question any way you deem fit, but i'd have to tell you, i'm very troubled by what chief justice rehnquist called "hostility to religious expression in the public square" and what that's done to change our country, not in a good way. >> senator, i appreciate your thoughts and it's a very difficult area doctrinally, because you have two commands in the first amendment that are relevant here. you have the free exercise clause on the one hand, and you have the establishment clause on the other. so you're guaranteed free exercise of religion, and you're also guaranteed no establishment of religion. the two commands are inntioned because to the extent weccomte free expression, at some point, the accommodation can be so great that someone's going to stand up and say you've established or you passed a law respecting the establishment of and it's intention and as in so many areas of law, judges have to mediate two competing and important values that our society holds dear. the court has struggled in establishment clause jurisprudence to provide a consistent and comprehensive test. i think that's a

that led the late chief justice william rehnquist to make the statement that rather than neutrality toward religious expression, that the court now exhibits pro-hostility to all things religious and public lif. we don't seem to have any limits on expressions of sex, violence, or crime in the public square, but we do seem to have compunctions about religious expression in the public square. i wonder if you could just talk to us a little bit about your views, not prejudging cases, but the sorts of considerations that you believe the founders, for example, had in mind, and of course as i am asking you the question, i am already thinking through my head here, i'm not asking you to prejudge any future case, so let me give you the latitude to answer the question anyway you deem fit, but i have to tell you, i am very troubled by what chief justice william rehnquist called hostility to religious expression in the public square and what that has done to change our country, not in a good way. >> senator, i appreciate your thoughts, and it is a very difficult area because you have two commands in the

citizen to another, let me tell i think it's -- unfortunately, the result is like chief justice rehnquist said, hostility to religious expression in the public square, and i think our country is poorer for it. let me -- my final topic at least for this round. let me ask a little bit about originalism and texturalism. our mutual friend brian garner mentioned to me that texturalism isn't the same thing as being a strict constructionist. i know we use that phrase at least kcolloqially some. if a judge isn't bound by the text of the constitution or the text of a statute, what is a judge going to be bounded by? >> well, senator, i hope it isn't what he had for breakfast. you know, when i was a lawyer, all i wanted was a judge who put all of his personal things aside, her personal views, and come to the law and facts in each case fairly. i do think when we're talking about interpreting the law, there's no better place to start than the text. maybe here i have to blame sister mary rose margaret. she taught me how to read, and she taught me how to diagram a sentence, and it was under pain of the

and the result is like chief justice rehnquist said hostility to religious expression in the public square and i think our country is poorer for it. let me -- my final topic for this round, let me ask you about originalism, and texturalism. our mutual friend broian garner mentioned that texturalism isn't the same as boeing a constructionist. if a judge isn't going to be bound by the text of the constitution, or the text of a statute, what is a judge going to be bounded by? >> well, senator, i hope it isn't what he had for breakfast. and when i was a lawyer, all i wanted was a judge who put all of his personal things aside. her personal views. and come to the law and the facts in each case fairly. and i think when we're talking about interpreting the law, there is no better place to start than the text. maybe here i have to blame sister mary rose margaret. she taught me how to read. and she taught me how to diagram a sentence and under pain of a hot seat paddle which hung above her desk for all to see. she could teach a monkey how to read. i think she did. me. and i think that's where we wa

the question anyway you deem fit but i have to tell you i'm very troubled by what chief justice rehnquistty to religious expression in the public square and what that's done to change our country not in in a good way. >> senator, i appreciate your thoughts and it's a very difficult area doctrinally because you have two commands in the first amendment that are relevant here. you have the free exercise clause on the one hand and you have the establishment clause on the other. so you're guaranteed free exercise of religion and you're also guaranteed no establishment of religion. those two commands are intentioned because to the extent we accommodate can free expression, at some point the accommodation can be so great someone is going to stand up and say you've established or you passed a law respecting the establishment of religion, right? it's a spectrum and it is a tension. as in some areas of law judges have to mediate two competing and important values that our society holds dear. the court has struggled in establishment clause jurisprudence to provide a consistent, comprehensive test. i

last week one of those mentors and friends as chief justice william rehnquist was laid to rest. i talked last week with the nurses that helped care for him over the past and i was glad to hear from them that he was not a particularly good patient. he changed the limitations they tried to impose. his dedication to duty over the past year was an inspiration to me and any others. i will miss him. my personal appreciation that i owe a great debt to others reinforces my view that a certain humility should characterize the judicial role. the judges and justices are servants of the law, not the other way around. the judges are like i'm tires. they don't make the rules, they apply them. the role of an umpir umpire anda judge is critical. they make sure everybody plays by the rules but it is a limited role. nobody ever went to a ballgame to see the empire. judges have to have the humility to recognize that they operate within a system of precedent shaped by other judges equally striving to live up to the judicial oath and judges have to have the modesty to be open in the decision process

jurisprudence of chief justice john roberts based on his judicial clerkships with henry friendly and william rehnquist and the aftermath of the memo to justice jackson. he has appeared on espn, c-span and hbo and new york times documentaries. if you will, please join me in welcoming brad snyder. [applause] >> well, there are a lot of people here. i really just want to, first, thank politics & prose. it's an honor to be standing up here. i've seen so many great authors present their work here, so it's a real honor to be in this bookstore for the third time. i also want to thank all my family -- [laughter] and there's a lot of 'em, including my daughter lily and my son max and my wife shelby and my parents who flew up for this event. and a lot of my friends and a lot of former coworkers and a lot of people who helped make this book a lot better. john milton cooper, dan ernst, a bunch of people who read this book cover to cover when it was in manuscript. and let me tell you, that's a huge undertaking. so is i'm really grateful to all of them x can they're all here. and they're all here. the last time i g

he was put forward as a nominee for chief justice following the death of william rehnquist. and was confirmed by a vote of 78-22. judge roberts was unanimously confirmed to his previous post, a seat on the d.c. circuit court of appeals. he also served as principal deputy solicitor general during the george h.w. bush administration. at his confirmation g, john roberts was introduced by virginia senator, john warner. mr. warner: i firmly believe that john roberts shares in the belief that lawyers have uneth -- an ethical duty to give back to the community by providing free legal services, particularly to those in need. the hundreds and hundreds of hours he spent on pro bono cases are a testament to that. he didn't have to do any of it. the bar doesn't require it. but he did it out of the graciousness of his heart and obligation. those who know him best can also attest to the kind of person he is. throughout his legal career, both in public and private practice, his pro bono work, roberts has worked with and against hundreds of lawyers. those that turn -- attorneys who know him

>> i think the court in rowley justice rehnquist's opinion invoekd that by talking -- says this is a presumption applying to statutes. >> who put the term, more than merely de minimis. that's the formula -- >> and de minimis is not enough. it is merely de minimis. >> and it is not in rowley. so where does it -- who invented it? >> i think it came directly from the circuit right after rowley. all we are saying is some benefit means the more than de minimis test. that's the way court after court has interpreted it. it's worked well and this court shouldn't -- >> thank you. two minutes, mr. fish per. >> three point your honors. two about the statute and one about practicalities. first, as to the statute, the word procedural has been used by my friend to describe the iep provisions. whenever pressed, even he admit that iep provisions aren't enforceable in the way justice briar described, which is the plan has to meet the requirements of 1414-d and if the services on the ground don't meet the requirements of the plan they are enforceable. that's page 47-a of his brief -- and throughout th

katyal: well, i think the court in -- in rowley, then justice rehnquist's opinion, invoked that by talking about some benefit. and wrigley says that is a presumption that applies to all statutes. and look -- justice ginsburg: who -- who put the term, "more than merely de minimis"? that's the formula that we're -- that you are espousing. mr. katyal: yes. we -- justice kagan: and de minimis is not enough, you know. it's "merely de minimis." [laughter] justice ginsburg: and it's not in rowley. so where does it -- who invented it? mr. katyal: well, i think that it came directly from the circuits right after rowley. but all we are saying is "some benefit" means the more than de minimis test. that's the way court after court has interpreted it. it's worked well. this court should not rejigger that. justice roberts: thank you, counsel. two minutes, mr. fisher. mr. fisher: three points, your honors. two about the statute, and one about the practicalities. first, as to the statute, the word "procedural" has been used by my friend to describe the iep provisions. but whenever pressed, even he admits

. >> i think justice rehnquist talks about some benefit. and that should require all statutes. >> the term more than merely diminimus. >> but it is diminimus is not enough is merely diminimus flow invented that >> it came directly from the circuits right after but some benefits that is what the court has interpreted. >> council you have to minutes. >> three points to about the statue down one about the practicalities the procedure that has been used by french to describe the teeth -- iep prohibition even he and ms. they are enforceable the way justice breyer describes it has to meet the requirements if the services on the ground on page 47 day of his brief. >> what is the practice today? most sports use more than diminimus standard. >> that is an important question on the ground. >> put aside the word giorgio comes are appropriate or do the lower courts need a kick by. >> and think they're scattered because even the courts themselves don't believe barely more than diminimus but point to the and meet this brief -- amicus brief with the stand

last week, one of those mentors and friends -- william rehnquist was laid to rest. with the nurses who have care for him over the past year. i was glad to hear from them that he was not a good patient. he chafed at the limitations they try to impose. -- tried to impose. his dedication over the past year to me and many others was obvious, i will miss him. personal appreciation that i owe a great debt to others reinforces my do that a certain humility should characterize the judicial role. judges and justices are servants of the law, not the other way around. like umpires. umpires don't make the rules, they apply them. the role of an umpire and a judge is critical. then they make se th evybody plays by the rules. it is a limited role. nobody ever went to a ballgame to see the umpire. judges have to have the humility to recognize that they operate presidentystem and shaped by judges. judges have to have the modesty to be open in the decisional process to the views of their colleagues on the bench. mr. chairman, when i worked for the department of justice and the office

what chief justice william rehnquist later called the crown jewel of our judicial system. today, in a bizarre twist on that principle, judge gorsuch's appointment say the only way for him to prove his independence is by promising to decide future cases according to certain litmus tests. in other words, judicial independence requires that he be beholden to them and their political agenda. it simply describing a principled position is not enough to refute it, the confirmation process is in more trouble than i thought. judge, i know that the integrity of the judiciary, fairness to the litigant who come before you in your own oath of office to your highest priorities. you will be in good company by resisting efforts to make you compromise your impartiality. when president lyndon johnson nominated judge thurgood marshall to the supreme court, senator ted kennedy, my friend who would later chair this committee said quote, we have to respect that any nominee to the supreme court would have to be for any comment on any matters which are before the court are very likely to appear b

what chief justice william rehnquist later called the crown jewel of our judicial system. today, in a bizarre twist on that principle, judge gorsuch's appointment say the only way for him to prove his independence is by promising to decide future cases according to certain litmus tests. in other words, judicial independence requires that he be beholden to them and their political agenda. it simply describing a principled position is not enough to refute it, the confirmation process is in more trouble than i thought. judge, i know that the integrity of the judiciary, fairness to the litigant who come before you in your own oath of office to your highest priorities. you will be in good company by resisting efforts to make you compromise your impartiality. when president lyndon johnson nominated judge thurgood marshall to the supreme court, senator ted kennedy, my friend who would later chair this committee said quote, we have to respect that any nominee to the supreme court would have to be for any comment on any matters which are before the court are very likely to appear b

i tell you a story, the late chief justice ll rehnquist was once arrestedrivinhis own car for dwi.unk. he took a percocet before he got into the car and didn't realize the effect it was having on his driving ability. he wasn't charged with anything, but it began the public awareness of how the innocent overprescribing or innocent overusing of this can have catastrophic consequences. what can the government do? very little. it's up to physicians and patients. stuart: extraordinary news on the supreme court, the timing. glad you brought that to us, judge. >> of course. stuart: we will have more varney in three minutes. . . stuart: we are living in a world of political hysteria. there is a great deal of noise surrounding this new president. ignore it. don't let hysterics distract. we've never seen anything quite like this before. donald trump beats all-comers to become the 45th president and appoe plex sy breaking ought all over. democrats announce undying opposition to all things trump. department stores withdraw his daughter's products. boycotts organized. violent demonstrations pre

two on william rehnquist when nominated as associate justice to the supreme court and then when he nominated to be chief justice of the supreme court and then samuel alito when there was cloture obtained and ultimately he won an up-or-down vote getting the majority of votes on the senate floor and, of course, there was the fortis nomination, which i mentioned earlier. in none of those cases was there a partisan filibuster that denied an up-or-down vote to the nominee. again, the only one that is a little of an outlier is the fortis nomination and the senate didn't have a chance to go back to the cloture vote because of the ethical problems that led to judge fortis to resign from the supreme court and return to private practice. well, let me talk a minute about the excuses that our democratic colleagues have given to -- in opposing judge gorsuch. first they said they would fight a nominee that wasn't in the p mainstream. with judge gorsuch, i believe out of 2,70 okayses he has par tis -- cases that he has participated in, 97% of those have been affirmed on appeal. he has only been reversed in

the committee in august 1986 after being nominated by president reagan to replace justice william rehnquist. on august 5, 1966, he said -- 1986, he said that taking positions on a hearing on issues that could come before him was not just a slippery slope, but in his words, a precipice. he said, quote, i just cannot do it. and i think the only way to be sure that i'm not impairing my ability to be impartial in the future cases is simply to respectfully decline to give an opinion, unquote. let me reach even further back. justice abe fortas came before the judiciary committee in july 1958. after being nominated to replace chief justice earl warren, the committee ssents the nomination to the full senate and said -- in these words in its report, quote, to rare justice to state his views on legal discussions or to discuss his past decisions before the committee would threaten the independence of the judiciary and the integrity of the judicial system itself. it would also impinge on the constitutional doctrine of separation of powers among the three branches of government, as required by the const