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 burecrat. 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 dotted your i's, so this 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? when suppose congress 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? he said no, we're not giving any 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. you're talking about the

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. i'm talking about a real 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. you're just talking about a lot find the arguments. the brazilian supreme courts 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.

i am sure that would be the consequence will am not in favor. >> it would, for high school students, or even a middle general public who were interested in an important and pertinent case provide a means. only a very limited audience can do because of the size of the court. >> for those interested for those intellectual reasons, 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. it can be. >> we sit there on chairs. there is not a lot of visual motion. there really is not. it is mostly intellectual motion. >> is certainly is gripping if you are answering the question. different view? >> sort of. we are conservative. 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. -- and her to 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 -- have seen that 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. -- take a pass. 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.

thank you. >> thank you very much. senator sessions? >> thank you, mr. chairman and thank both of you for attending and your good comments and insight. i hope the young people have appreciated this. i would say to young people, having traveled around the world in this role for a number of years, we have the greatest legal system in the history of the world. we really do. it is a marvelous thing and as more value to this republic. people can rely on fair dealing in court and can invest large amounts of money and can place their liberty at risk and feel like consistently better getting a fair day in court. i practiced full time before federal judges as a united states attorney for 14 years. when i have the law on my side,

i almost always won. rulings were for may. if the old law was not with me, i would lose. justice scalia, i believe it is law and a texas lawyer sometimes to dig through these matters and understand the president. i would say that the american people do care. they have a high opinion of the court. they believe you should follow and the greatest threat to the court is if the american people believe that judges are consistently redefine the meaning of words to address their agenda, their views whether conservative or liberal, and that law is not the essence of what you do.

that is my own observation from the political world and the legal world. with regard to center gramm's comments, i think there is an area we can respect as to the more activist or more living constitutional view of the constitution but if it goes beyond that, in my view, a judge should not be confirmed. i have to know that when they say that they understand they will serve under the constitution and bowl law that they are willing to comply with that. that is how we wrestle with these issues. each senator has a different standard. >> it doesn't scare me, senator. >> professor van alstein made a

speech one time and he said the essence -- when he called on the judges - he called on the judges to enforce this constitution. we established this constitution for the united states and he said the good and bad parts, whether you like it or not, in the long run, that document will be stronger if the courts to enforce it as it is written. would you agree with that? i would ask you both to discuss that. >> yes, sir, i certainly do. i have said this in some talks -- the controversial nature of recent confirmation

proceedings is attributable to some extent to the doctrine of the living constitution. when you have a supreme court that believes that the constitution means what it ought to mean in today's times it seems to me a very fair question for the senate or the president to ask when he selects a -- what kind of a new constitution would you write? that seems to me -- it is much less important whether the person is a good lawyer or a good judicial temperament for it was most important is what kind of a new constitution are you going to write. that is crazy. it is like having a mini- constitutional convention every time you select a new judge.

i am hopeful that a living constitution will die. [laughter] >> i agree with that. it is this constitution. i want you to think of the john marshall's statement where it is a constitution that we are expanding. he is thinking that document has to last us for 200 years. that does not mean you change the words. the hardest problem in real cases is that the words 'life, liberty, or property' did not explain liberty or the freedom of speech say what counts as the freedom of speech. withfore, there's a job judges as to what happens when you are on the internet and you feel some of his personal information -- you reveal some

of their personal information. is that an invasion? does it depend on who he is text and other words, it is very complicated trying to apply this constitution with those values underlying the words to circumstances that are continuously changing is not something back can be done by computer, neither of us thinks that, no one thinks that. it calls for human judgment. as soon as human judgment enters the picture, fallibility as possible. some of us think that by really reading the history carefully, we can get answers. we can be aware of the judge to look to see what our circumstances are and how does it fit today? there's a risk with me that unbeknownst to me, myself, i

will become too subjective. i will tend to substitute what i think is good for the constitution as it was written and intended to apply. what i say is, yes, you are right about that and all i can do is be on my guard, write my opinions, look to objective circumstances, and i see the opposite danger. it is called rigidities. the opposite danger is interpreted those words in a way they will no longer work for a country of 308 million americans who are living in the 21st century, work in the way those framers would have wanted them to work had they been able to understand our society. >> do you have a hearing to determine whether it will work or not let congress does? what do you do? >> what is a good example?

where we didn't agree? there are cases where you ask whether it will work what are the free-speech consequences? we had a case where somebody took a tape recorder of something that was in the public interest but involved somebody's personal conversation and then threw it over the transom into a newspaper and they printed it and there was set law saying you could not wiretap to get that information. how did that all fit within the framework of free expression? what you try to do is try to see what are the risks to the expression? what are the expectations of the individual? you have 42 briefs that are helping you on that ve. >> those are new phenomena. we don't disagree much on that. you have to calculate the

trajectory. let's take the first amendment, the freedom of speech. it was absolutely clear when the people ratified the first amendment and that libel was not part of the freedom of speech. that included level of public figures such as you gentlemen. the supreme court in a case just decided it would be a good idea if there were no such thing as libelling a public figure so long as you have somebody who told to the that you believed. who authorized the supreme court to change to log? that may indeed be a good rule and the people are free to adopt that rule by legislation. new york could have amended its eliminate liable for public figures.

what is in flexible is the inability now to change the libel law that the supreme court has instituted. it may be a good law or a bad law, but you cannot change it. nobody can change it. i guess we can change it. [laughter] >> can i thank both of these witnesses for their great comments. i vote for well over 90% of president obama's nominees but i think we have a -- if you think they are too flexible about interpreting the constitution, i would interpret that they are not faithful to the constitution and therefore i could not support them even though they may be wonderful decent people intellectually gifted. one of my standards is the death penalty case.

and a judge that says the u.s. constitution calls for the elimination of the death penalty should not be on the bench. they will not get my vote. we all have individual standards and we wrestled with that of all in all, we have a great judicial system and i congratulate you. >> thank you. >> thank you. >> centre white house will be our last -- senator white house will be our last person to question. >> gentleman, let me join the chairman in thanking you for being here. as two individuals who have been here for the confirmation process. i am impressed that you're willing to return. >> it was not bad for either of us, i don't think >> we have talked today about the role of the judiciary in the larger

american system and architecture of government. i wish you would say a few words about the role of the jury within that architecture and whether or not you see the jury has just a little piece of fact-finding machinery or 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. is it an important piece of our governmental architecture and our dispute resolution architecture and if so how? >> it absolutely is which is why it is guaranteed in the bill of rights in criminal cases.

and indeed all civil cases involving more than $20. the jury is a check on the judges. i think the framers were not willing to trust, in criminal cases, the judges to find the facts. at the beginning, when the constitution was ratified, and juries to find not only the facts but law. this was a way of reducing the power of the judges to condemn somebody to prison. it absolutely is a structural guarantee of the constitution. >> yes, i think it is very important i have never been a district judge, i was an appeals court judge but my brother is a trial court judge. i was there a while ago in san francisco and he wanted me to see the selection of a jury.

he said do not show it -- he said you should not go through your life not seeing that. i saw an morning which was just horrific. you take 12 people randomly from that community and two alternates and by the time they are finished, they are thinking that the future of this individual who is the defendant is in our hands. they take that because of the instructions and away the lawyer behaves as a very, very, very serious matter. they are participating. they are part of the government of the united states. you begin to think it is a wonderful thing that before you deprive a person of his or her liberty, you go through this process where the community is brought in as judges of the facts. they are not just a fact finding

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

bringing an entire community into the legal process a very good thing. >> at the time the constitution and bill of rights were adopted, my understanding is that the founders also had a fairly skeptical view of governors, the colonial governors had shown considerable arrogance and highhanded mass. they were skeptical of assemblies. thomas jefferson had described the virginia assembly as to orders seven tyrants replacing one that was not a big improvement. i probably have a number wrong. i wonder if the stature of the jury in the architecture of american government could not just be a check only on judges but also as the last bastion where somebody who is put upon or set upon by political forces

can get away from the political forces that most lend themselves to corruption, governors, assemblies, and get "-- and get themselves before a random group of their peers at it as a slightly -- a slightly larger significance as a check on you all. it is also a check on all of us and the rest of the system of government. >> i think that is probably right if you believe that juries law.gnore bthe they might think the law is producing a terrible result and i think they do that sometimes and that makes them a check on on thege's but also legislature that enacted a law

to to apply negative in the situation. i am a big fan of the jordan accord is, too. >> linney ask you a final question -- let me ask you a question -- the jury has a 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 in front of you from a state supreme court and the state supreme court has indulged in fact-finding at the supreme court level. what standard of review or deferent do you and the united states supreme court accord finding the facts that have been indulged in by a state supreme court that is before you whose decision is before you on review. >> you mean the state supreme court has overrule the jury? >> it does not have a record to support it. that is not the issue. do you credential that? >> no, if it is a criminal case that is somehow being appealed

to was for a violation of federal constitutional provision and that the state supreme court had 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 as says that if there is two lower-court said hold a particular fund in fact, we will not go into it further. i have noticed this scenario over time. to try to get people to read this enormous records and come to a conclusion is just not very good. you can never say never. by and large, we stay away from the fact finding. >> as the last senator, i stand between you and the exits and i will not trespass on your patience with us further. i appreciate very much that you returned to this chamber and

share your thoughts with us this afternoon. >> thank you, senator. my colleague and i have enjoyed it, to our surprise, i might add [laughter] >> i appreciate your accepting the invitation. i would put into the record a letter from the chief justice and what he was saying very approvingly of the series. i think i can speak for all the senators from both parties that this means a lot that you did this. what open means, too, and that the students here, i hope i schools will look at this and colleges will look at this, not just law schools. that is why we made a copy. we are and nation where to many times people look for a bumper sticker solution to everything.

it could be the right or left it is more complex than that. history never heard anybody. the two of you have given us a sense of history and i applaud you both for that. we stand in recess. >> thank you, mr. chairman. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2011] [no audio]

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[no audio] [no audio] >> coming up, we'll take your questions and comments on "washington journal." after that i look at the presidential campaign and a discussion on iran's nuclear program. this morning, a look at the impact of the super committee's inability to reach a deal. after that, in discussion on the 2012 presidential campaign. 2012 presidential campaign.