COURTS

BRUCE COLLINS, C-SPAN Vice President and JAY WARD BROWN, Court TV Attorney, January 10, 2002
CZIKOWSKY: What is your evaluation, in retrospect, of how television coverage affected the trial of O.J. Simpson? To what degree was the trail playing “for the cameras” and the court of public opinion? Now that the public has become accustomed to televised hearings, do you believe the presence of television is becoming less intrusive on how participants behave during trials?
COLLINS: The O.J. Simpson was not a case where television caused courtroom chaos. The O.J. trial was a case of the judge losing control of the courtroom and the trial. Also, don’t forget that Court TV has televised over 700 trials with no comparable effects. And I agree that as television coverage of public events loses its novelty that human nature says to the extent there’s any tendency to grandstand then there will be less of it. But keep in mind, our experience over the last decade tells us that lawyers in court respect their duties to the court and their clients and do not engage in the kind of behavior so many Americans witness in the O.J. Simpson trial.
BROWN: The simple truth is that no good lawyer fulfilling his or her professional obligation would allow themselves to be influenced by the presence of a camera in the courtroom. The lawyers in this case are very, very good lawyers.

BENJAMIN WITTES, Washington Post Editorial Writer, May 15, 2002
CZIKOWSKY: Do you have any recommendations for any changes in the laws for Special Prosecutors? Should they be provided more specific guidelines?
WITTES: One of the most creative and interesting recommendations for a new Special Prosecutor regime (the old one, of course, has expired) was suggested in a law review article by one of (Kenneth) Starr’s prosecutors, a fellow named Brett Kavanaugh. He suggests, among other things, having the President himself name the Special Prosecutor with the advice and consent of the Senate. It seems to me this is a strong instinct that ought to be seriously considered. It would make it very difficult for a White House to attack a Special Prosecutor, as Clinton did to Starr. And the Senate confirmation process would ensure that the President had not appointed a lackey. There is a great public discussion to be had about how we want these probes to be conducted in the future. The appetite for that discussion, however, seems to be lacking at the current time.

DIANN RUST-TIERNEY, American Civil Liberties Union Capital Punishment Project Director, June 24, 2002
CZIKOWSKY: It has been observed that states and countries with the death penalty have higher homicide rates than states and countries without the death penalty. It has been noted there are some situations (not all) where the possibility of the death penalty may induce people with destructive tendencies, perhaps even with some suicidal tendencies, to commit murder. Thus, if the death penalty is statistically ineffective, shouldn’t an argument be made that if fails as a deterrent and courts should thus abandon it?
RUST-TIERNEY: Justice Breyer raises some of these concerns in his opinion in Ring concurring in the judgment.
Justice Breyer states that he agrees with Justice Stevens that the eighth amendment requires the jury to make the decision to sentence a defendant to death.
In reaching this conclusion, he says that the main reason for having the death penalty is retribution and juries he believes are in a better position to make that determination than judges.
Justice Breyer then states that it is hard to justify the death penalty on the basis of its deterrent effect.
Over 80% of criminologists believe that existing research fail to support deterrence as justification for the death penalty.

TONY WEST, Co-Counsel for John Lindh, July 18, 2002
CZIKOWSKY: Many believe there was a line crossed with John Lindh’s continued fighting after the United States entered the war. What is your client’s position to having been in a position of being on an opposing army? WEST: I understand that perception. John went to Afghanistan long before September 11 ever occurred, and he went for the specific purpose of opposing the Northern Alliance. One of the first things he gold Army interrogators when they questioned him on December 3 of last year was that after 9/11 happened, he wanted to leave the front lines but couldn’t for fear of his life. John never wanted to be in a position where he was opposing the United States (and never thought he would be), and in fact he never opposed any American military. He does understand, however, how people can perceive he was on the “other” side, and while the facts don’t really support that conclusion, John has never expressed any bitterness or anger about those perceptions.

KEVIN MERIDA, Washington Post Staff Writer, August 5, 2002
CZIKOWSKY: Justice Thomas has a reputation for asking very few questions when hearing cases. Is this reputation deserved, and what does this mean? If this is true, how important is it to ask questions, and does this indicate someone who is not working hard to develop questions, someone who deters to others, or someone who does not believe there is a need to ask many questions?
MERIDA: It is true that Justice Thomas asks the fewest questions of anyone on the court. He has explained it in several ways. One explanation is that it is difficult enough to come before the court, and the lawyers should be given their say without constantly being interrupted. He has implied that some of his colleagues who ask questions sometimes enjoy the sound of their own voices. He also says that by the time oral arguments come around, the basic facts of the case are known. He also says that he finds that sooner or later someone will ask question…Perhaps the most interesting explanation has to do with his upbringing in the low country of Georgia; he says that when he was in the 4th grade, he was often made fun of because of his Gullah dialect. He stopped talking as much, as a result, and developed a habit of listening…a habit apparently that has carried over to this day…Legal scholars have said that this criticism of Thomas is overrated. Harry Blackmun felt a lot like Thomas does, and was known to keep count of how many questions certain colleagues asked and give them grief about this practice.

NAN ARON, President, Alliance for Justice, March 6, 2003
CZIKOWSKY: Isn’t a large part of the problem that Mr. (Miguel) Estrada (nominee to the U.S. Appeals Court) has avoided indicating how he feels on many major judicial issues? Sometimes it is better to take a position and stand for something. In his efforts to avoid controversy, hasn’t he in fact created greater controversy?
ARON: That’s absolutely right. Senate Democrats repeatedly invited Mr. Estrada to share his views on important social and legal issues. It is entirely appropriate for the Senators to ask a nominee for his opinions, so long as they don’t ask how he’ll rule on upcoming cases.
Before someone is confirmed to the second highest court in the country, the Senators and the American public need to be fully informed about the nominee’s record.
By refusing to provide this information, Estrada has denied the Senate the very information they need to fulfill their Constitutional responsibility.

MICHAEL GERHARDT, William and Mary Law Professor, June 18, 2003
CZIKOWSKY: Do you have any thoughts on the speculation that Dick Cheney, as Senate President, will rule that the Senate must vote on all judicial nominations, a ruling that could be upheld by a majority vote and thus break the ability of Democrats to filibuster judicial nominations? How might this change the dynamics of selecting judges and Justices?
GERHARDT: This is a good question. At present, the Senate Majority Leader wants the full Senate to consider his proposal to amend the Senate rules effectively to disallow obstructive filibusters against judicial nominees. Its success turns on whether a simple majority is empowered to amend the Senate rules. The rules require a supermajority to amend the cloture rule (Rule XXII), but the Majority Leader and probably the Vice President consider that rule to be unconstitutional. Nevertheless, the rules of the Senate have never been amended without following the rules of the Senate, so if the Majority Leader prevails and a simple majority backs his change you can expect thermo-nuclear war to break out in the Senate. The institution will implode.

LIA EPPERSON, NAACP Legal Defense Fund Attorney, June 23, 2003
CZIKOWSKY: These (U.S. Supreme Court) cases (regarding affirmative action) attracted a large number of amicus curiae filings. Do you believe this had any impact, and if so, how?
EPPERSON: This case attracted more amicus curiae filings, or “friend of the court” briefs, than any other case in recent Supreme Court history. These briefs most certainly had an impact on the Court’s consideration of these issues. It should be noted that the Court’s reasoning in Grutter (v. Bollinger) extends beyond the higher education context, and highlights the importance of racial diversity for American businesses and for our military.

MARTIN LUTHER KING, III., August 21, 2003
CZIKOWSKY: In a recent Supreme Court decision, one of the Justices stated there will come a day when affirmative action will no longer be necessary, yet, until the day when racial discrimination has been eliminated and the effects of that discrimination have been removed, affirmative action needs to remain. The Justice then suggested that may be in 25 years. Do you think it is possible that we may see an end to racial discrimination within the current generation, or do you think it may take longer than within the current generation?
KING: I hope so but, honestly unless some dramatic change occurs immediately, I don’t know if we can see the changes we need to see with issues of race, gender, or sexual orientation. There won’t be a change until we embrace the training. There are no calls for that because our elected officials don’t see that they are something we need. It is very important for these calls for change from our elected leaders and they have to be a significant part of the process. This could come also from the religious community as well. For instance, if the religious community decided to address the issue of racial intolerance in the next five years, then I believe that in a very short time, race would no longer be an issue. It would really take an indepth focus.

JONATHAN TURLEY, Public Interest Law Professor, George Washington University Law School, August 28, 2003
CZIKOWSKY: What are the more human methods to subdue a prisoner who suddenly poses a danger to others in a courtroom?
TURLET: What is striking about this (use of electric belt with a stun gun) case (and many other cases) is that he was already restrained by the wrists and ankles. He was no danger and could have been easily moved or handled without triggering the device. To the contrary, the device makes it more difficult to handle a prisoner who generally collapses. This was a clear case of electrical shock punishment—a form of torture under international law and unlawful in the U.S.
In trials, countless defendants have been subject to conventional forms of control. If a defendant continues to ignore court orders, he can be removed from the courtroom. If he moves from his chair, he is generally restrained by the guards. I believe that this is sufficient in virtually every case. What is troubling is that the belt is now being used as a standard procedure in courts.

GERRY SPENCE, lawyer, September 24, 2003
CZIKOWSKY: Let’s be cynically honest. Has the justice system become one where the best lawyers decide who wins or loses? DNA evidence keeps showing poor defendants relying on unskilled public defenders get convicted while (let us presume he is innocent since he was not convicted, although a few of us doubt the verdict) O.J. Simpson walks. The morale is: stay out of trouble and never get arrested. Once you do, it becomes a game of police investigators who use every trick to fool suspects into confessing or incriminating themselves, prosecutors motivated by convictions more than finding justice, and defense attorneys ranging from brilliant like yourself to a young attorney just getting started. How much confidence is a guy like me supposed to have in the criminal court system?
SPENCE: Very little. And you stated the reasons correctly. Justice in this country is a myth. There are more wealthy people acquitted than poor. There are more poor people in prison than rich. There are more Blacks per capita on death row than whites. The system is broken and my book chronicles that broken system in a true story.
DNA evidence has saved numbers of people on death row and proved their innocence. I represented a man who was convicted or murder and rape and was on death row for 18 years and DNA evidence saved him. My client was one of three who was saved by DNA evidence. I think it’s a tool that is more reliable than any other scientific tools that we have before. We have many people in prison because of unreliable scientific evidence. In Oklahoma there are many cases of a scientist there who falsified evidence of the results of scientific tests and went to prison who probably should not have been in prison. DNA testing in independent laboratories is a giant step forward.

RITA SIMON, University Professor, Washington College of Law, American University, October 14, 2003
CZIKOWSKY: An attorney once stated that trials are won and lost during jury selection. During voir dire, he seeks people he connects with to sit on the jury. Is jury selection really that important? If so, where is the justice in the justice system if trials are really games in which victory goes to which lawyers make the better presentations?
SIMON: I think jury selection is very important. I don’t know that it is all-important, that is, the weight of the evidence is a crucial factor. So while I in no way want to underestimate the importance of jury selection, I think it is not the determining factor. Let me remind you that one can have a hung jury if one juror dissents from the other 11. You need a unanimous verdict.
CZIKOWSKY: In Pennsylvania, jurors are not allowed to take notes. In other states, they may. Do you believe it is better, or not, to allow jurors to take notes?
SIMON. Very good question. I sat on a panel in the District of Columbia where we changed some regulations on jury behavior and what they could do and one of the new regulations was that in the District of Columbia jurors are encouraged to take notes. So yes, I think it is a good idea but I recognize that there could be complications arising from it because some jurors do take better notes than others and they could therefore disagree about the validity of each other’s notes.

STEVEN BENJAMIN, criminal defense lawyer, October 20, 2003
CZIKOWSKY: If John Allen Muhammed is convicted, to what degree may errors he made as an attorney be used by an attorney arguing his appeal?
BENJAMIN: Ha, the right to effective assistance of counsel does not mean that you can poorly represent yourself, and then challenge your conviction on that basis. You are right that his mistakes will cost him. Not only in challenging forensics—where he will have neither the knowledge nor the skill to do so where it counts, but also in making and preserving for appeal very, very important legal arguments.

JERALYN MERRITT, criminal defense lawyer, November 10, 2003
CZIKOWSKY: An attorney I know has stated that jury selection is very important. While some attorneys attempt to select jurors who fill profiles of people inclined to support their side, he argues the most important aspect of voir dire is to find jurors who seem to respond well to his personally. If you find jurors who seem to connect to an attorney, he believes it makes winning the cases easier. Plus, in criminal cases, you need one juror to at least create a hung jury.
Is picking jurors by profiling overrated? Do you believe if jurors seem to initially connect with one attorney, they are more likely to ultimately favor that attorney’s argument?
MERRITT: Selecting jurors is more of an art than a science. During voir dire, or the questioning process, we want to hear the prospective jurors’ beliefs and attitudes about a variety of issues. Sure, it is nice if some bonding goes on between the prospective juror and the lawyer, but I don’t think that is as important as whether the juror is likely to bond with the intended defense arguments. The defense will use the voir dire process to try and identify jurors who might vote for life if they convict (serial sniper suspect Lee Boyd( Malvo of the underlying crime—and to introduce their theory of the defense, that Malvo was so under the spell of (co-defendant John Allen) Muhammad that he could not exercise independent judgment.

RICHARD ROSENBAUM, criminal defense attorney, December 18, 2003
CZIKOWSKY: How do unsupervised visits work? Should Mr. (John) Hinkley decide to walk away while visiting his family, is the family legally obligated to report his disappearance? How often do convicts given unsupervised visits attempt to escape, and how often are they subsequently caught?
ROSENBAUM: The parents have signed a contract with the government saying that they will report any violations. They have also signed assuring that they will not contact the media and there are other check-in requirements that are required for both the parents as well as Mr. Hinkley.
I do not believe that many convicts attempt to escape and the Marshal’s office is excellent at tracking down those that do abscond and returning them to custody.

STEPHEN J. MORSE, University of Pennsylvania Law School Professor, December 19, 2003
CZIKOWSKY: Aren’t there variations in state laws in establishing when the insanity defense may be claimed? What are some of these variations, and, in particular, do they differ much between Maryland and Virginia, as the possibility of other trials remain (for convicted sniper Lee Boyd Malvo)?
MORSE: There are differences in state laws but the differences tend to be smaller than the language might suggest. The wording of the insanity defense test in a jurisdiction makes less difference to the outcome of the case than who bears the burden of persuasion on the issue of insanity. I don’t know Maryland law specifically so I can’t comment about the differences between Maryland and Virginia.
Insanity defense tests are either cognitive or concern the person’s capacity to control himself. An example of the former is the famous M’Naghten test which asks whether as a result of mental disease the defendant did not know the nature and quality of his act or did not know that his act was wrong. Most contemporary tests in the U.S. are variants of M’Naghten. Control tests became increasingly popular after WWII but many jurisdictions abolished control tests in the wake of the Hinckley verdict. So most jurisdictions today have only a cognitive test for legal insanity.

LEA BRILMAYER, Yale University Law Professor, February 13, 2004
CZIKOWSKY: A marriage in one state is recognized in all states, if I understand the law correctly. Is this a requirement under Federal law or under Federal court decisions? There is legislation in Pennsylvania that Pennsylvania would not recognize a gay marriage license from another state. Would such language be legal or would it violate some Federal law?
BRILMAYER: Sort of. It has never been completely true that marriages in one state were automatically recognized in others. For centuries we have had problems about whether first cousins can marry; how old people have to be to get married; whether polygamy is legal, etc. And these differences in state law have always raised the question—what if two people from State X go to State Y to get married, and then go home? The answer has not always been “yes” and in particular the Constitution does not require an affirmative answer.
You ask about the source of the law. It is a blend of Article IV of the Constitution; Federal statute (a 200 year old version of the current rules); and most importantly state legislation and state court practice.
Of course, the U.S. Constitution has the highest priority, in cases where it actually provides an answer. Federal law comes next, with state judicial decisions filling in the rest.
The Pennsylvania law you mention is authorized by Federal statute, but the constitutional questions about it have not yet been raised.

CLIFF SLOAN, washingtonpost.com General Counsel. April 20, 2004
CZIKOWSKY: If we believe our nation need not adhere to international law, wouldn’t we wish another nation that captures an American to adhere to international law?
SLOAN: It’s an important point, and an important question. Interestingly, an amicus brief in support of the (Guantanamo) detainees was filed by some former American Prisoners of War.

OFRA BIKEL, Frontline Producer, June 18, 2004
CZIKOWSKY: I am glad you are brining plea bargaining to television. Most of the public learns primarily about the court trials on television, and most of us who serve jury duty see only the trials. Most people don’t realize the bulk of court cases are handled by plea bargaining. What has been the public reaction you’ve seen when they learn about the plea bargaining system? Do they accept it as the reality of what is to be done with current limitations, or dare they then prepared to seek to change how justice is provided?
BIKEL: It is difficult to gauge the general public’s reaction and difficult to dislodge the idea that we have the best system in the world—innocent before proven guilty, right to trial—so people don’t want to know that the system is broken. However every lawyer and whoever deals with lawyers know that.
When people see the show they are horrified and just like you they do not know what to do.
The answer to your question is that yes, unfortunately they do.

JONATHAN TURLEY, George Washington University Law Professor, September 7, 2004
CZIKOWSKY: The New York press described how, during the Republican convention, large numbers of people had nets thrown over them and all were detained without charge until the convention was over. Some of the people interviewed, assuming they were telling the truth, claimed they were not demonstrators but leaving work and how everyone on the block was netted and driven away. There was a story of a mother who didn’t know where her daughter was for several days. This story seems to have not gathered much attention beyond the New York newspapers. Are you losing our civil liberties in this country?
TURLEY: I am a bit biased. I represent protestors who were arrested in the IMF protests in Washington. They were arrested under a trap and arrest practice in which hundreds were trapped and arrested in masse to suppress the protests. Many were journalists or bystanders. The city has admitted that there were unconstitutional arrests.
We have learned from painful history that our most serious injuries have tended to be self-inflicted during periods of war or protest.

EDWARD LAZARUS, former U.S. Supreme Court Law Clerk, November 8, 2004
CZIKOWSKY: If Clarence Thomas ever becomes Chief Justice, how would the other justices react to his style of presiding? Justice Thomas rarely asks questions. Would Justice Thomas essentially be a figurehead presider, or would he attempt to forge a philosophical alliance behind his views with the other justices?
LAZARUS: Its’ very difficult for me to imagine Clarence Thomas as Chief. He sits at the far right of the Court’s ideological, to the right even of Antonin Scalia. And he has taken some very radical positions, including stating that the First Amendment’s establishment clause does not apply to state governments. Although Thomas is a gregarious fellow behind the scenes at the Court, I think his legal views would substantially hinder his performance as Chief. And, frankly, President Bush and the conservatives may want to keep him where he is because Thomas, over the long run, will be more effective if unburdened by the consensus building pressure that comes with serving as Chief.

ERIC FREEMAN, Hofstra University Constitutional Law Professor, November 9, 2004
CZIKOWSKY: I am, perhaps, detecting a disturbing pattern. As with our arrests of demonstrators, we make arrests likely knowing the arrests violate the law, wait until a court orders the detainees treated legally, and our government gets away with a “sorry about that” yet they get their time of illegal incarceration behind them, which perhaps is what they really wanted. Does this seem to be an actual disturbing pattern that the current nature of imprisonment is violating the law more often, and is there anything that could or should be done to prevent this from continuing?
` FREEMAN: When President Eisenhower told the Executive branch to see that the Constitution was enforced in Little Rock, it was. If President Bush told the Executive branch to see that the Constitution were enforced in Guantanamo, it would be.

KAREN O’CONNOR, American University Government Professor, July 1, 2005
CZIKOWSKY: Justice O’Connor gave a stirring dissent in the recent New London eminent domain case. Is there anyone as capable as she, even when in the minority, of issuing well thought and strong opinions?
O’CONNOR: Many would argue that Antonin Scalia, who seems to relish writing dissents, is brilliant, whether you agree with him or not.

EDWARD LAZARUS, author, July 21, 2005
CZIKOWSKY: Justices are not supposed to interject their personal opinions above judicial procedures, yet, they are human, and we know it happens. In your personal observations, under what circumstances do we find the strong personal beliefs of a Justice become a major factor in how he or she decides a case?
LAZARUS: You hit the nail on the head. Justices are human and they often see the law through the lens of their own experience and moral values. The important thing is for them to recognize this tendency.
CZIKOWSKY: Will memos that John Roberts wrote as a Law Clerk to the Supreme Court be introduced during the confirmation hearings, or are those all confidential?
CZIKOWSKY: Because Rehnquist (Roberts’s old boos) is still sitting and his papers remain in his possession as opposed to the public domain, I don’t think anyone will get access to these.

VIET DINH, Former Assistant U.S. Attorney General, July 22, 2005
CZIKOWSKY: Is the key to getting on the Supreme Court is to not be one of the brightest, but one who is credentialed but quiet?
DINH: Your question is a good one. Given the current political turbulence, I do not think that any one, no matter how spotless or unknown, can expect to get a pass. The outside interest groups are just too strident and sophisticated to let pass a great opportunity to energize their members, get publicity for their parochial causes, and gather donations. So the day of the Stealth candidates are over. Both because of the risk in nominating one and of the lack of advantage in confirming one.
Someone once said to me that every lawyer harbors the secret ambition of being a Supreme Court Justice. If that is the case, then it is equally true that no lawyer, no matter what he does or how hard he tries, should expect a shot at being a Justice. So better to practice your craft, live your life, and buy lottery tickets.

AARON STREETT, Former Law Clerk to Chief Justice William Rehnquist, September 7, 20005
CZIKOWSKY: We the public tend to think of Justices as defending particular viewpoints, such as “conservative” or “liberal”. Do you think it is fair to state that Chief Justice Rehnquist entered and served with a conservative philosophy that was reflected in his decisions, or do you think he approached his rulings with his own concept of what legal decisions should be without a particular political leaning and others interpreted his as having a conservative philosophy?
STREETT: The Chief once said that if being a conservative meant taking a fairly narrow reading of constitutional provisions and leaving broad latitude for the democratic process, then he was a conservative. I think he approached cases with this philosophy because he believed it was in keeping with the Founding Fathers’ intent and because other branches of government are elected, and thus accountable, while the Supreme Court is not.

JOHN YOO, University of California at Berkeley Law School Professor, September 12, 2005
CZIKOWSKY: John Roberts has never confronted a witness in a trial and has never advised a client of the client’s rights. I guess John Roberts should be glad that one does not have to be an attorney to serve on the Supreme Court as John Roberts has never been an attorney. Will the lack of practicing legal experience be any factor in these hearings?
CZIKOWSKY: John Roberts has not been a trial attorney, but then many attorneys who practice law in this country have never conducted a cross-examination in a courtroom. Roberts has appeared in court many times however. He has practiced in the appellate courts, which is probably far better preparation for work as a Justice than practicing in the trial courtrooms. I think your observation about Roberts’s lack of trial experience is also probably true with regard to most other members of the Supreme Court.
I don’t expect this lack of trial experience to be a significant factor in the hearings. Over the years, some have called on Presidents to nominate lawyers with more of a diverse background to the Court. It is, right now, composed heavily of former appellate judges with an unusually high number of law professors. Yet, for roughly the last 30 years, Presidents of both political parties have nominated sitting Federal Judges to the Court. This was not the case in the past, which has witnessed Courts with former Senators, Governors, Cabinet members, and leaders of the Bar as Justices. If Roberts is confirmed, the only member of the Court who will not have been a sitting Federal Judge at time of appointment will have been O’Connor, who was herself a state judge at the time.

AKHIL REED AMAR, Yale Law School Professor, September 27, 2005
CZIKOWSKY: I am interested in the meanings of words and how even meanings change over time. For instance, does “interstate commerce” mean only economic transactions that cross state boundaries or any cross-border transactions that lead to changes in behavior? Also, scholars have long debated whether the intent of the Second Amendment on what arms were then, and what we considered to be arms today, differs. Do you have any particular insights on how different generations view the same words?
AMAR: Yes, both of these topics are addressed in some detail in my book.
As for “commerce”: I provide evidence---based on the Constitution’s text, its structure, and its early implementation history---that “commerce” can be sensibly read to encompass various non-economic transactions. The key constitutional constraint, in my view, is that Congress should only regulate genuinely interstate and international transactions---that is, things that truly spill over state or international lines. But if the matter does involve interstate or international spillovers, Congress should be allowed to regulate it whether or not it is narrowly economic in nature. For example, when pollution molecules or water or migratory animals cross borders, then the Feds may indeed properly regulate.
As for the Second Amendment, I try to show how its words meant one thing to the Founders---based on their military experience in the American Revolution---and a rather different thing to the generation that amended the Constitution after the Civil War. That later generation had a very different set of recent experiences in mind, and this different version was in effect encoded in the Fourteenth Amendment, adopted in 1868, which provided a new gloss on the words of the Second Amendment as originally envisioned in the 1790s.

JOAN BISKUPIC, USA Today Supreme Court reporter, November 1, 2005
CZIKOWSKY: Does your book (“Sandra Day O’Connor”) provide any insights on how Justice O’Connor viewed the Court’s ruling on Gore v. Bush?
BISKUPIC: I have a whole chapter devoted to Bush v. Gore. It opens with Justice O’Connor telling his brother, right after election day and as the recounts were just beginning, that the dispute would never end up at the Supreme Court. “That’s a state matter”, she said when the whole thing started.

ERWIN CHEMERINSKY, Duke University Law School Professor, November, 2, 2005
CZIKOWSKY: Judge Alito upheld our state’s abortion law, including requiring a woman notify the father that she plans to get an abortion. No exceptions are made, even incases of abused women living in shelters. Shouldn’t this reasoning expect to raise significant questions on Judge Alito’s decisions and might it lead to significant pro-choice opposition to this nomination? CHEMERINSKY: I think pro-choice groups will be unanimous in opposing Alito. The key question will be whether they and others can persuade moderate Republicans and Democratic Senators to oppose Alito. The moderates will be decisive here.

WAYNE TAFF, Former Defense Research Council Product Liability Committee Chair, December 16, 2005
CZIKOWSKY: There are talks that some tobacco manufacturers believe that state governments are in violation of the Tobacco Fund since product share may dip below a certain point which, in the agreement, means they would be permitted to stop making payments to the states. Yet, some of the smaller independent cigarette manufacturers that are not bound by the Fund agreement and whose product share has increased are believed to be subsidized by tobacco manufacturers contained in the agreement. My question: would the tobacco industry consider suing to stop making payments into states’ Tobacco Funds and didn’t the industry really create this option in advance as a means to get out of the agreement? Or am I just being cynical?
TAFF: I would assume they would consider suing. As to why they created the option, I can’t tell you, but it is not unusual for any contract to provide that if X occurs then you no longer have to do Y.

CHARLES W. PICKERING, Former U.S. Circuit Judge, January 26, 2006
CZIKOWSKY: You can never control what questions Senators will ask. How would you change the confirmation process?
PICKERING: There are no detailed controlling rules for the confirmation of judges. The process is governed by historical precedents of the Senate and Senatorial courtesies that have evolved over the years. No Chairman of the Judiciary Committee has interpreted these precedents and courtesies the same way. This lack of detailed process is a major cause of the current fight. It allows each side to accuse the other of escalation of the fight. It also allows each side to change the process.
CZIKOWSKY: It is hard to reconcile a nonpartisan judiciary with a partisan legislative branch. Are we headed towards a system that may select judicial nominees with the least amount of paper trail in how they think on issues?
PICKERING: Our founders envisioned an impartial judiciary that is nonpartisan. Unfortunately, when the concept of interpreting the Constitution as a Mystery Constitution—that is one that changes over time and you know what it means when five judges meet in private and determine its meaning—that made the Court more of a political body. That was not its intended role. I fear we are headed in the direction where nominees will be “lackluster” nominees with little or no paper trail. When that happens, the American people will be the losers. It will negatively impact the quality, ability, independence, and even the diversity of the judiciary.

STUART A. GERSON, former Acting U.S. Attorney General, March 14, 2007
CZIKOWSKY: The “Democratic” response to the firing of the U.S. Attorneys is that these actions were political. The “Republican” response is that the Clinton Administration fired all but one U.S. Attorney at the beginning of the Clinton Administration—so of course, it is all political. What is the difference between these mid-Presidency firings and cleaning house of the beginning of the Presidency, if any?
GERSON: There is a difference, but I do not find it to be an important or material one. It is customary for a President to replace U.S. Attorneys at the beginning of a term. Ronald Reagan replaced every sitting U.S. Attorney when he appointed his first Attorney General. President Clinton, acting through me as Acting AG, did the same thing, even with few permanent candidates in mind. What is unusual about the current situation is that it happened in the middle of a term. However, all of the incumbents had served more than the four years presumed in their original commission and, I suggest, replacing them is entirely the prerogative of the executive, as each deposed U.S. Attorney has agreed. The personnel practices employed, giving inaccurate reasons for terminating them and not giving them the courtesy of notice, are, as the AG now concedes, unacceptable.

KEVIN MERIDA, Washington Post Reporter, April 23, 2007
CZIKOWSKY: I found it interesting how relatives of Justice (Clarence) Thomas said they wouldn’t think of contact Justice Thomas for assistance over a relative’s legal troubles. From one perspective, we cringe when we see justice bent for a relative. Yet, from another perspective, it makes Justice Thomas appear cold and distant from his roots. What is your take on this?
MERIDA: Justice Thomas has always had a complicated relationship with his sister. They both started in Pin Point, but he was the one was went to Savannah to live with his grandfather after the family house burned down and his sister stayed behind with aging relatives. Their lives diverged. His sister, Emma, had children early. She picked crabs to earn money and for a time was on welfare. Thomas went through the Catholic school system and for at a time was preparing to be a priest. His grandfather and grandmother helped him to fulfill his potential. Emma, who never had as much ambition as her brother, has stayed in Pin Point and works as a cook. She is not bitter about her brother, she just does not view life the way he does. They are really in two different worlds, and when he son got caught up in a drug sting in Pin Point, she didn’t believe her brother really wanted to be bothered. In fact, she thinks her brother’s name and reputation made it more difficult for her son to get leniency in sentence, which was 30 years.

KENT B. ALEXANDER, former U.S. Attorney, August 28, 2007
CZIKOWSKY: I don’t know Mr. Gonzales’s personal plans, yet as a hypothetical, should he decide to enter the law firm market in order to maximize his income, is he much of a rainmaker to any law firm? Does a controversial Attorney General become radioactive to law firms, or a positive draw?
ALEXANDER: I think any former AG is marketable. I am sure there are law firms in Texas that would be happy to have Mr. Gonzales join their ranks. In certain circles, he could be quite a rainmaker.
CZIKOWSKY: Is there any serious active consideration of changing the method of appointments of U.S. Attorneys that might place the appointments out of the hands of politicians, such as moving the appointments to nonpartisan committees?
ALEXANDER: I have not heard of any change in the appointment process. In many districts there are merit selection panels put in place, and those panels recommend candidates they view to be the best. Promoting that practice may be the best way to go, though even that practice can sometimes falter. (A panel like that recommended me!) Of course, the Senate has ultimate confirmation authority and does on occasion reject unqualified candidates.
CZIKOWSKY: You worked with Michael Chertoff. What would be your recommendation as to his capability to serve as Attorney General?
ALEXANDER: Mike Chertoff is extraordinary. Very smart, very focused, very good judgment. During the time we overlapped as U.S. Attorneys he was widely regarded as one of the deans of the group. His time on the bench adds to his luster. That said, he would of course face lots of questions about Homeland Security.

JEFFREY TOOBIN, The New Yorker Staff Writer, September 28, 2007
CZIKOWSKY: How much influence do you believe law clerks have on Justice decisions and on their writings?
TOOBIN: Not as much as they think. They write first drafts, do most of the work on the less controversial cases, but the voting—which is the most important thing—is entirely in the hands of the Justices. I do not buy the idea that any Justice is especially “clerk driven”.
CZIKOWSKY: Did your research look at all at how Justices viewed their decision regarding the 2000 Presidential election? If so, what are your thoughts to the Vanity Fair article quoting law clerks who alleged the Justices made the decision first and then asked the clerks to devise legal reasoning to justify the decision?
TOOBIN: I deal with Bush v. Gore at length in my book (“The Nine”)—three chapters! I think David Margolick’s article in Vanity Fair was excellent, but I think my book very much fills out the picture.
CZIKOWSKY: I heard Joe Scarborough criticize your book, claiming that is contained some descriptions of events that had previously been proven untrue. Are you aware of his comments? If so, what is your response? Is there any part of your book which, since publication, you retract, or do you stand by the whole book as true to the best of your knowledge?
TOOBIN: I read what Joe said, and I disagree. I’m not one to get into a cable news shouting contest with the guy, but I’ll stake my record against his any time.
CZIKOWSKY: You have written about O.J. Simpson. What are your thoughts regarding his current legal difficulties?
TOOBIN: I think the new case—OJ Lite—looks like it might be pretty weak. There don’t seem to be very many innocent victims in that case. However, if this case gets before a jury, it may be that some jurors want to punish him for what was regarding (including me) as a miscarriage of justice.

VALERIE PLAME WILSON, former Central Intelligence Agency covert operations officer, October 30, 2007
CZIKOWSKY: There was press speculation that President Bush had been interviewed off the record by investigators in the Scooter Libby trial. Do you have any guesses as to what President Bush would have to say about the matter?
WILSON: I have no idea. As you note, the President was not placed under oath.
CZIKOWSKY: Let me please throw out a broad, general question where you may respond in any direction you wish: What do you think of Vice President Dick Cheney?
WILSON: I think he has a very dangerous view of Executive Power and is simply wrong about how our Constitution should be interpreted.

ERIC LANE, Hofstra University Law Professor, and LARRY J. SABATO, University of Virginia Center for Politics Founder, October 30, 2007
CZIKOWSKY: I would appreciate receiving the impressions that both of you have regarding the Patriot Act and how it impacts the Constitution.
LANE: I am answering you from the perspective of our book (“The Genius of America” written with Michael Oreskes). In times of high security concern there is always a new balance that needs to be struck between freedom and security. But the public should fully participate in the choices that need to be made. In this case Congress passed the act overnight excluding the public and most members of Congress from the discussion.
CZIKOWSKY: Some of the Constitution was formed as 19th century political compromise. What is the relevance of these 19th century political compromises to the politics of today?
SABATO: The compromises reached in 1787 are now 200 years old. Some, such as federalism and separation of powers still work well, overall. But there are many bits and pieces in the Constitution that are archaic and need to be changed. Only the most hidebound refuse to admit that change is needed. Unfortunately, there are a lot of hidebound people in this country. The key is to leave untouched what still works, but have the courage to change what does not. My book tries to distinguish between the two categories.
LANE: The compromises over the structure and processes of government (slavery excluded) have maintained our freedom and helped us prosper for 200 years. Perhaps as Larry argues, changes are necessary (and some of his ideas are very interesting) but before we get to that we must understand those compromises and how they worked. This is at the heart of our book “The Genius of America”.

MARY PRICE, Families Against Mandatory Minimums Vice President, December 10, 2007
CZIKOWSKY: What are mandatory minimums doing to our society? Many young people outgrow their troubled teen and 20s years and mature, yet we are holding so many in prisons way beyond their maturity and providing them with opportunities mostly in learning from other prisoners how to become better criminals. Meanwhile, we are removing many, mostly males, from their families where their children are growing up without fathers and with criminals as role models who themselves are more apt to follow into lives of crime. DO you agree with this and what other impacts on our lives do you see resulting from mandatory minimum sentences?
PRICE: Today’s opinions will not, sadly, affect mandatory minimum sentences. Those sentences are set by Congress and only Congress can change them. I agree with you that mandatory minimums require people to spend years more in prison than necessary to punish, deter and rehabilitate them. Meanwhile, as you point out, communities and families must struggle to cope with the consequences. The crack cocaine guideline that was the subject of today’s Supreme Court opinion in Kimbrough v. United States replicated the unjust crack increased drug quantities. Today’s opinion in Kimbrough only affects sentences above and below the five and ten year mandatory minimums for crack cocaine. Kinbrough tells judges they may now exercise discretion to lower a crack sentence below that called for in the guidelines if the sentence is, in the judge’s opinion, too harsh. It is up to Congress however to not only to correct the sentencing disparity for crack cocaine but eliminate all mandatory sentencing. There are currently three bills in the Senate and two in the House addressing the crack cocaine disparity.

ROBERT BARNES, Washington Post Supreme Court Reporter, March 19, 2008
CZIKOWSKY: Have you explored some of the potential political ramifications from this (upcoming U.S. Supreme Court decision challenging the District of Columbia’s handgun ban law)? Are activists on whichever side loses more apt to react and begin organizing with a greater intensity? If so, how might that impact elections?
BARNES: That’s a good question. As a former political reporter, I can tell you that while polls show the public is often split between protecting gun ownership rights and controlling guns, the political arena is not nearly so balanced. Gun rights advocates are far more organized, enthusiastic, and election-oriented. I think most political observers would agree that the court outcome many Democrats like—that is a collective rather than an individual right—would be an incredible motivator for gun rights advocates, who tend to support Republicans. As I pointed out in one story, Sen. McCain signed on to the brief urging the court to uphold the lower court and find DC’s law unconstitutional. Sens. Obama and Clinton have said they believe the Second Amendment provided for individual rights, but is subject to reasonable government restrictions, about which they have not been too specific.

VANESSA M. GEZARI, freelance writer, June 2, 2008
CZIIKOWSKY: Beyond the issue of crack cocaine, do you have any comments on the general issue of mandatory minimum sentences? It seems to me we put a lot of people in prison for long terms where the additional sentence has little use, in fact it may be a negative, especially when young people spend time in prison where they mostly learn how to become better criminals.
GERZARI: Good question. Some people, especially those who oppose mandatory minimums, see the crack cocaine guidelines that I wrote about (which make some offenders eligible for reduced sentences) as the death knell of mandatory minimums for all drug crimes, or at least the beginning of a massive correction. I guess from my point of view, from talking to judges in particular, mandatory minimums just seems like a one size fits all solution to what are often very complex cases. But without them, sentencing can be all over the place. As a society, we have to find a balance between considering each individual story and assigning standardized punishments based on the severity of a particular crime. That’s a tough thing, as the history of these laws shows.