tv Fourth Circuit Judicial Conference CSPAN June 26, 2011 6:30am-7:00am EDT
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some of them are straight out of law school or one or two years in practice. they are always dismayed about how on expience to they are. in the early 1970's's, there was a constitutional challenge for a garnishment proceedings and we went in to discuss the proceeding and within a few minutes, justice powell discovered that none of his clerks knew anything about the mechanics of garnishment. he buried his face in his hands wondering o th people were around him. he was used to working with junior partners and associates. for all of their intelligence and understanding, does the greenness and lack of seasoning of law clerks trouble you at all? >> no, it does not. i think is a plus.
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i do want to say that it is a wonderful institution to have four very, very bright law students coming off of the court of appeals clerkship or a district court clerkship come and spend one year with you. you learn a lot about what is going on in the law schools at that level and you get a new perspective that year. then they go out in public service, private practice, in the law department's a public- interest groups, corporations, and they give you a sounding board there as well. the keep you in touch. they also worked extremely hard. they really do, for which i am grateful and i am sure other judges are. i told my current clerks when they were starting out if they want to know when we are supposed to be here and all that, and i tell them what i was
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told when i started clerking for a judge. he brought us in and said, "i do not expect you to work every minute of every day, all you have to do is just be here when i am here." they asked when he was going to be here and he said, "well, i will not tell you that." getting back to your question, i think it is positive that they are green, as you put it, and they do not have years of experience and do not know about garnishment because the idea is forou and for me to learn about garnishment to make a decision. it reminds me, again when i was clerking for justice rehnquist, he had the 10-day rule. whatever assignment you get your law clerks whether it is to grafton opinion, right memorandum, it had at 10 days to do it.
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i did not care if it was the second version, they had 10 days. i remember going to justice rehnquist and saying, i could do a much better job if you gave me another week. he said, "john, the idea is not for you to do a better job but for me to do a better job." i will stay in the process if you can give me what did you have in 10 days. i do not need a polished final version. that may make it harder for me to make sure that it is my work. they are extremely bright and i am delighted to have them with me and i am delighted to see them leave after one year. i do not want them to get too familiar with the court or the work that we do because it is supposed to be ours. >> i know the work hard. you had a family member in your chambers and then reported back that columbus day was a federal holiday so they were trying
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discreetly to find out whether or not you'd be in. well, should become in on columbus day? i'm told your response was, you have the rest of your life to take of columbus day. just not valid. >> to be fair, it falls within the first two weeks of the term. memorial day falls right in a metal department we are ready to have decisions finalized, so they are happy it is only one year. >> at the end of a long term, everyone deserves a chance to recharge. i think my recollection is right about this, but the reporters were giving justice brandeis a
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really hard time about the two months in the summer that he took off and did not look at anything. "how can you justify to the public the fact that you were taking these two months off in the summer?" he gave a classic response. "i can do 12 months work in tandem i just cannot do it in 12." i thought that was perfect. do you have some fun things were looking board were to doing during the summer and some hobbies and you just do not have -- looking forward it to during the summer and some hobbies? what will you be doing, in the tradition of justice brandeis, get mpletely away from the law? ." -- >> my favorite hobby is sleeping. i am getting ready to do that.
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people do not realize it is a very unusual feature of being on the supreme court that you are with eight colleagues and you do the same things. the court of appeals, you work on different cases. districtourts, you have a different docket. members of the bar have different responsibilities within your firm more practice. the nine of us read the same briefs, look at the same argument, discussed the same cases, read the same precedents, understand justice brandeis's point. it is a little more intense. i love my colleagues greatly but it is nice to get away from each other for a little while. of course, i want to emphasize we do not take two months off. hist the process continues -- of
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course the process continues. things come up in the middle of the term that we have to address. there is some time off. i do some teaching. i have a two week course in the supreme court and i do that at a different venue every year and take the family with been so we can have -- take the family with me. i like to touch upon reading that has nothing to do with law. we try to make up for the fact that there have been weeks and months that have not been able to spend as much time with your family as you would like. >> it is certainly well- deserved. and now many members of our audienceove to ask you questions, and i think we should ask members of the audience to come forward and ask the chief justice question that has been on their minds. dinner required -- to inquire
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about the specifics of a particular case. this is your chance, your opportunity to ask the chief justice of the united states a question about the supreme court or whatever is on your mind. >> mr. chief justice, good morning. there is a disturbing trend in washington to cle the front doors to public buildings, at the capitol and the national arches and recently at the court itself so rather than a symbolic act of descending the stairs to the couple that they are shunned to the basement to enter. which to comment on that decision and whether or not it may change someday? >> the doors are not closed. they are open. people, tourists, practitioners of leaving from the doors. for security reasons, it was
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determined it was not appropriate to allow people to come in. i think that is part of what is behind the closures in some other places as well. it is a sad reality, but based on the information in studies we've received, i could not come in good conscience, believe it was not a threat. people do enter in on the side d go through our exhibits down there and come up to the great hall. we do have state of the year security not only for the usual metal detectors butlso for chemical and biological agts. i am happy that we are able to keep the doors open so people can exit. i am very disappointed, as you are, when i was arguing cases and i would like to walk up the steps. it is a verynspirational feature of the court and i am
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very sad we had to do that. in good conscience, i did not have a choice in terms what the recommended. >> good morning, mr. chief juste. i knew from columbia, south carolina. what we read this summer? >> the first book is a book about florence which has been recommended. i will do my teaching in florence and that, i am told, is a good introduction. that is first on the list. >> been morning, mr. chief justice of. i am from durham, n.c., and the comments about the use of your law clerks, judge edwards suggests that our judiciary coverall all levels are to disconnected from our academies. i want to know your thoughts on that, whether or not you agree or whether you take the
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relationship between the practicing bench and our academies are fine or whether or not there is an impact on the future of our profession? "judge edwards is a great friend of mine. he helped me greatly. he was a model for me how to judge. he came in the very first week was there and said he was going to teach me how to use laptops and you'd be a great thing to benefit. i told him, "thank you very much, judge, but i am not up to speed on technology and i would rather not worry about." he said, "i did not ask you if you wanted to come i told you you were goingo."
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he was tough to argue in from to when i was arguing cases, and i am glad he did what he did. it'sort of helped bring me up to speed. we are on the same page on that point. there is a great disconnect between the academy and the profession. pick up a copy of any law review that you see, and the first article is likely to be the influence of the manual can -- emmanuel kant on 18th century bulgaria but that is not much help on the bar. i do not think there is anything wrong with that, but at the academy wants to deal with the legal issues in an abstract and philosophical level, that is great and that is their business, but they should not expect it would be of any particular help for interest to
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the practicingar or judges. at the same time, we are not looking corp. for vocational guidance. this is how you fill out a form for an entry of appearance. i do think the academy is interested in having an influence on the practice of law, the development of law that they would be wise to sort of stop and think if thiarea of research will be of any help to anyone other than the other academics. it is their business. people ask me what the last law review article i read was, and i have to think very hard before coming up with one. >> when we talk about the different segments of the profession, where do you sometimes hear is that a hot bench is taking over from the
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bar in terms of oral argument. "there are seven questions from the bench that lawyers rarely get a chance to speak. with nine people wanting to get in their questions, as the oral argument squeezed the lawyers? studies have indicated that over the years, and the time that the council gets to speak has diminished and the questions from the judges have increed. is this a troublesome trend, in your eyes? >> my view on this has changed. [laughter] no, -- well, we are in our office on the bench. we are working hard to get answers to questions that we think are important to us, and there is a limited amount of time to be had.
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frankly, i do think we have gone a little too far. there have been moments particularly in this last term when i felt we were not being fair to the lawyers, not necessarily unfair to our colleagues. to many times when i was would add a question, the lawyer did answer, and we would jump in with what we thought was a good perspective, or just to change the direction of the dialogue entirely. there are some areas where we are trying to do things. for example i do not think it is quite appropriate -- we have a light that those are my new have five minutes left for rebuttal. it is not fair for us to start asking questions to eat into their rebuttal time when it wanted to save it. why improbably one of the prime offenders, but i think we do need to make little bit more of an effort to give the lawyers time to give us some kind of
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answernd make sure we are not stepping on our colleagues questions. part of it requires a very expert counsel. someone who is good can find a way to purchase the court's attention to where they want to go -- a way to focus the court's attention and when they are bombarded with questions, allows th to take control of the argument. i remember when i was practicing before the court when justice stevens asked me a question and before i answered another justice, then another one. i answered the most recent question. i was very proud of myself that i remembered where it went justice stevens, i would like to return to your questions. he was smiling the the it was a great thing. suddenly, i realized i did not remember what his question was, so it was a good idea but it did
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not work out. i think we need to do a better job of letting the lawyers participate in the dialoe. we have an extraordinary process. >> it is a difficult thing when lawyers are trying to pick between which justice to answer when the questions come simultaneously. >> right. it is a challenge in part of the practice. >> further questions? [no audio] >> i do a lot of work in my chambers orally which i think is a holdover from my practice. how do not have them do bench memos. they read the brief, i read, then sometime we wl sit down
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and bounce ideas off of each other. i take one side, they take the other, i will have questions about the record. but usually as a result of that coming additional questions will, and we will do -- will come up and we will do further research. i do have them draft portions of the opinion and they will have 10 days. then we will have a very extensive iting process. we usually go through about 20- 25 draft of an opinion, a change in one partere, changing that part there, looking at that before we send something around to the other members of the conference. they spend a lot of time on the search process. i do not read every one of the 8000 petitions that come in. they participate ia pool with most of the other justices and will write a memo that is shared.
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in that respect, i will ask for a little more work occasionally on one petition or another and will ask t see the actual papers. throughout all of that, they work pretty hard. >> this gentleman has been standing up. >> good morning, mr. chief justice. i am from winston-salem, n.c. one thing we are graling with is social media. it impacts ethical obligation that we have, client confidentiality issues. i figure if we are grappling with those issues that it is probably more acute in the court system. i was wondering how the supreme court has dealt with this phenomenon. i have this image of one of your clerks tweeting about what is going on.
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is the dghter of a justice by justice basis? do you have certain policies enacted on that area? -- it is its enacted by justice by justice? >> i sit down with each of the clerks and go through a number of things they need to be aware of. i tell them that they should obviously not be tweeting about what they are doing. a lot of it is inadvertently. we are working very hard on opinion this week, getting ready, and discerning people can look at what they are saying and put two and two together and figure out what their boss is doing. even unintentionally, they can sometimes reveal confidences and that is very dangerous. it my advice is to put that all on hold. i appreciate that it is a
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generational than in the idea of "not being connected" can be problematic for them. the different members of the court are more adept at others. i do not think any of us have a facebook page or tweet, whatever that is. tetralogy is making inroads. when we travel, it is easier to have some of us briefed on some of the products where you can have them electronically available and carry them around. different people have different comfort levels. in the courts in general, i think it is a challenge in a lot of areas and it is just something that we will have to deal with it is not limited to
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that. the impact of the new technology on subject of law it is really quite significant. whether what does it mean in antitrust law to have technology gateways that are different than what we are used to, but that, too, is nothing. wehink of the supreme court's dealing with the wiretap cases when they were a new thing. of course that is not covered by the fourth amendment. it reversed itself. will be a great challenge in a substantive area and for many of us to try and keep up with technology. it is one of the great things. they come in and they know how all this stuff means. they are a resource for educating ose of us who are a little behind the curve. >> the theme of the conference has been accessibility of the
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courts, transparency, and one of the things that keeps coming upper our television cameras in the courtroom. the supreme court has made proceedings much more available through audio recordings, but you have some thoughts on television in the courtroom and in the supreme court for arguments? >> welcome and we are having a pilot project right now under the guise of the judicial conference in terms of the lower courts and experimenting, again, on a pilot basis with television on the court of appeals. we will see what the results of that are. the judiciary, supreme court, the judges, we tento move slowly. those of you who have been to
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the court know that one of the architectural motifs at the base of the posts is a turtle to indicate we move slowly but surely ion a stable basis. now we released transcript of arguments, and now we release them within a half-hour. it used to be that the audio recordings were released at the end of the term, now they are released at the end of every week. we are moving in a particular direction. meras present other challenges that these other areas do not. i will not go through the whole debate. it is a fairly common one. we worry about the impact on lawyers. i worry about the impact on judges. i do think the consideration is
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different. >> do you think judges will ask even more questions? >> i do. that is exactly it. unfortunately, we fall into grandstanding with a couple hundred people in the courtroom. i am a little concerned about what the impact would be. we talk about it from time to time. it is something we consider. other courts around the country have had experience with this. it is different domestically but in terms of its impact worldwide. i will be very interested in what the results look like and we will take those into account and consider whether or not we need to move forward. that is the nature of the court. if you do not want is jumping into things until we have given it a lot of thought and
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deliberation. i am td that things really do not hpen unless you can see them on tv, but the supreme court is different. i have spoken to people who he been on the senate, and they think televising the debates ruin them. you can go see a senate debate and it is always one person standing at the podium and they say it used to not be that way. >> you think about the great speeches that daniel webster gave, and these great speeches that abraham lincoln gave come and they lived through the ages but they were never televised. it did happen. >> people say other government institutions have been opened up,ut it would be interesting to see what they thinkhat government institutions function better. we of the most transparent branch of government.
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everything we do is done in public. you see are worked in public on the urt. the only impact we have is on the arguments. you see the material we look at in the briefs. what is not public is our internal discussion and argument. the long and short of it is that it is being looked at and we ll see how the pilot program does. but does raise concerns, and i have been sharing my views and not just those of my colleagues. >> chief, i'm want to thank you so much for being here. it means a lot for us to have you as our guest and to have this conversation to begin our
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supreme court review. i hope you will return every time before e circuit has a conference, because you are always our number one guest and it makes a wonderful occasion for us. >> thank you very much. peaps he will not be surprised, but i will not sit around for the review of our term, particularly after this. these are not the economics writg about this, so maybe -- these are not the academics >> next, live, your calls
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