Unknown Speaker
the Aspen Institute. This is about an hour 10 minutes. My name

Unknown Speaker
is Eric motley, and I'm here at the Aspen Institute and wanted to welcome you to yet another provocative session in our series on justice in society. couple of housekeeping points we're filming, we're taping this session. So if you could silence your phones and blackberries, that would be much appreciated. And the last 20 minutes of this program will be reserved for q amp a. And we'll have stationary mics. So if you could make yourselves to those stationary mics and introduce yourselves before proceeding to ask your questions, questions, few statements, that would help us considerably. And meeting all the needs of our taping technicians by honor now is to introduce you to the moderator Sandy Levinson, who is a professor of law at the universe city of Texas. his bio is in the back of your program. He's had a very distinguished life of letters in law. And we're very pleased to have him to moderate this

Unknown Speaker
session, Sandy, not have so pleased as I am to be here. I think among the people at the Aspen Institute tied for first among the people who do not need an introduction, our former Associate Justice Sandra Day O'Connor and justice Stephen Grier, I do want to add one item of their respective biographies, though appropriate to the general theme of selecting judges because both Justice O'Connor and justice Brier have actually been selected twice. Justice O'Connor, I think was among the very last elected judges in Arizona, if I remember correctly, and then of course, and selected by President Reagan to join United States Supreme Court. Justice Briar, for many years, is a very distinguished member of the First Circuit Court of Appeals in Boston appointed that office by President Carter, I think I'm correct in saying that he's the very last person not confirmed during the Carter administration. And so I do hope and assume that we'll talk about judicial selection beyond the topic of the hour, almost literally, judicial selection for the United States Supreme Court. And I take it that president does not take it a miss when I suggested he might need a modicum more than justice is Brian Justice O'Connor. The den is now among other things, a very distinguished professor of law at Georgetown University. For purposes of this panel, probably he is the most relevant item on his resume is that he was assistant training general in the first term of the George W. Bush administration for legal policy. And by rumor here sitting in the window, it was suggested among a lot of people that he was very key in selecting judges, not for the United States Supreme Court, because among other things, President Bush didn't get any appointments in the US Supreme Court during that term. But I suspect that Professor DN might have weighed in on occasion, as to district and even circuit court appointments with regard to what the Bush administration had in mind with nominating people to these lifetime positions. In any case, I am thrilled to be here. We will proceed in the order that people are preceded. Justice O'Connor, will begin, followed by Justice Briar. And then Professor Dan will conclude, well, what

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
do you want us to start with?

Unknown Speaker
Anything you would like to say about the process of judicial appointment? Just selection, either at a state courts where most states especially as the new west of the Mississippi, elect judges, I know that you have very strong views about judicial election rather than appointment? Or the the selection process United States Supreme Court.

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
All right. Well, I think we're seeing the selection process work itself out again, as we speak. We have a vacancy on the Supreme Court with the retirement of justice David Souter and the selection of his replacement. And I understand that about July 13. The hearings will begin for Judge Sotomayor. And that's always an educational experience for the country wants a justice is confirmed on on the bench, you don't see a lot of them, sir, not much on TV, because we don't have cameras in the supreme court room at this point. And you won't see them, in fact, my own. When I took the oath of office at the US Supreme Court, I took it in the Supreme Court chambers. And the President and Mrs. Reagan were in attendance. I think that's the last time that the ceremony has been conducted there because presidents like to have it on TV. So they bring them to the White House and have all the TV cameras. So I think I was the last one sworn in at the court. The selection process normally includes some input from the Attorney General, to the President, by way of the selection. I know that William French Smith was the attorney general, when I was selected, and he told me that because President Reagan had indicated during his campaign, that if he had a chance, he liked the protocol five woman on the Supreme Court, and Attorney General Smith began collecting a few names. Well, his list was pretty short, because there weren't many women judges, and there were even fewer republican women judges. So his list was pretty short. He kept it under his telephone at the Department of Justice. And sure enough, there was a vacancy, and Brigham French Smith put out his beautiful little lyst the mirror I was, so I ended up on the court. But well, and I think President Reagan was very fond of horses and ranch life and so forth. So my own ranch background sort of appeal to President Reagan. I suspect now I don't know. But I would think possibly So anyway, the selection process is largely behind closed doors. But the confirmation process because the Constitution says the president show nominate with the advice of consent of the Senate, so the senate gets into the act. And it was most of our courts history. The Senate did not summon the nominee for questioning that the gam I think with Felix frankfurters nomination, and he was asked to come over and Well anyway, it continued. And now it is this grilling process with gavel to gavel TV coverage. And it's the only chance the nation has to see the nominee in action, so to speak. It can be a learning process. I think when Chief Justice john roberts hearing was conducted, we all watched in amazement, he was very articulate, knowledgeable, and we learned a lot from that process. Now, our states have the choice of how to nominate judges and select them. It was President Andrew Jackson, who persuaded some states starting in Georgia to elect their judges instead of appoint them by the governor with some kind of confirmation process. It was Andrew Jackson was a real populous. And a lot of states fell for his line and started electing judges and still do. There are some form of election, a number of them just retention elections in 30. Some states today out of 50, at least 20, some states have partisan election of judges involving campaign contributions, mean TV ads and the Obama wax. And it is a very unfortunate way of selecting judges. I am biased on this subject. So you will hear it in my remarks. I do not think that's a healthy way to select judges will have more to say about that later. Because I don't want to take up too much done.

Unknown Speaker
Pick up this where you left off. Okay.

Unknown Speaker
And I think probably one of the problems that we both see, which is a problem is the problem of campaign contributions in state elections for judges, to Well, what sort of problem is it? My student, Tom Phillips, when I was teaching years ago, went on to become Chief Justice of Texas, and he told me to raise $4 million. Well, that was about several, many years ago, but a few years ago, and it's a lot more, a lot more now. And change, not for the better. Well, why? Why is it bad? So would you think you can get a fair trial? Before the lawyer and the judge when lawyer a is given $100,000 to this particular judge? Or somebody who represents does I mean, that is a problem. And we heard I thought very interesting at your conference, and the conference we had was a judge from Texas, who's a trial lawyer who does not like this system. And he said, he asks the other lawyers, well, why do you contribute all this money or your clients contribute the money? He says, well, they tell me that it doesn't really matter. The judge can be fair. And he tries to be fair. And it's a question of perception. We agree with that. But it isn't the reality. So then he asked him this question, he said, so what you do is you pick which candidate you think is the best, and you give them the money? And they say, No, we give both candidates the money. Oh, he says and why?

Unknown Speaker
Exactly. So anyway, the perception problem, at least is a serious problem. We had a case this term, where the court ventured very delicately into this area. And the question was this, one of the judge received three million dollars from one individual with a corporation. And the 3 million didn't all go to him, a little bit of it went to him, but most of it went to a pack which was against his opponent. So it was in supported him. And then he sat on the case involving this particular Corporation. And the question was whether the due process clause of the Constitution, which says You shall not deprive anyone of life, liberty or property, without due process of law, whether that was violated when the judge sat on the case, where he had received this breath, large amount of money from directly or indirectly, from a party to the case. And we held five to four, that it did violate the clause. And he could not sit on the case, having received that amount of money, directly or indirectly. But the four who decided came up was some pretty good questions. They said to the five, well, how are you going to administer this? How is it going to work out in detail? I mean, after all, a lot of people have influence on the selection of judges, how are you going to do it? And the response of the majority was, we're not in charge, we simply trace the outer bounds. And we can say this went beyond the outer bound. But within that boundary, there's an enormous amount to be done. And the people who will do it, we believe should do it, or the states, the bar associations, the state legislators, the state courts, and all kinds of rules and regulations can be produced that limit or eliminate this kind of problem. We can't do it. You can say, Well, why is it that important? After all, live life is filled with problems. And when judges start talking about their problems, the lawyers will not as if it were very serious, because they want the judge to think that they're being taken seriously. But as soon as they get out of the room, they say, you know, everyone has problems, and judges fewer than most. So why is this such a problem? Well, I would say the answer as to why faces me and did face Sandra and still does in the court every single day. We see in front of us every day in that court, Ryan spent sitting every person you can imagine, every race, every religion, every point of view. And this is a country of 300 million people. And my mother used to say we she said there's no views. so crazy. There isn't somebody doesn't hold it the United States, and we were in San Francisco, so they will live in Los Angeles. But

Unknown Speaker
the point is that

Unknown Speaker
true. People do in fact, have very, very different points of view. And they have decided to resolve their differences under law. And that is a kind of miracle that's taken us about 200 years or more to accomplish. And Andrew Jackson was the one who also said when john Marshall made a decision that the Cherokee Indians were entitled to their land. He said john marshals made his decision now let him enforce it. And what he did was he kicked the Indians out after the Supreme Court said it was their land

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
and ordered my ancestor when feel Scott to drive I'm out. Really, really?

Unknown Speaker
I didn't know you did? Yes. Well, you've made up for it. Okay.

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
made it pretty young, happy. Alright, so

Unknown Speaker
now you see why you start thinking of what will happen if people do not have confidence in the fairness of the judiciary. And it isn't just the judges problem. It's your problem and mine and everybody else's. So that's the that's sort of commercial message here.

Unknown Speaker
I won't pick up from where you left off, please, I cannot. I will be very brief because you do not come here to listen to me. I will just begin and end with one simple observation about judicial selection. It is that the task of judges