committee pose a hearing on ways to prevent concussions in youth sports. finally, a debate on the legality of the afghanistan and iraq wars, and whether they are war crimes, or lawful wars. >> in the name of the greatest people ever tried this earth, i have drawn a line in the dust and tossed the gauntlet before the feet of tyranny, and i say segregation now, segregation tomorrow, and segregation forever. >> for most of his life, george wallace was an ardent supporter of segregation, outspoken against the civil rights movement.this week, george wallm the governor's manchin income -- mansion in montgomery, alabama.

>> last month supreme court justices breyer and scalia testified before the senate judiciary committee. this is to end a half hours. >> -- this is 2 1/2 hours. [captions copyright national cable satellite corp. 2011] [captioning performed by national captioning institute]

>> good afternoon. i want to express my appreciation for justices breyer and scalia being back to this committee. we did not have this room at the time of your confirmation hearings. i want to thank the students who are here today. when i was at wall school, i would have loved to do something like this. we have scores of students, other americans who are

attending these proceedings. they're interested in what i hope is a civic-minded conversation about the role of judges in our constitution. i believe such public discussions serve our democracy. as public officials we owe it to all americans to be transparent about we do in a park official capacities. -- in our official capacities. we demonstrate how government works because it upholds our values. how the constitution has served over the years to make our great nation more inclusive, protective of individual rights, and in the continuing effort to become that more perfect union. as john marshall noted many years ago, our constitution is intended to endure for ages, and

to be adapted to the various crises of human affairs. in recent months there have been renewed focus on our constitution almost every week. i open the newspaper or sea and the electronic posting that involves some radical indication of the constitution. which differs from what i was taught at georgetown law center many years ago. there can be some suggestion that congress should get rid of dozens of judges as it strikes are fancy. or it might be the assertion that the three branches of our government are not of equal importance under the constitution. or even the assertion that our fundamental charter was drafted solely to limit the federal government's ability to solve national problems. these comments showed that need to have more opportunities to increase the understanding of our democracy. that gave me the idea to invite

leadinghe nation's jurists to speak to us today. i know in the court, both chief justice roberts and justice scalia are marked a fundamental genius of the constitution is the separation of powers. the legislative, judicial, and executive have different powers and the indirect frequently. we observed the 222nd anniversary of congressional enactment of the first judiciary act to establish the supreme court and the federal judiciary. we in the senate have an obligation to provide our advice and consent to fill a number of judicial vacancies, and on this committee we address the serious judicial crisis that the

chief justice highlighted in his most annual report. i think the senator from iowa for that help. which worked on passed legislation recommended to help the third branch operate fairly and efficiently, and also of corporate resources are important to our judiciary. in the judicial branch, including the supreme court, decides controversies regarding the role of col and provide .nterpretation -- revocations court decisions can be overturned with legislation or an amendment to the constitution. many of you remember i invited justice anthony kennedy to discuss judicial security and judicial independence. it was a great day, there was a

renewed interest in justices ying before congress, which included appearances before chief justice hughes and chief justice jackson. one of my friends said, you probably remember those, but i assure you i do not. justice kennedy recognized supreme court rulings would be debated but noted this is a democratic dialogue that makes democracy work. to further that dialogue that committee has held several meetings highlighting the impact of several hearings. there has been an effort to allow -- to raise awareness in the interest of protecting

american workers. today posturings is a different focus. examining recent upcoming decisions, we would the scope -- we will discuss the proper role of justices. some like to emphasize divisions between warring factions. all the witnesses before us have approached decision making in different ways, as a personal matter they demonstrate a profound respect for each other. that is also the example the ranking member and i have tried to achieve in our work on this committee. the american people expect us to require us to uphold our national values. we need to work to whether -- get it. let me conclude with a spirit of liberty is the spirit which is not too sure it is right, the

spirit of liberty is seeking to understand the minds of other men and women. that is the spirit he opened this today, and i cannot tell you how much i appreciate but the justices for being here, and i yield to senator grassley and that we can get to the witnesses. this is a question as old as the constitution itself. i welcome each of our businesses, and justice briar will feel at home -- just homebreyer will feel at home here. he said criticism of judges --

and start over again. criticisms of judges and judicial decisions traces back to our founding. it is a healthy thing in a democracy. i hope you will feel that way at the end of the hearing. we appreciate that you did not have to appear before us and that your schedule is very busy for both of you. justice scalia, i am glad to see you here today. you have a real flair for judging. that is an understatement as i see it. you as much as anyone had strongly advanced the traditional views that a judge's role is to interpret the law according to the text. for my own part, i believe the role of judges under the constitution is an important, but limited, one. the constitution provides people

through their elected representatives govern themselves. in determining the meaning of the constitution, judges should apply the intent of the framers, since that is the extent of the limitation on self-government that people have agreed to impose on themselves. when judges change the meaning of the constitution and create new rights or grit government powers that it was not intended to have, they reduce the right to people to govern themselves to the representatives government process. historically, these are the circumstances in which judges and their decisions have been fairly criticized. it is where for a sitting supreme court justice to appear before the senate judiciary committee. i think both of you for sharing with us. thank you very much. >> thank you.

these distinguished jurist have a lot of common. both served as associate justices of the supreme court. both were well respected administrative law scholars. they were both elevated from positions of the federal bench. justice stephen brier served the first circuit, a justice collie on the d.c. circuit, met. -- justice scalia on the d.c. circuit. i voted for both of you on the circuit and the supreme court. despite the different perspectives on constitutional interpretation, they were confirmed by a whopping margins. they have agreed on the importance of precedent, respect for democratic decision making.

justice breyer has been on the supreme court for 70 years. it is up to you who wants to go first, and i just got the word for justice scalia. . breyer goes first. [unintelligible] >> to introduce the question as we see it, and we're both very glad to be here. particularly because i did work here because i loved it. also, you have invited high school, college school students, and we don't talk to those students a lot. the reason we do in special part is because there's a lot of skepticism and cynicism about government in the united states.

i will sit to the students, i understand that, and probably some of that is justified. if there is too much of that, the government just will not work. you are part of the government and if you're not but be part, we did not have the government. that is what i want to tell them. how can i tell them that, do my bit this? i'm a judge. i did not run for office. it is hard to get people's attention on a question like that. my bit is to explain what we do every day, what we do that affects students, and to explain to their parents and others. the way i put the question, and this is all i'm going to say, is how i think the question. for my point of view, i want to tell people why they give our institution support. suppose i have the intention of a manner or a woman going into a

supermarket -- a man or woman going into a supermarket. that is tough to get their attention. very busy.may be they did not have too much time to listen to judges. suppose i get their attention on this question for a few minutes, what what i say? i would say i have to tell you what the question is. the nine of us are not elected, but we live in a democracy, and we decide matters that will affect you. why should nine people not elected have that authority? it is worse than that. if you look at why hamilton gave us the power and why the founders gave us the power to set aside a a lot of congress contrary to the document, the constitution, we read the federalist 78. she may be asleep at this time,

but i have to get her attention. here's what he says -- he says, first, look at the docket. it is a great document, and it is. but if nobody is going to send what anybody goes beyond the boundaries, let's hang it up in the museum, let's put it in the national gallery. nonetheless, you understand somebody should have that power, who? the president? the president has a lot power, he could become a tyrant with that as well. what about congress? congress is elected. that is also the problem, because congress will have just passed a law because it is popular. this document is the least popular person in the united states the same rights as the most popular. are you sure congress having just passed that law will say is unconstitutional when this is not popular to do so?

we have judges. they're bureaucrats. the latinos who they are -- nobody knows who they are. they did not have the power of the person or the sort. they do not have much power. in addition, there are judges and it is not the congress and president, and he stops there. not elected. we're supposed to decide things that are unpopular on some occasion. did not tell anyone. we're human beings, and we may be wrong. when i am in dissent i think the majority is all wrong, and so does justice scalia, and cannot be both right if we are on opposite sides. there are, don't unpopular things, and quite possibly wrong. why should you ever give us your support? that is the question.

i get that question not just from people in supermarkets, not just from students, i get a question for people all over the world. there are judges in our court the come to visit, latin- justices.gene why do people do what you say? it is hotspur's question. will they come when you do call them? to answer that question i have to give a synopsis of history, but all white was doing in these four minutes is sketchy at the question. i will turn to my colleague who can address that or anything else he would like. >> thank you, mr. chairman. i'm happy to be back in front of the committee where i started

this pilgrimage. i'm going to get even more fundamental than my good friend and colleague. like him, i speak to students, especially long stood, but also college and high-school students quite frequently about the constitution. i feel we're not teaching it very well. i speak to law students from the best law schools, people especially interested in the law, and i ask how many of you have read the federalist papers? a lot of hands go up. no, not just of 48 and the big ones. how many of you had read the federalist papers cover to cover? never more than 5%. that is very sad. especially if you are interested in the constitution, a document that says what the framers

thought they were doing. it is such a profound exposition of political science that is studied in political science courses in europe. yet we have raised a generation of americans who are not familiar with it. when i speak to these groups, the first point i make and i think it is a little more fundamental than the one that stephen has just put forward. i ask them, what do you think is the reason america is such a free country? what is it in our constitution that makes us what we are? i guarantee you that the response i will get, and you will get this from almost any american, including the woman he was talking to at the supermarket, the answer would be, freedom of speech, freedom of the press, no unreasonable searches and seizures, no

quartering of troops -- marvelous provisions of the bill of rights. then i tell them, if you think that a bill of rights is what sets this apart, you are crazy. every banana republic in the world has a bill of rights. every president for life as a bill of rights. the bill of rights of the former evil empire, the union of soviet socialist republics, was much better than ours. we guarantee freedom of speech and the press, big deal. they guarantee freedom of protests and street demonstrations and anyone who is caught trying to disband -- to suppress criticism of the government will be called a cow. that is wonderful stuff, just words on paper, what people would call a parchment guarantee. the reason is that the real constitution of the soviet

union -- think of the constitution, it means structure. you say a person has a sound constitution -- a sound structure. there'll constitution of the soviet union, which our framers debated in philadelphia in 7287, they did not talk about the bill of rights. constitution of the soviet union did not prevent the centralization of power in one person or in one party. when that happens, the game is over, the bill of rights is just what our framers would call eight parchment guarantee. the real key to the distinctiveness of america is the structure of our government. one part of it is the independence of the judiciary. there's a lot more. there are few countries in the world that have a bicameral

legislature. everyone -- england has a house of lords, but the house of lords has no special power. france has a senate. it is honorific. very few countries have two separate bodies in the legislature equally powerful. that is a lot of trouble as a gentleman doubtless know, to get the same language through two different bodies elected in a different fashion. very few countries in the world had a separately elected chief executive. sometimes they go to europe -- sometimes i go to europe to talk about separation of powers, and i talk about independence of the judiciary, because the europeans do not have -- did not try to divide the political powers, the political branches, the legislature and chief executive. in all the parliamentary

chief executiveg is the --when there is a disagreement, they kick them out. they have a no-confidence vote, they get a new election, and a prime minister that agrees with that. europeans look at this system and say it passes one house, it does not pass the other house, sometimes the other house is in the control of a different party, and in this president who has veto power be toast it and look at this and they say, it is gridlock. i hear americans saying this nowadays, and there's a lot of it going around. they talk about a dysfunctional government because there is disagreement, and the framers would have said yes, that is exactly the way we set it up. we wanted this to be power

contradicting power, because the main ill that beset us in hamilton said in the federalist when he talked about a separate senate, he said yes, it is inconvenient, inasmuch as the ill besets us is an excess of legislation, it will not be so bad. this was 1787. he did not know what excess of legislation was. [laughter] most americans can appreciate that and learn to love separation of powers which means learning to love the gridlock, which the framers believed would be the main protection of minorities, the main protection. if a bill is about to pass that comes down hard on some minority, they think it is terribly unfair, it does not take much to throw a monkey reach -- wrench into this complex system. americans should appreciate that and learn to love the gridlock. it is there for a reason so the

legislation that gets out will be good legislation. thus concludes my opening remarks. >> you may not get total unanimity on the issue of gridlock, but i found listening to both of you to be fascinating. ill will note to myself that everything that might go wrong this week all this makes up by having both of you here. i appreciate that. justice scalia, of course often reviews laws passed by congress. i apologize by the voice. allergies, but when the court reviews and law passed by congress, you want to fight it comports with the constitution, do you have a different standard

if it was a law that was passed by the slimmest of margins or one that was passed overwhelmingly? i will ask that question to both of you. >> no, sir. a lot is a lot. it meets the requirements of the constitution. -- a law is a law. what we do is law. >> yes, i agree. >> justice scalia, under our constitution, what is the role that judges make in determining what is the best allocation of taxpayer resources? is that within their proper role, or is that somewhere else? >> you know it is not within our proper role, mr. chairman. of course it is not. >> it is a worthwhile question

for this reason. when we talk about this document in general, what i say and he will have some version of it, what it does this document do, the constitution? i say i cannot tell you in one word, but i can tell you in about five. it creates a structure for democracy. that is the first part. that is the whole seven articles. it is a structure so people can make their own decisions to their representatives and decide what kind of cities, towns, states, and nation in one. it is a special kind of democracy. it guarantees basic and fundamental rights. it assures a degree of equality. it separate power, vertically, and parts of lee, three branches. no group of government officials can become too powerful. it insists upon a rule all. now we have five basic things, and i tend to think the rest of

it elaborates is five basic points. i think justice scalia and others -- we are not in disagreement at that level, very rarely. but people did not understand very often is given those broad boundaries in this democratic process, we are the boundary patrol. there used to be some radio program called sky king of the mounties. >> before my time. >> he is hiking and sergeant preston of the uconn. >> it was cold. life on the boundary is tough, and we are the boundary patrol, and those issues are very tough. what about prayer in schools? this or that. their two sides of these questions, and what people forget, just what you were emphasizing the budget question, that inside those boundaries,

there is a vast democratic space where it is up to the average american to decide what kind of cities, towns, state, and nation he or she wants. those decisions are not our spirit all we can say with a forum like this is please participate in that democratic decision making. it is not our institutional job. >> a small on justice scalia's face, he will probably anticipate the next question. in your book, you describe the court system relies on public confidence because it has neither the power of the purse or the sword. people will ask, is the rule of

law predictable? america relies on certain programs and so forth. do you feel the public's confidence is affected when judges overturn longstanding precedent? if they have something that people have relied on for generations and then suddenly it is overturned? what does that do with public confidence and what does that do for their role all? you have a question of what confidence the american public has. justice briar, do you want to try that first? >> -- justice breyer, do you want to try that first? >> in plessy v. doesn't, it's

said -- advice means that the judge has to remember not too much, not too fast, not too often. be careful. people have relied on a formal law, but you cannot say never. >> part of the jurisprudence of my court and all federal courts is stare decisic. it is not an appaloosa -- absolute rule, but should be given attention. all federal courts have given is more weight on statutory questions. if we got that wrong, you can fix it.

you come and amend the statute. when we get something wrong with respect to the constitution, there's nobody that can fix it unless your car to go through the huge trouble of and that the constitutional amendment. throughout our history, there has been a rule hasstare decisi s, beginning with a martial court, it has been less strict in constitutional questions as it has been in statutory questions. >> it is easier for the lower courts if there is an abiding opinion. the buck really stops with you. you talk about amending the constitution. we have obviously the amendment. the 13th amendment got rid of the stand of slavery.

the 19th, giving women the right to vote appeared 24th, in an adult's and so on. -- the 24th. young adults and so on. since i have been here in the senate, seeing probably 2000 constitutional amendments being proposed, it is probably even more than that. some have serious issues. interestour country's

to tamper with the constitution if that can be avoided? >> this is another respect in which we differ from other countries in the world. many countries cannot understand our affection for the constitution. it is no big deal to amend the constitution and most of the countries of the poor. all you need is to have a unicameral legislation passed the amendment, and then there has to be an intervening election, and then they have to pass the amendment began. >> almost like a statue to. >> accept it has to be passed twice with an intervening election. ours is much more difficult to amend. you're right, i have said that that is a good thing. i have said the provision i am sure i would think about amendment is the amendment precision -- provision, because that's that's a very high poll.

but that will not happen. justicebreyer, - - breyer, which he liked add to that? >> i agree with that. >> should be suspicious if we do not have a lot of 5-4 decisions, because the main reason we take a case is that there is a circuit conflict below. that is very good federal judges who have been appointed to the same way justice breyer and i have been appointed have disagreed. you would smell something wrong if there are these to scrimmage below and the supreme court always comes out 9-0. >> i will start with justice

breyer with a couple questions based on c-span interview you had. you're marked although judging is not entirely about politics, you would not say 0 politics never. >> that is one of the hardest things to explain, and that is part of what i have written about in this book. there are two great questions i would like to get across to audiences. first is the one we mentioned. when you call them, will they come? why is that americans of the course of over 200 years have responded to the supreme court, and are good stories on that, but i put back to that side. the obtained i put this way -- i know you're being very polite, but i also know a lot of you are thinking this -- you're thinking in this tough 5- 4 cases we are genuinely politicians. i said that would be ridiculous.

that is not the job. didn't hamilton give us the job because he thought we would not be politicians? read a case like dread scott, one of the worst ever. they were trapped at like politicians. judges are terrible politicians. give it to congress. we know nothing -- how do i explain? i explained it this way. i say in the 17 years since i have been a judge, do i see a decision turned on political considerations? , i worked on this committee. i have the instinct that politics consists of? got the votes. who is popular? who wins the elections? i would say my answer is never, and you think of this case and that's the case that is wrong. i think i could bring you

around. what about ideology? are you and adam smith free enterpriser? are you a marxist troublemaker? what good in general to the world? if i am thinking of it that way, i know i am doing the wrong thing. i can tell you there's a third thing. i was born in san francisco. i went to lowell high school. i wanted university out there. i have lived the life i have led. and by the time you have 40 or 50 years in any profession, you formulate general views of what is america about, what are the people of america about, how in this country does law relate to the average human being, how should. at that level of generality, people may have somewhat different outlooks, and there is no way those different outlooks

can fail to influence them some. is that a bad thing? no, it is a good thing. this is a very big country. we have 309 million people. they have many different views. it is a good thing, not a bad thing, that people's outlook on that court not always the same, and by outlook i mean those very basic ideas of judicial philosophy, if you like, or about the country and its people and about the law and how judges are there to act and what ever are to do and what not. that is what i meant by that word there. >> my second question, why would it ever be appropriate for an american judge to consider foreign law in interpreting the meaning of the united states constitution, and justice breyer

respond as well. >> senator, i am afraid we are getting beyond what i had planned to discuss with you gentlemen, the role of the courts, and we're getting into the manner in which the courts go about deciding their cases. i have a view on that, and justice breyer raleigh has a different view. i have not prepared testimony on that, and i would rather pass. i just -- of course it is the issue, and i think my views are known. that is not the level of -- let's move on. >> but the view it discussing the supreme court, justice brandeis said the most important thing we do is doing nothing at to what extent did each of you agree with that?

>> it depends on the case. it is important. i'm not sure what he was thinking of. what are you thinking? >> yes, i think the normal state of things is rest, leave things alone unless there is reason to change it. i served in the executive branch for a while, and when i was there there was something that came to be known as the moscow auction, which he sounded like it is a cia stuff. it was named after a person named mike moscow which was one of the president's assistance, and he observed they always gave the president three option. number one, do x? number two, do the opposite of x. endeavour 3, do what ever the moment -- number three, do what

ever the memo wanted. you never cede the option do nothing, and oftentimes that is the right answer. it is certainly the case not to make waves unless there is a reason to change, unless what an agency has done is wrong. you leave it alone. >> what your question brought to my mind, there were something in toqueville, does it is amazing what he wrote in 1840. one of the things he said which stock is he said whenever i come to the united states, the first think i strikes -- the first strickes me is the clamor.

but imagine you're trying to figure out some bill, all kinds of tensions right there with internet and new methods of communications and people privacy and you are more familiar with that. how do we decide those in this country? the word i used to talk to about that is bubbling up. they talk and newspapers, in classrooms, in articles, they talked in small groups, they talk with a policeman, the fireman, celebrities -- civil liberty groups. eventually it gets to you, you have hearings, you decide may be an agency should do it, maybe we should change our mind five times, and eventually things will settle down. when i said about our record is wonderful if we do not get

involved until it settles down, because our only job is going to be to decide if what you decide is within the boundaries. it will be a subject where we will know less about it and most -- about it than most americans who have gone into it in debt to pick it is careful to go into it before the clamor a chance to take effect, change, try it on, try it off. that is the wisdom that underlies this view of did not decide to much too fast. >> to a lot of nothing. [laughter] the main reason we take a case is because there is disagreement below. if there is no disagreement below, which did not get involved, we do not prowled around looking for congressional statutes that are unconstitutional.

it is only disagreement below when we get involved. if a lower court has found one of your loss to be unconstitutional we will take that because no other court has held the opposite. except for rare situations with like, we let sleeping dogs lie, which is the way one should live his life, i think. [laughter] >> thank you. >> thank you, mr. chairman. justice scalia, he talked about -- you talked about how brilliant our system is, the constitution, and the disagreement it provokes and how difficult it is to get things done. that is the greatness of the american constitution, in contrast to some of the other countries treat you are describing the people all over the country as dysfunctional, unable to get anything done, and the level of dissatisfaction is up to about 88% or 90% among the

american people because they say we cannot get anything done, that the system does not work. how do you respond to that? >> i suppose that is a point at which you do reach gridlock. however, i think the attitude of the american people is largely a product of the fact that they do not understand our constitution, that its genius is precisely this power contradicting power, which makes it difficult to enact legislation. it is a much easier to enact legislation in france or england. the consequent of that is you have swings from one extreme to the other, as sluggish -- as the legislature changes. that does not happen here because the law is on which there is general agreement, only

those losses will get through. -- only those laws will get through. this is one of the reasons we have to educate the american people that we have not done in decades, about what the constitution is designed to produce. >> it is the same problem with sandra day o'connor is talking about. she is out there nonstop try to get six restore to high-school curriculum. what do most people about taking a case you were just discussing? those who know anything about it sake they sit up in that the building and decide this would be an interesting subject, let's decide it. that is very far from the truth. we have a system, as you have heard described. we talk to people. and in byrd does that, the foundation. nenberg does that,

the foundation. you have a different institution that you try to communicate with the public quite a lot, and all i could say it is harder for you that it is for us. to get across the idea that the stand today as to know how government works, they have to know something about their history, and they have to be willing to participate. it is very easy to say and very hard to get across. >> gentlemen , you have the power to decide cases, but your power is to decide which cases york want to hear. you have some 8000 opportunities to make decisions every year on the case is your going to hear, and last year he decided to hear

77 cases, which is just 1%. what goes through your mind collectively when you decide on which 1% you are going to hear, and what do you say to the 99 percent that do not get hurt? atter, we say denied. [laughter] right,former, you're there should be rules. it should not be whatever tickles my fancy. that is why we have a general world that unless there is a circuit conflict you're wasting your time and your clients' money to file a petition. it is overwhelmingly likely we will not grant it. it is not the case that we prowl about looking for an issue that we want to get up to the court. i do not know any of my

colleagues that behaved that way. they all have standards. it is a significant issue on which lower courts are divided. for the others, i am surprised it was only 8000. when i first joined the court, it was only 4000. that is how much it has increased. it has a fairly large part of our job just deciding what we are going to decide. every one of us looks at summaries of all 9000 of those petitions. >> there are 150 of week that come into the office, and the originals are back there on my shelf. if we sat down tomorrow, the two of us, even though it is not part of your job, i would say it is maybe 140 and if you were there today, the cut you would make would not be much different than the one i would make. it is interesting. they speak out, and the only

thing i've will add is in the conference i know there are groups of lawyers that would like to see as take more cases, and the other people would like to take more cases is us. when sandra was on the court, she said we have got to get more cases here. nobody is making an effort to take fewer. that is not the attitude in the conference. the attitude is there's a split, let's take a. nobody is thinking there is no room. >> you came on the court in 1987, you heard 277 cases that year. when you came on the court, justice breyer, year you heard 105 cases. last year you heard 77 case. >> we never heard 277. when i came on the court we were deciding about 150.

i do not think we can decide 150 well. if you go back and look at our opinions in those days, if you read an opinion in which the majority opinion and the descent are like ships passing in the night, they never quite meet each other, you turn to the first page and you will see it is a june opionion, because we were rushing out opinions at the end of the term. i think we could do 100 well. i am probably voting to take some cases that i would not have voted to take. it is not as though we sit down at the end of the year and say let's take 75 cases. let's pick the best 75. that is not happens. a trickle in week by week and we vote on the ones that week that seemed worth taking. at the end of the term of the have added up to what ever they

have added up to pick if my standards have changed, it is only because i am trying to take more rather i am trying to take less. i suspect that the major reason for the decline was that when i first came on the court there was a lot of really breathtakingly important new legislation. a new bankruptcy code, title vii. in the last 10 years, there has been legislation, but very little of that magnitude. the major generator of circuit conflicts below is new legislation, because it always has some ambiguities that have to be decided by the courts. where there has not been a lot of new major legislation, you would expect that. >> i agree that. every word in a bill is an

argument, and every word you past there are lawyers that can decide. if a lot of legislation is passed, then i think with a five- or 10-year lag , you will see a lot of cases in the supreme court. if you go to that. , you will see a diminished number of conflicts among the circuit. when you passed habeas law, go back out two years or three years and then you will see a lot of habeas cases coming out. that is the same with the immigration thing. my guess is with the lag, that caseload will start going up. >> senator hatch and i have been sitting here trying to resist temptation. when you mentioned from henry iv, you have that in your book,

and i noticed it earlier. it is one of my all-time favorite quotation, usually to expressed exasperation somewhere. >> >i appreciate both of you being willing to do this. it is a very good thing, and it is unusual for you, and i'm grateful to the chairman for calling this particular meeting. i am particularly grateful to both of you. you have both been great justices. yet been on the court for a long time, and you have a decided important cases. and it looks like this year we have a docket that will be pretty darn important compared to past years. >> you sound happy about it. i am not sure i am. >> i'm glad you're working

really hard. [laughter] you, too, justice breyer. i hope for you. i remember when you were here on the committee. when federal judges and strew our statutes, they try to figure out what we meant by what we said. legislators on both side of the aisle with a drug if judges change -- would object if a judge changes the meeting. the point is thif we did not expressed clearly but need mean, it is our meaning that counts. should the basic approach be any different when judges interpret the constitution? if statutes do not mean whatsoever what judges mean they

say they mean, how can the constitution means whenever judges say it means? >> in a sense, the answer is it shouldn't. when you have a text and the text is not particularly clear, they all have the same weapons. you've read the text, you look at the history, you look to the traditions are around the words, diaz corpus, a lot of tradition there. you look to the precedent, the purposes, the dahlias, and the first -- the values. these words may be hard to figure out, but somebody had something in mind in congress, and i want to find out what that is and what to stick at. when you talk about the

constitution, because there are words like liberty or because there are words like freedom of speech, the freedom of speech, it is not so much purposes i would use to describe that. i described that as basic values. this basic values and acted in the 18th-century has not changed or least not much. the values are virtually eternal, but the circumstances change. i say, sometimes when we discuss this, which justice scalia and greece and did know about, toward washington did not know about internet. a lot of our job is to apply the dahlias in the constitution which did not -- is to apply the values in the constitution. that is not so easy to do. put at the level you have put back, should we follow this purposes in terms of the values of the framers?

absolutely, yes. in terms of trying to apply it to situations that they did not foresee, and there i think it cannot do that. you have to figure out how this basic values apply to the world today, a world that is international and national in terms of commerce, in terms of the internet, in terms of a thousand different things that face you every day. and then how much emphasis you give to what in trying to answer that question is a matter that sometimes divides judges, but the need to answer that is a matter that unites them. >> i do not agree with most of the. [laughter] in fact, i hate to say this, but i am not sure i agree with the premise that our object is to figure out what congress meant. our object is to figure out what

the law says. if congress meant one thing, but enacted a law that says something else, i am bound to apply the law. that is what it means to have a government of laws, not men. i am glad senator chuck grassley is gone. this is one of his. peeves. that is why i do not use legislative history. i think we are governed by laws. when i approached the statute or the constitution, i s myself what do the words mean to the people to which they were complicated? once a figure that out, i can sleep at night. >> i think that could take a few more years, but i'm confident you will. for people to the leeway judges based on what they think judges should do, or whether they like

the decision -- both liberals and conservatives do that. given the title of this hearing, does the constitution itself offer anything to help define the role of judges, and is there a practical, concrete guidance we can draw from the constitution itself as? justice scalia? -- constitution itself as a way of judging what justices are supposed to do. justice scalia? >> go ahead. >> your introduction suggests a point that i wanted to make to the committee. one of the difficult things about the job that steven and i have is we are criticized in the press for our opinions, and of course we cannot respond to criticism. that is the tradition, but

usually, the criticism in the press and the reaction of the public to the opinion has nothing to do with the law. if they like the result, it is a wonderful opinion, and if they dislike the results, it is a terrible opinion. they do not look at the text of the statute before us terret none of that will look. the press report -- before us. none of that will look. the text -- in the press report. -- none of that will appear in the press report. that is one of the difficulties we operate under, and one of the reasons we are not supposed to a deferred to whether the public likes our opinions or not. we are supposed to go down the middle and interpret the text as we think it ought to be interpreted. you are quite right when those

who do not like one of our opinions will call it judicial activism, which always consists of the court doing what you do not like it to do. >> we understand that. >> ok. i do not know any solution for it, senator. >> it is not a solution. we are both judges and have a rough idea of what it is to be a judge, and we both know what we're trying to do is apply the law and interpret the law. no one at that level disagrees. well, how do you do best? i think i can get more specific before i find disagreement. it is the text says fish, that does not mean carrot. it rules out a lot of things. the rules are there.

the history is there. the tradition is there. the precedent is there. it might be hard to find sometimes, but sometimes it is not. the consequences, you do not know all of them, but you know some of them. justice scalia might place more weight and some of those things, and i will place more weight on purposes and consequences, but that is putting different weight and different parts of tools that we all have. when we go to the constitutional area, he might think he can find more in history. i could see that. i will not say history is irrelevant and i do not think he will say sometimes you do not find much there. it is a question of traditions and so forth. the bottom line is you have to write an opinion, and that

opinion is going to be based on reason. you cannot prove it. it is not logic. we are not computers. i can honestly set forth my reasons, and he does the same. one of the great things about dissenting opinions is i will read it, he will breed did, and i will respond because i will not let him get away -- away with that. this strengthens the opinion. ultimately, they can be read by the public and they are read by some of the public, and the strength is in the reasonings had back to the documents, this country, and a lot of things. there is the basis for criticizing and valid criticism or blame of a particular judge.

we love if people take the opinion at that level rather than responding simply to 8th press report. printing much, that is what -- to a press report. pretty much, that is what we see. >> in some ways i feel like i'm back in my favorite seminars in law school, which is a lot more fun than being in the appropriations committee or some of the other things, but i do want to move this along. i tried to give extra time to everyone just because of the justices' time. senator, i want to know what the order is. i received this terrible -- i received this. >> thank you for holding this

hearing, and thank you for being here. i was looking at the faces in the audience, most of them young, all of them listening and interested. i think it says the respect we have for their role of law in this country, and the highest order of that rule of law rests with the authority you have. i'm very proud of it. i am proud when i travel the america is represented by the distinction of this great court. i want to ask you something about the 14th amendment, and it's both of you could respond. it is simple. no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the united states, nor shall any state deprive any person of life, liberty, or

property without due process of law, nor design -- deny any person the equal protection of a law. is a woman included within that definition. >> a woman is a person. >> the issue is not whether a woman is a person, but what constitutes equal protection. >> yes, our women included? >> of course they are included. >> does equal protection mean you have to hear unisex toilets? -- need to have unisex toilets? >> if your " -- your " in california -- certainly, the constitution does not require discrimination on the basis of sex. the only issue is whether it prohibits it. it does in the. no one -- does not.

no one ever voted for that. if the current society wants to of nondiscrimination by sex, we have things called legislature's that and that things call laws. why does the 14th amendment then not cover women? >> the 14th amendment does not apply to private discrimination. i was speaking of title 7 and laws that prohibit private discrimination. the 14th amendment says nothing about private discrimination. only discrimination by the government. >> so, i see what you meant. all right. if i can, let's go to justice scalia. in the past, you have advocated a constitutional interpretation called for regionalism in which

the meaning of a constitutional provision is based on the meaning in 1789. you have also said that government, even at the supreme court level is a practical exercise, and -- well, let me just say in other words, the constitution should be interpreted for its means at its origin. justice breyer, you have taken the position that the constitution is a living document that adjusts to time, and changes within the time. could each of you give us your legal interpretation of the and how you approach that? >> you start. i started less time. >> it is not as starkly

different as sometimes painted. >> i tend to think instead of values in the constitution, you have to go back and find of the values. they have not changed a lot. the fact that freedom of expression was important in the enlightenment, it was. so was freedom of religion. so were a lot of those things. those are the values. in my own duty as a slightly rhetorically example, george washington was not aware of the internet. we agree on that. so, most of our job is to apply in those values which do not change that much to a world that changes in law. those freedoms of speech, those words, they do not explain themselves, tell you how they apply to where the internet

wants to communicate something that is private information. which is it, the right of privacy or the right of expression the predominates? very hard. if i have to incorporate four words, i would have to go back to a judge in the 18th century in connecticut, near rhode island, and he says the american tradition of judging involves prudence and pragmatism, reasonableness and utility. i think those are elements of an effort by a judge in a difficult case to work out how those ancient values applies to modern circumstances. >> i have no problem with applying ancient values as they were understood at the time to

new, modern circumstances original -- circumstances. originalism does not mean the radio is not covered. what it suggests is that eds to the phenomenon that existed at the time, the understanding of the society as to what the constitution prohibited at that time subsists. for example, the death penalty. there are good arguments for and against the death penalty. is it prohibited by the eighth amendment? for an original list, -- originalist, it is not. i have set with colleagues said

think it is unconstitutional. that is the difference when i applied the original values i apply -- difference. when i applied the original values i applauded as the values were understood by the people the drafted the amendment. i try to bring that through to this new phenomenon. that is the basic difference. i do not trust myself to be a good -- what should i say -- good interpreter of what modern american values are. you people are much better than the -- at that than i am. i have very little contact with the american people, i am said tuesday. if you want to keep the constitution of-to-date which current american values, you will decide what it means, and

you will kiss us goodbye. >> thank you. >> i would add that we have this discussion from time-to-time. it is interesting, i think. i cannot resist asking him to make what i think is one of his best arguments because it is so funny. i produce really good arguments, and he responds with a joke. the bear. >> what better? -- bear. >> he says it is like the two hunters. >> about it. i will tell it. there are people that are always criticizing because it is not perfect, you have to figure route history and what it meant. it is so difficult my --

difficult. my point is i do not have to show it is perfect, i just have to show it is better than anything else. the story is about the hunters in the woods. they hear growling, and there is a huge grizzly bear. if they start running. the guy that is heavier and is running behind says it is no use, and the guy who is in front says i do not have to out from the bear, i just have to outrun you. [laughter] >> justice scalia, he will remember my son mark who used to play soccer with your son, and we would stand there on these rainy saturday mornings watching these games. he went on to the marine corps. one of his marine bodies ran a marathon through a game park in

south africa with lions roaming around. he use your line. -- use your line. this is the most unique discussion we have had in the committee. senator gramm. >> thank you. yes, it is unique and fun, too. let's talk about high school students. howdy become a judge -- how do you become a judge at the federal level? >> appointed by the president of the united states. >> good luck beats early rise incurred >> off and on recommendation. >> -- good luck in its early rise in. >> often on recommendation. >> it is a political decision.

is it fair for a president elected the philosophy of the person they would like to nominate to did judiciary? -- to the judiciary? >> who appointed you? >> ronald reagan. >> do you think it was an accident ronald reagan picked you? [laughter] >> he went through the phone book and said this looks like a good guy? >> look, the europeans sometimes criticize our system because of the political appointment of judges. when you place the appointment in the president or the senate, you do not touch anything that does not become political. it should be political. >> to any high school student, i think it should be. we will have an election in 2012, and one of the issues will be what kind of judges do you pick. i think it is healthy for the

public to say when i go to, -- when i vote, i should think about who i am voting for because the court has a lot of power and i am going to consider that. is that ok, and justice breyer? >> yes, but you have to take a couple of things into account when you put on the road, -- account. when you put down the road, but politics are out. >> i think it has to be expected. >> here are my caveat. but one, very often presents had been disappointed. theodore roosevelt said i could carve a judge with more

backbone out of a banana, and presidents are sometimes disappointed even at the level of general philosophy. that can happen. as far as asking about the rest of it, i say this a lot so i might as well repeat this, one ims about the confirmation process and the nomination process, i remind people i was the person nominated, not the nominating person. i was confirmed, not confirming person. to ask me about those processes is slightly like asking the recipe for chicken from the point of view from the chicken. >> fair and off, but that does not mean i can not keep -- fair enough, but that does not mean i can not keep testing. >> i believe it is a political check on the courts. the one check is the political

confirmation process and appointment process. however, in my view, when the court is operating properly, when it is not applying its own view of what the constitution ought to be, but is interpreting the legal text as lawyers do, understanding what the meaning of those words and the history of those words, there is a lot less in need. there is no such thing as a republican good lawyer, and a democrat good lawyer. you are either a good lawyer or a bad lawyer. >> i could not agree more, but we do have a political person appointing judges and political people confirmed the judges. that is the way it works. from a federalist point of view, justice scalia, since i have not read all the federalist papers, and do not expect to,

and i might say bad things about me, but it least and being honest, should it -- at least i am being honest, should a senator say no to an appointment because of a different philosophy than the senator himself or herself should have chosen? >> i have views on that, but i do not think it is appropriate to express them. i leave you alone, and you generally leave me alone. >> let's talk about the confirmation process. how many votes did you get justice scalia? >> 98. >> how many did you get, and justice breyer. >> i think i only got 88, but who was counting. >> i bet you remember the 12, -- don't you? since i have gotten here, it is getting more difficult to get someone through the process. do you worry that if the

confirmation process gets to out of hand will have a chilling re--- chilling effect? >> i think it has had that effect already. >> what is the biggest threat to an independent judiciary in america right now? >> well, this will surprise you. my view is federal judges are not what they used to be. when i got out of law school, there were 67 judges, two-thirds more than senators. was a big deal to be a federal rule judge. >> two-thirds of the people coming to the judiciary are coming from the public sector.

we are becoming a european model could >> that was my point. >> i only have 18 seconds. >> that is exactly my point. the main difference between the common law system and the european system is the difference in the character of the judges. in the european system the judges a bureaucrat that as been a judge all his life. >> i would argue that we are creating because of pay problems, confirmation problems, we will gut our judiciary of the best and brightest. >> i think there would be much truth to that. the great thing in the federal judge is that the federal judge always was and i hope all is will be -- the federal district judges where it is important. he is a local person and he or

she understands that community and he or she will sit on the bench as a high-level official, and make it apparent to the community the pair willing to give up the personal time, face to-face with anyone in that community who has a problem. that is not a bureaucrat. there is not an administrator. it is not an elected official, it is a different job, but here in this country this person is supposed to be a high-level official, and gives you the time that your problem calls for. that is shown in the way the court house looks, in the attitude of the judge, in the way the community response to the judge, and all of that is part of an institution. institutions are not built overnight. they can be heard.

if the thrust of your question is how do we maintain the strength of a unique institution in the world, and it is the entire federal judiciary at all levels, and i'm glad you are interested in that. i think it is a problem, i do not have a definite solution, but some of the things you mentioned are part of the mix. >> it is not just the pay. it is also the new morosity. if it goes back to the laws you passed. i think it was a mistake to put a routine drug offenses and to the federal courts. that was routine stuff they used to be handled by state courts tariffs if you want excellent federal judges -- courts. if you want excellent federal judges, you want an elite group, and it is not as a leak as it used to be. >> i agree with you on that. having been a prosecutor in the state system, too many things go to the federal system.

senator gramm raises some good questions on this. no we have pending right now, waiting to be confirmed, stalled by of the actions summer, -- by objections somewhere, and judges that represent over 150 million americans that have vacancies today. these are the critical-over worth districts. frankly, i think we need to do a better job of getting these people confirmed, i do not care who is president. also, justice scalia, there aren't too many things before federal courts that should be in the state -- there are too many things before federal courts and should be in the state courts. if they found a stolen car, they could say how much money they recovered.

senator durban, senator blumenthal has yielded. >> thank you for being here. most people are not aware of the fact we have a unique dinner where the senate does the supreme court, and we have a chance to break bread with families and have an informal moment. i will not give this justice's for name, but the last time we got together, and mentioned to one of your colleagues who led been on the bench for some time that i was chair for the subcommittee on the constitution, civil rights, and human rights, and ask your colleague, without attribution, effective s q, what do you think i should be taking a look at it? q. what you think i should be looking at in that committee -- ask you what you think i should be looking at in that committee?

it was interesting. the justice said you should look of the number of people in prison in the united states of america. i am aware of it, and i am sure you are, to carry over 2 million people. more prisoners per capita than any other country in the world. obvious, over-crowding, and terrible racial disparities. african-americans, six times the rate of caucasians. 2009 studies show the one out of every of 11 african-americans is in prison, on parole, or on probation. senator sessions and die joined forces -- and i joined forces and addressed the crack cocaine sentencing disparity. we reached an agreement. that is pretty historic.

i will not hold due to that particular issue, but as steve where -- but ask you where should we be making inquiry when it comes to the constitution and the challenges we face today? >> i would think it is find you are going into debt. sentencing as part of that. mandatory minimums are part of that. there are a laird -- a whole range of things. there have been articles in the newspapers about elements that are not in our control, necessarily. they are really within your control of the sentencing area, the prosecution area, the criminal area. that is a huge matter. i am glad you are going into it. >> i do not want to confine yourself to that, if you think there are other issues -- you to that, if you think there are other issues worth of inquiry.

>> i am going to test. this is within the category of high leave you alone, you leave me alone. it is your call. is it policy question. i do not want to get into it. >> all right. i have another question. this relates to the question of ethics, which it turns out is handled differently in different branches of government. as someone who has been involved in political campaigns and public service for a long time, i obviously know the need for us to not only be honest in our dealings, but to have the appearance of honesty in our work. our major ethics laws accomplish this by imposing certain restrictions. for example, and remember of commerce, our staff, the entire executive branch of government, and all federal judges are

restricted from receiving certain gifts and outside income. members of the supreme court and its employees are the only employees in the federal government exempt from these restrictions. do you believe the supreme court should be required to follow the same restrictions? >> we are. i certainly have thought so. we filed these long reports where every penny that by taking, my wife, or my children, every asset must be listed. the amount of money you can take it is far more limited, i believe,, under the code of ethics, then people who are not george's. judges have special restrictions brigid judges. if judges have special restrictions -- judges. judges have special restrictions there. i do not think they have less

restrictions to my knowledge. >> i should preface this is not a reflection on either one of you, but i would just say i anticipated that answer, and i understand the court is bound by these restrictions to a court resolution adopted 20 years ago in 1991. i wonder if you could tell me about that resolution. would you agree that the resolution should be more public? >> there are several different things. one is what money you can take, or cannot take, the reporting requirements, and some of the general ethics requirements. those are statutory. i think they bind us. i have always thought so. there are some better in this ethics volume. that is probably what you are thinking about. if you were to ask me which ones they are specifically, i could not answer, but there are some

that fall in that category. if so, probably like most of us, i have this -- is used to be seven volumes. if i had an ethical question of when i would recuse myself, i would look to see what they said, and i did not distinguish whether they worked legally binding, or something i just followed. i read them, and if i have a problem i call an ethics professor. everyone has to figure out -- there is no one wants to violate any of those rules. there is a big difference between the supreme court and the lower courts, and the difference is simply this -- when i was on the court of appeals, if i had a close question, i took myself off the case. they would put someone else in. one charges as good as another, frankly. if i take myself out of the case in the supreme court, that

could change the result. the parties, and knowing that, but it is possible to choose your panel. what that means is there is an obligation to sit where you are not recused, and in some cases where you are recreant -- recused. those questions are tough. i have to make my own mind. that is an important part of being an independent judge. we are given tough questions to answer. so, the answer is there is a big set where we are bound by law, there existed where we might not be bound by law but are bond in practice, and, in nets set, whether it is law or practice, we have to sink it through and try to work at -- sink it through and try to figure out what is the predominant force.

>> i do not want to disparage mr. blumenthal, but how much of this should be known to the public? we make disclosures that would lead to conclusions about whether we are in a conflict situation. i do not believe the same is made at the supreme court level, it is it? >> i cannot say 100%, but if there is a difficult question there usually is a press inquiry. sometimes we write opinions about it. usually, the press gets an answer. i am not sure that there are things that matter. my brother is a judge in san francisco. if i take myself out because he was sitting on the case, i usually tell our press officer.

pelham the reason i am not in that one is my brother it -- please tell them the reason i am not in that one is my brother is in it. >> thank you. >> center -- i'm going to go to senator lee, but you talked about is one of you stepped out, none can step in. we of three retired right now, and those have requested in senior status could step in. how would you feel about allowing former supreme court justices to step in if there is a recusal? >> who was going to pick the former supreme court justice to step in? >> i would assume the chief. >> i do not think that would

make anybody happy. >> hall of the remaining eight? -- how about the remaining eight? >> i do not know of that would make anyone happy either. what if it is 4-four -- 4-4. >> i think we could stumble along the way we are. >> we are not sought that one through. there might be problems. >> i may chat with you more about this one. senator lee, thank you. >> i do not think it is much of a problem. there are very few cases where we are firm by an equally divided court. it is very rare that that happens. >> thank you. >> thank you, justice scalia, and justice breyer, for joining us.

justice scalia, i wanted to follow up on some things you said in your opening statement. along the lines that it is and probably should be a difficult and time-consuming process to enact legislation, i think the court can and should play a significant role in insuring that is always the case. the court has played a role in the past in which the court has stepped in and said notwithstanding the fact that you may have found something that makes the process easier or more efficient, you have not , so thisur i's provision is invalid. let me ask the question, is there a role for the courts in other situations in which some

future hypothetical congress might do something different that might prove more collegial but is and medical to the constitution? let's suppose congress when looking at the issue of maintaining the proper records in the dog trading industry, a law in which congress just passes a law saying we are outsourcing, delegating the authority to regulate dog breeding and record-keeping for purebreds to the board of directors of the american kennel club. that passes both houses of congress, and we of the end outsourced this apparent -- we have been outsourced the. is that the situation in which

the court might step in? >> i would step in. i do not know if the cord wood. -- court award. -- would be. i was the dissenting vote in the first case involving -- i hate to mention this with my friend stephen breyer here, but i thought when congress created the sentencing commission to decide how many years people should spend in jail because they did not have the time to do it themselves, i did not think that was constitutional. i am sure i would not like your dog breeding body either, but i cannot speak for the court. >> for you, personally, notwithstanding the fact is more efficient, the fact is you have delegated the lawmaking power.

>> exactly. >> you have to be careful. i just read this in john stevens book. the first chief justice, and george washington went to him and said i have a lot of questions. i do not want to do anything unconstitutional. will you answer? anyaid no, we're not giving advice, and the reason was he did not know the answer. >> said he was right. his tenure proves to be sure. >> but the question you posed is leaving it to an agency. >> how is it different? >> when you are leaving it to an agency, you are giving it to the executive. the executive can make rules. you cannot run an executive operation without making rolls.

the doors open at 8:00. if you are the interior department you cannot have fires on public land. it is up to the agency to make rules. but, there is an obstacle that discourages you from getting too much power to the executive agency because you are increasing the power of the president, your competitor, the president -- you know, the separation of powers with different branches competing. there is no such disincentive when you needed to this private group. that is a pure legislation -- delegation of legislative power. you are not authorizing an executive to act like an executive, but delegating legislative power. >> so, based on the fact that this is an executive branch agency which is in theory subject to the control of the chief executive.

>> i think that is right. there talking about doctrine of unconstitutional delegation of legislative authority, which is a bad name for it because there was no such thing as a constitutional delegation of legislative authority. you cannot delegate legislative authority. when you give rulemaking to an agency, how far can you go? can congress get together and say the president can do anything he wants and adjourn? of course not, that has to be constitutional. is that up to the courts to decide where the line is drawn between giving enough authority to the chief executive and too much authority? it is simply a non-justiciable question, and i, for one, would not apply, and not let the courts apply the doctrine about constitutional delegation where the delegation is to the executive.

i would not get into it. >> even in the extreme situation where we passed a law saying for example, we should have good law, and the power it is hereby delegated to the good law department. >> i would do that one, but that is not going to happen. realalking about a situation. i cannot imagine sticking my told in that water could >> -- water. >> justice breyer, i have enjoyed reading your book. i think it is fascinating. you suggest on page 126 but there is really an easy answer to the question of what level of government should be primarily responsible for helping to resolve the problems the potential the call for legislation, and the question usually turns on empirical information as such that sets up determine the answers.

you go on to explain that very often this means that the courts ought to step aside, and if i am understanding you correctly, have covers more or less decide the precise contours of the boundaries of federalism. and my understanding the book correctly? >> that is right. you go to abstract. if you start talking abstractly, you can characterize any individual situation usually in 15 different ways, and depending on how you characterize it, it would seem inappropriate for a federal answer, a state answer, a local answer, a police department problem. it is our resting someone, but for guns. -- you are arresting someone, but for guns to the guns are torpedoes, and their international. it is too complicated. it is up to the court to find a

general issue there. >> if that is the case, and it is also the case of the powers of the federal government are few and defined where as those of the state are numerous and indefinite, and members of congress should read the constitution, and decide what goes contours' are, and restrain ourselves rather than waiting for the coast to step in and say you're overstepped the boundaries? >> you are elected by officials in the state, so you will make such judgments on such matters as you believe are appropriate partly in light of how people feel and what you are trying to represent. a lot of that is your decision. >> senator, of course you have to make those decisions. you take the same old song that i take. the only reason -- boasts that i take care the only reason i can look at a federal statute and say i have to disregard this is because i have taken an oath.

you take the same. we give deference to legislation on the assumption that the members of the senate and house have tried to be faithful to their oath. if indeed, they are not looking at or even thinking about the constitutionality of it, the presumption should not exist. >> in that respect, and to that degree, our goal is to uphold the constitution means more than simply doing what we might get away with in court? >> well, i think you have to make your own decision about constitutionality. in normal times you follow what the supreme court law has said. we do not strike down any of your laws. we never strike down your laws. we just ignore them. i [laughter]

where your law does not comport with the constitution, we ignore it, and applied the rest of the law of the statute not withstanding as one of our earlier cases put it. you have the first cut, and the most important. >> thank you. thank you mr. chairman. >> >>, senator bingaman dr. thank you again -- senator and blooming all -- next, we go to senator blumenthal. thank you again. >> thank you, mr. chairman. thank you to justice scalia and justin -- justice breyer for spending time with us. the highlight of the 20 years was the cases that i argued before your court.

i have been waiting for the day when i could interrupt you as versus -- mercilessly as you did me and give u.s. heart of a time. [laughter] -- heart of the time. [laughter] >> fortunate, you decided the right way, so i will avoid the temptation. i was impressed than most by your explanation as to why you think -- and priced by your moves and explanation as to what role it plays in our system. i agree that they're not only is the need, but there is the lack of that understanding. i guess, not only as one who has argued, but as a former law clerk who said through a year of arguments and learn so much about the system, i said why not

open it to video recording? why not in the federal courts give the public of -- the benefit of seeing it first hand in your court and other federal courts, and appreciate the quality as well as the diversity and the extraordinarily difficulty of what you do? >> i will start. when i first came on the court, i was in favor. a lot just talking about find the arguments. the brazilian supreme court's televise their conference. i was originally in favor of televising, but the longer i have been there, the less good of an idea i thought it was. we want to educate the american people.

if i really thought the american people would get educated, i would be all for it. if the set through a day of our proceedings gavel-to-devil, it would teach them a lot. they would learn that we are not booking of that the sky and same should there be a right to this or that. we are doing real law. the bankruptcy code, internal revenue -- people would not ask me as they sometimes do, justice scalia, why you have to be a lawyer to be on the supreme court? 99% of what we do is lock. it is stuff that only lawyers could do. if people would learn that, it would be a great piece of vegetation, but for every 10 people -- piece of education, but for every 10 people that sat

through, it would be -- there would be many that saw something that is not an example of what we do. >> it would, for high school students, or even a middle school students, and even the general public who were interested in an important and urgent case provide a -- and pertinent case provide a means. >> for those interested for those intellectual reasons, surely the tapes are good enough. >> the tapes, with all due respect, and i understand your argument, and do not convey in the same way with as much interest the kind of debate, the back-and-forth, the visual sense

of the action in court. i know, and you know, really how dramatic. >> we sit there on chairs. there is not a lot of visual motion. there really is not. >> is certainly is gripping if you are answering the question. justice breyer, do you have a different view? >> sort of. we are conservative. you would be too, if you were there. the court has lasted the country well and serve the country well over a long time. we are there for a short time. we do not want to make a decision that would be non- reversible and heard the courts. we start there. when you head the term-limits case out of arkansas, i wish people could have seen that.

it was such a good case. you had jefferson on one side, madison and hamilton and the other side. it was the term limits. where you saw a is everything evenly balanced. if they could and cnet across the country, people would have been able to see -- could have seen that across the country, people could have seen people struggling with a question that would of been good for everybody. what is the problem? one problem is we are a symbol. you would get rid of what? what if you did it with the jurors? what about criminal witnesses, etc.? you do not know what happens with symbols. when people come up with a misinterpretation?

most of the cases done in writing. they do not see that. more importantly, people relate to people. when you see them, they are your friends or not your friends, but we are making decisions that are there to defect 309 million people that are not there, -- to effect 309 million people that are not there. there is the question justice scalia mentioned. you can't make people look good or bad if -- you could make people look bad or or good, depending on which 30 seconds you take. we are speaking for the law, not as individuals. i would like to know more. i really would. there are places them have it, and that do not. canada has it. california in some situations. you have a hundred different

situations. why can we not get some real information not paid for by anyone who has no interest in this and see what happens to attitudes, judicial attitudes, others? what you are getting, and maybe eventually there will be no other way to see things but visually and everyone is doing it, and it would just seem weird what we are doing now, but before that time i think information is something that would make me easier. until i become easy about it, until we become reasonably convinced that will not hurt the institution, you will get a conservative reaction. >> it might be unfair to put this question to you, senator. >> that might be the best thing that has been said about me in a long time. >> 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 there are mixed views, but in general i think openness and transparency improves institutions. for all of the reasons you have so eloquently talk 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. i think that whatever the results of televising senate proceedings, and i was only facetious when i said i would take a test. i think it is been a step in the right direction of providing more transparency and disclosure, and understanding on the part of the public. i will let you and the public be

the judge of how it is used us, but, i think, in general, i think americans should understand the challenges, as well as the role their institutions face. since my time has expired, i want to thank you again for being here, and i am not at all dismissive of the points that you have made. on the contrary, i have great respect for them. perhaps we could provide you with more information that would be persuasive in the advantages and the positives in those kinds of greater availability or accessibility. thank you for being here. i also want to thank you for raising the issue of state courts because i am one that has spent a lot of time in state courts. you often have to consider the rights of state courts -- the results of state courts, and too often we fail to understand how

integral the state courts are to dispensing justice in this country. i have practiced full time before federal judges as the united states attorney. 14 years. when i had the lot on my side,

at almost always won. the rulings were from the. the rulings were for me. i think that happens all over america. justice salida, i do believe it is a law -- just this aliyah -- justice scalia, i do believe it is law. the american people do care. they have a high opinion of the court. they believe that you should follow the law, the greatest threat to the court and in my opinion is the american people believe that the judges are consistently redefining the meaning of words to advance their agenda as. their views, whether conservative or liberal, and that law is not the essence of

what you do. my alma observations from the political world and -- my own observations from the political world and the legal world. with regard to senator gramm's comment, i think there is an area we can respect as the more activist, or the more living constitutional view of the constitution. if it goes beyond that, in my view, the judge should not be confirmed. the nominee should not be confirmed. i have to know that when they say they understand they will serve under the constitution and under the law that they are willing to comply with that. that is how i wrestle with these issues. >> you do not scare me, senator. >> no. [laughter] a professor made a speech to the

11th circuit one time, and when he called on the judges, the essence he called on them to do was in his view to enforce this constitution. it concludes with "will establish this constitution of the united states." and he said, even the bad parts, whether you like it or not. that document will be stronger and a greater role work if the courts enforce it as it is written -- and a greater bulwark if the courts enforce it as it is written. to you agree with that? >> yes, sir, i certainly do. i do not think -- i have said this in some talks. the controversial nature of proceedingsirmation

is attributable to some extent to the doctrine of the living constitution. when you indeed have a supreme court that believes that the constitution means what it ought , itean in today's times seems to me a very fair question for the senate to ask or for the president to ask when he selects a nominee will kind of a new constitution would you write? if you believe this right is there or this old right is not their. that seems to me -- it is much less importance if the person is a lawyer or as a judicial temperament. what is most important is, what kind of constitution would you write? that is crazy. is like having a many- constitutional -- it is like

having a mini-constitutional convention every time you appoint a judge. so it is my hope that the constitutional -- the living constitution will die. [laughter] >> i want you to think of john marshall's famous words. it is the constitution we are expanding. and he is thinking that document has to last as 200 years. the shuttle endeavour problem is in real cases is that the words of a good life, liberty, or property do not explain themselves. freedom of speech does not say what will count as freedom of speech. therefore there is a job, and lower judges come to different conclusions on the same subject. what happens when you're on the internet and you reveal someone's personal information

and it is picked up by the newspaper. is that an invasion of something that the person would want to keep personal. is very complicated. the time to apply this constitution with those values underlying the words for circumstances that are continuously changing are not something that can be done by a computer. what are those things done? no one thinks that. therefore it requires human judgment. as soon as human judgment enters the picture, fallibility as possible. some of us think that by reading history carefully, oh, we can get answers and be the better of the judge like me to try to see what our circumstances now and how does it did today because there is -- how does it fit today because there is a risk that unbeknownst to me myself, i

will become too subjective and substitute what i think is good for it 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, right my opinion, tried to look at objective circumstances, and i see the opposite danger. the opposite danger is called rigidity. the opposite danger is interpreting those words that -- in a way where they will no longer work for a country of 308 million americans who were living in the 21st century. it is a constitution. >> do you have a hearing to determine whether it will work or not, like congress does? what do you do? >> i will give you examples

their. what is a good example of where we did not agree? you know, there are cases where what you're doing is you're looking to what are the free- speech consequences? we had a case where somebody took a tape recorder, and a tape recording of something that was in the public interest that involved someone's personal conversation, and then they threw it over the transom into a newspaper. and then there was a law saying you did not have the right to wiretap to give that information. and added that the within the framework of free expression? you tried to look at what are the risks to the expression? what are the expectations of the individual? and you have 43 grievances filed that are helping you on that. >> this is a new phenomenon, stephen. un die do not disagree frankly -- you and i do not disagree frankly -- >> [unintelligible]

>> let's take the first amendment, the freedom of speech. it was absolutely clear when the people ratify the first amendment that the libel was not part of the freedom of speech, and that included level of public figures, such as you gentleman. but the supreme court in a case called new york times versus sullivan, a marvelous example of the living constitution, just decided it would be a good idea if there was no such thing as a libelling of public figure, so long as someone else told you this that you believed. now, i think who authorized the supreme court to change the law? that may be indeed a very good rule, and the people are free to adopt the rule with legislation. new york could have amended its laws to eliminate liable for public figures. so, do not charge inflexibility.

what is in flexible is the inability now to change the libel law that the supreme court has instituted throughout new york times versus sullivan. it may be a good lock. it may be a bad lot. but you cannot change it. no one can change it. i guess we can change it. [laughter] >> i would like to thank both of these witnesses for their great comments. i voted for well over 90% of president obama's nominees, but i do think we have arranged in which if you believe they are too flexible about interpreting the constitution, then i would conclude they are not faithful to the constitution, and therefore i could not support them, even though they may be wonderful, decent people, intellectually gifted in that regard. one of my standards is any judge who says the u.s.

constitution calls for the elimination of the death penalty, they really should not be on the bench. they will not get my vote. we all have individual standards and we wrestled with that. all in all, we have a great judicial system. congratulations. >> thank you. thank you. >> resist the temptation. senator white house will be our last -- senator whitehouse will be our last. i will say something after this. >> let me join the chairman in thanking you for being here. as to individuals who have been here for the confirmation process, i am impressed you're willing to return. [laughter] >> it was not bad for either of those, i do not think. >> it has gotten livelier.

you talked about the role of the judiciary in the larger architecture of government, and i wish you would say a few words about the role of the jury with an architecture, and whether or not you see the jury as just a little piece of fact-finding machinery and for dispute resolution, or whether the founders and you saw and see a larger role for it as a political institution in our system of government. an important piece of our governmental architecture as well as our dispute resolution system, and if so how? >> absolutely. which is why it is guaranteed in the bill of rights. in criminal cases. indeed in all civil cases that

come along involving more than $20. the jury is a check on us. id is a check on the judge's. i think the framers, not willing to trust in criminal cases, the judges to find the facts. indeed at the beginning, when the constitution was ratified, a juror is used to find not only the facts, but the law. this was a way of reducing the power of the judges to condemn someone from prison. so, absolutely it is a structural guarantee of the constitution. >> just as prior -- justice breyer. >> yes. i was never a district judge. i was appeals court judge. but my brother is a district judge. he said, i want you to see a

massachusetts jury. he said, congratulations. at the end, you and justice sotomayor know how to select a jury. i saw a morning passed that was just terrific. you take 12 people randomly from the community and two alternates, and by the time they are finished, they are thinking the future of this individual who is the defendant is in all likelihood in our hands, and they take that because of the instructions in the way the lawyer be paid as a very, very, very serious matter. and their dissipating, they are part of the government of the united states. and you begin to think it is really wonderful, the before you deprive a person of his or her liberty you go through a process for the community is brought in -- so, they are not just a fact

finding machine. this is a way of saying to people in the community, it is all of you in this democratic system who will participate in this terribly important matter, the matter of depriving an individual of his freedom. in just listening to the instructions and noticing the jury's reaction, and i saw the same thing in the courthouse in boston where they had room set aside for that. and they had things for people to read and justices talking, so when a person comes away from that jury, and i think most of them do, they are very proud to have participated as a citizen in this exercise of the application of community valor. a fine that partly fact finding, partly showing people how they, too, are part of the government of united states in its most important processes and overcoming isolation and

bringing an entire community into the legal process. a very good thing. >> at the time the constitution and bill of rights were adopted, my understanding is the founder's also add a fairly technical view of governors, the colonial governors had shown considerable arrogance and high handedness. thomas jefferson described the virginia assembly of 207 taking place with one and it was not a very big improvement. a probably get the number wrong. -- i probably have the no. ron. [laughter] a wonder if the architecture of the american government, if the jury could not only be a check, but also a last bastion where a person who was set upon by

political forces can get away from the political forces that must lend themselves to -- that most lend themselves to corruption. get them before a random group of their peers, if the case is right. is not just a check on you all, but a check on all of us and the rest of the system of government. >> i think that is probably right if you believe the juries can ignore the law where they think the law is producing a terrible result, and they do that sometimes, i am quite sure. that makes them not just a check on the judges, but on the legislature that enacted the law. is so it a big fan of the jury. i think our record is still. >> the jury has this fact-

finding role. what is the role of a court of final appeal? with respect to fact-finding? and hypothesize that you have a case and in front of you from the state supreme court, and the state supreme court has indulged in fact finding at the supreme court level? what standard of review or deference to you as the united states supreme court accord the findings of fact that have been indulged in by a state supreme court before you, whose decision is before you on review? >> you mean the state supreme court has overrode -- have overrule the jury's finding in fact? >> do you credential that all? >> if it is a criminal case that somehow is being appealed to us for violation of federal

constitutional provisions and the state supreme court has made a finding of fact that is not supported in the record and if that finding of fact is crucial to the conviction, we would set the conviction aside. >> there is a role that says if there are two lower courts that hold a particular finding of fact, we will not go into it further. it is a scenario i have noticed overtime. to have nine people and to try to get people to read this enormous record and come to a conclusion, we're just not very good at it. with a lot of rules. you can never say never. you never say never about anything. bayh and large, we stay away from the fact finding. >> i stand between you and the axis, and i will not trespass on your patience further come up -- between you and the exit, and i will not trespass and your patience further.

>> thank you, senator. adding both my colleague and i have enjoyed it. [laughter] >> you did enjoy it? >> i appreciate you accepting the invitation. i will put into the record the letter from the chief justice, what he was saying about these hearings. i think i can speak for all the senators year of both parties. this means a lot that you did this. what i hope it means, too, and a look of the students here -- i schools. look at this. i hope colleges will look at this. not just law schools. that is why we stream bed and a copy and everything else. -- that is why we streamed it. we're in a nation more to many times people look for a bumper

sticker solutions to everything. i do not care if it is the right or the left. learning history never heard anybody. de to of you've given us a sense of history -- the two of you have given us a sense of history. we thank you for that. >> thank you, mr. chairman. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2011]

>> coming up here on c-span, a discussion on race and hollywood with actors blair underwood and harry belafonte. than the senate's congress committee of the discussion on how to prevent concussions in youth sports. than a talk on the legality of the iraq and afghanistan wars. >> i draw the line in the dust and tossed the gone to -- the gauntlet, and i say segregation today, segregation tomorrow, and today, segregation tomorrow, and