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tv   Key Capitol Hill Hearings  CSPAN  February 14, 2016 3:44am-5:22am EST

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considered it critically important if you had called social security you had to get your phone call answered. it was the point of contention that people have. the irs is right up there. it's not just acceptable to have a system where citizens can't get through to the two parts of the government that they actually touch in their lives. >> and by doing this, we actually provide some more resources for irs. it actually helps us reduce our budget deficit in the end. so it's a win/win. thank you, thank you, mr. secretary. >> thank you, senator carper, we appreciate you. mr. secretary, with regard to inversions, i doubt seriously that they will be able to get through it before the end of the year. the territorial recovery of monies. for many reasons, some of which are political, some of which are just time concerns, and some of
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which comes from being difficult to get both sides together. but we're working on a corporate integration program that may very well put a stop to inversions that really if we could go on a bipartisan basis could make a real didn't in those problems this year. now, we're stuck right now because we have to wait until a joint tax comes up with its analysis. so far it looks good. and i hope that you'll keep an open mind with regard to that because it's something that i think is doable. and it would put a real crimp in the inversions that are going on in our society, the clipper inversions. and i think we would get companies back once we do it. we all know that the best way to solve that problem is to cut the corporate tax rates so that we're competitive. but that is another matter that is very difficult to do under current circumstances with the problems between both of the
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parties here in the senate. i'm looking for ways to bring people together with the administration and see if we can solve these problems. so when we get a little farther down the line i want you to come up and go over with me this corporate integration program that i think might very well be something that would help you help the administration and help this country to resolve these inversions that have been going on. you're willing to do that, i know. >> mr. chairman, i'm not familiar with the details of the proposal, and i look forward to see how it addresses inversions without looking at it. but i would be happy to look at it as we have that conversation. also we can talk about whether the anti-inversion provisions and the earning strip provisions may be doable, even if we can't reform the tax -- >> i am looking forward to that,
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because this would solve a lot of the problem. it would not solve it all but it would give us time to really do what needs to be done. i think you and i would agree on that. i would ask you to look at the jct analysis of the earned income tax credit for puerto rico that i have made public just this morning. so if you will look at that. >> i haven't seen it. i'm happy to look at that. >> i know you would, and i would appreciate it in the meantime. i wonder if you have given any thoughts to the difficulties of administering which you propose and are very well concerned about improper payments that could easily arise under your proposal. >> i think we have a great deal of experience deal willing the earned income tax credit -- >> well, 25% of the payments are wrongfully made. >> i think we would be able to work with the commonwealth to implement it in a way that was designed to have the compliance
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rate be higher. one of the things that congress enacted last year was the provision of giving the treasury to provide assistance in a more robust way to puerto rico. and we have people working with them so we would endeavor to work with them and set things up so that it is run in a very sound way. i would be happy to follow up with you on that and do everything in my power to solve it. >> there are good people down there, i think we ought to get it out of politics. there were good people quite to blame too when they took the tax credit away it cost 100,000 jobs as i estimated. i think we have to resolve this problem, i hope we can keep it out of politics. >> i agree, i hope we can deal with it on a bipartisan basis. >> let's hope we can do it before the end of march. >> that would be my goal, too. >> we would work with you. >> let me just say i would like to thank my colleagues and you,
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mr. secretary, for participating in this hearing. i think we have had a good discussion today and i hope we can continue working together in the future. if any member wishes to submit written questions for the records please have them do so by the close of business on wednesday, february 17th. and so mr. secretary, you have been very patient to go through this long, arduous hearing. and i just want to thank you for your patience. and with that we'll recess until further notice. >> thank you. mr. chairman.
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host: jonathan nicholson is here and he joins us to talk about president obama's 2017 budget.
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jonathan: it is mainly a political document this year ,ore so than another years given that it is his last year in office. republicans, in many ways, are already treating it as such. it has, as with any budget, a lot of specific proposals. but in terms of the actual moneys they will be fighting over this coming year in terms of the appropriations process later on down the line, the top lines have -- the topline numbers have already been figured out. they were figured out last fall. this is much more of a political document than a practical guide arguably to what the policy discussions will be this year. host: in light of that, what is in this? what is some of the key details?
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jonathan: on the overview of it, basically, about a $4.1 trillion in spending, 3.60 it -- $3.6 trillion in revenue. over two years, the accumulating deficit is about $6 trillion. basically, what obama did was he raised about $3 trillion worth of revenues, but also increases spending by about $1 trillion over those 10 years. within 2017, it includes new moneys for transportation, funded by the $10 per barrel oil fee. he also includes some expansion of the earned income tax credit for childless workers. that is something that omb official said they would possibly try to work with republicans on. and also some increased money for things like cancer research and clean energy. the cancer part is associated with vice president biden's
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moonshot initiative. that is another thing that they are in be budget within the white house said that they hope they can work its republicans on. here,o give an idea usually, they tried to call target initiatives like this rifle shots. these are arguably even tinier than rifle shots in terms of trying to find common ground. let's turn to war funding. something we heard in the past budgets, the overseas contingency operations budget, you tweeted about this. $73white house budget keeps billion in the oco. what's going on here? jonathan: right now, house leadership wants to put together their own budget revolution. that is sort of the way to set the stage for the appropriations
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process. but they are having some pushback from members in their own caucus who are upset at the overall spending levels, that were negotiated in last fall's budget deal. -- and itsibility happened last year -- is they may try to increase defense help buy votes, for lack of a better term, from members concerned about defense spending at the expense of losing votes among those concerned about overall spending levels. one way would be to include a oco number. but the white house shows no interest in a higher pcp -- oco number to pay for overseas operations. host: i want to touch on the response. already immediately writing that to the budget proposal is a
quote
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progressive manual. regularlso called for order in terms of when we get down the road here to the appropriations bills in the house and senate. what is the likelihood of those bills being taken up individually, not as an omnibus? jonathan: historically, there are two things to keep in mind. the last time that was done in terms of individual bills being fored individually, in time , was 1994.year end the last time congress agreed on a budget resolution in an election year was 2000, when john kasich was still in the house budget committee. host: coming full circle. thanks so much for joining us. we will keep tabs on this. we will follow you on twitter.
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reported at b na.com. announcer: on newsmakers, our guest is johnny isakson, chair of the veterans affairs committee. he talks about the president's proposed budget for the v.a. the interview today at 10:00 a.m. and 6:00 p.m. eastern on c-span. this presidents' day weekend, book tv has two days of nonfiction books and authors. programs toome watch at 4 p.m. tonight at 9:00 eastern on afterwards, barry the downturns in crime in america from the 1960's through the 21st century, the rise and fall of crime in a mecca. he is interviewed by john roman, urban fellow for the
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institute. >> we had this demographic bulge after the war when soldiers came home, given the prosperity of the country. we had many people marrying and having children, having families. and these children, the baby boom generation, reached their most common agenda -- there must inogenic years in the 1960's. announcer: and rescuing social change in which he argues that, economichnology solves problems, it is not the main driver progress. watch book tv every weekend on c-span 2, television for serious readers. announcer: supreme court justice antonin scalia has died at the age of city nine. coming up next, a 2012 q&a
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interview with justice scalia up in that is followed by a 2009 conversation where he talks about the role of the court and the job of the supreme court justice. justice scalia shares his views on the first amendment in a discussion that also included justice ruth bader ginsburg. ♪ >> this week on q&a our guest is supreme court associate justice antonin scalia. his new book is called reading law. interpretation of legal texts. is called reading the law. interpretation of legal texts. ♪ lamb: your book reading the law, why now?
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why now?calia: because i finished working on it. brian lamb: how important is this book? this is theia: first time i really tried to pull together all of the interpretive causes that i consider important, textualism, and regionalism. no use of legislative history. described the opposing theories of interpretation. and most importantly i have gone through the steps that a textual list has to take.
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in order to produce a correct reading of the text. namely the so-called canons of interpretation. ancient andrgely common sense how language is used. brian lamb: who'd you expect to read this. scalia: i hope judges and lawyers and law students will read it. i hope legislators will read it. important that legislators know how their language will be interpreted by the courts as it is for the courts to know how they ought to interpret the language. lamb: i'm not a lawyer.
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justice scalia: the addition to the general public. it would give the general reader world ofinto the judges. about deciding on the meaning of enacted texts. all, most important of what is the true fault line in judges. judges.ishing the fall line is not conservative versus liberal. it is rather theories of interpretation which differ. lamb: i'm going to read long paragraph the road. one final personal note. thatjudicial author knows
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there is some and fears they may be many opinions that he has joined or written over the past 30 years that contradict what is written here. whether because of the demands of starry decisiveness or because wisdom has come late. worse still, your judicial author does not swear that the opinions he joins her rights in the future will comply with what is written here, whether because of starry decisiveness, because wisdom continues to come late, or because a judge must remain open to persuasion by counsel. forthe prospect of gotcha past and future inconsistencies holds no fear. scalia: i thought that was pretty clever. brian: it is food for questions. scalia: you said thus
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and such in your opinion 22 years ago. i did not review all of my opinions to make sure that every one of them comports with the truth set forth here. i did not want to have to do that. for the future any judge has to be open to persuasion. to acknowledge his past ignorance if necessary. swear that i will follow this. but probably will. gotchas come wife, from academia. many in academia. most of them.
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why do they disagree? they prefer theories that augment the power of the judge. and hence the power of the law professor. the theory of interpretation set forth here is a very humbling one. it does not leave a whole lot up thehe policy discretion of judges. in fact it leaves nothing up to the policy discretion of the judge. the name of the game is to give a fair reading of what the people's representatives have enacted. that is what a judge is supposed to do. to someone who wants to do good. office to do things that he thinks are good for the society.
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zeal one willt not like the approach set forth in this book. part everyhe earlier lawyer every citizen concerned about how the judiciary can rise above politics should find this book invaluable. you just got accused of being political. was i accused of being political? i don't read that stuff. sometimes i speak to groups about judging judges. judges unlesse you know what they are working with. like thecause you
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outcome of an opinion you think that's a good judge. unless you want your judges to .gnore the text it is either a regulation or a statute or the constitution. unless you want them to ignore the text is really unfair to judges to say i like the result therefore that's a good judge. you have to read the opinion. and see the sections of the statute they are dealing with. trying to reconcile it. and then you can say this guy did a terrible job. that's an intelligent criticism. my opinions don't always come out the same way. it's not always conservative. respects i should be the pinup of the criminal defense bar. a number of my opinions have
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defended the rights of criminal defendants. a lawhough i am socially and order conservatives. to say what it ought to be able to say what the constitution demands. brian: we had a group of teachers here i asked them what they would ask you. they want to know what you would advise teachers to teach the constitution. i ama: first of all, appalled that americans get out of high school and college and even getting out of law school without ever having read the federalist papers. if you want to have the proper
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we that and indeed a you should have the constitution is to realize how brilliant were the men who put that piece of work together. that shines through in the federalist papers. i'm always astounded that i can ask a group of law students how many of you have read the federalist papers. 86% have. you should not be able to get high school without being exposed to the federalist papers . brian: is it really something you should read high school? scalia: yes, the whole thing. people read the famous numbers. only if you read the whole thing to realize what a breadth of knowledge these people had. they were not doing it by the seat-of-the-pants.
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they had experience in various systems of government in this country and abroad. from that experience they deduced what james madison the new science of government. no you never tried that before. people are to appreciate that. it had never happened before and will probably never happen again. that a of government will be devised by a seminar. you can't appreciate that unless you seep yourself in the times including reading the federalist papers. list: at the beginning you a whole bunch of people that you
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, we counted 23 of your former clerks. we had a former clerk of use here. i want to run this little thing. >> we had a very intense argument about some statutory interpretation case. he took me out and said you need to talk to my clerks now. were all very conservative. they had marked me as a liberal. i was interested in this was the coliseum. the lines were called in. i had to sit there and be beaten up by these conservatives. came and said i need to talk to you for a minute. i'm going to give you the job but you can tell my clerks. i had to go out and not fumble for the next two hours.
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i hear that six months later the clerks came in and said you need to hire your fourth clerk. and they were outraged that he would've hired somebody who was not of the party. scalia: if he says so. it did not make as much of an impression upon me is that upon him. i have had four times 26. that's a lot of clerks. brian: how often have you hired a clerk doesn't think like you do? scalia: infrequently but not never. i don't care what the policy preferences of the clerk are. in fact, other things being
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equal i would prefer clerk who has instincts that are the opposite of mine. i find it very hard to find are hardlerks who minded and not wishy-washy. who applies rules of law rather than speculating about what the best result would be. what i do and i don't my clerks doing it. when i have been able the find a , a flint minded liberal as in the law clerk you just saw they have been invaluable. they come at the problem from the opposite social perspective. they are a check upon what a judge joyce has to worry most
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instead of is applying the law he is really just applying his own wishes. that is bad judging. brian: when i read that line about every citizen being consumed, those of the words of frank easterbrook. his brother is gregg easterbrook . why is he your forward writer? scalia: we were colleagues on the faculty of the university of chicago in the 80's. he went on to be judge on the seventh circuit court of appeals . forward because there is one other name
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associated with the two ,rincipal theories in this book textualism and original as him, it is frank easterbrook. if i had to pick somebody to replace me on the supreme court it would be frank. we tend to see things the same. we are both applying the same principles of textualism and original as him. lamb: poodle scientists and editorial writers and synnex often depict judges as doing nothing more than writing their preferences into the law. scalia: that is certainly true. to understand always to forgive all. sell newspapers.
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theubt that they read opinion carefully. they have a gut reaction that this is a terrible result. sometimes it's a terrible results because that is the terrible statute congress road. a judge or to be garbage in, garbage out. dealing with an inane statute you are duty bound to produce an inane results. a lot of those editorials and just knee-jerk opposition to the consequence and not a dispassionate intelligent process ofof the interpretation that the judge went through. lamb: one of prior justices justice scalia.
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if a writer did what i just described thed case consisted of this section and it had to be reconciled with this other section he would lose his readership in no time. surprisedt at all that the newspapers tend to evaluate a case simply on the basis of whether the results seems like a good result. that is all the readers interested in. lamb: we prepared for this interview. your people at the publishing house told us they're all kinds of rules of things we couldn't ask you. justice scalia: you can ask anything you want. i just want answered and wanted.
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brian lamb: i know you don't want to talk about bush versus gore again. let me show you a clip from an interview with piers morgan. you answered everything were not supposed to ask you. piers morgan: what has been the most contentious case? justice scalia: the one that created the most waves of disagreement was bush versus gore. up all the time. my usual response is get over it. lamb: u.n. on to explain further.
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justice scalia: past cases, you can ask me about that. brian lamb: judges have tenure for life. why does everybody worry about things they say in public and not having cameras in the room and all that stuff? i am sensitive judges what toe express their views on the law in their opinions. everything that was said about the opinion in bush versus gore was set forth in the opinion that i joined. beyond that i'm just either repeating myself or adding things that really were not the
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basis for my decision. i don't like drawing the courts into the political maelstrom. by having their opinions repeatedly poured over especially the controversial .nes i don't think it is the role of the judge to give an account of himself to the people. it is the tradition of common-law judges not to reply to press criticism. we get clobbered by the press all the time. i can't tell you how many wonderful letters have written to the washington post. satisfaction and then they are ripped up and thrown away.
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you don't send them. that is the tradition of the common-law judge. it is because what the judge has to say is in the opinion. lamb: jonas kubik talked about you. biskupic: at the end of there were nine minutes of the court complaining about how the court had gone wrong. independent counsel statute, romer versus evans. he does have wonder just about every term. they are always vintage and it was interesting. the idea that he would go outside the record and complain
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obama's order about undocumented immigrants. he did get a lot of very negative press on that. the couple of people even suggested he should step down. i think he will still be doing what he does. justice scalia: she's right about that. there are innumerable cases in newspaperite articles. there is no rule that you can't cite any public materials and opinions. only cite the record? matter is settual for decision of course you can only use the matters set forth in the record. that is not the purpose for which i use it at all. we use the public records all the time. it had nothing to do with the factual determination.
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opinionhould read the to see what my thinking was. brian lamb: were you surprised about the reaction after mentioning president obama? the arizona decision. each adr on said you were to resign. justice scalia: who? brent lamm: he is a columnist for the washington post. justice scalia: i was surprised. i would've thought the purpose for which i used the president statement and did not criticize the president statement. i said it might be right. the only point i made from it was that the attorney general had argued before us that there was no reason the government
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enforcing immigration laws. sibley enforcement priorities. he didn't have enough money. to decide who goes first and whatnot. was that evende if that was true. in my view a sovereign state or thee able to supplement adequate enforcement with its own funds to the want to. and then i had to moreover it has since come to light that the problem is not just inadequacy of enforcement funds. unwillingness pressure good reasons of the government to enforce the law. for that purpose i cited the president statement. which seem to be perfectly fair. i did not see the president statement was wrong. i just say with the attorney
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general had told us. concerning enforcement priorities. since he is the public record shows. problem.ole read hemb: i'm going to was sentenced to have you explain it to the nonlawyers. the teachers will never forgive me. ists should object to being called a strict constructionists. whether they know it or not that is an irretrievably pejorative term. justice scalia: people tell me that pejorative is the proper term. lamb: strict
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constructionism as opposed to fair reading textualism is not a doctrine to be taken seriously. justice scalia: there's an old statute that made it a crime to lay hands on a priest. does that mean if you shake hands or pattern on the shoulder it's a crime? of course not. the word is used colloquially to mean violent attack upon a priest. amendment, if you are a strict constructionists you would say that the first amendment does not prohibit congress from censoring handwritten letters because it only protects freedom of speech and of the press. is neitheren letter
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speech nor a product of the press. that is not the understood meaning of the first amendment. it protects freedom of expression. those to adjust the most common ones. brian lamb: can you give us a layman's definition of textual list? scalia: a textual ist is someone who believes that the meaning of the statute is to be derived exclusively from the text enacted by congress and signed by the president or else passed over his veto. the text is the sole source that the judge or to be using in making his judgments. lamb: the last part of this book is 13 falsehoods exposed.
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the first one is the false notion that the spirit of the statute to prevail over its letter. are you exposing this is your idea or is this what is taught in law school? scalia: it is said in thatsupreme court opinions the letter of the law is contrary to its spirit and so forth. that is nonsense. the letter of the law is the letter of the law. that is what we are governed by. not some judicial determination of spirit. which could be anything. the statement comes up all the time that it is an empowerment and the text says this. that is contrary to the spirit of the law and we're going to go
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ahead and do whatever we like. that is not democratic self-government. if people can't have their representatives write a statute has to be applied as written. lamb: every time you make second.his is the 62n the false notion that words should be strictly construed. justice scalia: you want to construe it reasonably. you don't want to construe it sloppily. what were the ordinary reader of english interpreters this statement to me? obviously being used in a very technical sense.
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lamb: one of the justices often in the book is joseph's story. he was the youngest justice ever. he had seven children. you have had nine children. have 28 grandchildren. now you have 34 grandchildren. justice scalia: 33. if you give me enough time and will come up with all the names. joseph story back in
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the 19th century. why so much of him in the book? justice scalia: is one of the greats. he wrote the first commentary on the constitution of the united states. while he was a justice. he was a professor at harvard law school. a great intellectual. intellectualsding on the early court. lamb: he also published and taught school. and publish books. justice scalia. judges always been part of the intellectual life of this country. unlike in europe where judges are more like bureaucrats. system arecommon law part of the intellectual discourse. you have the court of appeals level, like henry friendly and learned hand.
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lamb: we had our cameras in front of you and justice breyer. scalia: you're going to see if the good guy one of the bad guy one. that is not true unless you believe that every statute ever written produces a sensible result. [laughter] the ideal role for the honest judge is garbage in, garbage out. you are supposed to interpret the statute's reasonably even if you don't agree with the result. it is not up to do you to decide what is garbage. youou bear that in mind eitherbe more careful to praise or criticize judges just because you like the outcome of the case. lamb: you have sent
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colorful things over the years. justice scalia: i do it in my opinion sometimes. to make the opinions more readable. .hich is a good thing especially dissenting opinions. no reason toly read dissenting opinion because they are on the losing side. if you are a lawyer you want to know what role you have to follow. when you write the dissenting opinion, is mainly for the law students. this center will be published in our system even when they disagree with it. they have to produce both sides of the case so they can be vibrant discussion of it in class. i like to make the dissent clear and readable and interesting. even funny sometimes. lamb: how much of an
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impact if you had on oral arguments? scalia: they are not what they used to be. on the courtcame very few questions were asked. onceued before the court and i got maybe two or three questions. all of them from byron white. , the whole process consists of responding to questions from the judges. better.the latter is i was the first one who started asking a lot of questions i guess. was probably my law school background. i law professor background. when others law professors came
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on the court they continued it, ruth bader ginsburg was a former law professor. stephen breyer is another one. lamb: here is an argument from 1999. you are asking the questions. is other voice you hear someone who is making a presentation before the court. roberts: unless it is itself a recipient of financial assistance is not covered by title ix. justice scalia: i don't see how the university get stuck here. as far as the universe is concerned pursuant to the rules it has denied a waiver in circumstances where denial would be perfect appropriate. as far as what the university has done the university has an discriminated all. john robert
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the only thing the next wave or bad is that this organization has granted other waivers in other contexts. some university? john roberts: the university is the entity that is operating activity. brian lamb: you recognize that voice? he was before the courts on the i-30 times. scalia: was it roberts? brian lamb: yes. brian lamb: you said you argued before the court once. was paul clement one of your clerks? he steps up in the health care case. he is a former solicitor general and former solicitors general supreme courte bar. the regularly appearing supreme court bar. brian lamb: after the health care case and chief justice
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roberts position on it, a lot was written about that. personal antagonism between members of the court. talk a little more about your perception. was there a leak that came out of the court? scalia: i wouldn't talk about it. i responded to a very precise question whether there was slamming doors and whatnot and that was absolute nonsense. brian lamb: who are their personal feelings behind the scenes? has there ever been in your past when you make some strong personal fallout from that? justice scalia: i have
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criticized the opinions of some of my colleagues. we have remained friends. just as they have criticized my opinions. you can have the image without hating the other person. that's it. done. lamb: why do you sometimes such an intense dealing with the subject, you look like you are mad. justice scalia: should i look jolly?
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talk about a very serious heartfelt issue in which what used to be the law. is stuff in this book orthodox. it was the traditional approach to judging until about the middle of the 20th century. we are to bring that back. it is a very significant issue of how judges go about giving effect to democratically enacted legislation. and to the democratically ratified constitution. it is a terribly important matter. you want me to smile and look jolly when i talk about that? i think i should look impassioned. i do care passionately about this. i am not angry. what makes me mad?
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if you read the press gets under your skin. i don't much read it. you get used to it. you use to fact he can't respond. that's what all these leaks that happens. we'll respond. don't respond. so they can say whatever they like. brian lamb: living constitutionalists read a prohibition of the death penalty four sprinkleran justices use that all flex ability is at an end. it would be of no use debating the merits of the death penalty. just as there is no use debating the merits of providing abortion. you stepped on two big issues there. scalia: the other big theoretical issue raised by the
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book. one is textualism. the other is a regionalism. originalism. that means you given the meaning that it had when it was ratified. unusuals cruel and punishment in the eighth amendment should begin the meaning that they were understood to have by the american people who ratified that amendment. it was clear that when that any for men it was ratified the consideredty was not to be prohibited. the death penalty existed in all the states and was the only penalty for a felony. to say that somehow the american people have prohibited the states by ratifying the
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constitution they have prohibited the states from applying the death penalty, i don't know where this comes from. people never voted for any such thing. that is what original is in its. ism is. there are other phenomena that didn't exist at the time. what thewe can't say original meaning was. when the electric chair comes in you have to decide if that is cruel and unusual punishment. against whichnt you compare this later phenomena at the timexteant the eighth and memos ratified. if the electric chair is less cruel than hanging which it certainly is it is not prohibited by the eighth amendment. death by injection
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which is even less cruel than the electric chair. certainly less cruel than hanging. lamb: another falsehood exposed. who wrote that headline? justice scalia: bryan garner the co-author. he is not a law professor. probably the foremost of law.apher he is the editor of black's law dictionary. the editor of books on legal usage. the highly respected scholar. has his own company called law prose. lectures around the country on writing briefs.
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lamb: he's listed here as a research professor. justice scalia: he is an adjunct professor. brian lamb: the false notion that judges and law professors not being historians are unqualified to do the historical .esearch justice scalia: some people say that. what are you talking about, scalia, you're going to figure out what was true when the bill of rights was ratified? yes i can do that just like i can decide patent cases during what do i know about patents? i know nothing. i listened to each side. they bring their experts. that is what the adversarial system is all about. they bring forward the best evidence they can. , inn decide patent case
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fact it is even easier to decide historical evidence that a patent case. judges do this all the time. it is the lawyers who have to be expert or who have to know where to point the judges for expert advice. cannot doe why judges history. they have to do history. all the time. lamb: you write that there is no historical support for any provision supporting a right to abortion or to sodomy or to assisted suicide. these acts were criminal in all states for two centuries. scalia: for is a sillyst question.
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it doesn't mean you have to bribe them. just as it doesn't mean you have to have the death penalty. these are political questions for the american people to decide. that is what democracy is. abortion should not be prohibited? fine, persuade your fellow citizens. pass a law. you think the opposite, persuade and the other way. don't tell me that the constitution has taken that issue out of democratic choice. it simply hasn't. it is the same for those other issues. abortion, sodomy, whatever. persuade your fellow citizens to go either way. brian lamb: another historical figure you quote a lot is jeremy .entham who is he? justice scalia: and he was philosopher who had a lot to say that law.
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he was a very smart fellow. he's been dead a number of years. but so was aristotle. [laughter] also was highly respected the framers of our constitution. influential on legal theory ever since. brian lamb: don't ever you disagreeing about citing foreign ?aw you mention a lot of british experts. scalia: i don't consider english law foreign law. the extent that it informs the meaning of the constitution, for example what does due process mean? it could mean anything.
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it could mean something different to a 12th century frenchman as opposed to a 16th century hawaiian. constitutionour was the meaning given by 18th century englishman. so english law is very relevant to our constitution. french law is not. italian law is not. i'm an american of italian descent. born of an italian immigrant family. lamb: have you both write this? who wrote what? scalia: if my life depended on telling you, some i recall our mind, but most of
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become so melded that, he worked on mine and i worked on his. the end product is a collaboration. let's do the up these canons of interpretation. you work on these, i will work on those. take on the ones i was assigned. he sent me his. we went back and forth. three and a half years. lamb: you are a notorious words nitpicker. justice scalia: he is at least as bad as i am. probably worse. we never came to blows. he knows stuff about words that even understand why you would know such empty information. brian, you always refer
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k tape. isc duct tape. and he said it was originally devised for the military and was an olive drab color and it was called duck tape. now who would want to have that kind of information? only a word not. he got me. lamb: you wrote that the modern congress sales close to the wind all the time. today often all but acknowledge their questionable constitutionality with provisions for accelerated judicial review. for standing on the part members of congress. even for fallback dispositions should the primary dispositions be held unconstitutional.
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justice scalia: that followed upon our statements that , youtionally congress assume the constitutionality of any statute congress passed. because it is assumed that exceed itsuld not authority. if there is even doubt you give the congress the benefit of the doubt. it is moreears questionable whether congress is even thinking about the constitutionality. that passage recites the fact that this is evident from the content of their statutes. who would've thought in the 19th century that congress would pass a statute that says in the event the stuff use is unconstitutional we have this
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other provision instead. which is what congress has done. it makes you wonder, are they sure the stuff is constitutional? have they really thought about it? alsonk that comment was made in response to the charge of judicial activism. which is a word that doesn't mean anything. it just means the person who uses it doesn't agree with the decision. what is judicial activism? it is not doing actively would judges ought to do. if a statute ought to be held unconstitutional, it is not activism to call it unconstitutional. lamb: artificial person can. on.
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that is another one that has created a storm. scalia: person is not used in the first amendment. lamb: do you worry at all that there's too much money in politics? justice scalia: i really don't. i think we spend less on our presidential campaigns each year than the country spends on cosmetics. brian lamb: what about the amount of influence? scalia: if you believe that you should go back to monarchy. the people are such sheep that are just swallow whatever they
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see on television? the premise of democracy is that people are intelligent and can discern the truth from the falls. se. at least when you know who was speaking. you can speak anonymously. and identify the people. we don't knowt who speaking right now. justice scalia: you know the organization. brian lamb: not necessarily. some of the way this money is being raised we may never know. you may not know who contributes who contributes to the organization but you know who the organization is. brian lamb: so that's all you need to know? justice scalia: you can find out who was hiding behind what.
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that's not hard. the premise of freedom of speech is more speech the better. as for citizens united goes, that case was not novel. it reversed an opinion eight years earlier than to change the law. from what the law had been in buckley versus valeo. lamb: we're almost out of time. i need to get the latest thinking on this. television in the court. has passeds resolutions. while you so against the? justice scalia: i was four and when i first joined the court. i switched and i remain on that side of it. believe as the
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proponents of television in the court assert, that the purpose televising our hearings would be to educate the american people. that is not what it would do. if i really thought it would educate the people i would be for it. down and people sat watched our proceedings gavel-to-gavel they would never what you have to be a lawyer to be on the supreme court? sayconstitution doesn't that. but if you know what our real business is and we are not usually contemplating our naples on should there be a right to abortion,at, homosexuality, that is not usually what we are doing. we're usually doing with the internal revenue code, your reset, patent law, all stuff that only a lawyer could
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understand and perhaps get interested in. if the american people saw all of that they would be educated. they would not see all of that. your outfit would carry it all. but most of the american people second takeouts from our argument and they would not be characteristic of what we do. they would be uncharacteristically. see isamb: now what we an article in the newspaper that is out of context. justice scalia: that is fine. say it'sad that they an article in the newspaper. and the guided very like a misinformed. it's different when you see it live. excerpt told out of the argument but you see it live. it will miss educate the american people. brian lamb: will we get the audio? audio is nota: the of interest to the 15 second
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take of people. brian lamb: the first amendment doesn't say takeouts are not good. scalia: the first amendment has nothing to do with whether we have to televise our proceedings. you're saying the first amendment requires that? i am indeed an advocate of the first amended. and it doesn't require us to televise our proceedings. got a logical brian. brian lamb: of course. you like this job and you ever intend to retire? just a shkreli: i'm sure i will retire someday. it's only a lifetime job is all. brian lamb: what will be the trigger for you? justice scalia: i didn't think i would say this long. i thought i would retire soon as i could. at full pension.
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i have been working for nothing for over 10 years. . could've retired i would have been paid much if i were retired. i could retired when i was 65. i am probably too stupid to have this job at this point. i don't know what else i would do. when will i retire? i will certainly retire at the perceive that i am not as good as i used to be and i have lost a step. product of myhe judicial career to be demeaned by justice scalia: i will know when i have lost it. and i have many friends and enemies who will certainly tell me. susan swain: the name of the
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book is the interpretation of legal text by antonin scalia and brian eckhart. thank you very much. ♪ announcer: for a copy of this one-877-672-7726. to give us your comments about this program, called two and eight.org. da.org. podcasts are also available.
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a brilliant legal -- mind with decisive wit and colorful opinions. he influenced a generation of justice, lawyers, and students and shape the legal landscape. he will not be remembered as one of the most consequential judges and thinkers to serve on the supreme court. justice scalia dedicated his life to the cornerstone of our democracy, the rule of law. tonight, we honor his extraordinary service to our one of theremember
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towering legal figures of our time. born in scalia was trenton, new jersey to an italian immigrant family. after graduating from georgetown university and harvard law school, he worked in a law firm and top law before entering a life of public service. he rose from assistant attorney general for the office of legal to the judge on the d.c. circuit court court to associate justice of the supreme court. , he was theholic proud father of nine children and grandfather too many loving grandchildren. justice scalia was an avid hunter and an opera letter. were proud to welcome him to the white house including in 2012 for a state dinner with prime minister david cameron.
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we join his fellow justices in mourning this remarkable man. toiously today is a time remember justice scalia possibly to see. plan to fulfill my constitutional responsibility to not make a successor in due time . there will be plenty of time for me to do so and for the senate to fill its responsibility to give that person a fair hearing in a timely vote. are responsibilities i take seriously as should everyone. they are bigger than any one party. they are about our democracy. they are about the institution that which justice scalia dedicated his professional life continues to function as the beacon of justice that our founders envisioned. , we want to think about his family. michelle and i joined the nation in sending our deepest
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condolences to justice scalia's wife and flame -- family. we thank them for sharing justice scalia with our country. god bless them all and god bless the united states of america. >> a look at the life of justice scalia and how that might impact the court's business in the coming months with supreme court correspondent jeff braden. matthew wrote jansky with the wilson center talks the temporary cease-fire in syria that was reached by the u.s. and russia. we will take your calls and look for your comments on facebook and twitter. washington journal live every day at 7:00 a.m.. this presidents' day, american
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history tv on c-span3 will speak -- feature programs on the vietnam hearings. the hearings include testimony from witnesses who opposed or defended president johnson's actions in vietnam. we will hear from former ambassador to the soviet union george cannon in abc news special report from february 1966. then retired general james gavin , followed by questions from senators. learned thate have air and naval power alone could not win a war and ground forces cannot when one either. it was incredible to me that we have forgotten this bitter lesson so soon, that we were on the verge of making that same tragic error. as far as you know, are the in indochina any different today than they were at that time? >> you will hear from special consultant to president johnson
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and secretary of state -- the complete schedule, go to c-span.org. supreme court justice antonin scalia has died in a ranch in west texas. in 2009, justice scalia was interviewed by c-span. he spoke about the job of supreme court and the process they use to reach a decision and his thoughts on the quality of attorneys who argued before the supreme court. this is just over 30 minutes. a. this is just over 30 minutes. susan swain: associate justice antonin scalia, would you discuss what the role and responsibility of a supreme court justice is?
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justice scalia: to try to come out the right way on cases that the court has agreed to hear. and also, secondly -- and this is the only respect in which the job differs from the job of a court of appeals judge, to decide on which cases the court should agree to hear. there are essentially two functions. the latter is prior, decide what to put on our docket, and speculate what is on the docket, try to get it right. susan swain: what is the supreme court saying in society today, and has it changed over your tenure? justice scalia: i do not think it has changed. its proper role is in democracy to give a fair and honest interpretation to the meaning of dispositions that the people have adopted, either congress in
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its statutes or the people when they ratify the constitution. simple as that, no more, no less. i don't think we are a leader of social causes. we are not pushing the society ahead, we are supposed to be interpreting the law for the people they have made. susan swain: what do you like best about the job? justice scalia: what do i like best? i like figuring out the right answer to legal questions, believe it or not. and not everybody does. i think some people who lust to become an appellate judge, they find it quite unsatisfying when they get there. you have to have a rather warped mind to want to spend your life figuring out the answer to legal questions. it is a very isolated job. the only time you see people from the outside is when you are listening to arguments from counsel.
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other than that, it is very disembodied, intellectual work, probably most closely resembles the work of a law professor, which is what i was before i was here, so i am no more unhappy than i was before. susan swain: after two decades of doing it, is there any aspect of the job, if you had a choice you would prefer to pass on to somebody else? justice scalia: i think undoubtedly, in my mind, the most -- what should i say? onerous and for the most part uninteresting part of the job is rolling on the positions. they have increased and normally -- in normal sleep. when i first arrived, if i am correct it was something about 5000 a year.
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now, it is approaching every one 10,000. of them we have to consider, if not by reading the actual petitions, we rarely do that, by reading the summaries of the petitions law clerks have prepared. 10,000 of those a year, that is not a lot of fun. susan swain: with the increasing number of petitions, why always 80 to 100 cases a year? justice scalia: we have been averaging actually 75. that number is not out of line with what other supreme court's jurisdictions do. i think we could do more than 75. i don't think we could do would we were doing when i first came on the court 150. , why? your guess is as good as mine. i certainly have not changed my
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standards for deciding what cases we should take, and i don't think my colleagues have. if i had to guess, i would say that what has happened is that in my early years on the court, 20 some odd years ago, it was a lot of major new legislation that had recently been enacted, new bankruptcy code, there is not that much major legislation in recent years. and new legislation is the principal generator of successful petitions, because it takes 10 years or so to get all of the ambiguities in the statute resolved. that is our main job. we don't take cases because they were decided wrong. very rarely would we take a case for that reason. a death case, we would.
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we usually take cases because the analysis of the courts below reflect disagreement on the meaning of federal law. and you can't have two different federal laws in different parts of the country, so we will take one or both of those cases. as i say, those disagreements have been on significant questions, which have been rare in recent years. we do not always sit down at the end of the term and say, how many cases do you want to take? 120? that is not what happens. they trickle in week by week and we vote on those we think are worthy of our consideration. the last few years, at the end of the term, they have been adding up to about 75 or so. susan swain: when you make those decisions, are you aware at the time which ones will be the blockbuster cases? justice scalia: usually. you can usually tell which ones pertain to a major piece of
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legislation, a legislation that is a major impact on society, sure. susan swain: does it affect your decision process? justice scalia: not mine. you may have to talk to other people, but i don't think it does. i put in as much blood, sweat, and tears on the big ones as the little ones. if somebody asked me what is the hardest case you have ever decided while you have been on the bench? you would not want to know because it is a relatively insignificant case. but it was a hard case to figure out. there is no relationship whatever between how important it is and how hard it is. susan swain: can you tell me now that you have described it? justice scalia: you don't want to know. susan swain: i would like to ask you about the clerks role in what you do. you have had many of them over the years. do you stay in touch with them?
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justice scalia: we have an annual clerks reunion. it is great to see them. it is one of the most enjoyable parts of the job. you work closely with four young people every year. there are new ones every year, him -- vim and vigor. and you work closely with them over the year and you become very close. and they go off. it is like acquiring four new nieces and nephews every year, none of whom will be a failure. they all go off to do significant things. it is fun to follow their careers. susan swain: what jobs -- how do you use them? justice scalia: i can say how i do it, but that isn't necessarily how the others do.
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i let them take the cases they want to work on. sort of like an nfl draft first , pick, second pick areas i figure they are less likely to do cases they are not interested in. so i let them take the cases. i usually discuss the case very briefly with a law clerk who has chosen it before oral argument. and after oral argument, i sit down with that clerk and the other three, who know something about the case but not as much as the clerk who really is responsible for it. and we kick it around for as long as it takes. it could take an hour or two. and then, if i am assigned to the opinion or the dissent, that clerk will normally do a first draft of it all. what is supposed to be in it, he will write it out and i will put it up on my screen and take it
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apart and put it back together. so, i kid you not, i tell them at the reunions, i am indebted to my law clerks for a lot of the quality of the work that comes out of my chambers. i could not do as well without the assistance of brilliant young people. susan swain: in a week when the court is in session, how many hours you spend in the court? justice scalia: i have no idea. susan swain: 40 hours, 60 hours? justice scalia: one of the nice things or the non-nice things, you do not have to be here to be working. i could, and some judges on the court of appeals do only come into court when there is oral arguments. i could do this job from home. the main thing it would deprive me of is consultation with my law clerks. it would deprive them of my
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company too. so i like to come in. that has no relationship with how many hours i am putting in. i never counted the hours in the week, but i almost always worked weekends. not all weekend, every weekend, but some of the weekend every week. susan swain: is there ever really a break in the summertime? justice scalia: yeah, the summertime is great. we clean our plate before we leave at the end of june, so it is really a summer without guilt. the only work we have to do over the summer is it stay on top of certain petitions because there is a monster conference at the end of the summer to vote on all of the circuit petitions that have accumulated during the summer. you've got to stay on top of them. that is a manageable job. for the rest of it, we have continued to function the way
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all three branches of the federal government used to function. this town used to be deserted in july and august. there would be nobody here. now we all come back in september to get ready for the arguments in october. during the summer, you have time to do some of the reading you did not have time to do during the court term, and to sort of regenerate your batteries. susan swain: you mentioned that the court has retained some of the traditions the branches used to have. the court is also quite well-known for other traditions. a few that came to mind including the courtroom itself, dress.licitor's formal i wonder why they matter to the process. i wonder why they are retained
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in 2009. justice scalia: oh, i think traditions in a way define an institution. an institution is respected when it is venerable with tradition and certainly one of the , remarkable things about the court it has been here doing this job for 220 years. i think traditions remind, remind people of that fact. you know, i guess we could sit in a bus station and not wear robes but just business suits or even tank tops, but i don't think that creates the kind of image you want for the supreme court of your country. susan swain: on the road, looking at a little bit of history, your earliest successes -- chief justices here didn't wear them. justice scalia: did not wear robes?
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susan swain: according to the documents. it began around the 1800. justice scalia: john jay, over your shoulder, was the first chief justice, and that was before 1800. in that portrait he is wearing a , glorious robe, not just black but black and red, but what you told me is news to me. susan swain: i will go with john jay, but let's say it is 2009 and tank tops aside, what is the symbolism behind the robe? why is it important for members of the judiciary to continue to wear them in our society? justice scalia: i'm sure we could do our work without the robes, without this glorious building that you are deciding to have this conversation in. building, inke the part to the people who come here , is the significance, the importance of what goes on here.
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that is nothing new. always do notgs look like bus stations. and they shouldn't. susan swain: this is a symbol of the american judicial process internationally. when you come to work here, are you conscious of that when you drive up here after doing it for such a long time? being part of the american judicial process? justice scalia: i can't say it is in the middle of my mind. i am usually thinking about what ever case i will be working on that day. you get used to it. you get to take stuff for granted that maybe you shouldn't. i take for granted working in this glorious building i take , for granted wearing a robe when i go out on the bench. susan swain: when you have the opportunity and it is quiet around here, are the special -- are there special places in this building where you might reflect. justice scalia: not really. i

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