803, when chief justice john marshall wrote, the majority wrote, the court wrote, that the supreme court is the final ash bitter of what the law says -- arbiter. that is a very big deal that has endured until today and that is what is the supreme court -- gives the supreme court its authority to say what's in the

constitution. now just, to mention to the caller, federal statutes, congress can always go back and rewrite the statute. take as real lot to rewrite the constitution as we know. so what she is referring to is the fact that yes, in terms of what the constitution says, the supreme court does have the last word and it was the doing of john marshall era and at the supreme court, the most prominent piece of sculpture is john marshall seated, beautiful bronze piece, right in the, on the ground floor level that chief justice john roberts used to touch the toe of before he went to argue. it is quite a statement there because the statement that chief justice john marshall brought to the law. >> host: from your sandra day o'connor book, from former chief justice warren burger, the truth was his personal style rival.

he used baste and technique to control the opinion writing assignment. berger would wave his term to speak first in the justice's conference and vote with the side that would have majority would give him as senior member of thatside the power to assign the opinion of the case. >> that was him he did that. yeah. it is nice you brought that up because, there have been personal differences among these justices at other points. when he was on the court, warren burger, antonin scalia was on the court, what he left in '86, succession, rehnquist becomes chief and scalia comes on in his seat. so we've had some unusual personalities, tricky personalities throughout history and warren burger came from the d.c. circuit that i referred to earlier. became chief justice i believe it was 1969 and he had he had a very strong personality but his colleagues got wise to some of

his techniques and, you know, they would watch out for each other. but since then the word on chief justice rehnquist and chief justice john roberts there isn't games playing of that kind of nature. there is an awful lot of power in the authority to assign opinions, because, you can, the chief can decide, you know, how wide or narrow it might go depending who is he giving the opinion to. so that is quite a good deal of power and maybe it can, it could be abused in other ways but in terms of fairness, i'm not hearing at all those kind of comments about either late chief rehnquist or the current chief john roberts that were circulate ad lot with warren burger. >> host: pat riley emails in to you, joan biskupic, astute legal scholars using abilities to promote adendas of their political party, how to explain so many 5-4.

>> guest: she probably did that with a little bit of irony. you look, two things when you look at justices rulings. you take a bit of the word that is in it. but you also realize there are a lot of factors at play and politics is one of them. i mean i would be the first to say, i wouldn't ever go as far as asker erwin who we referred to in earlier part of the discussion. i try to guard against cynicism in some of the things i see but i think her suggestion is exactly right. that politics can enter the mix. ideology can 10er the mix. sometimes personal experience enters the mix. lots of things enter the mix. i think that some of the justices would deny that anything does and other justices would say, of course, we're all human but we're trying to take the most neutral and partial

route that is based on precedent here. >> host: our next email comes from robert in las vegas. he puts up a warning. >> guest: okay. >> host: loaded question below. >> guest: can we end it here? >> host: do you think the supreme court will select another president? >> guest: you know, robert in las vegas, those were great times to be a supreme court reporter for bush v. gore. i don't know how it great it was for the country. those were 30 some days, heady and exciting. no. i think that happens only once ever century 1/2 or so. so it is not going to happen in his lifetime or mine or probably anybody connected with this program right now. >> host: i think he is going through the political motivation question we saw earlier and pat riley email. >> guest: here is the interesting thing about that, the 4-4 -- 5-4 rulings, it was

divided politically in terms of 5-4, you know who was on the majority? sandra day o'connor. a lot of people forget that. sandra day o'connor, voted with majority to cut off recounts in florida, thereby assuring george w. bush got into white house over al gore, the then vice president. so it was a big moment a huge moment, very politically-charged moment and when five justice who generally had not really favored, you know the federal government overstates, essentially stopped action in a state. and four justices who come from the opposite side, went sort of in a different direction themselves. i think that there's lots of complaint about the ruling in many ways. for justice o'connor, who became my first subject, i think she was quite chastened by the public outcry after that and i felt that that also added a bit to some of the moderation we saw

in her later years. >> host: there was another decision in that case, a 7-2 decision, in the bush v. gore. what was that and how is that related? was that a more significant case? >> guest: no, no. what you're, okay. if i'm remembering the exactly right i think we get bush v. gore on december 12th, two. what i'm remembering. there were two parts to it. the main parts, can recounts continue in florida? should the florida supreme court additional louing the recounts to continue stand, or, is the nation up against a couple of different deadlines, one involving the electoral college, does that mean the recounts have to stop? there was an electoral college issue but there was also a due process and equal protection issue. and the question was, are the standards that are being used in florida fair? the standards for recounting?

remember hanging chads? we all remember that. most people, most of your viewers will. the way these ballots are being counted, is it being done fairly? and are the standards in place? it was a part of, the supreme court the key part of that bush v. gore opinion was 5-4 to stop the recounts and to reverse the florida supreme court. but there was another element that was in the mix and it wasn't really a hard vote. it wasn't a hard and fast 7-2 vote but seven of the justices did question the standards that being used to count these ballots and it was a couple of liberals that swung over, breyer and souter if i'm remembering right. there were problems with how these ballots were being counted but they thought that the florida court should set some standards. they didn't want to cut them all off. so, peter is that what you're remembering? what happened then, and i remember this, it goes how does

a journalist cover these things. former secretary of state baker, if i'm remembering right, went on the air and said, oh, but there was also the 7-2 ruling. even some of the liberal justices believed that the standards aren't right in florida. forgive me if i'm forgetting that evening. it came at 10:00, 10:00 on that night and you know, we were all a little crazy but at least we got it right, about what they did. but i remember that there was some question about what is the 7-2 business? but 7-2 business was not a vote in terms of who should really win or lose. it was more of an issue having to do with are the standards in place? this is the most important part with counting ballots. are there certain standards for, how we regard a hanging chad? count it as in, count it as out? does that person vote count for al gore, count for

george w. bush, count for pat buchanan on some of these ballots at time. that is what you might be remembering and it actually played a little bit into the mix. i got a lot of calls from editors saying, but many of the republicans are asserting the court ruling wasn't really 5-had, it was really 7-2. no the basic important ruling everybody should remember was 5-4. >> host: kate, sacramento, good afternoon. >> caller: , good afternoon. thank you so much for taking my call. i really enjoy the show. joan, i've enjoyed your reporting over the years. to me the most fascinating justice on the court is justice ginsburg, for many reasons but primarily recently seeming evolution from a low-key judicial incrementalist to more visible abject for the liberal wing of the court. case in point the hobby lobby dissent. were you surprised by that

dissent? do you have any plans for a biography of justice ginsburg. thank you again for your time. >> host: thank you. justice ginsburg is fascinating. she was born in 1933. she came of age just as justice o'connor did but instead of trying to sort of beat men at their own game, as justice o'connor did, justice ginsburg tried to change the rules and she did. she argued five or six cases, i think six cases before the u.s. supreme court, winning five of them, on behalf of women's rights when she was with the aclu women's rights project. she tried to make changes and she did. so she came up as an advocate. then she become as professor at rutgers and, eventually at columbia i believe and then she becomes a judge on the u.s. court of appeals for the d.c. circuit. that is when she first gets to know justice scalia as a pal. she is appointed in 1993 by

bill clinton. now she comes on and, very cautious jurist in many ways. but what happens and what the caller is referring to is kind of her more demonstrative liberalism emerges as she becomes more vocal as the senior member of the liberal wing. when justice john paul stevens left the court in 2010, ruth bader ginsburg became the most senior justice. she became power to assign dissenting opinions when the four liberals were on the losing side. the caller refers to the hobby lobby disend which is a quite powerful and earlier the shelby county voting rights case and she said she took months to write and took a lot of pried in. we have seen her much more outspoken as she ever was and

her new role as senior liberal on that side of the bench. there are biographies in the works about justice ginsburg and they have been in the works a very, very long time and presumably will be published soon. she is really interesting figure who deserves continued national attention. >> host: joan biskupic, your brand new book, breaking in, spent four years on, contract publication, correct? >> guest: on the side, yeah. >> host: what's next? >> guest: what is next. this is kind of time-consuming too. i always say it is hard to write a book and hard to sell a book. you sell it one book at a time. so i'm doing this. then i go to bookstores and talk to the law students and i do this like reuters is having me do this great little twitter chat on monday which is not my genre i have to say. tweets are not my easiest -- >> host: hard for you to stick to 140 characters? >> guest: very hard.

i have a colleague you could do one of this thing, do one of 15 so people follow what you're saying. i so i will do that tomorrow or october 6th. >> host: people want to join in that twitter chat, what is the address? >> guest: see i should have said that first. hashtag ask reuters. between 2:00 and 3:00 on october 6th, monday, between 2:00 and 3:00, that is the hashtag. they even kind of explained how i then reply. so i have to do that for an hour. peter, my mantra today is talk long for these three hours. and write short tomorrow for my twitter. so i'm doing that. let's see where am i? i'm going to speak to some people there. i'm going to up new york city to a neat event that the new york city historical society museum will do on saturday, october 11th i think it is. then i go to a couple book festivals this time of year. down in miami and tampa

st. pete. it is fun. when i, when i wrote the o'connor book i wrote to some bookstores. tough say many of those bookstores in 2005 i visited are gone. some of them were gone in 2009 when i did the scalia book. now a lot more are gone. you do a lot of radio and other stuff. when that is all done which actually took a couple weeks, couple months, then i launch into my next project. i do the day job. >> host: joan biskupic, like asking who your favorite kid, who is the most fun to write about? or the most interesting that? >> guest: i just love finding out about these people's lives and their times. justice o'connor was interesting because she actually was in an era and a part of the country that i didn't have a lot of familiarity with. i didn't know what her ranch world was like. it was fun to go to palo alto to stanford's campus. it was fun to go to the ranch

and fun to get to know her brother who showed me all around. and it was a delight to go through all of her legislative files and find things she had done. so she was exciting. she was my first subject, i still have great interest what she's up to. justice scalia was more difficult, because plainly he was more difficult. but i've always been intrigued by him as manifestation of the true reagan revolution. justice o'connor was not a manifestation of the reagan revolution even though she was an appointee of ronald reagan. so i was interested in the movement that scalia was part of. and how that emerged in america and how liberals have tried to counter it. and with justice sotomayor, it is not straight biography, it is more political history but i learned so much about this trajectory of latinos. i always knew, the basics civil

rights era that african-americans inspired but to learn more about the role that latinos played and what was going on in her life at the time was fascinating. and also her role in that. she was not an advocate in, in the mode of ruth bader ginsburg or thurgood marshall who helped found the naacp legal defense fund. she is second generation. she said, i'm not a flame thrower. i was not one of those people who was out on the front lines of advocacy. she was more of a board member of the puerto rican legal defense fund than somebody who was representing it. that was interesting to me. no, i can not directly answer your question who is my favorite. >> host: claire, you're on with joan biskupic. in boynton beach, florida. >> caller: thanks so much for taking my call. i have two questions about the

bush versus gore election. is it true that james baker brought john roberts down to florida early on during the recount problem, and of course, we know ultimately that john roberts got, was a appointed by president bush not only to the court but as the chief justice? that is my first question. my second question is, is it true that this determination is the only non-precedent setting determination that the supreme court has made in its history? i would appreciate hearing about that. thank you. >> host: thank you, ma'am. >> guest: thanks. both really good questions. first of all, yes, john roberts was on the legal team down in florida for the republicans as were hosts of other young republicans at the time. born in '55. it was 2000. he was into his career.

he was pretty active as a republican in party politics even though he was in private practice. he had not yet been appointed to the d.c. circuit. which i remind the caller, you went on, he was nominateed in 2001 right after president george w. bush took office and then eventually ended up on that court, the d.c. ircircuit and then on the supreme court in 2005. so yes, he was very much a part of that team but lots of people were part of that team. miguel estrada was part of that team. he was a nominee to the d.c. circuit, didn't get on. in my book i suggest if he had gotten on d.c. circuit and in line for the u.s. supreme court, maybe sonia sotomayor might not be there today. it was such a big deal for the first hispanic. that was a threshold question about john roberts. at the same time, democrats pulled in all their legal heavyweights down in florida too. it was set of stars battling

each other and democrats prevailed largely in florida. when we got up here, the republicans prevailed of course. and then her second question -- >> host: not being, only non-precedent-setting ruling. >> guest: she is reminding everyone of. it could be precedent but not cited by them. the joke, it was a train ticket for one ride only. yeah, right, no, no. you do not see a lot of references to bush v. gore in supreme court opinions. in fact i think maybe we've had one or maybe, you know, just, it is not cited. they basically rude and then that was that. >> host: we've talked a little bit about past connections. that caller brought upjohn roberts. >> guest: yes, yes. >> host: from american original you right this, the 14-page opinion shepherded by scalia, said nixon app son's recordings and white house documents were his personal property. >> guest: what you're talking about there, that is not a court opinion. that was opinion head of office

of legal counsel. >> host: goes back to ken starr and -- >> guest: going way before ken starr on that. we're in '74. u.s. v. nixon. we're in, let's see. watergate is in june of '72. nixon resigns in august of '74. shortly before he resigned there was big question who owns the presidential materials, tapes and papers and all that. in the early '70s, who is just dying to be part of the nixon administration but antonin scalia. he gets hired. he is in the office of legal counsel and he is, he comes in trying to remember exactly the timing. but it's, he writes, he is working in the ford administration which of course gerald ford was nixon's vice president. he takes over in august of 1974. can't remember the exact date that scalia comes into the office of legal counsel.

that is very important part of the justice department. he was assistant attorney general for that division. and he is asked, by president ford and his people, what constitutional, constitutionally who owns these papers? what has the tradition been? justice scalia writes an opinion as a lawyer in the justice department saying that the papers belong to president nixon or any president and congress, congress nixed that pretty quickly. then of course we also, through court rulings, congressional action and all sorts of other wonderful measures helped public and reporters understand what went on during watergate, all the tapes and papers are now available. the tapes are wonderful thing for any of your viewers to listen to at the national archives. they were a blast for me to go through, in part because, as watergate is happening, as it is really coming to a head, president nixon is also choosing the successors to hugo black and

to john harlan in lewis powell and rehnquist. all of his conversations about those choices are on the so-called watergate tapes. so you can find out about what went on behind the scenes with watergate and what you don't know from movies already. through actually listening to nixon on these tapes talk about things. you're right, justice scalia was with the executive branch during all that. and he rooted for nixon till the very end. >> host: strategically speaking, this is an email, from bishop, why do you think justice ginsburg is not retiring to allow president obama a chance to nominate another justice, when in her advanced age she might not have that much more time left? closer her departure comes toward the end of president obama's term, the less likely an appointee by president obama will be confirmed?

>> guest: caller, emailer is exactly right. if something were to happen to her or anyone else over the next couple of months, till, the end of president obama's tenure, i question who he could get through, seriously. i think that he would, if, you know, she is is 80, born in '33. she is 81. but justice kennedy and justice scalia are both 78. so it is not like, you know there is chance they might, they're definitely not thinking about retirement but you definitely don't know what could happen. if president obama got a chance, it would be very difficult to put through anybody who was truly a liberal. already difficult to put through anybody who is truly a liberal. her feeling is, i will leave the political scene to somebody else. i feel like i'm strong. i feel like i'm not slipping. only thing that matters to me can i do my job. and she saw john paul stevens last until he was 90.

it's a big deal among liberals. erwin chem merry ski who has come up, saying she should strep down. maybe breyer should step down because of what is at stake for the court and liberal legacy. >> host: court land, lakeland, florida, you're on booktv with joan biskupic. >> caller: good evening, greetings to you both. my question, it is not a question but i think we grapple with issues of state versus church because of roe versus wade. roe versus wade established strongly the state be separated from the church. church opinion says this shouldn't happen where state is rule of the people. so we still grapple with. that i think also the separation of powers, checks and balance, i think we still grapple with that. my question, how far have we come from the separation of church versus state? we still need church for the issues of morality to establish

and balance that, we don't want the state, the rule of people who override the personal lives of people. how far have we come from that? >> host: thank you, sir. >> guest: it's a very tricky line. when we talk about 5-4 decisions and their value and controversies that lead to them, this is an area of the law that generates a lot of 5-4 decisions. the caller seems to know what has been happening at court with various cases. remind others from the last term, from the town of greece, which the issue was legislative prayer and how inclusive, did the city council need to be who got to say the prayer. the idea of potentially only christian voices at this, at these city council meetings and by 5-4, the justices essentially gave, city councilses local governments, for allowing prayer

to open the council meetings. that was 5-4 decision by roman catholics, and opposed by more liberal justices, three jewish members and one roman catholic. notes how divisive it can be and plays to a lot of religious divisions in america. it's a tough line for how much, goes to the balance between everyone's free exercise of religion in the face of the constitutional mandate that government shall not establish religion. and those two clauses can work compatibly but often seem intentioned at the supreme court. >> host: in an american original, this is from the last page, the supreme court is likely never to go as far as scalia wants on racial policies and in an equally explosive area of the law, he will likely never see the overturning of

row v. wade. kennedy would block that. scalia is likely to continue on the losing side of gay rights, courtesy of kennedy. yet in upcoming years, scalia could help bring about more mingling of church and state and less government regulation of campaign financing, et cetera. this is book came out this 2009. >> guest: somehow it still stand up. so, that's true. >> host: greg in ohio, you're on with joan biskupic. >> caller: good afternoon. my question is in terms of political rivals, can you give examples of appointees to the supreme court that were potential political rivals and were appointed to, to kind of get them out of the way? second part, have there been any justices that have been impeached over the years? >> guest: okay. the first one, we had, in some

ways, there was, a question of whether president eisenhower put earl warren on the court to get rid of a potential rival. so, that has happened. for our current crew, i have to say i can't imagine a president thinking i better elevate the lower court judge to put them on. the caller is wisely thinking of different era when we had more politicians on the court. a president would think about a potential political foe to maybe, someone over at the supreme court. it has not happened at all, really in our time. when president clinton was thinking about big public figure in mario cuomo or bruce babbitt or george mitchell, he was not thinking of getting rid of a political rival here. that just reminded me of something that, that, comes up with bruce babbitt, who i

invoked because of bill clinton here and sandra day o'connor. it was bruce babbitt, who as arizona governor in the, that would get us back to the 70s, yeah, in the 70s, who actually named sandra day o'connor to the intermediate court she got on. i think i'm remembering this right. there was a little talk about whether bruce babbitt was trying to remove a political rival in sandra day o'connor. remember, she had a fabulous political background and she was quite a politician, very effective in the state. and, just you know, as i said, just coming to mind now. i could have a couple of the details wrong. but i refer that was a little bit of the flavor of it. in terms of any justice impeached in recent history, no. samuel chase back in the 1800s. i can't even think, we had a couple lower court judges impeached since the '90s.

alcee hastings i believe. and walter nixon. does that sound right? i think i got that right. >> host: alcee hastings is a member of congress today. >> guest: i know. >> host: do you have a favorite supreme court justice from the past? >> guest: not really. one tour on the bench i find so much more interesting in ways, but i have, you know, i am a student of history too, but i don't, word favorite doesn't quite work. favorite case doesn't work either. there are cases that, people always say, you know, what case did you love to cover? in some ways bush v. gore was a great case to cover. there were flaws and many ways to it, depending where you sit but it was a great case to cover, just like affirmative action case was a great case to cover. there has been, the word favorite doesn't seem to, seem to work. i mean they're all, they're all somehow, i find, lots of cases and lots of justices interesting.

>> host: rebecca, woodland hills, california. >> caller: hello? >> guest: hi. >> caller: i have two questions. first of all in regard to the hobby lobby case, that basically gives employers the authority to control female employee's access to birth control, do you think that is makes this court one of the most regressive on women's rights in decades? because i know ruth bader ginsburg has said so, i agree with her. i was very much against the hobby lobby decision. my egg second question, is in regard to the voting rights act, recently struck down under the argument race system is not really a -- that racism is not really a problem and i clearly think it is a problem. do you think that they ruled badly on that case, striking down parts of the voting rights act? >> host: rebecca, how closely do

you follow the supreme court? >> caller: i try to follow it fairly closely. >> host: why? >> caller: i personally went to law school. i'm a political science major that i'm interested in. i'm very interested in the subject. i'm very liberal that i find that the courts, too conservatively kind ever chuckles me. >> host: thank you, ma'am. >> guest: both very goods points. who would have thought in 2014 we would be thinking of deeper, deeper gender divisions on the court and in america. a couple actions by the supreme court toward the end of the term, revealed. the bench split along those lines to some degree. rebecca was talking about the hobby lobby ruling. it involved closely-held companies. but essentially could involve any kind of corporation. if the, owners have religious

views that would religious beliefs wouldn't allow certain contraceptives, they have the right to say we don't want those contraceptives as part of our health insurance plan. the court found that was required under a 1993, was that was -- i think religious freedom restoration act. 1990s religious freedom law. justices said that these companies, hobby lobby and con -- con that stowing ga wood, it was very disturbing to justice ginsburg and other dissenters, there was a male, even among the dissenters. i thought her opinion raised a lot of issues from the '70s and 08's about women's rights and women's economic rights, the kind of rights that rebecca was implying in her question that

women had come to depend on an array of contraceptive methods to be active players in society, for their own economic control in this world. and justice ginsburg was saying that the court was going backwards on that. and i think this is not the end of the issue, this issue at all. we're going to have other, other questions coming to the court involving the contraceptive mandates of the obamacare law, and, rebecca is probably aware of this since she covers the court, i want to mention a pretty interesting case that will be heard later this fall on the pregnancy discrimination act. it has to do with employer's rights to restrict when pregnant women are able to work on the job, that you would think would have been answered before and you know, just because those kind of issues have been percolating out there for a long time. it is very important case and important to employers. it has to do with, a ups

carrier, united parcel service hauler and how heavy the packages were when she had to carry when she was pregnant and what kind of accommodation could be made. these questions reemerge and i wouldn't have predicted so many sex discrimination questions would be reemerging at this time but they are. >> host: joan biskupic, if anyone reads your biographies of the supreme court justices would they come away saying wow, she was complimentary? >> guest: to the justices? >> host: yeah. >> guest: i know what people will say. i've gotten ranges of opinion. i don't think anybody thinks i'm hard on a -- you got to deal with the extremes in anything. we've talked this polarized court. i have at least two figures who are quite polarizing. so on the scalia one, on scalia one, all my pals on the hard

left, says you have one bullet, can't you use it effectively? why do you have to be so even-handed. on the sotomayor one, early reviews used word admiring. as journalist, you aren't happy with the word admiring. people think i appreciate your differences. some people think that maybe the lens through which she should be seen should be much more heavily ethnic and race rather than political and cultural, which is the way i go at this one. so, just like rulings that, it tends to be in the eye of the beholder, what i have to say, i think most readers, in the criticism, you know, usually quite positive, is that, people see me as being even-handed towards my subjects. i hope that continues. >> host: in the sotomayor book, "breaking in," you quote jeffrey rosen, head of the national constitution center in fill deferral. you said rosen said the most consistent concern, this goes way back, that sotomayor, although an able lawyer was not

that smart and kind after bully on the bench? >> guest: she still gets that. she still gets it. she knows she get it and still counters it. i felt it was important to take that on and reveal it and not run from it and not to ignore that criticism. that endures today and she will, when she is out giving public speeches try to counter herself. she said, after she was approved by the senate. to then to the confirmation process. it was very painful for her to hear those kinds of comments and, to have it suggested, in other quarters. jeff rosen did not suggest, this as other people might have, you know that she wasn't up to the job and but she said it was suggested, it was suggested by others. she said that was very painful for her. why do you think that even was, that people said that? do you think it had to do with

anything other than the fact that i was hispanic? what i try to do in the book to raise it. look this is what this woman is still dealing with. this is what people say. and this is how she counters it. this is how she has been effective or not been effective. >> host: you get angry, don't live angry, a quote from "breaking in." host. >> guest: yeah. >> host: maria, san pedro, california. >> caller: i'm a hard lefty from california but i admire many things about justice o'connor. i can't say that i don't. but i want to know, possibly, she will never say she regretted her vote in gore v. bush. but i believe she says she wishes the court had never taken this up. could you speak about that? please? >> caller: of course. i really appreciate, i appreciate though you can

identify yourself as hard lefty, you're open to and interested in this conservative centrist, o'connor. those are the kind of readers i really appreciate. people who can look broadly at, how these justices have emerged over time. you're absolutely right. what justice o'connor said, she wishes the court never had to at thattake it up. i think she was shocked by the public fallout. she is the kind of person, who, as i said, once she make as decision whether it be personal or in the law, basically says that is my position. i'm moving on. i will not second-guess myself. so she is not second-guessing herself on bush v. gore. darn if she could replay that election and wished it hadn't been that close and ended up in her left. >> host: greg, at bam, a few minutes left with joan biskupic. >> caller: thanks for taking my call. i'm actually conservative to

some degree but interested in the dynamics that justice sotomayor brings to the court in regards to the deference that existed there for so long. justice kaig began talk -- kagan with reference dealing with people and she can be fiery at some times. i wonder how different justice sotomayor is with regards to her actions on the court and how she deals with the more conservative justices? thank you. >> guest: that is good question. i'm glad to have opportunity to talk about how her personal style might play in rulings. and, bottom line on joe's tis sotomayor she is really a product of structure herself. structure informs precedent. she was on the federal bench for 17 years before she became a supreme court justice. so she is, she even says, she said to me, you know, i'm not

aable rouser. she is trying to do things on the supreme court in lawyerly, judicial way. she is not, she might be shaking up the place in a personal way and she might be out there on the stump with her own memoir and all her speeches in a way so different than from what other justices have done but she is, when it comes to the law, she is looking at precedent first. she is trying to deal with her colleagues through the usual channels. i have a couple incidents in the book that found out from behind the scenes that show her making more waves than we would have known. but even, even what we know from her public, public statements she is interested in process. and where she is breaking off from the majority, even breaking, broken off from her liberal colleagues is to bring more process to criminal defendants appeals. so, it's, i wouldn't even put her in the mold of thurgood

marshall. she is not that kind of advocate. she is not a first generation advocate but she is doing something different given her background. just she still first and foremost a judge. >> host: how would you describe john roberts? >> guest: a lot of different ways. he is definitely interested in tradition. in going through channels. making sure things look just right. he is actually quite, quite a public speaker. he is quite a, you should -- >> host: c-span has covered him several times, whenever we can. >> guest: great public speaker. pa great sense of timing. he cuts a very positive public presence from the bench. he used to argue it from the bench. he argued 39 cases. he is a very effective advocate for himself.

as i said, he is a pretty button-down individual. he is just give some folks. roman catholic. he is from indiana. child of a father who was, worked for a steel plant. was an executive. he is one of, i think, three or four children and he was only boy in the family. i think he has two or three sisters. the eldest. went to harvard for undergrad. harvard for law school. he is, he is playing a long game. he is a very, very smart. i'm always surprised when he says something that seems out of character because i think he really, really can keep it in check. i think that there are some questions about whether he might take some baby steps over to the left. he is definitely not, not the conservative that samuel alito is. definitely not the conservative that antonin scalia and clarence thomas are.

where he fits into the center, how much more he will align with anthony kennedy and how much he will align more middle to the right are very open questions. >> host: does very, very strong friendships on the courts, relationships? >> guest: woe make sure those relationships are good. he understands that is part of being chief, is being an administrator and trying to. trying to make sure his colleagues treated fairly in processes of the court and assignments. i think he put as lot of attention to, to his, those relationships. a few years ago in indiana, i know you're a native, i covered a 7th circuit legal conference and he was the opening act for elena kagan. she was going to be speaking. and he gave some remarks. and now she is very liberal and he, he was great. he was only