it gives you the time that your problem calls for. that is in the way it is in the attitude of the judge in the way the community responds. all of that is part of an institution. they're not built overnight. they can be heard. the thrust of your question is how we maintain it. it is not just the supreme court. it is that and tired judiciary thing. i'm glad you're interested in that. i do not have a definite solution. it is not just the pay. it is the new morosity. it goes back to the laundry one. it is a great mistake.

but to reach team -- routine ones that there. you want an elite group. it is not as a lead as it used to be. >> there are too many things that go into the federal system. he raises a very good question. we have pending right now. we're waiting to be confirmed. there are judges that would represent over 100 americans that have this today.

we have to do a better job of getting these people confirmed. there are too many things before a federal court. we wanted to found a stolen car. it wanted to see how much money they had recovered. >> no. want to thank my colleagues from can edited -- from connecticut. we have a unique dinner. we have a chance to break bread with their families and have an informal moment. a like give his name.

what you thought i should be taking a look at. you're engaging the issues that come before the court. it was interesting. you ought to take a look of the number people who are prison in united states of america. i am aware of it. over 2 million people incarcerated -- more prisoners per-capita than any other company in world. our visit, overcrowding and racial disparities including those who end up in prison. african americans. six times the rate of caucasian

incarceration. one out of 11 african-americans in is in prison or probation. we joined forces in a rare bipartisan show here and address the crack cocaine sentencing. we could have done it differently. we reached an agreement. that is pretty historic. it is an attempt to reduce some of the incarceration. i'm not going to hold to that particular issue. would you think we should be making inquiries? >> it comes to our constitution and the challenges we face today. >> @ think it is fine you're going into that. there are a whole range of things. there have been articles about

all kinds of elements. it is within your control. there is the criminal area. that is a huge matter. >> and do not want to confine me to that. there are other issues regarding that. >> i am going to pass. this is within the category of by leave you alone will you leave me alone. it is your call. it is a policy question. i do not want to get into it. >> i have no question. this relates to the question of ethics. it turns out it is handled differently. as someone who's been involved

for a long time, i have the need for us to have the appearance of honesty in their work. we accomplish this by opposing certain restrictions. every other member of congress and their staffs and all federal judges are restricted from outside income. members of the supreme court and the employees are the only ones that are exempt from these extensions. do you believe the supreme court to be required to follow the same financial restrictions? >> we are. we filed this report its budget every year. why do think we prepare where every penny that i take yen are

my children, every assets has to be listed in depth? it is all filed. the amount of money is far more limited under the ethic. judges have special restrictions. i do not think the life of the judge is less. >> this is no reflection on either one of you. i understand that the court is bound by these restrictions and resolutions. i wonder if you could tell me about that person. we do agree to this resolution that's >> there's several

different things. some of the ethics requirements for statutory. there are some better in this ethics volume. me whichren't asked ones were specific, i cannot answer that. probably like most of us, i have this. i will look and see what they say. i did not distinguish that. i read them. everybody has some system. there is no one who wants to

violate any of those rules. there is a big difference between the supreme court and the lower court. and i was on the court of appeals, i had a close question. they will put someone in. one judge is as good as another. if i took myself out of the case, that could change the result. saying it would be possible to choose your own. it is undesirable in supreme court. that means there is an obligation when you're not accused. sometimes those questions are tough. i have to think them true. others cannot make it up for you. this is an important part of

being an independent judge. we're given tough questions to answer. we're bound by law. b is one where we are bound by practice. "c" is where you have to think it through and figure out which is the predominant force. >> next line of questioning is how much of this should be made known to the public? >> should it? >> we make disclosure as members of congress that it will lead to conclusions. i do not believe the same is made at the supreme court level. >> i cannot say 100%. it is a difficult question.

sometimes we right opinions about it and the press get an answer. i am not sure that there are things that matter. have to take myself out. i take myself out because he was sitting there. this is normally off the record. my brother is in it. i do not believe there is some secret thing that goes on. >> at this point if i might have your indulgence. he talked about one of you has to step out.

they can step in. how would you feel about allowing former supreme court justices this step? >> who is going to pick the former? >> i would assume this. >> i think that would make anybody happy. >> i do not know that this would make anybody happy. >> i think we can stumble along the way. >> you're getting the reaction. i have not really thought this one through. mib problem. >> i will chat more about it.

i do not think it is much of a problem. very few were affirmed. it is very rare that this happens. >> thank you. >> thank you. it is an honor to have you here today. born to follow up on some things he said on opening statement. -- i want to follow up on some things you said in opening statement. i think the courts can and should play a stigma of rigmarole in ensuring that is always the case. it has been enrolled in past. they have said notwithstanding the fact that you found

something that makes this process easier or more efficient. you have not adopted your ei's and crossed your ti's. this provision is invalid. let me ask you. is there a role for the courts? can you forsee a role in which congress might do something different which would prove more collegial in a way that is the habit that nicole? >> they are maintaining the proper records. these would move in commerce are take advantage of some others.

a law and which, gracious passes a law. there's recordkeeping for purebred dogs. this passes both houses of congress. we have outsource the regulation. is this a situation where you can anticipate they may step than? >-- step in. >> i would. i do not know if the court would. he was on the sentencing commission. he decided how many years everybody should spend in jail. presumably congress did not have

the time to figure out for themselves. i did not think that was constitutional. i am sure i would not like your dog breeding body either. i cannot speak for the court. i do not know what they would allow. >> notwithstanding the fact that you do have a passage of this. you will have delegated the lawmaking power. >> exactly. >> you have to be careful. the first chapter says john j. was the first chief justice. i have a lot of questions here. i now want to do anything on constitutional. john said no advisory opinions. he did not know the answer. he is right.

it proved to be short-lived. >> the situation is quite different to leaving it to an agency. >> how is it different? >> you are giving it to the executive. the executive can make rules. the cannot do well without rules. cannot have fires of public land. it is up to the agency to make rules. there is an obstacle that discourage you from getting too much power. you are increasing the power of the president. there is the separation of power. there are different branches competing. there is no such a disincentive

when you leave it to this private group you're talking about. that is a pure delegation of legislative power. you are not authorizing an executive to do that. >> based on the fact that this is one is subject to the control. >> i think that is right. there talking about doctrine unconstitutional delegation. this is a bad name for its. there's no such thing as a constitutional one of legislative authority. you cannot delegate that. when you give rulemaking to one, how far can you go? can you say the president can do

anything he wants and adjourn? of course not. that has to be unconstitutional. is it up to the courses i where the line is drawn between giving enough authority and too much authority? it is a nonjudicial question. i would not let the courts do this. >> >> i suppose. we shall have a good law. that is not going to happen. back i have enjoyed reading parts of your new book.

it is very well written. you suggest that there is rarely an easy answer to the question of what level of government should be responsible. the question usually turns on empirical and information such that it helps determine the answer. you explain that very often this means that they ought to step aside. how is congress deciding the contours of the boundary? >> that is right. the start talking abstractly.

it seems appropriate for local answer. you're arrested him for having done so. they are torpedoes. it is so complicated and difficult. this is my point. >> if that is the case, the powers are few and defined. others are numerous and indefinite. should we decide what they are? should we reclaim ourselves rather than waiting for them to step than? >> you will make such judgment

on such matters the you believe are appropriate. a lot of this is your decision. >> of course you have to make them. the only reason i can look at this and say i have to disregard it is that it is not important. you take an oath. we get difference to legislation. the members of the senate and house have tried to be faithful. this presumption should not exist. >> it means more than simply

doing that which they might say we can get away with? >> we have to make your own decision about constitutionality. we do not strike down any of your laws. we never stride done yours. we just ignore them. there seems to be a lot there really isn't. there is the statute not withstanding. you have the first cut. >> thank you. >> thank you. i think you -- i thank you.

>> thank you for spending so much time with the s and having patience. i have the honor of knowing him for about 20 years. the highlight was the cases before. i could interrupt you. in those cases, i think he decided the right way to avoid the temptation. i was very impressed and moved by your explanation as to why

you think it is so important for the public to understand and increase g-8 what judging is and what role it plays. that's only is there the need but there is the lack of that understanding. as a farm frigid firmer law clerk -- as a former law clerk, why not go to video recordings? when i get the public the benefit of seeing it burst hands in your courts and other federal courts so they can appreciate the quality as well as the diversity of the difficulty of what you do? >> when i first came on the court, i was in in favor.

the brazilian supreme court televises their conference. >> i would never presume. >> i was this chilly in favor. the longer i am there, the less good idea it is. we want to educate the american people about what the court is. if i really thought the american people would be educated, i would be for it. if they set their a day of proceedings gavel-to-gavel, they will learn a lot. we're doing real law. people would never again come up to me and ask why do you have to be a lawyer to be on the supreme

court? the constitution does not say so. it doesn't. 99 term of what we do is law. it's a step only lawyers can do. it to be a great piece of education. for every 10 people who sat there are responsum -- proceedings, there are be 10,000 knows nothing but a 32nd take out. i guarantee you there would not be representative of what we do. they would be given a misimpression. i'm very sure that of be the consequence. i'm not in favor of televising it. >> it would for high school students or even middle school students and for the general public who are interested in a case provide a means to them to

see what right now only a limited audience can view. let those interested in it for intellectual regions, surely the tapes are good enough. >> the tapes, with all due respect, and i understand your argument, do not convey the same way with as much interest the kind of debate and the visual sense of the action in court. we know how dramatic it can be. >> there's not a whole lot of visual motion. >> it is mostly intellectual. the cracks it is gripping. >> do you have a different view? >> it is a new work that is

conservative. you would be. the court has served the country well. we're testes. will not make a decision that will be non-negotiable and heard the courts. sometimes i wish people could have seen that. it was such a good choice. you had jettisoned on one side. the jefferson on one side. it was the term limits. you saw everything with the balance. if they could have seen that across the country, people would have been able to see non- individuals struggling with an important constitutional question. >> what is the problem?

>> we are assembled. we probably could begin every criminal case with what? what about the criminal witnesses? we do not know what happens. orrin people come more importantly, people relate to people. you relate to people, i do. you see them and they are your friends or not your friends or whatever but we are making decisions that effect 309 million people that are not there and in our mind we have to take them into account and will that come across? then there is the problem that justice scalia mentioned, which is you can make people look good or make them look bad and it is

already cult of personality. we wear black robes because we are speaking for the law, not for ourselves as individuals. add those up and you say i don't know. i would like to know more. i really would. there are places that have it and don't have it. there are courts that have it and others that don't. canada has it, california in some situations. you have 100 different situations in respect to that. why can't we get real information, not paid for by anybody that has an interest and see what happens to judicial attitudes to others. so, what you are getting, i think -- and maybe eventually there will be no other way to see things but visually and everybody is doing that and it just seems weird what we do and it will change. but before that time it is a

little boring but i think information is something that would make me easier. until i become easy about it, until we become reasonably convinced that won't hurt the going to getou are a kevin tough reaction -- conservative reaction. >> senator, maybe it is unfair to put this question to you since you are such a youngster he here, but do you really think the process in the senate has been improved since the proceedings have been televised? >> just as you took a pass earlier, i think that there are mixed views, but in general i think that openness and transparency imparagraphs institutions. for all the reasons that you have so eloquently talked about your role in educating the american public, i think that an audio and visual recording of supreme court proceedings would

potentially do the same. and i think that whatever the results of televising senate proceedings -- and i was only facetious when i said i would take a pass. do think it has been a step in the right direction of providing more transparency and disclosure and understanding on the part of the public. now, i will let you and the public be the judge of how it views us, but i think in general americans should understand the challenges as well as the role that their institutions face. and since my time has expired, i want to thank you again for being here and i'm not at all dismissive of the points that you have made. i have great respect for them. but perhaps we can provide you with more information that would

be persuasive on the advantages and the positives in those kinds of greater availability. i also want to thank you for raise being the issue of -- raising the issue of state courts because i've spent a lot of time in state courts. you often have had to consider the results of state courts, and all too often we in this body fail to understand how integral the state courts are to dispensing justice in this country. >> thank you very much. >> thank you, mr. chairman. thank both of you for attending and your good comments and insight. i hope the young people have this.iated i would say to the young people, having traveled around the world in this role, we have the greatest legal system in the history of the world. we really do. it is a marvelous thing of

inestimable value to this republic. people can rely on fare dealings in court. they can invest large amounts of money. they can place their liberty at risk and. like consistently they are getting a fair day in court. i practiced virtually full time before federal judges as a united states attorney for 14 years and i -- when i had the law on my side i almost always won. the rulings were for me. if the law wasn't with me i last. i think that happens in courts pretty much all over america and judges try to do that. and, justice scalia, i do it is law and it does take a lawyer to dig through sometimes and understand the precedent. but i guess what i would say is the american people do care.

they have a high opinion of the court. they believe that you should follow the law. and the greatest threat to the court, in my opinion, is if the american people believe that judges are consistently redefining the meaning of words to vent their agenda and law is not the essence of what you do, and my own observation from the political world and the legal wor world. with regard to senator graham's comment, i think there's an area which we can respect as to the more activist or more living constitutional view of the constitution. but if it goes beyond that, in my view the judge should not be confirmed, the nomination not be

confirmed. i have to know that when they say that they understand they will serve as the oath says under the constitution and under the law they are willing to comply with that. that is how we wrestle with these issues and each senator has a concern standard. >> doesn't scare me, senator. >> a professor spoke in the 11th circuit one time he said the essence we called on the judges to do was, in his view, to enforce this constitution. he concludes we establish this constitution for the united states. and he saeid the good and bad parts, whether you like it or not, in the long run that document will be stronger and a greater bulwark if the courts enforce it as it is written,

this constitution. would you agree with that? ask you both just to discuss that point. >> yes, sir, i certainly do. and i don't think -- i said this in some talks. i think that the controversial nature of recent confirmation proceedings is attributable to some extent to the doctrine of the living constitution. because when you indeed have a supreme court that believes that the constitution means what it ought to mean in today's times, it seems to me a very fair question for the senate to ask or for the president to ask when he selects a nominee, what kind of a new constitution would you

write? do you believe this new right is there, this old right is not the there? it is much less important whether the person is a good lawyer, whether the person has a judicial temperament. what is more important is what kind of new constitution are you going to right. that is like having a mini-constitutional convention every time you select a new judge. so, i'm hopeful that the living constitution will die. >> i note what you said, of course. i agree with that. it is this constitution. i said "constitution" because i wanted you to think of john marshall's famous words that it is a constitution that we are expounding and he is thinking that that document has to last us for 200 years. and that doesn't mean that you

change the words, but the hardest problem in real cases the words life, liberty or property do not explain themselves, liberty, nor does the freedom of speech say what specifically counts as the freedom of speech. therefore, there is a job and lower court judges come to the different conclusions on the same question that when you are on the internet and reveal somebody's information and it is picked up in the newspaper and does the freedom of expression invade. does it extend and does it depend on -- in other words, it is very complicated. and trying to apply this constitution with those values underlying the words, two circumstances that are continuously changing is not something that can be done by a computer. neither of us thinks that. no one thinks that. therefore, it calls for human judgment.

and as soon as human judgment enters the picture fallibility is possible. then some of us but by really reading that history carefully we can get answers and be wear of the -- and beware of the judge lake -- like me that there is a risk that unbeknownst to me myself i will become too subjective and substitute what i think is good for the constitution as it was written and intended to apply. and what i say is, yes, you are right about that and all i can do is be on my guard, write my opinions, try to write objective and the opposite danger is rigidity. it is interpret being those words in a way -- interpreting

those words in a way they will no longer work for 300 million americans in the 21st century. >> it is a constitution. >> duff - do you have a hearin to determine if it will work or what do do you? >> a good example where we didn't agree, there is a -- there are cases when you say will it work, what you are doing is looking to what are the free speech consequences? we had a case where somebody a tape recording of some thing that was in the public interest but involved somebody's personal conversation and then-through it over the transom into a newspaper and they printed it and this was a law

you couldn't wiretap to get that information and how did that fit within the framework of free expression. so you try to see what are the risks of the expression, what are the expectations of the individual and you have 42 briefs filed. >> those are new phenomena. we don't disagree on that. you have to calculate the trajectory of the first amendment. let's take the first amendment, freedom of speech. it was absolutely clear when people ratified the first amendment that libel was not part of the freedom of speech and that included libel of public figures such as you gentlemen. but the supreme court in a case of "new york times" versus sullivan just decided it would be a good idea if there were no such thing as libelling a public

figure as long as you have somebody who told you this that you believed. now, i think who authorized the to change the law? that may be a very good rule. and the people are free it adopt that rule by legislation. new york could have amended its to eliminate the libel for public figures. so, don't charge inflexibility. what is inflexible is the inability now change the libel law that the supreme court instituted through "new york times" versus sullivan. it may be a good law, may be a bad law, but you can't change it. nobody can change t. i guess we can change it. >> may i thank both of these witnesses for their great comments? i vote for well over 90% of president obama's nominees, but i do think we have a range in

whi which, if you believe that is too flexible about interpreting the constitution then i would conclude they are not faithful to the constitution. therefore, i couldn't support them even though they may be wonderful, stkaopbt people, intellectually gifted -- decent people, intellectually gifted. and one of my standards is a death penalty case, any judge that says the u.s. constitution calls for the elimination of the death penalty really shouldn't be on the bench, at least they won't get my vote. but we all have individual standards and we wrestle with that. but all in all we have a great judicial system and i congratulate you. >> thank you.

>> i can't thank the two of you. >> gentlemen, let me engine the chairman in thanking you for being here as two individuals who have been here for the confirmation process, i'm impressed that you are willing to return. >> it wasn't bad for either of us, i don't think. >> it has gotten livelier. we've talked a lot about the role of the judiciary and larger american system and architecture of government, and i wish that you would say a few words about the role of the jury within that architecture. and whether or not you see the jury as just a little piece of fact finding machinery for dispute resolution or whether the founders and you saw and see

a larger role for it as a political -- small p -- in the government? is it an important piece of the governmental architecture as well as the dispute resolution? and, if so, how? >> absolutely is. that is why it is guaranteed in the bill of rights in criminal cases. and, indeed in all civil cases at common law involving more $20. the jury is a check on us. it is a check on the judges. i think the framers were not willing to trust, in criminal kisses, the judges to find the facts. indeed when the constitution was rat fade jurors used to find not only the facts but the lwill you:that was a way of reducing the power of the judges to

condemn somebody from prison. so it is a structural question of the constitution. >> i think it is very person. i have never been a district judge but my brother is a trial court judge and i was there a while ago in san francisco and he said i want you to see me select a jury. i was on a jury in massachusetts actually. he said you should not go through your life without seeing that and he said congratulations you and judge sotomayor now know how to select a jury. i saw a morning pass that was just terrific. you take 12 people randomly from that community and two alternates and by the time they are finished they are thinking this future of this individual who is the defendant is in all likelihood in our hands and they take that, because of the

instructions and the way the lawyer behaves as a very, very, very serious matter. and they are participating, they are part of the government of the united states. and you begin to think it is really a wonderful thing that before you deprive a person of his or her liberty you go process where the community is brought in as really judges of the facts. so they are not just a fact finding machine. this is a way of saying to people in a community it is all of you who will participate in this terribly important matter, a matter of depriving an individual of his freedom. and just listening to the instructions and noticing the jury's reaction, they take that in. i saw the same thing in the courthouse in boston where a room is set aside from that and they have people, things for people to read and judges talk to them in a way that when the person comes away from the jury

-- and i think most of them do -- they are very proud to have participated as a citizen in this exercise of application of community power. so, i find that partly fact finding, partly showing people how they, too, are part of the government of the united states in its most important processes and a way of overcoming isolation and bringing an entire community into the legal process. very good thing. >> at the time that the constitution and bill of rights were adopted, my understanding is that the founders also had a fairly skeptical view of governo governors, the colonial governors had shown considerable arrogance and high-handedness. they were skeptical of assemblies. thomas jefferson described the virginia assembly as 207 tyrants

replacing one and that was not a big improvement. i probably have the number wrong. and i wonder if the stature of the jury in the architecture of american government could not be just as a check on judges but also as sort of the last bastion where somebody who is put upon or set upon by political forces can get away tfrom the politica forces that most lend themselves to corruption, gives, assemblies, and get themselves before a random group of their pares, if the case is right, and it has a slightly larger significance than just a check on you all, it is also a check on all of us and the rest of the system of government. >> i think that is probably right if you believe juries can

law where they think that in this case the law is producing a terrible result. and they do that sometimes, i'm quite sure. that makes them a check not just the judges but on the legislature that enacted the law to apply in this particular situation. i'm a big fan of the jury and i court is, too. >> let me ask a final question about the jury has this fact finding role. what is the role of a considerate of final appeal with respect to fact finding? and hypothesize that you have a case in front of you from a state supreme court and the state supreme court has indulged in fact finding at the supreme court level. what standard of review or deference do you as the united states supreme court accord the

findings of fact that have been indulged in by a state supreme court that is before you and whose decision is before you on review? >> you mean the state supreme court overruled the court? >> it just made a finding of fact. it didn't have a record. do your credential that? >> if it is a criminal case that is being appealed to user violation of federal constitutional provision and if the state supreme court has made a finding of fact that is not supporting in the record, and if that finding of fact is crucial to the conviction we would set the conviction aside. >> there is a rule that says that there are two lower courts that hold a tbg finding of fact -- a particular finding of fact we won't go in it further. it is an area i noticed over time that the finding of facts were particularly bad. you had nine people and to try to get people to read it

enormous record and come to a conclusion we are just in the very good at it. so we have a lot of rules. you can never say never about anything but by and large we stay away from the fact finding. >> as the last senator i stand between you and the exits and i will not trespass on your patience further. i appreciate very much that you have returned to this chamber and shared your thoughts with us this afternoon. >> thank you, senator. i think both my colleagues and i have enjoyed it, to our surprise i might add. >> we did enjoy it. >> you know what? i want to appreciate your accepting the invitation. i will put it into the record the letter from the chief justi justice. i think i can speak for all of

the senators here of both parties, this means a lot that you did this. what i hope it means, too -- and i look at the students, here -- i hope high schools will look at this and colleges will look at this, not just law schools. that is why we streamed it and made a copy and everything else. we are in a nation where too many times people look for a bumper sticker solution to everything. i don't care on the right or the left. it is a little more complex than that and a sense of history never hurt anybody. the two of you have given us a sense of history and i applaud you both for this. if nothing further we will stand in recess. >> thank you, mr. chairman. >> thank you. >> i love the hearing. [captioning performed by national captioning institute]

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>> next, "q&a" with retired supreme court justice john spall

stevens. and live at 7:00 a.m. your calls and comments on "washington journal". > today john hunts mman republican presidential candidate former utah governor and u.s. ambassador to china will give a fortune policy speech to the world affairs council of new hampshire. our live coverage from southern new hampshire university begins at 11:00 a.m. eastern. at 5:30 p.m. eastern we will be in new hampshire for a town hall meeting with mitt romney. both events will be available live on c-span, c-span radio and c-span.org. >> c-span radio is another way to keep up with politics and public affairs. offering a mix of the most relevant events from the three

c-span television networks. some exclusives like the re-air of the sunday news programs from the major networks. if you are in washington, d.c. listen to us at 90.1 fm, channel 119 and iphone and black berry apps. c-span radio, another public ervice karate e ed -- created y the nation's cable industry and now in our 15thier. >> this week on "q&a," former supreme court justice john paul stevens looks back on his 34.5 years on the court and speaks about his new book. about his new book. >>