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tv   Supreme Court Justice Sandra Day O Connors Legacy  CSPAN  November 6, 2019 8:51am-9:30am EST

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it's under attack in other countries, in other countries that we identify with, today, the uk, for example, and i am wondering what she did concretely and i'm told she was pretty fearless in her foreign
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visits. >> well, when she left the court, the justice said that she felt she had five years to really accomplish something in her post court career. and so at georgetown law school, she started a project that was devoted to two things, civics and the independence of the judiciary. and about civics, she said the practice of democracy is not passed down in the gene pool, but needs to be learned new by each generation. and so we incubated with her what became civics. but because it was called civics, it's called our courts. she felt there was a misunderstanding among young people about the role of judges in democracy. and the two things that came together, the concern about the independence of the courts and about civic education. she felt it was her responsibility to explain to
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young people what the rule was of judges to maintain the rule of law in the democracy. and the education role is something that she did not only in the united states, but aboard as well and she traveled with ted olson who is here, she traveled to asia, she traveled to africa and she met with judges every place that she went and she believed that our judges could be an asset to talk about judicial independence and of course today it may be that there are things that we can learn from judges aboard and i think that she would want to be -- >> you told me she once went toe to toe with some guy in china. >> not in china. it was in bethesda. but it was a judge of the chinese court and she had traveled in china and the judge
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was quite insistent that in china the supreme people's court had the last word and she was equally insistent that the last word lay with the people's congress. and of course she was correct about that. but she was willing to go toe to toe with the professor from the beijing university. >> and yet she said, ruth, that her -- the single decision she regretted was her -- vote that she regretted, was her vote in a case declaring state laws that barred candidates for judicial elections from campaigning about controversial issues that might come before them and that was in 2002. she wasn't a newbie at all. why did she do that? >> i know she regrets that vote. but i think her goal -- she wrote a concurring opinion.
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and the concurring opinion said in essence, states, if you elect judges, you set yourself up for this problem and we shouldn't try to maintain judicial independence by limiting what judges say in elections. and her hope was that judges -- that states would think about this and would move from direct election of judges to merit selection of which she had been very supportive beginning when she was a state senator in arizona. it turned out that that didn't happen. there was a little but not a lot of movement toward merit selection and what did happen was what she feared the most, judicial elections became more partisan and it looked less like something than a independent judicial candidate would say. so i -- my own feeling has always been she hoped that by
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concurring in the opinion she could say, this is what's going to happen if you have elections, so states be realistic, be practical and move away from them, it just didn't work out that way. >> after she retired, one of her main decisions upholding the mccain/finegold finance law was struck down. i wonder what her thoughts were about that? >> it happened that i was with her when she learned of this citizens united decision and she seldom said anything that was negative about the current court, but she commented that they don't understand and this will not work out well. if you look at the two opinions, mcconnell and citizens united, i think you can see why citizens united was not an o'connor kind of opinion. first of all, it overturned a decision just from seven years
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earlier, you know, what happened to starry decisis. and the opinion had given great deference to the legislative judgment about whether spending money in campaigns at certain times could be harmful, could raise the specter of corruption or at least the appearance of corruption. in mcconnell they had accepted that argument. in citizens united, the court said that isn't true. and that, again, was, first of all, no deference to the legislature and saying something was different than being in another opinion without any reason for it. and the other thing i think you would see that would trouble her about citizens united, we heard talk about how justice o'connor tried to deal with the four
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corners of the case presented to her, not make any sweeping comments and citizens united, of course, the opinion went far beyond initially the question presented to the court. if you compare the two and look at her juris prudence, it's clear why she would have thought it was a bad opinion and why she also given her more practical approach believed it wouldn't work. >> kathleen, you were in her first crop of law clerks and if there's one thing i learned from evan thomas's book, it was that as much as justice o'connor was -- i couldn't say terrified, but certainly understood the challenge before her as she undertook this position, having never operated in a federal court in her life, basically.
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she was thrilled, thrilled to be playing in the big leagues and that she could have some affect. could you talk about that a little bit? >> it was very, very visible in the way she conducted herself around chambers. there was a fair amount of stress because all of the issues were new and we felt like we worked harder because we had to get her prepared on issues she hadn't seen before. but when she came back from argument or when she came back from conference or when we circulated an opinion, she was almost singing her way back into the chambers. she was so exhilarated by what she had done. if she'd persuade somebody to join one of our opinions, that was a big moment and a cause of celebration and you could tell that she felt like she had made a difference. >> i'm going to intervene here to ask you, when she left the court and founded i civics, how
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do you think her vision of all those years of everything from national security to abortion, the issues in which she played a divisive role are as wide as the country -- this country is. i wonder how her vision animated her idea of i civics. i think it comes partly out of her time on the court and partly out of all the other things she did. at the -- at the court, she decided important cases, but she's often said that i-civics is her greatest legacy. and a lot of person have doubts about that. but one of the things i learned clerking for justice o'connor, if she says something that's counter intuitive, you should
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stop and think about it because she is probably right. this comes out of her love not only for the court as an institution but where the court fits within our overall democratic structure and coming from experience in the executive and the legislative and federal and state level, she really understood at a deep level how it all works and how dependent it is on having an educated citiz citizenrys. and i think what she saw is that people don't understand what judges are supposed to do. they don't get it that in our system it's not supposed to be a partisan decision and as a result we're in danger of losing that functioning democracy. so her decisions on the court obviously are really important legacy, but decisions can be cut
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back, can be overturned, some of them have a shelf life. they describe in some of the cases that this is a current problem. we won't have this role 25 years from now maybe. but the need for our functioning democracy goes forever. and today, i think, we see that we have citizens who aren't well educated because we've eliminated civics from the colu curriculum. what i-civics has done is to create an interactive set of simulations where students can play roles in our democracy and really learn how it's supposed to work. and we are currently reaching over 6 million students a year. we haven't yet accomplished what the justice set as the goal of reaching every student in america, but we're on our way. and i think the justice's family
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have been involved in this. when she stepped off the board actively, her son joined us, one of our big accomplishments recently is the enactment of legislation in arizona to set up a new civics curriculum and it was led by her son scott. so the family buys into it that this is perhaps her most important legislate si, she thinks so. and if we reach her goal, it is perhaps at least on a par with her other legacies. >> and i add something? she loved going out in the early years of this to meet with young people, to address audiences, to talk about i-civics and they loved her. that was very exciting. she got a lot of energy out of that. and i will tell one story, in the very earliest i-civics day before it got started, julie took her son up to the court and they played video games with the justice and the justice didn't
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know that much about video games and she said, this could be a great way to teach young people about civics. so it was really part of the extended clerk family that helped launch it. >> that is so important. this is a woman who didn't do her own emails, and now she's sponsoring video games because she says that's where kids are. >> and i'm jumping out of my seat as something involved with civic literacy, to be able -- and the fact that she knew, even though she wasn't a technical person, to reach young people, we have to use the tools of today and to be open to that, was just one. and public libraries and school libraries all over this country are looking at i-civics and saying we need to have that available on our websites.
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>> and justice o'connor hated the term swing justice or swing vote. she thought that it suggested some sort of indecision, but i have to say, in fact, in 25 years on the court, she was the fifth and deciding vote in 330 cases at various points i suppose infuriating the right or the left. so i want to ask each of you, accept for karla who's not expected to be a supreme court observer, what you think in hindsight will be her most lasting legacy as a decision in the textbooks. if it says around? >> let me start with you, ruth. >> okay. just let me say here, i don't think she minded at all being the deciding vote. she just thought swing vote
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sounded kind of frivolous. i think she liked being the deciding vote. the court is changing so much, i don't know how many of her opinions will survive, but at least as part of the development, i think you'll continue to see attention to her opinions in the area of first amendment, religion, separation of church and state. i think in the area of gender discrimination and i think also that at least as a part of the development, her decisions in the abortion area, i think will survive. >> kathleen? >> well, i'm married to a law professor, so i actually asked what was in the textbooks and i am pleased to announce that our decisions are still many the textbooks. they are commissioner versus tufts and i'm not seeing a lot of recognition in the crowd. that would be because my husband is a tax professor. which i think is really kind of an important perspective on the
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justice, if i could take a second on that, we were the first term after the justices had come on board. 18 months ago she had been -- on the intermediate appellate court and a year and a half later, she's writing these cases on federal income tax that are classics and are still taught to students because they're so important as contributions to an area of law that she couldn't have known. >> linda? >> so i think her most lasting decision was her earliest decision, hogan versus the mississippi women's university and ruth was there for that decision. she came onto the supreme court of the united states, there were boxes of case files and stuff all piled around her office floor, she organized a system to try to get to the first
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conference in the fall so she would look competent. and when she got there, she found out that the justices organized their cases according to a different system so at lunch she had to run back and organize her case books, am i right? this is what she goes into. and in her head, she's saying, it's okay to be the first, but i don't want to be the last, and she gets a case, hogan versus mississippi, where the eight male judges -- justices are divided 4-4. so she has to make the fifth vote to decide whether it's unconstitutional to separate public universities by sex. and she cashed the first divisive, not the swing, the divisive fifth vote to say that it was unconstitutional to
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segregate public universities by sex. it was 15 years later that the court decided virginia -- united states versus virginia case. so she laid down her marker in the first term she sat. what courage it took to do that. >> have i missed anybody? >> so i think appropriate because we're at reagan institute event, it's a dissent in a federalism case, south dakota versus dole. it was a case where she was actually on the losing side, but the important point is that she made the point that there's only so far that the federal government should be able to go in coercing states because there are so many federal grant and
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aid programs and there's a projection from what she said in that case to some of the cases that are going on now where the states are asserting their power vis-a-vis the federal government. that was a very important early marker on coerce of federalism which is having repercussions today. >> i just have to tell one story here because i often observe that it may be a gender difference that she arrives at the court and she's just organizing -- she's got everything piled up. she does not want to be humiliated at that first conference and she does everything to be completely up on everything and justice scalia who had been a federal judge for a long time, arrives at the court at a similar time, looks at all this stuff and says, i can't possibly be on this, i'm not going. and he didn't. he went to the next conference. >> amazing. >> women always have this idea
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that, you know, if you're there, you better do the job. >> and that's where the first -- even though nonjurist resonated so much with me, being the first and the idea of it -- what you don't want to be the last and you know that everything you're doing is being weighed in a different way. and so to have that joy come through and i got a lot out of it just saying, she's something. >> you know, linda, although the two were often allies, could you talk about the differences in judging? >> so that actually is responsive to your first question about legacy. justice o'connor was -- i loved what someone said earlier this afternoon. in some sense the air to a common law judging tradition and
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so she is making decisions in very much a case by case way and each one confined to its facts. this is going to constrain her legacy, okay? what is an undue burden on the right to choose abortion, right? justice o'connor had an idea on a case by case way as each burden came in front of her about which one was undue and which one was not. that's not something you can pass along very easily to your heirs. justice ginsburg came with a well worked out juris prudence from her training at cornell. she said it at her confirmation hearings. she said her vision of the constitution was of an ever increasing circle of
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inclusiveness to most recently let's say lgbtq people. so she had a big vision of what the -- of juris prudence of what should happen. justice o'connor had an incremental version. it was a product of their philosophies or it's just life that justice o'connor got to enact her vision into law, she had the -- and justice ginsburg not so much once she got onto the court. >> there's been a lot said today. i missed the first panel, i think. but i'm sure there's been a lot said about justice o'connor as the glue of the court and the story that is in thomas's book
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about her persuading justice thomas to come to lunch and he says she's the glue that holds this place together. but the court was often very divided 5-4 on the biggest cases and i suppose the ultimate one was bush v. gore and this was a case where o'connor's idea of breaking bread will make things all better didn't quite work, right? >> not as well as she hoped. there was some reference earlier today about terms in which clerks became divided and to understand how important this is to justice o'connor, you have to really keep in mind that it was really important for her that people be able to work together and that they could disagree but do so agreeably.
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and so during the condensed time period that bush v. gore was heard, the clerks took sides. and this troubled justice o'connor because it went beyond judicial differences and philosophical differences, it became personal in the two groups of clerks. and this is the case, of course, she's spoken most publicly about saying the court perhaps shouldn't have taken it. that it did great damage to the court as an institution. that was one problem for her, but the other was this personal fallout, not among the justices, but among the law clerks. she tried to get everybody together at a cocktail party of sorts afterwards, but the strains were too great and she couldn't bring everybody back again. and she's at least told me that
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that's one of her great regrets that a case that perhaps shouldn't have gone to the court caused this kind of personal fallout. >> there was -- i gather there was a close to a first fight among the law clerks who of course -- i'm not sure we should say should be forgiven for their youthful zeal, but at least they had the youthful zeal. in private she -- the kind of judge she was when she served on the court is so different from what we see today and i'm wondering, merrill, what made sandra day o'connor a reagan appointee, a states rights advocate, a woman of the west, what if anything made her different from consecutives --
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she certainly thought of herself as a consecutive, from consecutives on the court today. yeah, i asked you. >> she has enormous empathy and she really puts people in the center, people are at the center of the jurois prudence. when it's a balance of state's rights against the people, the person wins out and this was true in terms of her ability to make friends but also in her juris prudence she's thinking about the people and i went back and i actually looked at a chapter in evan's book because i wanted to think about her role as a estate trial court judge and there's a story in there
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that i don't know personally, if evan wrote it, i believe, that she had to give a sentence in a criminal case to a woman and it was a very difficult sentence and he kind of whacked her, gave her five to ten years, and then she went back to chambers and wept. so she did the right thing, she was just, but she also really cared about the people and i think that that really marks her juris prudence. it's a very humane juris prudence. >> it has to do with how she took things on a case-by-case basis. we heard this all day, her clerks were very three dimensional to her. they said in an interview that it was hands down the happiest chambers on the supreme court. so i think that's probably a piece of it. >> and bush against gore, she said it had to be decided. and this is part of her
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westernness. that sense that the buck has got to stop with somebody, it has to be decided and that somebody is the judge and that's another reason why i think that this influenced her interest in having young people understand the role of the judiciary, that it has the last word on so many areas. >> could we talk for a minute about certainly justice o'connor was a trailblazer, but from the vantage point from social change in the country, what her appointment meant. i will speak here personally. i had covered the court for years at that point and i had heard more than one president say that he would like to name a woman to the court and it just never was serious. it never happened. and i didn't -- frankly i don't think i took ronald reagan seriously, was my mistake. i took it to be a promise or a
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pledge that he was going to name a woman and that he was quite determined to do it and i -- her confirmation hearings were the first that were televised and i remember walking into that court just -- i had not understood how much i resented looking at nine men until i looked at eight men and one woman. so i thought maybe the rest of you -- she certainly had that burden, but she -- but it meant a lot to women in the country. things changed for -- >> we are going to leave the discussion at this point. you can see the reminder of it on our website. we're going live now to capitol hill as a hearing is being held on protecting veterans against scams aimed to defraud them from benefits they've earned in service to the u.s. this is live coverage on c-span3. we expect it to gavel in just a moment here.

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