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Justices bring constitutional road show to the Senate

By Bill Mears, CNN Supreme Court Producer
updated 6:27 PM EDT, Wed October 5, 2011
STORY HIGHLIGHTS
  • Justices Scalia and Breyer describe their view of government to the Senate
  • Americans should learn "to love the gridlock," Scalia says
  • "You should be suspicious if there aren't more 5-4 decisions," Breyer says

Washington (CNN) -- Think there is too much gridlock in Washington between the president and lawmakers? Don't worry, say two Supreme Court justices, that's a good thing.

Justices Antonin Scalia and Stephen Breyer appeared at a robust Senate hearing Wednesday to talk about the role of judges under the Constitution. The two are polar opposites ideologically, but good friends off the bench. And they showed surprising unanimity on a range of issues.

Americans should "learn to love the separation of powers, which means learning to love the gridlock, which the framers (of the Constitution) believed would be the main protection of minorities," Scalia said.

"If a bill is about to pass that really comes down hard on some minority, they think it's terribly unfair, it doesn't take much to throw a monkey wrench into this complex system," he said. "So Americans should appreciate that and they should learn to love the gridlock. It's there for a reason, so that the legislation that gets out will be good legislation."

The two-and-half hour hearing was part legal theory, part defense of how judges act, on and off the bench. Breyer said disagreement in the other two branches is also expected on the high court. He said tough questions presented to the justices will naturally produce divided rulings.

"Life on the boundary of the law is cold," he said. "And our job on the boundary is tough. And you should be suspicious if there aren't more 5-4 decisions. You should smell something wrong if the lower courts disagree, if we issue all these 9-0 rulings."

Scalia and Breyer make a colorful pair, both easy with a joke and a gentle put-down, and sharing a willingness to engage in debate and conversation. They have occasionally lectured together at universities and private forums, bringing a point/counterpoint road show on how they interpret the limits of the law.

Both men dismissed suggestions they are legislating from the bench, or take a political spin on their work.

"Judges make terrible politicians," Breyer said. "We have to make decisions based on reason. That's it."

Scalia said increasing rancor over how federal judges are selected has affected the quality of judges. Sen. Lindsey Graham, R-South Carolina, said that is currently having a "chilling effect" on getting good lawyers to serve on the bench.

"We're already seeing that, getting judges on the (federal) courts of appeals," said Scalia, who noted that many top candidates do not want to go through the delays and rancor often surrounding confirmations.

"You want an elite group, and it's not as elite as it used to be," he lamented.

The two justices defended disclosure rules that give some discretion to judges about when to recuse in a case. Breyer said all federal judges follow a code of conduct that is subject to review. He regularly consults law ethics experts and his colleagues about when to pull out.

That is especially true in his case, since Breyer's brother is also a federal judge. The justice will not participate in cases Judge Charles Breyer has decided.

Scalia returned to a favorite subject, again opposing bringing cameras into the Supreme Court's venue.

"I initially supported the idea, but now less and less so," he said. "If I thought it would be a great piece of education, I'd be all for it. But I guarantee that for every 10 people that watched gavel-to-gavel and saw how the law works, there would be 10,000 who would only see a 30-second sound bite (on the news), which would not be representative of what we really do."

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