[Senate Hearing 112-522]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 112-522
 
        ENSURING JUDICIAL INDEPENDENCE THROUGH CIVICS EDUCATION 

=======================================================================

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED TWELFTH CONGRESS

                             SECOND SESSION

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                             JULY 25, 2012

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                          Serial No. J-112-90

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         Printed for the use of the Committee on the Judiciary

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75-741 PDF                       WASHINGTON : 2012 

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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin                 CHUCK GRASSLEY, Iowa
DIANNE FEINSTEIN, California         ORRIN G. HATCH, Utah
CHUCK SCHUMER, New York              JON KYL, Arizona
DICK DURBIN, Illinois                JEFF SESSIONS, Alabama
SHELDON WHITEHOUSE, Rhode Island     LINDSEY GRAHAM, South Carolina
AMY KLOBUCHAR, Minnesota             JOHN CORNYN, Texas
AL FRANKEN, Minnesota                MICHAEL S. LEE, Utah
CHRISTOPHER A. COONS, Delaware       TOM COBURN, Oklahoma
RICHARD BLUMENTHAL, Connecticut
            Bruce A. Cohen, Chief Counsel and Staff Director
        Kolan Davis, Republican Chief Counsel and Staff Director



                            C O N T E N T S

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                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa......     3
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     1
    prepared statement...........................................    25

                               WITNESSES

O'Connor, Hon. Sandra Day, Retired Associate Justice, The Supreme 
  Court of the United States, Washington, DC.....................     5


        ENSURING JUDICIAL INDEPENDENCE THROUGH CIVICS EDUCATION

                              ----------                              


                        WEDNESDAY, JULY 25, 2012

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Committee met, pursuant to notice, at 10:04 a.m., in 
room SH-216, Hart Senate Office Building, Hon. Patrick J. 
Leahy, Chairman of the Committee, presiding.
    Present: Senators Leahy, Klobuchar, Coons, Blumenthal, 
Grassley, Sessions, and Lee.

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM 
                      THE STATE OF VERMONT

    Chairman Leahy. Before we get started, I should say, one, 
of course, we are delighted that Justice O'Connor is here. 
Senator Grassley is on his way. He was doing a conference call 
with students. We were all trying to do education things. I am 
just wondering, all of you who are students in this room, would 
you please stand up just so the Justice can see?
    [Applause.]
    Chairman Leahy. Not bad. In the past, we have had--I was 
telling Justice O'Connor earlier that Justice Breyer and 
Justice Scalia were here, and we have had so many schools 
around the country now have the DVD of that hearing. And even 
in the little State of Vermont, I have had people stop me, 
students stop me on the street who have seen the DVD, and it is 
a chance to learn, it is a learning experience, and we try to 
do that periodically here.
    Of course, Justice O'Connor was appointed to the Supreme 
Court by President Reagan in 1981. She served on the Court 
until her retirement in 2006. I recall--and we talked about 
this in the back--when then-Senator Barry Goldwater from 
Arizona came to see me, as he did others, to praise Justice 
O'Connor and say that she would make a great Justice, and he 
was absolutely right. She has been a leading voice for the 
importance of civics education. She currently serves as Chair 
of the Board of Directors for iCivics, an organization which 
promotes civics education in our Nation's schools.
    I hope, Justice, you were pleased to see the number of 
students who are here.
    Justice O'Connor. I am indeed. Thank you. When I was a 
student a long time ago, I never had the privilege of coming to 
Washington, D.C., and sitting in on a Senate hearing. So I 
think it would be very instructive for young people to have a 
chance to do that.
    Chairman Leahy. Well, Justice, you are bringing a lot of 
students to Washington with this, and we are streaming it on 
our Judiciary website.
    Justice O'Connor. Good.
    Chairman Leahy. And I think that discussions like this 
serve our democracy. As public officials, we owe it to all 
Americans to be transparent about what we do in our official 
capacities. We justify their trust by demonstrating how our 
Government works to uphold our common values, how we are guided 
by the Constitution, and how that Constitution has served over 
the years to make our great Nation more inclusive in our 
continuing effort to be a ``more perfect union.''
    As I mentioned, with the students, just before Senator 
Grassley came in, I mentioned that Senator Grassley was doing 
his own outreach to students in a phone call before he came in 
here. And, Chuck, the number of students in here who stood to 
be recognized, that was quite a number.
    We have three branches of Government under our 
Constitution, but only two of them are political, and intended 
to be political. The third branch, the Judiciary, is 
independent by design. Both of the political branches come 
together in the judicial confirmation process to equip that 
independent branch with the men and women necessary to carry 
out its role in our democracy.
    I have had a chance to vote on every Justice for the last 
37 years, starting with John Paul Stevens.
    Justice O'Connor. Oh, my, yes.
    Chairman Leahy. Including, of course, Justice O'Connor.
    Judicial independence and the role of judges in our 
democracy has been the subject of two previous hearings with 
Supreme Court Justices--Justice Kennedy, Justice Scalia, and 
Justice Breyer. But in the wake of recent rhetoric about the 
sitting Chief Justice, I think the public conversation today is 
all the more relevant. I am concerned about some of the 
rhetoric about the Chief Justice when he has been called 
everything from a ``traitor'' to having ``betrayed'' President 
George W. Bush. Well, I think these types of attacks reveal the 
misguided notion that Justices and judges owe some allegiance 
to the President who appointed them or to a political party.
    I have served on this Committee for three decades--for more 
than that--and have questioned every Supreme Court Justice 
serving on the high Court today at their confirmation hearings. 
I have voted to confirm Justices and judges nominated by both 
Republican and Democratic Presidents, as I did in voting for 
Chief Justice Roberts. I have long noted that I do not vote to 
confirm individuals to the bench because I expect to agree with 
all of their decisions. I can find every Justice I have voted 
with, I can find decisions that I disagree with. I can find a 
lot of decisions I agree with. My only standard is will they be 
a fair and independent judge and fair and impartial.
    I say this because nobody should demand political 
allegiance from any judge, whether nominated by a Democrat or 
by a Republican. As many sitting Justices have noted, it is 
completely appropriate to criticize the rulings of any court--
and we have that right as Americans--including the Supreme 
Court. For example, in the Chief Justice's recent health care 
decision, much of which I disagree, I find the opinion of 
Justice Ginsburg compelling on congressional authority under 
the Commerce Clause and Spending Clause. But it reveals a 
complete misunderstanding of our system to attack the Chief 
Justice saying that he has not followed a political party or 
showed allegiance.
    So this is a teachable moment. Justice O'Connor has 
dedicated her life to public service. She has been elected to 
State government. She served on both the State bench and on the 
highest Court in the land. She is the last Justice not to come 
from what I call the judicial monastery. She has traveled the 
world to teach emerging democracies about the importance of the 
rule of law, and I know those have been teachable moments. She 
has directed her considerable talents to reminding us of the 
importance of civics education so that our own democracy will 
continue to thrive and be protected.
    Justice O'Connor, I am going to yield to my friend Senator 
Grassley, but as I told you privately, Barry Goldwater was such 
a good friend, and at his request I moved into his old office, 
and I have been there now for 30 years. You would blush to hear 
all the good things he said about you, some of it in language 
that I will not repeat in the hearing, but you know Barry.
    Senator Grassley.
    Justice O'Connor. Senator Grassley.

STATEMENT OF HON. CHUCK GRASSLEY, A U.S. SENATOR FROM THE STATE 
                            OF IOWA

    Senator Grassley. Thank you. Thank you, Mr. Chairman, for 
holding this hearing, and I remember one we had last year that 
was very valuable with Breyer and Scalia, as I recall. Very 
valuable. So it is going to be valuable to have you here as 
well, and I am glad to greet you for coming.
    Justice O'Connor. Thank you.
    Senator Grassley. You were not only the first woman to 
serve on the Supreme Court, you are the first Supreme Court 
Justice I ever had a chance to vote for.
    Justice O'Connor. Oh, for heaven's sake. Good.
    [Laughter.]
    Senator Grassley. My first vote for confirming somebody to 
the Supreme Court. And I can say that, looking back after all 
your years of services, your performance justified the 
confidence that the Senate placed in you.
    We would like to believe that our judges, whose 
independence is guaranteed by the Constitution, rule based only 
on the Constitution and not on their policy preferences. 
Judicial independence was established to make the courts 
independent of the other branches and independent of popular 
view. It is not designed to make judges independent of the 
Constitution so that they can impose their policy preferences. 
We hear that if only our citizens properly understood the role 
of the courts, unprecedented attacks on judicial rulings would 
vanish.
    This is a view that I believe is at odds with both the 
current reality and the history of our country. In fact, the 
leading reason for the so-called attack on judicial 
independence is often judges themselves. Only last week, the 
New York Times reported that only a few weeks before the 
Court's health care decision, the public approval of the 
Supreme Court's performance was at the 44 to 36 margin. But the 
article reported that after the ruling, as many Americans 
disapproved of the Supreme Court as approved of its 
performance. That decision, which some have speculated was 
issued at least in part to reduce political opposition to the 
Court, appears to have accomplished exactly the opposite 
result, if you want to go by that poll.
    The article states that most Americans believe the decision 
was based mainly on the Justices' personal or political views. 
Only 30 percent of Americans say the decision was made mainly 
on legal analysis.
    For myself, I respect the decision, even if I am 
disappointed by that decision, and I question no one's motives. 
But I do not think that the poll results would be different if 
only the public had a better understanding of the Court. In 
fact, I think the poll reflects that the public does have 
reason to suspect that politics enters into some Justices' 
decisions.
    They accept the decisions, anyway, as shown by the polling 
on 18 earlier major cases presented in that article, two-thirds 
of which were unpopular with the population when they were 
decided. Although unfortunate, this perception should not be a 
cause for alarm so long as it does not lead to threats of 
violence, threats of impeachment, or threats to imprison judges 
for their rulings. Much more serious threats to judicial 
independence have occurred regularly in our history when the 
citizens were convinced that what the courts presented as law 
was not constitutionally sound, such as when Andrew Jackson 
refused to be bound by the Supreme Court's opinion on the 
constitutionality of the Bank of the United States; or the 
Court's rulings on Indian rights; or when Abraham Lincoln said 
that the Dred Scott decision was ``erroneous'' and refused to 
accept it as a precedent because it reflected ``apparent 
political bias;'' or when Theodore Roosevelt ran the most 
successful third-party candidacy in our country's history on a 
platform of ``restriction of the power of the courts so as to 
leave to the people the ultimate authority to determine 
fundamental questions of social welfare and public policy,'' 
including the ability of voters to overturn constitutional 
rulings of State courts; or when Franklin Roosevelt tried to 
pack the Supreme Court because of its rulings striking down New 
Deal legislation.
    So let us keep everything in perspective. It is not a 
violation of judicial independence for a Senator to criticize 
Court rulings that he or she believes incorrect. It is not a 
violation of judicial independence for a Senator to conduct 
legitimate oversight of the judiciary. Those are appropriate 
ways of ensuring accountability. That is all within the 
constitutional concept of checks and balances.
    But judicial independence could be jeopardized when a 
President of the United States in a State of the Union speech 
misstates the holding of a Supreme Court case in front of 
Justices when they cannot respond. Judicial independence could 
be threatened when, after a pending case is briefed or argued, 
the President publicly misstates the process of judicial review 
and claims that the Court's legitimacy and a particular 
Justice's legacy will be tainted unless the Court decides the 
case the way that the President wants that case decided. And 
judicial independence is certainly weakened if Justices give in 
to those attacks rather than decide based solely on the 
Constitution or even appear to do so.
    Finally, I appreciate Justice O'Connor's work in advancing 
civic education. I believe that all citizens in a democracy 
benefit from the participation of informed and active citizens. 
I think that the iCivics site is a good one, although I wish 
``Court Quest'' told students that citizens can challenge laws 
on constitutional grounds in State as well as Federal courts. 
It should also say that a trial held for violation of a State 
criminal law claim to violate the Federal Constitution would be 
held in State and not Federal court. And although I have 
supported Federal efforts to promote greater understanding of 
our constitutional system, I do not believe that the Federal 
Government should develop and mandate civics standards, and I 
do not think the Framers of the Constitution thought they had 
given Congress the authority to impose such standards?
    Justice O'Connor, I look forward to listening to your 
views.
    Justice O'Connor. Thank you.
    Chairman Leahy. Thank you. And, Justice O'Connor, we are 
talking about iCivics, and here is one of the copies of it. And 
I could not help but think as I look at this, the young man on 
the front looks very much like a grandson of mine. I have got 
to make sure that all five of our grandchildren get a chance to 
be involved with it.
    But, please, Justice O'Connor, we welcome you here and the 
floor is yours.

    STATEMENT OF THE HONORABLE SANDRA DAY O'CONNOR, RETIRED 
  ASSOCIATE JUSTICE, THE SUPREME COURT OF THE UNITED STATES, 
                        WASHINGTON, D.C.

    Justice O'Connor. Thank you very much, Senator Leahy, and I 
will welcome questions that you and Senator Grassley want to 
ask to direct the conversation. You have brought up the subject 
of iCivics.
    It is a website that relies on games to teach young people 
how Government works. We have had a wonderful group of skilled 
teachers of middle and high school levels who have helped 
advise us on the topics that we should cover on the next 
iCivics game and so forth. They have helped us throughout the 
process of developing the website. So we have attempted to 
develop games that enhance the ability of teachers to teach 
young people how our Government works.
    I went to school a long time ago. I went to school in El 
Paso, Texas. My parents lived on a ranch that was too remote 
from any school, and so I lived with grandparents in El Paso 
during the school term and went to school there. And I well 
remember having a lot of civics classes, mostly based on Texas 
history, and I got pretty sick and tired of it, to tell you the 
truth. I thought it was miserable. So I am hoping that today's 
civics teachers will be able to make it more interesting than I 
found it in those days.
    That is one of the reasons for developing in the iCivics 
website a series of games that young people play that 
illustrates legal principles we are hoping to teach. And the 
system is working very effectively.
    Recently Baylor University in Texas asked to do a study of 
iCivics through their education department to see the 
effectiveness of the program with students. Their study 
produced really exceedingly encouraging results. I was thrilled 
to get the report from Baylor about what they found from the 
use by students of that website and the games in it. So I am 
encouraged by it, and it shows me that young people need to 
know how our Government works and how they are part of it.
    It is not self-evident, and in schools today I do not think 
it is widely taught. Young people want to know how to be 
effective. They want to know their role as citizens and how to 
make things happen at the local level, at the State level, and 
the national level. iCivics tries to do that and tries to help 
young people develop their own proposals and programs and learn 
in the process more about how Government works.
    I think that the effort is effective and being appreciated. 
I have chairpeople now in all 50 States, including in Vermont, 
and it is doing well, I think. I welcome feedback from you and 
others, your constituents, on how they think we can improve 
what we are doing. And we have kept the program free so schools 
can use it at no charge. That is important in today's 
circumstances where money is not often available for schools to 
develop new programs. But I hope that your constituents will 
report back to you occasionally on the effectiveness of iCivics 
and keep you informed, and I welcome your suggestions as you 
have them when we go forward. And Senator Grassley, the same, I 
hope I will hear back from you if you have good suggestions for 
us.
    Chairman Leahy. Thank you very much. Again, I appreciate 
you doing that. I will make sure that we also get some of the 
feedback from Vermont.
    Justice O'Connor. That is good.
    Chairman Leahy. I will check with Coventry, Vermont.
    Justice O'Connor. Absolutely. The town where my ancestors 
settled after the revolution. It has not grown much, I am 
afraid.
    Chairman Leahy. I know. That is an area called ``the 
Northeast Kingdom,'' and some very special people come from 
that part of the State, including my wife of nearly 50 years.
    Justice O'Connor, you have often commented about how 
attacks on judges can be a threat to judicial independence.
    Justice O'Connor. Yes.
    Chairman Leahy. I was wondering how you felt about the 
heated rhetoric that followed the final days of the Supreme 
Court session last month when a member of the Court was labeled 
a ``traitor'' and accused of somehow betraying the President 
who nominated him to the Supreme Court as though he should 
follow political direction from a President.
    Justice O'Connor. It is unfortunate because I think 
comments like that demonstrate only too well the lack of 
understanding that some of our citizens have about the role of 
the judicial branch. And I think the Framers of our Federal 
Constitution did a great job in understanding themselves that 
the judicial branch needed to be able to make independent 
decisions on the legitimacy, the lawfulness of actions at the 
State and Federal level when they are properly raised in court. 
The Framers did a really good job in that regard.
    Not every State has followed the Federal model. Under the 
Federal model, judges are not elected. They are nominated by 
the President and confirmed by the Senate. In many States, that 
is the process, but not in all. Many States have popular 
election of judges, and the result of that has been the need 
for candidates to raise money for their election campaigns. I 
think that has a corrupting influence on the selection of 
judges, and it is disappointing to me to see the many States 
that still use judicial elections. I hope over time more States 
will follow the Federal model and have a system of judicial 
appointments.
    Many of the States that have these have a process, however, 
of confirmation or selection that involves public input, and 
that is fine. But I think the Federal model has been a good one 
for the States.
    Chairman Leahy. I happen to agree, and that is the model 
that we follow in Vermont.
    Justice O'Connor. Yes.
    Chairman Leahy. And it has worked very well, and it has 
taken politics completely out of our judicial system. In fact, 
we recently had a new Federal district judge following--her 
name was recommended from a bipartisan screening board. I 
recommended her name to the President. But, interestingly 
enough, she had been first nominated to our State court by a 
Republican Governor, actually someone who once ran against me.
    Justice O'Connor. Oh.
    Chairman Leahy. And I have no idea--to this day I do not 
have the foggiest idea what her politics are and I do not care.
    Justice O'Connor. Yes.
    Chairman Leahy. What I do like is the reaction we have 
gotten from Vermont of what a great judge she is being.
    Justice O'Connor. That is good.
    Chairman Leahy. You do have to keep it out of politics, and 
would you agree with that, that while a judge might be and 
should be appreciative, as you were of President Reagan's 
nomination, your allegiance is to the law, not to the President 
who nominated you?
    Justice O'Connor. I think the allegiance of every Federal 
judge is to the Constitution of the United States and the laws 
that are adopted by Congress. And that allegiance, I think, 
enables judges to resolve the cases that come to them. They 
rely on precedent. We follow the British model of years ago in 
which a case resolved by the Nation's highest courts, the 
principles established will be followed by the lower courts in 
the future until the courts change the model or the rule.
    I think the system works quite well. It has served us well 
in the United States through the years, I think. We have a good 
Federal court system overall, in my opinion.
    Chairman Leahy. Well, let me ask you about that, because 
during the primaries earlier this year, there were a couple 
candidates--or more than one, anyway--who said that those of us 
in political office should be more involved in the courts. One 
even suggested totally eliminating one of the circuit courts of 
appeals because he disagreed with one of their opinions. We 
have heard others say that because we have the power on the 
courts other than the Supreme Court to set their jurisdiction, 
that anytime we have a disagreement, we should have a hearing 
and remove that.
    I remember standing side by side with Barry Goldwater on 
the floor to fight an effort by one Senator at court stripping 
even though the case where they wanted to strip the 
jurisdiction of the court was one where Senator Goldwater 
disagreed with the conclusion but felt that the court stripping 
was bad precedent.
    Would you agree with that?
    Justice O'Connor. I certainly do. I think our system is a 
good one. Sometimes a court, a Federal court, for example, will 
resolve some legal issue in a way that not everyone likes, and 
certainly in a body like the United States Senate, comprised of 
Republicans and Democrats, and I guess occasionally an 
Independent, you are going to have some disagreement among the 
members of this very body about whether a particular ruling of 
a Federal court is correct or the best ruling that the court 
could have made. Obviously there are going to be differences of 
opinion. But under our system, an issue that is divisive 
sometimes will come up again through the courts in a different 
posture. You will have related issues, and over time the courts 
themselves will have a chance to review the precedents and the 
effectiveness of earlier decisions. And the courts can make 
changes over time in the applicable legal principles if they 
think that is indicated. The system has served the Nation quite 
well, I think.
    Chairman Leahy. One last question and then I will yield to 
Senator Grassley, but let me just ask you this. We have always 
talked about the question of diversity on the Court, and I want 
to make sure people know you were the first woman to serve on 
the Supreme Court, and I praised President Reagan at the time, 
as you know, for that.
    Justice O'Connor. Yes.
    Chairman Leahy. But diversity is more than just that. You 
had diversity of background. You had been in elective office. 
You had had a lot of other experience. Today it seems on the 
Court, while we have some wonderful people, they come just from 
the same judicial monastery, as I call it, the same background. 
Do you think we should be pushing for more diversity?
    Justice O'Connor. Well, I think that over the Nation's 
history we have had a very diverse group of judges on the 
Court, and early, in the first 100 years, let us say, we 
probably had Justices nominated from very diverse backgrounds. 
That does not happen as often today. As you point out, they are 
more apt to be people who have served on Federal district 
courts, Federal courts of appeal, and then being considered for 
this Court.
    That is not a requirement, and the President with a vacancy 
to fill on the Court is free to choose people with very 
different backgrounds. In fact, there is no requirement that 
the person appointed be a lawyer. I think they would have a 
pretty hard time if they had not had legal training, so I hope 
that is not abandoned in the process. But there is no 
requirement, as you know, in the selection of a Justice. In the 
first 100 years, I think we had a lot more diversity on the 
Court.
    Chairman Leahy. Thank you very much.
    Senator Grassley.
    Senator Grassley. This is not one of the questions I was 
going to start out with, but you did bring up about election of 
State justices.
    Justice O'Connor. Yes.
    Senator Grassley. Does what you said, leaning more toward 
the Federal system than what the various States have, does that 
apply also to retention elections?
    Justice O'Connor. Well, many States that still use 
appointments for State judges include a system whereby after so 
many years on the bench, the judge goes on the ballot in the 
State for the voters to decide whether to retain the judge, yes 
or no. That is the system we actually have in Arizona, and that 
is a system that I helped develop in my prior years in Arizona. 
Then the voters have a chance to look at the record of the 
judge and say, ``Do you want to keep this judge, yes or no? ''
    Not many are turned out of office under that system, but a 
few have been for a variety of reasons. I think it is a 
perfectly valid system for a State to adopt. The Federal system 
does not have that. You do not have a system whereby after a 
few years on the Supreme Court the voters in America can have a 
chance to say whether a Justice should be retained or not, and 
I think the Federal system has worked very well. I am not 
proposing a change. But those States that use retention 
elections have had pretty good luck with them. Very few people 
are turned out.
    Senator Grassley. OK. I want to refer to an article of 2008 
that you wrote, Denver University Law Review: ``I regret that 
threats to judicial independence seem to be occurring with 
record frequency. Members of Congress have faulted the Court 
for their decisions on various issues.''
    I do not find any fault with what you wrote, but I would 
like to explore with you some situations and see whether you 
think they could pose threats to judicial independence.
    Could judicial independence be threatened if the President 
at a State of the Union address in front of Justices who are 
not in a position to respond mischaracterize and criticize 
Supreme Court decisions?
    Justice O'Connor. Well, I do not know that it threatens 
judicial independence. It is just not what one expects as a 
citizen to hear a President in a State of the Union message get 
specific about Justices' individual actions on cases and then 
say the President disagrees. It is certainly possible for a 
President to do, but it is unusual. It is not how that time is 
usually spent by Presidents.
    Senator Grassley. Another question. Could judicial 
independence be jeopardized if the President, while a case has 
been briefed and argued and is awaiting decision, misstates a 
doctrine of judicial review, claim that a particular ruling 
would harm the Court's legitimacy and claim that a particular 
Justice's legacy will be tainted unless he decides the case in 
a manner that the President presumably wants?
    Justice O'Connor. Well, if there is a pending decision at 
the Supreme Court and a President were to express views along 
those lines, it would be surprising. It is unusual. I think we 
have not tended in this country to speak out at some higher 
political level, either at the State level or the national 
level, about a decision in a pending case. I guess it could 
happen, but it is not what we expect, and it is not ideal.
    Senator Grassley. Lastly, could judicial independence be 
jeopardized if a Justice decides a case in a different way than 
his original view if he does so due to Presidential pressure or 
out of concern that the Court would sustain political damage 
otherwise?
    Justice O'Connor. Well, I am sure that many things go 
through the minds of a Justice in a pending case where a tough 
issue has to be decided, and the Justice may, before the 
decision is made, learn things that cause the Justice to shift 
the tentative outcome in some fashion for that Justice. I mean, 
you can continue to learn up until you have signed on to some 
decision, and I would not preclude that. I think that is always 
possible. But it is not often that it occurs.
    Senator Grassley. Since I still have time, what would you 
think are the most important elements of a court system that 
students should learn?
    Justice O'Connor. The system needs to give the public some 
assurance of the independence of the judge making the decision, 
the notion that the judge should base the decision on the law 
and a judge's understanding of the law and the requirements of 
the Constitution and the laws passed by Congress and to do so 
fairly and independently. That is the concept, and that is what 
I think the average citizen should be able to understand is the 
concept and trust that that is what is going to happen.
    Senator Grassley. I am going to make a comment. I do not 
know want you to react because I do not where you are on this 
and I do not want you to spoil something I am trying to do, but 
the Chairman and I promote cameras in the courtroom, and we do 
it because we think that there is a lot of mystery about the 
judicial branch of Government, and the education of the people 
by having more people have access to the courtroom would be a 
very good thing to do, and so I am taking my last minute here 
to advocate for cameras in the courtroom, including the Supreme 
Court.
    Chairman Leahy. If you want to take more than a minute to 
advocate for that, I am all for it.
    [Laughter.]
    Senator Grassley. I am done. I will yield back my time.
    Chairman Leahy. Did you want to say anything to that, 
Justice?
    Justice O'Connor. I am happy to.
    Senator Grassley. Only speak if you speak in favor of it.
    [Laughter.]
    Justice O'Connor. Well, then I had better keep my mouth 
shut.
    [Laughter.]
    Chairman Leahy. Justice O'Connor, I have to tell you, you 
and I have known each other for a long time.
    Justice O'Connor. Yes.
    Chairman Leahy. And it is refreshing having you here.
    Senator Grassley. I would respect your view, anyway. I want 
you to know that.
    Justice O'Connor. Thank you.
    Chairman Leahy. One of the valued members of this 
Committee, Senator Klobuchar, is also a former prosecutor. I 
have a soft spot in my heart for former prosecutors, as you 
know.
    Justice O'Connor. Yes.
    Chairman Leahy. Senator Klobuchar.
    Senator Klobuchar. Thank you very much. Thank you, Justice 
O'Connor, for being here.
    Justice O'Connor. Senator, thank you for being here.
    Senator Klobuchar. I truly appreciate it, and you should 
know that when we had the confirmation hearings for Elena Kagan 
and for Justice Sotomayor, I spoke about your background, not 
just as being the first woman but also, as I think it was--I am 
just doing this by memory--that before the age of 14 you were 
able to use a rifle, herd cattle, and ride a horse.
    Justice O'Connor. Absolutely. I grew up on a very remote 
ranch, and everybody had to do everything as soon as they were 
old enough to do it.
    Senator Klobuchar. Exactly, and I would assume that some of 
your interest in the civics education was grounded in the fact 
that you came from such humble beginnings and were able to 
achieve so much in this country. And I wanted just to start 
with that, is where you saw this with civics education, what do 
you think the reason is that we are seeing such a decline in 
civic education, how do we improve it, and specifically the 
iCivics you are talking about.
    Justice O'Connor. Frankly, part of it is because we have 
learned, to our dismay, that our American students, when tested 
on math and science, are not doing as well as students of an 
equivalent age from many other countries, and I think that 
distresses us because our country has been pretty advanced in 
math and science, and we do not want to see our students lag 
behind. And that has promoted an effort to increase education 
efforts in those areas, and it has resulted in the dropping of 
civics courses. I mean, there are only so many hours in a day, 
and schools have to concentrate on something, and they have 
tended to maybe do more math and science and less on civics.
    And I would just like to be sure that we continue to teach 
some civics to students as they go through. My own 
concentration has been at the middle school level because by 
then the brain is formed and young people are eager to learn, 
they are receptive and they can get it, and it is not too early 
to start.
    So I think it is important, and students want to know how 
Government works, how their city works, their county, their 
State, the Nation. They want to be part of it. And the iCivics 
program teaches by way of games where the young people play a 
role and they play the games and learn. It is very effective. 
And in many cases--and I now have it in use in all 50 States, 
not as widely as it should be but it is started in all 50 
States--students using it can learn how to take a project and 
get it through some city council level or some county board 
level or even a State legislative level, and it is great when 
they do, because the earlier you learn how Government works and 
how you can be part of it, the better it is.
    Senator Klobuchar. I agree. My daughter is 17 so she has 
been through this, and one of my favorite projects that she did 
is she interviewed Senator Murkowski for an hour and wrote--I 
think it is about a 50-page PowerPoint presentation for her 
class.
    Justice O'Connor. It is fabulous when they do, or----
    Senator Klobuchar. Lisa said it was more researched than 
she had seen on any----
    Justice O'Connor. Or when they get a specific project and 
run it through somewhere----
    Senator Klobuchar. Right.
    Justice O'Connor.--to get something changed, it is great.
    Senator Klobuchar. It is very good, and I come from a State 
that actually we have the highest voter turnout, I think we 
were number two for the census the last time, and it is just 
such a value in our State of getting involved. And as people 
feel increasingly distanced from their Government, from their 
courts----
    Justice O'Connor. That is right.
    Senator Klobuchar [continuing]. I think it is a major 
problem, and so much----
    Justice O'Connor. It is.
    Senator Klobuchar [continuing]. Of it is ours to fix.
    Justice O'Connor. Yes.
    Senator Klobuchar. Because as a former prosecutor, we would 
find out that it was not always the result in a case--that 
matters to people a lot, but it is how they are treated in the 
system.
    Justice O'Connor. Right.
    Senator Klobuchar. And if they understand what is going on, 
it makes them trust the system. We did surveys about this 
with----
    Justice O'Connor. No question.
    Senator Klobuchar [continuing]. Domestic violence victims. 
They understood sometimes a case would fall apart, but if you 
were not filling them in on what happened and they had no 
understanding, they would just feel completely mistreated by 
the system.
    Justice O'Connor. Yes. That is right.
    Senator Klobuchar. I appreciate your emphasis and look 
forward to working with you on this. I know you have done some 
work in Florida and other places.
    Justice O'Connor. Yes.
    Senator Klobuchar. I just had some other questions. One is 
about our Supreme Court nomination hearings. When I came in, I 
think Senator Grassley was asking about this. But what do you 
think we could do to improve them? I think they are still 
important for the public to be able to see a Supreme Court 
nominee answer questions, but what do you think could be done 
better?
    Justice O'Connor. It is miserable from the standpoint of 
the nomines.
    Senator Klobuchar. Really?
    [Laughter.]
    Justice O'Connor. Well, it is horrible. From the standpoint 
of the public, it is perhaps the only chance the public will 
have to see a nominee and have some appreciation of their style 
and their manner and how well they answer the questions, or how 
poorly, and to have some understanding of the process. It 
really does matter to the public. So I think the system in that 
regard works fairly well.
    Senator Klobuchar. And what do you think about the--you 
know, the nominee answering questions I think is key, but then 
afterward there is this part where we have sort of like both 
sides, those who favor the nominee or put on witnesses and 
those who oppose.
    Justice O'Connor. Yes.
    Senator Klobuchar. And to me, honestly, that seems--I know 
people want to have a chance, but it seems just so political in 
terms of----
    Justice O'Connor. Well, it is, but that is the nature of 
the political House and Senate. I mean, you are the political 
branch of Government here.
    Senator Klobuchar. My favorite one was one of the people 
that came on for, I think it was, Justice Sotomayor. He had 
known her when she was 12, but then he went on, I think, to be 
at the NAACP or something, he had a reason to be there. But I 
said, ``Well, what was she like when she was 12? '' And he 
said, ``She was very judicious.''
    [Laughter.]
    Senator Klobuchar. So it just made me think maybe we could 
change that part of the process because it just seemed so pro 
and con, and that is one idea I had.
    Justice O'Connor. It would be hard to do because you have a 
vote at the end, and the members want to express some views.
    Senator Klobuchar. Yes.
    Justice O'Connor. So that is hard to change, I am sure.
    Senator Klobuchar. It is. And then one last thing about--I 
know you have been a vocal advocate on the problems with 
judicial elections.
    Justice O'Connor. Yes.
    Senator Klobuchar. Have we seen States ending judicial 
elections in recent years? And are there any reforms that you 
can think of that can be made, short of ending elections?
    Justice O'Connor. This is really important. I think the 
Federal model of appointment and no election of the Federal 
judges is the best model, and some States have followed it but 
not all. And a number of States still have a totally elective 
process for selecting judges. I think that is very unfortunate 
because it means raising money for campaigns, and there is just 
no way to be comfortable with that in the judicial scheme of 
things. It is not good to have judges that you know have had to 
take campaign contributions from certain interests. It is a 
worry.
    So I hope that more and more States will follow the Federal 
model of not having judicial elections. Many States--in fact, 
my own--have retention elections periodically so that after a 
period of years, the judge's name goes on the ballot, and the 
voters can vote whether to keep the judge or not. They are not 
running against anyone. It does not require massive input of 
funds, and that seems to have worked fairly well. Not many 
judges are removed in that process, but it is one way of having 
the voters involved to some degree, and it seems to have worked 
to some extent.
    Senator Klobuchar. Very good. Well, thank you so much for 
being here today.
    Justice O'Connor. I am so glad to be present.
    Senator Klobuchar. I look forward to working with you.
    Justice O'Connor. Thank you.
    Senator Klobuchar. Thank you.
    Chairman Leahy. Thank you very much.
    Senator Lee.
    Senator Lee. Thank you, Mr. Chairman. Thank you, Justice 
O'Connor, for joining us.
    Justice O'Connor. I did not see you come in. I am sorry.
    Senator Lee. That is OK.
    Justice O'Connor. I should have turned my head.
    Senator Lee. I am easy to forget.
    [Laughter.]
    Senator Lee. But it is a pleasure to have you with us.
    Justice O'Connor. Thank you.
    Senator Lee. I have many fond memories from my childhood 
watching my dad argue cases before you on the Supreme Court 
where you would ask him questions from behind the bench. I do 
not think I ever imagined as a 10-year-old that there would 
come a time when I would be sitting behind a different bench 
and asking questions to you.
    Justice O'Connor. Your father was marvelous, by the way. He 
was such a good lawyer. He really did a great job, and we miss 
him.
    Senator Lee. Thank you. Thank you.
    Chairman Leahy. And I agree with that, Mike, I want you to 
know.
    Justice O'Connor. He was fabulous.
    Senator Lee. We miss him. He was a proud Arizonan, as you 
know.
    Justice O'Connor. Yes, he was. And I used to see him when I 
was in the State Senate and in committee hearings, as you are 
sitting here, and he would come in and present material on 
various issues affecting the State, and he was effective in 
that regard as well. He really was an amazing man.
    Senator Lee. That is good to know. Thank you very much.
    I wanted to follow-up with you about a comment you made a 
few minutes ago about retention elections in State judicial 
positions.
    Justice O'Connor. Yes.
    Senator Lee. You indicated that the impact that--the 
tendency to politicize the State judicial systems that those 
retention elections might have is relatively limited for the 
reason that they tend not to result in the removal of the 
judicial officer on----
    Justice O'Connor. Not very often.
    Senator Lee [continuing]. Very many occasions.
    Justice O'Connor. Right.
    Senator Lee. Is there a possibility, do you think, that 
they might nonetheless have some politicizing effect, just the 
in terrorem effect of the retention election, is there a chance 
that that might affect the judge's decisionmaking process?
    Justice O'Connor. Well, I guess there is always a chance. I 
prefer a system that does not involve elections at all, but 
many States do have the retention elections. And at a minimum, 
it gives the voters an opportunity at some point down the line 
to say, yes, I am satisfied with this judge and I vote to 
retain the judge, or the reverse. And not many are removed by 
retention election.
    Senator Lee. And I guess one critical difference between 
the retention election and another type of election is that it 
is not contested.
    Justice O'Connor. That is right. There are not a lot of 
campaign contributions being raised.
    Senator Lee. In some cases, not any in some States.
    Justice O'Connor. Right. In most cases, I think not any.
    Senator Lee. Yes, so it really is----
    Justice O'Connor. But it is possible.
    Senator Lee. And it typically requires, I think, something 
of a supermajority vote to oust a jurist, depending on----
    Justice O'Connor. It depends on the State.
    Senator Lee. That is right. What about the judicial 
nominating commissions that are within States? I believe you 
have been kind of an advocate of what is sometimes referred to 
as the Missouri approach or----
    Justice O'Connor. Yes.
    Senator Lee. Whereby State judicial nominating commissions 
meet and will give advice to the Governor, will advise the 
Governor on whom to appoint.
    Justice O'Connor. Yes.
    Senator Lee. Do you support that model?
    Justice O'Connor. I do. It is a model that I helped support 
in my home State of Arizona and that we have had experience 
with now over many years, and it has worked well. So I think 
that is a pretty decent model.
    Senator Lee. Is there an argument to be made that 
commissions like that might have a tendency to insulate the 
appointing Governor from the political process in a way that is 
not helpful and in a way that might make the appointing 
Governor less accountable to the voters rather than more?
    Justice O'Connor. Well, I have not seen it that way because 
the Governor has to make the appointment and say, yes, I am 
going to consider these names and here is who I pick. I think 
it has worked all right.
    Senator Lee. Yes, and I suppose that--in my State, I 
believe, the Governor has the option of rejecting the entire 
slate if he or she feels that----
    Justice O'Connor. Yes, yes, and that is true in my State, 
too. If the Governor feels she did not get good names here, she 
can reject the whole batch and ask for more names.
    Senator Lee. If you had your druthers, I think I heard you 
say a minute ago you think the Federal system is the best 
model.
    Justice O'Connor. Yes.
    Senator Lee. Is it the best model just for the Federal 
Government or do you think the best model for the States would 
also be the Federal system whereby the Governor would have 
appointment power----
    Justice O'Connor. That is up to each State to decide, what 
do you feel in your State is the level of voter participation 
that you need to have to make the system work for your State. 
And if some mixed model, such as most States seem to have 
today, where voters have a retention election where they can 
weigh in, we do not have that at the Federal level, you know.
    Senator Lee. Right.
    Justice O'Connor. But if a State thinks that helps, fine. 
It seems to not do too much damage and it is OK. So if the 
voters in a State approve of that, I think that is all right.
    Senator Lee. OK. But you are just fine with the Federal 
model the way it is; you are not advocating a change.
    Justice O'Connor. That is correct.
    Senator Lee. OK. Now, when a State system gets really bad--
I have long shared, by the way, your concerns with States that 
have contested partisan elections to fill the vacancy at the 
outset because I think it is difficult to reconcile that with 
the need for judicial independence.
    Justice O'Connor. Right.
    Senator Lee. Where you have a State system that follows 
that approach and you have a system that apparently is 
inappropriately influenced from time to time in a destructive 
way, do you think there is ever a reason for the Federal 
Government to consider intervening, or is that up to the State?
    Justice O'Connor. Well, I think it is up to the State, but 
certainly most States, if you are going to consider something 
that affects the State at least, are going to have an 
opportunity to hear from voters on the proposals and have some 
debate at the State level. And that is good. You will hear all 
this if you do.
    Senator Lee. But you certainly would not regard that as a 
due process concern of the sort that would warrant Federal 
legislation requiring States to do it one way or the other?
    Justice O'Connor. No, I do not think so. We have left the 
States free to choose their own method of judicial selection.
    Senator Lee. Right. And I certainly agree with that.
    Finally, you were a long-time advocate of federalism while 
on the Supreme Court, a strong believer in the fact that there 
is a difference between State power and Federal power.
    Justice O'Connor. Yes.
    Senator Lee. And we have to respect that in order for our 
system to operate correctly.
    Justice O'Connor. Yes.
    Senator Lee. What would you advise the Federal lawmakers 
about how best to protect that system--not the Federal jurists 
but the Federal lawmakers about how they can protect the 
Federal system and the distribution of power between State 
government on the one hand and the Federal Government on the 
other hand?
    Justice O'Connor. Well, all members of this body, the 
Senate, come from one or the other of the States. You are all 
representatives of your States, and you have had experience in 
your own State with what the voters care about in terms of 
judicial selection. I am sure all of you have had that. So I do 
not think I need to give any advice on the topic. You are going 
to have plenty of it at the State level, is my guess.
    Senator Lee. We do get advice from time to time.
    Justice O'Connor. All right.
    Senator Lee. Thank you very much, Justice O'Connor. I see 
my time has expired.
    Justice O'Connor. Thank you, Mr. Lee.
    Senator Lee. Thank you, Chairman.
    Chairman Leahy. Thank you very much, Senator Lee. And as I 
told you privately before, I agree with Justice O'Connor's 
reference to your father, and I cherish knowing him.
    We have Senator Blumenthal of Connecticut, former Attorney 
General of his State, and I will yield to Senator Blumenthal.
    Senator Blumenthal. Thank you, Mr. Chairman. And as a 
former Attorney General for some 20 years, I am a very strong 
believer in federalism.
    Justice O'Connor. Yes.
    Senator Blumenthal. And I would agree with Senator Lee that 
we get advice, but I also would suggest that we need advice, 
and so any ideas you have on that score, but also I want to 
focus on a point that Senator Grassley made in his opening 
remarks, which is the apparent decline in public approval, poll 
numbers. We all dismiss poll numbers when the results do not 
suit us, but they still are reflective of something happening. 
And the reason we are here today in a sense is because of the 
need to educate the public about what you did for so many years 
with such distinction and dedication in serving on the U.S. 
Supreme Court, and we all have a reverence, if not respect, for 
the institution and the need to preserve----
    Justice O'Connor. Yes.
    Senator Blumenthal [continuing]. The legitimacy and 
credibility of the institution. So I wonder if you would give 
us your assessment as to why there has been this decline in the 
public's approval or respect for the institution.
    Justice O'Connor. I wish I knew. I did not conduct the 
polls, so I am not sure. I have read some articles about the 
polling that took place and the argument being made that 
perhaps the decline--the percentage of U.S. voter approval of 
the Supreme Court historically has been higher, generally, than 
that of the other two branches, and in very recent months, it 
seems to have declined rather substantially. And a suggestion 
has been made that that began with the Bush v. Gore decision. I 
have no idea if that is correct in terms of the assessment of 
the polling. It is conceivable because that was a very tense 
case that involved the holdovers from a very close election, 
and people would probably feel deeply about it and maybe be 
concerned.
    So perhaps that was the tipping point for a decline. I hope 
the decline will be temporary because the Supreme Court 
functions extremely well. I think as we look worldwide, we can 
be proud of our Court. It has served the Nation well and I 
think by and large is a marvelous institution.
    So I would think over time opinion would turn upward again. 
I certainly hope so, and I would expect that.
    Senator Blumenthal. And I would agree with you certainly in 
the assessment of the Supreme Court's work and in the hope that 
public approval will increase over time.
    Justice O'Connor. Yes.
    Senator Blumenthal. And as one who has done arguments in 
the Court and has been a law clerk in the Court and has watched 
and observed the Court, I think the public often simply does 
not see the work that the Court does, because by and large it 
is not Bush v. Gore or Citizens United.
    Justice O'Connor. That is right.
    Senator Blumenthal. Its day-to-day work is much more 
mundane and complicated and challenging in certain intellectual 
ways, but less politically charged.
    Justice O'Connor. Right.
    Senator Blumenthal. And so I wonder--and I know you were 
asked about it earlier--whether increasing public access to the 
Court's work, whether----
    Justice O'Connor. Like cameras in the Court?
    Senator Blumenthal. Well, I know you were asked about that.
    [Laughter.]
    Justice O'Connor. Well, I did not really address it, but I 
do think it is important to remember that every word that is 
said in that courtroom is transcribed and available that same 
night, and if anybody wants to see and read what was said, 
there it is in black and white. There it is, you have got it in 
hand. So it is not that there is a lack of ability to know what 
is going on. It is there. It is just do we have to have it on 
camera and on the television, or is it enough that it can be 
available that very night and you can read it? I guess it boils 
down to that.
    I am a reader so, you know, do not ask me probably. I tend 
to read more than I watch television.
    Senator Blumenthal. Well, I am not going to comment on 
reading versus television because everyone has his or her own 
style----
    Justice O'Connor. Yes, that is right.
    Senator Blumenthal [continuing]. Of learning. But in light 
of the prevalence of television and the impact, the powerful 
effect of the visual portrayal, I wonder whether you think that 
it might be worth considering opening at least certain 
arguments to broader view, and if not that, whether there is 
some way of increasing the potential attendance at Supreme 
Court arguments, because, after all, the number of people 
permitted in the courtroom is very small compared to the 
numbers who would like----
    Justice O'Connor. It is limited because the courtroom is 
not that large, so you are never going to have a huge crowd 
that can sit in the courtroom. There are some adjacent chambers 
where you can hear it as it is argued, but not see it. And I 
guess this is a discussion that is going to continue for a 
while. You have members of the Court at present who are not at 
all comfortable with televising the proceedings, and I think if 
and when a change is made, it probably is more likely to be 
made when the members of the Court are willing to accept that.
    Senator Blumenthal. And some of the members of the Court 
have sat where you are right now and said, in effect--and I am 
taking great license with their remarks--in effect, not over my 
dead body. That is how vehement they were in opposition to 
televising the Court hearings.
    Justice O'Connor. Yes.
    Senator Blumenthal. But I think, if I may respectfully 
suggest, you are in a unique position because not only are you 
a highly respected member, former member of the Court, but also 
have the perspective of many years in different branches and at 
the State level and so forth.
    Justice O'Connor. Yes.
    Senator Blumenthal. So your opinion I think would carry 
great weight if and when you are willing to set it forth.
    Justice O'Connor. Well, my opinion is there should be 
general agreement that putting cameras in the court is a good 
move to make. If there is severe opposition coming from the 
Court itself, that is a source of concern, I think. It is best 
if everybody is sort of in sync on that kind of a move.
    Senator Blumenthal. I want to thank you for being here 
today, for honoring us with your presence, and for your many, 
many years of extraordinary work for our justice system. And my 
time has expired, but I really think that your presence and 
your testimony has helped to enhance education. Any additional 
thoughts I know that you will let----
    Justice O'Connor. Well, thank you, Senator. I really have 
been spending enormous time on my iCivics effort to educate 
young people how our Government works and how they can be part 
of it. I will say that I think the method we are using with the 
games is extremely effective. We have had it tested. Baylor 
University recently completed a rather extensive test, and they 
came back with extraordinarily good reviews of the 
effectiveness, which is encouraging in the extreme, and we will 
continue to develop some additional games on somewhat different 
topics to keep people informed and engaged. It works with young 
people, so I am excited about it. And it would be wonderful, if 
when you speak to schools in your States, you will encourage 
them to use it because it does work.
    Senator Blumenthal. I would be honored and delighted to do 
it.
    Justice O'Connor. Good.
    Senator Blumenthal. Very much so.
    Justice O'Connor. Good. That is great.
    Senator Blumenthal. And I hope that we can follow-up as a 
member of the Committee and learn more about how we can get 
into the details.
    Justice O'Connor. Good. I have managed to keep it free, and 
with today's costs of changing programs, that has been 
important.
    Senator Blumenthal. Free is good.
    Justice O'Connor. Yes, I think so, too.
    [Laughter.]
    Senator Blumenthal. Thank you.
    Senator Klobuchar. Mr. Chairman?
    Chairman Leahy. Yes?
    Senator Klobuchar. I just want to note for the record that 
one Justice who came before this Committee, Justice Kagan, to 
follow-up, actually did say she wanted it televised. I know you 
know that, Justice O'Connor.
    Justice O'Connor. Yes.
    Senator Klobuchar. So maybe we will see that change that 
you referred to over time. So thank you very much.
    Justice O'Connor. Thank you.
    Chairman Leahy. As one of the ones who was here when we had 
the debate of televising the Senate, I remember we had--I do 
not know, Jeff, if you were here at that time or not. We had 
some vehemently against it, some in favor of it, others who 
could go either way. Notwithstanding some grandstanding we have 
seen since then, I think it has been a good thing for the 
American public to see how we deliberate.
    Senator Sessions, thank you for being here. Incidentally, 
before you came in, we noted that there are a lot of students 
in the room, and that is no doubt in relation to the Justice's 
iCivics program.
    Justice O'Connor. Yes.
    Chairman Leahy. So we have a lot of students here in the 
room. Go ahead, sir.
    Senator Sessions. Justice O'Connor, it is great to have you 
with us.
    Justice O'Connor. Thank you.
    Senator Sessions. I just so truly believe--and having 
traveled around the world a good bit, Armed Services Committee, 
in some difficult places, I am more convinced of the precious 
nature of the rule of law in America than I have ever been.
    Justice O'Connor. Absolutely, Senator. It matters. And we 
have been promoting that since the breakup of the Soviet Union. 
And I think the American Bar deserves some credit here because 
when the Soviet Union began to break apart and these nation 
states began to form, lawyers gathered together and they went 
over and served as unpaid volunteers in many of these forming 
countries and helped develop judicial systems and the notion of 
the rule of law. And it really has been a good thing.
    Senator Sessions. I could not agree more. But I would just 
say I remember early after the Iraq invasion being with General 
Petraeus in Mosul, and he had re-established a court.
    Justice O'Connor. I know.
    Senator Sessions. They found some judges, and they tried to 
appoint lawyers and have trials like we do.
    Justice O'Connor. Yes.
    Senator Sessions. But I think you know--and the real truth 
is it takes many, many years, decades, even centuries to create 
the kind of legal system we are blessed to have in the United 
States.
    Justice O'Connor. It does. You cannot do it overnight or 
even in a year or 2 or 3 years. It takes long-term development.
    Senator Sessions. Justice O'Connor, I am of the view that 
the Court needs to maintain its independence, its detachment 
from politics as much as it possibly can, and to the extent 
that the Justices are concerned that cameras might erode that 
even a little bit and create more of a political spin on the 
careful legal work they do, I support you, I support the Court 
in not having cameras in the courtroom live and would just say 
fundamentally I think it is a decision left to the judicial 
branch, not the legislative branch.
    I remember being in the chair one day, Mr. Chairman, when 
Robert Byrd spoke. He would come down on Friday around 11 
o'clock and make speeches pretty often, and that was my time to 
preside. He made a speech about textbooks, and he discussed 
democracy and a republic and the differences between the two 
and how the textbooks had not properly delineated the 
difference. And his closing line was it was ``touchy-feely 
twaddle in our textbooks.''
    So to the extent which you are working to help our young 
people understand this magnificent legal system that we have, I 
thank you very much.
    Pursue this a little further. To me, the most pernicious 
thing that could be taught to young people is that the courts 
are not independent adjudicators of discrete legal problems, 
but that they are somehow a part of the political process and 
their rulings are based on political stresses and pressures and 
views of Justices, and that this could erode the kind of 
respect Americans should give to the courts. Is that a concern 
for you?
    Justice O'Connor. Very much so. I agree with you 
completely, and it is best to maintain the independence of the 
judicial branch. That is what the Framers designed. It has 
worked quite well at the Federal level, and we need to try to 
maintain it at the State level as well.
    I happen to think that holding judicial elections in States 
is not the best way to go, that that lets too much poitical 
influence in through campaign contributions. That is dangerous. 
We do not need to do that.
    Senator Sessions. I can see that concern. I am not sure I 
share it, but I certainly understand it.
    Justice O'Connor. Yes, yes.
    Senator Sessions. And I think it is a valid concern.
    Justice O'Connor Yes.
    Senator Sessions. The Constitution contemplates that the 
courts would be independent adjudicators. I was pleased when 
Justice Roberts referred to it as an independent--what did he 
say?--a ``neutral empire.''
    Justice O'Connor. Yes.
    Senator Sessions. Like in a ball game, the umpire does not 
take sides to advance one team or another, but does its best 
every day to call the balls and strikes.
    Justice O'Connor. Yes.
    Senator Sessions. I think that is an image or metaphor that 
is valid and that we should push.
    Now, there are times when people on both sides think the 
Court does not do that.
    Justice O'Connor. I am sure.
    Senator Sessions. And they think that the Court is allowed 
personal and ideological and so forth views, political insights 
to impact their decisionmaking.
    First, would you agree that Justices should seek to guard 
against that and to live within the oath, which is to be a 
judge under the Constitution and the laws of the United States?
    Justice O'Connor. Of course I do, yes. I served on that 
Court for 25 years, and I entered it without a lot of inside 
knowledge but with respect for the structure the Framers 
developed. I left after 25 years with the knowledge and 
understanding that it works remarkably well along those lines. 
So I think we have been fortunate.
    Senator Sessions. Well, I think that my personal view is 
that the greatest danger to the independence of the American 
judiciary would be a belief on the part of the American people 
that it is not adhering to that role but is using the power to 
interpret the words of statutes and the Constitution to advance 
an agenda, and that would be a great tragedy if that were to 
happen and people were to lose confidence.
    Justice O'Connor. Yes. I agree.
    Senator Sessions. And with regard to criticizing the 
courts, I have tried to--I believe a Senator and an American 
citizen has a right to question the Court, but I believe we 
should do it respectfully.
    Justice O'Connor. Yes.
    Senator Sessions. And some of the criticism that I have 
seen from the Congress I think has been over the top. But I 
would say that, in my view, if a nominee comes before this 
Judiciary Committee for confirmation and they are not 
philosophically committed to the limited role of a judge or 
their record indicates that they are not, I cannot give them 
that lifetime appointment. So that is sort of my standard, 
within the range of disagreements over how to interpret law and 
Constitution. If you are outside that, then I think--then you 
are not under the Constitution--I should not give you a 
lifetime appointment.
    I guess good people can disagree--Senator Leahy and I agree 
sometimes, sometimes we do not--about where that line should be 
drawn. But I do think Congress has a role to try to ensure that 
the judiciary remains a neutral umpire. Would you not agree?
    Justice O'Connor. Yes. The Senate plays a very key role in 
the overall process in terms of agreeing at the outset who is 
going to be serving and who is not.
    Senator Sessions. I would just conclude by saying how much 
I appreciate your interest in educating the next generation.
    Justice O'Connor. Yes.
    Senator Sessions. Because I have become convinced that we 
are not fully appreciative of the uniqueness of the wonderful 
legal system we have, how it is unlike almost any nation in the 
world. It has served us magnificently. It has created our 
growth, prosperity and freedom.
    Justice O'Connor. Yes.
    Senator Sessions. And if we get a misconception about how 
the legal system works, I think it could endanger it.
    And, Mr. Chairman, thank you for having Justice O'Connor to 
share her thoughts with us.
    Chairman Leahy. Well, thank you, Senator Sessions. She is 
now the fourth Supreme Court Justice who has come before us as 
partly an educational thing. The iCivics, I like that very 
much.
    Senator Sessions mentioned the views we hear in some other 
countries. It is kind of an eye opener. I recall when one 
nation that had been under a very totalitarian form of 
government moved toward democracy, and a group of their leaders 
came to see me, and they said: ``Now, is it true that in your 
country sometimes people sue the Government? ''
    Justice O'Connor. I know.
    Chairman Leahy. I said, ``Well, yes, it happens all the 
time.''
    Justice O'Connor. Right.
    Chairman Leahy. And he said, ``But is it true that 
sometimes the Government loses?-'' I said, ``Often happens.'' 
And they said, ``Well, then do you replace the judge?-'' And 
when I explained, it was almost like, you know, in the cartoons 
where the light bulb goes on.
    Justice O'Connor. Yes.
    Chairman Leahy. They realized that we really are different.
    On the iCivics website that Senator Sessions and others 
have talked about, a majority of the Supreme Court Justices in 
the game ``Supreme Decision'' are women, which is----
    Justice O'Connor. That is my fault.
    [Laughter.]
    Chairman Leahy. Hey, listen, my wife's family came from 
Canada, and in Canada the majority of the Supreme Court are 
women, and the Chief Justice is.
    Justice O'Connor. Well, the Chief Justice in Canada is a 
woman, and they have had historically more women on than we 
have. It was not a majority, but----
    Chairman Leahy. That is right. Now, to what extent do you 
think diversity on the Court or anywhere in the top of our 
branches increases public confidence?
    Justice O'Connor. Oh, I think it does. I mean, our citizens 
like to look up at the U.S. Senate and see some diverse faces, 
skin color, et cetera, up there. And they like that at the 
judicial level, too, for courts of appeal that have multiple 
members. I think it gives the citizens some confidence.
    Chairman Leahy. In an interview with Nina Totenberg a few 
years ago, you noted that statutes and constitutions do not 
protect judicial independence, people do.
    Justice O'Connor. Right.
    Chairman Leahy. What people are you referring to?
    Justice O'Connor. Well, the judges, for one thing, and the 
voters who in the States put in a system that enables the 
citizens to have confidence in that system.
    Chairman Leahy. I described the system we have in Vermont 
where the Governor appoints the judges, the legislature votes 
consent. After a period of years, the legislature has a vote on 
retention.
    Justice O'Connor. Yes.
    Chairman Leahy. 99 percent of the time they are retained.
    Justice O'Connor. Yes.
    Chairman Leahy. What do you think of a system like that?
    Justice O'Connor. Well, it is just one----
    Chairman Leahy. In other words, the legislature, not----
    Justice O'Connor. It is one step removed from the public. I 
guess it can work. If the State is satisfied with it, fine. But 
you could set it up that way if you preferred, but I think most 
States that have retention elections refer the people to the 
voter.
    Chairman Leahy. Yes. But when it is referred to the voters, 
that would be the time when people would start having to raise 
money for campaigns, is it not?
    Justice O'Connor. Well, normally it will not if it is just 
one name up for retention without being contested at some 
level. There would be no need for campaign money.
    Chairman Leahy. That is a good point.
    A few years ago, you interviewed Justice John Paul Stevens, 
and this goes back to some of the questions on the 
confirmation. You said that--it came out in that interview that 
you both agreed on the fact that sometimes at a confirmation 
hearing, when you are answering questions and issues come up 
and you may have a different view at the time the issue comes 
up.
    Justice O'Connor. Yes.
    Chairman Leahy. Is that a fact?
    Justice O'Connor. Yes, that is a fact.
    Chairman Leahy. And have you had that happen to you, 
without----
    Justice O'Connor. Well, I do not remember specifically. 
Possibly. I do not remember.
    Chairman Leahy. Well, would you agree with me that it would 
be a mistake if in the confirmation process that we should be 
able to expect that we are going to get a very specific answer 
on how you are going to vote on a case 5 years from now?
    Justice O'Connor. Yes, I think that is probably not a very 
good question to even ask a prospective Justice.
    Chairman Leahy. But is it valid to ask questions of one's 
judicial philosophy?
    Justice O'Connor. Of course.
    Chairman Leahy. OK.
    Justice O'Connor. Absolutely. Absolutely.
    Chairman Leahy. And their background?
    Justice O'Connor. Absolutely.
    Chairman Leahy. OK. Senator Blumenthal, did you have 
anything further?
    Senator Blumenthal. No, Mr. Chairman.
    Chairman Leahy. Senator Sessions.
    Senator Sessions. I do not.
    Chairman Leahy. Well, again, just for the two of you who 
came in after, again, would the students stand up, all the 
students who are here? I think this is great.
    Justice O'Connor. That is good. Yes, you still have a lot 
who are listening. That is good.
    [Laughter.]
    Chairman Leahy. Well, Justice O'Connor, I thank you very 
much. I thank all of you who are here. But, Justice O'Connor, I 
thank you very much for coming.
    Justice O'Connor. Thank you, Senator Leahy, and thank you, 
Senators, for your interest and your presence. And if you have 
suggestions about iCivics or ways of telling people in your 
State to use it, if you are comfortable doing it, I hope you 
will because I think it will help us.
    Chairman Leahy. Well, I have some grandchildren who are 
going to get a chance to.
    Justice O'Connor. Good. All right. I do, too.
    Chairman Leahy. Thank you. We stand in recess.
    Justice O'Connor. OK. Thank you.
    [Whereupon, at 11:24 a.m., the Committee was adjourned.]
    [A Submission for the record follow.]

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