Host
Ladies and gentlemen, please take your seats.

Ladies and gentlemen, will you please take your seats as we're ready to begin the last segment of the program today.

Thank you.

Welcome to what has become a highlight of the Ninth Circuit Judicial Conference. And that's our conversation with Justice O'Connor. Now based on what we heard from the last panel, the internet panel, I'm thinking that perhaps we can protect this segment of the program under a Judicial Conference methods patent, but we will leave that maybe for the Federal Circuit. Our panel this morning includes Chief Judge [Terry] Hatter from the Central District of California, Peter Benvenutti partner from San Francisco firm of Heller Ehrman and Professor Kathleen Sullivan, Dean of Stanford Law School. Although we are listed in the program as interviewers, I think that's somewhat of a misnomer, because we don't really intend to interview Justice O'Connor. The

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
that's news to me.

Host
But you're not off the hook because we will ask you some questions. We just won't call them interviews. Courts last term certainly was an interesting one. And the cases resonated, I think, not only with judges and lawyers, but with the public at large. They dealt with everything from the Boy Scouts in the First Amendment, tobacco, the Violence Against Women in Act. Two, of course, Miranda warnings. Some of the legal commentators and pundits of which you know, there are many have called it a blockbuster term. I'm not a fan of labels. And so I'm going to leave it to Justice O'Connor to put her own gloss on the term. And typically at these conversations, we have focused primarily on the court and its cases. But the truth of the matter is, what we'd really like to know is we'd like to know more about the justices and what goes on behind the scenes. It's just we can't ask those questions usually. But with that in mind, I thought I would at least try. So Justin So Connor, we are a little curious about your life and what you do every day. So if you permit me to ask you would you share with us a bit of a thumbnail sketch on a life in the day of justice Sandro Connor.

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
Well, all wrong. It starts with reading. I think what a Supreme Court justice does most of his reading. And I'm a fan of reading a newspaper early in the morning. I don't know about you. I don't rely on TV or news. And there's something about having a big fat mess the newspaper in your hands at the beginning of the day that has become a lifelong habit. And so I get up very early. That must be my ranch upbringing. But by 530 or so I'm awake and ready to get up and get going. And I'm usually outside or Johnny is looking for the newspaper before it's even arrived. And once the Does we have a little breakfast and read the paper and I go down to the court. I'm the chauffeur and the family and dr. john downtown on the wave of the court. And I try to leave the house about 715 or so, to go downtown and beat some of the traffic. And the first thing I do at the court is half an hour of exercise. And this is really a part of my life. And it has been since my days as a lawyer in Arizona many years ago, I started with early morning exercise. I've never quit the weight off anymore, but I feel better and it helps keep me awake the rest of the day. We lead such sedentary lives as judges, and we're kind of glued to our chairs for a long period of every day. And it just helps me enormously to start out with an hour of exercise and I have persuaded a few law clerks and employees in the building and a few neighbors on Capitol Hill to join. It's not a large group, but it's a compatible group. And that's a nice way to start the day. And when I go down to the office, then I start reading again. And much of that is initially what has come into my in basket since the last time I looked at it, and it has a way of growing very rapidly before my eyes. The Supreme Court, as I've often said, is the backbone of the paper industry in America. And it's evidence every day by what comes in. We receive a great deal of mail. I know that I have heard from every school child in America

My office tries very hard to answer most of their questions and letters, but it's hard. It takes a constant effort to try to keep up with that. We receive, and I'm sure all the justices do mail from people around the country dealing with issues before the court. I asked not to see that unless it's some letter from a personal friend, in which case I can write the friend back and say that it wouldn't be appropriate for me to consider their views on something. But I don't attempt to answer that kind of male. Then we have all of the court work that tiles and the petitions for sir sure very and the responses and the law clerk pool memos on mad and there's just a lot of them to read every day, when I came to Court in 1981, we got about 4000 petitions asking us to take the case. This year we had well over 7000. So that's just a daily occurrence is going through the petitions that have come in. And as I've often said, many are called but few are chosen. And we have been increasingly selective through the years in, in our number of grants, not because the standards have changed, but just because all the federal judges around the country have been doing a better job so we don't have to take all and if it's a day of oral argument, or someone to the court by a big buzzer that goes off throughout all with chambers five minutes ahead, we go down and put our robes on shake hands and going in the courtroom, the oral arguments, typically the last term or two just occurred in the morning. In the early years of my service there, we had arguments in the morning and again starting at one o'clock in the afternoon. And it's not often these days that we have to go back for the afternoon. So that's a lot of luxury for us. And the rest of the day then is spent reading. And we hope thinking as well, and trying to work out what we think about cases that we're going to have argued or have had argued, and just dealing with the writing of any opinions that have been assigned, or anything else that comes across that desk, and it helps to go home a little late. So you again, try to avoid traffic. And it's nice to take some of the work home and continue reading if you don't have some evening obligation, and then get up and start the next day. I do come to the court every Saturday as well to try to keep up with the work and we work down there, at least I do on holidays. And I try to stay home on Sundays and stop by church and then I love to play golf. So if I can get a few holes of golf and on a Sunday that suits me very well. And john and i have a tennis game every week that in fact, he has more than one. And I do too with any luck. But I try to play very early Thursday morning before I go down to the court play Hello tennis. So that's the way it is.

Terry Hatter
Just as lovely follow up on that if you don't agree Know you and your husband john are tennis enthuses, you're going to get in some tennis while you're here. Do you have any tennis partners among your colleagues that you play with the colleagues and their spouses? For example,

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
I have in the past had a tennis game or two with Justice Scalia. Justice Kennedy. Justice Stevens is a constant tennis player, but that's not a regular thing. Now, as a matter of fact, I have made most of my close friends through life through tennis. And it's been a great source of friendship for me. And when I came to Washington, I was not well acquainted with people in Washington, and I was at some reception and a woman I met, asked if I like tennis, and I said, Yes. And she said, Would you like me to set up a game? And I said, Sure. And she said, I Women's Doubles game. And I've now had 19 years of tennis with that group slightly expanded. And really, they became my close friends. And it was nice because it was not people in the legal profession who had some interest in the work of the court. It was people outside the court sphere. And it's been great for me. And the same was true in Arizona as well.

Terry Hatter
Ah, terrific. Let me ask you about your court. You know, there's been a good bit of criticism by some members of Congress about the lower courts, participating in various conferences, even like this one that we're here in now, I've always found them to be really worthwhile meeting with our colleagues and with the lawyers and others to find out what's going on. And they don't always have to deal with with case work itself. And I'm wondering, does your court From just case specific kinds of matters ever have retreats where you talk about collegiality about the administration of justice generally, or about any of those kinds of

Host
knows we don't.

Unknown Speaker
Why not?

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
We see each other a lot. Now weeks of oral argument, we are together three days that week on the bench. And we also are in conference together two days of bad week. And on days, on weeks that we don't have oral argument. We still have court conferences together. And on every day of oral argument or conference, most of us go upstairs to the dining room and have lunch together and when we confer any member of can ask the chief to put on the agenda for discussion, anything that any of us think needs discussing. So we think there's a problem. We'll talk about it. And people do put things on the conference discussion list, and we work them out. And so I think we have a constant conversation on all these things. And and that seems to do the job. I don't think we need another meeting.

Host
I don't think there's any ambiguity in that. And

Terry Hatter
so it's not just because of Senator Grassley.

Host
No, no. Somebody else you spend a lot of time with are your law clerks. And I think we have some interesting

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
inquiries about those as well

Kathleen Sullivan
is I was going to ask since you've been kind enough Justice O'Connor to hire some Stanford Law Schools best and brightest as clerks. We're grateful for that. They gain tremendously from the experience. But how do you find the experience of working with law clerks, we take these young last Students fresh out of law school and put them in charge of helping you decide some of the most important cases. What's that relationship like?

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
Well, one of the real joys of the position is the privilege of working with these marvelous law clerks. We're just so blessed at that court. By having applications from the most talented young lawyers in the country. It's just such a luxury to be able to pick up these applications and to select from among many qualified, wonderful young people for that you think will fit the bill for that particular year. I see so much of my law clerks because I do like to work at my office rather than at home. Some of my colleagues find it more satisfactory to work at home. I'm down there, and I like to see them and we have lunch together on days when I'm not having lunch. with my colleagues, and I'm talking to them all the time, and they become, like, part of my family, they really do. I get to know them so well, and I'm so fond of them. And it's just a very close relationship because you know, and there's something about a relationship that forms with a law clerk when you're privileged during that year to talk intimately about the details of the issues before us and with total frankness on both sides, and to really work on these issues together. It brings you very close to these people. And it gives me a probably a very inaccurate picture of youth in America today because I see our fabulous and it probably doesn't extend through Society HG these young lawyers are gifted and wonderful and I just thoroughly enjoy them.

Unknown Speaker
Justice O'Connor, Rumor has it that the Justice of the Supreme Court communicate with one another regarding the fashion of opinions and understand that there are limits on how far you can go into that subject. But I'm curious, do those conversations also take place between justices directory? Do you use email to communicate thoughts and suggestions and so on with respect to fashion, you have opinions

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
with due deference to the panel at just spoke. I don't do email.

I think some of my colleagues do. We have a so called secure email system within the court. And so it's possible to do that, but I don't now In working on opinions, we rely primarily on the oral conference discussion that has taken place on the case, after the case has been orally argued, we go around the table and everybody has a say, I keep notes, writing as fast as I can I get writer's cramp in there sometimes, because I want to remember the points that my colleagues make that are important to them in the case. So if I do have to write an opinion, for the court or in dissent, I can refer back to those notes and try to remember the points that I want to so maybe it won't be necessary to talk to anybody. When I get to the opinion drafting stage. Sometimes, however, the views are not well formed or shaped at the time of the conference discussion. We can have an issue that's so tough, that even after conference, there was a lot of uncertainty about How the case ought to be structured and what view is going to capture a majority. And there are times when if I am assigned to try to write an opinion for the court, I will want to confer personally with some of the members in that majority, who were not clear in their views at the time of conference, to make sure that whatever I'm putting together at the end of the day, is likely to reflect their views enough to enable them to join. And so I might have to have some personal discussion with one or more of the members of the court at that time. And then if there is a member who's pretty shaky on their views, I might want to confer directly with that member of the court to at some point during the Kenyan writing process.

Host
Well, we would be remiss Speaking of opinions, if we didn't at least touch on what has happened the last term. So to do that, I think I might turn first to our constitutional scholar.

Kathleen Sullivan
Well, Justice O'Connor, many people in the press and the broader public described this, as Judge McEwen suggested before as a blockbuster term. And they were probably referring to the fact that so many of the cases drew lots of popular attention deciding that the Boy Scouts had a freedom of association right to exclude a gay Scoutmaster, or that the same right of association barred California from having open primaries in which voters would cross over party lines and in some sense, boat and you know, in a group, they weren't a member of other cases striking down the Violence Against Women Act as a access versus power under either the Commerce Clause or the civil rights enforcement

Unknown Speaker
section, right.

Kathleen Sullivan
Just one section. Of course, the court section about civil damages civil damages actions against people under fair The law or striking down another act of Congress that it's attempted to do an end run around the famous miranda warnings. Or maybe people were thinking about the help that you wrote it for the court that there were some rights of a parent not to have to share her children with her their grams parent, under right of privacy that's as old as the century nearly as old as the century. So people thought about Boy Scouts, grandparents violence against women, Miranda warnings, or the big decision saying that the FDA did not have authority after all to regulate the distribution of nicotine through cigarettes. And that does look like a pretty heady term, lots of headlines. But I wonder how you see the term and whether you think that the public accurately perceives what were truly the most important cases of the term where these the really important cases did they make new law or were there other cases that were the sleepers of the term

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
you've accurately character characterized the headline issues of the term And it's not surprising, I suppose that news media would seize upon issues that the public in general can readily understand and find of interest of the boy scout case, the California primary case, the grandparent visitation, for goodness sakes, everybody can relate to that problem. And the miranda warnings, which are so much a part of popular police culture for so many years since the Miranda case, which came from Arizona, long before I became these were issues that the public could understand and the media focused on and we did have an unusually large number of that kind of case last term. I'm not sure that many of them broke new precedent. Some of undoubtedly did. And certainly the interpretation of the authority that Congress had given the Food and Drug Administration over tobacco was an issue that was a difficult one. And arguments could be made on both sides reasonable arguments, and they were but we have to resolve the grandparent visitation case, are produced at the end of the day, almost more opinions than we have justice. Very finite new rules, but it did suggest that yes, at least states in considering these difficult issues should consider the views of the fit parents in rendering some such decision. Now That's not a very big step to take. But there were a couple of sleepers that the press didn't focus on in the term that I think may affect the work of the judges, both at the district court level and the appellate level to an extraordinary degree. I'm thinking for example of a trendy versus New Jersey and I wrote my heart out and the descent in that case, I didn't carry the day. But I have a nagging concern that what the majority held in a brandy is going to affect if it hasn't already, rather dramatically. The caseload in the Federal District Courts as a result of trendy down dealt with a hate crime statute in New Jersey. That permitted a judge to add on additional punishment on a sentence. If the judge found by a preponderance of the evidence that the defendant in committing the crime acted with a purpose to intimidate because of race, and the court concluded that any fat that increases the penalty for a crime beyond the prescribed statutory maximum has to be submitted to a jury, not the judge and proven beyond a reasonable doubt. Well, there are good many sentences around the country, no doubt that will be called into question because of that case. And while that wasn't a headline grant, it's going to be a work grabber in the federal courts I suspect,

Kathleen Sullivan
cutie and the others other Sleepers of the term well

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
Gee, I don't know, I think most of them got written about but a good many state universities have formed the practice of charging students an activity fee in order to enable the students to have speakers and activities during the year that might end up being not viewpoint neutral activities. And the Court upheld such a scheme coming out of the University of Wisconsin. I don't know that that got a lot of headlines, but it's going to have a practical effect around the country. No doubt. I don't know if there are other real sleepers in the list or

Kathleen Sullivan
not. And there is great drama and the at the very end of the term about the so called partial birth abortion decision and the decision that denying the right of free speech to obstruct women going in and out of abortion clinics. So there were two cases a

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
good attitude from Colorado that limited the distance within which people can approach someone entering a health facility. And within so many feet of the entry that generated some very heartfelt defense in the court, a couple of which were announced orally from the bench when the opinion was announced. And that's unusual that there is a descent announced from the bench and even more unusual if there are two in the same case. So the feelings are ram strongly within the court itself, on the validity of the position taken by the majority and perhaps in More than in other terms of recent vintage that I can recall.

Terry Hatter
And when you say the the sense were announced from the bench event that they were actually read completely?

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
No. But a description of the views of the dissenting justice were given orally from the bench with some bigger.

Terry Hatter
Justice O'Connor, I don't think it's news to you that you've been in the news a good bit lately. I, I think it's fair to say that you're probably the most popular member of the court. And we certainly appreciate having you as our circuit justice, not only for your popularity with the public, but it appears to me to that you're popular with your colleagues. From what I've been reading, you've probably written fewer to sense than any of your colleagues and you have been sort of that swing vote. So you've got people

Unknown Speaker
urging you to join Would you like to race

Host
race now?

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
You've been reading too many newspaper.

Terry Hatter
But there's been a lot of five to four decisions and you've been that fifth boat. And you've written the opinions. And now

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
I like to take issue with that viewpoint nine any five four decision it takes by it didn't just my mouth.

Host
I don't,

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
I've never gone along with the notion of a swing boat. In any case, if there were five on one side, that's enough to reach a holding of the court, and every one of the five counts just as much as every other one. And so I got a little impatient with that

Terry Hatter
descriptive do you think, however, that they've been more five to four votes in the last term, then

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
there were more than in the term before. That's clear. We ended up the term before with more unit Animals opinions than we did the term that just ended. And--

Terry Hatter
Let me ask you a little bit about that. I've heard some law professors discussing this issue, several of them former Supreme court clerks and seemed to know their way around the court.

The thinking was that just because

you have a five to four decision doesn't mean that the issues were tougher necessarily, then when you have a unanimous decision, do you agree with that?

Unknown Speaker
I do. I do. Why?

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
Well, sometimes the issues are addressed are really tough, but the court will end up all agreeing on the outcome. And other times, there is a fundamental fault line there and how you approach it. You want to give more strength to the right of a jury trial or less as an apprentice. You're going to rely more on principles going to The British English common law and less on the practice in this country in the intervening 200 years, these are kind of fault lines that aren't going to be cured so easily. And so you're going to have a dissenting position, no doubt. And we see some of that occurring, again in the role of the 11th amendment. and members of the court have been disagreeing on the extent to which the 11th amendment should be interpreted to protect the rights of states to enjoy immunity from sued and federal courts since the earliest days of the country. And there's been that outline all along. And its continued and when Justice Brennan was on the court, he very much wanted our court to overturn battled press at On the 11th amendment, giving the state's their immunity. And he made some cogent arguments for doing it. But the court chose not to do it. And we've seen several cases in recent terms, again, raising that issue. And it's understandable there are people who just take a fundamentally different view of the meaning of the 11th amendment. And apparently, you're going to continue to do so.

Host
Well, I'm, I'm glad that you don't place complete weight in statistics, because I think it falls to me as a member of the Ninth Circuit to ask you

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
the report card.

Host
Apparently, I don't even have to ask this question. We did have report card of the century but maybe you could limit it to last term.

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
You know, I always know I'm going to get faced with this and

Unknown Speaker
it gets.

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
At least since I've been on the court. It's never banner totally encouraging report. here's here's the news this year. There were 784 petitions for search Crary file with us from the Ninth Circuit last term. We only took 11. That's 1.4% of the petitions that were filed. So that means by nine circuits doing all right, wouldn't you say I'm now of the 11. We took. One was vacated and Raymond and Tamworth argued, and of the TAM, nine were reversed. However, having said

Terry Hatter
this three judges did very well

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
as usual, but The interesting thing to note perhaps would be that it wasn't more than two or three terms ago when we had 28 cases from the Ninth Circuit in a single term, and about 27 of them reversed or something. I don't know, you remember? That looks a lot better to me. And so I have to say, Well, why and is it possible that your use of more on bomb procedures has caused that decline? I think that's possible.

Unknown Speaker
We talked about

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
that a few years ago, when I was here, and I think the Ninth Circuit has adopted a practice of using a few more on bonk sense them and so it's probably not something That's totally welcome in the circuit, but maybe it's had a beneficial effect. I'm not. Yeah, certain. What we can attribute this decline in the number of cases taken from the ninth circuit is but I think that's a very likely cause. And so it still is such a difficult thing. In the Ninth Circuit, you have 26 active judges, I guess now, and only 13 on an on bonk panel, which is not very representative of the circuit really overall. So how are you going to make that work? Probably. You ought to at least, think about or discuss the notion of followed by at least one or more of the other circuits of circulating more broadly draft panel opinions and saying if there is some great hue and cry out there, among your colleagues before that's finalized, that that might be worth thinking about. I don't know if it would work. But I would think that maybe the increased use of the unbound has perhaps helped. Well,

Unknown Speaker
I appreciate the positive report 28 down to nine, I think.

Host
And we haven't reached the end bank. So I would just add one thing, by way of interest to your comment about whether we should pre circulate our opinions. We do have a procedure now for that my microphone is failing. It

Unknown Speaker
says on

Unknown Speaker
your battery.

Peter Benvenutti
We're dealing with that technological glitch. Perhaps I can answer that. practicing lawyer standpoint, arguing the case for the Supreme Court has got to be the highlight of most lawyers. Just

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
Yes, new batteries, batteries, batteries, batteries here.

Terry Hatter
Suppose that happened to you while you were arguing before the Supreme Court?

Kathleen Sullivan
Chief wouldn't give you any time off for

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
now you just have to raise your voice a little bit.

Unknown Speaker
Perhaps I can perhaps I can do that.

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
Yeah. My

Unknown Speaker
question has to do with with oral argument. How much of a difference does real argument make to the court's decision making process? And do you have any suggestions for lawyers what things to do and thanks Boy,

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
that that triggers several comments and response. First of all, I would be scared to death to be a lawyer before our course. We have too many justices asking questions I you hardly get a word out. I don't know how you ever keep your train of thought you have some pretty good question on that bench. And justice Briar waits to last moment, you know about lights about Turn, turn red and then ask some blockbuster question and what do you do today and even sum up your response? So I don't know. It's It's tough. I think we asked probably too many questions. And maybe we should extend the time for oral argument if we're going to use up all the lawyers time that may be a good subject for a conference discussion, Chief Judge. But and we've had One or two about this very problem. But a lawyer's oral argument can make a difference. The lawyer can strengthen a point beyond that, which was evident from the briefs and give us a lot more confidence than our tentative conclusions. When we go to the oral argument, like most of you on the court of appeals to grab the briefs, and you've done a lot of work on it. So you, you've tentatively thought it through and you think you know, how you're leaning. Now, a lawyer can shake that confidence at oral argument. I've seen it happen. Now. You know, it doesn't happen on a majority of cases. But enough, often enough that I think it would encourage a lawyer to think that yes, oral argument is important, and we think it is. And on the other hand, I have seen a lawyer oral argument, disclosing weakness that was able to the case. So you never know where it's gonna lead. Sometimes that will be in response to a question. We've even discovered a case being argued become mode. Question oral argument, so you never know what's going to happen. And if we get such a diversity of lawyers coming to the court, some are very experienced counsel, and we know when they come, they're likely to give a very good argument. A majority are lawyers who've never been there before, and they'll never be there again. And some of those lawyers can be absolutely marvelous. When they come out of the practice and know something about the subject. I remember this term, a bankruptcy case and we have some of those every term that bankruptcy

never finished. But we have one of the bankruptcy cases that didn't make the headlines. And the two lawyers were both very experienced in the field. And it was absolutely marvelous because they could respond to questions and convey information that we genuinely didn't know the answer to about the nature of the practice and how it work. It was marvelous. Probably neither of those lawyers will be back before us again, but they did a heck of a job and I really admired it now what false to avoid. My pet peeve is a lawyer who's up there at the podium and keeps looking at the clock above the justices ends. I mean, I always think, gee, they're hoping that it'll just speed by. So don't do that. And try to be conversational. No. Make the jury argument. Be conversational, try to convey some information that maybe we don't have. And of course, every appellate advocate knows, to try to use a question that's asked to your advantage by saying, Oh, yes. Well, and you may have to concede a point against you in response to the question. That's true. Justice. On the other hand, this is different because and we think the line should be drawn air instead of

Unknown Speaker
there. Well, I have to say, as a bankruptcy lawyer, you've given me a lot of encouragement.

Host
Well, let me just on this segment, close with the comment, I had mentioned that although we don't pre circulate in the Ninth Circuit, we are pre circulating summaries of cases during the last year. We are trying a variety of changes. I'd like to move off of the domestic and just ask you real briefly about the internet. National arena, you've been a big proponent about American jurist taking note of international law and becoming more conversant with it as an aid to our own decision making. And a lot of us notice reports coming back from the ABA convention in London this summer that some of the English journalists stood up and criticize and said, Well, we talked a good line, but we don't

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
really kind of walk the walk and

Host
said that it's a good idea. But why don't we do it? They do it. So you're you're in the middle of this, but what are your comments on that?

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
American judges traditionally have been insular. And our views we have not opted to look beyond our borders and see what other countries are done or are doing. It might be most relevant, really, in the constitutional field where Number of nations, at least in the Western world might have similar constitutional provisions to some of ours. And yet, we rarely, if ever, look to see what other courts have held on the same issue. I think it's a good thing to do. The comments made in London this summer to which you refer, we're at a panel I attended, actually. And I think there is some currency of thought in within European Union countries, and perhaps others as well, that American courts look to sell them at the views of other courts. So I personally think it's a good thing to do, at least in areas where we have a common issue being addressed. We've been forced to look at the views of other courts, when we're deciding the meaning of some treaty entered into by a number of nations and perhaps other nations have interpreted the section and we have not, such as the Warsaw Convention and so forth where we have willingly look beyond our borders. But as discussed today at the panel this morning, it is an era of globalization and enter NASS nationalization if there is such a word. And we're going to have more and more cases coming into the courts that require our lawyers and judges to know something about international law. That's one reason why I'm very pleased that tomorrow there will be a panel dealing with some issues of international law and I think that's a great thing to start talking about some of those things Ninth Circuit is in a situation where it borders both Mexico and Canada, and where it's affected by some NAFTA issues, no doubt and a lot of immigration cases. And these are issues of concern. I think that in the international area, our court, in particular has been criticized overseas by our Brouard decision, although I think it was consistent with international law for reasons we can get into maybe tomorrow. But there is a concern that when the United States enters into a treaty, in this case, one that says if a national citizen from another country is charged with a crime in this country, that notification should be given to the console of the country from which the defendant comes. And that has been largely ignored in this country in practice, to the great irritation of some members, some other nations who are members of that convention and they wonder why that is so and they've tried to challenge it in the International Court of Justice and elsewhere,

Terry Hatter
and the defense bar is beginning to use it a good thing I would,

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
I would think so. Now I suppose our time is up. So if there any tombstone questions, we better get to.

Kathleen Sullivan
Maybe we can think of one tombstone question. What about it? What about a crystal ball question rather than a tombstone? Justice O'Connor looking 510 15 years forward is the United States Supreme Court still going to look the way it does now a nine member court of general jurisdiction that has to master everything from bankruptcy and the Jones X to international treaties and Native American title to the most complex constitutional questions. You do all of that, and other courts and other nations are sometimes more specialized. Do you see it staying pretty much the way it is for the foreseeable future?

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
I'm not the great crystal ball holder. So it's awfully hard day. But if I had to, I would say the court will look very much as it does today, in that it will still have nine members. That seems to be a workable number and there hasn't been great pressure to alter it. increasing the number would make the work of the court more difficult. And nine is a pretty good number to get some sense of different viewpoints around the country. I suspect that in 25 years, we will certainly have two women on the court and perhaps more and that there will be a continued effort To see some diversification of members of the court from ethnic and geographical standpoints, I would think that would be the case. And we'll still be grappling with all the tough issues, no doubt some patent issues grappling with those, I suppose. But every major social issue in the nation is going to end up at the court 25 years from now, just as it has in the past. And, you know, before we break, I do want to add my voice to those of all of you in thanking Chief Judge Proctor hug and Barbara hug, for their willingness to engage in the business of leadership of this very A large cumbersome, difficult circuit and doing it with grace and dignity and goodwill over four plus years and I think that I owe them a lot of thanks along with all of you.

And I want to thank each and every one of you again for being such a warm and kind host to john and to me, we are always so happy to be here. And so glad to see all of you on these occasions and I guess next summer we're going to be up in Montana favorite spot and jack Shams from has already promised to take me fishing.

Host
It's our chance now really to thank you next year will be asking you about your catch. And those are the statistics will be interested in next year. But we do want to thank you. It's a real privilege, I think for all of the conference attendees to have this rare opportunity. I also want to thank the panelists for participating in the conversation with the justice, this insurance the program for this morning. I do want to remind you that this afternoon, there is a special screening of the movie a civil action, and that is a prelude to tomorrow's program, a civil action of civil reaction. The movie will be at three o'clock in the opera house and you can see the nice circuits very own Siskel and Ebert, also known as judges, trot and Silverman will be performing there to give you a review prior to the movie. So we hope you'll have an opportunity to to attend and will now close the conference for this morning. Thank you

Unknown Speaker
Thank you very much