>> it is said in some supreme court opinions that sometimes, you know, the letter of the law is contrary to its spirit and its spirit must prevail. that is nonsense. 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 simply 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? >> let me begin by where we

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? or can you also look at the body 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. or the committee reports out of 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 with protecting memorabilia from 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. so, if i said to you that there

is a law that makes it unlawful 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 been 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 says that it will be unlawful for anyone who has been

convicted, in any court, of a crime punishable by more than one year to possess a gun? what does convicted in any court mean? does it mean any court in the united states? does that mean any court in the world? you could see why congress could go either way. >> you have a case you talk about in the book. >> yes, i do. i have 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 in parts of the world that -- for

practicing religious freedom, for trying to practice freedom of the press, that are punishable by 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. here is my basic view. congress, under the terms of the constitution -- remember, congress, article i, that is the first article. congress is charged by the constitution with enacting laws. what congress thinks of as important in terms of our

understanding as judges, as administrators, as citizens of its work products should not simply be discarded. but should be paid attention to. obviously some of the materials are more important than others, but they should not be simply discarded. indeed justice scalia argues that legislative history, legislative materials going beyond the statute increased the discretion of judges. 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 thomas are the only two textualists? >> they are the only pure textualists. 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? >> i think he 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. i had a case some years ago where i actually cited his reference to legislative history. that may have been one of the 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 the law where the precedents 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 and write a decision where -- if i could rule the world, i might have written the law differently, but it is my job to

follow that precedent. 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 further court tests up in the supreme court. >> do you have any idea how many cases you have adjudicated? >> that is a great question. i would have to think about that. it's in the thousands. i think that there are probably about -- oh, 300 cases orally argued, and we have the immigration docket -- it is probably about 500 cases a year.

>> from the court. >> i sit 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 book -- have you ever sat with all of the judges on an appeal within the court? >> very rarely. other courts 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, two to one,

let's say, the issues are firmly drawn and the case should just go up to the supreme court for resolution. in other courts, the view is any time the court -- the rest of the court doesn't like what the three judges did, en banc considerations are warranted. i think one of the reasons that our court is so collegial it is because we do not go en banc that much because there is often a lot of heat in en banc proceedings. i think the tradition we have of not going en banc is a wise tradition. >> what is the politics of your appointment?

you were appointed by bill clinton, but you also gave a nod to james sperling, who has worked for bill 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. in 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 identified in the second circuit. i think dick eaton may have identified the vacancy, who

worked for senator moynihan. so, senator moynihan was the moving force. and james sperling, who would then a research assistant to steve hess 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 i had was really quite fortunate for me was i was known to people on the hill because of work i had done on the hill, and senator hatch was very supportive of my potential nomination. and his team let it be known, senator hatch then being be chair of the committee, that if i were nominated, i would get through. and senator leahy also was very supportive.

and so i was nominated with a 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 appointment confirmed in 1999. >> there are 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 overtime to get my nomination through. at the white house and john

podesta and james sperling were very helpful. on another issue, and we're going to use justice scalia again on this, and i will explain 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, watched our proceedings gavel to gavel, they would never again ask, judge scalia, why do you have to be a lawyer to be on the supreme court? the constitution doesn't say -- no, the constitution does not say so, but if you know what the supreme court is -- that is not usually what we are doing.

should there were be a rate to abortion that -- should there be we are usually dealing with the 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 30-second, 15-second takeouts from our argument and those takeouts would not be characteristic of what we do.

>> it almost sounds like a setup, but your court is allowing us to cover monday, the aclu versus clapper, tuesday, in new york. we have covered several things in the second circuit court. 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. we 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 cameras in the courtroom. i think in terms of the court of appeals, i think this is a positive development. >> does it ever interfere 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.

there is also now an experiment 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 courts that are participating and there's actually a website where you can go and watch the proceedings. >> the district court, does it always have a jury? >> it doesn't always have a jury. there are cases that are nonjury cases. but -- 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? >> no, the supreme court never has a jury. we just sit, three judges or rarely the en banc, and the 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 a dossier of questions -- >> is that in the complaint? >> yes. that is an allegation in the complaint. the dossier of questions was virtually identical to the questions the fbi was asking him. they had publicly said they were providing this information to the united states. >> counsel, was it 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 saw more than three judges come out. what was that?

>> that was, i believe, an en banc. it had to be an en banc hearing 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 panel, a three-judge panel of the court. they are not so much reviewing what that three-judge panel did, but looking at the issue of fresh, and you see the lawyers 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 jon stewart 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 know that they are, at least at this point, certainly 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 justices, who 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 justices have changed their views. it would be interesting for you to have 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. there was a bar on suits against the government involving the miscarriage or loss or negligent transmission of materials in

connection with postal delivery. and so the question was, what is negligent transmission? the reason i think it is such a great cover is it gives you a sense of a small phrase in a large statute and that can become the subject of a whole court case. >> what did you think of the experience of oxford press, 170 pages. costs $24.95. what did you think of the experience of doing a book like this?

>> it was a great experience. i did a lecture on the subject of statutes. it was with adam liptak of "the new york times," and he said you 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. we did not get much below the surface -- we did not talk about the federalist papers, the administrative conference, the 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. they are a nonprofit 501(c)(3) 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. textualism versus purposivism -- >> purposivism. >> what is that? >> it is that we should try to understand what congress was doing when they made the law.

so we understand what they were trying to do interpreting the law that will assist us. justice breyer had written eloquently about the importance of 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 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. if you feel you are not up to it 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. >> our guest has been robert katzmann, chief judge of the second court of appeals in new york and the book is called "judging statutes." thank you. >> for free transcripts, or to give us your comments about this program, visit us at qanda.org. "q&a" programs are also available as c-span podcasts. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2014] this labor day, on the c-span networks, an education summit on bullying on squirrels. at 8:00, bill nye the science