If ann had not made a different decision careerwise than she made. But when i was at the institute for justice, ann many of you probably know that ann was a lawyer before she became the celebrity and commentator that she is today. She applied for a position at the institute for justice and we offered her a position working as an attorney for ij. And she turned us down. The reason she turned us down was that washington, d. C. , had adopted an antismoking ordinance and she was wondering where the heck she was going to be smoking her cigarettes. And it would not be at our office, unfortunately for her. But, subsequently we hired a different lawyer, and that lawyer and i organized a group of parents in South Central los angeles to fight for school choice, to file a lawsuit arguing that the quality of education in South Central los angeles was so appalling that it violated our your state constitutions guarantee of a highquality education. And they sought a voucher remedy, essentially the opportunity to leave the School System all together. And my colleague and i went into South Central los angeles to meet with parents at a little Shopping Center. And unbeknownst to us, a riot was beginning to form. And it became a very significant event. And we were among the first people attacked. We were attacked by rioters who came out into the road and started attacking our car with 2 2x4s. We drove off and sometimes civilization doesnt leave your mind. I remember as im driving through the red light to get away from the marauders, im worried that im going to drive over their feet. Nonetheless, we get to the Shopping Center where our meeting is taking place and the tv is on and im saying, we need to call the police and let them know whats happening here. Of course, the police knew and they were nowhere in the area. We went up we went on to have the meeting. The Shopping Center was burned to the ground that night after we left. One of the parents drove us to safety. But often since that time, and my colleague and i obviously escaped with our lives. Often during that time, i thought to myself, what if ann had taken that job . And she had been with me that night instead of my friend dirk . You know what she would have done. She would have gotten out of the car and confront the the rioters. And i suspect that neither ann nor i would be would be with you today. So, thank you, ann, for turning down thatposition, i was disappointed at the time. But it turned out just well for both of us. Its so great to be back in Northern California. I have a tremendous number of connections here. When i was a youngster. I lived for a year in the beautiful metropolis of daly city, california. And one of my classmates at Ben Franklin Junior High School went on to become congressman jim rogen of southern california, a phenomenal american. Like erica i went to uc davis i went there for law school. And as she said in her introduction i was very, very eager, i just could not wait to start suing government. And so i didnt wait, my first two lawsuits were as a student. I first sued the president of the university of california. Which did not indear me to my dean. And then i went on to sue the city of davis. Just on general principle. No, i mean i but in any event, until becoming a justice, thats what i, i gleefully did for a living and im happy to say that we won many more battles than we lost. And im now so honored to be on a Tremendous Court that values the rule of law very, very highly. And to be addressing the issues of individual rights and constraints on government power from a different perspective. I want to commend you for your involvement in this organization and with advancing the principles that you hold dear. Im sure its a view that you agree with. Silicon valley of all the places on earth should be the epicenter of freedom. There is there is no place on earth that has more prospered from the soil of freedom than this place. And so i hope that you will continue to spread the philosophy of freedom to others here in Silicon Valley who have prospered from the freedom that they have and i hope that they will stay the course. I was appointed to the Arizona Supreme Court by governor doug duecy in january of 2016, so im still fairly fresh in my role. With my appointment i scored a number of firsts. Im the 44th justice appointed to the Arizona Supreme Court. But the firstever independent. Every other justice has been either a republican or a democrat. And so im the first who is not affiliated with a party. I am also the first justice to hang up on the governor when he called to offer me the position. This was not intentional. It was and im embarrassed to admit it in Silicon Valley of all places im a total te technophobe, i cant figure out to get off of one call and on to the other. My friends say the better explanation is i was exhibiting my view of the proper separation of powers. But nonetheless, fortunately for me, the governor tk my call when i called him back and offered me the position. Im also the first member of the Arizona Supreme Court and possibly any Supreme Court in the country to be openly inked. I among the many clients i represented over the years were the owners of a tattoo studio. In tempe, arizona, a place that houses a major university, so you would think that there would probably be some tattoo studio and these were salt of the earth people. They had a successful studio in mesa. They got a permit from the city to open tattoo studio, in a halfempty strip mall, during the most recent recession. They invested 25,000 and refurbished the place and then the city decided, we really dont want a at that time stew tud yoe here, when they revoked their permit and i read about this on a saturday as my daughter was in gymnastics. And it was so nice to be able to get really irritated about something and to be able to call the person and say, you want to sue . And the answer was i cant afford a lawyer. And then my response which i always loved giving was im free so we filed the lault and i used to get very, very passionate about my cases. And as we were filing the lawsuit and trying to get their permit and their opportunity to earn an honest living back. I vowed, if we win this thing, im going to get inked. We did win and my wife said, i really wish that you would not get a tattoo. At that time she was thinking of running for office and she asked me what i thought about that and i said i really wish that you would not run for office. And she did and i did. And were still happily married. Im happy to say, but i have befitting my status as a desert dweller, i have a tattoo of a scorpion on my typing finger, ive typed every book every article, every brief every decision with one finger and it now bears a tattoo of a scorpion. I have been after my colleagues to get inked and i dont know, i thought i was a fairly persuasive guy. So far, not a single one of them has gotten openly inked. So im going to continue working on that. My talk tonight is about an essential but oftenoverlooked part of the story of american freedom. And that is, a judiciary committed to the rule of law. Its something that we often take for granted. But we can illafford to do so. There are two recent incidents that i read about that really show how unique america is with regard to its judiciary. And how important it is to safeguard that system. In china, as you may know, there are now a lot of Chinese Students learning studying in the United States, many of them law students. And a lot of american lawyers go over to china and they talk about our system. And the chief justice of the chinese Supreme Court apparently grew very agitated about the infiltration of western ideas of justice. In china. And grew very, very concerned about it. And in an article in the new york times, he was quoted as saying, we need to banish these western ideas. Because the purpose of the judiciary, is to sustain the regime. Just imagine that. If we had a judiciary whose purpose was to sustain the regime. How different our society would be. Venezuela recently, the venezuelan Supreme Court abolished the legislature, the National Legislature and assumed its powers. Imagine that. I mean, you know, our congressional ratings are not very high. But just imagine what they would be if the Supreme Court said you know what . Were going to start passing laws from now on. And you know, as angry or frustrated as people can legitimately be about some decisions, that courts make in our country, when you think about the judicial systems in other countries, the fact that, that if you seek to enforce a contract or your private Property Rights or Something Like that, su will walk away empty handed, even though you deserve to win, it really makes you realize how important the judiciary is here in the United States and how lucky we are to have a judiciary that will enforce the rights of individuals. The framers of our constitution considered an independent judiciary essential to preserving liberty. And the role that the framers intended for the judiciary was to act as a limitation on the powers of the other two branches of government. It was the only body capable of holding the executive branch and the legislative branch to their defined limits of power under the constitution. Additionally, only the judiciary was thought to be capable of, of vindicating the individual rights and our bill of rights and our constitution generally. The framers as you know considered the judiciary the least Dangerous Branch of government. For precisely this reason. Because when one exercised power, it would be restraining the power of the other two branches of government. But the framers did warn in the federalist papers that the judiciary could become a very dangerous body if it ever took on the powers of the executive or the legislative branches. And indeed, when it has done so, and it has done so, in many instances, it has been a very Dangerous Branch of government. So there is a constant battle going on. In the judiciary. Between those who believe that the constitution is an evolving document, that is, a document that the judges should look at and say really in our time what, how should this read . Not how does it read, but how should it read. And the judges in our system who believe that the constitution is eternal. That there is a way to amend the constitution. Its not by judicial legislation. Its by the amendment process that the framers set out in the constitution. And then its illegitimate for judges to themselves amend the constitution. And the resolution of that enduring battle is absolutely vital to the future of freedom in our country. The as a result of that, in my view, and i think history especially recent history really bears this out. The most important and enduring decision a president will ever make is who to appoint to the United StatesSupreme Court and to the federal judiciary. Justices usually far outlast the president s who appoint them. And just think about it. Ronald reagan has not been president since 1988. But as of only a year and a half ago, two members of the United StatesSupreme Court and now one, were appointed by ronde reagan. Boy, that is a legacy, that far outlasts the president. Justice kennedy remains on the court, the remaining reagan appointee. And the impact of those justices can be extremely significant as well. For both good and bad. Dwight eisenhower, some of you may be familiar with this quote, was asked after he was finished being president , what his biggest mistakes were. As president. He said, the two biggest mistakes that i made as president are both serving on the United StatesSupreme Court. So they definitely outlast the president. And if the president goofs, in his or her judgment, that can be an enduring thing as well. The appointment of justices today is more consequential than ever for two main reasons. The first is that the value of Lifetime Appointments has increased. The framers in their wisdom said in order to be a truly independent judiciary, we must provide lifetime tenure to our judges. And in fact, justices have tended to often lead very long lives. Theres a saying that if you want to live a long life, be appointed to the u. S. Supreme court. If you want to live a short life, retire from the u. S. Supreme court. So justices have tended to stay for a very long time. My favorite quote from Thurgood Marshall toward the end of his tenure. He was interviewed by the washington post. They asked him if he planned to retire any time onime soon. He was in his 80s, he said absolutely not. He said i was appointed to a lifetime tenure and i intend to serve every single day of that. Not only that, i plan to be over 100 years old. Not only that, when i finally die, i plan to be shot by a jealous husband. Thats quite the aspiration. Nonetheless, he served on the court for a good, long time. Of course longevity in general has dramatically increased lifetime tenure. At the time of our nations founding, the average age of appointment of a Supreme Court justice is about the same as it is today. It was age 50 at that time. However, Life Expectancy at that time was in the 30s. So the average age of the appointee was older than the average age of death. So that the logical explanation would be lifetime tenure would be like you die instantly as soon as you were appointed. Some of these folks did live a good, long time. But indeed, lifetime tenure did not mean all that much. Today the average age of a Supreme Court nominee is 52. Life expectancy for a 52yearold is about 85. Which means that the average term of a u. S. Supreme Court Justice today is roughly 32 years. That is eight president ial terms. When you think about that, that is a breathtaking legacy. So the importance of Supreme Court appointments is, is going to outlast any presidency. Clarence thomas for example, was appointed at age 42. If he lives to the same age as his predecessor, Thurgood Marshall, he will set the alltime record for longevity on the u. S. Supreme court and serve for 40 years. Of course he could well, well live longer than that. And serve on the court longer than that. President s and senators are figuring this out. So theyre appointing nominees at an earlier and earlier age. And you may have read in the most recent nomination, that basically if you had a six in the first digit of your age, you were probably not going to be considered for the court. Mitch mcconnell, a person who is not known for his ribald sense of humor, was recently reported as having had a conversation with neil gorsuch, in which gorsuch said i would really hope to serve for 20 or 25 years on the Supreme Court if im confirmed. And mcconnell scoffed and said no, think strom thurmond. So who knows. But in any event this is obviously you know, this is obviously a part of the calculus for the u. S. Supreme court. The second reason why the appointment of justices is more consequential than ever, is that the science of predicting judicial opinions and judicial philosophies has grown better than it ever was in the past. Both Abraham Lincoln and Franklin Delano roosevelt tried to pack the u. S. Supreme court. In a lincolns case he was trying to pack the court to uphold his controversial executive orders during the civil war. And roosevelt of course was trying to pack the court to uphold the new deal. But both of them failed ultimately because they appointed justices who were very independent and often went in very, very different directions. Richard nixon, the same thing. But it has been a long time since president has nominated a justice who did not live up to his expectations for that justice. In fact the most recent such appointee, david souter isnt even on the court any more. Thats not to say that the justices are in philosophical lockstep. Theres lots of unanimous decisions. They are independent thinkers and they often go their different ways. But generally speaken, you can fairly confidently predict on a controversial constitutional issue, how a justice will come down based on the Party Affiliation of the president that appointed that justice, thats now permeating not just the u. S. Supreme court, but the Lower Court Decisions as well. One thing that struck me recently and im not, not allowed to talk about and i dont intend to comment at all on pending cases. But for example, the recent challenges to trumps immigration executive order as ive been following it, almost all of the judges who have voted to strike down those orders were appointed by democrats. Almost all who voted to uphold them were republicans. And thats suggests to me is that president s are taking the philosophy of judicial candidates very, very seriously. We are now in the 26th year of a fairly consistently conservative u. S. Supreme court. And what i mean by conservative is a court that generally hues to the constitutional text. Rather than reinterpreting the text to mean different things. This has had huge realworld ramifications. In at least seven areas of the law. Probably all of which are important to each and every one of you as they are to me. In no particular order, the first is private Property Rights. We have numerous protections of private Property Rights in our bill of rights. They have been largely eviscerated by previous courts, especially in the area of takings, where the government would take property, not just through an overt use of imminent domain. But through regulation that would actually lower the value of your property and reduce your ability to use your property as you intended. And that has largely changed. The major exception to that is the kilo Eminent Domain decision that ill talk about in a little greater detail. But by and large, theres far greater constitutional protection for private Property Rights today than there was before the nomination and confirmation of clarence thomas, which was, i think the turning point on the court. The second is the area of racial preferences. That is, the idea that government may discriminate for benign purposes to advantage individuals. Either for the sake of overcoming a disadvantage or to promote racial diversity. Particularly in universities. Again, the court just retreated in that area. In the university of texas case. But again, there are far greater constitutional restraints on racial preferences today than there were 26 years ago. An issue near and dear to my heart because i litigated this issue for a majority of my litigation career, school choice. The idea of School Vouchers or other forms of allowing children to go to the school of their choice, using their share of public funds. This is an issue that was confronted by the establishment clause. And the establishment clause reads that Congress Shall make no law respecting an establishment of religion. This is one of those provisions that the courts had really rewritten. In fact they rewrote it so successfully that we now think of that as separation of church and state. There is no strict separation of church and state in the u. S. Constitution. There is a prohibition against the establishment of religion. When i see those two terms. I see two very, very different things. The court had really a very confusing rewriting of the constitution. And the Current Court has really changed that. And limited the scope of the establishment clause. The case that went to the u. S. Supreme court that i litigated was the case involving the Cleveland Voucher Program in 2002. It was upheld by the resounding vote of 54. And just to kind of show the divide on the court, the dissenters in the case argued, if the court upheld that voucher program, that we would see religious strife of the same degree that we saw in bosnia and northern ireland. I just of course, as a litigator thought that was a tad ridiculous. And in fact we have not seen any such religious strife flowing from that decision. But that illustrates the divide. An issue that a lot of people are feel very, very strongly about . Is the Second Amendment and the United StatesSupreme Court reading the Second Amendment and applying its plain meaning and its historical meaning ruled that the Second Amendment provides an individual right to the ownership of guns. That is an issue that had no been resolved before then. The issue of political speech particularly the exercise of political speech through campaign contributions. Before the Current Court political speech could be very, very heavily regulated by state governments and the federal government. Today those restrictions are far less, less permissible. And again, the Court Reading the plain language of the First Amendment that says Congress Shall make no law abridging freedom of speech. And giving meaning to those words. The Commerce Clause of the United States constitution. Now im getting into kind of nerdy jargon here. But this could not possibly be more important. The power of the federal government to regulate conference had basically been interpreted by the Supreme Court to mean the power to regulate anything, even the power to regulate what individuals did in their own homes, that never passed into the stream of commerce. One of the most infamous cases, wickrd versus philburn, individuals were growing food on their own farm for their own consumption, congress regulated that and the u. S. Supreme court said well of course its a commerce case, because after all these people are not buying something from some other state. Theyre fore, it affects commerce. Again a plain reading of the Commerce Clause would have you believe that it actually requires commerce for congress to regulate it and the u. S. Supreme court has rolled that back pretty significantly. Than an area near and dear to my heart, the issue of federalism, which i think is more important today in the divided red and blue america than ever before. Its so important that states be able to reflect the maximum possible degree, the maximum possible constitutional degree, the values of their citizens, whether its for greater regulation or greater freedom. And federalism was reduced to what the u. S. Supreme court in the 40s called a truism. And now its vital again. Even in the obamacare case, the court ruled 63, that, that federal funding could not be used to coerce states into ad t adopting the federal governments medicare regulations. And so federalism now is alive and well. Nearly all of those areas were 54 decisions. Nearly every single one. So that the switch of a single vote on any of those areas could be very, very decisive. And very sweeping. Am i optimistic about what the future holds with regard to the u. S. Supreme court . Well i am, i am fairly optimistic. Right now the courts fulcrum is californias representative on the u. S. Supreme court, Justice Anthony kennedy. And on the one hand, Justice Kennedy is definitely more conservative than not. I know all of you can think of instances where the not part is you know, is true. But generally speaking for example in fact on all of the areas that i just listed, Justice Kennedy has voted with the conservatives more often than not. I have to say, i view Justice Kennedys decisions as being increasingly unmoored to the rule of law. Even decisions that i agree with. And in fact he wrote the decision in a case that i argued in the u. S. Supreme court involving the interstate transportation of wine. Sale of wine, to consumers. Which people outside of California Care very, very deeply about. And the court upheld it 54. And even that decision, while i was so grateful that Justice Kennedy wrote the decision, i thought it could have been much, much stronger. Hes of late tended to focus on things that are wonderful values like the, the what he calls the constitutional right to define and express ones identity. Nobility, dignity. All of these things are wonderful. But theyre not constitutional principles. I worry about a court, even when i agree with a decision, hitching its decisions to things like nobility and dignity. Because they are in the eye of the beholder. They are not words that have clear ascertainable meaning. And when you give judges words that have no clear or ascertainable meaning, they can invest their own views on the subject. I recently had a dustup with regard to a decision by Justice Kennedy. In a criminal case. I did not practice criminal law, but im finding the criminal cases often to be among the most interesting on our courts docket. One of the areas in which the court has been very active lately has been the area of juvenile killers. And what punishment that they can be meted. And one of the areas that the court has essentially amended the constitution is in the cruel and unusual punishment context, which they have reinterpreted to be cruel or unusual punishment. If its either, its unconstitutional. Of course i disagree with that, because the words of the constitution say cruel and unusual. And obviously for a reason. Nonetheless, the court several years ago held that juvenile killers cannot be sentenced to death. More recently, the court held that juvenile killers cannot be sentenced to life imprisonment without possibility of parole unless theres a determination made that they are at the time of their sentencing irreparably corrupted. And in a recent decision by Justice Kennedy, he said a court has to determine this is all coming from i dont know where. It is not coming from the words of the constitution. In fact he gave a hint as to where this was coming from. Which ill mention in a moment. He said there has to be a determination that the youth at the time of the murder was irrepairably corrupted. As opposed to this being an exercise of these are the words out of the decision transient immaturity. Transient immaturity. I wrote in a concurring opinion in my court, applying this decision. Which we have no choice but to do. Transient immaturity is when my 12yearold daughter slugs her 15yearold brother. It is not when a 17yearold commits a coldblooded premad tated murder. And the court then went on to Say Something else. This bothered me even more than the transient immaturity language. The court said it is our instinct that the vast majority of juvenile who is commit murder are not irreparably corrupted. And therefore in the vast majority of cases they must be given parole. This is like a crystal ball kind of thing. And getting into the minds of these people. And i found that to be so bereft of constitutional mooring, that in an opinion in which we now have to go back in the state of arizona and the state of california, all 50 states. And resentence every single juvenile murderer who was not given the possibility of parole. And some of these go back decades. And the courts have to figure out whether or not at the time they were convicted and sentenced. They were irreparably corrupted. Su dont read about cases like this very often. Theyre not you know, frontpage news. But as i go about my job and i have to apply in the area of federal constitutional law, decisions to the United StatesSupreme Court, when i see cases like this, i think to myself, theres something seriously wrong. Having said that i think that the glass is more than half full. I think that the glass got replenished by justice neil gorsuch. I had the occasion to read a couple of dozen of his opinions as a federal court judge in the 10th circuit and i loved what i read. And i was actually inspired by what i read. There were two aspects of it that i will share with you. The first is, that no matter what the issue was, judge gorsuch always started with the text of the constitution or the text of the statute that he was applying. Every single time. He credited opposing views. He acknowledged in some cases that there might be different outcomes, different meanings. Ambiguities and so forth. And as a texturalist. This is something i need to emphasize, if you were a general texturalist. If you were a judge who genuinely believes in enforcing the rule of law, sometimes, and he said this at his confirmation hearing, sometimes youre going to produce outcomes with which you personally disagree. And i can say that personally in a year and a half, that there have been multiple cases that i have joined or written, that i would not have supported as a policy matter. Im not a legislator, im a judge. And sometimes that means that you enforce the law in a way that comes out in a way that you disagree with. And i saw, i saw instances where i think he did that. He unfailingly starts with the text. And if the text is clear, thats the end of the analysis. You dont look to foreign law. You dont look to instincts. You look to the law. The other thing, this was also inspiring as well. Gore such is one of the nicest judges i have ever read. And he is always complimentary of his colleagues, sincerely so. And even to the divergent views with which he is disagreeing. As you ma i have heard, this was not always the case with his predecessor, justice scalia. Who sometimes could be a little kaust nick his commentary. You know i think that gorsuch is a philosophical heir to justice scalia. But he is a bit more of, of a sweetheart in at least in terms of his jurisprudence. The prospects of change on the court are significant. Three justices are in or nearing their 80s. So this president may have further opportunities to effect the composition of the court. And i hope that this president or any president will look as for candidates like justice gorsuch, who adhere to the rule of law. One other source of my optimism is the area thats closest to home for me, and that is state courts. Enforcing state constitutions. We often talk about our devotion to the constitution. Well of course, all of us have two constitutions. And it was our state constitutions that were intended to be the primary source of the protection over our rights. Indeed, every state constitution contains greater constraints on the power of government and greater protections of individual rights than the National Constitution does and too often we overlook state constitutions as an independent source of our rights. What is really nifty about state constitutions, is that state courts can interpret them to provide greater freedom than the National Constitution, but they cannot interpret them to provide less protection than the federal constitution. I call this a freedom ratchet. Because you can only decide in one direction. Obviously if you decide your state constitution gives you less protection than the federal constitution steps in and gives you greater protection and its really a tremendous thing. Just to give you one example of a case that i litigated a few years ago. Most state constitutions contain a provision that i wish was in the federal constitution. Its called the gift clause. And the gift clause prohibits gifts of public funds. To private corporations, individuals or associations. There is no such provision in the u. S. Constitution. We use that to strike down taxpayer subsidies of, of shopping malls in arizona. You can imagine and you know as californians, you know that the myriad instances in which taxpayer funds are given to private individuals for various purposes. Im happy to say that our Supreme Court before i was on it, did rule that subsidies of private corporations were unconstitutional. Thats just one example of the ways in which state constitutions can provide greater freedom than the u. S. Constitution. I hope that you will all engage in future debates over the shape and direction of the judiciary. Both here in california and at the national level. Obviously the president , the senate and the court of Public Opinion are all implicated by this. And all of you can you influential in in directing how that turns out. I want to finish by again saying, and again, i acknowledge the tremendous mistakes that courts have made over the years. And accretions of power. One of the things that i love about the judiciary and that one of the things that attracted me to a career as a lawyer, was that it is the ultimate level playing field. No matter how much money you have, no matter how much power you have, when you get to court, you have the same number of pages in your brief, the same number of minutes of oral argument, the same opportunity to present witnesses as the other person. Of late for reasons im not really sure about, i often think of a case that my colleagues and i at the institute for justice litigated in the 1990s. A case involving Eminent Domain. A lady named, or a lady in Atlantic City named vera co omc was a widow who had lived in the house for many years. A very rich and powerful local developer had other ideas. He wanted that property to use as a parking lot for his limousines, and so he went to the city of Atlantic City and said you know what . Id like to have that, that, that property. And the city said well use Eminent Domain to take that property and give it to you. Im happy to say we went to court as and has an skpam of how david can defeat goliath in the courts of law, we won. It turns out that the story has a very happy ending for everyone involved. Vera coking was able to live the rest of her life in that house. The developer went on to be elected president of the United States. And my colleagues and i can say that we beat the president of the United States in court. How much better can it get . I want to thank you for having me. Im delighted to take your questions. And i just want to finish by saying go get em. Thank you so much for having me. I apologize for not saying this before people wrote their questions, there are three areas i cannot comment on. One is cases that are currently pending. Anywhere. I mention the immigration cases before as an example. Secondly, any issue thats likely to come before my court. And then finally, politics. And im happy to be excused. From politics, so i may not be able to answer some questions, but im happy to answer the questions i can. Im going to use my executive privilege just like i thought of something as you were speaking. And i was very, very impressed by the thought of sometimes you got to go with whats really there. Versus, you know, its the law, it is the constitution. Pras its my myopic view, but it seems like only our side does that. Could you comment on getting to where you want to go regardless of the law . From the left. Because thats my impression. Well there are, i think it really comes down to, intellectual honesty. And neither side has a monopoly on that. There are liberal judges and liberal scholars who are genuinely texturalists and who believe they are constrained. There are conservative judges and scholars. Some who pick the outcome, and just go in that direction, do whatever it takes. Both of them, whether liberal or conservative, i think they do damage to the rule of law. But none the election constitutional fidelity has generally been a hallmark of conservative scholars. And conservative judges. Its just the way that we see the world. Its a philosophy that our constitution is higher law that comes to us not as mere mortals, but, but from a higher source. And that these are the rules that the constitution embodies the law. The laws by which we should live. We believe in them very, very strongly. I think that its simply, our nature to be drawn to that. I think its very important that we are intellectually honest. Because thats the sort of thing. When people see consistency. When people say well, this president s executive orders are terrible. And go beyond this president s constitutional boundaries, but this president s executive orders dont. Its got to be consistent. Youve got to believe in federalism, whether your person is in charge or not. Youve got to believe in the separation of powers whether your person is president , or not. And now i think its very important for us to show our intellectual consistency and honesty. This is a short question, maybe has a very long answer, but what do you think of dividing the ninth circuit . I support dividing the ninth circuit. Having said that it is much easier said than done. I support dividing the ninth circuit for one very, very strong reason. That is t is so large that you cannot get all of the judges in the same room for the same hearing. As a result of that, you have competing, conflicting decisions from the very same court. You can cite this panel of the court saying one thing and this panel saying another. You cannot have that. Other circuits resolve that through a process called en banc review. The ninth circuit cannot do that they can not establish a consistent rule of law. So i do support dividing the ninth circuit. Its merely a huge question of how on earth you divide a circuit that is overwhelmingly, overwhelmingly dominated by one state. It is very difficult to divide the state. Because then you could get conflicting rules in Northern California and southern california. Or eastern versus western. And that would be, a jurisdictional issues and so for the. So who gets california and their circuit is the real problem with coming up with a solution for which the problem is very, very real. We have a variety of questions around much of the same topic. Whats a polite way to say perhaps old and decrepit judges. Is there a recourse for judges have life terms. As you stated. But is there any point in time where something can be done about that . In arizona and some other states, we have mandatory retirement age of 70. That is in my view, a little perhaps a little as people work longer and stay mentally acute longer, that may be too young. As far as the federal judiciary is concerned, there really is very little avenue for this. I know a tremendous amount of peer pressure if one of the judges is losing it, his or her colleagues will definitely let them know. It means a tougher burden on them. But short of impeachment, which obviously is only been done a couple of times, in american history, thats the system that were living with. We have a few younger people in the audience. Which law schools in your opinion are good and not biased . Do you have an opinion on law schools . If youre possibly an aspiring lawyer, please introduce yourself to me. I mentored a lot of young people over the years. One of the favorite parts of my job is having two law clerks, teach them and learning from them, especially the technology stuff. I love my work with aspiring lawyers. You know, the world of legal, of law schools has changed dramatically since i went to law school. The main thing that has changed it is an organization that i hold in enormously high esteem. And that is the Federalist Society. They have not only reshaped law schools, but also the judiciary. I mean they just have a tremendous impact on the judiciary. But what the Federalist Society has done. Have not taken over law schools, conservative and libertarian students still constitute a very small minority. But what theyve done is that they, they have first of all, made it a congenial thing, to go to law school. You have friends who you know, you share values with. The Federalist Society also has basically introduced the idea of civil debate into law schools. And so a lot of deans, liberal deens have told me there would be no debates in the law school if it wasnt for the Federalist Society. Its just, its wonderful. Basically, what that means is any law school that has a Federalist Society, is a fine and congenial place to go to school. And almost all of them, have active Federalist Society chapters, even my own alma mater, uc davis, i had real difficulties there. Two of the three years i was there, our Commencement Speakers were jane fonda and ralph nader, which reflected the ideological composition of the school. Im happy to say instead of spending my Graduation Day with ralph nader, i spent it in napa valley. Ive never regretted that decision. But uc davis had a very vibrant Federalist Society chapter now, its a congenial place to go. So the key thing to know, i did not know this because i didnt have mentors when i was choosing law school. The two things most important about a law school are the law schools reputation, because doors will close to you if you go to a law school thats not you know, not as highly ranked as you possibly can get into. So go to the highestranked school that you possibly can get into. And the second part is, the the law school with the most congenial environment. It can be three years of utter hell. And so you want to be in a place that you enjoy being. Whether that means nyu, because you love new york, or Drake Law School because you love the midwest. Go to a place that, thats congenial. You can tell i do this a fair amount. But im happy to do it on an individual basis as well. Would you comment on some of the u. S. Courts declaring that sharia law is a cultural matter . I cannot. Because that is, that is an ongoing issue. For add a little lightness to it do you really type with one finger . I do, it is really, really fast. Its even been on tv and back in my single days, flight attendants would always Pay Attention to me. Say ive never seen anything like that. But i learned to type when i was like four years old, it was on one of those old manual typewriters, bang, bang, bang, it just got really fast. I never found a use for any of the fingers on my left hand. I do occasionally hit the shift button. But it has transitioned me well to the world of cell phones, because im very, very fast at that, too. You said that schools are a favorite subject of yours and perhaps related to other things you talked about. Is there a point where a judge needs to recuse themselves from a case . Judges except for u. S. Supreme court judges, they do not have a rule of ethics that applies to them. So they basically literally have to make it up as they go along. With you most state judges if not all state judges are bound by rules of judicial ethics and you must avoid the appearance of bias and thats why i, i told you the things that i couldnt talk about. Because the last thing i want is for someone to tell me, you expressed a view on the outcome of that case. And as a result, i had to recuse myself from all cases in which i was involved in at the Goldwater Institute. And and so ive recused myself from several. I had to recuse myself from case where i own stock in a company. And that sort of thing. Judges can express views on philosophy and on cases that are already decided. Without tainting their view. And i hope that even those who dont agree with me when they see my decisions, believe that i am an unbiased judge. In any case where i felt that i was compromised, that i knew the outcome before i looked at the briefs i would recuse myself. Anyone who follows the courts at all always hears about the living constitution versus the texturalist. Where did that come from . The living constitution . Thats a really good question to which i do not know the answer. I think that it came from a Court Decision. But i could be completely wrong about that. This is one area where i regret that, that those with whom we would disagree on matters of judicial philosophy have seized the rhetorical high ground. Of course our constitution is a living constitution. Its principles are as, are as relevant to us today, perhaps even more relevant than they were when the document was started. So its very much a living document. What it is now is a selfamending document. It stays the same. Unless the people amend it. So i, i would try to recapture that term. If i look this good when im over 200 years old, i would be pretty darn happy. Kind of amusing, it comes out of a declarative statement and then asks the questions, why do lawyers in general have so little respect for the highest law of the land . You may comment on if they do, and if they do, why . You know, honestly, and this is perhaps even more damning than the question, i dont think lawyers think about it very often. They think about the area of practice in which they are engaged. That could be wills, it could be personal injury. That is actually been an interesting phenomenon in arizona. With the election of governor doug doosy, who appointed me. Unlike his predecessors, after we are judges are names are sent to the governor through nominating commissions. And he judges in the state of arizona. These are not tell me something about yourself interviews, they are tell me what your philosophy of the religionen the free exercise of religion versus the establishment of religion. Whats the best u. S. Supreme Court Decision in the last 50 years. Whos your favorite justice and why. You know what . A lot of people go to that interview and they have no idea what their answers are to these questions. And so thats so i actually think that that ignorance is worse than a active disdain because you can at least engage someone with a act of distakdai. I dont think most lawyers give the constitution very much thought. And part of the remedy of that, i try to be a part of solutions to problems i identify. Im making my teaching debut at im going to be teaching constitutional law 2. What i want to teach my students is not just what the law is, but a love, a love for our constitution and a love for constitutional law. If they have that, even if they go into water law, theyre going to be reading u. S. Supreme Court Decisions and internalizing them and analyzing them. If we have lawyers who really care about the constitution, boy, thats a huge part of the battle. We talk a few minutes ago about dividing up the 9th circuit. The question is what would it take to divide the state of california in up to two to six states. I have no idea. I would like to hear from you how to do that, how you are going to do that. Ive heard two and three. Six sounds interesting. We had a couple questions about article 5 and the convention of states. Would you like to talk a little bit about that and your thoughts on it . This is a very controversial subject and that is whether whether the people should invoke article 5 of the constitution. I know theres some enthusiasm for that idea. The framers gave us not one but two ways to change the constitution. The Convention Idea has not been used since the 1780s, but it is a mechanism that the people themselves can use to alter the constitution. There is a tremendous division among conservatives and i hope it is one that does not spill over because the people on both sides of this debate are of entirely good faith. And i hope that well respect each others opinions and the good faith with which we hold our opinions. I do note, im sure all of you know former senator jim did he minute stepped down as president of the heritage foundation. He has now joined the convention of the states idea in a formal capacity. I tend to support the idea. And im not hugely educated on it and im not directly involved in the effort. But i think here is the ultimate safe guard of a convention. I know people are terrified of a convention. 38 states have to ratify any constitutional amendment that is proposed by a convention. If we have 38 states rat fying a antifreedom amendment, its done, were done, all right . And i dont think that will ever happen. And as a result, im im more im not as concerned about the negative aspects of a constitutional convention. The positive aspect is that oftentimes when the people begin exerting this view, Congress Responds in a positive way because it puts tremendous pressure on them. Ill give you one quick example that im enormously proud of. Its not the Convention Idea but the Goldwater Institute started a idea called right to try. Some of you may be familiar with it. And its a state provision that says that individuals with fatal diseases have the right to choose, the right to Access Medicine that is experimental and not approved by the fda. That has been gone through clinical trials. Well the states may not have the power to do this. This idea spread like wildfire. Now over 30 states have approved it, including governor jerry brown signing californias law to that effect. We thought that the fda was going to file a lawsuit to challenge this as a violation of federal sovereignty over international commerce. We were sure that was going to happen. We were preparing for the litigation. Instead, they act down. They change their process which took months to apply for a individual use of a experimental drug. And almost no one had the resources to do this or the time in many instances. They cut that down to a number of hours. And thats what i see potentially happening with the Convention Idea is its a tied al wave, its a tsunami and Congress Responds in a way it wouldnt because the last thing it wants is to have its hands tied with a constitutional amendment. Its a pragmatic perspective im voicing, i can be dissuaded from it. But by and large i think its a idea thats a good one and the framers intended us to use it. Thats a good answer. Okay well end with something a little philosophy cal. When evaluating a law for constitutionality is the perceived of the law or how the law will likely be implemented. Thats a good question. How the law will be implemented or the perceived intent. First of all, as ive said over and over again, the text of the law is whats crucial. And just to give you a example of that, segregation was widespread when the 14th amendment was passed. But the 14th amendment guarantees equal protection under the law. If we interpreted it according to what the framers meant, we might have segregation today. Instead, the courts rightfully ultimately interpreted it in accord with the plain meaning of the language of equal protection and the philosophy underlying that. I think thats the right thing to do, even when it leads to a outcome that you might disagree with. After that, i think that, and this is such a interesting question, i think that intent is much more important than how the law will play out. Correcting its own mistakes is the role of the legislation, not the role of the courts. And in fact, i this is a scalia quote that i absolutely love. He said, you know, Congress Passes crazy laws all the time. He said our job, if they send us garbage, is to send garbage back. Garbage in, garbage out. And that really, you know, i mean i am very concerned about the effects of such things sometimes, but we are not we are not in the in the business of correcting legislative errors, we are in the business of enforcing the will of the people expressed through legislation, unless it violates the constitution. Okay. Thats it for tonight ladies and gentlemen. Thank you so much. Wonderful audience. See you next month. Cspans washington journal live every day with news and policy issues that impact you. Coming up this morning the beck he the fund for religious liberty. C. Q roll call transportation reporter will talk about infrastructure Reform Efforts in congress and the upcoming september 30th deadline to reorganize the faa and the wildfire managementment be sure to watch cspans washington journal live at 7 00 eastern this morning. Join the discussion. Monday marks the 16th anniversary of september 11th and our live coverage of the remembers begins at 8 00 a. M. On cspan 2 live from new york city for the National September 11th memorial. At 9 30 live coverage of the kmoin at the pentagon. At 9 45, live from shangsville pennsylvania, the live memorial. Watch it live on cspan. Org and listen live with the free cspan radio app. Congress returned from its summer recess this week to a full agenda including health care. Republican efforts to repeal and replace the Affordable Care act in the senate failed in july. This week, the Senate Health education held hearings to look at individual insurance market. Tonight well show all six hours of the hearings including testimony by state Insurance Commissioners and governors from across the country. Well start with shoons commissioners from oklahoma, washington, tennessee and alaska. The Senate Committee on Health Education and pensions will please come to ord order. In the individual Health Insurance market for 2018