BRIAN LAMB: Chief Judge Robert Katzmann of the Second Circuit Court in New York, it says in your bio you're the only jurist in the federal courts with a PhD in political science. How can that be?
CHIEF JUDGE ROBERT A. KATZMANN, SECOND CIRCUIT COURT, NEW YORK: It just happened I guess, but I started out going to graduate school in political science at Harvard and got a Ph.D. and worked with James T. Wilson and Daniel Patrick Moynihan and Richard Newstat.
And then went to law school and - at Yale. I'm originally from New York. I'm a product of the public schools of New York. And so going to those schools outside of Columbia went as an undergraduate. Going to those graduate schools were my first exposure outside of New York and got those degrees and then spent really a career before the bench trying to look at the workings of our institutions.
And studied relations between the branches of government at the Brookings Institution in - at Georgetown. Then because of Senator Daniel Patrick Moynihan who had been my professor at Harvard and I was his teaching assistant, I was - he was on my oral exam. Because of him, I became - I became a judge.
LAMB: I've got some videotape of you from 1993 testifying. Where would you have been in 1993? What would you have been doing?
KATZMANN: I can tell you exactly what I was doing that day, in fact. I was accompanying Ruth Bader Ginsberg during her confirmation process, meeting with the Senators on the Hill. Senator Moynihan had asked me if I would work with her. She didn't need anyone because she was so fully prepared in everything.
And I made every meeting with her that was scheduled except one with Barbara Boxer because in the time I was supposed to meet with Barbara Boxer with then Judge Ginsberg, I was to testify before the Joint Committee on the organization of Congress on matters of judicial congressional relations.
LAMB: It's a short clip. Let's watch you back - I guess it's 21 years ago.
(BEGIN VIDEO CLIP)
KATZMANN: In the area certainly of statute to a - the making of statutes and the interpretation of statutes and the revision of statutes where both branches are so intimately involved with each other's processes, I think it certainly makes sense.
And certainly, the Constitution does not preclude in any way that each branch try to have a better understanding of the other's work product with an eye towards improving that relationship.
(END VIDEO CLIP)
LAMB: What do you say to somebody watching this and is it - we're in the weeds and their eyes glaze over and you've got a new book called, "Judging Statutes." What - how does it relate to the average person?
KATZMANN: I think it relates to the average person in this way, this subject. If you ask the average person what does a judge do, the average intelligent citizen would say, "Interpret the Constitution." And, of course, that's correct, but that's not all what judges do.
What judges do a lot of time doing and the Supreme Court's docket, two-thirds of its cases involve doing this, is to interpret the laws of Congress. So you've got laws from the Affordable Health Care Act. You've got laws having to do with the clean air, clean water, civil rights. You have major legislation, environmental legislation, gender legislation. You have laws having to do with national security.
When Congress passes a law, often times there is a lawsuit in court about the way that the statute should be interpreted. What do the words of the statute mean? And when those words are ambiguous, the challenge for a court is difficult.
So I think that understanding how judges go about interpreting statutes is something that we should all be interested in because in a way even though the legislative process formally ends with the passage of a law, in some sense that process continues when there is a lawsuit trying to make sense of what the - what the words mean.
LAMB: Put the Second Circuit Court of Appeals in context. I looked at some numbers and you can tell me if the numbers are wrong about the number of - now, of course, I can't find them - how many judge - how many district courts there are, how many circuit courts there are, and how they fit into where the - I mean, we hear a lot about the Supreme Court.
I counted 94 judicial court - circuit district courts, 12 circuits, and then, of course, one Supreme Court. What's a district court do?
KATZMANN: The District Court is the court of entry in the federal system. The District Court is a one judge court and the District Court is the judge who conducts the trials. So if it's a Martha Stewart trial, a case involving a jury that will be conducted by a one judge district court.
And the district court also will hear other kinds of cases. When the parties - when the party loses, if the party, if it so chooses, will appeal to the Court of Appeals. That's the Circuit Court. That's my court. My court, the Second Circuit, is one of the courts that you alluded to.
We have 13 full-time judges and 9 senior judges. We have 22 judges.
LAMB: What's a senior judge?
KATZMANN: A senior judge is someone who's over 65, has the requisite number of years of experience, and can take senior status. There's an arcane rule called, the Rule of 80. And so if you're 65 and you have 15 years of service, 65 plus 15 equals 80 and you can go on senior status.
If you're 70, if you went on the bench at 60 and decide to go on senior status, you have to wait until you're 70. There's a minimum of 10 years. The senior judges do a lot of work in our - in our court system and we couldn't function without the senior judges, but when they go senior, what happens is that it creates a vacancy so that we can get another judge.
And so the combination of the senior judges and the full-time active judges allows us to - allows us to function.
LAMB: All judges - federal judges for life?
KATZMANN: All federal judges for life.
LAMB: And we had the 94 judicial courts and within the Second Circuit Court, how many district courts would send their appeals or people would send their appeals to you?
KATZMANN: There would be six district courts. There are - the Second Circuit itself consists of New York, Connecticut and Vermont. And New York has four districts. Connecticut has its own district and Vermont has its own district court.
And so those cases all feed into our - into our - into our circuit.
LAMB: You were nominated and confirmed to be on the Second Circuit Court when?
KATZMANN: In 1999 and it was a process that fortunately went smoothly. Senator Moynihan was a tremendous advocate.
LAMB: Let me show you something. There's some video of Senator Moynihan on the floor of the Senate back in 1999.
(BEGIN VIDEO CLIP)
SENATOR PATRICK MOYNIHAN, JUDGE: On a brief personal note, this is a very special moment for the Senator from New York. Judge Katzmann was a graduate student of mine. I was a member of the Orals Examining Committee where he received his Ph.D.
He has been a remarkable student, professor of law at Georgetown University at this point, and an author of important arts and books on the relationship between the Congress and the judiciary. A subject a little attended and important.
(END VIDEO CLIP)
How did - he's been gone since 2003, but how did you get interested in the first place in this subject between the judiciary and the courts?
KATZMANN: I got interested in it most generally because of my concern with the way that the branches of government interact, and I've done books on - in other areas. But the key, I think, point was in 1984, Frank Coffin, who was the chair of the committee under the Judicial Branch Judicial Conference, which is one of the committees of the conference which consists of the chief judges of the circuits and district judges, and they have various committees to work on administration of justice issues.
When Judge Coffin as chair of that committee asked me if I would assist him in designing an agenda for research of relations between the courts and Congress, and so that's how I really got into it. And because I had the political science background, I was asked to work with him on this. I've known him from my years on the First - my year on the First Circuit as a law clerk.
And so together, we designed an agenda and that led to a series of books and projects, judges of legislators, courts and Congress, and then the project that I had designed with him on facilitating improvements between the branches with respect to making sure that when the Courts of Appeals had opinions that were of interest of Congress, Congress would know about it.
LAMB: I think you point out that there are only two former members of Congress that are judges anywhere in the federal system?
KATZMANN: That's right. I mean, it's really quite - it's really quite striking. When I first started in this area in 1984 and I was working on the committee on - with the Committee on the Judicial Branch, there were many judges who were former - they were many legislators who were former judges.
There was Abner Mikva. There was James Buckley. There was Donald Russell. There was Hungate. There was Charles Wiggins and so on and so forth. Now, there are very few judges who have had legislative experience and they're - as members of Congress, there are a number of judges who've served on the Hill, like, Richard Eaton of the Court of International Trade was chief of staff to Senator Moynihan.
But in terms of legislators who have judicial experience, it's - you've got Alcee Hastings. You have Senator Cornyn who was on the Texas Supreme Court. It's a very limited number of people and both branches who have had hands-on experience in the other branch.
LAMB: I can't help but ask though if you look at the statistics of the number of former members of Congress and the House and the Senate who go now into lobbying that makes a tremendous amount of money, how much of this is tied to the fact that judges in context of the city don't make that much?
I mean, you're chief judge. What is it, around $150,000 a year?
KATZMANN: No, it's - we - it's been increased, but I think the key thing is that public service is a calling. And those of us who are in it really feel privileged to be in it. It's certainly true that I've observed the phenomenon where I'm in a court room and everybody - those who are arguing the cases are probably multimillionaires, but what a great system it is that we're in it not for the money, but because we want to serve the public good.
And I consider it a really precious treasured honor to be in this system.
LAMB: Where is your court located?
KATZMANN: We're located in Downtown New York City at 40 Foley Square. 40 Foley Square is now known as the Thurgood Marshall Courthouse because Thurgood Marshall served on the Second Circuit and had chambers in our courthouse.
The courthouse was designed by Cass Gilbert. It was his last courthouse. He also designed around the same time the courthouse of the Supreme Court Courthouse, and it's been - our courthouse has been the site of many exciting important cases and Pentagon Papers Case, for example.
LAMB: And then it went to the Supreme Court?
KATZMANN: And then it went to the Supreme Court, along with a - it also came up through the D.C. Circuit, the Parallel cases, Washington Post and New York Times.
LAMB: You've been chief judge for how long and what does that mean?
KATZMANN: I've been chief judge for almost a year, September 1, and the chief judge is responsible for the operations of this - of the court. It's a 7-year term. We have 291 persons working in the Second Circuit and that includes judges and their clerks and the administrative people.
We have a budget that ranges - local budget that ranges between $16.5 and $19 million, plus there's money that's paid centrally by Washington, D.C. The salaries of the judges and the clerks, for example, are paid centrally and that's another roughly $12 and a half million.
LAMB: I want you to clear up something. I don't want to put words in your mouth, but I would assume you're not from the old days a conservative.
KATZMANN: I would say that to label is to ignore. And so I don't - I think...
LAMB: And I - you'll see why I want to know that. I mean, because this guy, Senator Moynihan, doesn't just appeal to people on the liberal side. I want to show you a clip of George Will talking about him here.
(BEGIN VIDEO CLIP)
GEORGE WILL: He was throughout his career the Senate's leading intellectual, which, of course, is like being the tallest building in Topeka. He - during his Senate tenure, he wrote more books than most of his colleagues read.
What is a Senator? He's one percent of one half of one of the three branches of government, unless, of course, you're Mr. Moynihan. Then things are different. His life was, as we shall now, endeavor to make clear one of the broadest and deepest public careers in American history.
(END VIDEO CLIP)
LAMB: What is it about the memory of Senator Moynihan that it can appeal to all political sides?
KATZMANN: I think that the reason that he's still a figure and is really quite something that a week doesn't go by when somebody isn't quoting him for some proposition or another, I think that part of it was that he appealed to reason.
And he reached out regardless of political and party affiliation to talk about ideas and you'll never hear him speak ill of somebody else. It's always about ideals. And I think that the fact that he also was trying - would always try to put himself in the other person's shoes was part of his effectives.
I'll give you just one example. I worked as a special counsel pro bono on his commission on reducing secrecy in government - reducing and protecting secrecy in government and his idea was to open up lots of the documents that had been sealed historically.
And he was trying to figure out a way to get Jesse Helms, who was on the commission on board. So then he came up with a concept. Secrecy is a form of regulation. And Senator Helms wasn't a fan of regulation.
So he came up with this concept, which - organizing concept which would appeal to somebody who was - one might think would've been perhaps opposed to releasing historical documents however long they might've been under seal.
So I think it was that - it was that quality about him. He also had the capacity to bring out the best in people by trying to figure out, well, what do you want? What are your ideas? And working with them. And I think it was that capacity to reach across the aisle and to serve.
His credibility was enhanced by the fact that he served presidents regardless of party.
LAMB: He served President Nixon?
KATZMANN: He served President Nixon. He served President Ford at the - at the U.N. In the months before he passed away, he was - he had worked on a commission that George W. Bush had put together on Social Security.
So I believe that it was that capacity to reach across the aisle….
LAMB: I want to get some background from you on growing up in New York, but before I do that, I want to show you some video of somebody that looks an awful lot like you. He also went to Columbia University and he's currently on the Massachusetts Circuit Court. Let's - tell us who this man is when we see him.
(BEGIN VIDEO CLIP)
JUDGE GARY KATZMANN, JUDGE, MASSACHUSETTS APPEALS COURT: I've had the privilege of knowing Judge Breyer since 1980 when I served as his first law clerk on the U.S. Court of Appeals for the First Circuit. And also appeared before him on numerous occasions in my capacity in the U.S. Attorney's Office as Chief Appellate Attorney and Supervisor of Appellate Litigation.
And one comes away after having known Judge Breyer with the sense that here is a man who's goal is excellence, but excellence in the pursuit of justice and I think that one can only feel good about the future of America when people such as Judge Breyer are considered for the Supreme Court.
(END VIDEO CLIP)
Who is that man?
KATZMANN: That man is my identical twin brother, Gary, and he is a judge on the Massachusetts Appeals Court. I think he's an extraordinary judge and also very kind human being. He's had an amazing career. He's been on the court doing basically what I do, but in the state court system for some 10 years where he's very highly regarded.
He had been a prosecutor in the Department of Justice for 20 years where his cases included the prosecution of Richard Reed and the Shoe Bomber. He is an author, scholar. His book, "Inside the Criminal Process" has been translated into Russian. His work on securing justice for juveniles resulted in a book with the Brookings Institution.
He's been very actively involved in Boston and civic engagement, public engagement programs. And like me, he is a - he's a C-SPAN addict.
LAMB: Well, go back to the beginning. What were your parents like? Are they still with us?
KATZMANN: My parents are still with us. My parents are my heroes. My father is 88. He's a refugee from Nazi Germany. He came to the United States in March of 1941 with his - with his mother. His father had died on Crystal Night, 1938.
My mother is - is from Brooklyn. She's 85 and her parents were from Russia. And my parents are really my heroes because they've really given all of us, all 4 children, the sense that anything and everything in life was possible, and that whatever you do you should do it with modesty with concern - with concern for others and with the idea of trying to make the world a better place.
My father worked in a hot un-air conditioned place for 40 years, went to night school.
LAMB: What was his job?
KATZMANN: He was an engineer. He ultimately got a degree and I can still remember as a child he would come home from night school classes. Never complained about anything. And I think that, I'm often asked - I do a lot of work on immigrants, trying to provide counsel for immigrants, and I think part of the inspiration is that I can still remember the voices and accents of my youth and those who came to this country trying to make it a better place.
I love this country. Not that they thought they would make this country a better place, but they thought of this as a great nation that they wanted to help make even greater.
LAMB: Your other siblings, what are they? Boys? Girls? And where are they? What do they do?
KATZMANN: I have a brother who's in computers in Easton, Connecticut. Very smart guy. And I have a sister who lives in New Jersey and has raised a great family. She had worked several years ago on CNN as a - as a producer and we're all - we're all very, very close.
LAMB: What about mom? What's the background for your mother?
KATZMANN: My mother is - was - raised the kids and what a great job she did in terms of attending to each of our needs, you know? I never - I can't remember a single cross word my mother ever said to me. It's just pretty remarkable.
And I don't think that I'm idealizing it because when I talk - I was just talking not long ago to my siblings and neither - and none of us could think of anything that she said that was unkind. We have the blessing of having had two very supportive - very supportive parents.
LAMB: So what's the difference between - and who's older? Gary or you?
KATZMANN: I'm 8 minutes older. I used to think that I was 5 minutes older, but about 10 years ago we saw the birth certificate. But he jokes that he - you know, he kicked me out. So he - but anyway, I - professionally we do now basically the same things, but just in different systems; one the federal court, the other a state court system.
LAMB: Now, what would you tell a lawyer that's going to come before your court cannot do?
KATZMANN: I would say - that's a great question. I would say don't caricature the arguments on the other side. If a lawyer is to have credibility in court, and certainly with me, I want to have the sense that that lawyer is fully respectful while advocating for his point of view or her point of view of the other side, but at the same time is - it is not - and at the same time is not exaggerating the other side's argument.
Also, another thing not to do is not to know the record. If I asked a question about something that happened that was in the record, I would want the lawyer to be fully knowledgeable and prepared to talk about that record.
So - and then the third thing for me is answer the questions, which is to say don't think that if I asked a question, don't answer it with an answer you want to give to another question. Please answer my question.
LAMB: All right. Here's a clip of a man that you - I know you disagree with. Watch a little bit of this. This is from a 2012 interview and it'll get us - give us a chance to get into this book you've written. Let's watch.
(BEGIN VIDEO CLIP)
JUSTICE ANTONIN SCALIA: It is said in some Supreme Court opinions that, you know, sometimes, you know, the letter of the - of the law is contrary to its spirit and its spirit must be - must prevail. That's nonsense. The letter of the law is the letter of the law. That's what we're governed by.
We're not governed by some judicial determination of spirit, which could be anything, but the statement comes up awful - often. It is an empowerment of judges. Judges can simply say, oh, yes, the text says that, but that's contrary to the spirit of the law and we're going to go ahead and do whatever we like.
I mean, that's just not Democratic self-government if people can't have their representatives write a statute, which is to be applied as written.
(END VIDEO CLIP)
LAMB: Here it is, the new book, "Judging Statutes" and you talk about textualism as he was talking about it. Could you two be more farther - could be farther apart on this - on the issue and what is the issue?
KATZMANN: Well, let me first begin by where we agree. So the issue is how do you interpret a statute if you're a judge? Do you look only at the words of the statute or can you also look at the body of materials that Congress produces in the law-making process that accompany, the statute, like, the Conference Committee Report or the Committee Reports. The Conference Committee Report is often the final document where both chambers come to an agreement about what it is that they're doing and often there is a vote on the Conference Report.
Or the Committee Reports out of committee, which often give background about what the words of the statute mean.
LAMB: Can I interrupt just a second? Would you define what a statute is?
KATZMANN: A statute is a law of Congress. So it could be the Civil Rights Act of 1964. It could be the Hobby Protection Act of whatever year that deals with protecting memorabilia from being copied or coins from being copied.
It could be the Clean Air Act. When Congress passes a law, that is a - that is a statute. So where Justice Scalia and I, I think, would agree is that we're the language of this - of the statute, of the law is crystal clear. Then, of course, fidelity to that text as it's written means that you don't have to go beyond the words of a statute because it's clear.
So if I said to you that there is a law that makes it unlawful to distribute in a 30-day period 3 grams of Pseudoephedrine, a drug, and you've - not you personally because you never would be involved in any of this, but let's say that the person had been convicted of 30 grams - I mean, 30 grams.
Well, it's very clear the statute says 3 grams. The interpretation is very, very clear. But what if I were to say to you that there is a statute that says that you will - that it'll be unlawful for anyone who has been convicted in any court of a crime punishable by more than 1 year to possess a gun? Now, what is convicted in any court mean? Does it mean any court in the United States? Does it mean any court in the world?
You could see why Congress could go either way.
LAMB: You have a case that you talk about in the book like this.
KATZMANN: Yes, I do. I have a - I have a case in the - in the book that I...
LAMB: And did you sit on this - there are three judges that sit on these cases?
KATZMANN: Yes. Yes.
LAMB: And were you - you were there?
KATZMANN: Yes, I was there and I wrote the opinion. And so just looking at the words of the statute, you could say, well, could be convicted in any court. Perhaps it means in the world or maybe in the United States.
But then you think about it and you think, well, there are crimes in parts of the world for practicing religious freedom, for trying to practice freedom of the press that are punishable by prison more than one year.
Do we really want to say that if you're convicted in any court in a country that doesn't have the same values that we do that that should count? So when you start thinking about it, you say, well, the words of the statute aren't that clear.
So why shouldn't we then look to the accompanying materials?
LAMB: Would Justice Scalia not look at that?
KATZMANN: He would not look at that. He would not look at that. Here's my basic view: Congress under the terms of the Constitution - and remember, Congress is Article I. That's the first article - Congress is charged by the Constitution with enacting laws. And so what Congress thinks of as important in terms of our understanding as judges, as administrators, as citizens of its work product should not simply be discarded, but should be paid attention to.
Now, obviously some of the materials are more important than others, but we should not simply discard it. Indeed, Justice Scalia notes that - argues that legislative history increases legislative materials going beyond a statute, increase the discretion of judges. They can pick and choose.
But I think it's - the real problem is is that if the statute - if the law is unclear and the only thing I'm going with on is the words of the statute and it's ambiguous and I don't look at anything else, that actually widens my own discretion because I'm not constrained by trying to understand what the legislators meant in trying to make this - how they thought the statue was meant to work, but often language that's in their committee reports.
LAMB: You know, I understand that you say in your book that Justice Scalia and Clarence Thomas are the only two that are, you would say, Textilus?
KATZMANN: Yes, the pure Textilus. I mean, they're the only ones who don't go beyond the text. I mean, Justice Scalia for a time would in his career would cite legislative history and - but he no longer does so.
And...
LAMB: Do you know why?
KATZMANN: I think that he's just come to the view that it's mischievous. I mean, you would know better. You've had him on. But I think that's his view. But I had a case some years ago where I actually cited his reference to legislative history and that may be one of the last cases that he cited that he - where he actually cited legislative history.
LAMB: When you're sitting on a case at the Second Circuit, how much do you think about being reversed by the Supreme Court?
KATZMANN: I don't really think about being reversed by the Supreme Court. I think about trying to follow the law where the precedence direct me to go in a certain direction and where the precedence don't, I try to do the best I can.
So there are times when I will reach and write a decision where I - if I could rule the world, I might've written the law - the precedent differently of the - of the high court, but it's my job to follow that precedence.
So I believe that we would have a Wallace judicial system if we didn't - if we weren't attentive to the - to what the Supreme Court directed us to do. But where questions are left open we have more discretion to try to answer the question and that, of course, can then lead to further court tests up in the Supreme Court.
LAMB: Do you have any idea how many cases you've actually adjudicated over - since '99?
KATZMANN: That's a great question. I have to think about that. I mean, it's...
LAMB: What do you do on an average year?
KATZMANN: It's in the thousands. It's thousands of cases because I think that they're probably about, oh, you know, 300 to - cases orally argued and then we have the immigration docket. It's probably, you know, about 500 cases a year.
LAMB: From the court?
KATZMANN: Yes.
LAMB: Now, would that be with - where you sit?
KATZMANN: Well, I sit on a 3-judge panel and so every judge with me. I sit with all 22 judges, but we sit at any one time on a 3-judge panel except in those rare instances when we hear a case as a full court.
LAMB: This is kind of in the weeds, but I think you also say in your book that you don't - have you ever set on bunk? In other words, all the judges on a - on an appeal within the court?
KATZMANN: Very rarely. It - our court goes in bank very rarely. Other courts go in bank much more frequently.
LAMB: Why is there - why is there a difference?
KATZMANN: I think in our court, the culture is that if the case is that important, it should go up the Supreme Court right away. Especially if there's a 3-judge panel and there is a strong descent, it's 2 to 1, let's say, then the issue is - the issue is - the differences are firmly drawn and they should be - the case should just go up to the Supreme Court for resolution.
In other courts, the view is that any time the rest of the court doesn't like what the three judges did, just in bank consideration, is warranted. I think that one of the reasons that our court is so collegial is that we don't go in bank that much because there's often a lot of heat in in-bank proceedings, and I for one think that the tradition that we've had that goes back to a learned hand of not going in bank is a - is a - is a wise tradition.
LAMB: What - for a moment, what's the politics of your appointment? I - you've - you were appointed by Bill Clinton, but you also give a nod to Gene Sperling, who has worked for Bill Clinton for years, also for Barak Obama for helping in this whole thing.
We saw about Patrick Moynihan. How did you get this position and did you always want to be a judge?
KATZMANN: I got the position primarily because of Senator Moynihan because it was 1998 and I think that he knew that he wasn't likely to run again. He probably already decided. And I had worked with him on so many projects over the years and this was such a great mentor, and he raised the idea of becoming a judge.
And there was a vacant seat that was identified in the Second Circuit. I think Dick Eaton may have identified the vacancy who worked for Senator Moynihan, is now a judge, and - so Senator Moynihan was the moving force.
And Gene Sperling, who had been a research assistant to Steve Hess at Brookings when I first got to Brookings...
LAMB: Who used to work for Eisenhower?
KATZMANN: Who used to work for Eisenhower, was a good friend. And so he was helpful in the White House end. And then the other thing that I had was really quite fortunate for me is that I was - I was known to people on the Hill because of work that I had done on the Hill.
And Senator Hatch was very supportive of my potential nomination and his team let it be known, Senator Hatch then being the chair of the committee, that if I were nominated that I would - I would get through. And Senator Leahy also was very supportive.
And so I was nominated within a few months. I had my hearing in June. I was confirmed in July of 1999 by a voice vote. I was the first Court of Appeals appointment confirmed in 1999.
LAMB: As you look though at the court, there's, what, 700, 750 federal judges in the United States? How many of those are determined to be on the Court by the members of Congress do you think?
KATZMANN: I think the District judges are almost certainly largely determined by the - by the Senators when the Senator is of the same party as the president. The Court of Appeals appointments are traditionally viewed as White House appointments, and that's why I think in my case that Senator Moynihan worked overtime to get - to get - to get my nomination through.
And the White House and John Podesta and Gene Sperling were very helpful.
LAMB: On another issue, and we're going to use Justice Scalia again on this, and I'll explain why we do it in a moment, was watch what he says about this is not a legal issue, but it's an important issue as you'll see before the Supreme Court.
(BEGIN VIDEO CLIP)
SCALIA: If I really thought it would educate the American people, I would be all for it. If the American people sat down and watched our proceedings gavel to gavel, they would never again ask as I'm sometimes asked, yes, Judge Scalia, why do you have to be a lawyer to be on the Supreme Court? The Constitution doesn't say - no, the Constitution doesn't say so, but if you know what our real business is, if you know that we're not usually contemplating our navel to there be a right to this or that, should there be a right to abortion, should there be a right to homeless, that's not usually what we're doing.
We're usually dealing with the Internal Revenue Code, with ARISA, with patent law, with all sorts of dull stuff that only a lawyer could understand and perhaps get interested in. If the American people saw all of that, they would be educated, but they wouldn't see all of that.
LAMB: But we get...
SCALIA: Your outfit would carry it all. We've got to be sure, but what most of the American people would see would be 30-second, 15-second take-outs from our argument and those take-outs would not be characteristic of what we do. They would be uncharacteristic.
(END VIDEO CLIP)
LAMB: Now, it almost sounds like a set-up, but I don't know what you think about this. But your court is allowing us to cover Monday the ACLU vs. Clapper...
KATZMANN: Tuesday.
LAMB: ... Tuesday in the court in New York and we have covered several things in the Second Circuit Court. Why can we cover the Second Circuit Court and what do you think about his attitude about television in the Supreme Court?
KATZMANN: In terms of the Court of Appeals, the reason that we can cover it - you can cover what we do is that we the Judicial Conference, which does not include the Supreme Court as part of its jurisdiction, essentially 1996 allowed for a local option so that each circuit could determine for itself whether to allow cameras in the courtroom in non-criminal cases.
And we and the 9th Circuit are the two circuits, I believe, that are participating in this, cameras in the courtroom. And the way that it works in our circuit is that a request goes to the panel and if the panel agrees for there to be coverage, then there is coverage.
If a member of the panel has any concerns, then the tradition is to decline the request for cameras in the courtroom, but, you know, by and large, I think that the experience is that there have been a number of cases as you've said, Brian, where there is cameras in the courtroom.
And I think that in terms of the Court of Appeals, I think that this is a positive development that...
LAMB: So never interfered in your opinion?
KATZMANN: No, there's no record of it it's having interfered and it doesn't happen that often because our cases aren't all that exciting where we're asked to have this kind of coverage. I think the value though of C-SPAN is that it covers everything. It covers the whole argument. And I think that that is important for the educative process.
There's also now an experiment that was authorized by the Judicial Conference in 2010 and began in 2011. I think the project will end in 2015, the pilot project, of various civil proceedings in the district courts across the country. I think there's - I know there are many district courts that are participating in this and there's actually a website where you can go and watch the proceedings.
LAMB: Now, the District Court, does it always have a jury?
KATZMANN: It doesn't always have a jury. There are many cases which are non-jury cases, but - so we'll see how that experiment works out.
LAMB: Does the Circuit Court ever have a jury?
KATZMANN: A Circuit Court never has a jury.
LAMB: And does the Supreme Court ever have a jury?
KATZMANN: No, the Supreme Court never has a jury. We just sit three judges or rarely the in bank and the lawyers come before us. And we don't have the excitement of the District Court with the defendants and the witnesses that you see. The Court of Appeals doesn't have that.
LAMB: We've got some video that was taken in a - earlier just to show what your court looks like. There are more judges sitting up there than the normal three, which we'll show to just run a little bit of this, and then ask you to explain what we're watching.
(BEGIN VIDEO CLIP)
MALE: Hear ye, hear ye. All persons of having...of this of city terms, of the United States Court of Appeals of the Second Circuit…that ye shall be heard. (INAUDIBLE).
Being removed when they are working with the Syrians, providing the Syrians a dossier of questions, getting the tortured answers back from the Syrians...
Where does that come from? Is that in the complaint?
Yes, that's an allegation in the complaint. The dossier of questions was virtually identical to the questions that the FBI had been asking him in - and the Syrians said on the public records - sorry - that they had provided this information to the United States at the...
FEMALE: Counsel, was it the same - the very same officials who told his attorney that he was in New Jersey when he was on his way to Syria or is it just a case of one hand not knowing what the other one is doing?
(END VIDEO CLIP)
LAMB: We saw more than three judges come - you're not in this group, by the way.
KATZMANN: Right. Right.
LAMB: We saw more than three judges come out. What was - why was that?
KATZMANN: That was a, I believe, an in bank that had to be an in bank hearing on a case and...
LAMB: It was 2008, Arar vs. Ashcroft?
KATZMANN: Right. Right. Right. And what you see is all the judges on the panel reviewing a lower - you - they're reviewing a question that was considered by a prior panel, a three-judge panel of the court. They're not so much reviewing what that three-judge panel did, but looking at the issue afresh.
And you see the lawyers in the courtroom and...
LAMB: One of the things I - the reason I ask you this is because Justice Scalia basically says the public wouldn't understand what's going on and even though he didn't say it, you'd think from time-to-time when you listen to the Justice of the Supreme Court they're worried about the Jon Stewart program or the Colbert programs doing the clips and all that. Does that concern you?
KATZMANN: I think that there is a concern about taking things out of context and caricature. At the Court of Appeals where the requests are made for the whole argument to be shown, I think that if you're going to watch C-SPAN, you're going to be a very intelligent person who's wanting to learn about the process.
You asked me about the Supreme Court. I know that they are at least at this point certainly releasing audio tapes. I think that's a very good development. On the issue of cameras in the courtroom, I'd want to know more about why some of the justices who at one point seemed favorably disposed to cameras have concerns because there may be something that we don't know about that has to do with those concerns, maybe security concerns.
And so while the Court of Appeals, nobody knows who we are and we can be covered and there's no sense of security concerns. It may be different at the Supreme Court that may suggest why some of the justices have changed their views and it'd be interesting for you to - your next round of - your Supreme Court C-SPAN book. You should ask them.
LAMB: Yes, we didn't ask any of them that during that round. This book, what's this on the cover?
KATZMANN: What's on the cover is a - is the text of a statute, which I had to interpret. And the question in the case was this: The - there was a - there was a bar on suits against the government involving the miscarriage or loss or negligent transmission of materials in connection with postal delivery.
And so the question is, "What does negligent transmission mean?" And so the reason I think it's such a great cover is that what it gives you a sense of is here is a small phrase in a large statute and that can become the subject of a - of a - of a whole court case.
LAMB: What did you think of the experience of - Oxford Press published this. It's 170-pages. Cost $24.95. What did you think of this experience of doing a book like this?
KATZMANN: It was a great experience. I had originally done a lecture a few years ago at NYU, the Madison Lecture, on this - on the subject of statutes, and it was Adam Liptak of the New York Times who said, "You should really think about expanding this into a - into a book."
And so I did and the Oxford Press people had been great and very excited and honored to be part of their stable of authors.
LAMB: We didn't even get much below the surface here when you think about - we didn't talk about the Federalist papers, the administrative conference, the legislative counsel and the Governance Institute. Are you still involved in the Governance Institute?
KATZMANN: Yes, I am. I'm on the board of the Governance Institute, which is run by Russell Wheeler, and it's an institute that tries to deal with problems of governance. They've done a lot of work in judicial administration. They have been very helpful in the project that I've directed on securing - trying to secure counsel for the immigrant poor.
LAMB: Who are there? Where are they located?
KATZMANN: They are located in Washington, D.C. and they - it's a non-profit, 501C3 organization, and physically based within the Brookings Institution. And it's a great - it's a great organization.
LAMB: Now, we don't have time for this, but I'm going to ask it anyway because another word - I had never seen this word before - it's textualism versus...
KATZMANN: Purposivism.
LAMB: Purposivism? What is that?
KATZMANN: Purposivism is the idea that we should try to understand what was behind what Congress was trying to do when it passed the law because we understand what it is that they were trying to do that will aid us interpreting the law consistent with the purposes of the statute.
And Justice Breyer has, I think, written eloquently about the importance of not divorcing law from life and that means understanding what Congress had in mind.
LAMB: And at this stage in your career, how long does it - does somebody like you think about continuing to be a judge?
KATZMANN: I'd like - I'd love to stay on as long as my brain is working. It's such a - it's a great privilege to try to serve the public and one of the great things about the job is that there is not a retirement age.
If you feel that you're not up to it or if others feel that you're not up to it, they'll tell you.
LAMB: Is it the same for your twin brother, Gary, on the Massachusetts Court?
KATZMANN: There's a retirement age there. The state courts have mandatory retirement ages and I think that's unfortunate.
LAMB: Our guest has been Robert A. Katzmann, Chief Judge of the Second Circuit Court of Appeals in New York and the book is called, "Judging Statutes." Thank you very much for joining us.
KATZMANN: Thank you.