it does not sound like you can hear me. hello, are we on now? ok. hamilton was fascinating. we were able to get tickets. some of my grandchildren in new ,ork were going to be with us and we were there the night before, and they said poppa -- they call me poppa -- they said poppa, this is in wrap. they thought this look of horror on my face. i said, wait a minute. the whole idea of rap is is designed for argument. this is an argument between primarily hamilton and jefferson, and a tremendous amount of words. so you can tell a story. the first act is in our and 40 40utes -- an hour and minutes. it is dynamic. washington is distinguished, stately, elegant, impressive man. he is a black man. others, there are hispanic hamiltonctors portray and jefferson -- which is to show that the constitution is people," and they are young people having fun. i have to be careful about talking about old guys, but the framers were not a lot of old guys. they were young, they were dynamic. i was concerned about the actors not needing voice rest. i also needed time just to -- it was fun. miranda, who wrote the script, music and he plays the role. and i said thank you for bridging to generation gaps, one between our time and the founding and the other between myself and my granddaughter. [laughter] he later tweeted and we talked about that. withd the civics meeting the winners of the civic awards earlier today. a couple years ago, the young high school person across the street, set i am almost finished with all my credits. i am a senior, all i have left is civics and driver's ed. something where you learned -- learn it for a couple weeks in high school, it is who we are. americans defined themselves by their constitution. that is what creates us. this is our heritage, and you must know our heritage. hamilton is a splendid way to know our heritage. a bypass,t i call living in a bypass universe. you don't go to amazon -- i mean, you don't go to macy's or walmart anymore, you go to amazon. go to the bnp. -- bnb. politicians now go right to the people, not to the press or political party. some feel bad about it, but monotutions with communication -- some of my children are very good, they like music very much and like classical music. themselvesstening by , when we are at home. and i like it, listening to beethoven, third symphony, second movement very quiet, you can watch -- you can't do that anymore. i call this the bypass generation. we can't bypass our heritage. we can't bypass the knowledge of who we are. you don't take a dna test to see if you believe in freedom. freedom is taught and teaching the constitution -- i won't go on too much. thank you so much for having the civics program and informing our students that they have to learn about civics, because that is who we are. we define ourselves by the cuts and freedom and the contributions. -- by the constitution and freedom and by the contributions to the city. [applause] judge burgess: let me shift gears for a moment and ask you, obviously, the supreme court has to deal with issues that have a profound impact on individuals and on society. you have the last word on those issues when you issue that decision. i would like to know -- and you have played a critical role in many of those important decisions. i guess my question is, does that ever way on you when you wrestle with having to make a decision like that? justice kennedy: any judge in this room knows decisions weigh on you. the fascination about being a judge is the same about the duty of being a judge, and that is to ask yourself, why am i about to rule the way i am about to rule? you must always ask yourself that question. it is -- you can't get through life. you can't get through the day without making certain assumptions, having certain precepts, preformed ideas. but in the law and particular judging, you must find the reason that is impelling your proposed decision, and you must do that into a form of words. you must then ask, is it logical? is it fair? is it in accord with presidents, with the constitution, common sense? doesn't accord with my own ethics and sense of values? i must follow as a judge, not my personal values, but the values all of us must follow to do our duties? you must always ask yourself this question. and to keep an open mind and to always ask yourself what it is that is driving you to make a butsion is not in decision, fidelity to euros. but fidelity to your oath. know, you mentioned social issues -- we have to ask ourselves, why is it is that -- five of, justices the 9 -- can make decisions of such great import with respect to issues of social justice? sometimes the court is the anti-majoritarian solution, we defend rights of majorities -- minorities. but over time, over history, it is important the majority accept those as correct. and how does that happen? it happens because we give reasons for what we do when we write an opinion. we try to compel a good agreement with what we have done mend over time, it seems to most decisions of the supreme court have found acceptance in the bench and in the bar, and most important, in the american people. position i sought . some of you know the story. i talked with mary and peer he told the president we did not want to go to washington. but he was a rather insistent man and said that, if i asked was-- if he asked me, there nothing for me to accept. we are pleased to fulfill. the role that the constitution gives us. kennedy, you spoke of the process in which judges should contemplate exactly what their ruling means and the gravity of it, contrasted with the forms, instantaneous and kind of shallow even aspects of the internet that pervaded society to great degree. at last year's conference, you spoke about having read a book called "the shallows, one the internet is doing to our brains." read that, it was fascinating. what impact do you see on our lives and civics courses? justice kennedy: thank you for the good impression. [laughter] there is no use bemoaning the cyber age, it is here. the invention of the gunpowder and come this and printing press, and we are just beginning to understand it. in my interest, give me time to read about the internet. i need to have a glossary or a lexicon of terms. you know, it is all greek to me? that is misleading, because if there is a greek word, you can look it up and see what it means. when you learn about the cyber age, it is hard for people of my generation to understand it. book there is a very good about the internet -- there is in the new york review of books in just a few mendelson, aedward historian and humanities professor at columbia university. he reviews five books about the internet. it is one of those articles or the article itself is worth reading because it is so scholarly. i will tell you more. he talks about two books -- he talks about a number, but one by professor harcourt who teaches law. -- and thelks about book is called "exposed desire and disobedience in the internet." many in the modern age can -- 10 to confuse a selfie and yourself. idea, a is an that youn, a promise have formed over your past, and you identify your self for a certain roles that you can maintain a certain aim. but the internet with a selfie focuses just on the present and what you are -- many people have a digitized personality. 1984, one of the most important works ever written, helped us -- intand the cold war 1984, the dictatorship was always surveilling you. now young people want to be surveyed. they want people to know where they are at all times. , ankleis for parole bracelet or wrist bracelet, attached the gps -- it is a punishment. people want that now. [laughter] it is completely reversed. 1984, it was very interested in what you thought, but with the internet, we have ideasremendous number of coming in at all times. ,his whole idea of privacy which we think of as a person who has his or her own identity, is being changed very, very much by the internet. the law will have to deliver this. the whole -- deal with this. the whole concept is privacy. they print a picture that looks like someone else, neighbors say he committed the crime, he is wrong -- the whole idea of fornition and the rules recovery from damage to change.on, they have to we don't know how this will work. we have no framework, no analytical framework to understand what is happening with the internet. and harcourt's book is this , thinks the internet is quite automatic so far in our society, though he recognizes it is here. on a more positive note is by virginia have her men --hefferman, and is called "magic and loss." the magic if you can push a button and get anything you want like that. the loss is the music industry as a result. explains first, she thinks the internet is a treasure trove for aesthetics. it means that within everyone's fingertips,eir there is a magnificent world of beauty and art and contemplation and poetry. when texting first came, when that was the principal part of the internet, more and more people were reading more and more often, and the internet had its own language, its own poetry. when devices could only have 35 words, it was like doing a haiku . so there was a challenge and aesthetic possibilities. and she pointed that out. suppose that the principal television networks, abc, nbc, , told their film crews they had to work seven days a week, 24 hours a day for , andars to produce footage it produced all that footage. that is what is added to youtube every two weeks, every two weeks. how do you police that content? in part, it is self policing. they have a system so that if something is offensive from a moral standpoint, sexual standpoint, it is eliminated, more or less self policing. but there are comments, again with tremendous aesthetic possibility. again,other hand, and this whole concept of privacy, this whole concept of a , onenment regulated speech of the things the communists did not understand in the cold war was that the best kind of economic organization is lateral, not vertical. and the internet has lateral teachers for corporations, government, large groups are putting messages on the internet. how do you sort all this out? this will present a whole new andm of questions theoretical problems for the long run. we are just beginning it. and this book by virginia heffernan, who is a beautiful writer, has a lot of technical says, so there is this magic. there is a profound sense that we are more lonely somehow, not as close as we are to those who do shape our personality, and we should console them. we hope, we almost hope that the internet will lead to a civic, civil discourse. this nation lacks rational discourse. the rest of the world has it, but united states -- to see of democracy works, they look over to see the level of its discourse. is it rational, fair, respectful ? and we have to hope that the internet will lead to that dialogue, which will be respected first by us and then by the rest of the world. , and ise are two books the new york review of books june 23, page three or four, i think. [laughter] margaret foley: mendelson? justice kennedy: mendelson, very good. teaches at columbia. [laughter] to pick upss: i want a little bit on that theme of loss you just mentioned, but of a different type, and the loss of your close personal friend .nd colleague, justice scalia i wondered if you would share your thoughts on what his passing is meant to you and to the court. justice kennedy: byron wright once told me that anytime a justice leaves the court and the new justice comes, it is a completely different court. we have experience that. the senior and then the next senior judge, new judges come in, old colleagues leave, always a new court. we have never experienced the loss of a colleague during the session where he was an active judge. -- i never sat next to i wasn the bench because next to junior to him, so we were on either side of the bench, but on the conference table, we sat together. i set next to him for 28 years. in the same room. there were certain things i knew he would research on very well, and i more or less relied on him for that. it wasn't layer to me that we would agree on the result -- clear to me that we would agree on the result. he had a magnificent mind. spoke and wrote with great clarity. me just beforeee he left for singapore and hong kong, and then went on the hunting trip. i said nino, you really have to take care of yourself. lot of work here. he said this is my last long trip. and it was our last conversation. but if you are in the same room with someone for 28 years, the important heart of the institution, that is what the part of theortant institution, that is what the court tries to use in order to issueswe are probing the . we rely on each other very much for help. we miss him greatly. judge burgess: thank you. thank you. me -- ed next to [laughter] a couple weeks after we lost him, i saw the empty parking spot, you get these -- well, i have got questions from the audience. let me ask you the first one. justice kennedy: they can afford our rate. i don't know about margaret. [laughter] margaret foley: not sure either. judge burgess: do you think that supreme court justices should serve for a set term? justice kennedy: there are articles on this and how do you do it. there have been proposals where, every four years, the president can appoint one or two judges or justices, and then, with a one of those judges leaves the bench, then another can replace him just for that term. that makes sense. you would have to amend the constitution to do it. one reason to justify tenure is you have a voice -- our generation does not have a president. mccain would have been president for our generation. , inid it, we do have addition to myself and justice ginsburg and justice breyer and justice scalia, although we disagreed, our beginning points were the same because it is a generational thing. it is important the court speak over time. does serve that, so you can argue it back and forth. -- was being aif ?upreme court justice your goal and if not, do you have some other job that you wanted to -- [laughter] poorly int due to this career path, but is there something else he would have liked to have done? justice kennedy: i still miss my practice. we used to be called attorneys and counselors at law. i like the counselors. i was a solo practitioner for five years. had toto tell my clients make this decision. we were not far from the capital park, beautiful park. they would say, what am i supposed to do? i would say, you make up your mind, go around the park. i thought you could do so much with counseling. i miss that. i miss that. margaret foley: there is a question from -- justice kennedy: i love my practice, i miss my practice. margaret foley: what do you know now you wish you knew when you were practicing as a lawyer? justice kennedy: my practice with such that it was about only 3% litigation. for litigation, it would have been helpful for me to know that the judge needs help on the hard parts of your case, not the easy parts. you always want to talk about the easy parts of your case, but it seems it may have been more successe -- i had some -- most of my appearances before the supreme court, court of general jurisdiction, i did not go to federal court very often. but i think i should have done a better job pointing out the hard parts, to recognize them and here is the answer. one of thess: questions we have is, is it the duty of a citizen to vote? following up on that civics theme, and should they be taking advantage of their constitutional rights to vote? justice kennedy: my granddaughter just became 16. we went to the high school graduation, and she sent us a picture of registering to vote. had a pair of cut off levi's. [laughter] that when she goes to europe and sees those crosses after world war i and world war ii, those were young men. like one of the people today in the vietnam war. young men and young women sacrificed themselves so you could vote. always vote, or you can complain. -- can't complain. it is interesting, in the european union, the more power the european parliament had, fewer people turn out to vote. it should be the other way around. it is very odd. one way to teach civics is to have a t with rights and responsibility. rights ande responsibility. judge burgess: i know -- justice kennedy: you must have a civic consensus, civic dialogue to make sure what it means. went over to: you europe a lot. have you been following the brexit vote? what are the implications from your experience? it seems to me: this is a good time to ask, what is the meaning of political democracy? you assume there is a political will. voting is a way to formulate, express, document political will . and there was concern in england, as there is concern in parts of europe the government was to promote, whether -- too remote, whether right or wrong, for them to decide. but president reagan was asked by margaret thatcher if there was somebody she could talk to about the history of federalism, and he asked me if i would meet with the prime minister. she and dennis are very nice to me. we went to dinner a few nights. part of my advice was the history of our federal shows that one of the many things that is different -- europe has to have a political -- we talk about political dialogue in multiple languages, 14 different languages. can you have political dialogue in that many languages? the language that is most in common in the eu is english, but only 12% of the eu speaks english. that is mythe things suggestion with the prime minister is that, if the united states was bound because it had a single currency. my advice was if you join the euro, it would be difficult to maintain independence. plusese will always be and minuses, but i hope there is a wake-up call to everyone for brexit, those for and against, you need to have working democracy where the .itizens aren't concerned where they take an interest in government. >> i understand you worked in montana as a young man. what did you do? and how did it prepare you for your work on the court? workce scalia: i used to in the oil fields. since i was 14 years old. my first job, they didn't know what to do with me. iworked around with a rig but had my new gloves and my hat and overalls and it was the longest day of my life. 8:00 inen there since the morning. it was 10:00 in the morning, i was ready to go home. fields, the tool shed was called the doghouse and i was to nail up the siding of the doghouse. had the studs up, the two by four. it was a big tool shed. 10:00, the foreman came over and i was going to show can hammer and i nailed my glove to the wall. couldn't get the glove out. i said things are going fine here on the job. i pulled and i my hand out of the glove. i'll get the glove. he said no, no, no, you leave that glove there. and every salesman and tool pusher that came out, it was, here, look at the glove." but the big event in glen dive the burlington northern came through, at 5:25, we'd come the and see people in dining car and that was it for the day. but i got a great job. job.h i still had the there's a lot of paraffin in the wells in the basin and the with wax stopped because the oil has a lot of wax in it so the oil can't come up. was you hadgy then a tanker truck with gasoline theers in it and you pumped oil up and you heated it and then you pumped it back down so paraffin would melt. and after you did all the hookup and everything, you had to wait for about three days. but you got paid the whole time. job.s a great i was reading -- my father loved to read dickens. was reading a dickens book. and one of the guys said what are you reading? and i said, "tale of two cities" and i said let me read you first part. best of times, it was the worst of times" and then like, "it was best of times, it was the worst of times" so that was my contribution. say how big the ninth circuit is. you should remind people that congress has significantly reduced our jurisdiction. to have a jurisdiction inr article one courts china, for the first 50 years of hadlast century, this court jurisdiction over a legislative shanghai, canton, and i think schengen. 2,000,i probably almost under 2,000 miles from guam so congress has really trimmed our back.iction [laughter] >> i see margaret approaching the podium. time.ays a bad of you want to thank all for what a wonderful conversation justice kennedy, judge burgess and margaret me in a roundjoin of applause. [applause] >> supreme court justice elena kagan talked about the life and legacy of her friend and former colleague, justice antonin scalia. joining in the discussion, university law professor william kelly, and leonard leo, executive vice president of the federalist society. hour.s about an >> sometimes people talk about members of their profession as the profession and i often have a difficult time understanding the analogy. not so with justice scalia. he was, in his personal life, docile. and in public life, he had a roar that could be heard for miles. so we thought it would be fitting today to bring together knew him veryho well to talk about his legacy both personally and professionally. me, of course, is who truly needs no introduction. you had one last night. very fortunate to have her with us for the fireside chat. brief. keep this safe to note that she's held pretty much i think every job in american law any young lawyer would aspire to have. as the first, the first female dean of the harvard femaleool and the first solicitor general of the united states. her first oral argument in justice united before scalia. we're going to hear that story this morning. myt to justice kagan is friend, bill kelly. he's now a professor at node. started his career as a law clerk to justice scalia and in things, he's two done some mighty interesting things himself. he's served as an assistant to solicitor general of the united states arguing before the supreme court. spent time in private practice and was deputy council to the statesnt of the united in the bush administration. he's a wonderful friend and a you here.ure to have he's also written one of the, i insightful summaries of the justice's career, it's in the george washington law review, "justice scalia and the long game." next to bill is leonard leo. leonard is a close personal friend of the justice and his family so we get that today.tive with us you may have seen him on c-span the scriptures at the justice's funeral. he's the executive vice president of the federalist society. he's served on the united states commission on international religious freedom. the been a u.s. delegate to u.n. commission on human rights among many, many other things. please join me in welcoming this wonderful panel. [applause] now, i plan to promptly get out of the way here. start things off, i think everybody who knew the justice probably has a favorite anecdote. the man was larger than life. would each of you please share us your favorite scalia anecdote. justice? justice kagan: i'm not sure i have a single anecdote. have two ways that i'm going to remember him. at conference,s at the court. and no particular conference but of sittingperience with him at conference. the way the conference table court, thee supreme chief -- it's a long kind of table and the chief justice sits one end and the senior associate justice sits at the goes end and then it around the table in order of seniority and for all the time court,have been at the justice scalia was the chief sat onte justice so he the opposite end of the table and as the junior justice, i sat endis right down at other from the chief justice and up ace scalia would keep kind of running patter throughout our conference. our conference, it's a pretty formal affair, everybody talks in turn and so forth. but justice scalia would sort of on everything. comment on the cases, comment on everything that was being said about the cases. and anybody who knows justice scalia knows that he has really anhe had extraordinary sense of humor. extremely witty man. so i would just be laughing all the time. except, you know, he was doing it kind of sorta so muchay so would notice him and i would burst out laughing on occasion and the chief justice be looking down on the table like what is going on there and why is justice kagan interrupting the proceedings? and i always wanted to kind of this.e like, it's his fault, you know? i remember him, that is the way i remember him most and best, is getting me into trouble at conference all the time of his just incredible wit and maybe his irreverence, well. the second way i remember him is is as different as different can be but is as a hunting partner. so, there's a story behind this. i grew up in new york city. do a lot of hunting. but as i went through the askedtion process, people me a lot of questions about whether i had, you know, any connection with hunting or guns or gun culture or what-not. and i failed all of these questions miserably because the answer was, no, i've basically coaster alln east my life, this is something that's pretty foreign to my set of experiences. was once talking to a senator and he was asking me all these questions but i said you know not hade that i've these experiences but i said i'd and if youe them would invite me to your ranch to hunting with you, i'd love to come. and the senator, this abject of horror came over his face and the white house staffer accompanied me on all these visits had fallen off the sofa i went tooht, ok, far so i tried to pull it back a little bit and i said i didn't myselfmean to invite hunting with you but i will tell you what, if i'm lucky enough to confirmed, i promise you that the first thing that i'll do is i'll go to justice scalia and him to take me hunting. when i did get confirmed, one of the first things that i did was i went to nino and i told him this story. and he thought it was hilarious. i mean, he was just -- he funniestt was the thing and so he took me to his and taught me how to shoot and taught me about gun certain point he said ok, i think you're ready to go. ad he invited me out with long-standing group of hunting buddies he had. out to near charlottesville, virginia, first we shot quail. and what surprised me and i think is a measure of his generositypersonal was that he didn't do this as a a funny story, and i'll let kagan satisfy this campaign promise of hers but he on asking me and he basically said join our group this thing that he loved so much. and one of the reasons i'll thatber it, him always in context is because one of the things that i think made justice was thisstice scalia incredible joy of life and i've really never seen anybody enjoy than he didre hunting. it was sort of wonderful to man have this jaw desevere has he did this thing. those trips on where i got to know nino extremely well. wyoming for a you of a days once. we went to mississippi for a few days. trips, it's two hours in the car to charlottesville or richmond, two hours back. talk.s a lot of time to so a lot of my personal fromction with nino came these trips and that's the way find myself remembering him over and over again. inviting me.for as i was thinking about this, it occurred to me, it's not every day, it's not every day that one with a supreme court justice. intimidatingittle but not nearly as intimidating as it was over 30 years ago to rising second-year student review facing law elena kagan. she was truly scary then. i think she'd agree, too. -- does is she said talk about this conference where no human being is allowed to go they have a commission to the supreme court. how do you follow that? i can't follow that but when i about anecdotes and the joy of life idea of comes to mind. the laugh, the laugh. he would laugh a lot and we would say things when he trueved to be obviously and wait for you to react and if you disagreed, he would express false outrage and if you agreed, he'd laugh, laugh, laugh. anecdote that comes to when i wasg here is with him, my wife and i were expecting our first child, 28 ago, his 30 term. and i knew that the boss had was lookingn so i for tips. justice, any parenting tips? no, come on. tips? mean?o you besides, maureen did everything. this, she's ayou pain in the neck when she's young, she'll be a pain in the neck her whole life. [laughter] and if she's not, she's not, so you've got a lot at stake at the beginning, let me tell you. i can say happily that it turned both at the beginning and at the end. leonard: well, i guess there are mind.ings that come to one is a story that the justice use to regale us with lots of never told him we had heard it several times already. with his senior year at georgetown. and, of course, he was a great student there. was a tradition back then that you had to have an a board ofefore priests at georgetown. i don't think they do that now. but he had his oral exam and as it, he was hitting them out of the park, one question after the next. he knew his renaissance literature, he knew his history. grounded in ancient history. he thought he was just doing great. chairman of the board, just have one we final question for you, mr. scalia. what was the most important in human history? thehe doesn't remember answer he gave, but what he remembers is all sorts of events in human history rushing through his mind. the polyponesian wars, rumancidents from the empire, the invention of the printing press. rattled off one of these events in human history and the priest just shook his head and mr. scalia, the christ.ion of and he describes himself as just shrinking just to a tiny little person in front of this committee. and what was wonderful about the story for all of us who always heard it was, first, as a thing bill alluded to, me loved to joke about himself. effacinggreat self sense of humor so he was telling a story about a failure of his which i think said a lot about the person, the way he opened up to a lot of people. it said aly, i think lot about both his humility and views human life. he was looking -- the way he puts it, he was looking for some in human history, something man did that made civilization great. the answer that was the one he was supposed to give had humang to do with greatness. i think that says a lot about who he is and how he conducted life. >> i loved fly fishing with the justice. i would say he fished exactly as you'd expect someone from queens, new york, to fish. there are no fish in this river. time we'd takee judicial notice on fishing trips. colorado, you fish on the water with gentleness. there was no gentleness. finesse he lacked in made up for in enthusiasm. justice, you've spoken about his contribution to statutory interpretation. and i wonder if you'd share some of your thoughts with us about textualism and his views on that. justice kagan: i was very honored last year to give the antonin scalia lecture at harvard law school. to honor him and thought the way to do so was to establish this lecture series asked to do it and thought it was really a terrific honor. was alive.s when he and i went and i spoke with my friend and one of his clerks about his contributions to interpretation. and i think what i said there was that he should have declared long ago, that this is, i think, what justice scalia for moreown in history than anything else, as having the entire enterprise of statutory interpretation. so if you'll indulge me, a story mine a particular case of which i had in my first year with the course. millner, a freedom of information act case. scope ofalt with the an exemption for the freedom of information act meaning that the scope of something where the government could hold back rather than disclose materials. exemption for, i think it was called internal personnel procedures and practices. d.c. circuit had created out of this idea of you materials relating to internal personnel practices, this exemption that said you can withhold anything that would allow people to violate the law. way they did it was, you know, there were a set of d.c. circuit opinions about this exemption written by really superb judges at a time -- since the time when bill and i both the to law school in 1980's. and they didn't really mention the text of the exemption until like page 18 of the opinion. and they just talked about all kinds of things that they found record andslative they talked about how it just toe sense for this exemption exist. and so that was the question, whether this exemption was was, as interpreted by the d.c. circuit, in the way on ford been going decades by the time this case had gotten to the course. to i remember going conference one morning and i met in -- actually not on the way in. the way the supreme court set up, he was down the hall from me. it was quite something. officed come out of his door and look down the hall to see if anybody was coming. down thether people hall were justice thomas and me you towould wait for come up the hall. i always felt like the teenage girl, somebody was waiting for to school together or something like that. there was just sort of a -- anyway. to come down me the hall and we walked the rest of the way to the conference said, you know, i've just been reading these cases. mean, everything about the way we do statutory interpretation is different. cannot imagine anybody writing these kinds of decisions now. i mean, nobody on the court -- the left or the right -- nobody on the court would think a decision which didn't really even mention the statutory text. write on the court would a decision which placed front materials fromom the legislative record and legislative history. justy on the court would think it was enough to say, well this kind of makes sense as we see it. and that had all changed in the prior couple of decades. has all changed because of justice scalia. and i always felt as though, you justice scalia was still -- i mean, the rest of us quite purist enough for justice scalia. sometimes we would mention legislative history. sometimes we would say something that he would have thought was in keeping with the focus on the text. he hadlways thought that won 80% of the game in that the that everybody didn't recognize that, didn't courtize that the entire had moved extremely far in his direction, was because he kept demanding that we go the last 20%. he had been aif little bit more of a diplomat at at -- or less of a fighter, what have said was, isn't this cool, basically everybody statues the way they they should and i think that's right. >> gents? >> i think what justice kagan said was exactly right. and it's part of his personality. beingseved that human were imperfect so the last bit would have been difficult for take. justice kagan: it rankled. bill: it rankled, that's the right word. singlehandedlyst transform the terms of not only how things are done but the debate about how things are done. even those who don't agree with interpretations have -- and that really is quite a change over the last generation. the only other thing i'll add i would commendis i to everyone his last book which i think could potentially go down as being as important as blackstone's commentaries or cook's institutes at least for americans. cares aboutmuch he language and construction. whole thrust and canons ofe construction. an incredible, extraordinary breadth of ofwledge in this area construction. and i think that final work is a very important capstone to his career. a terrifican: it's book. neil, you and i yesterday talked aout the lockhart decision, decision last year where the court had to wrestle with very statuary language and justice sotomayor wrote the and i wrote the dissent. one of the notable things about the decision was that both relied on justice scalia's book. that's not to say that justice scalia's book, you can make it.hing of it's that sometimes there are good arguments on both sides and there were arguments on both sides that could be found in the many, many pages of that book. sign of and it's a i think that this is going -- you're going to see this over decade, is that's going to be kind of the standard reference when it comes to statutory interpretation questions and particularly about statuary canons. justice, we have to hear the story about citizens united, oralvery first appellate argument. i just cannot imagine that being my first. i need to hear that story. justice kagan: i was very nervous. was my first appellate argument. i was nominated to the s.g. position, for whatever reason, because you know i had not done an appellate argument and to your first one be at the supreme court, to have your first one be of the importance united, i was pretty nervous. and making me even more nervous, had gone up toi the court because the day before investiture was the of justice sotomayor and the clerk of the court, justice looking to be nice, making conversation, and he said what will be on the bench for the justices when , this is to the podium what the justices look at and what the justices look at is with your pages standard biographical material youwho's made a motion for to be a member of the supreme court bar and things like that but attached to it is a list of the supreme court arguments you have done in the past. me this pile of papers and there were three arguingwyers who were that day and the pile of papers, the first one is ted olson and goes on and onf and you're flipping pages and you see 90 arguments and the one was ed waxon and he's done 75 arguments and you're still flipping pages and the third one was floyd abrams and relative newbie to the court, he had only done 25 arguments and then it said elena kagan and then there was no paper. you know? , are you trying to psych me out? day and there the next my heart really is pounding. hear almost like couldn't anybody for it pounding so hard podium.t up to the forget what i cared for. sentences, five tosix sentences memorized get me into the argument and i thought i would get five or six sentences out before the interrupted me and i got a single sentence out, literally, one sentence. a short sentence, too. and then from the bench i hear no!"no, no, no, [laughter] justice kagan: and then he tell me why this single declarative sentence i 100% wrong.was thatt was great for me day, best thing that could have happened for me because it's that comes atn you, you have to deal with it and you have to say something something back. and i thought, ok, i'm in this game. favorwas like, a great that he did to me, i think. and for the entire year, i loved to be questioned by justice scalia. as solicitor general, i argued a wide range of cases and some justicees in which scalia naturally agreed, predictably agreed and some were the position i took, justice scalia did not agree. but either way, i actually loved questioned by justice scalia. he asked questions in a very straightforward way. they were often extremely tough. they were often extremely aggressive, but there was never anything hidden in them. there was no sort of hidden agenda. and there was no lack of clarity. you always knew exactly where he was coming from and exactly what you ant and he also gave chance to respond to those questions, which sometimes in supreme court argument, you don't have. but he was very fair in that way, you know? he was going to give you the best he had. give you agoing to chance to argue back. so for the entire year, i really -- i so enjoyed the back-and-forth with justice found it, you know, i picked abably, if i single justice where i just, case in, case out, whether i was him orm or against whether he was with me or against me, just case in, case the that those were exchanges that i enjoyed best, it was with him. clerk, giveas a law us some insight into his workings. council be tough with on oral argument, and maybe some insight into why. bill: i was there his third term so he was a young person and learning the job. and one of the things about becoming a federal judge, as the room know, and supreme court justice in particular, is that there's a to learn and we expect our federal judges to ofome expert in every area substantive federal law and procedural federal law. it's a hard thing to do. you're on the supreme court, you're expected to write opinions that will meet the the smartestsm of people specializing in patent antitrust law, criminal procedures -- the whole gamut. you're supposed to be an expert of the true experts in every subject. it's a really hard thing to do. learn.e's a lot to it's a very hard job. so it was really exciting to him incredibly exciting and fun to be with him as he was out what he thought because he genuinely didn't have views about most questions when he began on the supreme court. he knew a lot about the andnistrative law regulatory questions that came before him on the d.c. circuit not a world expert on criminal procedure or things like that and so he was learning loved it and it was fun. but it was hard. process was that after he had read the briefs, and you had briefs, he would gather all of the law clerks for a before the conference in every case. and the group would talk about as itcase for as long took for him to get to a point he knew what he thought and that experience, to was as extraordinary a legal experience as i've had and challenging as a one that i've had because just as he was an active questioner on the imagine what it was like when there was nobody listening. was fun. and very, very challenging. throughout, as well, the excitement was that we really like justice scalia was different. he was new and different because andeally cared about theory methodology and the right way to do the job appropriate to the role of judges in our constitutional system. he really cared about that from the beginning. that wase him work out really quite extraordinary. why irt of the reason think he was so aggressive in argument at least frequently so, in his opinions, he was very aggressive, as we all know, was that for him it wasn't personal. it just wasn't. it was about the law. he took seriously that when he put the robe on, it was the the person.ot and he understood that and lived it in ad way, from case to case, across 30 years, that really was extraordinary. won theot care who case. he didn't care. if it was the government in a case, the government's got to follow the law. what is the law? that's what he cared about. right legal answer. and it wasn't that he didn't care about the human cases.ences of he thought that the people of the united states had way in which the legal system would resolve these questions about people's legal duties.nd and no one had given him the should wincide who except insofar as the law for him itat and so was the law, it wasn't the person that mattered, in case term after term. that's who he was. he would have no more thought that it was his role to decide winners and losers in a legal case in terms of the consequences of the outcome than his role to goas across the street to the congress and urge them to pass law which would have consequences for people. that wasn't his job, he thought. reflected in how he dealt with the idea and the materials. the legal materials, that's what he cared about. leonard, tell us a little bit about the justice's personal life that we don't know. he was a big family man. started his career, i don't think many people know, in ohio. he started hisso career as a practicing lawyer. i believe it was jones day, in ohio. looking back on his career, not necessarily what you would expect, right? he was occasionally asked about that by law students. and he gave a very interesting answer. we talked about it at one point. got out oft when he law school and entered into the hectice of law, of course loved the law, and he was very good at it but he thought it was important to be a good father and husband and he wanted a reasonable legal career, one with he could spend time his family and one that was not as frenetic. and back then, he says, jones that recognized the importance of balancing work family. and you see that throughout his career. even though he was extraordinarily busy, obviously, with being a lawyer and then being an academic and being a judge, also being a government official, he always had time for his family. they're a very closely knit family. they have great -- they had great fun together, particularly dinner table where there was lots of banter, as you can around amuch like conference table in a court. and always great jokes. family lifegreat and you'd always see a twinkle his eye when he talked about his children and his many grandchildren. it'sget the number now but quite a number. is it 42? ofery large number grandchildren. so he was a great family man. he was also, of course, very devoted to his faith. and there's one image that's indelibly marked on my mind about that. after holy communion, he'd go back toward the back of the pew, kneel, to the bow down, completely still and hisnt for a long time with face cupped in his hands. just at was, for me, tremendous symbol of his think that iti whoe volumes about -- about he was. and that was, of course, very much instilled upon his family. they tell different stories about the frenetic rush to get to mass. you can imagine when you have nine children, it's not easy to get out of the house for a sunday, ors on getting into mass late and sort of ruffling around. ultimately he imparted a tremendous sense of faith and children and you can see it in them. they're all great kids. probably saw father paul scalia's celebration of the mass in washington and of course if you there were. extraordinary to see masson preside over that for two hours. must have been at least two hours. cross the casket to stand before his entire family was probably one of the most powerful homilies massever seen at a funeral or any mass and that i think is a tremendous tribute to his dad. was in many ways a thatestation of upbringing. it's really quite powerful. you shareice, can with us what holiday parties at the court were like with justice scalia? the supreme court had a christmas party every year and justice scalia, i don't know self-appointed, i suspect he was the off-appointed sort of head singing. he had a great voice. so he would sort of lead. a room in the supreme caroling tooke place and he would lead the ofoling with a great deal gusto. of hisu know, in terms brought tohe joy he that, as well, the thing i remember even more than the thisay party is we have tradition at the court. the court is a place of many traditions, some of them a bit peculiar. and one of them is we gather for for any justice's birthday, all nine of us, and we sing "happy birthday" to whoever's birthday it is and was the only one of us who could sing. so justice scalia would sing "happy birthday" and the rest of go kind of -- [humming] aftere kagan: and then justice scalia passed, we had to kind of carry on without justice scalia's voice. it really sounded atrocious. it was terrible. so all of us were like, oh, my gosh, bring nino back, please. [laughter] neil: bill, we talked a little justice'sthe statutory interpretation contributions. haven't talked about his contributions to the interpretation of the and originalism. some people expressed surprise the justice often ruled in favor of the criminal defendants. kilo, jones, the rule of leninity, which he promoted or the doctrine in the last term in the acea cases. do you see those rulings as surprises? bill: no, i don't think so in general it was surprising at all that his interpretive methodology would lead him with some frequency to rule in favor defendants. when people sometimes criticize him and other judges and justices for being results-oriented, i often think, you think as a policy matter good thing ifs a a person who's obviously guilty of a serious crime goes free? as a policy matter, they would want that? of course not. but there are more important stake than that immediate question, obviously. somer the justice, he took time intellectually to come to originalism was the right way to interpret the constitution with all of its challenges and foibles and one thing he liked to say is you can't beat something with nothing and there's not a lot of good competitors out there. say.s what he would and so if he believed that the constitution, as originally understood, its original meaning, required an outcome, that's where he would go, without fear of favor every time. and one thing about justice personality or his believed that he the default position of human in this country was one of freedom. that's where we start. we're free. interveneing's got to to change that in the law. the constitution, originally meant,ood, originally were some abridgements of people of liberty out of bounds. simple.t it's obviously very simple for lawyers to hear that talk but was, formental fact him, to the extent that he was toertarian when it came criminal procedure cases, it was because he believed that the itself was founded upon libertarian premises, when people are dealing with the situations where the criminal law is at stake, the people who made this law sure that the freedoms of people could not be abridged in ways and he followed that where he thought it led. neil: would either of you two originalisment on of the justice? leonard? think it was, i part of a broader enterprise for is the preservation and defense of the structural constitution. i think one of the most important contributions he made generations ofwo law students to think about the different andn a really important way. if you go back to the 1970's and and -- 1980's, and even youome extent today, when ask people about the constitution or about constitutionalism, they tend to talk about rights. know, the first amendment, the fourth amendment, criminal privacye rights, protection. and i remember he used to say as hend over again, crisscrossed the country talking to law students, he used to say, ask, why is america such a free country? you think it's the bill of rights, you're crazy. every president for life, every banana republic, even the former evil empire, former soviet bigger and better bill of rights than ours. and the point he was trying to the was that without structural constitution, without powers,on of federalism, checks and balances, bicameralism, he used to talk about all these different structural features with law students all the time, without rights ares, those just partially guarantees. and i think of course the the judiciaryf which is tied up with the idea of originalism and how one goes business of interpreting laws in the constitution is a part of this to defending the structural constitution as, in his view, i think, the most important bulwark of freedom and thedignity and worth of human person in our constitutional system. justice kagan: i'm reminded when bill said within his view of originalism, it didn't have to perfect but just better than the other methodological remember a joke justice scalia used to tell about this. it was about two guys in a and a bear comes along and the other guy starts running and the other guy says, why are you can't outrun a bear and the other guy says i outrun a bear, i just have to outrun you. respect to true with constitutional methodology, nothing's perfect and the question is what's better than the rest. to youw, it's no shock think that originalism is not better than the rest and i'm not now to talke time about that but instead just to say one thing about justice scalia's contribution in this area which is that i think justice scalia put on the table for absolutely everybody, those who reached his answer and those reach his answer, a pretty fundamental question and fundamental challenge and that was that somehow, somehow, everybody had to come up with a method of resolving problems that disciplined judges. in other words, that a judge do whatever he or she wanted, that a judge couldn't say here are my values, here are my principles, here are my politics, here's the way i think would look like. that was that not the way to do the law and it was not the way law anynstitutional more than it was the way to do other law. and what justice scalia, i what his really even aggressive formulation of originalist principles and originalist it did was tohat make everybody else, those who his answers as well as those who did, grapple with if it's notn, of, that, if it's not the originalist answer, if it's what does discipline judges. with an to come up answer to that question. if you don't have one, originalism does win. only way it loses or the only way another method of constitutionthe can be better than it is if it better -- is if it, among its other virtues, has an answer a judgeuestion of how is disciplined so that it's not all about them, it is about the law. neil: justice, i don't know if you saw this when you were at alsochool teaching but i get the impression that he improved upon the originalist ways.rise in important when i went to law school in the 1980's, we talked about it more as originalist intent and law students had a tendency of heads of get into the particular framers and i think his originalism was much more, about publicively, meaning and a proper use of materials that way so i think in addition to advancing the theory of its relationship to the disciplining of judges, i itsk he improved upon approach in a way that i think is very important for people ideological and philosophical spectrum because there are people on the left who to use originalist principles a little more than 20 years ago and i think it's partly because it's been, i in goodweaked a bit, part, by justice scalia's voice. bill: to add a word about this subject, two separate, quick points. i do think that the -- we live times in which in the legal world and more broadly, it is important to just the and reflect upon reality that the nine justices who disagree about big things sharply, sing "happy birthday" to one another. that justice kagan is here speaking about her friend, justice scalia, even though they disagreed mightily about big, big questions, and the supreme functionshow it collegially should be a role model for all of us in our professional and personal lives. one.s part part two is i want to say without precedent, the justice precedent, he starryd in the rule of decisis, he would sometimes point to the commission on the say, i am not a nut. he said i'm responsible for the i say andor what stare decisis is part of our system. so one way in which we temper fundamental philosophical disagreements about how judges should go about how judges should interpret the law is through the precedent. the reason why frequently, at and justicece kagan scalia could agree on a case about something that matters a world would be that they would agree that the lead to an outcome and i think that's an important ofety valve in the system jurisdiction prudence that we have. amongall three of you are the finest legal educators in the country and i know justice passionately about legal education and one of his great loyals leonard is involved in with the renaming of the george mason university law school in the justice's honor. i wonder whether you all might andent on his views contribution to legal education. leonard? he always -- he always loved being a teacher and was ak even when he judge, he was really a teacher. hissed to talk about how dissents were his way of imparting ideas on future students andf law lawyers. i think it's very fitting that there would be a law school named in his honor because of his dedication to teaching the law. mason, obviously, is a heool that is near where lived and worked and he also gave the dedication speech to mason many, many years earlier when it first starred. so it's, in that respect, a very appropriate place. but he had a tremendous love for the legal academy broadly. he had great affection for what was going on at particularly under justice kagan's leadership back then. he used to talk about that from time.o he loved his years teaching at chicago and even stanford briefly. crisscrossing the country talking to law students. he used to spend an hour, hour on his feet fielding question after question after question and occasionally would about legalon education. occasionally a law student would get up and say, what should i do at law school to really prepare well? and this goes back to a point think bill, you made, about how people expect federal judges to be experts at everything. he used to tell law students, take the real law courses. take intellectual property, take tax, you know, take the courses. learn how to be a real lawyer and learn real law. can take a seminar on law and philosophy but take the other real law courses because that's what you're going to need and he used to express regret not taking enough of those in law school. bill: he would often say that wrote his why he separate opinions was for the and for the future lawyers.ns of he was -- given the rest of his personality, he was surprisingly optimistic in the sense that he actually felt that reason would should prevail. make the cased and he would say, you know, i didn't persuade people this time maybe next time. and sometimes that happened. hishe also wanted to make separate opinions, especially opinions, more fun to read. because law students have short attention spans, i guess. and so part of that was his educational mindset was, i want can't persuade people today, i'm thinking about 10 years from now. justice kagan: and he succeeded that. i was a classroom teacher for 15 years and i taught thousands of students. almost most fun classes always involved a justice scalia opinion. are mesmerized by the way justice scalia writes. to sometimes you wanted shake them a little bit. say, no, but just look past the way he writes, you know. he he was so -- the way writes is mesmerizing and you didn't think you would ever be attracted to becomea sudden attractive because of the way he presents them and argues them. did say a number of times that his target audience was law students, and boy, he the bull's eye because law students that come in, they open these textbooks, it's dry opinion after dry opinion. they haveks as though a sense of humor. though -- just, you know, there's no life. a justiceou reach scalia opinion and you start smiling and you start nodding along. and you start fighting with him, within the opinion. it's just -- the opinions to -- they just -- it's hard even describe. but year after year after year, class after class after class, all these students, they would come to me and they would say, you know, i came to law school like a good liberal and i just find myself really attracted to he's saying. now, he would say that that was of his of the power ideas. and i'll let him have that. but in addition to that, there's just an incredible power behind knew what washe going to make law students sit did.d take notice and they justiceere will we rank scalia in the pantheon of now?ces 100 years from justice kagan: i'm not sure i want to do a ranking but one of aboutings that i said harvard and i'm glad he was alive then and i'm glad he knew that i had said this. he actually crateecked my my lecture. john maddon sent him the tape. he watched the tape and came back with four points of agreement, four points of disagreement. it was tremendous. an hour of your life? it was like, of course i did. what are you talking about? tremendous. but one of the things i said then was i said, you know, all us, you know, 100 years -- from now, most of us, your names will be forgotten, are.y will know who we we seem important now but in the long course of history, i mean, you, if you go back to in 1916, you won't know a lot of those names. that's true for the current court and more modern well.es, as not so of justice scalia. and i do think justice scalia the rank up there as one of greats, as one of the most important figures on the court methodological positions that we've talked thet up here, because of way because of the way he wrote, because the way he change the way we all talk about law. agree with him, disagree with him, justice scalia changed the framing of legal arguments, change the way we all speak and argue about law. a pretty big a combo schmidt. 100 years -- a pretty big accomplishment. he is going to be high on the list. >> i completely agree. i did write one time that when appointed,lia was nominated, a lot of commentary that he was very young and charismatic and charming and full of life person would be very effective on the supreme halls, anding the charming his colleagues into agreeing with him. that was part of the narrative before he was confirmed. several years later, he -- the narrative was he was too pugnacious and alienates people. he did play the long game anyone at the idea and words to matter -- and he wanted the ideas and words to matter over time. he will be remembered for that. --will be remembered as well the prose really was unbelievable. after justice jackson, hard to and completerose -- in supreme court opinions than that of justice scalia. that is sometimes distracting. what justice kagan said of students being beguiled by the writing without digging into the underlying meaning can be true. that, one thing justice scalia would frequently say, good and clear writing is a sign of good and clear thinking. the opposite is true as well. history will treat them kindly on both fronts. >> i have no doubt he will be remembered as a great justice. i hope he will be remembered as a great american. integrity, honesty, dedication to our country and its ideals, dedication to faith and family. my hope is that he will be just -- that he will be remembered as a great justice and a great n who defended our country's principles. [applause] >> paul ryan says he is sickened about donald trump screwed crudets about -- trump's comments about women. in his statement, the speaker said, i am sickened by what i heard today. women are to be championed and revered, not objective five. -- objectified. meantime, he is no longer attending tomorrow's event in wisconsin. in a later statement, donald trump said mike pence would take his place in wisconsin while he is a new york preparing for sunday's presidential debate. we will have the wisconsin event live here on c-span at 3:30 p.m. eastern. >> the second presidential debate is sunday night in st. louis, missouri. watch our live coverage at 7:30 p.m. eastern for a preview. at 9:00, live coverage of the debate followed by viewer reaction. the second presidential debate, watch live on c-span. listen to live coverage of the debate on your phone with the free c-span radio app. >> a conversation with a political reporter about the second presidential debate sunday evening in st. louis. can watch the debate here on c-span -- you can watch the debate live here on c-span. >> for the second time in this fall campaign, hillary clinton, donald trump on the same spade sunday night, washington university in st. louis, missouri. thank you for being with us. a different format, a townhall meeting format. how are they preparing for this? >> donald trump is doing a lot more preparation than he did the last debate. he is hoping he can stay on script and have a very successful debate sunday night and once again jumpstart his campaign. manager forign hillary clinton already telegraphing they are expecting a much better prepared donald trump. >> both sides are trying to manage expectations. it is a fair expectation to have. the big variable is that is a -- it is a townhall format. people are going to be real voters and asking each of the candidates questions. both of these candidates have had problems being likable. they are two of the least liked presidential nominees in history. this is an opportunity for both of them to show they can relate to real people, that they can care about the problems that voters have and the concerns they have. in both camps, there has been a lot of talk about how these candidates who are not always the most relatable can show voters they can relate to them. >> did the debate earlier this week with tim kaine and mike pence have any impact on donald trump specifically? >> it was a very clear example of what his message could be. if he could just deliver it clearly and with a little less anger. victory thats a they needed for morale reasons example ofain, an why he has made it this far. he has a message that has resonated with a lot of voters if he can just stay focused on that message instead of getting pulled into all of these attacks and name-calling and site controversies -- side controversies. >> hillary clinton and tim kaine getting some criticism about being overly prepared. a lot of hillary clinton's shortcomings during the first debate were overshadowed by donald trump. a lot of trump supporters noticed them, saying she seemed robotic and scripted and a little too forced. all things she has been working on, all things she will continue to work on. tim kaine's performance did not go over well. there has been a lot of criticism of that. all of those things are being internalized by the clinton campaign as they get ready for the next big debate. >> after the first debate, donald trump telegraphed that he might go after bill clinton's past indiscretions. justth donald trump, you never know. he says he does not plan to bring it up. he sent a statement to the new york post page six, the gossip he wantsnd told them to win this election based on his plan for the future, not bill clinton's past any plans on staying focused on the issues. we will see if he can stay true to that. especially if hillary clinton starts attacking him on some of the things he has said about women over the years. that seems to be his trigger point for lashing out. >> in your conversations with the campaigns, what do you expect to see sunday evening? >> that is a very good question. two candidates who will be cautious in a way. they both know this format could backfire on them. them reallywill see going out of their way to connect with the people asking , stay to their talking points, and not create any controversy that can take away from what they are saying. >> this is the headline on washington post.com. johnson.ting of jenna thank you very much for being with us. >> thank you for having me. a discussion about the role of the tea party in the 2016 campaigns. this is about 45 minutes. washington journal continues. and: more politics now joining us from atlanta is the chairman of the tea party patriots citizens fund. thank you for coming back to the program. you have endorsed donald trump. that happened in september. tell us why. we are a grassroots organization and our access wanted us to make the endorsement of donald trump and they do not want to see hillary clinton become president. and we the endorsement are working very hard in pennsylvania, florida, ohio, and north carolina. we are going door to door and doing everything we can to specifically ask voters for the vote and tell them why we support donald trump. host: you made the endorsement in september. but back in march, you said of donald trump -- he loves himself more than the country and he loves himself more than the constitution. he does not love you army. he does not love the tea party. he has no business thinking he is tea party. what changed? the fact of the matter is he is the nominee for the republicans and our supporters want us to do everything we can to help him get elected. in 2012, we did not have a super ac then so we did not make formal endorsement of anyone in 2012 but our access around the country in their own capacity romney.king for mitt he was not their first choice.