the letter of the law is the letter of the law. that is what we are governed by. we are not governed by some judicial determination of spirit . which could be anything. the statement comes up often. it is an empowerment of judges. judges can sibley say, oh, yes, the text says that, but that is contrary to the spirit of the law and we're going to go ahead and do whatever we like. that is just not democratic self-government if people can't have the representatives write a statute which is to be applied as written. >> here it is. the new book, "judging statutes ." and you talk about textualism, as he was talking about it. could you two be farther apart on this? what is the issue? where we begin by agree.

the issue is, how do you interpret a statute if you are a judge? do you look only at the words of the statute? at the bodylso look of materials that congress produces in the lawmaking process that accompany the statute? like the conference committee report or the committee reports. the conference committee report is often the final document where both chambers come to an agreement about what it is that they are doing. and often there is a vote on the conference report. ofthe committee reports out committee, which often give background about what the words of the statute mean. >> can i interrupt just a second? could you define what a statute is? >> a statute is a law congress. it could be the civil rights act of 1964. it could be the hobby protection

act of whatever year that deals fromprotecting memorabilia being copied or coins from being copied. it could be the clean air act. when congress passes a law, that is a statute. so, where justice scalia and i, i think, would agree is that where the language of the statute of the law is crystal clear, then of course, fidelity to that text as it is written means that you don't have to go beyond the words of the statute because it is clear. that thereid to you unlawfulthat makes it to distribute in a 30-day period

three grams of pseudoephedrine, a drug, and you -- not you personally, because you never would be involved in any of this -- but let's say a person had .een convicted of 30 grams well, it's very clear. the statute says three grams. the interpretation is very, very clear. but what if i were to say to you that there is a statute that it will be unlawful for anyone who has been convicted, in any court, of a crime punishable by more than gun? whato possess a

does convicted in any court mean ? does it mean any court in the united states? doesn't mean any court in the world? you could see why congress could go either way. >> you have a case to talk about in the book. >> yes, i do. i've the case in the book. >> there were three judges that sit on these cases. >> yes. >> you were there? >> i was there and i wrote the opinion. just looking at the words of the statute, you say, convict did in any court, does that mean in the world or maybe the united states? but then you think about it, and well, there are crimes and parts of the world that -- for practicing religious freedom, for trying to practice freedom of the press, that are prison more than

one year. do you really want to say that if you are convicted in any court in a country that does not have the same values that we do that that should count? so, when you start thinking about it, you say the words of the statute aren't that clear, so why shouldn't we look at the accompanying materials? >> would justice scalia not look at that? >> he would not look at that. he would not look at that. .ere is my basic view congress, under the terms of the constitution -- remember, is thes, article i, that first article. congress is charged with enacting laws. what congress thinks of as of ournt in terms understanding as judges, as administrators, as citizens of its work roddick should not simply be discarded -- work

products should not simply be .iscarded honestly some of the materials are more important than others -- obviously some of the materials are more important than others, but they should not be simply discarded. indeed justice scalia argues ,hat legislative history legislative materials going beyond the statute increased the discretion of justices. they can pick and choose. but i think the real problem is if the statute, if the law is unclear, and the only thing i am going with is the words of the statute and it is ambiguous, and i don't look at anything else, but actually widens my own discretion, because i am not constrained by trying to understand what the legislators meant in trying to make this how they thought the statue was

meant to work. you say in your book that justice scalia and clarence, star the only tw would say our textualists? textualists.ure they are the only ones that don't go beyond the text. justice scalia for a time would, in his career, would cite legislative history. but he no longer does so. >> do you know why? has just come to the view that it is mischievous. you would know better. you have had him on. but i think that is his view. agod a case some years where i actually cited his reference to legislative history.

of they have been one last cases he cited, where he actually cited legislative history. >> when you are sitting on a case that the second circuit, how much do you think about being reversed by the supreme court? >> i don't really think about being reversed by the supreme court. i think about trying to follow -- law where the president's direct me to go a certain direction. and where they don't, i try to do the best i can. there are times when i can reach where -- ifdecision i could rule the world, i might have written the law differently, but it is my job to follow that president. i believe we would have a lawless judicial system if we weren't intensive -- attentive

to what the supreme court directed us to do. but where questions are left open, we have more discretion to try to answer the question, and that of course can lead to tests up in the supreme court. >> do you have any idea how many cases you have adjudicated? is a great question. i would have to think about that. it's in the thousands. i think that there are probably oh, 300 cases orally argued, and we have the it isation docket -- probably about 500 cases a year. >> from the court. on a three-judge panel,

so every judge with me, i sit with all 22 judges, but we sit at any one time on a three-judge panel, except in rare instances where we hear a case with a full court. >> this is kind of in the weeds, but i think you also say in your with-- have you ever sat all of the judges on an appeal within the court? >> very rarely. do that more frequently. >> why is there a difference? >> the culture is if a case is that important, it should go up to be supreme court right away. especially if there is a three-judge panel and there is a strong dissent, to the one, to one, let's

say, the issues are firmly drawn and the keys should just go up to the supreme court for resolution. in other courts, the view is any rest of court -- the the court doesn't like what the , en bancges did considerations are warranted. banc that muchn because there is often a lot of proceedings.nc i think the tradition we have of wiseoing en banc is a tradition. the politics of your appointment? you were appointed by bill clinton, but you also gave a nod to james sperling, who has

worked for the clinton for years, also barack obama, for helping in this whole thing. we saw patrick moynihan. did you want to be a judge? >> i got the position primarily because of senator moynihan. 1998 -- i think that he knew he wasn't likely to run again. he probably had already decided. i have worked with him on so many projects over the years. he was such a great mentor. and he raised the idea of becoming a judge. there was a vacancy that was again -- identified in the second circuit. i think dickie deaton may have identified the vacancy, who .orked for senator moynihan so, senator moynihan was the moving force. and james sperling, who would

then a research assistant to at brookings, when i first got to brookings -- >> who used to work for eisenhower. >> who used to work for eisenhower. was a good friend. so he was helpful on the white house and. the other thing that was really wase fortunate for me was i known to people on the hill because of work i had done on hatch wasand senator very supportive of my potential nomination. known, team let it be senator hatch then being be chair of the committee, that if i were nominated, i would get through. also was veryahy supportive. with ai was nominated few months. i had my hearing in june.

i was confirmed in july of 1999 by a voice vote. i was the first court of appeals ed in 1999. confirm 1750 judges in the united states. how many of them are nominated, do you think question mark >> i think the district judges are certainly largely determined by the senators. when the senators of the same party have the president. the court of appeals appointments are traditionally viewed as white house appointments. and that's why, i think, in my case senator moynihan worked nomination get my

through. house and john podesta and james sperling were very helpful. some of another issue, and we're going to use justice scalia again on this, and i will sling in a moment. watch what he says about this is not a legal issue, but it is an important issue, as you will see, before the supreme court. >> if i really thought it would educate the american people, i would be all for it. if the american people sat down, what star proceedings gavel to gavel, they would never again asked -- joe scalia, why do you have to be a lawyer to be on the supreme court? the constitution doesn't say -- the constitution does not say so, but if you know what the supreme court is -- that is not

usually what we are doing. with theually dealing internal revenue code, with patent law, all sorts of dull stuff that only a lawyer could understand and perhaps get interested in. if the american people saw all of that, they would be educated, but they wouldn't see all of that. what most of the american people would see would be 32nd, 15 second takeouts from our argument and those takeouts would not be characteristic of what we do. they would be. like almost sounds setup, but your court is allowing us to cover monday, the , tuesday, inlapper new york. we have covered several things in the second circuit or. why can we cover the second circuit courts, what you think of his attitude about television

and the supreme court? >> in terms of the court of appeals, the reason that we can cover it -- you can cover what we do, is that the judicial conference, which does not include the supreme court's as part of its jurisdiction -- essentially 1996 allows for a local option so each circuit could determine for itself whether to allow cameras in the courtroom in noncriminal cases. -- wethe ninth circuit and the ninth circuit are the two circuits i believe that our participating in this cameras in the courtroom. the way it works in our circuit is our request goes from the panel. if the panel agrees for there to be coverage, then there is coverage. if a member of the panel has any

concerns, the tradition is to decline the request for cameras in the courtroom. by and large, i think that the experiences that there have been a number of cases, as you have said, brian, where there are .ameras in the courtroom i think in terms of the court of i think this is a positive development. ever in her fear in your opinion? >> no, there is no record of it ever having interfered. it does not happen all that often because the cases are not often that exciting that we are asked to have the coverage. i think the value of c-span is it covers everything. it covers the whole argument. i think that is important for the educative process.

experimentso now an that was authorized by the judicial conference of 2010, and it began in 2011. i think the project will and in 2015. the pilot project of various civil proceedings and district courts across the country. i know there are many district are participating and there's actually a website where you can go and watch the proceedings. >> the district court, doesn't always have a jury? >> it doesn't always have a jury. there are cases that are nonjury cases. -- so, we will see how that experiment works out. >> has the circuit court ever had a jury? >> the circuit court never as a jury. >> does the supreme court ever

have a jury? >> know, the supreme court never has a justice. we just sit, three judges or thely the en banc, and lawyers come before us. we do not have the excitement of the district court with the defendants and the witnesses, and you see the court of appeals does not have that. >> we have some video that was taken earlier just to show what the court looks like. there are more judges sitting up there than the normal three -- we will show, run just a little bit of this and then ask you to explain what we are watching. >> hear ye, hear ye -- [indiscernible] >> we are providing the syrians

f questions -- >> is that in the complaint? >> yes. the dos era of questions was virtually identical to the -- the dossier of questions was virtually identical to the questions the fbi was asking him. werehad publicly said they providing this information to the united states. >> the same, the very same, when he was in new jersey, when he was on his way to syria? or is this case one hand not knowing what the other is doing? >> we saw more than three judges. you're not in this group. we sought more than three judges come out. what was that? >> that was, i believe, and en banc. banc hearingan en

on a case -- >> it was 2008. >> right, right. what you see her all the judges on the panel reviewing a lawyer -- they were viewing a question that was considered by a prior , a three-judge panel of the court. so much reviewing what that three judge panel did, but looking at the issue of the lawyersou see in the courtroom. >> another reason i ask is justice scalia basically said the public would not understand what is going on, even though he did not say it, you think from time to time when you listen to the justice of the supreme court, they are worried about the john steward program or the colbert program, doing the clips. does that concern you? >> i think there is a concern about taking things out of

context and caricature. at the court of appeals, where the requests are made for the whole argument to be shown, i think that if you are going to watch c-span, you're going to be a very intelligent person who was wanting to learn about the process. you asked me about the supreme court. i note that they are, at least certainlyint, releasing audiotapes. i think that is a very good development. on the issue of cameras in the courtroom, i would want to know more about why some of the at one point seemed favorably disposed to cameras, have concerns. there may be something we do not know about that has to do with those concerns. maybe security concerns.

and so while the court of appeals, nobody knows who we are and we can be covered and there is no sense of security concerns. it may be different at the supreme court. that may suggest why some of the changed their views. it would be interesting for you there be a next round of your supreme court c-span book. >> we did not ask any of them that in that round. this book -- what is this on the cover? >> what is on the cover is a text of a statute, which i had to interpret. the question in the case was this. bar on suits against involving the miscarriage or loss or negligent

of materials in delivery. with postal and so the question was, what is negligent transmission? the reason i think it is such a great cover is it gives you a a phrase in a large statute and that can become the subject of a whole court case. did you think of the experience of oxford press, but lose this, 170 pages. costs $24.95. what did you think of the experience of doing a book like this question except the it was a great experience. i did a lecture on the subject of statues. adam litvak of "the

said youtimes," and he should think about expanding this into a book. and i did in the oxford press people have been great and very excited and honored to be part of their stable of authors. get much below the surface -- we did not talk about the federalist papers, the thenistrative conference, legislative council, and the governance institute. are you still involved in the governance institute? >> yes, i am. i am on the board, which is run by russell wheeler. it tries to deal with problems of governance. they has been very helpful in the project i have directed on securing, trying to secure

counsel for the immigrant poor. >> who are they, where they located? >> they are located in washington, d.c. 501(c)(3) nonprofit organization, physically based in the brookings institution. and it is a great organization. ,> we do not have time for this but in thing to ask it anyway. i had never seen this word before. purpose of issus him -- ivism.pos >> what is that? >> it is that we should try to understand what congress was law. when they made the justice breyer had written

eloquently about the importance divorcing loss from life. that means understanding what congress had in mind. >> at this stage in your career, how does somebody like you think about continuing to be a judge? >> i would like to stay on as long as my rain is working. my brain is working. it is a great privilege to try to serve the public. one of the great things about my job is there is not a retirement age. ityou feel you are not up to or if others feel you're not up to it, they will tell you. >> is at the same for your twin brother gary on the massachusetts court? >> there is a retirement age there. state courts have mandatory retirement ages. i think that is unfortunate. robertguest has been

katzmann, chief judge of the second court of appeals in new york and the book is called "judging statutes." thank you. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2014] >> for free transcripts, or to give us your comments about this da.org., visit us at qan programs are also available as c-span podcasts. >> coming up next, british prime minister david cameron talks about the upcoming the scottish independence referendum. a conversation with senator rob portman. and then another chance to see judge robert katzmann

talking about his book "judging statutes." on the next "washington journal," victoria stilwell talks about the economy and unemployment. david matt land talks about right to work laws. if can join the conversation. -- you can join the conversation. washington journal is live on c-span. the british parliament is in summer recess. members return on september 1. discussed why scotland should stay in the united kingdom and spoke before a group of business and economic leaders in glassed out. --