By Justice Sandra Day O'Connor

Speech on judicial independence to the National Governors Association

July 23, 2007

Speech on judicial independence to the National Governors Association
ITEM DETAILS
Type: Speech
Location: The National Governors Association

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Transcript

(Automatically generated)

Unknown Speaker
So Connor,

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
don't do that.

Thank you very much. Governor Napolitano is doing an outstanding job in my home state. And I was so appreciative when, as chairman of this group, she agreed that I could have a few words with you this morning. And that Tom Phillips, the former Chief Justice of the Texas Supreme Court, could also be part of this package and we hope to be brief and our remarks so that we might spend some time answering questions if there are some and Governor Granholm you're a great hostess. I had not previously been to the Northern part of Michigan and it's beautiful. It's been such a treat to glimpse Traverse City and the surroundings. I just, it's so enchanting, I hope to come back. Now, it's Elementary, high school civics that we have three branches of government, not just governors and not just legislators. And they regulate each other by a very intricate system of checks and balances. And the main check the judicial branch has on the others is the power to declare statutes or executive acts unconstitutional. Although sometimes judges might check the political branches in a softer way merely by interpreting a statute in light of constitutional values, or by ruling that a regulation or executive act is not authorized by statute, but whatever courts do, the courts have the power to make The president or Congress, or a governor or a state legislature, really, really angry. In fact, if judges do not make the man some of the time, they probably aren't doing their jobs. Judges effectiveness relies on the knowledge, I think that they won't be subject to retaliation for their judicial acts. And

as James Madison put it, and he, being the father of our Constitution, ought to be heard. And independent judiciary, he said is an impenetrable bulwark against every assumption of power in the legislative or executive, impenetrable, maybe putting it a bit strongly, but his basic idea is sound. If you believe as James Madison did, and as I do, that courts are important guardians constitutionally guaranteed freedoms in our common law system, you know that the system breaks down without judicial independence. Now, judicial independence is sort of hard to define. It doesn't mean freedom to decide cases or issues based on the judges personal preferences. It means that judges must decide issues before them fairly and impartially, based on the law and the Constitution, and without fear of retaliation by the other branches. Now, former Chief Justice bill Rehnquist compared the role of the judges to that of a referee in a basketball game, who was obliged to call a foul against a member of the home team. at a critical moment in the game. He will be soundly booed but he is nonetheless obliged to call it as he saw it, not as the home crowd wants him to call it. And that's not a bad description of what judges sometimes have to do. judicial independence does not happen all by itself. It's tremendously hard to create an easier than most people imagine to damage or destroy. And that's why the Supreme Court building in Washington features a larger than life size statue of the great Chief Justice john Marshall, who spent 35 years trying to nurture a culture where by and large, the political branches, were willing to acquiesce in the judicial branches interpretation of the law and the Constitution. Now, they don't always acquiesce. But fortunately, most of the time politicians do not challenge the courts to enforce their judgments themselves. President Andrew Jackson did in the wake of the Supreme Court's decision in Wurster versus Georgia. Now creating a culture in our early days as a republic, where usually courts judgments are enforced by the other branches of government and titles john Marshall to take his place in the freeze of the great law givers of the world in the Supreme Court court room along with such people as Hammurabi and Groeschel, and Confucius. Now, our judges and our courts have fared far better than those in some other countries such as in Russia, Uganda, Zimbabwe, Ecuador, to name a few. But we have some recent efforts in our own country, to strip courts have jurisdiction over certain types of cases and proposals to impeach federal judges. site foreign court judgments and to strip judges and juries of immunity for their official acts as was proposed in South Dakota, thanks to the efforts of the governor over a beer that was defeated, but they're coming back or to retro actively terminate appellate judges terms of office as was proposed in Colorado, and so on. I mean, you've all seen examples and some of them are pretty much a source of concern. In a recent article in Judah capture to academics, Bruce thyme and Burt newborn one a conservative one, a liberal, issued a joint statement that I rather like they said judicial independence in the United States, strengthens ordered liberty, domestic tranquility, the rule of law and democratic ideals at least in our political culture. It has proved superior to any alternative form of discharging that judicial function that has ever been tried or conceived. It would be folly to squander this priceless constitutional gift to placate the clamorous of political partisans. I thought they put it rather well, but then I happen to agree.

The key to maintaining our system lies in the education of our citizens. And that is where you come in. And that is where I'm why I'm so pleased to be able to have a few words today. You are the elected leaders in our 50 states. And it is up to each state to provide public school education to our young people. And we are not meeting the educational needs. A recent survey by the National Constitution Center shows that fewer American teenagers can identify the three branches of government Then could identify the three stooges. Now I enjoy Larry, moe and curly. But the poll shows an absence of even the most basic knowledge of our national and state governmental structure. Today there are many school districts in our country that do not make civics and government are required high school course. And many who at most offer only a single semester course. Now, the need to educate our youth about our government and how it works is crucial to our future, as states and as a nation, we have to do that. You don't inherit that through the gene. We have to do it. And it's complicated. We don't have a simple system of government. And in my view, civics education must be made a requirement and we have to teach it in more and more Active ways. Students should be encouraged to explore issues like separation of powers and federalism by having debates, mock trials and personal engagement in student government in various forms. And I think we should capitalize on the computer proficiency of today's students. Many states provide access to computers to students, certainly in high school, and internet based learning environments offer an opportunity that will engage the students more than reading some dull textbook. Now with the participation of Arizona State University in my home state and Georgetown University in DC, I am actively engaged in developing a computer based course on our courts, and it's aimed at seventh eighth and ninth graders. So maybe we Capture middle school and startup I school with something that will be so interesting and funding us that the students will absolutely want to sit down and work with it. And I hope that all of you will help in the efforts to preserve the intent of the framers of our fabulous constitution. I hope you will work in your own ways to protect judicial independence, and to educate every generation of students about why we need judicial independence and what it is courts do. And there's another very important issue affecting the courts that I care a lot about, and that's how we select judges. And as you well know, the 50 states have many different ways of judicial selection, some of them much better than others in my opinion, and to start that discussion is Tom Phillips who himself was a state court judge? I was too. And when I first became a state court judge, I became a trial court judge and I had to run in a contested partisan election. I thought it was a ghastly way to pick a judge, I won. And I could have continued to win. But instead, I ended up in the state legislature and I led the effort in Arizona to go to a merit selection system, at least for appellate courts. And we have done that, and I am so proud of the judicial system in that state today. But I think that Tom Phillips is going to talk a little bit about that. And then I hope there'll be some questions and we can have a discussion. Thanks for letting me--. [APPLAUSE]

Janet Napolitano
As to merit selection, I have to point out that my last appointment to the Arizona Supreme Court was actually one of justice O'Connor's law clerks. So we know how that works. Tom Phillips is the retired Chief Justice of the Supreme Court of Texas having spent nearly a quarter century on the bench after leaving the court. He was a distinguished visiting professor at South Texas College of Law in Houston, and the dead man School of Law as Southern Methodist University in Dallas. In 2005, he joined the Austin office of the law firm of Baker bots. Justice Philips.

Tom Phillips
Thank you, Governor. It's a great honor for me to be here to visit for a few minutes with such a distinguished group about an issue that remains very important to me and to the lawyers and judges of America. I also am here to talk about judicial independence, why we need it, how we have preserved it for two centuries. Why it is under threat today, and what I hope the governors of the 50 states will do to support and strengthen it. Why should a democracy remain committed to this process of judicial independence that often leads to a clash with the people's rights to govern themselves. as Justice Scalia has noted, the political branches represent the people while the judges represent the law, which often requires them to rule against the people. The simple reason why a democracy needs this system is that the democratic branches alone cannot guarantee freedom and security. Without the rule of law and strong institutions, including judges to enforce the rule of law. electoral winners have a nasty habit trampling on the rights of their vanquished opponents and democracy alone certainly cannot ensure economic progress. There is not capital investment in any society, where contracts are not fairly enforced, and government expropriations are not tightly regulated. Thus, in the words of justice Brar, there is a movement almost worldwide towards a realization that people's liberty and prosperity depends in part upon strong judicial institutions. Of course, an independent judiciary cannot fulfill this role without good judges. And it has never been easy to find men and women who have both the intellect and the experience to understand and apply the law and also the temperament and humility to recognize and honor the limitations on that power. Some of the newly emerging countries finding So difficult to choose judges that they import retire judges places upon its own members. And I was just wondering if either of you would care to comment in a little bit more detail on those checks and balances that are currently in place on a single individual that may draw the ire or the attention of the public?

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
This is not in directly, perhaps, to your question, but it seems to me that it cost your state a great deal of money, in effect, to oppose this ballot proposition. And Arizona, like your state has measures on the ballot initiative. It's fairly common in the West. And some of the proposals can be pretty nutty. And they're awfully easy to get on the ballot. And I think probably some examination In states that have initiative about how the requirements can be tightened a little bit would make sense. I don't think the voters necessarily want to give it up. But I think maybe it ought to be a little tighter than it was in South Dakota and probably than it is in my home state of Arizona now. Well, I think I'll leave it there.

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Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
There is no doubt that the framers of our constitution intended to leave in place the separate state structures of government. As the fundamental regulators of what goes on within their territory, and that was clear throughout the process of the framing of the Constitution and its adoption. That said, the trend for over 200 years now has been for the National Congress and government to take over traditional activities, state government, and that trend has seemed almost on an inexorable track. And in my close to 25 years at the Supreme Court, I worked pretty hard on a number of cases where I tried to preserve what I thought was a proper role for the states and it was upheld going So far as you're dealing with the Commerce Clause power of the federal government, the most recent case, decided by the court and while I was still sitting, that, again, went against the state's power was the medical marijuana case out of California, where again, the court said well look dead skin, regulate it and prohibit the states from eating make making a medical exception. And I thought that was on the wrong track. The court has been rather divided on the subject of federalism questions, as you all know. And I think Chief Justice Rehnquist and several of us tried pretty hard during the years to preserve a road for this states. But as you pointed out, it's been an uphill battle, because the trend is certainly the other way and I don't think you should withdraw from a Position of asserting the proper role of the states and our system because the states are closer to the people. And it is absolutely true that it helps our nation when states themselves are experiment with ways to deal with national problems such as health care, we have not done much at the national level on health care and nobody can figure out how to do it. Some of the states have been rather gracious, I think Michigan is made an effort California is making an effort and others are in this direction. And I hope states will point the way for how we should do it. So don't give up. Don't stop raising the issue. I think it's certainly in keeping with the intent of the framers and I hope with long term interests of our nation.

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Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
There's probably no doubt that greater media exposure of judicial decisions that some people might say, at least on the face of it, "Wow, how did they ever decide that?" contributes to a degree of lack of respect for their judiciary. And I suppose it doesn't help a lot to have TV programs, so many of them devoted to watching judges in action, so to speak some successfully and some nuts. I don't think that's how either, and that's probably why in the past, judges have not chosen to step out of their traditional role on the bench to take public positions on things. But it certainly seems to be a time in our history when we better do some of that and just try to ensure that the public is aware of the public role of the courts and the contribution that a sound judicial system makes to our form of representative government.

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Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
On the appointment process in a state where the governor has a point of power, different presidents have used different techniques to find names of qualified people to appoint. And you're just going to have to experiment and see what works for you. When I was nominated by President Reagan in 1981, he had made a decision to let suggestions flow through his attorney general. And William French Smith at that time was the Attorney General and he told me the first thing he started to do when he sat down in the Department of Justice was to keep a little lyst handwritten Telephone in his office of possible names in case there was a vacancy. And sure enough, there was one. And that's not a very scientific way to get it. But I'm sure you can find trusted advisors who will help you because it does make a huge difference when appointments are made of people who are qualified. Now, I might also suggest that you look for a few Cowgirls now but not every state has those in abundance. Maine probably doesn't have as many as Arizona.

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Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
I just had one additional thought, and that is that most circuit courts, I think, have tried to establish a formal mechanism to involve interaction with the state courts as well. I was the circuit justice in the night, which is the biggest circuit. And there was a mechanism within the circuit to involve representatives of the state courts throughout the year. And they would have meetings and they would talk about issues of conflict. And one of the worst when I first took office was the unhappy relationship that evolved by virtue of habeas corpus review in federal court of criminal cases decided and state courts. But that's changed over the years with action of Congress, but I think many of the circuits have formal relations and you might check with your circuit or your in the first and see what the mechanism is for that because it can work with effectively.