By Justice Sandra Day O'Connor

Testimony to United States Senate Judiciary Committee on the importance of teaching civics in school

July 25, 2012

Testimony to United States Senate Judiciary Committee on the importance of teaching civics in school
ITEM DETAILS
Type: Testimony
Location: United States Senate Judiciary Committee

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Transcript

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Sandra Day O'Connor
I think it would be instructive for young people to have a chance to do that.

Thank you, Senator Leahy. I will welcome questions that you and the other senator has to direct a conversation. You brought up the subject of iCivics. It is a website that relies on games to teach young people how government works. We have a wonderful group of skilled teachers of middle and high school levels who have helped advise us on the topics that we should cover on the next iCivics game and so forth. They have helped us in developing the website. We have attempted to develop games that enhance the ability and teachers to teach young people how our government works. I went to school and a long time ago. I went to school in el paso, texas. My parents lived in a ranch that was too remote for school. I lived with my grandparents during the school term in el paso and went to school there. I remember having a lot of civics class is based on texas history. I got pretty sick and tired of it. I thought it was miserable. I hope today's civics teachers will be able to make it more interesting than I found it in those days. That is one of the reasons for developing the iCivics site a series of games that young people can play. This system has worked very effectively. Recently in texas, there has to do a study of iCivics through the education department to see the text of this to see if it is effective the students. The study produced exceedingly encouraging results. I was thrilled to get the report about what they found from the use by students of that website and the games in it. I am encouraged by it. It shows me that young people need to know how our government works and how they are part of it. It is self-evident. In the school's today, it is not widely taught. Young people want to know how to be effective. They want to know their roles as citizens and how to make things happen at the local level, the state level, and the national level. iCivics tries to do that and help young people develop their own proposals and learn in the process about how government works. I think the effort is effective and appreciated. I have chair people in all 50 states, including in vermont. It is doing well, I think. I welcome feedback from you and others. Your constituents on how you all think how we can improve on how we are doing. Schools can use the program at no charge. That is important in today's circumstances where money is not often available for schools to develop new programs. But I hope that your constituents will report back to you occasionally on the effectiveness of iCivics and keep you informed. I welcome your suggestions as you have them when we go forward. I hope I will hear back from you if you have any suggestions for us.

Patrick leahy
Justice O'Connor, you have commented on how the tax injustices can be applied to judicial independence. -- attacks on justices can impact judicial independence.

Sandra Day O'Connor
It is unfortunate. Comments like that demonstrate only too will the lack of understanding that some of our citizens have about the role of the judicial branch. I think the framers of our federal constitution did a great job in understanding themselves that the judicial branch needed to be able to make independent decisions on the legitimacy and the lawfulness of actions at the state and federal level when they are properly raised in court. The framers did a really good job in that regard. It is not every state that has followed the federal model. Under the federal model, judges are not elected. They are nominated by the president and confirmed by the senate. In many states, that is the process, but not all. Many states have popular election of judges. The result of that has been the need for candidates to raise money for their election campaign. I think that has a corrupting influence on the selection of judges. It is disappointing to me to see as many states as there are if using judicial elections. I hope more states will follow the federal model and have a system of judicial appointments. Many of the states that have these have a process of confirmation or selection that involves public input. That is fine. But I think the federal model has been a good one for the states.

Senator Patrick Leahy
I agree. That is a model that we follow in vermont. It works very well. It has taken politics completely out of our judicial system. We recently had a new federal district judge. Her name was recommended from our bipartisan screening board. I recommend her name to the president who. Interesting enough -- I am recommended her name to the president. Interesting enough, to this day I have do not have the slightest idea of where the politics are. While a judge might be and should be appreciative, as you were up president reagan possible nomination, your allegiance is to the law and not the president who nominated you.

Sandra Day O'Connor
I think the allegiance of every federal judge is to the constitution of the united states and the laws that are adopted by Congress. And that allegiance, I think, enables judges to resolve the cases. They rely on presidents. We follow the British model of years ago in which a case resolved by the nation's highest court, the principles established will be followed by the lower courts in the future until the courts to change the models ordered the rule. I think the system works quite well. It's served us well in the u.S. Through the years, I think. We have a good federal court system over all, in my opinion.

Senator Patrick Leahy
Let me ask you about that. During the primaries earlier this year, there were a couple of candidates who said that those of us in political office should be more involved in the court. One even suggested eliminating the circuit court of appeals. He disagreed with one of the opinions. We have heard others say that we have the power and the courts in the Supreme Court that any time we have a disagreement, we would have a hearing and we move that. I remember standing side by side with Barry Goldwater on the floor to fight an effort by one senator. Of course it would be a bad precedent-- do you agree with that?

Sandra Day O'Connor
I certainly do. I think our system is a good one. Sometimes a court, a federal court, for example, will resolve simple issue in a way that not everyone likes. Certainly in a body like that u.S. Senate comprised of republicans and democrats and occasionally an independent, you will have some disagreement among members of this very body about whether a particular ruling of a federal court is correct or the best ruling that the court could have made. Obviously there will be differences of opinion. Under our system, and issue that is divisive will sometimes come up again in the courts in a different posture. You have related issues. Over time, the courts themselves will have a chance to review the president's and the effective -- the precedence and effectiveness. The system has served the system quite well, I think.

Senator Patrick Leahy
One last question. Let me ask you this -- with all this question about diversity -- you were the first woman to serve on the Supreme Court. I praised president reagan at the time for that. Diversity is more than just that. Diversity of backgrounds. You have had a lot of experience. Today diversity in court, we have some wonderful people. They come from the same backgrounds. Do you think we should be pushing for more diversity?

Sandra Day O'Connor
Well I think that over the nation's history, we have had a very diverse group of judges on the court. -- nation's history, we have had a very diverse group of judges on the court. People who have served on the federal district courts and appeals -- that is not a requirement. The president is free to choose the two people with very different backgrounds. There is no requirement that the person appointed be a lawyer. I think it would have it pretty hard time if they do not have legal training, but there is no requirement in the selection of a justice. In the first 100 years, I think we have a lot more diversity on the court.

Senator Patrick Leahy
Thank you very much. Senator Grassley.

Senator Chuck Grassley
You did bring up the election of state justices. Is what you said leaning more towards the federal system than what the states do?

Sandra Day O'Connor
Well, many states still have appointment System for state judges. It includes a system where after many years on the bench, the judge goes on the ballot in the state where voters can decide whether to retain the judge, yes or no. That is the system we have in Arizona. That is the system that I helped develop in my prior years in Arizona. Voters have a chance to look at the record of the judge and say, do you want to keep this judge? Yes or no? Not many have been turned out of office in that system. I think it is a perfectly balanced system for a state to adopt. The federal system does not have that. You did not have a system where after a few years on the Supreme Court of the voters in America can have a chance to say whether justice should be retained or not. I think the federal system has worked very well. I am not proposing any change. But those states to use retention elections have had pretty good luck with them. Very few people are turned out.

Senator Chuck Grassley
I want to refer to an article from 2008 that you wrote, "I regret the threats to judicial independence seemed to be recurring with a record frequency. For their decisions on various issues. " I do not find fault with what you wrote, but I want to explore with you some situations and see whether they could pose threats to judicial independence. Could judicial independence be threatened if the state had a state of the union address in front of justices who were not in a position to respond and criticized Supreme Court decisions?

Sandra Day O'Connor
I do not know if it threatens judicial independence. It is not something as citizen expects to here in the president of's state of union message -- president's state of union message. It is unusual.

Senator Chuck Grassley
Another question -- could judicial independence be jeopardized if the president misstates a doctrine of judicial review and claim a particular ruling would harm the court's legitimacy and claim that a particular justice's legacy would be tainted unless he decides the case in a manner that the president presumably wants?

Sandra Day O'Connor
If there is a pending decision at the Supreme Court and a president were to express views along those lines, it would be surprising. It is unusual. To speak out at some higher political level either at the state and national level about a decision on a pending case. I guess it will happen, but it is not what we expect and it is not ideal.

Senator Chuck Grassley
Lastly, could traditional independence be jeopardized if a justice decides it is in a different way than his original and you do to presidential pressure or that the court would sustain political damage otherwise?

Sandra Day O'Connor
I am sure that many things go through the minds of a justice in a pending case were a tough issue has to be decided. The justice may learn things that cause the justice to shift the tentative outcome in some fashion. You can continue to learn up until you have signed on to some decision. I would not preclude that. I think it is always possible. It is not often that it occurs.

Senator Chuck Grassley
Since I still have time, what would you think are the most important elements of the court system that students should learn?

Sandra Day O'Connor
The system needs to give the public some assurance of the independence of the judge making the decision. The notion that the judge should base the decision on the law and the judge's understanding of the constitution and the laws passed by Congress, and to do so fairly and independently. That is the concept. That is what I think the average citizen should be able to understand is the concept and trust that is what is going to happen.

Senator Chuck Grassley
I'm going to make a comment. I do not know where you are on this. The chairman and I promote cameras in the courtroom. We do it because we think there is a lot of mystery about the judicial branch of government and the education of the people by having more people have access to the court room would be a very good thing to do. I would like to take my last minute to advocate for cameras in the courtroom including the Supreme Court.

Senator Patrick Leahy
If you want to take more than a minute to advocate for that, I am all for it.

Senator Chuck Grassley
I'm done, I'll yield back my time.

Senator Patrick Leahy
Did you want to say anything to that, justice?

Sandra Day O'Connor
I'm happy to.

Senator Chuck Grassley
Only speak if you speak in favor of it. [laughter]

Sandra Day O'Connor
Well then I'd better keep my mouth shut. [laughter]

Senator Patrick Leahy
Justice O'Connor, you and I have known each other for a long time and it is refreshing having you here.

Senator Chuck Grassley
I would respect your view anyway, I want you to know that.

...

Senator Amy Klobuchar
I wanted to start with that. Where did you think the reason is that we are seeing such a decline in civics education? How do we improve it?

Sandra Day O'Connor
Frankly, part of it is because we have learned to our dismay that our American students when tested on math and science are not doing as well students of an equivalent age for many other countries. I think that distresses us because our country has been pretty advanced in math and science. We do not want to see our students lag behind. We need an effort to increase education in those areas. It has resulted in the dropping of civics courses. There are only so many hours in the day and schools have to concentrate on something. They might do more math and science and less on civics. I would like to be sure that we continue to teach civics distance. My own concentration has been at the middle school -- teach civics to students. My own experience at the middle school -- I think it is important. Students want to know how government works, how their city, county, state, nation works. The want to be a part of it. The iCivics program teach by way of games. The young people play a role and they learn it. It is very effective. In many cases, it is being used in 50 states. Students using it can learn how to take a project and get it through some city council level or some kind of county level or even a state legislative level. It is great when they do. The earlier you learn how government works and how you can be part of it, the better it is.

Senator Amy Klobuchar
I agree. My daughter is 17. One of my favorite project she did is that she interviewed Senator Murkowski for an hour. I think it was about a 50-page power point presentation for her class.

Sandra Day O'Connor
That is great.

Senator Amy Klobuchar
It is very good. I come from a state where we have very high voter turn out. It is such a value in our state to get involved. I think it is a major problem of the distance the public feels from the government. As a former prosecutor, we would find that it was not always the result in a case that matters to people, but how they are treated through the system. If the understand what is going on, they trust the system. We did a survey on this. If you're not feeling them in on what happened and they have no understanding, they feel mistreated by the system. I appreciate your emphasis. I look forward to working with you on this. I have some other questions. One is on a Supreme Court nomination. The, what do you think we can do to improve them? I think there are still important for the public. What do you think could be done better?

Sandra Day O'Connor
It is miserable from the standpoint of the nominee.

Senator Amy Klobuchar
Really?

Sandra Day O'Connor
Well, it's horrible! But from the standpoint of the public, it's perhaps the only chance the public will have to see a nominee and have some appreciation of their style and their manner and how well they answer the questions or how poorly. And to have some understanding of the process. It really does matter to the public. I think the system in that regard works fairly well.

Senator Amy Klobuchar
What did think of the nominee asking questions as? To me, I know people want to have a chance, but it seems very political in terms of it.

Sandra Day O'Connor
Well it is, but that's the nature of the political house and senate. You are the political branch of government here.

Senator Amy Klobuchar
My favorite one was one of the people that came on. He had known her when she was 12. What was she like when she was 12? He said, she was very judicious. [laughter] maybe we could change that part of the process. It seemed very pro and con.

Sandra Day O'Connor
It would be hard to do because you have a vote at the end. The members want to express their views. That's hard to change, I'm sure.

Senator Amy Klobuchar
One last thing. I know you have been a vocal advocate on the problems with judicial elections. And we have seen elections in recent years. Are there any reforms that you can think of that can be made short of ending the elections?

Sandra Day O'Connor
This is really important. I think the federal model of appointment and no election of the federal judges is the best model. And some states have followed it, but not all. And a number of states, they still have a totally elective process for selecting judges. I think that's very unfortunate. Because it means raising money for campaigns. And there's just no way to be comfortable with that in the judicial scheme of things. It is not good to have judges that you know who have had to take campaign contributions from certain interests. It's a worry. So I hope that more and more states will follow the federal model of not having judicial elections. Many states, in fact my own, have retention elections periodically. So that after a period of years the judge's name goes on the ballot. And they, the voters can vote whether to keep the judge or not. They're not running against anyone. It doesn't require massive input of funds. And that seems to have worked fairly well. Not many judges are removed in that process. But it's one way of having the voters involved to some degree. And it seems to have worked to some extent.

Senator Amy Klobuchar
Very good. Thank you for being here.

Sandra Day O'Connor
I am so glad to be here.

...

Senator Mike Lee
I remember when you would ask my father questions from behind the bench. I never thought, I never imagined as a ten year old I would be sitting behind a different bench and asking you questions.

Sandra Day O'Connor
Your father was marvelous, by the way. He was such a good lawyer. He really did a great job. And we miss him.

Senator Mike Lee
Thank you.

Senator Patrick Leahy
And I agree with that, mike, I want you to know.

Sandra Day O'Connor
He was fabulous.

Senator Mike Lee
We miss him. He was a proud arizonan, as you know.

Sandra Day O'Connor
Yes, he was. And I used to see him when I was in the state senate and in committee hearings as you're sitting here. He would come in and present material on various issues affecting the state. And he was effective in that regard as well. He really was an amazing man.

Senator Mike Lee
That is good to know. Thank you. I wanted to follow up with you about a comment you made about retention elections.

You indicated that the impact -- the tendency to politicize the state judicial system that those elections would have is limited that they tend not to result in the removal of the judicial officer.

Sandra Day O'Connor
Not very often.

Senator Mike Lee
Not on very many occasions. Is there a possibility that they might nonetheless have some politicizing effect? Just the in terrorem effect of the retention election. Is there a chance that that might affect the judge's decision-making process?

Sandra Day O'Connor
Well, I guess there is always a chance. I prefer a system that does not have elections at all, but many states have the retention election. At a minimum, it gives the voters the opportunity to say, yes, I am satisfied with this- and I vote to retain this judge, or the reverse. And not many are removed by retention election.

Senator Mike Lee
And I guess the one critical difference between the retention election and another type of election is that it is not contested.

Sandra Day O'Connor
That's right. There is not a lot of campaign contribution being raised.

Senator Mike Lee
In some cases not any, in some states.

Sandra Day O'Connor
Right. In most cases, I think, not any. But it's possible.

Senator Mike Lee
So it really is meaningfully different. It typically requires something of a supermajority vote to oust a jurist.

Sandra Day O'Connor
It depends on the state.

Senator Mike Lee
That is right. What about the judicial nominating commissions that are within states? I believe you have been an advocate in what has sometimes been referred to as the Missouri approach. Members meet and give advice to the governor on whom to appoint. Do you support that model?

Sandra Day O'Connor
Yes, I do. It is a model that I help support in my home state of arizona. It has worked well. I think it is a pretty decent model.

Senator Mike Lee
Is there an argument to be made that elections like that might insulate the governor from the political process in a way that is not helpful and less accountable to the voters?

Sandra Day O'Connor
Well I haven't seen it that way. Because the governor needs to make the appointment and say, yes, I will consider these names and here's who I pick. I think it has worked out all right.

Senator Mike Lee
Yes. In my state, I believe the governor has the option to reject entire slate.

Sandra Day O'Connor
That is true in my state, too. If the governor believes he did not get any good names, he can reject the whole batch.

Senator Mike Lee
I think I heard you say a minute ago that you think the federal system is the best model. Just for the federal or for our --

Sandra Day O'Connor
That is up to each state to decide on the level of voter participation that you need to have to make this system work for your state. There are some mixed models that most
states seem to have where voters have a retention election. We do not have that at the federal level.

Senator Mike Lee
Right.

Sandra Day O'Connor
But if the state thinks it helps, fine. It does not seem to do much damage. It is ok. If the voters in a state approve of that, I think it is all right.

Senator Mike Lee
Ok. But you are just fine with the federal model the way it is, you're not advocating a change?

Sandra Day O'Connor
That is correct.

Senator Mike Lee
When a state system gets really bad -- I've long shared your concerns, by the way, of the states that have contested partisan elections to fill the vacancies at the onset. I think it is difficult to reconcile that with the need for judicial independence. When you have a state system that follows that approach and a state system that apparently is inappropriately influenced from time to time in a destructive way, do you think there is ever a reason for the federal government to consider intervening? Or is it up to the state?

Sandra Day O'Connor
Well I think it's up to the state. But certainly, most states, if you are going to consider something that affects the state at large, is going to have an opportunity to hear from voters on the proposals and have some debate at the state level. That is good. You'll hear all this if you do.

Senator Mike Lee
But you would not regard that as a due process concern of the sort that would warrant federal legislation requiring states to do it one way or the other?

Sandra Day O'Connor
No, I do not think so. We have left the states free to choose their own method of judicial selection.

Senator Mike Lee
Right. I certainly agree with that. Finally, you were a long time advocate of federalism while on the Supreme Court. A strong believer in the fact that there is a difference between state power and federal power.

Sandra Day O'Connor
Yes.

Senator Mike Lee
And we have to respect that for our system to operate correctly. What would you advise to federal lawmakers about how best to protect that system? Not to federal jurists but to federal lawmakers about how they can protect the federal system and the distribution of power between state government on one hand and the federal on the other?

Sandra Day O'Connor
Well, all members of this body, the Senate, come from one or the other of the states. You're all representative of your states. And you've had experience in your own state on what the voters care about in terms of judicial election. I am sure all of you have had that. So I do not think I need to give any advice on the topic, you're going to have plenty of it at the state level is my guess.

Senator Mike Lee
We do get advice from time to time.

Sandra Day O'Connor
All right.

...

Senator Richard Blumenthal
Thank you, Mr. Chairman. And as a former attorney general for some 20 years, I am a very strong believer in federalism. And I would agree with Senator Lee that we get advice, but I would also suggest that we need advice. Any so ideas you have on that score -- but also, I want to focus on a point Senator Grassley made in his opening remarks, which is the apparent decline in public approval, poll numbers. We all dismiss poll numbers when the results don't suit us, but they still are reflective of something happening. The reason we are here today, in a sense, is because of the need to educate the public about what you did for so many years with such distinction and dedication in serving on the United States Supreme Court. And we all have a reverence if not respect for the institution and the need to preserve the legitimacy and credibility of the institution. I wonder if you can give us your assessment as to why there has been this decline in the public's approval or respect for the institution?

Sandra Day O'Connor
I wish I knew. I didn't conduct the polls so I'm not sure. I have read some articles about the polling that took place and the argument being made that perhaps the decline -- the percentage of U.S. voter approval of the Supreme Court historically has been higher, generally, than that of the other two branches. In very recent months, it seems to have declined rather substantially. And the suggestion has been made that that began with the Bush-Gore decision. I have no idea if that's correct in terms of the assessment of the polling. It is conceivable because that was a very tense case that involved the holdovers from a very close election. And people would probably feel deeply about it and maybe be concerned. So perhaps that was the tipping point for a decline. I hope the decline will be temporary. Because the Supreme Court functions extremely well. I think as we look worldwide, we can be proud of our court. It has served the nation well, and I think by and large is a marvelous institution. So I would think over time opinion would turn upward again. I certainly hope so. And I would expect that.

Senator Richard Blumenthal
And I would agree with you certainly in the assessment of the Supreme Court's work and in the hope that public approval will increase over time. As somebody who has done arguments in the court and has been a law clerk in the work and watch and observe the court, I think the public often simply does not see the work that the court does. By and large it, it is day to day work that is much more mundane and complicated. I wonder whether increasing public access to the courts --

Sandra Day O'Connor
Like cameras in the Court?

Senator Richard Blumenthal
I know you were asked about that. [laughter]

Sandra Day O'Connor
I do think it is important to remember every word said in that court is transcribed and available that same night. And if anybody wants to see and read what was said, there it is in black and white. There it is, you've got it, in hand. So it is not that there is a lack of ability to know what is going on. It's there. It is just, do we have to have it on camera and on the television, or is it enough that it can be available that very night and you can read it? I guess that, it boils down to that. I'm a reader. So don't ask me, probably. I tend to read more than I watch television.

Senator Richard Blumenthal
Well I'm not going to comment on reading of versus television. Everyone has his or her own style of learning. In light of the prevalence of television and the the impact, the powerful effect, the visual portrayal, I wonder whether you think that it might be worth considering opening at least certain arguments to a broader view and, if not that, whether there is some way of increasing the potential attendance at Supreme Court arguments? After all, the numbers of people permitted in the courtroom is very small compared to the --

Sandra Day O'Connor
It is limited because the courtroom is not that large. So you're never going to have a huge crowd that can sit in the courtroom. There are some adjacent chambers where you can hear it as it's argued. But not see it. I guess this is a discussion that's going to continue for a while. You have members of the Court at present who are not at all comfortable with televising the proceedings. I think that if and when a change is made, it probably is more likely to be made when the members of the Court are willing to accept that.

Senator Richard Blumenthal
Some members of the court have sat where you are right now and said, in the fact, and I am taking great license, with their remarks, in effect, "Not over my dead body." That is how he meant they were in opposition to televising the court hearings. I think that, if I may respectfully suggest, you are in a unique position because not only are you a highly respected member, former member of the Court, but you also have the perspective of many years in different branches and at the state level and so forth. So your opinion would carry great weight if and when you are willing to set it forth.

Sandra Day O'Connor
Well, my opinion is there should be general agreement that that's a good move to make. And if there is severe opposition coming from the Court itself, that's a source of concern, I think. It's best if everybody is sort of in sync on that kind of a move.

Senator Richard Blumenthal
I want to thank you for being here today, for honoring us with your presence, and for your many years of extraordinary work for our justice system. My time has expired, but I really think that your presence and your testimony has helped to enhance education.

Sandra Day O'Connor
Thank you, Senator. I have been spending enormous time on my iCivics effort to educate young people on how our government works and how they can be part of it. I will say that I think that the method we are using with the games is extremely effective. We had a test at Baylor University, recently completed a rather extensive test, and they came back with extraordinarily good reviews of the effectiveness, which is encouraging in the extreme. We will continue to develop additional games on somewhat different topics to keep people informed and engaged. And it works with young people. So I'm excited about it. And it would be wonderful if, when you speak to schools in your state, you can encourage them to use it. Because it does work.

Senator Richard Blumenthal
I would be honored and delighted to do it. Very much so. I hope that we can follow up as members of the committee and learn more of the details.

Sandra Day O'Connor
I have managed to keep it free. With today's costs and changing programs, that has been important.

Senator Richard Blumenthal
Free is good.

Sandra Day O'Connor
I think so, too.

Senator Amy Klobuchar
Mr. Chairman, I want to note that one justice who came before this committee, Justice Kagan, said they wanted it televised. So maybe we will see that change you referred to over time. Thank-you.

...

Senator Jeff Sessions
Justice O'Connor, it is great to have you with us. Having traveled around the world quite a bit, I am more convinced of the precious nature of the rule of law in America than I have ever been.

Sandra Day O'Connor
Absolutely, Senator. It matters. And we have been promoting that since the breakup of the Soviet Union. And I think that the American Bar deserves some credit here. When the Soviet Union began to break up, lawyers gathered together and served as unpaid volunteers in many of these countries to help develop judicial systems and the notion of the rule of law and it really has been a good thing.

Senator Jeff Sessions
I couldn't agree more. I would just say, I will -- I remember, after the Iraq invasion, being with General Petraeus in Mosul, he had established a court, found judges, they tried to appoint lawyers and have trials like we do. But the truth is, you know that it takes many years, decades, even centuries to create the kind of legal system we are blessed to have in the united states.

Sandra Day O'Connor
It does. You cannot do it overnight or in a year or even two or three years. It takes long term development.

Senator Jeff Sessions
I am of the view that the court needs to maintain its independence, its attachment from politics, as much as it possibly can. To the extent that justices are concerned, cameras might be load that -- a road that even a little bit and put more political spin on the careful legal work they do -- I support the court in not having cameras in the courtroom live. I would just say that I fundamentally think it is a decision left to the judicial branch, not the legislative branch. I remember being in the chair when Robert Byrd spoke. He would come down on Friday at 11:00 and make speeches pretty often. That was my time to preside. He made a speech about textbooks. He discussed democracy and the republic, and the differences between the two, and how the text books had not properly delineated the difference. His closing line was that it was "touchy, feely twaddle" in our textbooks. The extent to which you are working to help our young people understand this magnificent legal system that we have, I thank you very much. I would pursue this a little further -- to me, the most pernicious thing that could be taught to young people is that the courts are not independent adjudicators of discrete legal problems. But that they are somehow a part of the political process and their rulings are based on political stresses and pressures and views of justices -- and that this could erode the kind of respect that Americans should give to the Court. Is that a concern for you?

Sandra Day O'Connor
Very much so. I agree with you completely. It is best to maintain the independence of the judicial branch. That's what the framers designed. It has worked quite well at the federal level. And we need to try to maintain it at the state level as well. I happen to think that holding judicial elections in states is not the best way to go. That that gets too much political influence in there and campaign contributions. That's dangerous. We don't need to do that.

Senator Jeff Sessions
I can see that concern. I'm not sure I share it, but I certainly understand it. It is a valid concern. The Constitution contemplates that the courts would be independent adjudicators. I was pleased when Justice Roberts referred to it as an independent, neutral umpire, like in the ballgame. The umpire does not take sides but does its best every day to call the balls and strikes. I think that's an image or metaphor that's valid and we should push. There are times when people on both sides think the Court does not do that.

Sandra Day O'Connor
I'm sure.

Jeff Sessions
And they think the court has allowed personal, it is logical, or political insights to impact -- ideological, or political insights to impact decision making. First, would you agree that justices should seek to guard against that and to live within the oath to be a judge under the Constitution and the laws of the United States?

Sandra Day O'Connor
Of course I do, yes I served on that court for 25 years. I entered it without a lot of inside knowledge, but with respect for the structure the framers developed. I left after 25 years with the knowledge and understanding that it works remarkably well along those lines. So I think we've been fortunate.

Senator Jeff Sessions
Well, I think, my personal view is that the great danger to the independence of the American judiciary would be a belief on the part of the American people that it is not adhering to that role, but is using the power to interpret the words of statutes and the Constitution to advance an agenda. That would be a great tragedy if that were to happen, if people were to lose confidence.

Sandra Day O'Connor
Yes, I agree.

Senator Jeff Sessions
And with regards to criticizing the courts, I believe, an American citizen has a right to question the court, but I believe we should do it respectfully.

Sandra Day O'Connor
Yes.

Senator Jeff Sessions
Some of the criticism I have seen from the Congress has been over the top, but I would set that, in my view, if a nominee comes before this judiciary committee for confirmation and the they are not philosophically committed to the limited role of a judge or their record indicates that they are not, I cannot give them that lifetime appointment. That's sort of my standard. In the range of disagreement on how to interpret laws, if you are outside that, if you're not under the Constitution, I should not give you a lifetime appointment. Good people can disagree. Senator Leahy and I agree sometimes, sometimes we don't about where that line should be drawn. I do agree that Congress has a role to try to ensure that the judiciary remains a neutral umpire, would you not agree?

Sandra Day O'Connor
Yes. The Senate plays a key role in the overall process in terms of agreeing at the outset who will be serving and who isn't.

Senator Jeff Sessions
I would conclude by saying how much I appreciate your interest in educating the next generation.

Sandra Day o'Connor
Yes.

Senator Jeff Sessions
Because I am convinced that we are not fully appreciative of the uniqueness of the wonderful legal system we have and how it is unlike almost any nation in the world. It has served us magnificently. It has treated our growth, prosperity, and freedom. If we have misconceptions about how the legal system works, I think it could endanger it. And Mr. Chairman -- thank you for having Justice O'Connor to share her thoughts with us.

Senator Patrick Leahy
Thank you, Senator Sessions. This is now the fourth Supreme Court justice that has come before us. It is partly a educational-- educational thing. The views the here and some other countries are kind of unopened -- I opener. One nation had a very totalitarian former governor and -- a government that moves towards democracy. A group of their leaders came to see me. They said, is it true that in your country sometimes people sue the government? I said, yes, it happens all the time. They said, but is it true that sometimes the government loses? I said, it often happens. They said, well then do you replace the judge? When I explained, it was like the cartoon where a lightbulb goes on. They realized that we really are different. You and the iCivics web site that Senator Sessions and others have talked about it. And the majority of the Supreme Court justices in the game "Supreme Decision" are women.

Sandra Day O'Connor
That's my fault. [laughter]

Senator Patrick Leahy
Listen, my wife's family came from Canada. In Canada, the majority of the Supreme Court are women.

Sandra Day O'Connor
Well the chief justice in Canada is a woman, and they have historically had more women than we have. It wasn't a majority but--

Senator Patrick Leahy
That is right. To what extent do you think diversity on the Court or anywhere in the top of our branches increases public confidence?

Sandra Day O'Connor
I think it does. Our citizens like to look up at the U.S. Senate and see some diverse faces, skin color, etc. up there. And they like that at the judicial level, too. For courts of record that have multiple members. I think it gives the citizens some confidence.

Senator Patrick Leahy
In an interview with Nina Totenberg a few years ago, you noted that statutes and constitutions don't protect judicial independence. People do.

Sandra Day O'Connor
Right.

Senator Patrick Leahy
What people are you referring to?

Sandra Day O'Connor
Well the judges, for one thing, and the voters who in the states put in a system that enables the citizens to have confidence in that system.

Senator Patrick Leahy
Describe the system -- I will describe the system in Vermont. The governor appoints the judges. The legislature votes consent. After a period of years, the legislature has a vote on retention.

Sandra Day O'Connor
Yes.

Senator Patrick Leahy
99 percent of the time they are retained. What do you think of a system like that, where the legislature --

Sandra Day O'Connor
Well, it's one step removed from the public. I guess it can work. If the state's satisfied with it, fine. But, you could set it up that way if you preferred. ButI think most states that have retention elections refer the people to the voters.

Senator Patrick Leahy
But when it is referred to the voters, that would be the time where people start having to raise money for campaigns, is it not?

Sandra Day O'Connor
Well, normally it won't if it's just one name up for retention, without being contested at some level. There'd be no need for campaign money.

Senator Patrick Leahy
That's a good point. Then, a few years ago you interviewed Justice John Paul Stevens. This goes back to some of the questions on the confirmation -- you said that it came out that sometimes the confirmation hearing, you are answering questions and issues come up and you may have a different view at the time the issue comes up. Is that a fact?

Sandra Day O'Connor
Yes that's a fact.

Senator Patrick Leahy
Have you had that happen to you?

Sandra Day O'Connor
I do not remember specifically. Possibly. I do not remember.

Senator Patrick Leahy
Would you agree with me that it would be a mistake in the confirmation process that we should be able to expect that we're going to get a very specific answer on how you will vote on a case five years from now?

Sandra Day O'Connor
Yes. I think that is probably not a very good question to even ask a prospective justice.

Senator Patrick Leahy
But is it valid to ask questions of one's judicial philosophy?

Sandra Day O'Connor
Of course. Absolutely.

Senator Patrick Leahy
And their background?

Sandra Day O'Connor
Absolutely.

...

Senator Patrick Leahy
Would all of the students who are here stand up? I mean, I think this is great.

Sandra Day O'Connor
That's good, yes, you still have a lot who are listening. That's good. [laughter]

Senator Patrick Leahy
Well, Justice O'Connor, I thank you. I thank all of you who are here. But Justice O'Connor, I thank you very much.

Sandra Day O'Connor
Thank you, Senator Leahy and thank you, senators for your interest and presence. And if you have suggestions about iCivics or ways of telling people in your state to use it if you're comfortable doing it, I hope you will. Because I think it will help us.

Senator Patrick Leahy
Well I have some grandchildren who are going to get a chance to--

Sandra Day O'Connor
Good. Alright. I do, too. Thank you.

Senator Patrick Leahy
Thank you, we stand in recess.