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tv   Sandra Day O Connor  CSPAN  August 19, 2012 6:30pm-8:00pm EDT

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instead of a platform with this is what we want to do, we are left wondering what changes would be made and where they will go. >> the congresswoman talked about a message of hope. is this going to be the hope and change convention from the republicans? >> it seems to be a popular theme in the last couple presidential election cycles. just do notain, i think we are going to tsee any great surprises in tampa or charlotte. in the next couple weeks, we are, both parties are in safe mode. the goal is no gaffs. have a good pep rally and move on to the last couple months of
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the election. >> one of the challenges is managing everything else going around the convention. lots of outside groups, also- rans that did not win, the primary. we talked about that negative tone. the party can come out with a message of hope and change, but if it is not shared, which is still have negative attacks, even from the party. >> one thing neither party wants to talk about, there will be protests, there will be street rallies in tampa and charlotte. and i know both conventions, both of those cities have been very concerned about that. and it's a fine line between allowing people to openly easyst, but it's -- not an thing to juggle. we could see some problems in
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both cities with that. it could cause some negative, uh, feelings coming out of both conventions. that is something we have to watch. thank you so much to both of you. >> every four years, the republican national convention adopt a new platform. it is the official statement of their position on the issues. the committee draft recommendations for approval by convention delegates. live coverage of the platform committee meetings begins tomorrow at 2:30 p.m. eastern from tampa. we will have that on c-span. this year, watch gavel-to-gavel coverage of the republican and
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democratic conventions on cspan. coverage of the republican national convention begins august 27. the democratic national convention is september 4-6. follow the conventions your way, live on c-span, c-span radio and >> retired supreme court justice sandra day o'connor testified on the importance of civics education. she has been an advocate for civics ever since retiring in 2006. justice o'connor is the chairman of the board for i-civics. this is about an hour and a half. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2012]
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[no audio] >> before we get started, i want to -- it is a delight that justice o'connor is here. senator grassley is on his way. he was doing a conference call with students who are talking about education. i am just wondering, all of you who are students in this room,
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would you please stand up just so that justice could see? not bad, huh? [applause] in the past, we have had an justice o'connor, i was telling her earlier that just as brighter and justice scalia were here, and we have had so many schools around the country. now we have a dvd of that hearing. in the state of vermont, i have people stop me, students taught me on the street who have seen a chance to it's learn, and we tried to do that periodically here. of course, the justice o'connor
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was appointed in 1981. she served on the court until her retirement in 2006. i recall we talked about this in the back when then barry cold water from arizona came to see me and others to praise justice o'connor and say that she would make a great justice. he was absolutely right. voice for a leading the importance of civics education. currently serves as the chair of the board for i-civics, an organization that promotes a civic education in our nation's schools. i hope justice, you are pleased to see the number of students here. >> [inaudible] a long time ago -- in ever had the privilege -- of sitting in
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on a senate hearing. i think it would be very instructive for young people to have a chance to do that. bringing a you're lot of students to washington. we are streaming in on our judiciary website. i think discussions like this serve our democracy. as public officials we owe it to all americans to be transparent about what we do. we justify their trust by demonstrating our government works, how we are guided by the constitution and how the constitution served to make a great nation more inclusive. as i mentioned, the students, before senator grassley came in,
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that senator grassley was doing his own outreach to students before we came here. we had the number of students stood to be recognized. there was quite a number. we have three branch of government in our constitution but only two of them are political. and intended to be political. the third branch, judiciary, is independent by design. both of the political branches come together in a confirmation process. i've had a chance to vote on every justice for the last 37 years. starting with john paul stevens. of course, justice o'connor. the role of judges has been the
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subject of two previous hearings with supreme court justices. justice kennedy, scalia and brier. in the wake of the recent rhetoric about the sitting she's just as, i think that the conversation is more relevant. i am concerned about the rhetoric about the chief justice. he has been called everything from a traitor to having betrayed president george w. bush. i think these types of attacks reveal the misguided notion that justices and judges 0 some allegiance to the president who appointed them. i've served on this committee for the three decades. i have questioned every supreme court justice serving on the high court at their confirmation hearings. i've voted to confirm justices and judges nominated by both republican and democratic
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presidents. as i did in voting for chief justice roberts. on long noted that i do not vote to confirm individuals because i expect to agree with all of their decisions. probably every justice i voted, i disagree with some decisions. a lot of the decisions i agree with. will they be a fair and independent judge? i say this because nobody should demand political allegiance from any judge, whether nominated by an academic credit or by republican. as many sitting justices have noted, it is completely appropriate to criticize the rulings of any court. we have the right as americans cared for example, the chief justice's health decision, which i disagree. i find the opinion of justice ginsberg compelling.
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but it reveals a complete misunderstanding of our system to attack the chief justice, saying he is not called a political party or shows allegiance. this is a teachable moment. justice o'connor has dedicated her life to public service. she has been elected to state government and served on the state bench and on the highest court in the land. the last justice not to come from the judicial monastery. she has traveled the world to teach emerging democracies about the importance of the rule of law. those have been teachable moments. she has directed her talents are reminding us of the importance of sex education. so our democracy -- the importance of civics education. friend senator
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grassley, as i told you privately, barry goldwater was such a good friend. at his request, i moved into his old office. you would blush to hear all the good things he said about you. some of it in language i will not repeat at a hearing. senator grassley? >> senator grassley. >> thank you. thank you, mr. chairman. i remember one we had last year that was a valuable would just as brighter and justice scalia. very valuable. it will be valuable to have you here as well. i am glad to greet you for coming. you are not only the first woman to serve on the supreme court. you are the first supreme court justice i had the privilege to
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vote for. >> for heaven's sake. >> i can say this, looking back after all of your years of service, your performance justified the confidence we placed in you. we would like to believe that our judges whose independence is guaranteed by the constitution rule based only on the constitution and the other policy preferences. judicial independence was established to make the courts independent of the other branches and independent a popular view. it is not designed to make judges independent of the constitution so that they can impose their policy preferences. we hear that if only our citizens properly understood the rule of courts, unprecedented attacks on rulings would vanish. this is a view that is at odds with the current reality and the history of our country. in fact, the leading reason for
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the so-called attack on judicial independence is often judges themselves. only last week, "the new york times" reported that only a few weeks before the courts health care decision the supreme court was 44-36 approval margin. but the article reported that after the ruling, as many americans disapproved of the supreme court as a proof of its performance. that decision would --some have speculated was issued at least in part to reduce political opposition to the court -- appears to have accomplished exactly the opposite results. the article states that most americans believe the decision was based mainly on the justices'personal and political views. only 30% of americans said the
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decision was made on legal analysis care for myself, i respect the decision even if i am disappointed by that decision. i do not question anyone's motives. i do not think the poll results would be different if only the public at a better understanding of the court. in fact, i think the poll reflects the public does have reason to suspect that politics enters into some of justices' decision. they accept the decisions anyway as shown by the polling on 18 cases presented in that article. 2/3 of which were unpopular with the population when they were decided. although unfortunate, this perception should not be a cause for alarm. so long as it does not lead to threats of violence, threats of impeachment, or threats to imprison judges for their rulings. much more serious threat to
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judicial independence have occurred regularly in our history when the citizens were convinced that what the court presented as law was not constitutionally sound, such as when andrew jackson refused to be bound by the supreme court's opinion on the constitutionality of the bank of the united states or the court's rulings on indian rights or when abraham lincoln said that the dread scott decision was 'erroneous,"and refused to accept it because the reflected political vibias. or when theodore roosevelt ran the most third -- the most successful third party candidacy on a restriction of the power of the courts so as to leave to the people the ultimate authority to determine fundamental questions of social welfare and public policy. including the ability of voters to overturn constitutional
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rulings of state courts or when franklin roosevelt tried to pack the supreme court because of its ruling striking down new deal legislation. so let us keep everything in perspective. it is not a violation of judicial independence for the senator to criticize court rulings that he or she believes are incorrect. it is not a violation of judicial independence for a senator to conduct legitimate oversight of the judiciary. those are corporate ways of ensuring accountability. that is all within the constitutional concept of checks and balances. but judicial independence could be jeopardized when a president of the united states in a state of the union speech misstates the holding of a supreme court case in front of justice's when they cannot respond. judicial independence could be threatened when, after a pending case is argued, the president publicly mistakes the process of judicial review and claims that the court's
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legitimacy and a particular justices legacy will be tainted unless the court decides the case the way the president wants that case decided. and judicial independence is certainly weakened if justices give in to those attacks, rather than decide based solely on the constitution or even appear to do so. i appreciate justice o'connor's work in advance and civic education. i believe all citizens in a democracy benefit in the participation of informed and active citizens. i-civics site is a good one. i wish they would tell students that they can challenge laws on state and federal courts. they should say that a trial held for the violation of state criminal law claimed to violate the federal constitution would be held in state and not federal
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court. although i have supported federal efforts to promote greater understanding of our constitutional system, i do not believe the federal government should develop and mandate civic standards. and i do not think the framers of the constitution thought they had given congress the authority to impose such standards. justice o'connor, i look forward to listening to your views. >> thank you. >> we are talking about i-civi cs. here is one of the copies. the young man on the front looks very much like a grandson of mine. i want to make sure all five of our grandchildren get a chance to be involved with this. justice o'connor, we welcome you. the floor is yours. >> thank you very much, senator leahy.
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i will concussions that you and senator grassley want to ask to direct -- you brought up i-c ivics. it is a website that relies on games to teach young people how government works. we have had zero wonderful groups of skilled teachers of middle and high school levels, who have advises on the topics we should cover on the next game and so forth. they have helped us throughout the process of developing the website. so we have attempted to develop games that enhance the ability of teachers to teach young people how our government works. i went to school all long time ago in el paso, texas. my parents lived on a ranch
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that was remote from any school. so i live with grandparents in al pesto during the school term and went to school there. i well remember having a lot of civics classes, mostly based on texas history and i got sick and tired of it, to tell you the truth. i thought it was miserable. i am hoping that 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 i-civics website and a series of games that young people can play that illustrate legal principles we are hoping to teach. and the system has worked very effectively. recently, a baylor university and texas asked to do a study of i-civics to see the
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effectiveness and, if it is effective, all of the program with students. and there study produced really exceedingly encouraging results. i was thrilled to get a report from baylor about what they found from the use by students of that website and the games in it. so i' m incurred by it and it shows me that young people need -- i am encouraged by it and it shows me that young people need to know how our government works. it is not self evident. in schools today, i do not think it is widely taught. and young people want to know how to be affected. they want to know their role as citizens and how to make things happen at the local level, at the state level, and the national level. and i-civics tries to help young
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people develop their own proposals and programs and learned in the process more about how government works. i think that the effort is being effective and appreciate it. i have chair people now in 50 states, including in vermont. and it is doing well. i welcome feedback from you and others, your constituents, on how they think we can improve what we're doing. program freet the so that schools can use it at no charge. and 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 i-civics.
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and i welcome your suggestions as you have them when we go forward. and senator grassley, the same. i hope i will hear back from you if you have good suggestions for us. >> thank you very very much. and again, i appreciate your doing that. i'll make sure we get some feedback from vermont. i will check with the coventry. >> absolutely. the town where my ancestors settled after the revolution. i'm afrt grown much, aid. >> i know. it is an area called the northeast kingdom. mt. airy special people come from that part of the state, including my wife -- justice o'connor you have commented on how tax on judges
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can be a threat to judicial independence -- how attacks on judges can be a threat to judicial independence. the final days of the supreme court session last month when a neighbor -- a member of the court was labeled a trader, accused of betraying the president nominated -- who nominated him to the supreme court as though he should follow political direction from the president heard >> it is unfortunate because i think, is like that demonstrate only too well the lack of understanding that some of our citizens have about the role of the judicial branch. and i think the framers of our federal constitution did a great job in understanding themselves that the judicial branch neded to makebe able independent decisions on all lawfulness of actions at the
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state and federal level when they are properly raised in court. and the framers did a really good job in that regard. it's not every state has followed the federal model. under the federal model, are not elected. the're nominated by president and confirmed by the senate. in many states, that is the process but not all. many states have popular election of judges. and the results of that has been the need for candidates to raise money for their election campaigns. a i think that has corrupting influence on the selection of judges. and it is disappointing to me to see as many states that still use judicial elections. and i hope over time more states will follow the federal model and have a system of judicial
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appointments. many of the states that have these have a process, however, of confirmation or selection of that involves a public input. and that is fine. but i think the federal model has been a good one for the states. >> i happen to agree. that is the model we follow in vermont. it's worked well. it has taken politics completely out of our judicial system. in fact, we recently had a new federal district judge. her name was recommended from a bipartisan screening board. i recommended her name to the president's. but interestingly enough, she
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had been first nominated to our state court by a republican governor. someone who once ran against me. and to this day, i do not have the foggiest idea what it her politics are. i do not care. what i do like is the reaction from vermont. it is a great judge. >> that is good. >> keep it out of politics. would you agree with that, that while the judge may and should be appreciative, as you were of president reagan's nomination, your allegiance is to the >> the allegiance of every federal judge as to the constitution of the u.s. and the laws that are adopted by congress. that allegiance, i think, enables judges to resolve the cases.
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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. >> 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.
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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. the case is where the -- do you agree with that? >> 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
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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. certainly in a body like that u.s. senate comprised of republicans and democrats and occasionally an independent, you wi have some disagreement among members of this very body about whether a particular ruling of a federal court is correct othe best ruling that the court could have made. obviously there will be differences of opinion. under ou system, and issue that is divisive will sometimes come up again in the courts in a different posture you have related issues. ov time, the courts themselves
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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. >> 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.
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they come from the same backgrounds. do you think we should push for more diversity? >> i think over the nation posset history, we have had a very diverse group of judges on the court. 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
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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. >> thank you. senator 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? >> 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
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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 manhave 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.
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>> i want to refer to an article from 2008 that you wrote, "i regret the thres 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 unit address in front of justices who were not in a position to respond and criticized supreme court decisions? >> i do not knowf it threatens judicial independence. it is not something as citizen expects to here in the president
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of's state of union message -- president's state of union message. it is unusual. >> 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 presubly wants? >> 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.
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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. >> last week, 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? >> i am sure that many things go through the minds of a jusce in a pending case were a tough issue has to be decided. the justice may learn things that cause the justice to shift
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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. >> since i still have time, what would you think are the most important elements of the court system as students should learn? it corrects the system needs to give -- >> this is dumb knees to give some independence of the judge making -- >> the system ne some independence ofhe judge making decisions. to do so, fairly and independently. that is the concept. that is what i think the average citizen should be able to
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understand is the concept and trust that is what is going to happen. >> i will 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 othe 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. >> i would advocate for that. i am all for it. >> i yield back my time. >> only speak if you are in favor of it. [laughter] >> and then i'd better keep my mouth shut. [laughter]
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you andustice o'connor, i have noted the other for a long time. it is refreshing to have you here. i respect your view anyway. i have a soft spot in my heart for former prosecutors as you know. >> thank you for being he. to the appreciate it. when we have a confirmation hearing for elena kagen, i spoke about your background. befo the age of 14, you were able to use a rifle, a herd cattle, and ride a horse. >> absolutely. i lived in a very remote land. everyone had to be able to do everything as soon as they were
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old enough to do it. >> you came from such humble beginnings. you were able to achieve so much in this country. i wanted to srt with that. where did you think the reason is that we are seeing such a decline in civics education? how do we improve it? >> frankly, part of it is because we have learned to our dismay that our american students when tested on math and science are notoing 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 dnot 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.
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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 bn 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. icivics teaches them by way of games. the young people play a role and they learned. it is very effective. in many cases, it is being used
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in 50 states. students using it can learn w 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. >> i agree. my daughter is 17. one of my favorite project she did is that she interviewed a senator for an hour. i think it was about a 50-page power point presentation for her class. >> that is great. >> 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
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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 understandhat 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. think we can do to improve them? i think there are still important r the public.
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what can be done? perhaps it is miserable from the point of the nominee. -- >> it is miserable from the point of the nominee. for the public, it might be the only chance for them to see a nominee and have some appreciation of their style and theiranr and how well the answer the question and to have some understanding of the process. it really does matter to the public. i think the system in that regard works very well. >> what did think of the nominee asking questions s? to me, i know people want to have a chance, but it seems very litical in terms of it.
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>> it is. that is that nature of it. you are the political branch of government here. >> 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. >> it would be hard to do. you have a vote at the end. members expressed their view. that is hard to change. >> one last thing. i know you have been a vocal advocate on the judicial elections. in we have seen elections in
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recent years. are there any refms you could suggest? >> this is very important. i think the federal model of feral election is the best model. some states have followed it, but not all. in a number of states, they still have a totally elective process for selecting judges. i think that is very unfortunate. it means raising money for campaigns. there is 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 is a worry. i hope that more and more states will follow the federal model of not having judicial elections. many state, in facty own, have intentional elections
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periodically they are there for some time. the judge's name goes on the ballot. the voters can vote on whether they keep the judge on the ballot. they're not running against anyone. that seems to have worked fairly well. not many judges are removed in that process. but it is one way of having the voters involved to some degree. it seems to have worked to some extent. >> very good. thank you for being here. >> i am glad to be here. >> thank you senator lee. >> i did not say you come in. i'm sorry. >> i am easy to forget. it is a pleasure to ha you with us. remember when you would ask my father questions from behind the bench. i never thought i would be
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sitting behind a dferent bench and asking you questions. >> your father did a really great job. we miss him. >> thank you in. >> i agree with that. >> we miss him. he was a proud arizonan. >> i used to see him in the state senate and in committee hearings. he would come in and present materials on various issues affecting the state. he was effective in that regard as well. he really was an amazing man. >> that is good to know. thank you. i wa to follow up with you on the enomy made about retention elections. you indicated that the impact -- the tendency to politicize the state judicial system that those elections would have is
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limited that they tend not to result in the removal of the judicial officer. >> not very often. >> is there a possibility that they might nonetheless have some politicizing a faeffect? is there a chance there might affect the judge's decision making process? >> well, i gue 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. not many are removed. >> one critical difference between the retention election and another type of election is that it is not tested. >> that is right.
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there is not a lot of campaign contribution being raised. >> it typically require something of a supermajority vote. >> it depends on the state. >> 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? >> 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. >> is there an argument to be made that elections like that might insulate the governor from
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the political process in a way that is not helpful and less accountable to the voters? >> i have not seen it that way. the governor needs to make the appointmenand say, yes, i will consider these names and this is who i will pick. i think ihas worked out all right. >> yes. in my state, i believe the governor has the option to reject entire slate. >> that is true in my state, too. if the gernor believes he did not get any good names, he can reject the whole batch. >> i think i heard to say a minute ago that you think the federal system is the best model. just for the federal or for ou - >> that is up to each state to decide on the level of voter
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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. >> right. >> but if the state thinks it helps, fine. it ds not seem to do much damage. it is ok. if the voters in a state approve of that, i think it is all right. >> ok. but you are fine with the federal model the way it is? >> that is correct. >> with a state system gets bad -- i know of your concerns with 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
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judicial independence. when you have a state system that follows that approach and a state system that apparently is in a properly 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? >> it is up to the state. most states, if you are going to consider something that affects a stick at large, they will have an opportunityo hear from voters on the proposal and have so debate at the state level. that is good. >> but you would not rega that as a due process concern of the sort that wouldarrant federal legislation requiring states to do it one way or the other? >> no, i do not think so. we left the states free to choose their own method of
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judicial selection. >> 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. >> yes. >> 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? and the distribution of power between state government on one hand and the federal on the other? >> well, all members of this body, the senate, come from one of the 50 states. you're all representative of your states. you have experience in the lstate on what the borders
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care about in terms of judicial election. i am sure all of you have had that. i do not think i need to give any advice on this. >> we do get advice from time to time. >>ll right. >> thank you, the justice. >> thank you. >> mr. chairman. >> thank you, senator lee. i told you privately before, i agree with justice o'connor's reference to yourather. we have a senatofrom connecticut, a former general attorney of the state. >> thank you, mr. chairman. as a former attorney general for some 20 years, i am a very strong believer in federalism. i would agree with senator lee
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that we get advice, but i would also say that we need advice. any ideas you have on that score -- but also, i want to focus on a point senator grsley made in his earlier remarks. we dismiss poll numbers when the results do not suit us, but they're still reflective of something happening. the reason we are here is because of the need to educate the public about what you did for many years with such distinction and dedication in serving on the u.s. supreme court. we have a reverence if not respected institution and the need to preserve the litimacy
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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? >> i wish i knew. i did not conduct the polls. i am not sure. i have read some articles about the polling that took place and the argument being made that rhaps the decline -- the percentage of u.s. voter approval of the supreme court historically has been hired then of the other two branches. in a very recent months, it seems to have declined rather substantially. this suggestion has been made that that began with the bush- gore decision.
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i have no idea if that is correct in the assessment of the polling. it was a very tense case that involved holdovers from a very close election. people felt deeply about it. perhaps that was the tipping point of the decline. i hope it will be temporary. the supreme court functions extremely well. as a look worldwide, we can be proud of our court. it has served the nationell. by and large, it is a marvelous institution. i would think over time opinion would turn upward again. i certainly hope so. i would expect that. >> i would agree with to certainly in the assessment of the supreme court's work and in
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the hope that public approval will increase over time. 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 -- court? cameras in the >> i know you were asked that. [lauter] >> it is important to remember every word said in that court is
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transcribed and available that same night. if anyone paris it is. you have it, in hand. it is not that there is a lack of ability to know what is going on. there. it is just, do we have to have it on camera an on the television, or is it enough that it can be available that very night and you can read it? i guess iboils down to that. i am a reader. do not ask me, probably. i tend to read more than i watch television. >> i am not going to comment on reading of versus television. everyone has his or her own style of learning. in light of the prevalence of
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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 -- >> it is limited. the courtroom is not all that large. you'll never have a huge crowd that will fit in the courtroom. there are some adjacent chambers where you can hear it. but not see it. i guess this is a discussion that is going to continue for a while. you have members of the quartet present who are not at all
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comfortable with televising the proceedings. i think that if and when a change is made it will probably be more likely to be made when members of the courts are willing to accept that. >> 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 of the court, but you also have the perspective of many years in different branches and at the state level and so forth. your opinion would carry great weight if and when you are
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willing to set forth. >> my opinion is there should be general agreement that that is a good move to make. if there is severe opposition coming from the court itself, that is a source of concern, i think. it is best if everybody is in it sink on at that kind of move. >> i want to thank you for being a year 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 have jobs to enhance education. >> thank you, senator. i have been spending enormous time on my civics effort to educate young people 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.
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we had a test at baylor university -- they came back with extraordinarily good revis of the effectiveness, which is encouraging in the extreme. we will ntinue to develop additional games on somewhat different topics to keep people informed and engaged. it works with young people. i am excited about it. it would be wonderful if, when you speak to schools in your state, you could encourage them to use it. it does work. >> 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 then more about how we can do that. >> i have managed to keep it ee. with today's costs and changing programs, that has been important. >> free is od. >> i think so to.
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>> 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 to refer to over signed -- time. a thank-you. >> we had the debate of televising -- i do not know if you were here or not. we had some who were vehemently against it. somewhere in favor of it. others who could go either way, i think. notwithstanding some grandstanding since then, it has been a good thing for the american public to see how we deliberate. thank you for being here. before you came, you know there were a lot of students in the room.
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that is no doubt in relation to the justice and civil courts. we have a lot of students in the room. go ahead, sir. >> justice o'connor, it is great to have you with us. -- i.s.o. tree believe, having trouble around the world -- i so truly believe, having traveled around the world, i am more convinced of the precious nature of the rule of law in america than i have ever been. >> absolutely. it matters. we havbeen promoting that since the breakup of the soviet union. i think that the american guard reserves -- deserves some credit. when the soviet union began to break up, lawyers gathered together and serve as unpaid volunteers in many of these countries to help develop judicial systems and the notion
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of the rule of law. >> i could not agree more. i would just say, i will remember, after the i iraq invasion, being with general traeus, he had tablished a court, found judges, appointed lawyers and have trowels like we do. >> yes. >> -- trials like we do. >> yes. >> 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. >> it do. you cannot do it overnight or in a year or even two or three years. it takes long term development. >> i am of the view that the court needs to maintain its independence, its attachmen
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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. th was my time to preside. he made a speech about textbooks. he discussed democracy and the republic, and the differences
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tween the two, and how the text books had not properly delineated the difference. his closing line was that it was touchy-fee lee 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 adjudicator is of discreet legal problems. that they are somehow a part of the political process and their rulings are based on political stresses and pressures and views of justices -- this could erode the kind of respect that americans should give to the
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court. is that a concern for you? >> very much so. i agree with you completely. it is best to maintain the independence of the judicial branch. that is what the framers designed. it has worked quite well out the federal level. we need to try to maintain it at the state level as well. i happen to think that holden judicial elections in states is not the best way to go. that gets too much political influence in there and campaign coributions. that is dangerous. we do not need to do that. >> 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 adjudicator is. i was pleased when justice roberts referred to it as an independent, neutral umpire,
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like in the ballgame. the umpire does not take sides but does its best every day to call strikes. i think that is a image or metaphor that is valid and that we should push. there are times wheneople on both sides think the court does not do that. >> i am sure. >> they think the court has allowed personal, it is logical, or political insights to impact -- ideological, or political insights to impact decision making. do you agree that justice is should guard against that and live in the oath to be a judge under the constitution and the loss of the united states? >> of course i do. i served on that court for years. i entered it without a lot of
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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. i think we have been fortunate. >> 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 tha role, but is using thpower to interpret the words of statutes in the constitutions to rejigger the constitution to advance an agenda. that would be a great tragedy if that were to happen, if people were to lose confidence. with regards to criticize in the courts, i believe, an american
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citizen has a right to questn the court, but i believe we should do it respectfully. 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 jge or the record indicates they are not, i cannot give them license -- that is my standard. in the range of disagreement on how to interpr laws, if you are outside that, i should not give you a lifetime appointment. good people can disagree.
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sometimes we agree, sometimes we do not about where that line should be drunk. i do agree that congress has a role to try to ensure that the judiciary remains a neutral umpire, would you not agree? >> yes. the senate plays a key role in the overall process in terms of agreeing that the out set who will be serving and who will not. >> i would conclude by saying how much i appreciate your interest in educating the next geration. >> yes. >> 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.
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if we have misconceptions about how the legal system works, i think it could endanger -- thk you, justice o'connor, for sharing your thoughts with us. >> thank you. supreme court justices have come before us. it is partly a educational sen. -- educational think. -- 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
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time. they said, is it true that sometimes the government loses? i said, it often happens. they said, did you replace the judge -- and do you replace the judge? when i explained, it was like the cartoon where a lightbulb goes on. they realize that we really are different. you and the icivs web site -- the majority of supreme court justices in the game supreme a decision are women. >> that is my fault. [laughter] family camey wife's from canada. in canada, the majority of the supreme court are women. >> the chief justice in canada is a woman.
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they have historically had more women than we have. >> that is right. to what extent do you think diversity on the court or anywhere in the top of our branches increases public confidence? >> i think it does. our citizens like to look at the u.s. senate and see some diverse faces, skin color, etc. -- they like thatt the judicial level as well. four courts of record that have multiple members. i think it gives the citizens some confidence. >> in an interview a few years ago, you not that statutes and constitutions do not protect judicial independence. people do. >> wright. >> what people are you referring to? >> the judges, for one thing, and the voters to in the states
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put in a system that enables the citizens to have confidence in that system. >> 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 a retention. >> yes. >> i -- most of the time they are retained. a system like that, where the legislature -- >> is one step removed with the public. it can work if the state is status -- is satisfied with it. if you can set it up that way, it would be preferred. most states that ha retention elections are for the people to the voters.
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>>that would be the time where people raise money for campaigns, is it not? >> normally it is just one name up for retention, without being contested at some level. there would be no need for campaign money. >> that is a good point. the a fewears ago you intervwed 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? >> that is a fact. >> had you had that happen to
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you? >> 's. i do not remember specifically. >> -- possibly. i do not remember specifically. >> would you agree with me that it would be a mistake in the confirmation process that we shou be able to expect that we will get a very specific answer in h you will vote on a case five years from now? >> yes. i think that is probably not a very good question to even asked a prospective justice. >> ist valid to askuestions of one's judicial philosophy? >> absolutely. >> and their background? >> absolutely. >> center blumenthal, did you have anything else? >> no. >> again, the twof you, would
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all of the students who are here stand up? i think this is great. >> you still have a lot to are listening. that is good. [laughter] >> justice o'connor, i thank you. i want to thank all of you who are here. justice'connor, i thank you very much. >> thank you, senator leahy. thank you, senators for iinterest and presence. it yet suggestions of telling people in your state to use the civics program, i hope you will. i think it will help us. >> i have some grandchildren who will get a chance. >> i do, too. thank you. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2012]
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>> tomorrow on "washington journal", "weekly standard" founder bill kristol on the latest developments in the presidential race. a look at the tax system with an mit professor who argues america is under-taxed compared to other nations. and nbc columnist sofia nelson will talk about her work at the grillo, a website that focuses on the african-american community. "washington journal", live at 7:00 a.m. eastern on c-span. watched gavel-to-gavel coverage of the republican and democratic conventions live on c-span, your front row seat. coming up next, "q&a" with "the washington post" columnist walter pincus. followed by secretary of state hillary clinton on


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