In this illuminating day long discussion celebrating the 100th anniversary of the Supreme Court clerkships if you are just tuning in im head of the National Constitution center in philadelphia law professor here at George Washington university the Constitution Center is so honored to convene some former Supreme Court clerks to discuss how they are clerkships filled their lives im great to sit here with two appellate judges and two distinguished intellectuals and jurists both were Supreme Court clerks and acclaimed across america with their opinions and their rigor and i just cant wait to ask them how those clerkships influence their approach to the judging in the constitution will briefly incident show them by the judge sunsets on the us court of appeals on the sixth circuit and he is the author of such an important book i want you all to read it because it will transform your view with the making of constitutional law with other important works and he clerks both for Justice Powell and Justice Scalia. Judge what is chief judge of the us court of appeals for the seventh circuit. She has transform the law with her opinions that are definitive on the area she writes and teaches at the university of Chicago Law School like antitrust and International Trade and business and she clerked for Justice Blackmun. Judge sutton you clerked for both Justice Powell and scalia. Two different approaches. How did those influence your view to be a judge quick. Thank you for not mentioning this little thing i was hoping nobody would notice it. This is the problem to throw a 98 mileperhour fastball. The problem with that story is that im a righty and if i could and i was a lefty i would not have been a lawyer or Supreme Court clerk. So it was such a blessing. Thank you for doing this and your leadership with the National Constitution center the country is lucky and you have been amazing for that for all of us who care about the core in the constitution, all 51 of them. I really was lucky to have these clerkships. I went to ohio state. Not a traditional path so that was lucky to start, but the greatest thing for me that year was working for two people that spoke entirely different languages about the constitution. Justice powell came to the core as a practitioner, a pragmatic cared about civility and a casebycase incremental judging, Justice Scalia was very much not that. His key articles the law of rules which gives it away when it was so remarkable to deal with two people like my mother and father perk i love them both but they disagree on everything. [laughter] my mother and father got divorced actually so it is parallel. But i adored them both and is so interesting to think about cases and wondering wonder what Justice Powell would think about this differently to be in conference with Justice Scalia he would be critiquing powell so there was this balance that was unpredictable. As a young lawyer that was so striking to see two people that i really adored and admired at so many levels to speak so many different languages so the thing for me was to come out of this experience certainly not knowing how to speak them fluently but how to master them fluently and that influence me as an advocate and then as a judge. I have been influenced a lot of different ways for all of them but i do in my opinions try to speak all languages and write opinions that is not just convincing to somebody of which happens to be my preference. That has been healthy. I suppose it makes me a little ambiguous sometimes to what im thinking but as a appeals judge that is the best trade because half of the opinions the constitution supports are more originalist and half of them are not. So i think its good training for court of appeals because we should honor both sets. That is so striking you took for Justice Powell and scalia that ability to speak all methodologies and i have hear your opinion that you do exactly that you run through all of the methodologies to explain the results that you chose. How interesting it also explains why i was reversed. [laughter] but not for lack of speaking all the languages. One of him not well enough. What did you learn about the art of judging from this detail oriented Justice Blackmun quick. I learned a great deal and also to see the different approaches around the court. I will say at the time i clerked at the Supreme Court the socalled original visible approach had not yet carried the day with as many people that really wasnt until Justice Scalia came when that became more popular. My observations of Justice Blackmun goes all the way back to the fact he came to the law as a mathematics major. His undergraduate degree was in math, summa cum laude of that degree. I think that carried into his approach to the law that i have thought a lot about. He was very comfortable with the scientific method. He was very comfortable working from the ground up and coming up with the rule of law that was based on fact. He did not like the top down at 40 figured out what all the categories are to shove into one or the other but there is a virtue in the factbased approach that because it is the final court you lose uncertainty when you dont have a clear theoretical construct because you are speaking for the entire country and i think of that nod is the whole country but now three states and i write opinions you owe it to everyone. The parties, the people who live in your circuit the Business Community and individuals to be clearer. This is why the person one or lost and we will make it possible for you to follow the precept in the future but the famous Justice Powell balancing test is actually not my favorite either. I find it impossible to do anything with. I am being nice to him when they are weighted you can begin to work with them but if you just say here are the following ten factors and balance them and a lower court judge i could chat about all ted but you will not know why one was important and the other should prevail over the others. s about the time i thought about the importance of theoretical construct with the underlying facts and i felt less critical of Justice Blackmun for the reliance of those facts because there are areas especially in constitutional law i would say it behooves the court to move slowly and that they have not overlooked a major qualification he thought it was clear at the time of the opinion that it turns out its not. There were many pieces of the overconfident journalist without emotional jurisprudence of Harry Blackmun a clerk said he was just working on a case called schmucker verses that you made it the united states. [laughter] but you said that is wrong he was not topdown but driven from the bottom up. That is what i saw. And then that influenced you. You heard from the Previous Panel particular examples of personal encounters or moments that change their philosophy. You are merged preferring Justice Scalias original is some and you combine them both but can you show us a moment or two where either pushed you in that direction quick. Yes. Was so much fun to listen to this last panel to think more than i usually do about where i am. I think it was both of them. Justice powell was from virginia believed in federalism. That was a key theme of his jurisprudence that was the key one a key theme of my advocacy why i was excited for working for the state of ohio as the solicitor with a section five Commerce Clause cases. That has been interest i have had in terms of writing. It is true, thats not just Justice Scalia by the way he is the preacher of the beltway by the time he was on the court. I dont think he had the same sympathies so then i rejected scalia a little bit and then followed powell but the method of interpretation is much more contextual than original but that influences scalia for sure. But really its what all of us share from this day that you come to love the court as an institution. Its hard to work there but i care so much about this place every employee that comes back to argue and they all remember your name. You always felt that they were rooting for every advocate even though one would lose but i love it as an institution and one reason i embrace contextualism and perhaps people would disagree but its more likely to protect the core as an institution. So that has influenced me but in terms of experiences there are so many but Justice Powell it has nothing to do with law but maybe it does eventually, he was 85 at the time. He retired a Supreme Court justice if you go that route people dont invite you to lunch anymore. He was stuck having lunch with his law clerk he had just what we would have lunch one or twice a week. He treated me every time he always get a cheeseburger and eat one eighth of it at jackson chardonnay and drink all of that and then treat me to whatever. You would have thought we have spent all this time talking about his great cases and the court and interpretation i had to pull him screaming to those topics you would to talk about the war the Richmond School board, and it was my First Experience talking to someone i cared about and thinking about challenges of raising children it was so striking to see an all powerful justice talking about him sad my child is getting a divorce. He was stuck with me as the person to talk to about it. And it was powerful to put that into perspective. When our first child was born Justice Scalia back then they went to those things so he said do you want to go for a run . My wife was in labor that was a selfish thing to do but she approved so we go on a run he knows were about to have our first child he spends a whole run saying raising kids is so important really make sure you have balance and i didnt have a lot of selfesteem i thought he was saying you wont be a good lawyer you can be a good father. I dont think thats what he meant i think he was just making a good balance point. So we can come back to other ways of influencing but i dont want to lose track of the personal side of the other panels theme. You so respect them and want to be like them but then you hear them talk about things that have nothing to do with interpreting constitution statutes or courts. So it resonates more than if it was your buddy. And some personal encounters and then also some life lessons. He was very generous with his time with us. People think of Justice Blackmun that we heard in an earlier panel as this monster who required 35 page bench memos and marking up the cert memos and writing and i will say im a really fast writer. This was a time before the court had computers it was that many years ago so it was an actual typewriter the cost of an error was too high so you had to be good. But it was a very spontaneous thing he would just walk through our office where we all sat me and my three co clerks and would suddenly say what do you think about that opinion that he used initials for everybody jps. And you are on your toes. You had no way of knowing which one would suddenly cross his mind and he would do the same thing that i was living in a little basement apartment on capitol hill the year i worked at the court. Usually showed up on the dot of when breakfast began with my hair dripping wet. That you had to sit there and listen to a fair amount of baseball. I am an okay baseball person i learned to maintain my part of the conversation. I read about it. [laughter] feigning enthusiasm . [laughter] you had to do that at least. But what somebody did in the seventhinning what did you think of this opinion . If you thought he might want to do Something Different based on what he said in the past on that issue then you had to be on the spot. I am not a morning person at all this is one of the greater challenges of the clerkship. But he just like to do it. And the other thing that really opened a window not just to Justice Blackmun was the entire court of his famous conferences with us after the conference the justices would sit down to discuss the cases and then we would all go into the chambers and he would sit down justice by justice and give us i think practically a transcript of exactly what those people have said about every case the court has heard an argument. Justice acts said this and just as why said that. What an insight and it was amazing into the way they were working their way through the different viewpoints sometimes it was outcome determinative that many times it was more what is the right reason for this . Is a statutory or constitution . Do we need to Say Something grand about the meaning of due process or something much more granular or if you get a majority of the court is that something you should go with . We had amazing conversations with him about that and it taught me a tremendous amount not only the way the justices went about their decisionmaking and in later years have i have done that. Does that view give you respect how the court functioned as a night nonpartisan institution . Now if we fast forward to the time i was on the seventh circuit we have a case may be we hear for cases or five. Not very many but we heard this particular case and bank and the practice is to go around the room and everybody talks. Youre not supposed to vote even that you can kind of tell but and then crisscrossed with questions and then you go around the room and vote. So as we started the voting in this case before it was chief judge i thought im really sorry this public cannot see this because im so proud of this court. People are grappling with these issues. They are hard issues on which personal level they feel passionate but everybody is being respectful. Everybody thinks the way the law ought to treat the questions not just personal preference as we are all acutely aware that 23 Million People in the seventh circuit did not elect me to do anything they trust me to follow the law. I saw that with Justice Blackmuns account and the way the justices were handling their discussions and we certainly strive to do the same. Judge do you feel the same way of the sixth circuit as the Supreme Court . Others have had times of Great Division at other times of more collegialitys what are those similarities or differences in the way it functions . Must most work is done is a threejudge panel so that makes it a lot easier. I cannot imagine having nine people. Thats hard to imagine im not a fan of the in bank process i dont enjoy decisionmaking in a group of 16. Now it is fun to hear us talk about something difficult but its very hard. You dont have seven hours which is what it would take for what everybody thinks an account for every perspective. But when i was going to say about developing the right answer it sounds like Justice Scalia was like Justice Blackmun that after every argument day he would call the clerks in together and we would debate the case. The adversary was presented in the court room and then afterwards a very adversarial process back in the chambers. He didnt want to talk to the clerks too much before the argument in fact this was the contract he asked for a bench that was no more than two pages singlespaced and no margins. He didnt want a lot of wind up. We will talk after. May be a little bit but not too much but then after the argument the clerk whose case it was would present the case to the group and everyone was an equal in that debate and that was a striking thing to learn after a couple he didnt respect you if you did not push back he would just ignore you that did not interest him. What interested him is why you might be wrong or think about it slightly differently. There were unbelievable debates and conferences so that influenced me more phoebe how i deal with clerks how i work with my colleagues. We dont debate that much. Like the seventh circuit we pre assign opinions if that ends up in dissent they dont write the majority but that means we have a lot of communication about scone one cases before argument so theres less room to talk. The california Supreme Court does it the ninth circuit does a you can see competing arguments on both sides but what ends up happening is we put a premium with a bench memo our draft opinion goes back and forth and then by then most have a sense a base of what their colleagues think so that means we have shorter conferences which again i can see both sides. Probably not the approach i would have developed on my own but i have seen the virtues of it. That means arguments are unbelievable because everybody is really prepared and ask questions that mattered that doesnt happen at the Supreme Court. They do not circulate bench memos to other chambers much less opinions so that is a striking difference. Both of you are unique among appellate judges and Supreme Court justices to having written powerful and deep accounts of your own constitutional philosophies and judge would you gave a madison lecture at nyu and you gave an account of why the constitution should evolve with sociological and technological change and you defend against the originalist approach how is that influenced from Justice Blackmun so described that. I was influenced to ride it by the fact there are certainly some parts of the constitution everybody thinks of the eighth amendment of the Supreme Court itself that it has never overruled the notion that our standards of a cruel and unusual punishment mean and has evolved with the times they were hanging course themes we probably dont want to hang horse thieves today. That made a great deal of sense to me and over the years i worked with Justice Blackmun to observe the work of the court i saw so many applications of the broad ranging language of the constitution that seemed contemporary applications of the broad principle. My own thinking is more contextual at this point i think the people who wrote the constitution were bright people and i think when they wanted to be very specific they were very specific the president has to be 35 years old. I will not go if that counts of judd one nine months of gestation i will go with 35 because we understand that term. The titles of nobility cause so when they wanted to be particular they could. If they wanted to set a standard of equal protection that comes later of course with the due process of the fifth amendment and obviously the eighth amendment when they wanted to standard they gave a standard and they fully expected that this would change even the Supreme Court cross that bridge and it took them a while to do that but now they seem to be securely there and thats the right way to interpret the constitution it is a very broad principle. So some of the most litigated parts of the constitution are in fact the parts that are inherently broad and sweeping like due process, cruel and unusual punishment, et cetera and it would be unfaithful to the constitution itself not to give them that kind of flexible meeting. But part of that lecture i dont know how well it came out but it was a plea for consistency. Because if you are going to say that the president s power over Foreign Relations includes the list of things we would now put in the list, you can search long and hard in article to you will not find those things set forth the president s ability to wage war without congresses permission for a period of time that now sits there in the war powers act. So it seems to me to be a strict constructionist if you think about article two things have to go out the window and im not advocating that they do. It is consistent with my sense of interaction among the branches of Government Congress that they have their own Constitutional Responsibilities and im not one just to conclude to think its necessary to throw out the Administrative State because that was not originally set forth in the constitution so i think the reason it has worked is we have had a flexible and evolving approach. George sutton you have set out with your distinctive philosophy in many places. The state constitutions book with your opinion and this powerful estimate of the meaning of the constitution. You call yourself a contextual list originalist but yours is distinct from that from Justice Scalia so give the audience a sense of your approach because it educates all of us and how that derives from and is different. I dont think Justice Blackmun influenced me quite as much as diane but if she thinks its true i will take it seriously. I will say that affects me. So i am pretty confident what we would agree or all three of us. Labels are important for students or for theories but they are in accurate in one sense of how judges interpret the constitution or of those statutes and its not the binary either or but the spectrum so every judge who ever lived justice leah included when you read the fact section of the brief has a reaction you dont want judge that doesnt have a reaction to a fact pattern they usually have a reaction i cant believe this happened this seems pretty even on both sides or whatever but how can you not have that reaction but what distinguishes judges why he is better to think of as a spectrum but what it takes to get of that reaction of a fact pattern and for some with Justice Scalia is an example it doesnt take much. He has a statute he may be unhappy about what it means apply to this person it doesnt take much and for others it takes more and for others it takes an awful lot to get them off of that reaction. So just think of our colleagues and say this is something theyre very sensitive to. I am in originalist i dont think it is a sin. I am proud of it. It is important to ask yourself why people think that. I am very worried of the role of the courts of the biggest questions in society if i was a justice in the fifties and sixties i strongly suspect i would embed in the majority and a lot of those cases. Not saying we dont have Serious Problems today but its not the fifties and sixties we have also seen what has happened in that time since of the people who are on this court when elected representatives are essentially floating 100 percent partisan not just for justices but all federal judges we have a real problem the American People are starting to think i dont care what judge sutton or woods says about the judges if our elected officials are treating us as a partisan matter how do you not draw that conclusion if that is a Political Party and why are they checking other Political Parties cracks that really drives me on this. I think if you evolve theres nothing about evolution that says it goes in the right direction. So when those justices get confirmed the framers said to account for all the norms but also leaves and that they could delete words which is very dangerous in the criminal procedure arena so a compromise with humility maybe im wrong maybe there are some imperfections but what we should all agree is we can have times when the court has the individual rights guarantee not to be fairly rare or else we will destroy the crown jewel of american government. If you are going to evolve that i borrow from Justice Jackson when the president has the most power when congress has no Middle America says nothing in congress directly approved it. If the court will innovate new rights or adding rights to the constitution at least wait until a serious majority of state legislatures or courts interpreting their own constitutions have. Otherwise its very problematic to me when they are still sorting through the issue i think that helps get through the resentment i think he would politicize the Court Appointments and it also shows how foolish i am at the same time as audacious but i actually defend chief Justice Roberts in his confirmation hearing involving the strikes. Its very hard to be an umpire but one thing about it that i never even talked about which is what drives me and maybe this is my problem. When the court calls balls and strikes on the meaning of the constitution to keep the analogy within the constitutional zon zone, it is no longer a game between the dodgers when they say a strike and it applies the referee just became a player in the game because the next time this topic is up the people will go to the court who decides the answer will involve the courts. So if you dont come to the game to see the referee you went to see which team wins but every time the court evolves a right to say it is within the constitutional strike so now there are three players, not to. That is something the court should Pay Attention to. That is a power grab to say its not the state Legislature Congress our president it is us or we as my grammatical wife would say. Thats important to remember that is changing who decides i say it is a power grab in the sense of what motivates but dont underestimate what happens when they constitutional i something and thats why the body is more politicized because the people here now its up to them to decide people want to say who they are and that is legitimate. Thank you for that extremely thoughtful defense of original is a measure you see it at the privilege to have you both here so what is your response to judge suttons points. But he gave a case for ritualism and the politics and giving a blank check to the judges and about the third player in the game. I wish those were all right. [laughter] not surprisingly i dont see it that way. First of all i think when the Court Applies a constitutional provision to a situation that hasnt come up before that doesnt mean the court is creating a new right when they apply the equal protection clause to the right of lgbt lgbtq, however many letters to new people they are understanding here is a new situation we apply the same old concept to the old word i am not sure that many of these are accurately described as just reaching out and writing new words into the constitution. We could be here all afternoon to talk about things that are not specified in the constitution that are not controversial. Also i think its critically important to know that as jeff points out, they go into directions. And the Supreme Court says in citizen united that money is speech and you cannot have an Effective Campaign finance system because it would violate the First Amendment, a whole area of public concern has been removed from the legislature and state legislatures and federal legislature that is a momentous thing to do and that was done oh well the First Amendment must mean money as well as individual vote. We cave within a hair of that same thing happening with the Affordable Care act cases when Justice Roberts wrote his famous opinion to say we cannot do this under the Commerce Clause. Nobody can tell me to buy broccoli belly will do it under the tax clause and then suppose Justice Roberts sided with the other four justices in the Affordable Care act was not just called out for being unwise legislation. Congress had passed it. Democratically elected part of our government passed it but if the court said the constitution itself forbids this kind of experiment in healthcare reform that wouldve had exactly that paralyzing effect that judge setting sutton is be voting for go i agree. I am a big fan of letting things be handled by congress if they do something colossally stupid maybe a Later Congress will fix it then it stays in the political branch. I think the originalist approach that many on the Supreme Court have taken in fact has not left that flexibility. And when we think of the Commerce Clause. The people who wrote that were not thinking about amazon or the internet or a lot of things for quite dont think that means we have a defunct Commerce Clause but we have principles the constitution has set out that we apply. Judge sutton,. And i respond . Please. [laughter] just the common ground. I will set it up that you reached similar conclusions you came out on the conservative side the other on the google side but what you were as concerned about deference because chief Justice Roberts does not call him as an originalist. Thank you for characterize me getting affirmed in the healthcare case i was wrong twice and the merits case i was reversed because i was wrong once and those are deeply philosophical questions. Which is better . I dont know im still struggling through that. [laughter] the deference restraint im sure diane thinks this is much as i do i was on the bench thinking i was restraint judge tell Justice Scalia thought of himself and i was clerking for him its natural to think that way the more time i spend is a judge the more time i think what does that mean . If congress and the president have a fight about article one versus article two what does deference mean . You dont presumptively defer to the legislature. So it has bothered me how you work through this book i found myself thinking about judicial restraint but one that honors the role of the court that first of all i do think originalist accounts and that article says if the history doesnt help you judges and lawyers are not the best historians of it doesnt help you here than the presumption not to be that democracy has a role to play. So had to apply that to heller. Yes. That is too much in my wheelhouse. The 43 state constitution have a right to bear arms before heller 41 a 43 said it was individual right so to me that is powerful evidence why do think that is pretty clear and not too hard. Now what it means beyond handguns and other weaponry is slightly different but the issue of heller was individual rights to bear arms 41 of 43 said so they did say the opposite they just said nothing so i think the powerful the original is a missed way to think about it. At the founding only to had right to bear arm provisions but not if they were individual rights the other ones were just not decided. But those 13 concert constitutions they say they could bear arm in defense of themselves or to kill game all the others talk about state militias. Yes. Speaking of upperhand he has it a little bit so what im pretty confident is true actually 100 percent confident they have all been construed to mean that. So that to me is pretty powerful. But with heller the justice had something to account for if hes a living constitutionalist if i was writing heller i would have said something along these line lines. Fine you dont agree with the ritualism but lets define living constitutionalist into this debate. Do we think in america circa 2000 whatever the average american doesnt think they have a right to a firearm next to their bed . That gallup poll would be 80 percent at least in terms of that right. You have a right to have a gun next to your bed so even as a living constitution i feel thats a case that should have been acknowledged and nobody said anything about it so god only knows the answer but what i want to see what we could do with her old bosses but this has shown you can constitutionalize and the red way or blew way if you asked me the last me the last 34 years show better blue or red or blue us Supreme Court is more and more a decisionmaker. If we are comfortable with that great but i promise you will only win half the time and dont be deeply resentful with half the time you lose. There is no reason if the court is in charge of all of the stuff to address the constitution it will not go red and blue overtime. That is passe and the path we are on and i worry in few years because this politicized crown jewel of political government is a detente and that Justice Blackmun if he were alive today or if Justice Scalia were alive today and had us as their agents going back to the old days and asked us to negotiate. Justice scalia said here are the five constitutionalize eating decisions i like the east Justice Blackmun said here are the five i like the least require promised they would not overlap could we return all ten issues to the American People. I dont know the answer to that question but i can tell you that is the stakes. Either we go back to a world where you win some and lose some democratically or we stay on the current path you win some and you lose some so thats the call for quite dont know the answer. Justice scalia famously said i cannot negotiate over original is him if it means something that that is that. And i think he would think seriously about this deal. Do you want to do the deal right now . [laughter] we did think about this did we . [laughter] i actually cant imagine Justice Blackmun doing that either but i think what we are getting at what we are talking about is one of the most important things we need to do in our system and also the Supreme Court that does it is really say in whose court does this fall . Whose decision is it . The Affordable Care act . Heller, abortion, Death Penalty is that something legislatures do cracks or is that something there is a fundamental law that has been laid out in the constitution that confines the power of the legislature to do anything about it. I will make the trade. [laughter] we can do it right today. Well have an announcement. I will make the trade. Will you give up for health . Oh boy, i dont think, i am not quite prepared to made it through that. Off of, louisiana case, [laughter] would you give rome for heller. What would you give up. A serious question here. United plus heller, [laughter] for roadless shelby county. No trade cause. The thing that bothers me about Citizens United in shelby county, is that they go to the root of who participates in our democracy. So counting is voting rights. Right, so it is very hard for me, the closer you get to protecting the sound functioning of our democratic institutions, who votes and who can get to loophole. What things belong to the legislature. The more i would be wheeling to say, that has to be what i did, that is further out from that. Out over time. Constitution Center Discussions have to end on time. I must say how dazzled i am by the quality of this discussion how grateful i am for it. The point convening Supreme Court clerks to come to washington. This not just to celebrate the hundredth anniversary of the institution, but the model, civil debate about the constitution, to show how people can disagree that went out being disagreeable. Ive sat here with two of the greatest judges talking deeply about impeding commentary seriousness of the constitution is a rare trait. The Constitution Center we say is like working in constitutional heaven. Back sitting here with both of you listening to your things that youve done. All that they have done to eliminate things with the constitution. Please join me in thanking them. Compact. [inaudible conversation] [background sounds] cspan2 campaign 2020 coverage continues. As president from post keep America Great valley minneapolis, minnesota. Like tonight, at 8 00 p. M. Eastern on cspan2 watch anytime on cspan. Org and listen wherever you know using the free cspan2 radio app. Former acting fbi director Andrew Mccabe discussed his career. His firing from the fbi and the arrearages of the russian investigation. He was interviewed by investigative Journalist Carl Bernstein at a conference hosted by the new school, in new york city. This is an hour and 20 minutes. [applause] President Trump thank you thank you so much for that warm welcome. And good evening ladies and gentlemen, distinguished guests students, and all members of the new school community. Thanks so much for inviting me to speak to you here tonight. It is truly an honor to address a group is engaged and quite frankly is large and terrifying m