By Justice Sandra Day O'Connor

Interview with Google Chairman Eric Schmidt at Zeitgeist Americas conference

September 26, 2011

Type: Interview
Location: Zeitgeist Americas conference


Justice O'Connor: You know, I have a theory.

Eric Schmidt: Yes, ma'am.

Justice O'Connor: Education is key. And it is not enough just to have schools so many hours a day and so many schools. It's how we teach and what we teach, and I think we're falling down on that. So that's what I've been involved in lately.

Eric Schmidt: Well, actually, as a bit of background, you were an associate justice for a couple of decades.

Justice O'Connor: Yeah, 25 years I was on the court more or less.

Eric Schmidt: Most of us have not spent a lot of time with the justice system. Maybe you could explain a little bit about the third branch of government, which we don't talk much about, but you've lived in. It seems to me it is a system that actually works remarkably well. It is a stable system. It is self-policing. It is quite independent. You grew up in it. You were essentially selected, promoted through that system in your entire professional career. How do you think about it now? Tell us a little bit about how it actually works.

Justice O'Connor: That's a big question. We have in every state a legal system and judicial system that works at the local level. Within a city, as Cory Booker can tell you, you must have city courts and city judges, another system. And at the federal level, under the Constitution, we have a U.S. Supreme Court. And below that we have a federal Court of Appeals. They sit all over the country, 14 circuits. And we have the trial court level, the federal district courts.

Eric Schmidt: So in my meetings with a few folks, I have been surprised at how powerful the judges actually are. They--as I mentioned, they both interpret the law but also have a lot of ability to order the police to do things and so forth and ultimately are part of dealing with our political system as well.

Justice O'Connor: They don't have power in the abstract. The power in the court system is to decide issues of federal law that are presented through actual and real cases and controversies that come before the courts, starting at the lowest level and then by appeal, if need be, on the way up.

Eric Schmidt: You're very concerned in our chats about whether the system can remain really independent. Why is it so important?

Justice O'Connor: At the state level. I think at the federal level under the Constitution, we--the President appoints federal judges with the advice and consent of the Senate. But in the 50 states, about half of them elect state judges in popular elections. No other nation does that. It is not how we started, and I think it is a terrible way to pick judges. I really do. I don't think that works. And one reason I don't think it works is that in states that have popular election of judges, when the person runs for office as a judge and faces competition, you have to get a little money together to put out ads and, in these days, going on television, Google, or whatever and tell your story and hope to get votes. And that takes money. And so you have to put a committee together to get money. And who gives the money? It is the very lawyers who are most apt to appear before that judge. They think, "Ah, I'd better make a contribution so that when I go to court, they'll treat me well." I mean, that is a terrible system. And we didn't start that way. You remember a President named Andrew Jackson. Not one of my favorites. He went around the country telling all these early states, "You ought to elect your judges." And darned if they didn't go along with that, starting in Georgia and then spreading around the country. I grew up on a cattle ranch here in Arizona and in the neighboring state of New Mexico. And Arizona had popular election of judges. And as I matured in this community, I did various things. And at one point in my life, I thought, yes, it would be good to be a judge. I was a lawyer and wanted to be involved. And so to get there, I had to run for office. I had to form a little committee and collect money to run some ads. And it was the lawyers who were most apt to appear before me who gave me money. And at one point in Arizona, I ended up being in the legislature, in the state Senate. And surprisingly, I ended up being Senate majority leader. And that was the first time in the United States that a woman had held such an office in a state legislature. And one of my projects in the legislature was to change Arizona from popular election of judges, amend the Constitution, to provide for a system of appointment by the governor from names provided by a bipartisan citizens commission and then abandoning the popular election of judges. Well, it was a tough sell in Arizona, as it is in most states. And to get it, we had to leave out the small counties. Arizona has 14 counties. And there are only two, now three, with sizable populations. That's the one here, Maricopa County with Phoenix; Pima County with Tucson; and now Pinal County. But in those days, that was the only big county area. So we left out the little counties in the amendment of the Constitution.

Eric Schmidt: So today, of course--and I obviously agree with this issue of bias and contributions. Instead, there seems to be a motion where elected officials try to choose judges that have their own views or what have you. And then there is this long fractus do the federal judges get confirmed, do they get blocked, so on and so on. Has that problem gotten worse? Has it always been that way?

Justice O'Connor: It depends on what area you are talking about. We started out with George Washington. He didn't have any trouble getting his nominees confirmed. We sort of like George Washington.

Eric Schmidt: He was sort of the founder, too.

Justice O'Connor: Indeed, he was.

Eric Schmidt: Founders have a lot of power. [ Laughter ]

Justice O'Connor: That's right. That's right. So--but these days, when there is a vacancy on the Supreme Court--there are only nine members--and it is a very significant appointment. There's no question about it. So Presidents who have to select Supreme Court justices have a big challenge on their hands. And their selection then has to go before the U.S. Senate where it can be controversial. It isn't always.

Eric Schmidt: In your 25 years in the court, would you describe it as professional, collegial? You as a trailblazing first woman to do pretty much everything in the legal system, was it particularly challenging for you?

Justice O'Connor: Well, I wanted to do a decent job. I didn't want to be the last. It had taken 191 years. [ Laughter ] So I kind of wanted to do a good job. Oh, dear. But, it is an important position for a nomination. And I know Presidents are very careful about trying to pick qualified people.

Eric Schmidt: But they also try to bias it a little bit.

Justice O'Connor: Yes, so did George Washington. He wanted to put on someone that he thought sort of like he did about the country. And I'm sure that's true. I was appointed in 1981 by then-President Ronald Reagan. And when he was campaigning for office of President, he thought he wasn't doing very well with the women's vote support potential and that he ought to say some things that might make women more apt to go vote for him. And one of the things he decided to say was that if he had a chance, if he were elected President, he would like to put a qualified woman on the Supreme Court. That was one of his campaign announcements. He hadn't been President too long before Justice Potter Stewart retired. And then he had to name someone. And in those days, I don't know if it is still true, the President looked to his Attorney General for names and ideas. I mean, that isn't the only place.

Eric Schmidt: But now it seems to be more the General Counsel of the White House.

Justice O'Connor: I don't know what it is today. I'm not that close to it. But in those days, the Attorney General provided names. And it was William French Smith, who was a lawyer from Los Angeles area before becoming Attorney General. He told me he had started writing names down of people for a Supreme Court vacancy. And he tried to find some women's names. There weren't many women judges, Republican or Democrat. There were very, very few. And I was at that time serving on the Arizona Court of Appeals. And somehow my name ended up on that list. So I'm not quite sure how, but there just weren't that many women judges.

Eric Schmidt: Now, your focus now is very much on education.

Justice O'Connor: It is.

Eric Schmidt: You have some interesting projects around the Web, online learning and getting people to understand our civic society.

Justice O'Connor: Well, it seemed to me that as I served on the court, that there were more and more complaints about judges. And we heard about they were activists, secular, Godless, humanists trying to impose their will on the rest of us. I don't know if any of you said that, but that's what I was hearing. [ Laughter ]

Eric Schmidt: And to be clear, you completely endorsed that view.

Justice O'Connor: Oh, well, it concerned me. So one of the things that I did when I retired was to get the help of a few of my colleagues on the court and some other people. And we put together a conference of leaders across the United States to talk about this question of judicial independence and selection and activists. Were any of you in this room at that conference that we held? I don't see a lot of hands going up. But we tried to pick some major leaders across the country from the business sector. I remember Warren Buffet came, among others. And we had a great group of people and a good conference. And we talked about all these problems in the judicial branch. And the consensus of that group was that it was lack of education and, therefore, a lack of understanding among the American public about the role of the courts and judges and how they should be selected and that there was just a lack of knowledge. And because of that, it seemed to me we better start an education program, a Web site--that gets you all in the act

--so that people could learn more about how judges are selected and what we do. And we started--I went in with a small group of people and few of my colleagues helped. And we got a non-profit entity started and tried to get--I thought we should use some of the innovative ideas for education by a Web site. And we got a MacArthur Genius Award winner who was then working at Arizona State University. And we thought we'd put together some games because we learned that young people today spend on the average 40-some hours a week in front of a screen. It could be television and/or computer. That's a lot of hours. I just need about an hour. I mean, 40? Good Lord, they can share a little for education, right? And so we put together a Web site and we decided that to get young people to use it, we had to have games because that's what they did. They'd go on the Web and play games, right? So we got the MacArthur Genius Award winner to put together some games that dealt with the basics of the judicial branch. And it was really good, really good. Kids loved it. I had a little--well, I'm not--we don't have time for a long story. [ Laughter ] But the young people that we would get on it thought it was great fun. And then we decided over time that, well, there are two other branches of government. I guess they matter, too. So we expanded it. [ Laughter ]

Eric Schmidt: Only a Supreme Court justice can say this.

Justice O'Connor: Right, right. So we changed it to cover all three branches of government. We call it iCivics.

Eric Schmidt: iCivics.

Justice O'Connor: And we're having great success. I now have chairpeople in all of the 50 states and trying to get all the schools in all 50 states acquainted with it. And our target is 5th through 9th grade. It is sort of the middle school. Those are the years before the hormones have kicked in, you can get their attention. This thing up here has already formed and developed and they're eager to learn. I mean, that's the group you want.

Eric Schmidt: In fact, we see behind us some of the screen shots of the game.

Justice O'Connor: Oh, you do have a few from some of the games.

Eric Schmidt: We are a technology company, Justice. [ Laughter ]

Justice O'Connor: I know. It is wonderful.

Eric Schmidt: I have one final question. This is--again, it is amazing that you and your career could go from all the trailblazing you did to now even being a significant component of learning on the web. To some degree, people, I think, would say you made history on the first day that you showed up in the court. In the 25 years you were on the court, when you think about your role and you integrate the sort of sum of the contributions, is there anything in particular you are proudest of, or the role you had played both as a representative obviously to women but also in terms of as a member of the judiciary?

Justice O'Connor: I hope I succeeded on both levels. As the first woman, I didn't want to be the last, as I told you so I had to do a decent job. And I hoped that-

-you don't know about that. That's for historians to examine long after you're gone. And I hope they'll conclude that I did play a constructive role while I was on the court. And it was fairly successful, I guess, because when I go in to that Supreme Court room today to sit there and watch an oral argument at the court, I look up at the bench, there are three women on that bench!

Eric Schmidt: Wonderful.

Justice O'Connor: And I didn't think I would see that. [ Applause ]