WEBVTT - Special Coverage: A Fireside Chat with Chief Justice John Roberts 0:00:02.520 --> 0:00:10.280 Bloomberg Audio Studios, podcasts, radio News. This is Bloomberg Law. 0:00:10.400 --> 0:00:12.920 Congress can have no say in making an office independent. 0:00:12.960 --> 0:00:16.639 I think all agencies need a degree of autonomy. It 0:00:16.720 --> 0:00:18.759 really tests whether the amendments to. 0:00:18.800 --> 0:00:22.400 The law have Keith interviews with prominent attorneys and Bloomberg 0:00:22.480 --> 0:00:23.200 legal experts. 0:00:23.239 --> 0:00:26.480 Joining me is Constitutional law professor David Super, Bloomberg News, 0:00:26.520 --> 0:00:28.800 Supreme Court reporter Greg Store. 0:00:28.680 --> 0:00:32.280 And analysis of important legal issues, cases and headlines. 0:00:32.360 --> 0:00:33.520 Apples of Waltgarden. 0:00:33.680 --> 0:00:35.360 They don't license their technology. 0:00:35.479 --> 0:00:37.960 That is a valid basis to dismiss the case. 0:00:38.240 --> 0:00:42.680 Bloomberg Law with June Grosso from Bloomberg Radio. 0:00:45.440 --> 0:00:48.120 Welcome to a special edition of the Bloomberg Law Show. 0:00:48.200 --> 0:00:51.600 I'm June Grosso. In a few minutes, Chief Justice John 0:00:51.680 --> 0:00:55.600 Roberts is going to participate in a fireside chat in Buffalo, 0:00:55.680 --> 0:00:58.760 New York. It's part of the anniversary events for the 0:00:58.880 --> 0:01:01.760 US District Court for the Western District of New York, 0:01:01.760 --> 0:01:05.160 which is celebrating its one hundred and twenty fifth anniversary. 0:01:05.760 --> 0:01:08.400 The Chief Justice was born in Buffalo and spent his 0:01:08.520 --> 0:01:11.920 early childhood years there, and he's going to be talking 0:01:12.000 --> 0:01:15.960 with Judge Joseph Fallardo, a federal judge in the Western 0:01:16.000 --> 0:01:19.120 District who's known the Chief for more than forty years. 0:01:19.319 --> 0:01:22.000 We'll bring that conversation to you live as soon as 0:01:22.040 --> 0:01:25.880 it begins. My guest is constitutional law expert Harold Krant, 0:01:26.200 --> 0:01:29.840 a professor at the Chicago Kent College of Law. How 0:01:30.000 --> 0:01:31.840 the Chief has done a lot of these q and 0:01:31.880 --> 0:01:36.400 as over the years, often at law schools or judiciary conferences, 0:01:36.840 --> 0:01:39.960 but I don't recall one that was live. Is it 0:01:40.000 --> 0:01:43.200 sort of outside the chief's comfort zone. 0:01:43.760 --> 0:01:47.760 I think he's trying to take an opportunity to ensure 0:01:47.880 --> 0:01:52.200 that the Court is viewed as an independent player and 0:01:52.280 --> 0:01:55.600 is viewed with some respect. Obviously, there's no secret that 0:01:55.640 --> 0:01:57.320 the Court has taken a hit in terms of its 0:01:57.360 --> 0:02:01.240 reputation over the last five to ten years, and particularly 0:02:01.240 --> 0:02:06.680 now there's tumultuous times because of the confrontation potential confrontation 0:02:06.760 --> 0:02:10.880 with the Trump administration. I think he's taking every opportunity 0:02:11.200 --> 0:02:15.359 to talk and be seen as an independent, constructive force 0:02:15.680 --> 0:02:16.919 in the American system. 0:02:17.520 --> 0:02:19.840 So this comes at a time, as you sort of 0:02:19.880 --> 0:02:23.400 mentioned there, when the judiciary is under attack. Last week, 0:02:23.560 --> 0:02:27.880 Justice Katanji Brown Jackson denounced what she called relentless attacks 0:02:27.919 --> 0:02:32.639 on the federal judiciary, saying efforts to intimidate judges are 0:02:32.680 --> 0:02:36.000 threatening the constitution and the rule of law. And all 0:02:36.080 --> 0:02:39.920 through this, the Chief has issued just one statement pushing 0:02:39.960 --> 0:02:43.560 back against President Trump's call to impeach a federal judge 0:02:43.560 --> 0:02:48.120 that he called a radical left lunatic. It was a 0:02:48.200 --> 0:02:51.880 rare public signal from the Chief. Should we expect something 0:02:52.120 --> 0:02:53.560 more in that vein tonight. 0:02:55.400 --> 0:02:57.400 I don't think it's going to be the entire focus 0:02:57.440 --> 0:03:00.360 of the talk, but I absolutely expect that the Chief 0:03:00.360 --> 0:03:05.320 to take this opportunity to try to remind the listeners 0:03:05.639 --> 0:03:10.400 and viewers of how important judicial independence is, and I 0:03:10.440 --> 0:03:12.880 think it is ever more important. 0:03:13.600 --> 0:03:17.600 And I wonder if you'll address the threats against judges 0:03:17.880 --> 0:03:20.520 that are on the rise, judges particularly who have ruled 0:03:20.520 --> 0:03:24.280 against the Trump administration and their families. For instance, there 0:03:24.280 --> 0:03:27.760 were more than six hundred calls and emails that flooded 0:03:28.160 --> 0:03:32.280 Rhode Island Judge John McConnell's courthouse, including death threats and 0:03:32.400 --> 0:03:36.640 menacing messages taunting his family after he ruled against Trump 0:03:36.720 --> 0:03:40.240 on the freeze on federal grants. That's according to Reuter's 0:03:40.280 --> 0:03:43.840 and the Chief has mentioned this before in his end 0:03:43.880 --> 0:03:44.880 of year statements. 0:03:46.520 --> 0:03:48.920 I wouldn't be surprised. I mean, what we've seen here 0:03:49.040 --> 0:03:53.400 is largely unprecedented, not completely, but largely unprecedent in our history. 0:03:53.640 --> 0:03:56.960 And the idea that you intimidate judges, or even the 0:03:56.960 --> 0:04:01.080 idea of impeaching judges with whom you disagree, undermines the whole, 0:04:01.240 --> 0:04:04.640 very fabric of what we hope to be an independent judiciary. 0:04:05.000 --> 0:04:08.000 So my guess is that the Chief Justices again will 0:04:08.000 --> 0:04:11.600 not focus entirely on these attacks, but that somehow he 0:04:11.680 --> 0:04:13.720 will weave them into the conversation. 0:04:14.080 --> 0:04:18.039 And I'm assuming there won't be any aggressive questioning by 0:04:18.080 --> 0:04:20.920 his friend of forty years. Maybe the questions are even 0:04:20.960 --> 0:04:22.000 discussed beforehand. 0:04:23.240 --> 0:04:24.640 That would be my guess as well. 0:04:26.640 --> 0:04:30.760 The Trump administration has filed an unprecedented number of emergency 0:04:30.800 --> 0:04:34.880 requests with the Supreme Court twelve emergency requests in its 0:04:34.920 --> 0:04:37.240 first one hundred and one days, and that's more than 0:04:37.760 --> 0:04:41.080 during the entirety of the George W. Bush and Obama 0:04:41.120 --> 0:04:46.880 administrations combined, and even before this, several justices have complained 0:04:46.880 --> 0:04:51.480 in the past about the impact of the Court's growing 0:04:51.520 --> 0:04:55.960 emergency or shadow docket and the cases they're deciding without 0:04:56.040 --> 0:04:59.920 briefing and argument, So that seems to be a pro 0:05:00.040 --> 0:05:01.560 problem that's percolating. 0:05:02.640 --> 0:05:05.440 Yeah, the trend is clear, and it does put a 0:05:05.480 --> 0:05:10.320 monkey ranch into the orderly system of arguments, deliberations and 0:05:10.360 --> 0:05:14.400 then written opinions. To the Court's credit, originally, in the 0:05:14.440 --> 0:05:16.800 last couple of years, it decided these so called shadow 0:05:16.800 --> 0:05:20.880 docket cases without any kind of written decisions, sometimes just 0:05:20.920 --> 0:05:24.280 in order. And now at least it's trying to give 0:05:24.360 --> 0:05:29.920 some explanation or rationale for why deciding what it, you know, 0:05:30.279 --> 0:05:32.960 whatever it does. And the difficulty in the shadow docket 0:05:33.240 --> 0:05:36.520 is not just the lack of argument or the lack 0:05:36.600 --> 0:05:40.160 of opinions, is that the court is rushed. It's got 0:05:40.200 --> 0:05:43.279 all of its normal work to do, and in these 0:05:43.320 --> 0:05:47.640 preliminary postures of these cases, lots of important issues are 0:05:47.680 --> 0:05:51.800 decided and it's not always clear about the court's reasoning 0:05:52.080 --> 0:05:55.240 and what should happen next. So this shadow docket is 0:05:55.320 --> 0:06:01.719 creating a kind of confusion, and Theydministration is pressuring the 0:06:01.800 --> 0:06:04.880 Court with all of its requests, and I think they're 0:06:04.880 --> 0:06:08.360 going to continue. I foresee that this may go right 0:06:08.400 --> 0:06:11.080 through the summer and require the Court to act even 0:06:11.080 --> 0:06:13.440 when it's normally on recess. 0:06:13.000 --> 0:06:18.320 And perhaps it will extend the length of the court session, 0:06:18.400 --> 0:06:21.400 because the court usually ends by the end of June. 0:06:21.520 --> 0:06:25.800 Last year it ended July first, But now they've scheduled 0:06:25.960 --> 0:06:30.480 an argument session for the middle of May on Trump's 0:06:30.520 --> 0:06:35.479 birthright citizenship executive order. So I mean it might even 0:06:35.600 --> 0:06:38.559 cause the normal docket to get slowed down. 0:06:40.240 --> 0:06:43.560 Absolutely, and I foresee other case. And we're in an 0:06:43.640 --> 0:06:46.200 unprecedented time. I think there's about two hundred and twenty 0:06:46.240 --> 0:06:51.000 cases now focused against the Trump administration pending, and obviously 0:06:51.080 --> 0:06:53.520 in any case, there could be a nationwide injunction. And 0:06:53.560 --> 0:06:57.600 if there's a nationwide injunction, that usually will spark this 0:06:57.720 --> 0:07:02.599 effort by the Trump Department of Justice to seek an 0:07:02.640 --> 0:07:07.600 emergency stay from the nationwide injunction. And that's the dynamic 0:07:07.680 --> 0:07:11.840 that seeing right now. Congress is considering whether to pare 0:07:11.920 --> 0:07:16.080 down the power of courts to issue nationwide injunctions. There 0:07:16.080 --> 0:07:19.800 are excellent arguments on both sides of that issue, but 0:07:19.840 --> 0:07:22.240 that really is the reality now because every time a 0:07:22.320 --> 0:07:26.960 nationwide injunction is issued that will ben against the Trump administration, 0:07:27.480 --> 0:07:31.400 it will force the administration's hands and most of the 0:07:31.400 --> 0:07:33.679 time that they're going to come to the Supreme Court 0:07:33.720 --> 0:07:36.400 to ask for relief. So far, it's a mixed record 0:07:36.600 --> 0:07:39.600 in the Supreme Court during these first hundred days, and 0:07:39.680 --> 0:07:42.040 I think that that will probably continue, and my guess 0:07:42.080 --> 0:07:43.320 is we'll continue through the summer. 0:07:44.840 --> 0:07:48.040 We are waiting to hear from Chief Justice John Roberts 0:07:48.040 --> 0:07:51.120 in a q and a session in Buffalo, New York 0:07:51.160 --> 0:07:54.720 called a fireside chat. He's going to be talking with 0:07:55.120 --> 0:07:58.520 federal Judge Joseph Volardo, who's a federal judge in the 0:07:58.520 --> 0:08:01.560 Western District, which is selling its one hundred and twenty 0:08:01.560 --> 0:08:05.440 fifth anniversary. I've been talking to Harold Krantz, professor at 0:08:05.440 --> 0:08:09.720 the Chicago Kent College of Law. How an opinion yesterday 0:08:09.720 --> 0:08:13.760 not an opinion in order yesterday sort of veered from 0:08:13.840 --> 0:08:18.680 what you were describing before because there was absolutely no explanation. 0:08:19.200 --> 0:08:23.640 It was in order allowing the Trump administration to start 0:08:23.680 --> 0:08:28.760 discharging transgender service members, and there were three descents, but 0:08:29.480 --> 0:08:33.360 no written explanation from either the conservative justices in the 0:08:33.360 --> 0:08:37.200 majority or the three dissenting members on a question that 0:08:37.280 --> 0:08:40.760 I think a lot of people would be wondering why 0:08:41.520 --> 0:08:46.200 the Court lifted an injunction, and in doing so, the 0:08:46.240 --> 0:08:50.440 status quo will be disturbed because the transgender members of 0:08:50.440 --> 0:08:53.600 the military will now be starting to be discharged. 0:08:55.000 --> 0:08:58.239 Yeah, And I think the from a legal perspective, everybody 0:08:58.320 --> 0:09:02.920 is left wondering what has motivated the majority's decision, because 0:09:03.160 --> 0:09:06.800 there are two principal components of this injunctive relief. One 0:09:06.840 --> 0:09:09.280 is likelihood of success on the merits or the other 0:09:09.559 --> 0:09:13.280 is likelihood of irreparable injury. The court may view a 0:09:13.400 --> 0:09:17.320 discharge as being not rising to a level of irreparable 0:09:17.360 --> 0:09:21.760 injury because ultimately the service members can be reinstated and 0:09:21.800 --> 0:09:24.839 they can receive back pay. That's one possibility. It may 0:09:24.840 --> 0:09:28.040 not be the reason. Otherwise, they may decide that it's 0:09:28.080 --> 0:09:30.760 a strong the government has a strong case on the merits, 0:09:31.200 --> 0:09:34.800 namely that the equal protection claim that's been raised by 0:09:34.840 --> 0:09:39.920 these servicemen service individuals, they may find to be very weak, 0:09:40.040 --> 0:09:44.360 even though to many observers it's quite at least strong, 0:09:44.720 --> 0:09:48.160 even if it's not victorious. So people are left shaking 0:09:48.200 --> 0:09:52.079 their heads as to what motivated the court's decision. And 0:09:52.320 --> 0:09:56.719 only in the future will I think this may be 0:09:56.800 --> 0:09:59.600 in a different case, will the court's reasoning become clear. 0:10:00.200 --> 0:10:03.560 And also I was really surprised that there wasn't one 0:10:03.600 --> 0:10:07.640 dissenting opinion from the three liberal justices who did dissent, 0:10:07.720 --> 0:10:10.120 but there was no opinion. I thought there might be 0:10:10.200 --> 0:10:15.480 some kind of sort of outrage type opinion saying that, 0:10:15.600 --> 0:10:17.559 you know, this isn't the way we should go. 0:10:18.679 --> 0:10:20.800 Yeah, And just as Katanji Brown Jackson is the one 0:10:20.800 --> 0:10:24.480 that's been the most articulate on the issue of how 0:10:24.559 --> 0:10:26.800 this is not the way that the Court should decide 0:10:26.800 --> 0:10:31.360 important questions with real world consequences, and maybe she just 0:10:31.400 --> 0:10:35.120 didn't want to repeat herself, or maybe she wanted to 0:10:35.200 --> 0:10:38.959 save the ammunition for another day. And obviously many people 0:10:38.960 --> 0:10:43.720 have looked at this birthright citizenship issue that's being heard 0:10:43.880 --> 0:10:46.560 on May fifteenth as really one of the most sort 0:10:46.600 --> 0:10:50.800 of bellcow of all the executive orders, and so maybe 0:10:50.800 --> 0:10:54.480 she wants to save her rhetoric for that case, though 0:10:54.800 --> 0:10:56.520 I tend to think she's going to be the majority 0:10:56.559 --> 0:10:58.720 of that case. But maybe I'm getting ahead of myself. 0:10:58.880 --> 0:11:01.959 Well, because that case. I was also surprised that they 0:11:02.360 --> 0:11:06.640 scheduled oral argument, because that's a case where every judge, 0:11:06.720 --> 0:11:09.200 I think four out of four judges who ruled on 0:11:09.280 --> 0:11:13.160 it below Federal Court judges found that it was, you know, 0:11:13.200 --> 0:11:17.959 an unconstitutional executive order. So why is the Supreme Court 0:11:18.000 --> 0:11:19.640 taking that particular case. 0:11:20.920 --> 0:11:24.719 They are bending backwards to some extent to try to 0:11:24.720 --> 0:11:27.800 give the Trump administration the benefit of the doubt, to 0:11:27.840 --> 0:11:30.440 give them a chance to tell their side of the story. 0:11:30.480 --> 0:11:33.079 They know how important this is to the Trump administration, 0:11:33.120 --> 0:11:36.120 because it was, at least in some people's minds, the 0:11:36.160 --> 0:11:40.400 signature the executive order. Of all the amazing executive orders 0:11:40.400 --> 0:11:44.680 that we've seen, that's the only thing I can think of, 0:11:44.760 --> 0:11:47.120 because you're right, there is no there's no need. There's 0:11:47.120 --> 0:11:50.080 also put in the circuits, there is no real reason 0:11:50.520 --> 0:11:54.760 to decide the case other than a respect for the administration. 0:11:54.840 --> 0:11:58.200 And I think that is something that is consistent with 0:11:58.440 --> 0:12:02.240 Chief Justicebert's sort of view is he wants to make 0:12:02.280 --> 0:12:05.320 sure that the administration gets every fair chance, but he 0:12:05.360 --> 0:12:09.160 also wants mutual respect. He wants to get respect back 0:12:09.520 --> 0:12:12.200 from the Trump administration, and maybe this is part of 0:12:12.200 --> 0:12:12.880 his strategy. 0:12:14.240 --> 0:12:16.720 I'm hanging over this, and I don't think this will 0:12:16.760 --> 0:12:20.120 be a question that will be asked. But the fact 0:12:20.160 --> 0:12:24.240 that last Sunday on Meet the Press, I believe it 0:12:24.400 --> 0:12:28.160 was the President of the United States said he wasn't sure, 0:12:28.240 --> 0:12:31.679 he didn't know if he had to uphold the Constitution 0:12:31.840 --> 0:12:35.319 of the United States, and in his last term he 0:12:35.320 --> 0:12:38.240 would talk about his Article two powers. So that seemed 0:12:38.280 --> 0:12:42.600 like a really strange statement to make, and I think 0:12:42.640 --> 0:12:45.680 that people will be thinking about that, although I doubt 0:12:45.720 --> 0:12:48.600 that the Chief Justice is going to comment on that. 0:12:49.960 --> 0:12:52.480 Yeah, I would be shocked and the Chief Justice comment 0:12:52.559 --> 0:12:56.040 on about meet the press. But it almost sounded to 0:12:56.080 --> 0:13:02.120 me as more presidential Trump's rambling, because I think that 0:13:02.200 --> 0:13:05.400 he knows that the Constitution applies to him. I mean, 0:13:05.440 --> 0:13:08.760 he may interpret the Constitution differently than others, and that's 0:13:08.800 --> 0:13:12.880 it right to a certain large extent, except not in 0:13:12.920 --> 0:13:16.199 a particular decided case or controversy, but in general, he 0:13:16.240 --> 0:13:19.000 can disagree with others views of the Constitution, but he 0:13:19.040 --> 0:13:21.640 knows it applies to him, even if there are different 0:13:21.720 --> 0:13:25.400 views of what in fact Article two or two process means. 0:13:26.520 --> 0:13:29.600 And there's been a lot of talk lately. I mean 0:13:29.800 --> 0:13:32.160 you could if you google it, you'll see so many 0:13:32.320 --> 0:13:36.240 articles on what happens if the president doesn't obey a 0:13:36.320 --> 0:13:40.479 court order. And you know, we've seen in various instances 0:13:40.559 --> 0:13:44.520 that you know, it seemed like critics say that the 0:13:44.520 --> 0:13:49.319 Trump administration hasn't been obeying all court orders. So at 0:13:49.360 --> 0:13:54.440 what point does the judiciary, you know, take a strong stance, 0:13:54.559 --> 0:14:01.520 perhaps start issuing different kind kinds of you know, start 0:14:01.720 --> 0:14:06.080 subpoenaing people and perhaps holding people in civil or criminal content. 0:14:06.200 --> 0:14:07.880 I mean, what do you think it will take before 0:14:07.920 --> 0:14:08.600 that happens. 0:14:10.160 --> 0:14:14.160 That's the course, the start of the constitutional crisis. I 0:14:14.440 --> 0:14:17.560 still hope that it doesn't occur and that the cooler 0:14:17.600 --> 0:14:23.000 heads will prevail, but I certainly wouldn'tly would bet against 0:14:23.000 --> 0:14:26.280 myself and that there may be a crisis at some point. 0:14:26.640 --> 0:14:30.040 We came closest, probably in the Breaco Garcia case you 0:14:30.120 --> 0:14:34.640 call the instance where someone, unfortunately the Maryland individual was 0:14:34.720 --> 0:14:40.120 mistakenly deported to El Salvador, where he's still languishing, evidently, 0:14:40.760 --> 0:14:45.520 and the court there ordered a return to the United States, 0:14:46.320 --> 0:14:50.640 and the administration evidently sort of just sort of ignored it. 0:14:50.920 --> 0:14:53.080 And the Supreme Court did come in there and said 0:14:53.280 --> 0:14:58.080 as a compromise that the administration must at least facilitate 0:14:58.680 --> 0:15:01.920 his return to the United States. They try to sort 0:15:01.960 --> 0:15:06.400 of dodge a direct confrontation by using the term facilitate, 0:15:06.840 --> 0:15:10.360 which is somewhat of a more ambiguous term as opposed 0:15:10.360 --> 0:15:12.960 to ordering his return by a particular date. So the 0:15:13.000 --> 0:15:16.520 court's aware and it doesn't want to have this direct confrontation, 0:15:17.360 --> 0:15:21.680 but it knows it's lurking out there. And you know, 0:15:21.880 --> 0:15:25.320 the courts have very few levers to pull in terms. 0:15:25.360 --> 0:15:28.680 As you pointed out, civil contempt is certainly one of them. 0:15:29.200 --> 0:15:33.680 Fiery rhetoric is another, and we've seen some judges amp 0:15:33.760 --> 0:15:36.440 up their rhetoric. But at the end of the day, 0:15:37.000 --> 0:15:41.520 as Andrew Jackson reportedly said one hundred and fifty years ago, 0:15:42.640 --> 0:15:46.120 the enforcement powers rest with the president, not with the courts. 0:15:47.000 --> 0:15:50.360 And a perfect time to end that quot and that answer, 0:15:50.400 --> 0:15:55.280 because right now the Chief Justice is taking his seat. 0:15:54.840 --> 0:15:58.680 They're sitting in large chairs sort of like you'd see 0:15:58.680 --> 0:16:02.360 in a judge's chamber, and he's sitting down now at 0:16:02.520 --> 0:16:04.200 two applause, let's listen. 0:16:06.320 --> 0:16:09.280 Well, it's it's really is an honor to be here 0:16:09.320 --> 0:16:13.320 with you and to rekindle our old friendship that started 0:16:13.600 --> 0:16:14.640 forty seven years ago. 0:16:14.800 --> 0:16:18.480 Wow, yeah, long time, you haven't aged, haven't aged a bit? No, 0:16:18.640 --> 0:16:19.960 you haven't. You haven't haven't. 0:16:19.840 --> 0:16:23.600 Changed a bit. So so folks from Buffalo are very 0:16:23.600 --> 0:16:27.640 proud to say that you're a native son here you 0:16:27.720 --> 0:16:30.040 spent the first ten years of your life in Hamburg, right, 0:16:30.240 --> 0:16:32.120 what do you remember about growing up in Buffalo? 0:16:32.240 --> 0:16:32.680 It's cold. 0:16:35.600 --> 0:16:39.560 No, the memories were refreshed earlier this morning. I went 0:16:39.600 --> 0:16:44.360 back and visited my boyhood home, which was a lot 0:16:44.480 --> 0:16:50.160 smaller than I remember, and it was near the fair 0:16:50.200 --> 0:16:52.360 grounds for those of you around here, and we would 0:16:52.960 --> 0:16:56.040 I remember hearing the call to the post, you know, 0:16:56.120 --> 0:17:00.600 the when they were because they did racing there on weekends. 0:17:01.200 --> 0:17:04.359 And we would set up lawn chairs in the driveway 0:17:04.359 --> 0:17:07.520 because when they had concerts too, and about the concert 0:17:07.560 --> 0:17:08.600 without having to pay for it. 0:17:08.800 --> 0:17:10.679 So where'd you go to school? 0:17:11.040 --> 0:17:11.879 Saint Brendette's. 0:17:12.000 --> 0:17:16.439 Yeah, and that's where my wedding was. Oh yeah, so 0:17:16.520 --> 0:17:19.920 we closed the closed last week. Yeah, I heard, That's 0:17:19.920 --> 0:17:22.919 what I heard. So when we were in law school 0:17:23.080 --> 0:17:26.640 and particularly on the Law Review, people saw you as 0:17:27.160 --> 0:17:30.920 very bright, a good writer, ambitious in going places. Did 0:17:31.000 --> 0:17:34.120 you let yourself dream about being on the Supreme Court then? 0:17:34.800 --> 0:17:35.240 No? 0:17:35.240 --> 0:17:39.760 No, I didn't dream about being a judge. I didn't 0:17:39.800 --> 0:17:41.880 dream about being a lawyer. Before then. I was going 0:17:41.920 --> 0:17:45.080 to go to uh graduate school to study in history 0:17:46.240 --> 0:17:49.680 and true story. I was taking a cab back from 0:17:49.760 --> 0:17:52.760 Logan Airport to the campus, and the cab driver asked 0:17:52.760 --> 0:17:54.639 me what I did and I told him I was 0:17:54.680 --> 0:17:56.320 a history major at Harvard. 0:17:56.400 --> 0:17:58.600 He said, I was a history major at Harvard. 0:18:00.080 --> 0:18:06.000 Yeah, that's why I said, where are those where's that 0:18:06.119 --> 0:18:10.960 law school application file? But uh, when I got to 0:18:11.040 --> 0:18:13.600 law school, I found out that I liked it, but 0:18:13.680 --> 0:18:19.240 I certainly didn't want to be a a judge. And then, uh, 0:18:19.400 --> 0:18:23.199 you know, ended up clerking and working at in the 0:18:23.200 --> 0:18:27.840 government and in law firm for a while, and you know, 0:18:27.960 --> 0:18:29.760 it just sort of happened that you end up in 0:18:29.800 --> 0:18:32.439 a position where someone decides to nominate you to be 0:18:33.119 --> 0:18:35.240 a judge. And by that time I had been practicing 0:18:35.280 --> 0:18:37.920 long enough I thought it would be a good, good change, 0:18:37.920 --> 0:18:40.880 and that worked out, and then you know, the Supreme 0:18:40.880 --> 0:18:43.280 Court fortuitously came long after that. 0:18:43.560 --> 0:18:48.120 Yeah, so your your career started as in was by 0:18:48.160 --> 0:18:49.760 and large as an appellate lawyer. 0:18:50.320 --> 0:18:51.280 How how did that happen? 0:18:52.280 --> 0:18:54.600 Well, I came off of the government work that I 0:18:54.640 --> 0:18:57.600 had been doing. I had spent a total of seven 0:18:57.680 --> 0:19:01.639 years between the clerkships and at stint in the Justice 0:19:01.640 --> 0:19:05.040 Department and some time at the White House Counsel's Office. 0:19:05.480 --> 0:19:07.480 So when I left that I'd been out seven or 0:19:07.520 --> 0:19:12.159 eight years and hadn't really practiced normal law, and I 0:19:12.160 --> 0:19:15.960 didn't want to start, you know, the seminar whatever for 0:19:16.040 --> 0:19:18.480 first year students to learn how to take a deposition. 0:19:19.880 --> 0:19:22.320 So I went around at law firms and they would say, 0:19:22.359 --> 0:19:23.679 what do you want to do? I said, well, the 0:19:23.680 --> 0:19:25.000 one thing I thought I could do. I said, I 0:19:25.000 --> 0:19:27.439 want to do a pellet work. And they said, oh, okay, 0:19:27.600 --> 0:19:29.399 you know, if the case you're handling goes on appeal, 0:19:29.440 --> 0:19:30.919 you can do a pellet work. And I said, no, no, 0:19:30.960 --> 0:19:33.440 I only want to do a pellet work. And nobody 0:19:33.560 --> 0:19:38.200 was buying that until I ran into a fellow named 0:19:38.200 --> 0:19:41.159 Barrett Prettyman, who that's what he did. It was at 0:19:41.160 --> 0:19:45.160 the firm of Hogan and Hartson, and he was an amazing, 0:19:45.800 --> 0:19:50.080 amazing man, and I decided I would like to work 0:19:50.160 --> 0:19:52.320 with him, and that was fine with him. 0:19:52.720 --> 0:19:55.640 He had been extraordinary life. 0:19:55.840 --> 0:19:59.040 The courthouse in DC is named after his father, who 0:19:59.080 --> 0:20:04.320 was a very prominent judge. But Barrett, at age eighteen, 0:20:05.040 --> 0:20:07.320 left you know, high. 0:20:07.080 --> 0:20:07.720 School in d C. 0:20:07.920 --> 0:20:10.720 And went to England and then joined the Patent's Army, 0:20:10.880 --> 0:20:16.720 you know, you know, hurtling toward Berlin and they were 0:20:16.760 --> 0:20:20.280 ambushed and his unit found themselves in these. 0:20:20.600 --> 0:20:23.520 Fox holes, terrible cold. 0:20:24.240 --> 0:20:27.200 Through the night, and the you know Germans are sort 0:20:27.240 --> 0:20:29.400 of picking them off one by one. 0:20:29.520 --> 0:20:33.240 And he swore that if he made it to the morning, 0:20:33.240 --> 0:20:38.040 he would wake up happy every day. And he made 0:20:38.080 --> 0:20:38.480 it through. 0:20:38.720 --> 0:20:43.080 He had frostbite. They took him back to the you know, 0:20:43.119 --> 0:20:45.719 back to Belgium. His the rest of his unit went 0:20:45.760 --> 0:20:47.720 in and they were going right into the Battle of 0:20:47.720 --> 0:20:49.080 the Bulge and they were all killed. 0:20:50.200 --> 0:20:52.080 So he kept his he kept his file. 0:20:52.160 --> 0:20:54.680 As far as I could tell, it was a very 0:20:54.760 --> 0:20:59.800 upbeat person, very very you know, pretty much everybody else 0:21:00.040 --> 0:21:03.320 there were law walls had pictures of you know, fox 0:21:03.400 --> 0:21:06.040 hunting or old English judges, and you know, he had 0:21:06.119 --> 0:21:09.680 pictures of clients like Truman Capoti and Catherine Anne Porter 0:21:09.960 --> 0:21:14.639 and really and he had a great, great attitude, and 0:21:14.680 --> 0:21:16.679 I really enjoyed practicing law with him, and. 0:21:17.200 --> 0:21:19.280 He woke up happy every day even after he started 0:21:19.280 --> 0:21:19.800 working with you. 0:21:20.560 --> 0:21:27.119 Yeah, I never heard that, yeah, yeah. 0:21:27.240 --> 0:21:30.520 So so I said, you were a hard worker on 0:21:30.560 --> 0:21:33.240 the lower of you and you really were, but you 0:21:33.400 --> 0:21:37.160 had some time for fun as well. And I told 0:21:37.240 --> 0:21:40.600 Tim Metzlaf, who's a professor Duke that I would ask 0:21:40.640 --> 0:21:44.000 you to tell these folks about pencil ball. 0:21:44.160 --> 0:21:47.800 Yeah, Tom, and I spent more time playing pencil ball 0:21:48.000 --> 0:21:50.320 at the law review than working on the law review stuff. 0:21:50.320 --> 0:21:51.640 It was a very complicated thing. 0:21:51.680 --> 0:21:54.199 You get a little piece of paper and put some 0:21:54.240 --> 0:21:56.920 tape around it, and then with pencils. Somebody would pitch 0:21:57.040 --> 0:21:59.560 the ball and you try to hit it with a pencil, and. 0:21:59.480 --> 0:22:01.800 You have to this elaborate scoring system too. Right, a 0:22:01.840 --> 0:22:04.520 triple if you got in the waistbasket, it was a triple. Right, 0:22:04.640 --> 0:22:07.399 if it ended up sticking to the ceiling, it was 0:22:07.400 --> 0:22:07.720 a homer. 0:22:07.760 --> 0:22:09.560 I forget. Well, yeah, it was very complicated. 0:22:09.600 --> 0:22:10.480 They never let me play. 0:22:10.640 --> 0:22:12.640 The rules evolved as each game went on. 0:22:12.800 --> 0:22:16.359 I was an underclassman, so they never let me play, 0:22:15.359 --> 0:22:20.600 but they played the pencil ball game. So you interviewed 0:22:20.680 --> 0:22:25.119 for clerkships yourself, and you now interview candidates for clerkships. 0:22:25.160 --> 0:22:28.439 Any pointers you have for folks when they. 0:22:28.280 --> 0:22:32.879 Interviewed, Well, one year when I was interviewing people, I 0:22:33.040 --> 0:22:36.080 was looking with law clerks and probably you do as well. 0:22:36.119 --> 0:22:39.800 You want people with some degree of self reliance and confidence. 0:22:40.680 --> 0:22:41.840 So I thought. 0:22:43.359 --> 0:22:48.600 Laid out a dozen half glazed and half powdered donuts 0:22:48.680 --> 0:22:52.919 out in the waiting area, and I figured one it 0:22:52.920 --> 0:22:54.520 would be a good sign of whoever. 0:22:54.240 --> 0:22:56.320 It was liked donuts. 0:22:56.880 --> 0:23:01.120 And also if they had enough selfish insurance to have one, 0:23:01.320 --> 0:23:04.600 even though their hands would have glazing or powder on them. 0:23:04.680 --> 0:23:07.600 When they came in end of the day, a dozen 0:23:07.640 --> 0:23:12.760 doughnuts still there. So everybody, everybody failed that. Now, I 0:23:12.800 --> 0:23:14.960 had some bad experiences of my own. 0:23:15.000 --> 0:23:15.480 This goes. 0:23:16.000 --> 0:23:18.520 It was back when they were some justices were still 0:23:18.600 --> 0:23:22.399 hiring people right out of law school, and Justice White 0:23:22.520 --> 0:23:24.479 was one of them, and I was scheduled for an 0:23:24.480 --> 0:23:28.000 interview with him, and I went down to Washington and 0:23:28.000 --> 0:23:31.840 they had just opened the new metro system just opened, 0:23:32.440 --> 0:23:34.359