Transcripts For CSPAN2 After Words Jon Newman Benched 201801

for 45 years. and this book talks not only about that life in law but also about your political history and a lot of personal stuff on the issue of personal stuff i should disclose the beginning i was your law clerk some wraps around 40 years ago, a long time ago. and you also officiated at my wedding so we been good personal friends for a while as well tread to a law clerk relationships one of the great perks being a judge. i have had 95 locks or expert you are one of the very first seven have gone on to become judges, 14 are tenured professors at leading all schools, and one is a united states senator. only one is a standard so far and that is you of course. but there may be others. >> host: let me begin by asking you how you decided to write this memoir, sort of a very personally insightful view of your own life. >> guest: it's occurred to me sometime ago that almost everyone should write a memoir. as i get a little older, 50, 60 or so there are recollections that your children and grandchildren, everyone's grandchildren need to know. you've told so pick your children, and grandchildren and you told them a lot of things as everyone does but there are details that you probably haven't told them. and when is hope you will and others will sit down to write a memoir, you will recall the details that they need to know. i was after my father to do it for years and he wouldn't do it. he finally did at age 90. he wrote a lovely very personal memoir which told us things about his growing up that none of us knew. so i think not only was i collect of a chance to do, i think everyone should do it for the own family. >> host: did it take you long time to do it? >> guest: it did. i started this about 12 years ago. i didn't work on a daily by any means. i have a day job, and i worked on from time to time. essentially finished up about three years ago but it was a process evolving over about a 12 year time frame. >> host: speak of the day job used to our an active judge even though you have senior status? >> guest: senior status as you know means what you get to be a certain age in the federal system you allowed to elect to become a senior judge. that means you can adjust the volume under cases as much or as few as you want. you don't pick your cases. we never picked our cases that we can pick the days we sit and we just take what comes those days. it's probably the greatest semi retirement in the history of the world because you keep your job when you're on the court that day, you're doing exactly what and what else is doing but you don't have to do as much. >> host: you are indistinguishable when you're sitting. >> guest: for the lawyers that makes the difference. we're full-fledged judge but we just don't have to do as much as the others. >> host: speaking of being active, you are 85 years old, remarkable also. you still play tennis and some golf, and so no one should doubt that you are very, very active and vibrant as you always have been tragic i think that's true. >> host: let me go back to the beginning, so to speak, and ask what do you to the law as a profession for you as a way of life now after all these years you devoted so much of yourself to the law, the legal system, justice or the justice system. >> guest: i think the law was almost like a jerk. main interest went to college and law school was public servant. i didn't have a precise notion of what opportunities i would have. most people don't. it's just luck of the draw the kitchen somewhere. i thought law school was probably an entrée into different opportunities that might include public service. it turned out that was true but it don't think anyone set their sights on being a a judge becae the odds of becoming a judge our long and it's a fatuity when you get to be one. but i was lucky enough to have different opportunities. i worked at the supreme court as you did, law clerk. i got into state politics as you did. i was u.s. attorney as you were. we travel a lot of the same paths, and then added the next with a set of circumstances a district judgeship opened up and because i i had a close relationship within senator robocalls he sponsored me for the judgeship, and that led to a position on use court of appeals for the second circuit, 36 years ago, and that's that's where i am now. >> host: i want to get to the center because he was a mentor to you as it was to me. an extraordinary man at a very different time politically. and press you could talk a bit about a book rubalcaba and that his relationship to john bailey and how politics was different than then it is now especially for somebody like him a cared so much about policy and the development of others in public service. >> well, they were really the ideal political team. he was the candidate and bailey was the political person. he was the state chairman, became the national chairman. they consummated each other brilliantly. ribicoff understood the political or how to do certain political chores and the political leader new the candidate had to be out there leading the way on issues. he was bailey sort of the prototypical old-line political boss which some people regard as the majority. i don't. he was state chairman 25 years. who did he run for office? here at chester bowles, and ribicoff 50 new issues report. the issue in 1959 when i first worked at the legislature was court reform of all things. not many political leaders are for court reform. ribicoff understood that was a big issue. they really went along with it. and they each knew what the other have to do for them both to be successful. >> host: but you tell remarkable story in the book about ribicoff considering abolishing the court of common pleas try to yes. >> host: knew that bailey would absolutely abhor -- >> guest: yes, sort of a summit meeting during the debate about the bill and ribicoff some a bunch of people to get office, democratic leaders, republican leaders, the state bar. i was working for bailey, not ribicoff it we're sitting in the back of the room and the state bar chairman said to the governor, governor, a way for proposal, i think we should go father, i think we should replace it with a new superior court system. i looked up and i saw ribicoff going like this to me in the back of the room. i walked up and you whisper to me, he said, do you think we can go for this? i knew the court of common pleas was a source of great patronage. he had naming the prosecutors. although i was only what, 26 been, 27, a little brazen, i whispered governor, i said i think if you go for this, mr. bailey is going to swallow his cigar and choke to death writer in your office. and he kept his mother a a loot that mean he said, he thinks of? i said yes, i do. he turned back to the crowd and said well, i think that's an interesting proposal but we need a lot of study and we will move on. and we moved on. but we've asked the court reform bill. eventually the court dash it was a big issue and replaced, the records run by crushers and hardware salesman at all kinds of people. we created, they created a court of full-time lawyers, confessional court, still exist today. has a different name now. i was a 20-foot incredible justice in connecticut. >> host: i think the wonderful aspect of the story it shows the partnership between the political boss and the politician, both in the best sense of the word. >> guest: the governor got the bill he was most interested in and bailey resisted the added step which would make him politically. >> host: john bailey was responsible for those three that you mentioned, but also for john f. kennedy. maybe you could about that? >> guest: well, ribicoff and bailey were both for john f. kennedy early on in the 1956 convention with john kennedy ran for vice president, which he lost which body was a good thing. i don't think he would have been nominated, then vice presidential candidate frankly. in fact, there was a time in the 60 convention in los angeles when a tv reporter came to the connecticut delegation, and as they do, they thrust the mic in front of him and he said and old-line, he said when is the connecticut delegation going to caucus? this old veteran said we caucused in 1956. [laughing] so they go way back with kennedy and they both were instrumental in his nomination. and it was significant that ribicoff a jew was for john kennedy the roman catholic, in fact, there it was in store men i think pittsburgh among the democratic leaders in 58 or 59, all catholic except ribicoff. they doubted john kennedy could win the election. >> host: that john f. kennedy -- turkey right. they remembered how smith. ribicoff said i i thought i wod ever see the day when a jew would have to tell catholic leaders of the catholic could be president. >> host: in those days balancing the ticket in terms of religion really mattered and religion mattered particularly in that election to john f. kennedy because had to convince people that he would not be a catholic president tragedy that's right. made a historic speech about in the campaign. >> host: then when ribicoff was elected, he was elected governor. he helped to elect john f. kennedy as president and a lot of folks expected him to be attorney general. >> guest: they did. >> host: and what are the questions i had been reading your book was by ribicoff decided to be secretary of health, education welfare as it was then no, now it is secretary of health and human services? >> guest: he and i went around the country during the 60 campaign and everywhere we went people said lyndon johnson who was been running for vice president told us governor, you will be attorney general. and in the south bay like that because he was perceived as a moderate. when the election was over and kennedy invited him to hyannisport and asked point-blank, what job in the cabinet do you want? i think the others held their breath waiting for standard because they thought he wanted to be attorney general. and he said to the president, daily position i would even consider is secretary of health education and both of it when asked about the lid he said look, i had to interest whatsoever in being the attorney general. he said i don't want to be a law enforcer. that's not my style. he said to be hcw, health education welfare, was sort of a bigger governorship. they were the education issues, health issues, welfare, first agencies. it was like being the governor only on a national scale. he said that appealed to me. and so we did it for that reason. although he did became very disillusioned not because of the issues picky love the issues. he liked the education, medicate. he was a big proponent of medicare before it became law. what you didn't like was being a cabinet officer having to deal with white house staff. >> host: he did want to take orders from someone else. >> guest: correct. >> host: when you say became disillusioned, he became pretty frustrated. >> guest: he became frustrated. there was a key day when we tried to get a new education bill and the talk to the white house about it, we think we have day we can get the votes. the white house it all right. to the secretary, you go up there and larry o'brien and the legislative liaison will go with you. ten minutes before we're due to go to the got a call from the white house, larry is not going with you. ribicoff was furious and i think that's the moment he decided on going to go home and one for the senate. >> host: you are working with them as his chief assistant while he was in the cabinet. when he went home you manage his campaign for the united states senate. >> guest: 62, you turn what did you came back to washington. how was the experience different from being his assistant while he was in the cabinet? >> guest: they are very different. as you know being a senator, the cabinet your city on top of the vast bureaucracy, h.e.w. within 75,000 people. it unimaginably difficult, even though it doesn't have education today, my guess is there are more people there now. senate office is much smaller. yours is not bigger than ours was but it's a relatively small office. and instead of dealing with the bureaucracy you dealing with 99 of the senators. so the dynamics of the relationships are entirely different. you are trying to work out the details of legislation, see what can be accomplished. it was in those days much more bipartisanship that i think there is now as i read the papers. i can remember when the administration set up a bill on civil rights at it had a key title, it's been called title vi, still is, on eliminating segregation in federally financed programs. the original part of the kennedy bill was terrible, frankly and ribicoff said suit which you can do to make it better. the first thing i did was call a friend who worked for a republican senator, keating, and we worked out an improvement bill across party lines. there was a question about doing it that way. try what can keating of new york turkey right. republican, and are to assist and work together can work out the bill, became title vi that's in the mall today. it's a much stronger version that kennedy had said that the 1961. >> host: in the book you make the observation that in some since you are proudest of the civil rights legislation that was achieved during the relatively brief time that you were -- >> guest: the most significant thing i worked on, yes. >> host: there came a point where there was an opening for united states attorney. >> guest: there was. >> host: until about how that happened and -- >> guest: there was a judge was nominated for the district court to the second circuit, judge anderson, abuse attorney became a district judge. we did know anything about it because ribicoff was at the gym center. we did know anything about it. junior senator was senator dodd. i got this note official white house document announcing those two positions. well, i did know much about it but it occurred to me that met the was a vacancy for u.s. attorney. i walked in to the senator and a shooting and i said you think i would have any chance of getting that? he gave me a notable answer which i remember verbatim picky set listen, if you want a position you had have to tell n the next ten seconds. i said, well, i've given it a lot of thought and, yes, i would like to try. he called up john bailey the was the national chairman at the point and the agreement was reached, and in a few weeks i became the united states attorney. >> host: and you enjoyed that job? >> guest: it was a fabulous job as you know. it's a marvelous lawyers job. you have great client, the united states of america. your client doesn't bother you. you do have relations with the department of justice but they basically don't bother you. you have the awesome responsibility of deciding whether to launch a prosecution or not, which is a critical decision in the law enforcement process. the office of small enough i got to try cases. many u.s. attorneys don't try to own cases. i tried my own. it was a small office. so it was fun it was relevant. it was important work, very satisfying. >> host: one of the most important pieces of advice you gave me was to try cases, which i did, and that's what of the reasons why i posted is the best job i've ever had, bar none. but you have going on tv i united states district court judge and the judge on the court of appeals. as the judge of 45 years having gone from that active life of making decisions and going to court and advocating a case to judging, , was that a difficult transition for you? and did you ever miss the life of advocacy, so to speak? >> guest: it wasn't difficult. it has been for simplifying gnome. i've known people who became judges and so disliked the decision-making process that they left the bench. i was an advocate. i was glad to be an advocate. i found the decision-making process, while there was different, enormously challenging, enormously satisfying. while i like being u.s. attorney i had to say i love being a judge because the opportunity to resolve disputes, large and small, that all matter to somebody, some of them have large public significance, and that's a very satisfying role. it's interesting that in secret we also have the task of running a trial and trying to convey a sense of order and fairness to a courtroom. it's got jurors, witnesses, lawyers running around. it's a busy place. the court of appeals is required. required. and just two other colleagues. very different. but both roles are extremely satisfying, very worthwhile and i'm so privileged to have the chance and still have the chance to do it. >> host: you make a point about your prosecutorial days, and you just made it again, that the decision to prosecute is not only the most sometimes difficult but also consequential, which i found as well. maybe you can talk about why charging someone with a crime, even if they are eventually acquitted, is a consequential decision. >> guest: if you charge someone, first place in the federal system, charges are brought generally where there's a very strong case. >> host: proof beyond a reasonable doubt. >> guest: in order to convict. but to start the case and, federal prosecutors generally only go forward with cases that are quite strongly they have resources of fbi and other agencies. that helps. but occasionally there could be case with a come to you, the fbi comes to you in the federal system and asks permission, as you know, that's not the way the state system works. the federal system needs the permission of a federal prosecutor, unless they see the current happening on the street. so if you go ahead, the chances are there will be a conviction. every once in a while you see a case and you say, this doesn't look so good to me. you say to the agent can go back and check some other things. i had one very interesting case where they came and brought the case where there was an accusation of rape. i won't go into all the details. takes too long to tell if it's in the book. it's a good story, but the accuser would've been believed by a jury in an instance. very respectable person. the accuser was this little tiny rent of the guy. nobody would have believed him at all. but the agent was suspicious. i was suspicious. we gave them both lie detector test. he passed, she flunked. we investigated and we found a third-party witness in a bar who could corroborate exactly what he said and blew a hole in what she said and there was no question she was lying. we dropped the case. had we gone in the case he would be in jail today but we dropped the case. i think we did the right thing. >> host: there are some wonderful stories in this book, i just might add, and we can't go into all of them here but it's one of the reasons i really recommend the book. as a prosecutor he became a judge. people wonder, are prosecutors tougher on defendants than the average what would be? in other words, as a prosecutor, delete anybody is guilty as charged? >> guest: i find it's the opposite. i find that judges who have been prosecutors during the arguments of cases will give a harder time to the prosecutor, particularly if this made some mistake. not something that undermined the conviction but he is just an something unprofessional. the other judges, some have come from academia, some from private practice, wasn't too serious. i remember sitting with judge lombard, one of the great prosecutors in manhattan, and we had a prosecutor that had done something inappropriate. we both came down on him so hard, and the other judge, he wasn't too concerned. i don't think we bring a prosecutor bias. i think if anything we expect higher standards of prosecutors that people have not in use attorneys. >> host: and i found that as well as a prosecutor, often i was most concerned about a judge who had experience as a prosecutor because they know, as you did very well, , what the right thing to do for a prosecutor would be. maybe we should talk a little bit about your days on the bench. what do you think was the most exciting trial you had as a district court judge? >> guest: well, the most bizarre was a case involving the fire borrowing of that shelton rubber factory, a trial that lasted i think eight weeks or so. very early in my career. bizarre trial, and defendants, one of whom represented by an absolutely crazy lawyer would never try to case in his life and convulsed the courtroom with shenanigans, not that he make you, just inadvertent, keeping order in that trial was very difficult but we got through it and it led to conviction. the most arduous trial was the xerox antitrust trial that lasted 14 months, and that was a real ordeal, to a jury, 14 months. >> host: that jerry had to serve 14 14 fomite? >> guest: they did. it was an involuntary because i asked him when we impaneled them how many willing to serve at least six months? only have the hands went up and have to not. they were willing to serve for a long time. it was astonishing to me. when it was over i thanked him and i said i'm really sorry this lasted more than you bargained for. they said, don't apologize, judge. this was a most interesting of our lives. we learned so much in the courtroom. >> host: that was a great technical patent law, antitrust law judge of all sorts of worldwide finance. they had a good time. yes. >> host: we could talk about your days on the district court. that was seven years. you've been an appellate court judge for 45 years. i'm wondering how you decided and how it happen that you went from the trial court to the circuit court into the court of appeals. >> host: that was curious. normally federal judgeships it's the presidents call pick senators have a big say in the district court with the court of appeals because of the more the justice department and the president in 1977 president carter did something no present have ever done before or since. and it ever to diversify the federal judiciary he committed himself by regulation to create a citizens commission in every one of the circuits around the country. half lawyers, half nonlawyers. he committed himself to say for every vacancy i want the commission to give me a list of five names and i will limit my choice to one of those five. in my case it turned out to be eight names because there were two vacancies at the same time. we were interviewed by this commission. they asked very probing questions. and, frankly, was more rigorous than the senate hearings, to tell you the truth. if you didn't get on the list you had no shot. so that judge and i were to the eight and then the president could pick from the eight, and he picked the of us. >> host: there's a fascinating anecdote in the book about a memo that you drafted and that senator ribicoff sent to the white house to justify picking a connecticut person for one of the seats. >> guest: that was a little odd because after the list came out senator ribicoff got a call from the white house counsel in this and we know you're interested in district judge newman but we can't do that because connecticut already has two seats and are not entitled to three. so ribicoff called it up and he said give me a memo, something i consent to the president to show we are entitled to three. i said i can do that. because we are not. we don't have the population. we don't have the number of cases. he said give me something. so it took a look at the history of the second circuit and i found an interesting thing. connecticut had always been overrepresented on the second circuit. so in the letter that ribicoff sent to carter was look, yes, connecticut has been overrepresented. going for in the future it probably should be changed, but don't change in the year your friend abe ribicoff wants something. so that's what happened. i got it and then it was change later on. >> host: as of the call is a very interested of the senator, daniel patrick moynihan tragic and his support was needed and forthcoming, yes. >> host: before we leave the district court to ask about the decision in the marvel case which i think will always stand as one of your great contributions to the law and to the history of this nation, at the point connecticut had a criminal prohibition against abortion was sure to make a in that case as a member of a three-judge panel. maybe you could talk about that? >> guest: in those days if the statute was challenged on grounds of unconstitutionality that had to be a three-judge district court, still district court but have circuit judge from the court of appeals and to district court judges. that was just about the first case i ever had. i was in 39 years old and signed on the case and the case was a challenge to the connecticut abortion statute which it no exceptions at all. not for rate, in cisco anything. >> host: which was typical at the time. >> guest: of many states. and although it had, i welcomed all all the history of the book does explain but when we finally got to the issue, judge lombard was a court of appeals judge and design be the opinion, was a two to one decision, there was a dissent. i wrote the opinion and the thing i said well, the supreme court has given some protection to marital privacy. it done that in the contraceptive case, griswold, years ago. and i thought, although they have not this was before roe v. wade, that's what it was an interesting case. i thought they were protecting marital privacy and i thought that meant it made at least in the early stages of pregnancy it protected the right of the woman to make her own decisions about reproduction. but i also suggested that the state interest in regulating the situation would change after it became viable. because at that point you have a fetus that can survive outside the womb, and i suggested that viability might be the line that might separate impermissible state regulation impermissible state regulation. i put that in the opinion. to my astonishment i found out years later when the papers of some of the justices, justice powell came to be available to the public, he reported my opinion and recommend it to harry blackmun wrote the opinion, and he said i think that decision, my decision, in urging viability as the key point is a very strong argument, and it found its way into the penny. i have no illusions that i had an effect on outcome of roe v. wade. i would ever make that claim but i think judging from the powell papers and the marshall papers they at least knew about that opinion and paid some attention to it. >> host: and how letter is reprinted in the book. >> guest: yes. not for me. david was written of the greatest book on the whole history of abortion come he would if i boost book about it. he prints the literature i simply excerpt it from that but in his account that's where it came to light on what i might add as as a historical footnote since as a law clerk to harry blackmun, the author of roe v. wade indicated before i became his law clerk, that invention also your opinions, , not only e final opinion but the first as well and thought it had been instrumental in the courts -- maybe as you say not determined the outcome. >> guest: you never told me that. [laughing] >> host: that he was very admiring of the reasoning in that, , and i think it must have had some effect in establishing that rationale which enabled the court to find a ground to reach the result they wanted, and yet the intellectually sort of honest. and i wonder, given the years that have passed since then, whether you think that rationale for reasoning still has -- tragic i had to tell you, frankly, i thought at the time for me it was a very close decision. if i i had to make it again toy it would still be a close decision. i wrote what i thought was a fair reading of the liberty clause, particularly in light of what the supreme court itself had said it if it said nothing, if they've never decided griswold, whether i wouldn't do the same i don't know. but i was bent on a district court. i was doing my best to follow what i thought was the supreme court's both decisions for the future, and so after thinking of it long and hard that's what i came out. i thought it was a close call then and still is. >> host: i might just a personally as a strong advocate of a supporter myself i get right to reproductive choice and with roe v. wade and the decisions that upheld it, i think that it is still very, very profoundly important law and it should be upheld. one of the questions i asked the supreme court nominees as it did neil gorsuch or other nominees to the courts by whether they will continue to uphold it. and so i think that the reasoning of roe v. wade even though it has been criticized remains very, very important. and despite medical advances which has created issues also. >> guest: sure. i recognize that, that you talk about viability, medical science is going to and the point of viability is going to come closer to conception. i said that any opinion, no question that would happen. >> host: that opinion was privacy. >> guest: yes. >> host: it was the underpinning. i think that's really important point. >> guest: right. >> host: so let me ask you about the court of appeals in terms of your contributions there. what do you think have been the highlights in terms of specific cases that have come before you? >> guest: well, unfair question. i mostly because when you write, i think i've written 1300 opinions, it's a little hard to keep the whole body in front of you. some are more important than others. we had a couple cases the last three years about the drone strikes, not so much the legality of a drone strikes the weather the department of justice could keep secret the opinions they had written to justify drone strikes. we've gotten freedom of information case we ruled in favor of the "new york times" saying they could get that document. but that are then terrorist cases, the blind sheikh is a case, long trial, the conviction of the blind sheikh and several others on serious tears in charge one to blow of the statue of liberty, unless serious terrorism. that was an important opinion. there have been lots. one thing that's come out of my ears on the court of appeals is the chance to see the criminal justice process in all its buses and minuses, and it's not perfect by any means. in fact, it's quite imperfect. and to think hard about ways that might be better. the book tries to outline about 20 proposals for making improvements. i'm not optimistic it they will happen by the middle of next week, but maybe someday. when you think reform, you take a long view. >> host: i want to talk about those recommendations. they are extremely timely, many of them, in terms of what we are considering right now in the united states senate, and the country as a whole. for example, you make a recommendation about the special counsel. we have a special counsel now, the result of the process which is very different from the one you recommend. >> guest: it is. i should first explain that i wrote that proposal three years ago. we does nothing to do with the current issues that people are aware of. what you're talking about is their there still a special counsel. there was two years ago the office of independent counsel, a different title. ken starr was the last holder of it, very controversial role. i thought over the years thinking about the role, and the statute was into by congress. they let it expire. i thought the system had a major flaw, and that is that an independent counsel is appointed for one case, either one person or one topic. and although some independent counsel is very courageously decided not to seek indictment, most of them decided to seek indictment. it seemed to me -- >> host: even if it wasn't the original purpose? >> guest: it might be something else. but when you're appointed for one person case there's a bit of pressure, subtle perhaps, to go ahead and push it. i don't think that's a good position. we were not appointed for one case there will appointed for whatever was presented to us and we could decide yes or no. so i thought the first chain should be there should be a relatively permanent independent counsel. i suggested a ten year term. it would have perhaps a retired prosecutor who was now on a law school faculty so you take a leave of absence but he wouldn't feel any pressure to go after one person. he would have the continuity of his term and there was then the oversight whatsoever of the independent counsel. so i suggested they should be a bipartisan commission, and they would select the independent counsel, and while the independent counsel could investigate anything he thought was a mess, he could not seek indictment without a two-thirds vote of a bipartisan counsel. and i think those restrictions would make the independent counsel much more palatable to the political branches, frankly, although you know better than the. perhaps that is something that might be considered down the road. >> host: one of the interesting aspects of the suggestion is that it offers protection for independent or special counsel from political interference, which is a major issue right now. >> guest: it also offers protection for the potential targets because he's not appointed just to go after them. so it has a balance to it, i hope. >> host: one of the other recommendations which i found interesting related to contingency fees. lawyers are criticized all the time for taking a percentage of an award and it gives rise to this image in the public of so-called ambulance chasers,, individual plaintiffs that the represent. maybe you can talk about your suggestion for how the system should be changed? >> guest: first, in the sense of the contingency fee, while at the sometimes result in a very large commendably going to her lawyer, what it does is it finances the several cases where he gets nothing because he doesn't get anything if the jury finds for the other side, which happens. so in order to be sure that people who think they have a good case get a lawyer, the american system has the contingency fee for the plaintiff side only. my suggestion is a should be on the defendant side which it has never been a people say how can the defendant side of the contingency fee? it's complicated but essentially here's how it would work. the lawyer would come to set a corporation that ensued and say i'm willing to take on your case if we can agree on what highside recovery is likely to become let's say a million, the greater i will take on your case if you pay me 20% of whatever i say to you below a million. the corporation says okay. so he takes the case. if the recovery is is not above gets nothing. but if the recovery is below, he gets his percentage. what that would do with entirely changed the dynamics of litigation. today when a corporation is sued the defendants mother comes in and the first thing he does is call the plaintiffs lawyer and say let's schedule some depositions, preferably 20 of them have worked in a wood up it will take months. >> host: that starts the clock. >> guest: and he's getting paid by the hour. under my system he would call the plaintiffs lawyer and you know what he would say? can we lunch tomorrow and talk settlement? that would be the first thing you say because he can settle that quickly and earn his defendants see, the case would go away from what you would not abolish contingent fees? >> guest: i would just extend them on the defendant side. >> host: interesting. let me put you on the spot. >> guest: go ahead. you're a senator. >> host: the quality of the judiciary today, better or worse than when you started? >> guest: i think it's as good as it was a bin. i certainly don't see any diminution. i think the federal judicial system over the years has been very high quality. the senators have been careful into the submit to the white house. it's not 100%, i i can think at 1500 federal judges, i i can tk of over the years two or three who perhaps should not have been, and use aba has several unqualified and get occasionally the president went forward but that's very rare. so out of 1500 if i cannot think of two, three, four, that's pretty good odds. i think it's a very high quality system. where i am in the federal court of appeals in new york we have an extremely high quality panel and we supervise the work of the district judges in manhattan and brooklyn in the northern and western districts. very high quality in women who do outstanding work. they have high volumes. they work diligently. most of the work is unknown to the public which perhaps is okay. but they have this huge varied caseload of high-volume, they are highly intelligent, they work very well together. in our court the dissent rate is very low. we we are a very collegial court. because the case a come to us after all a mandatory jurisdiction to right to appeal, so the district judge got it right in almost every case by our lights, and occasionally we get reversed by the supreme court, which is a a hierarchal system, i understand that. but it's a high-quality judiciary from top to bottom and i'm very proud to be part of it. >> host: you had a couple of opportunities to leave the court to be solicitor general. >> guest: i did get a call about that would be interested, and i said no. and the lawyer from the white house said, how could you not even consider this? is one of the best lawyer jobs in america? i said yes, it is but three years from now i would rather still be a senior judge of the court of appeals any former solicitor general. >> host: and talk a little bit about the quality of judging. it depends to some extent on the quality of the nominees and the confirmation process, which seems to have changed dramatically over the years. >> guest: it pass. it's become more political, more contentious. particularly the supreme court. i think the robert for curing with sort of a a watershed heag as far as that goes -- robert bork hearing -- it has become very partisan, the party of the president, the senators tend to ask very favorable question any opposition party tends to be a bit hostile. either way the matter whether it's republican or democratic, it works either way. that's unfortunate. i think it's gotten, i think probing is useful but i think there's a line between legitimate probing and excessive pushing. i think with supreme court hearing, historically there were no hearings. the first hearing was way back, i think 20, stone might've had a brief hearing. frankfurter came in 1939, showed up, wasn't asked a single question. potter stewart i think was the first to be seriously asked counsel is a modern development but its uses day, at least at the supreme court level. court of appeal hearings are usually non-events, non-newsworthy events the supreme court hearing is very contentious as you know. you are a member of the judiciary committee. >> host: and court of appeals juries have become more contentious. >> guest: yes, sometimes. >> host: not ask you to associate yourself with my observation -- >> guest: we're in different branches. >> host: the nominees have been more political either ideological stances, in their previous positions on issues. i agree with you that it is regrettable it seems to become so much like the rest of our systems, more polarized. how has the process of judging impacted your personal life? has it made things easier for you in terms of you have great family and you had a wonderful personal life. but hasn't been easier than you think what event if you are chosen a more political path? >> guest: it is in a sit in easier pace come take on the court of appeals, you're in control of your own time. district court was a very harassing day. i was so young but i was literally tired at the end of everyday driving home. so much is going on the courtroom and then after court lawyers coming emergency matters. you are tired. court of appeals you of high-volume but you're in control of the pace of the work took as far as what you do, judges tend to divide. some do very little outside their judicial role, some do a good bit. when i first came back to connecticut from my clerkship in washington i said i want to be in the community and i want to take advantage of camps , i wenk to connecticut where i was from and have civic life pics i got involved in the university of hartford and hartford foundation for public giving. i wanted to be part of the community. i can't that up to my court of appeal years and is active to the extent i can be on nonprofits. someone did in the community side not given that up. i probably don't have as many dealings with the bar association and lawyers as i did when i was a lawyer. you will get removed, not totally but a little bit. but you still are plenty of time for the community if you want, for your family, but you are busy. >> host: the job of judging, if you fail to involve yourself in the community can be very isolated and isolating in terms of a judges in the building to talk to lawyers about the cases because they may come before you in court. >> guest: i think you keep in touch with the life of the community that way because we are a little isolated and we ought to know what's going on in our committee. our court is one of the few courts that lets people argue with pro saves without lawyers. people say why did you the? i say because i think it's good for us to hear those people, the lady told off the welfare rolls who come to court. judges don't have lunch with her. this is the only chance to hear her story. i think that's a good thing. >> host: and that keeps you rooted in the real world. >> guest: i think so. i think so. >> host: in terms of pro se, the defendant or the plaintiff, when you would support and now in the court of appeals, really ordinarily should be represented by someone. >> guest: yes. >> host: sometimes in fact, your worst nightmare is having a defendant represent himself. >> guest: it is. >> host: that's because there are all kinds of errors that can occur that give rise to an appeal. >> guest: that's right. >> host: that undermined the conviction. so i know a few been a advocate of legal services, provided you keep because of not only uphold the rights but also is good for the opposing party because the quality of advocacy matters. >> guest: yes, of course. while we make progress we have services organizations, public defenders. but around the country it's very safe they are seriously underfunded. they've had even cutbacks in their budgets. and i think by and large we're not extending legal services to the extent we should, even on the criminal side or the civil side. there are people who deserve representation to bring the cases. i know it's an expense that there's a competition money, i get that, but running a civil and criminal justice system properly is wild and, indeed, the sets we have is one of the great strengths of our country, and having proper representation is a way of maintaining it. >> host: really all lawyers perform a service of the justice system. and jurors as you mentioned earlier in that xerox trial, every time a jury is about whether it's -- >> guest: they deserve them lawyers on both sides present case in an orderly way, helpful to them to understand it. >> host: one of the recommendations made in the book relates to the choice of voir dire. >> guest: preemptory challenges. the voir dire when you question the prospective jurors i think it's gotten out of hand in a country. most judges let it go too far. even at the point it invades the privacy of those people. these people, they were summoned to come in indiana jury. it were not summoned to expose their entire life to probing. i think it's fair to ask them you know the defendant? do you have any dealings with that or do you know the lawyer? but ask them what are the three books you read last month, i don't think that's any of the lawyers business. the most recent one is preemptory challenge. you can challenge as you know you can challenge the prospective jurors for cause, is a reason you shouldn't serve? that's fine. but can we say to the lawyers and all states and the federal, we will give you a number to say i just don't want the person on the jury. well, maybe one, maybe two. what happens is in many states you get 20 and a death case. 20 chances for the lawyer said i don't want those people on. what is the consequence of that? unfortunately many southern states you end up with an all-white jury. i think the all-white jury sentencing a black defendant to death is one of the great stains on the american system of justice. and it will not be ended despite the supreme court's case began would not be ended until you limit preemptory challenges to one or two. >> host: i actually represented a black man, convicted by an all-white jury whose conviction was eventually thrown out because of errors in the trial. i took the case at the request of the naacp legal defense fund, and i felt first-hand although the case states from quite a while ago the dynamic at work. if not some diversity in a drupal -- >> guest: they could be a wrongful conviction. even if the person is guilty, even if he deserves the death penalty, imagine what you come his family and his black community thinks when they come out of the courtroom and they saw a white prosecutor, a white judge and now an all-white jury return the death penalty. even if he is guilty, he deserves a diversified jury found that applies only to african-americans but also to muslims for the diversity of our country ought to be reflected in terms of our jury. >> guest: exactly. >> host: for the sake of the justice system and its credibility and trust the people in it. >> guest: yes. >> host: one thing i often say is that our judiciary has new armies. it has no police force it depends on its trust and credibility. how do you think the judicial system is faring these days in terms of the overall respect that it has on the american people? >> guest: well, the polling, ask that question over the years and by and large i think the federal judiciary comes out pretty well. obviously anyone who loses the case thinks we're terrible pick i often say that on a good day we have people who appear before us on a good day. but all kidding aside, i think if you ask people who have not had their own personal case in court wouldn't think of the federal judiciary, i think for the most part they would give a pretty adequate mark. there are some cases they don't like, of course. i think i think more about maybe a supreme court decision they don't like. the day to day workings of the does a court and the federal courts of appeals in their community i think a well regarded. i think those judges are well regarded in their 20s. i think it's okay. you can always be better and our efforts made. i know our court made huge effort to go out into the community and educate the public about what it is the courts are doing, our chief judge has a huge program going on in new york to try to educate the public about what it is federal courts do. i hope this books makes a slight contribution to that because there are a lot of things people don't know that they i think should know and perhaps would even enjoy finding out about. >> host: and they should know before they become parties to a lawsuit. >> guest: that would -- >> host: before they are sued or sue and that education would make a big difference. >> guest: i think so, yes. >> host: i want to really thank you for this conversation. i want to again recommend this book. it is full of insight and anecdotes and stories that are absolutely fascinating and entertaining. you might think that's an oxymoron when it comes to a judge and a memoir, but it really is full of very, very interesting stuff. available on amazon.com. >> guest: thank you for saying so. >> host: and i look for to many, many more years of your service on the bench and are being together. thank you so much tragic thank you so much, senator. >> c-span, where history unfold daily. in 1979, c-span was created as a public service by burqas cable-television companies and has brought you today by your cable or satellite provider.

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