|Justice Sandra Day O'Connor|
A couple of weeks ago, Griff and I went to see retired Supreme Court Justice Sandra Day O’Connor talk at Elmhurst College. Much to our pleasure, she was as concise as Neil DeGrasse Tyson was long-winded. (To Griffin’s great pleasure, she wouldn’t even partake in a question and answer session!) I have seen Sandra Day O’Connor interviewed on The Daily Show, and I have heard her interviewed on Fresh Air. Griffin’s dad has attended luncheons with her, as have some family friends of my parent’s. Each time I saw her interviewed, or heard anecdotes about spending time with her, one word continually came up, “feisty”. She refuses to be pigeon-holed as the “swing vote”, and stands up for what she believes with great conviction.
When Sandra Day O’Connor graduated from Stanford Law School, forty law firms refused to interview her for a position because she was a woman. In response to that, she worked without pay as a deputy county attorney, sharing an office with the receptionist. It speaks volumes about her gumption, work ethic, and ability that she went on to work on the Supreme Court, and that the law school at Arizona State is now named after her.
One of my favorite parts about SDOC is that she retired from the Supreme Court to care for her husband, who was suffering from Alzheimer’s disease. Here was a woman who had accomplished so much in her professional life, retiring despite her ability to go on, to care for the man she loved. It’s a healthy reminder of what’s important in life.
Much about her demeanor cracked me up. Both she and Joyce Carol Oates were what I have been calling “adorably frail”, and both also carried a purse. For some reason, that really stuck out to me. It was like a subtle reminder that despite her grandiose influence, she still wanted to make sure that her chapstick and Kleenex were handy. (Coincidentally, in the Sunday NYT a few days later, there was an article about women politicians, the purses they carry, and what they signify. My favorite part was when they talked about how some male aides have to carry around the female politician’s purses. That feels like a really nice turn in the women’s movement!)
For the introduction, Elmhurst College tried a new approach by showing a video of students talking about what values mean to them. While well done, it was boring and seemed like a waste of time. Much to my enjoyment, Sandra Day O’Connor seemed to feel the same way. I don’t think she even looked at the screen!
Finally, as she took the lectern, there was heavy applause from the audience. While trying to quiet everyone down so she could begin, she squawked out, “you’re not even going to like me at the end of this!” Not true, Sandra Day. I liked you even more.
The theme was clear, her message spot-on, and the solution was evident. Very enjoyable.
(picture from Parade.com)
1. Introduction by Rudolph Schade Jr. (Rudy)
a. “I feel like a duck – I just got caught in the rain while walking to my car to get an umbrella!”
b. Jose Vargas, a Pulitzer Prize winner, who learned at age 19 that he’s an undocumented immigrant, spoke at Elmhurst College two months ago. He was blown away that he was then standing where SDOC would be standing in two short months.
c. How does law help frame a society? By examining, and setting an example.
d. SDOC was confirmed 99-0 (“Can you imagine that happening today?”)
e. Jeffrey Toobin spoke at Elmhurst College and said, “There’s only one thing you need to know about the Supreme Court, and that is that right now, there are 5 Republicans and 4 Democrats”. RS Jr. doesn’t agree with that. The implication there is that philosophy beats law, and he doesn’t think that’s the case. SDOC was not a swing vote. She decided cases based on the constitution.
f. SDOC built a reputation as a careful studier of the law. She is an outspoken advocate of an independent judicial branch and of the importance of teaching civics to our students.
g. The law school at Arizona State is named after her.
i. She entered the stage to roaring applause, and as she tried to quiet the crowd, she shouted, “you won’t even like me at the end!”
ii. Considers herself a cowgirl from southern Arizona
iii. Frequently declines similar invitations to talk about the law and society
iv. The role of the judge is to take each legal issue as it comes, and do your best to figure out the right result each time. This makes for good law, but boring speeches.
b. Judicial Impartiality and Independence
i. Things might not be as good now as they once were, but the judiciary has always been held in pretty high regard because our constitution and community have worked to protect the impartiality that has really set our country apart. Our model has been copied around the world. How did we create and maintain that? How are we falling short?
ii. Today, there are many who see judges as politicians in robes. Some states elect their judges. This threatens judicial independence. Many Americans want a judiciary that acts as a reflection of public opinion, but it should not.
iii. In order to preserve an impartial and independent judiciary, we need
1. Individual ethic of impartiality amongst judges. They need to keep a distance from political parties and assert their independence.
2. Structure – we should create an independent system of judicial systems (the state level could use help)
3. Collective notion for the impartiality and independence of the courts. Citizens should understand and appreciate it.
iv. We will only maintain the independence if the political community acknowledges that you don’t base your opinion of a judge off of how often you agree with them.
3. Individual Ethic
a. Judges should try to be fair and impartial arbiters.
b. Judges are forced to act as their own police force (knowing when to recuse themselves)
i. The Constitution requires all federal judges to take an oath to defend the founding document. (It’s the same for all federal employees and officers)
ii. There is also a special oath for judges – to administer justice without respect to persons – to be fair and equal to the poor and rich. Complete impartiality.
iii. Those promises are easier made than kept. It’s not always clear when you have to recuse yourself. Thurgood Marshall felt he had to recuse himself from cases involving the NAACP for many years, until he felt enough time had passed that he could be seen as an impartial arbiter.
c. The best a judge can do is turn a high powered lens on themselves. Err on the side of caution
d. The judge should avoid personal bias and a closing of one’s own mind. Of course they have opinions, but they also have an obligation to expose themselves to both sides.
i. SDOC tried to surround herself with various employees with various views and cultures. This allowed her to be sure she was getting a mix of good advice.
e. Even when judges are at their best, we need a system to ensure this.
4. Good System
a. Massey Coal Company had a $50M suit against them that had wound its way to the state’s Supreme Court. In the Supreme Court election, Massey donated $3M to a candidate, the largest donation in the campaign, and he won! He then went on to cast the deciding vote that cleared Massey of any wrongdoing, saving them, in essence, $47M. Money well spent for Massey, but the judge should have recused himself.
b. On the other hand, a judge “does not lightly give up his job”, and his recusal would have resulted in a tie.
c. It could be that the donation didn’t impact him.
d. Judicial impartiality can’t depend alone on self-administration.
e. The Federal system includes
i. Life tenure for federal judges
ii. A law against reduction in judicial pay (determined by the congress)
iii. Nomination by the President and confirmation by the Senate
iv. Therefore, their only allegiance is to the constitution.
f. Many states, however, have judicial elections, and especially now (the implication being now that Citizens United has passed), this is problematic.
i. In 2007 in Illinois, there was a $9M donation to a candidate from a company who had a pending case
ii. “you can’t trust the motives of every political ad you seen on TV…or the content!...”
iii. “In my humble opinion, judicial elections do not lead to good results.”
iv. Recent studies show that 70% of the public thinks that judges are indeed influenced by political donation.
v. SDOC would like to see states move to the federal process of appointing judges. Without it, “faith in even the most unscrupulous judges is eroded.”
5. Ethos of Judicial Independence
a. Requires judges to follow the law as it is rather than they (or the public) think it should me
b. Makes judges unpopular because you’re constantly disappointing someone.
c. Great judges are those who disappoint most of the people most of the time.
d. Judges are people and they make mistakes.
e. SDO worries about the conversation. It seems to be more and more politicized
i. We want judges to pay attention to the legal arguments rather than the outcome.
f. The long-term solution lies in the education of children, voters, policy makers, lawyers – they all should be taught the importance of judicial independence.
g. We need real civics classes back. “It has to be learned! It’s not passed down in the gene pool!”
h. 2/3 of Americans can name a judge on American Idol. Only 15% can name the Chief Justice.
i. ¾ can name the Three Stooges, while that same 75% don’t know the difference between a judge and a legislator.
j. 1/3 of 8th graders couldn’t name the historical point of the Declaration of Independence, “and it’s right there in the title!”
k. People learn from acerbic TV ads
l. Our nation’s schools are failing to teach this. Civics education was the original reason for our public education system.
m. We need to remind our legislative branch that we need help here.
i. SDOC has started icivics.org (“you know, we have iPads and iPhones, and iEverything, and now we have iCivics”)
ii. There are lesson plans, games, networking tools
iii. It’s fun and free
iv. Feedback has been positive
v. Over 5M iCivics games have been played.
6. Celebrate our system of government and make it work! “It is up to we citizens and we can do a better job.”