A Conversation with Justice Sandra Day O’Connor
and Judge Judith S. Kaye
Hon. Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
Hon. Judith S. Kaye
This Lecture is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for
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Recommended Citation
Hon. Sandra Day O'Connor and Hon. Judith S. Kaye, A Conversation with Justice Sandra Day O’Connor and Judge Judith S. Kaye, 81
Fordham L. Rev. 1149 (2013).
Available at: http://ir.lawnet.fordham.edu/flr/vol81/iss3/10
1149
THE ROBERT L. LEVINE
DISTINGUISHED LECTURE
A CONVERSATION WITH
JUSTICE SANDRA DAY O’CONNOR AND
JUDGE JUDITH S. KAYE*
MODERATOR
John D. Feerick
Norris Professor of Law, Fordham University School of Law
PANELISTS
Hon. Sandra Day O’Connor
Associate Justice (Ret.), Supreme Court of the United States
Hon. Judith S. Kaye
Chief Judge (Ret.), New York Court of Appeals
DEAN MICHAEL M. MARTIN: Good evening. Welcome to the 2012
Robert L. Levine Distinguished Lecture. It’s wonderful to see so many
members of the Fordham Law community here this evening. I really thank
all of you for coming tonight.
The Levine Lecture is one of the Law School’s premier annual events.
Its history represents the best traditions of Fordham Law.
The series is named for Robert L. Levine, who was a prominent member
of the Class of 1926. A few years after graduation, he joined with another
Fordham Law grad, William F. Walsh, and they established their own law
firm with practices in entertainment, commercial, banking, and international
law. And then, during World War II, Mr. Levine helped found several
companies that assisted in the Allied efforts in Europe.
Throughout his entire sixty-two-year legal career, Robert Levine
displayed a generous spirit, a nimble legal mind, and a commitment to
excellence, typical of the Fordham lawyer.
* This Conversation was held on April 17, 2012, at Fordham University School of Law.
The transcript has been lightly edited and augmented.
1150 FORDHAM LAW REVIEW [Vol. 81
When he died in 1992, his friends and family wished to ensure the
continuation of his legacy and created this outstanding lecture series.
For the past twenty years, the Levine Lectures have celebrated Robert
Levine’s abiding dedication to the legal profession. The impressive roster
of lecturers in this series is proof enough of Robert Levine’s lasting impact
on the Law School.
We are extremely grateful for the generosity of Dr. and Mrs. Eric P.
King, Mr. and Mrs. Jay Levine, and the late Lawrence W. Levine. Please
join me in thanking our benefactors.
It is now my great pleasure to introduce our honored guests this evening:
Justice Sandra Day O’Connor, former Associate Justice of the United States
Supreme Court, and Judge Judith Kaye, former Chief Judge of the New
York Court of Appeals. In fact, if there were ever two women for whom no
introduction is necessary, these would be them. I’ll just say how pleased
and honored we are that they are with us this evening.
I am also pleased to introduce the moderator of tonight’s lecture—or
conversation actually—one of my predecessors, a great mentor and friend,
John D. Feerick. I’ll turn it over to John.
DEAN JOHN D. FEERICK: I thank Dean Martin for the privilege of
serving as host and moderator for this conversation—in fact I don’t think it
needs a moderator—with Justice Sandra Day O’Connor and Chief Judge
Kaye.
I recall the Justice’s and Chief Judge’s early visits to this law school, and
to this amphitheater as well, which are among our fondest memories here at
Fordham.
You, Justice O’Connor, on October 24, 1984, dedicated this very room
and adjacent facility. It was your first visit to Fordham Law School. What
I recall most vividly is that more than a thousand people stood in a line
outside the Dean’s office to ask you to sign the program, and you were with
your husband, and signed every single program.
You, Chief Judge Kaye, I remember, when you were a very young
associate judge on the New York Court of Appeals, coming into the Dean’s
office from time to time to describe a remark or experience, or use our
library stacks and other parts of the library. On almost every occasion, a
student would ask you what year you were in.
CHIEF JUDGE JUDITH S. KAYE: Those were treasured memories.
DEAN FEERICK: Thank you both very much for coming here to our
school and for accepting the invitation to have a conversation.
As to the format, we will have a brief discussion. I will introduce
different subjects and move from one subject to the other. We will leave at
least ten or fifteen minutes for questions from the audience, and the
program should come to a conclusion around 8 o’clock, maybe give or take
a minute.
Now, I’m sure, Justice O’Connor, and you, Judge Kaye, are wondering
why I have this book.
2012] A CONVERSATION 1151
JUSTICE SANDRA DAY O’CONNOR: Well, I hope you’re going to
teach us something.
DEAN FEERICK: Here’s my question. This is a book by the
Commission on Government Integrity here in New York State,1 coming at a
time with a lot of corruption in the 1980s. It had on the Commission some
of the greatest Americans I’ve ever known—just a great group.
JUSTICE O’CONNOR: What were you asked to do?
DEAN FEERICK: We were asked to look at every area that raised
ethical issues in New York State, the whole campaign finance system, the
system by which we elected judges—and that’s the question I will start the
conversation with—and to look at state and local government. We had a
staff of a hundred people. We did twenty-three investigations, and all the
investigations are in this volume.
JUSTICE O’CONNOR: Just one volume?
DEAN FEERICK: It’s called Government Ethics Reform in the 1990s.2
And I remember when we put together the title, I said to Professor Bruce
Green, who was the editor, certainly by the end of the 1990s, this agenda
would be done, and we shouldn’t need the book. But the reality is that the
agenda’s still there.
When we concluded an examination of the selection of judges in New
York State—we looked at the appointive systems in the state, we looked at
the election systems in New York State—we then had many
recommendations regarding judicial selection in New York State.
At the end of the summary of the recommendations, this statement
appears:
In urging these recommendations, we do not suggest that an appointive
system necessarily produces more qualified judges or fewer corrupt ones.
We have found no persuasive evidence correlating systems of judicial
selection with the quality and integrity of judges. Nor do we believe that
politics can be banished completely from the selection of judges. What
our investigation has shown is that [the elective system is certainly
infused with politics].3
My question is this: Is there any empirical data that one could quote that
we did not find in New York State to say that the judges who are appointed
are of a different quality and integrity than those judges who are elected?
We couldn’t make that conclusion.
So why, therefore—if one accepts a commission of diverse people—why
do we spend so much time on the subject of judicial selection when we
1. N.Y. STATE COMM’N ON GOV’T INTEGRITY, GOVERNMENT ETHICS REFORM FOR THE
1990S: THE COLLECTED REPORTS OF THE NEW YORK STATE COMMISSION ON GOVERNMENT
INTEGRITY (Bruce Green ed., 1991).
2. Id.
3. N.Y. STATE COMM’N ON GOV’T INTEGRITY, Becoming a Judge: Report on the
Failings of Judicial Elections in New York State, in GOVERNMENT ETHICS REFORM FOR THE
1990S, supra note 1, at 271, 274.
1152 FORDHAM LAW REVIEW [Vol. 81
have so many systems and it doesn’t seem to make a difference in terms of
the quality and the integrity of the judges?
JUSTICE O’CONNOR: Well, I think there is a difference. With all
respect to your considerations there, it seems to me that the popular election
of judges that involves campaign contributions and money flowing into the
courtroom, in effect, is a very poor way to pick judges. I just cannot
believe that that is equivalent to an appointive system. You may end up
getting very good judges from an elective system. Some of them certainly
are going to be.
My home state is Arizona, and when I started practicing law there we
elected the judges. I knew them. You know, we had some very fine judges.
But we had some that weren’t so fine. I remember one who used to go
out and play some little instrument on the street corner and had a monkey.
Is that what you want the judges doing? That’s not what I want my judges
doing.
I remember going into his courtroom one time with a woman who was
there on a matter relating to a marital breakup, and the judge spotted me out
of the courtroom with my client—“Oh, Ms. O’Connor, bring the little heifer
in.” Maybe you think that’s okay. I don’t.
I thought he was a disaster and that we shouldn’t be electing people of
that caliber—they shouldn’t be elected. If they were appointed, we would
never have had that man on the bench. And he’s not the only one. It was a
bad situation in my opinion.
I am not in favor of the election of judges. You still elect some in this
state. I wish you didn’t. We got rid of it in Arizona, I’m happy to say, and
it has been much improved.
DEAN FEERICK: As you know, if you look at New York State, the
Court of Appeals, of course, is an appointive court. Our basic trial court,
the Supreme Court, is an elected court. And we have a family court outside
New York City that’s an elected court, and we have civil courts that are
elected courts. So we have probably more than a thousand, maybe two
thousand elected judges in the State of New York.
So what about the question, Chief Judge, that I posed? That is to say, if
one can’t demonstrate that there is a different quality, a different integrity
level, why shed as much light as we have on this subject?
JUDGE KAYE: First of all, I think it is extremely important that we put
a lot of time into this subject because it is a hugely important question to
our great democracy. We want to be certain, always, that we have a
judiciary with independence and integrity and the very best people of all.
Naturally, we are very much a product of our own experience. For me, in
New York State, having the highest court in the state removed from the
electoral process, it definitely changes the picture. That has been true since
the year 1977. We have had our judges appointed by the governor, coming
through the Commission on Judicial Nominations. Indeed, I happen to be
the Chair of the Commission, so I think the Commission’s great.
2012] A CONVERSATION 1153
I agree very much with Justice O’Connor when I see the care that we are
taking to assure that the person who will be appointed by the governor will
be of the very utmost high quality.
Now, that still leaves many courts in the State of New York, as you have
pointed out, with elected judges. John, you can’t deny we’ve been right in
the middle of the whole thing because what we have done—and I’ll turn the
clock all the way back, because Justice O’Connor, you might want to thank
us in New York for the fact that we have elected judges all over the place. I
think we all got it started in about 1846 with our People’s Constitution of
1846,4 when we started with elected judges.5 But now we have, except for
the high court, about 75 percent of our judges elected. And our wonderful
dean spent a couple of years of his life working with me and with all of us
to assure the greatest integrity in the electoral process.
I speak from my experience in New York, but I also read the papers and
see what’s going on in other parts of the country, which does not make me
proud at all. I think we have at the moment thirty-one or more states that
have judges on their high courts elected. I think I read somewhere recently
that more than seventy judges are standing for election, and I’m watching
millions of dollars being poured into those campaigns. I’m worried, I’m
really worried.
JUSTICE O’CONNOR: You should be. I just think it’s terribly
important. No other nation in the world elects its judges. This is something
we invented, and we didn’t even invent it when we started this country.
The judges were appointed when the colonies began in the original states.
It was in the early 1800s when Andrew Jackson started wandering around
the South and tried to convince those states they ought to elect their judges.
Unfortunately he succeeded in large measure. They decided to do that; they
did not trust the appointment process.
But as I told you, Arizona used to elect all its judges at every level. I
ended up serving in the legislature for a few years, and one of my projects
was to put on the ballot for voters in Arizona a repeal of the electoral
system and moving to an appointive system with a citizens’ commission
that would make recommendations to the governor for appointments.
Happily, the voters approved that—not by a wide margin by any means;
there was divided opinion, but they approved it.
I lived in Arizona long enough to see the changes, and they were so
obvious. It was a far better system and it still is. I am very grateful that we
made that change in Arizona.
JUDGE KAYE: But we do have excellent judges throughout the
judiciary. We really, really do.
JUSTICE O’CONNOR: Well, you can get good judges in either system.
4. N.Y. CONST. of 1846.
5. Id. art. VI, § 12.
1154 FORDHAM LAW REVIEW [Vol. 81
JUDGE KAYE: John, you lived in the middle of this and gave us a
report the size of that book. I’m still reading it. [Laughter] We wanted to
assure that we did everything, so that within the elective system we were
assured the very best. I am confident that we put all your recommendations
into action.
DEAN FEERICK: Just on a historical note, Justice, I think you started as
a Judge on the Superior Court in Arizona.
JUSTICE O’CONNOR: I myself had to run for an election. Therefore, I
know what I’m talking about. I was there, and I had to raise funds for that
campaign. And who gave me the money? It was the lawyers that were
most likely to appear in my court. I thought it was horrible. I was
embarrassed. I didn’t like it. I made very strict limits on how much money
I would accept from any source. But I’ve been there. I’ve been in the
trenches. I’ve seen it up close. It is not a good system.
DEAN FEERICK: Let’s go backward. This thick volume with many
recommendations for improving judicial selection in New York State
recommended the abolition of the elective process in New York State.
Nobody’s acted on this in the last twenty years. A few years ago, Chief
Judge Kaye said “let’s take a shot,” so to speak. How can we advance the
elective system on the assumption that we’re not going to change to an
appointment system? So that leads to the question: If across the country
you have embedded in the legal culture of a lot of states, such as New York,
an elective system, what can we be doing to protect the judicial function in
the context of elective systems? What are the kinds of things that we ought
to be doing to enhance, if I can put it that way, even if one accepts a
different approach to selecting judges, the responsibility to protect it and
improve it, and so forth?
JUDGE KAYE: Well that’s a very hard question to answer since I
premised my first answer on the fact that our highest court is not an elective
court. Our highest court is an appointed court, and if you look at the
experience across the nation, there really are huge amounts of money being
spent on electing judges of the highest state courts. So we are spared that in
New York State, and if you are willing to take that out of your question,
then I will try to answer your question. So you do, I presume?
DEAN FEERICK: Yes, just to agree with you, yes.
JUDGE KAYE: So, I say I do think we do have, really, a fine judiciary.
We have 75 percent of our non–Court of Appeals judges elected. The first
thing I would tell people would be to get a hold of the report6 by the
Commission that was chaired by John Feerick. They did their work for two
years, and then asked for yet another, third volume. I think they reached
6. COMM’N TO PROMOTE PUB. CONFIDENCE IN JUDICIAL ELECTIONS, FINAL REPORT TO
THE CHIEF JUDGE OF THE STATE OF NEW YORK (2006); see also COMM’N TO PROMOTE PUB.
CONFIDENCE IN JUDICIAL ELECTIONS, INTERIM REPORT TO THE CHIEF JUDGE OF THE STATE OF
NEW YORK (2003); COMM’N TO PROMOTE PUB. CONFIDENCE IN JUDICIAL ELECTIONS, REPORT
TO THE CHIEF JUDGE OF THE STATE OF NEW YORK (2004).
2012] A CONVERSATION 1155
into every conceivable part of the system and recommended excellent
reforms which we assiduously followed, finding ways to inform voters—
this is really important. I know we’re going to talk about iCivics,7 because
we should be informing people about the system generally, because voters
should know about who it is they’re voting for. There were many
recommendations about getting that information. There’s an ethics
committee that’s established for judges, accessible 24/7, if there’s ever any
question. There’s an administrative rule about limiting the amounts of
contributions to very small amounts. So I think there are any number—
dozens of steps that were taken within the confines of the non–high court of
the State of New York to assure that our judges are indeed the kind of
people we all want to entrust our disputes to.
DEAN FEERICK: The recommendations were adopted largely because
of you and the Court of Appeals. The system of improvements that were
put in were essentially a judicial action because of the difficulty for political
change in the legislature. So, commitment by someone in a position to
make a change is really what happened in New York, and you were that
person.
JUDGE KAYE: Well I thank you for saying that, but in fact I was
having a conversation with one of your professors just before we entered
the room about statutes and the proliferation of statutes. And the comment
I made to him is that within the independent branch of government, the
judicial branch of government, not everything needs to be statutory all the
time. There’s so much we can do administratively. And I know that Chief
Judge Lippman feels the same way, and we don’t have to turn to the
legislature for everything, do we, Justice O’Connor?
JUSTICE O’CONNOR: Well, I think it’s better not to.
JUDGE KAYE: I like the idea of fixing our own problems whenever we
can, involving people like you, helping us with problems, helping us find
solutions, and then implementing them. We don’t need a statute to do
everything.
JUSTICE O’CONNOR: We need standards for performance, and we
need a mechanism for anybody to make a complaint, and to investigate it
and handle it properly.
DEAN FEERICK: Justice, we may note that you served in the
Legislature. It should be noted in the record that you were chosen to be the
majority leader of the Senate in your state, the first woman in the history of
the country to be majority leader of a house of the state legislature.
JUDGE KAYE: Bravo.
DEAN FEERICK: We touched a little bit on judicial selection, which is
important for this lecture. The Law Review was hoping that there would be
a discussion, which there has been, and we may return for a question or two
later, and I notice that we have a lot of Law Review students sitting over to
7. http://www.icivics.org (last visited Nov. 16, 2012).
1156 FORDHAM LAW REVIEW [Vol. 81
my right, I can see them on the edge of their seats. You made reference to
the judicial branch of government, but whatever the problems are with
judicial selection, don’t we have a greater problem in the country? I
understand from a website, Justice, that you put together, that one third of
the people in the country don’t even know we have three branches of
government.
JUSTICE O’CONNOR: They know there may be three, but they can’t
name them. That’s pretty pathetic. It really is. So there’s a lack of
knowledge among our citizens. When we got public schools in this
country—we didn’t start out with them, you know; when the framers came
along, they did a lot of good things, but they didn’t know about schools.
And it was a few years later when people started saying, well, now we have
a pretty good system of government that the framers devised. We need to
have public schools to teach our young people what this system of
government is, and how people can get involved with it and make it work
for them. We need to do that through public schools. That is when all the
states began proposing to have public schools. It was a good development.
Today, half of our states are now supporting a reduction in the use of
public schools. And it’s just amazing. We have real problems coming on.
And we need to teach every youngster how the government works, both at
the federal and state level, and how they can be a part of it. This is critical
to our country, I think. In an effort to help on that, I managed to get a little
nonprofit entity organized: iCivics, we call it—iCivics.org,8 trying to teach
young people how government works and how they can be part of it. And
we do it by games that the young people play on the website, and it’s really
doing extremely well. I have chairpeople in America, in all fifty states, and
all fifty states have at least some of their schools using it, and I’m not going
to stop until all of them use it.
JUDGE KAYE: You should know that, in our state, I think we’re now
above 500 teachers using it, and we’re very proud of that. I just wanted to
circle back for a minute, because I mentioned that our People’s Constitution
of 1846 put elected judges into the active world of state constitutions. I
might point out with greater pride that our state constitution today, which
was adopted in the year 1938, contains its own article guaranteeing the right
to a free public education.9 So we should do really well with iCivics in this
state. We did have many years of controversy with the Legislature over
exactly what that constitutional provision meant, but that’s the beauty of
our three-part system, isn’t it?
DEAN FEERICK: Somebody asked me recently, what are we going to
talk about in this conversation?
JUDGE KAYE: I asked you that!
DEAN FEERICK: Yes, but you are not the person who put the
following question to me: Why is civic education relevant to lawyers? I’m
8. Id.
9. N.Y. CONST. art. XI, § 1.
2012] A CONVERSATION 1157
surprised by the person—not you—that I spoke to who asked, why is it
important for us to have a conversation like this at the law school, with
those present being law students and lawyers? What is it about civic
education that we as lawyers should address?
JUSTICE O’CONNOR: Well, if you’re going to have a functioning state
government and national government that works well, you have to have
citizens who are part of making it work well, who themselves are engaged
in it, who understand they have obligations to vote, to be informed about
voting, to be informed about how government works, and to know enough
to work with it and through it to make things happen. This is critical. In
the early days of the country, we really did have every state start a public
school system and they taught civics. Today, half the states have stopped
making civics a requirement for middle school and high school. That is a
terrible thing to have happen. We absolutely have to be teaching how our
government works. I remember thinking it was kind of dull. Nonetheless,
you need to know, as you get educated, how our government works and
how to be part of it. That is critical.
JUDGE KAYE: I couldn’t agree more heartily with that statement, and
we’re really talking about public school people. But I just want to add a
tiny footnote to that, as well. Some years ago, I gave a speech at the City
Bar Association about our state constitution, and a lawyer came up to me
afterward and said, “That speech was great,” which I appreciated. Then he
said, “I never knew we had a state constitution, I feel like I’m swimming in
a whole new sea of culture.” That is a quote. We’re not talking only about
young children, teenage children, college people; we are talking about
preservation of our democracy, preservation of our great nation. We need
to know how it works. We need to know about it, and regrettably, we’re
not really up to snuff.
JUSTICE O’CONNOR: And about how we, individually, can
participate.
DEAN FEERICK: What I’m hearing you say is that lawyers need to
know about their state constitutions, but don’t we have a responsibility far
beyond our own state knowledge to convey our understanding of
government, of the system, to young children, to people? I had a
conversation with Benton Becker the other day. Benton Becker was
counsel to Gerald Ford when he was minority leader in the House of
Representatives and he was his counsel to the White House and to the Vice
President. And he said to me that he gives something like fourteen lectures
a year in Florida, to an adult population, and he is stunned by the need for
understanding, the need for information. And he, for example, said to me,
people don’t understand the judiciary. You look at the Constitution, you
look at Article III of the Constitution, you have a few provisions on the
court, the jurisdiction of the court, people know other parts of the
Constitution, Supremacy Clause, but he says people just don’t know where
it comes from. They don’t understand judicial review. And we lawyers,
1158 FORDHAM LAW REVIEW [Vol. 81
more than anyone, he suggests, have the knowledge, training, and education
to be able to explain it.
JUDGE KAYE: Absolutely, John. I am not that fond of footnotes, I
really am not, but I have another one to add. I had the privilege some
weeks ago of realizing a passion of mine, or moving it forward, which is to
keep kids out of court and keep them in schools. And we had a wonderful
nationwide summit and I was very pleased to be able to put that together, of
bringing educators and judges together, I think it made me feel really good,
but what makes me feel absolutely best of all is that every single law school
in the area sent students. And I hope some of them are here today, because
at every table of educators and judges, there were students. Now I finished
law school fifty years ago, which is hard for me to believe. I would never
have thought of doing something like that. I just so appreciated and
admired the moral compass of these law students who came there, from law
school, don’t you sense that as well?
JUSTICE O’CONNOR: I have met some wonderful law students across
the country who care and really want to be good citizens.
DEAN FEERICK: I’d like to move to another area that both of you have
unique qualifications in: women in the legal profession. Let me just frame
my question and eventually get to a question. Now, Justice O’Connor,
when you graduated from law school in 1952, third in your class, you
couldn’t find a job at a law firm.
JUSTICE O’CONNOR: I couldn’t even get an interview at a law firm. I
was female. They wouldn’t talk to me.
DEAN FEERICK: So you worked for a little while, and then at some
point you opened up a firm in a shopping mall.
JUSTICE O’CONNOR: In Arizona.
DEAN FEERICK: In Arizona, with another person, and you balanced
raising a family with having a life as a lawyer, and in 1981, essentially
thirty years later, you were a Justice of the United States Supreme Court,
having started in 1952 with the experience that you describe. Now you,
Chief Judge Kaye, graduated law school also at the top of your class, ten
years later, in 1962. And, in that time period, you worked at two different
firms—worked part-time so you could balance raising a family with having
a career as a lawyer—and then in the year 1983, having graduated in 1962,
you went directly to the New York Court of Appeals as an associate judge
without any background in partisan politics, and right from a law firm.
JUDGE KAYE: That’s a pretty remarkable summary.
JUSTICE O’CONNOR: I think he’s coming along.
DEAN FEERICK: I haven’t gotten to my question yet. [Laughter]
Justice O’Connor, you reached the United States Supreme Court, the first
woman in the history of the country. You, Chief Judge Kaye, reached the
New York Court of Appeals, the first woman in the history of New York to
serve on the Court of Appeals. Given what each of you have done, one
might be able to say that all the barriers have been removed for women in
2012] A CONVERSATION 1159
the legal profession. So, my question is, what do you make of the gap left
in terms of women in the legal profession.
JUDGE KAYE: And here I thought you were so astute. [Laughter]
JUSTICE O’CONNOR: I think we need to continue to be very aware of
the needs for both young men and young women to have good conditions
for work in the legal profession. We want it to be workable for both of
them. It’s not just that entry-level job. We’d like to see women at all levels
of the profession. They are getting entry level jobs, but if you look at the
statistics on who becomes senior partners and how they differ later on, as
time goes on, it’s not as encouraging at all. We still have work to do in that
area. You certainly see it in corporate America. Maybe some of you own
stock in a few companies of some significance, some of you do. The
companies send their stockholders a list each year of names for election of
directors for the company, and they send a list to vote for, and these days,
many of the companies will include at least one woman on a list of fifteen
different people. And the opportunities in that way are slow still to
develop. So I think we have work ahead of us still in various areas and also
in the legal profession itself. It’s better than it ever was, but to find women
at the top levels of management in law firms is not quite what it might be if
it were evenly spread out. What do you think, you probably know as much
or more about that than I do, Dean Feerick?
DEAN FEERICK: I agree with what I’ve heard you say, and obviously
as a preface to my question that all the barriers have not been removed,
despite the great accomplishments and role modeling of the two of you.
JUDGE KAYE: I think absolutely, that is so. I would refer you to two
articles I’ve published in the Fordham Law Review. One was in the year
1988,10 and then I followed it up in the year 200811 to measure again what I
thought was not really satisfactory in 1988, followed it up in 2008. And I
spoke not long ago with one of your Law Review people saying that I think
I’d like to return to the subject again, because as is true with judicial ethics,
and judicial selection, and practically every other subject on earth that you
can measure, people do what you inspect. People do not do what you do
not inspect. And I think we need to keep our attention focused on precisely
the point that Justice O’Connor has made, which is the woeful rise into
leadership positions of qualified women. That is one thing we can measure,
and another thing we can measure is that a lot of women leave the law, and
this is maybe a newer phenomenon, and we can measure that too. So, I
think we have to continue to inspect because the issue definitely needs
improvement for women, and may I say, for nonwomen.
JUSTICE O’CONNOR: Whoever they are. [Laughter]
DEAN FEERICK: Any suggestions of strategies?
10. See Judith S. Kaye, Women Lawyers in Big Firms: A Study in Progress Toward
Gender Equality, 57 FORDHAM L. REV. 111 (1988).
11. See Judith S. Kaye & Anne C. Reddy, The Progress of Women Lawyers at Big
Firms: Steadied, or Simply Studied?, 76 FORDHAM L. REV. 1941 (2008).
1160 FORDHAM LAW REVIEW [Vol. 81
JUDGE KAYE: Well there’s one I always think comes first. And, my
own daughter is seated in the audience, so can I tell you I feel a little
uncomfortable, and she’s a lawyer—might I say one of the happiest days of
my life was when my daughter became a lawyer. And one message I do try
to reinforce again and again is that, first of all, your life should be
meaningful, and the things you do should be meaningful to you. But also I
think you have to persevere; you can never get on the Supreme Court of the
United States or the Court of Appeals of the State of New York, or be the
dean of the Fordham Law School if you leave—none of those things are
possible. And there are so many opportunities to do something a little
different, to do something more or less, but don’t go! Don’t go! I have
these conversations many times with young women in law who feel that
they have no alternative but to leave, and there are alternatives, and they
shouldn’t leave. Reentry is very, very difficult. I mean, really, if you don’t
want to continue in the law, you don’t have to, but you shouldn’t leave
because you feel you have no alternative. Because once you go, I think the
consequences of coming back are really difficult.
JUSTICE O’CONNOR: And there are alternatives in terms of the
amount of work that you can get into.
JUDGE KAYE: But I think I still have a good article. Doesn’t the
Fordham Law Review agree? [Applause]
DEAN FEERICK: This takes us—we’ve moved along maybe a little
more quickly than I anticipated—so we will have more opportunity for
questions, but there’s another phenomenon going on right now in America,
right now in the legal profession: growth of the number of senior lawyers.
The American Bar Association estimates that in the next few years,
nationally, 40,000 lawyers will either retire completely or partially or do
something else. And in New York State right now, 27,000 registered
attorneys list themselves as retired. We have a growing population of
lawyers in New York State fifty-five or over, who qualify for programs that
are there for attorneys over fifty-five.
I mention all those statistics because I think we have a world out there in
the legal profession of people in transition. Now, the two of you have
experienced different transitions in your careers. It’s my sense that there
are issues with transitions, for people who are in transitions, and with so
many lawyers contemplating transition, what advice would you have for
people to consider who are in transition as lawyers and want to continue to
have meaning and purpose in life?
JUSTICE O’CONNOR: I think there are so many constructive things
that a person with a legal background can do. I like the nonprofit segment
of society. I’ve been involved as a volunteer for most of my life with
various community organizations that are trying so hard to provide services
to people in a whole variety of ways. All of them welcome help from
lawyers. You can think in your own community how many of these
organizations there are. You can start with health care institutions that need
all kinds of help, educational groups, everything. I can’t tell you how many
2012] A CONVERSATION 1161
such organizations there are in every state. And they welcome the help, and
it’s fun to do it. You can get active and go up the ladder in their
organization as a volunteer. I think it’s great to do so. Lawyers provide
better technical help.
DEAN FEERICK: Chief Judge, when you left the Court of Appeals, we
got into a discussion of the challenges faced by those in transition, who
leave the public stage or leave a position very much at the center of society,
and who are now in the background. And therefore, that presents
challenges for those who are in transition in such circumstances. Now
you’ve been through a transition, Chief Judge, and you find yourself no
longer Chief Judge of New York State. How did you deal with that?
JUDGE KAYE: Well, I think you put your finger on a really significant
subject, even larger than the Chief Judge question, and wouldn’t it be nice if
people could put their heads together and think of a different word than
“senior”? The last time I enjoyed being called “senior” I was in high
school.
JUSTICE O’CONNOR: Then it was good. Then it had privileges.
JUDGE KAYE: So, I wish there were some different way to conceive of
this point that we’ve reached. And you’re absolutely right, more and more
of us are reaching that stage where we are active still and we spent our
careers essentially as problem-solvers, and the world is filled with
problems—and how do we connect? And I think that is just an enormous
modern-day problem. I’ve been very fortunate, when I came off the
greatest job on earth, being Chief Judge of the State of New York—
honest—I was greeted by your former law firm, John, Skadden. And I
understand my next move is, you go from Skadden to being the dean of the
Law School? [Laughter and applause] No, no, I’ll do it when I’m 100
years old and your current dean is ready to move on. [Laughter] I was
invited to Skadden to come and do whatever I wanted, which is really a
great privilege, you would think, wouldn’t you? Except, figuring out what
you want to do when you have the opportunity to do whatever it is you want
to do, that’s challenging. And I’ve had many things; I’ve mentioned a few
moments ago that I’m passionate about adolescents and keeping kids out of
courts and not wasting the next generation of our nation’s future.
JUSTICE O’CONNOR: And my project is to try to educate young
people about how our government works and do it with my iCivics
program. I am trying to get it in use in every state in this country, widely
used. And we’re getting about five million hits a day now—that’s not
nearly enough, and I have lots more that we can do.
JUDGE KAYE: And we’re talking about the same people, it’s really our
nation’s future.
JUSTICE O’CONNOR: And we can use lawyers. “Retired” lawyers, so
to speak.
1162 FORDHAM LAW REVIEW [Vol. 81
JUDGE KAYE: And that’s another word we might need to improve.
Public relations. Because I look at your “retirement,” Justice O’Connor,
and it’s just mind boggling.
JUSTICE O’CONNOR: Yes, there’s a lot going on. Plus, I’m sitting on
the Federal Courts of Appeal. They still welcome help now and then. I’m
heading down to Philadelphia tomorrow where I’m sitting on the Third
Circuit for a couple of days. Then I’ll be back in a few months and sit up in
New York for the Second Circuit, and I’m getting back from sitting with
the Fourth down in the Carolinas so I’ve got plenty to do. I have a book out
pretty soon, too.
JUDGE KAYE: So, what do you do in your spare time?
JUSTICE O’CONNOR: That’s what I’m working on.
DEAN FEERICK: When Chief Judge Kaye and I had dinner, we talked
about maybe the two of us putting a book together on transitions. And she
said, John, maybe you can contribute a chapter? And I said, sure, I’ll
contribute a chapter—
JUDGE KAYE: Have I missed something on my email? [Laughter]
DEAN FEERICK: Now, on transitions, it was not exactly clear to me
exactly what to do when I left as dean of the Law School. I had served for
twenty years. I said to the president of the university, it really is time for
me to go and figure out what to do with the rest of my life. I was turning
sixty-six, I had become dean when I was about to turn forty-six, and for me,
it seemed that the world beyond the law school was where somebody in this
position should go. Two of my very dear friends in the judiciary said to me,
“John, why don’t you explore a federal judgeship?” I was very touched by
that, but I said, “Too old,” and I really didn’t have any interest going into a
difficult confirmation process.
JUDGE KAYE: Well, you could have gotten elected. [Laughter]
DEAN FEERICK [holding a copy of Government Ethics Reform for the
1990s]: This Commission advocated the abolition of the election. But
seriously, I was playing with different possibilities. Maybe something in
Westchester, maybe going back to Skadden Arps. Then, the dean of the
Law School, Dean Treanor, whom I miss greatly, said to me, “I want you to
stay. I want you to stay, and I want you to create a social justice center.” I
said, “Bill, it makes no sense, you can’t make me that kind of promise. I’ve
got to be obscure, and I want my office away from the building.” So, I
suspect that there are a lot of us out there in the legal profession that have
really struggled in dealing with a transition. From my experience, and in
my life, I’ve been fortunate to have two transitions, one to leave Skadden to
come here as Dean and then from Dean to being a teacher, and I think as to
those who are in transitions, one has to start thinking about it much earlier
than when it happens. Unless you have no choice.
JUSTICE O’CONNOR: I think one of the nice things that people can do
as they mature and get some knowledge of the community is to go on a
board and be involved with some nonprofit organization in your community
2012] A CONVERSATION 1163
that is doing good things that you would enjoy helping with. In Arizona we
have all kinds of things—and I’m sure you do too. I remember being on the
board of the Salvation Army for years and doing all kinds of projects, and
being on the board of a women’s organization that did a lot of volunteer
work.
In Arizona, the house that my husband and I built back in 1957 was an
adobe house—sun-dried adobe—and I love sun-dried adobe. That was an
effort. We had to find somebody to make it out of the Salt River bed in
Arizona, make the adobes, we got a starving young architect to do a great
design, and we put up the basic part of the house. It was wonderful for that
part of the world. We had to sell it when I went to Washington, D.C., and it
had various owners. More recently, the owner was a single man and he
decided to tear it down and build a big place for himself. The people in
Arizona said, “We can’t let the O’Connor House go.” They moved it!
They had to pull it apart adobe by adobe, and it’s now out in Papago Park in
Tempe, Arizona, with a beautiful view, rebuilt, and we’re using it as a place
where civil talk leads to civic action.12 What I see today in Arizona, and
perhaps you don’t yet in New York, I see people who act disagreeably
instead of talking major issues through and working cordially with people
with different points of view. We don’t seem to be able to do that anymore.
JUDGE KAYE: Like building adobe.
JUSTICE O’CONNOR: Yes. Find a new way of working together to
accomplish common goals. For instance, it has been suggested that maybe
Arizona should try a system of having open primary elections so that even
if you’re not registered as a Republican or Democrat, you can vote in the
primary election. Several states are trying that, I think Washington State
perhaps is one, and opening it up some way. And so, we’re going to
explore that. Through O’Connor House, we’re bringing people from a
couple of states to come and speak at the public library in Phoenix and
we’re going to talk about the whole thing and see what it sounds like, and
we’ll get some intelligent advocates on both sides of that to talk about it and
see what we should do with such an idea in Arizona. But there are all kinds
of exciting things you can get involved with, particularly if you’re a lawyer
and you enjoy these things.
JUDGE KAYE: You’ll never be “obscure,” John Feerick. But the
message that I derived from what Justice O’Connor just said, and believe to
the depths of my soul, is that above all you have to remain positive about
your life, whatever stage it is you’re in, and think affirmatively and
12. O’Connor House, the historic home of Justice O’Connor, “has become home to a
broad-based community effort to drive civic action and an ambitious public policy agenda
through inclusive consensus-building. O’Connor House convenes people with disparate
points of view to discuss issues, facilitate consensus, and craft non-partisan, centrist
solutions to vital public issues, in an environment of mutual respect and shared purpose.”
Mission, O’CONNOR HOUSE, http://www.oconnorhouse.org/about/mission.php (last visited
Nov. 16, 2012).
1164 FORDHAM LAW REVIEW [Vol. 81
positively and find ways to use your talents constructively. I think that is
the message.
DEAN FEERICK: I would suggest that we take a few questions from the
audience.
AUDIENCE MEMBER 1: My question concerns the role of politics and
whether or not you think that politics plays a greater role if the judiciary is
elected versus appointed.
JUSTICE O’CONNOR: Well that almost answers itself. Of course it
plays a greater role when you elect them—because they want people who
are electable parties. You have to raise money, and you have to go out and
make speeches, and get acquainted with everybody. It’s a very political
situation.
JUDGE KAYE: Of course, one basic problem we have is that whatever
system, whether it’s appointive or elective, it’s run by human beings. That
makes for difficulty sometimes.
AUDIENCE MEMBER 2: We’ve all spoken a lot about civic
engagement. I think many of us are not living in our hometowns, we’re
very transient. Do you think that has any effect on civic engagement, and
do you have any recommendations?
JUSTICE O’CONNOR: Absolutely. Get involved! There are so many
organizations, ones that work with young people, there are the scouting
organizations, everything. Pick one out and get involved as a volunteer,
and work your way into the structure of it, and play an important role. It’s
great. You’ll like it.
AUDIENCE MEMBER 3: Justice O’Connor, I had the privilege of
hearing you speak last month, at 92nd Street Y, about your life. During that
conversation, you mentioned that you were not a feminist. And this
evening, you’re most obviously a trailblazer and a role model for all of us,
and you see the need for further advancement for women and women
lawyers, and I was wondering why you feel you’re not a feminist. And
Judge Kaye, I was wondering if you do or don’t and why or why not?
JUDGE KAYE: Well, what you’ve said of Justice O’Connor and the
qualities she has expressed this evening and demonstrated in her lifetime,
would you conclude that she is feminist?
AUDIENCE MEMBER 3: I would conclude that she was a feminist, but
she said she was not.
JUSTICE O’CONNOR: No, I don’t think so. I would say the same
thing to a group of young men as I would to a young woman. As a young
person, male or female, get out there and get involved with some
community organizations where you can make a difference, and where you
can use your talent and energy and ability to start making the world a better
place in some discrete area. And I don’t have to say, “young women do it,
but no young men.”
JUDGE KAYE: The reason I put that question back to you is that I’m
not 100 percent sure how you define it. And what we do is resist a label
2012] A CONVERSATION 1165
without totally understanding its circumferences. But what I’ve heard you
describe of Justice O’Connor, sounds pretty good to me.
AUDIENCE MEMBER 4: Speaking about the role of women in the law,
and the careers of women lawyers, and how you, Judge Kaye,
recommended staying in the law, and not leaving, that really struck me.
What kind of alternatives would you offer for women and what suggestions
for balancing work and life?
JUDGE KAYE: It is, of course, a very individual decision. And what I
put at the top of my list is that what you do should be meaningful to you.
That is, I think, above all, important. I would be the last person to advocate
staying just to stay in it. The fact is, when I began having my children, I
started on a part-time basis, which back then—oh my goodness. I
remember it was called the “mommy track,” and very disparaged. I think it
is much better now—in fact, we have part-time partners at our law firm
today. So, I don’t have a particular list of things, if that’s what you’re
asking me, and I don’t know, Justice O’Connor, if you do. That said, the
only advice I’ve ever felt comfortable giving across the board about
anything is: never buy a wrap skirt. [Laughter] Everything else is
nuanced.
AUDIENCE MEMBER 5: All three of you have great reputations as
consensus-builders. Do you wish that there was a broader consensus in
your courts, and what personal and professional skills did you bring to your
courts that you think helped to build consensus?
JUDGE KAYE: I can’t wait to hear this one, Justice O’Connor.
JUSTICE O’CONNOR: You make friends, that’s what you do. You
make friends with your fellow judges if you’re on an appellate court. Don’t
just assume that they have to treat you in a certain way, or be a certain
way—just go out of your way to make friends. And one of the things that
happens at the U.S. Supreme Court is that on days of oral argument and
conference, at least you have an opportunity to have lunch with each other
if you want to. And I would round people up and say, “Come on now, let’s
go to lunch!” I would make sure they would—there were some who
weren’t so eager to go, and I would kind of push them in that direction. I
think when you have friendships, and acquaintances form, and you get used
to talking with each other, it gets easier to work on legal issues together and
deal with things other than the casual and the personal. That was my
experience.
JUDGE KAYE: I would say the same, in this sense. And I’ve thought
so much about this, and read so much about the subject. There are a lot of
wonderful pieces written about dissents, and whole books of unpublished
dissents. And I might tell you, in my time on the court, we would
sometimes circulate unpublished dissents in an effort to improve a single,
unanimous opinion. I think the one essential quality has nothing to do with
the Chief—you can’t beat people into consensus. I was very fortunate in
my years on the court that having a single opinion was a value that we
shared. There were seven judges, I came into that tradition when I went on
1166 FORDHAM LAW REVIEW [Vol. 81
the court in 1983. We thought there was a value in having a unanimous
opinion, and we would work to have a unanimous opinion—not that we
always did. My goodness, we had rabid dissents, but if all the people
around the table felt value in a single opinion, then you can have it. You
can work to promote it.
JUSTICE O’CONNOR: But you can’t always achieve it. And that’s all
right; you might end up friends, even if you disagree.
DEAN FEERICK: My motto is George Mitchell: Listen to each other.
Keep talking. Try to understand each other, and point out the advantages of
agreement and the disadvantages of a lack of agreement. And don’t give
up. It’s what I do as a mediator, and I suppose you could say as an
administrator—everyone is valued, everyone is respected, and it’s your
words. You have to practice those words by listening and hearing.
JUDGE KAYE: Yes, but that has to be a shared value. One of the
difficulties is, of course, that the press, and the academic world, love
conflict.
AUDIENCE MEMBER 6: I notice, in the city, where there are
appointed judges, there seem to be a larger number of women, but outside
the city, where they’re elected, there seem to be a lower number. And I
wonder if that came up in your conversation—
JUSTICE O’CONNOR: Don’t elect your judges!
AUDIENCE MEMBER 6: —in your conversation about what is the best
model to follow?
JUSTICE O’CONNOR: Well, I’ve told you what I think the best model
is: an appointive system. I know in my state we got a larger percentage of
women judges immediately, and it stayed that way. It has been very
effective.
JUDGE KAYE: I don’t know. I happen to be looking out in the
audience at a couple of great, female, elected judges. So the argument that I
hear for a more diverse judiciary—and we sure do need it, we want a more
diverse judiciary—the argument I hear is, “Hey, we finally know how the
system works. Don’t change it on us now that we have got it working a
little bit in our favor.” So, I don’t know which side it weighs on. I’m
looking out at very beloved colleagues who earned their seats.
JUSTICE O’CONNOR: I think the system is working pretty well.
JUDGE KAYE: Well, we have great judges. So I don’t know when it
comes to diversity and women, to say that that’s an argument in favor of
election or appointment, I think there are a million other things that weigh
in that, but we have to be working harder for a more diverse judiciary,
period, whatever the system.
AUDIENCE MEMBER 7: Justice O’Connor, I’m curious, as I’m sure
many people are, for what your views are on the health care case13 before
the Court?
13. Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012).
2012] A CONVERSATION 1167
JUSTICE O’CONNOR: I wouldn’t tell you that if I had to! My heavens.
The Court has it under advisement. What business do I have weighing in?
I didn’t read all those briefs. I’m not sure the people who passed it even
read the legislation!
JUDGE KAYE: I’m ruling that question beyond the scope of the
conversation.
DEAN FEERICK: To bring this program to a conclusion, there is
something I would like to read, Justice O’Connor and Chief Judge Kaye.
Justice O’Connor, you have quoted, in graduation remarks, certain words of
John Wesley, as follows: “Do all the good you can. By all the means you
can. In all the ways you can. In all the places you can. At all times you
can. To all the people you can. As long as ever you can.”14 Let me
suggest to both of you, that your lives have been models of this homily.
Thank you.
14. LETTERS OF JOHN WESLEY 423 (George Eayrs ed., 1915).