[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
----------
JULY 25, 2012
----------
Serial No. J-112-90
----------
Printed for the use of the Committee on the Judiciary
----------
U.S. GOVERNMENT PRINTING OFFICE
75-741 PDF WASHINGTON : 2012
For sale by the Superintendent of Documents, U.S. Government Printing
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800;
DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC,
Washington, DC 20402-0001
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
----------
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.]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]