i was trying to explain this before to justice breyer. at the end of the opinion where the court precisely says that seecrist is not liable because he didn't make any financial advantage, it goes on to say nor did he make a gift of valuable information to dirks. the court didn't say, well, dirks wasn't a close friend, he want a relative therefore he is out of the picture. the court applied gift analysis in that situation precisely because the line the court was trying to draw was between the use of appropriate information and inappropriate use. >> i get your theory and why it doesn't make any particular differencend indeed in that same paragraph where the court says relatives are friends, the court -- just a sentence before just talks about an intention to benefit a recipient. >> yes. >> without any -- >> correct. >> sense of who that recipient has to be. on the other hand, as you say, almost all of these cases are relatives and friends. >> yes. >> and things might look different if we had a case that was not a relative or friend. and why

>> i was lucky to have the opportunity to interview justice scalia a couple of times and justice breyer and i remember interviewing justice breyer after he had written the book after the constitution basically that making constitution a living document and i interviewed justice scalia who said, no, the constitution is a dead document. >> he will usually sit there and pound the table a half tozzen times. >> do you care to weigh in on that -- >> no, i won't weigh in on that. i will say that when i had spoken to justice breyer he would tell me that he had fun in the conversations because it was so easy to excite. [laughter] >> i am aware of those conversations. i think everyone is. >> you in seven years on the court. >> i started my eighth. >> looking back personally dealing with and wrestling with, is there any one case that was the toughest one for you to decide, to come to grips with or a couple of them? >> i'm not trying to be cute or to avoid your question, but i am going to answer it in a different way which is, i think, every case is hard and every case is hard for one simple reason

and i remember i interviewed justice breyer after his book about the constitution basically making the constitution a living document and then i interviewed justice scalia in front of a big audience who emphatically said no, the constitution is a dead document. >> he usually will sit there about a half-dozen times. >> do you care to weigh and? >> no, i won't weigh in. i will say when i have spoken to justice breyer he would tell me that he always had fun in those conversations because it was so easy to excite him. but i am aware of those conversations. i think everyone is. >> you have been seven years on the court now? >> i have started my eighth. >> looking back personally dealing with and wrestling with, is there any one case that was the toughest one for you to decide and to come to grips with or a couple of them? >> i am not trying to be cute or to avoid your question that i am going to answer it in a different way, which is i think every case is hard and every case is hard for one simple reason. when we decide a case we automatically choose a winner and by definition, we declare a

supreme court justice stephen breyer looks at how high court's decisions are stretching beyond america's44 historian jay winick reviews the decisions fdr had to make regarding d-day and the end of world war zero make. journalist jenny nordberg reports on the lives of afghan women and girls in the underground girls of kabul. another staff pick from harvard bookstore is black man in a coat, why doctor damon tweeting weighs in on race and any quality in the american healthcare system. in we should all be feminists, everyone should be fighting for gender equality. brandeis university english professor john burke dissects the 7 debates between abraham lincoln and even douglas during their senate seat race in ÷÷÷÷÷÷ lincoln's tragic pragmatism. barrel markham reveals the difficulty she faced as a career pilot and the first woman to fly solo across the atlantic ocean in her memoir westward. some of the staff picks from the harvard bookstore cambridge massachusetts, many of these authors have appeared on booktv. you can watch them on our website booktv.org. >> it turns out eleanor exchange 3000

anyway, i guess i could figure it out later. >> let me see if i can try and help you, justice breyer. the remedy imposed by the court of appeals as the physical presence requirement, the 10 and five your physical presence requirement, the court of appeals, that applies through 1409-a. 1409-a is the provision that applies to fathers. a remedy would be to apply to one continues to your role, and i grant you this is complicated, as it applies through 1409-a. that would put mothers and fathers on equal footing with respect to the physical is private. the. the legitimation requirement still applies to fathers. but if i could address the government's u.s. connection interest in my time remaining. the statute here absolutely bars a u.s. citizen father under the age of 19 from transmitting citizenship to his foreign-born child, even if the father spent his entire life in the united states up until the day the child is born, and even if the father legitimates the child and seeks to raise the child in the united states. by contrast, the statute automatically confer citizenship on a child hoosie

probably only a couple of the justices, breyer and ginsburg, are qualified. and they're okay. they're not, they're not great. of course, the politicians don't care about the quality of judges. they figure with the supreme court, they're politicians. they're interested in politics. you're not interested in having good judges. so in the case of the supreme court, what has been a tremendous boon to the politicians, basically to the lower courts also, that all the federal judges have law clerks, and the supreme court justices and many of the court of appeals justices have really good law clerks. they're really smart. so the politicians figure, well, we're appointing this person because he or she or this is a particular race, comes from a potential part of the country, this or that, is liberal, is conservative. and this person is not particularly bright, doesn't have much experience, never been in a trial courtroom, for example. but, you know, they've got all these brilliant law clerks working. so he or she will -- their opinions will be all right, because the law clerks will write

supreme court justice stephen breyer looks at how some of the high court's decision court's decisionstretching beyond america's borders in, the court in the world. in 1944 historian j winick reviews the decisions fdr had to make regarding dj in the end of world war ii. journalist jenny jenny norberg reports on the lives of afghan women and girls in the underground girls of kabul. another staff pick from the harvard bookstore is a black man and a white coat by doctor damon who weighs it on race and inequalities in the american healthcare system. in, we should all be feminists, they argue everyone should be fighting for gender equality. brandeis university professor john burt dissects the seven debates between abraham lincoln and stephen douglas during the 1858 u.s. senate seat race in, lincoln's tragic pragmatism. belmar, reveals the difficulties she faced as a career pilot and is the first woman to fly solo across the atlantic ocean and her memoir, west west with the night. that are some of the staff picks. many of these authors have appeared on book tv. you can wash them them on the

bill: i was lucky enough to interview justice scalia a couple of times and justice breyer.ber interviewing him after he made the case that the constitution is a living document. then i interviewed justice scalia in front of a big audience who emphatically said no, the constitution is a dead document. justice sotomayor: he would usually sit there and pound the table about a half a dozen times. bill: do you care to weigh in on that? justice sotomayor: no. i say when i spoke to justice breyer he was tell me he only conversationsse because it was so easy to excite me. i am aware of those conversations. i think everyone is. you are seven years now on the court, correct? justice sotomayor: my eighth. back, was there any one case that was the toughest one for you to decide or come to grips with, or a couple of them? justice sotomayor: i'm not trying to be cute or avoid your question, that i will answer in a different way, which is, i think every case is hard. and every case is hard for one simple reason. when we decide a case, we automatically choose a winner. we declare ation los

>> i think the only two justices who are qualified i think our ginsburg and justice breyer. and their opinions are readable. and sometimes, sometimes quite elegant. the others i wouldn't waste my time reading there's. [laughter] >> at another question -- >> i have to tell you, i read recently that most tedious opinion i've ever read. i don't know why but the whole thing, but there was this texas abortion case, and there was an issue, and, of course, judge alito wanted to, if it was affirming or what it was, he wanted -- what texas had done, we had that in wisconsin and we invalidated it. so it had been done. what they have done is, they did two things. the first was to say that an abortion clinic had to be within 30 miles of hostile so that in the event of an emergency, during the abortion, the woman could be quickly transported to a hospital. wait, i left out something important. had to be within 30 minutes of a hospital in which the abortion doctor has visiting privileges. he could admit a patient. and the notion was the abortion doctors would not get, would not be granted

and those justices would include, potentially, a replacement for kennedy, ginsburg, breyer. support for things like roe v. wade. so he could have a transformative effect on the court in all of these cases for generation, but as jeff correctly said, he does have to pick up another vote. but it just turns out that the three oldest justices are the core of support for things like roe v. wade. and there's also a myriad of other decisions that are held in a 5-4 balance. all of those could fall like dominos if he was to replace one of those three justices. >> and this is why there is a lot of liberal resentment of justice ginsburg, justice breyer, as much as they are admired figures on the left, that why didn't they leave at an already advanced age when president obama was in office, and certainly, especially, when president obama had a democratic majority in the senate. >> although, how good is the track record of presidents and those who were selecting justices at predicting how the justice is going to rule? >> it's excellent. one of the myths is the surprise president. you know

. >> justice breyer. >> the statute has been around a long time. what has been developed by courts for a long time. this statute's been around since the '30s. and we have courts developing law in it. and i believe the marketplace pays allot of attention to that and virtually every court i think. but think one.ot of attention and virtually every court i think. but think one. lot of attentio and virtually every court i think. but think one. holds that this does extend to a tipper giving inside information to a close relative. and it seems know, and i'm giving you a chance to respond to this, is to suddenly take the minority stute o minority statute were or take the second circuit, and to change the law that people have come to rely upon than it does to keep -- i want to get your view on that. >> i think some of the briefs illustrate there's been a tremendous amount of murkiness in the securities industry association particularly having a lot of trouble -- its members have had a lot of trouble determining when they can and can't use market information

>> justice breyer, let me step back for a minute. what the court was trying to do in dirks was separate out when an insider with breaching his fiduciary duty by providing information and when he was not. the line the court selected tracks the basic duty of loyalty in corporate law. >> it doesn't seem to me that you argument is much more consistent with dirks and mischievous. supposedly, the insider is walking down the street and see someone who has a really unhappy look on his face and says i'm going to do something to make this person's day. and so he provides the inside information to that person and says, you can make some money if you trade on this. is that a violation? >> yes. i can't explain why that is. i think dirks adopted the basic line that sets forth in the duty of loyalty which is well-established, that when you're given something for corporate purposes you may not use it for personal reasons. that was exactly the court adopted in -- >> if they did that why did they use the word advantage? you keep going back to the part

anyway, i guess i can figure it out later. >> let me see if i can try and help you, justice breyer. the remedy imposed by the court of appeals is to as 1401-a7, the ten and five-year physical presence requirement, the court of appeals, that applies through 1409-a. 1409-a is the provision that applies to fathers. so the remedy would be to apply the one continuous year rule in 1401-7 as it applies through 1409-a. and that would put mothers and fathers on equal footing with respect to the physical presence requirements. and the legitimizization. the statute here absolutely bars a u.s. citizen father under the age of 19 from transmitting citizenship to his foreign born child even if the father spent his entire life in the united states up until the day the child is born and even if the father legit mates the child and seeks to raise the child in the united states. by contrast, the statute automatically confers citizenship on a child whose u.s. citizen mother spent only a year of her life at any point in her time, even at any point in her life, even during infancy, and even if the mother

justice breyer was concerned 87-9. >> why? >> because the ammunition such as it was was to try to derail the nomination of chief justice rehnquist. >> the senate was controlled by republicans. if you want to understand the history of confirmation processes over the last three decades, the first thing you need to look at is who is control of the senate. that's going to tell you 90% of what you need to know and that they can express 90% of what happens.>> so to suggest its recent democratic party and other law professors who are to blame, does anyone know the last supreme court justice to be confirmed, democratic, to be confirmed by republicans have? 1895. so i do know we can say is -- and he was a giant. [laughter] you know, i don't know we can say this is some recent phenomena. i think it is right politics was have the -- a lot to do with politics. i do think something is different from all of of the prior kpaexamples. all of these prior examples and i think what's different is not necessarily the long-term healthy for the cou

if ginsburg, kennedy, or breyer retires, it will be a whole new game. it will be much like the early years of the rehnquist court, when they got a fifth vote and they started to accept big ticket cases. we have gone through this period where judge merrick garland, for now all purposes, done as a nominee. i said months ago when someone asked me about garland, i said it's a very in washington when everyone is saying nice things about you. you only see that at eulogies and when your nomination is dead. soledad: candidate trump talked about mass deportation. do you see that happening? jonathan: i think he's going to increase deportations. he has the power to do it. soledad: but deportation -- he framed it as deportation teams that go in. i mean, a little different than we think of deportation today. a muslim registry, which some have likened to internment camps. jonathan: on immigration, he can do exactly what he said. this is a bill for democrats. they embraced the unilateral of the obama administration. i was one of the critics at that time saying you are

and steven breyer appointed by bill clinton is 78. donald trump, the court would be more conservative and might revisit recent rulings against restricting access to abortion and favoring gay rights. >> with each of those, we have relatively recent decisions. so the court would have to reverse its earlier rulings. but if they had the votes to do that, i'm not sure they wouldn't. >> trump has said he thinks the core abortion rights ruling, roe v. wade should be overturned. but he might have two more appointees. about more restrictions. >> while women might technically have the right under the constitution to choose an abortion, they wouldn't really be able to exercise that right. >> trump was right when he said that overturning roe wouldn't end abortion in america. though this would free up the states to make it illegal and about half of them probably would. but it's been 43 years since that case was decided. and despite many attempts to overturn it, it's still on the books. lester? >> pete williams at the supreme court for us tonight,

i guess i can figure it out later. >> let me see if i can try to help you, justice breyer. the remedy from the court of appeals, as 1401 a 7 which is the physical presence requirement, the 10 and five-year physical presence requirement, the court of appeals, that applies through 1409 a. 1409 a is the provision that applies to father. the remedy is to apply the one-year continuous rule to 1401 a 7 as it applies through 1409 a. that would put mothers and fathers on equal footing with respect to the physical presence requirements and then the legitmation requirement still applies to fathers. if i could address the government's u.s. connection interest in my time remaining. the statute here bars a u.s. citizen father under the age of 19 from transmitting citizenship to his foreign born child even if the father spent his entire life in the united states up until the day the child is born and even if the father legit mates the child and seeks to raise the child in the united states. by contrast, the statute automatically confers citizenship on a child whose u.s. citizen mother sp

they didn't mention that case and a colleague justice stevens in the beginning and justice breyer on occasion and even justice alito would lean over and say sonia don't worry about it, he brings it up with everything. all right. it gave me some confidence or purposes about things like, i'm trying to think of something simple because i can bridge competences. in proper grant status to an applicant and when don't we? and go straight to the merits and when do we deny informal practice? things like that are not written down anywhere so you have to live in the experience so you get to know those processes. so it is more surprising then i think the public would understand and not infrequently we will turn in the middle of a conversation and say to the chief can you find out what the court has done in the past? it might be helpful someday if we had a justice taking notes. [laughter] justice sotomayor: i am not one of them but it would be helpful. >> thank you. candidate pitcher? -- can i take a picture? justice sotomayor: absolutely. >> thank you so much. justice sotomayor: i offered a pict

and steven breyer appointed by bill clinton is 78. if either of them were court would be more conservative and might revisit recent rulings against restricting access to abortion and favoring gay rights. >> with each of those, we have relatively recent decisions. so the court would have to reverse its earlier rulings. but if they had the votes to do that, i'm not sure they wouldn't. >> trump has said he thinks the core abortion rights ruling, roe v. wade should be overturned. but he might have two more appointees. still abort r about more restrictions. >> while women might technically have the right under the constitution to choose an abortion, they wouldn't really be able to exercise that right. >> trump was right when he said that overturning roe wouldn't end abortion in america. though this would free up the states to make it illegal and about half of them probably would. but it's been 43 years since that case was decided. and despite many attempts to overturn it, it's still on the books. lester? >> pete williams at the supreme cou

>> my co-founder and i were having a great draft beer at a favorite craft breyer and i said why does it take so good a can and bottle it doesn't taste the same? ten months later we had our first prototype. we woeshl socialize it the as beer festivals and the response was overwhepg and we've been running ever since. >> how does work? >> let me show you how it works. this is called way tap. you simply take a can or bottle and flames into the system, slide it over. when you pull the handle forward, redispense the beer under pressure at a controlled rate to maintain as much beer so you'll see you didn't create a lot of noam and push the handle in the backwards position, utilize sound waves to provide the ideal density of foam to give you the most amount of aroma and a rich smooth and that's a hand pour. >> that's great. >> and this is a fizzics pour. wow. >> it is such a huge dramatic out the flavor of the beer. you can do this with all kinds of beer. >> sure? >> we actually have a really great russian imperial stoult that was aged in bourbon barrels in here, and with this particularly b

reporters closely covering the presidential race and all your local races that is this tuesday tomorrow breyer on kron 4. >> reporter: we are a hill overexcited about austria over where the dump truck was parked getting filled ash fall. the brisket about inserting a slide check out where it ended up the offer valued a county fire department after they had already rolled it onto its wheels it had come within 6 in. of a home at the bottom of the hill and crazy and that it knockdown the power pole on its way down and wrote it somewhat paltry and also not on retaining wall. the family was also there in the house nobody in the house and got her in the driver did have a minor injury the pull him on the truck even he was ok and the family says he came by and stop the check on the family in the house there. four hours and if you look over their shoulder you can see the utility pole their place a few hours ago the one that got knocked down. you've got to see how close a dump truck came to a home in san leandro today. it's almost unbelievable how things turned out at the bottom of a hill. >> grant:this

>> i was lucky to have the opportunity to interview justice scalia a couple of times and justice breyer, and i remember interviewing justice breyer after he had written his book about the constitution basically making the case a constitution of living document. and then i interviewed justice scalia in front of a big audience who emphatically said no, the constitution is a dead document. >> did he do that only once? he usually will sit there and pound the table about a half dozen times, yes. >> do you care to weigh in on that? >> no, i won't weigh in on that. i will say that when i spoken to justice breyer, he would tell me that he always had fun in those conversations because it was so easy to excite. but, i am aware of those conversations. i think everyone is. >> you and what is is it -- it was seven years now on the court, correct? >> i've started mideighth. >> eighth. right. looking back, personally, dealing with and wrestling with -- is there anyone case that was the toughest one for you to decide? to come to grips with? or a couple of them? >> i'm not trying to be cute or to avoid

i thought that it might be because -- well, you tell me. >> i agree with that, justice breyer. and we think what congress did here is adopt a rule that essentially embodies -- >> so could i say that? so could i say very well, what they did here is a i department well-known for 100 years or more exception to the exhaustion requirement where exhaustion would be futile? judge, you go back and apply that to this case. end of case. no reason for a special law for prisons, for idea, for other things. >> i think you could adopt the rule and set out in the mccarthy decision, set out on the report on page 7. >> i haven't memorized that. are they essentially saying what i am saying that appears on administrative law, look up davis? i will find some words and those the words? >> the words i suggest you use a as follows. if the hearing officer lacks authority to grant the relief sought -- those interest words of the relief sought -- then exhaustion is not required. >> i want to make sure of the government's position. it the position of the united states that if fape cannot include relief f

justice breyer was concerned 87-9. >> why? because the ammunition such as it was was to try to derail the nomination of chief justice rehnquist. >> the senate was controlled by republicans. if you want to understand the history of confirmation processes over the last three decades, the first thing you need to look at is who is control of the senate. that's going to tell you 90% of what you need to know and that they can express 90% of what happens. >> so to suggest its recent democratic party and other law professors who are to blame, does anyone know the last supreme court justice to be confirmed, democratic, to be confirmed by republicans have? 1895. so i do know we can say is -- and he was a giant. [laughter] you know, i don't know we can say this is some recent phenomena. i think it is right politics was have the -- a lot to do with politics. from all these prior examples and i think what's different is not necessarily the long-term healthy for the court even if it's super healthy for conservatives. >> so there's nothing d

i had thought that it might be because -- well, you tell me. >> i agree with that, justice breyer. that what congress did here was adopt a rule that, essentially, embodies that -- >> so could i say that? could i say, very well, what they did here is adopt well known, for a hundred years or more, exceptions to the exhaustion requirement where exhaustion would be futile? >> you can -- >> judge, you go back and a apply that to this case, end of case, no reason for special law, for prisons, for i.d.e.a., for other things. >> i think you could adopt the rule as set out in the mccarthy decision, as set out on the house report on page 7 -- >> i haven't memorized that. are they essentially saying what i am saying? i will find some words, and those are the words. >> the words i would suggest are the words that you used are as follows: if the hearing officer lacks authority to grant the relief sought -- those are the words of the house report -- then exhaustion is not required. those are also -- >> i just want to make sure of the government's position. is the position of the united states th

stephen breyer is 78. how possible is it that in a four-year term he may appoint more than one?ere's a likelihood. i think there will be a lot of people praying that justice ginsburg stays healthy as we get through the three, four years. it's very likely he could end up with four appointments. you may have some justices on the liberal side delaying retirement plans to see how things go through the first term and to see if there's a second term. >> let me turn to you, errol. through this list, these baseball cards we call them of the potential next justices, we see that they're very conservative justices that have signed off. i hear something interesting who is the former deputy assistant attorney general under the george w bush administration first term who talked about who should be nominated first. i want you to listen to what he said. >> if trump really wanted to shore up his support amongst conservative constitutionalists, if i were him i would pick a supreme court nominee now and if i were him, i would pick someone who would be easily confirmed. >> picking someone now befor

. -- justice breyer is 78 and also the senate is 52 republicans 48 democrats and for them to be secure the republican hands afterons 2018, 25 of the 33 seats up for election held by democrats first term or vulnerable. series what might happen this and it could swing dramatically to the democratic hands but to think not of the next two or four years but i think it is a good bet you'll have water to additional vacancies during that period. >> is of vacancy it is an apparel or monetarily is justice thomas. i think it is the same like justice stevens stepping down where justice thomas may be perfectly happy to step aside especially if he is confident his successor will share his commitments. i don't know of any of the freed justices will leave by choice between now and the 20/20 election. >> so let's test that proposition.the you save the accord is viewed as political the end when they leave voluntarily to make an effort to lead underwriter president that shares their views doesn't that into the political motive to the court bucks to make you give that to the justice. a really folks don't

the highlight, by far, the of the argument was when justice breyer and i don't him, he this got into decided to muse a little bit, got philosophical. the clothes on the hanger do nothing, the clothes on the woman do everything. which point, justice kagan givesthat is so romantic, it a sense these are very able judges and so they are also who free associate on the bench. it was a fun argument. host: from tennessee, anthony, the independent line. you are on with adam liptak. hello. caller: good morning. morning. i want to make a statement and ask a simple question. gays in the ut the bathroom. i'm an independent. used the bly done bathroom for years and nobody has known about it because they go in like a girl and and nobody would really know. the other thing i want to say is and russia. he's the a puppeteer, one sending e-mails and things bout hillary and so forth and so on. he pulls a string and our news up and says t whatever they want and it goes and on.n and on exist.n't one more thing, that f.b.i. guy that said a mistake, he's too to have been making that mistake. about i know a l