On Friday afternoon Pepperdine School of Law convened its Third Annual William French Smith Memorial Lecture, featuring a conversation with the Honorable Sandra Day O'Connor. Pepperdine recently has hosted Justices Alito, Thomas, and Scalia, and this program too drew a full house. The 90-minute program was videotaped and should be available for viewing on the law school's Web site at some point soon. In the meantime below are some of my notes.
Justice O'Connor was introduced by the Honorable William H. Webster, who called her a very "human" and "caring" justice, with a "great love for the Court," and a "passion for civility" and judicial independence. He noted her ability as a tennis player, golfer, and fly fisher. He characterized her as a "consequentialist" justice, meaning that she carefully considered the consequences of her decisions. Reference also made throughout the program to Justice O'Connor's book The Majesty of the Law, sales of which go to charity.
Justice O'Connor related the story about how when she graduated from Stanford Law School in 1952, she could not obtain a job interview. Eventually, through a friend whose father worked at Gibson Dunn & Crutcher, she obtained an interview but was told that the firm had never hired a female lawyer, and it didn't seem likely it ever would (supposedly because the firm's clients would not approve of that). She was told, however, that the firm might be able to hire her as a legal secretary! She declined.
Justice O'Connor discussed her confirmation process, complete with an imitation of Strom Thurmond and his Southern accent. She explained how she met with the wives of the senators on the Judiciary Committee at a tea—a method of lobbying those senators from their homes. She also explained how senators love confirmation hearings because they provide television time for them to attempt to look serious and erudite: "Senators love to be on television." Mainstream television programs about the law have not been accurate nor helpful to the rule of law. Possibly at some point in the future there may be cameras in the courtroom, but the Justices do not look forward to that because they do not want to be media stars.
Justice O'Connor abhors the term "swing justice" and emphasized that every justice has an important vote. She explained that many cases raise tough issues and are tough to decide. Cases at the Supreme Court typically have very good arguments on both sides, so naturally these fascinating issues lead to disagreements. She believes it is healthy to publish dissents, in contrast to many foreign courts where dissenting votes are never revealed. Dissents are important because they can point avenues for Congress to pursue to change the law. Overall, the "system works," and unanimity is not necessary; divisions of opinion are "ok."
Asked what she misses the most since retiring from the Court, she replied that she's busier now than before. Naturally she misses the privilege of being able to address the most important legal issues facing the country. She also misses her law clerks. Her clerks were a huge help in sifting through certiorari petitions and identifying cases the Court should take. She had a clerk draft a memo on every case that was argued and also had her clerks search for secondary sources of authority. She enjoyed arguing the merits of the cases with her clerks.
She currently has one law clerk and an office at the court, which she needs because retired justices are required to sit and decide cases on lower federal courts. She still lunches with the justices in the court cafeteria.
Criminal procedure cases are about a sixth of the Court's docket, and, as explained in her book, this may be an area of the law that may never be perfected. Indeed, this field changes, as evidenced by recent changes to the confrontation clause jurisprudence.
Asked why she spends so much time on judicial reforms overseas, she explained how 26 nations eventually broke off from the former Soviet Union—a unique historical occurrence—and that the ABA asked those new governments if they needed help in establishing judiciaries. Positive responses led the ABA to create the Central Eastern European Law Initiative, CELI (pronounced "seely")—she noted that "you're nothing in DC if you don't have an acronym." She found this to be an incredible and irresistible opportunity and signed on. She explained that it is in our own interests for world peace for stable nations to exist. In the past these nations had "telephone justice," meaning that government officials would call judges and tell them how to rule. Government ordered decisions like that are not truly justice, and she relishes the ability to help convert such systems to the rule of law and spread the spirit of the Magna Carta. She remains deeply involved because even after many years the job is unfinished.
When asked if the United States has lost its place a global leader exhibiting the rule of law, she answered "no, but there has been some just criticism," of American policies. She emphasized the importance of taking a "longer view," and noted that there are some legitimate concerns about the U.S. signing many international treaties. As for criticism about Supreme Court Justices citing to international opinion, she called this "much ado about nothing," because she is not aware any instance where foreign law was relied on to make a decision or interpret the Constitution. She compared references to foreign law as no different than reading law review articles.
Growing up, her mentors were her parents and the cowboys on their ranch. Dean Ken Starr quipped that she is "as comfortable with cowboys as with ambassadors and heads of state," and she quipped back that maybe she's more comfortable with cowboys.
In terms of advice to the many law students who packed the auditorium, she said it was very difficult for her to find a good jobs too but that the important thing is to take what opportunities one can and make the best of them. For example, when she first joined the Arizona Attorney General's office, she was the first female in the office, and not knowing what to do with her, the office assigned her to a hospital for the mentally ill on the outskirts of town—not exactly a plum assignment. But she met with the doctors and nurses to investigate the legal issues facing the hospital and the mentally ill in the state, and was able to get a lot done, including setting up a legal aid clinic, and even changing the law through legislation. She was so successful that she was transferred back to the main AG's office in downtown Phoenix. Thus, in today's poor economic climate, law students may have to take a job that is not one's first choice, but there's always the opportunity to "make something out of it."
When she first joined the Supreme Court, the justices were very welcoming. The Court was split 4-4, so all the justices were friendly and offered to help her. It was Justice Powell, however, "a true Southern Gentleman if ever there was one," who did the most for her in setting up her chambers.
Her prior experience in Arizona's legislature reinforced in her mind the differences between the three branches of government. As she put it, judges can't pick their issues the way legislators can. Today, all the justices were former circuit court judges, and that emphatically is not good: "You don't want nine clones up there." Diversity of backgrounds on the bench is better.
She met her husband while they were assigned a project together on the Stanford Law Review. She never really thought she be on the Supreme Court. Despite the background checks, interviews, and vetting process, it simply seemed too unlikely that two people from the same law school class and from the same legal community in Arizona—i.e., O'Connor and Rehnquist—would be on the Court. When asked if she had any favorites among the justices she served with, she said, "yes, but I'm not telling." She said that Rehnquist loved jokes and that Souter is a great story teller because he never forgets a conversation he's had, no matter how long ago it took place. Apparently many people confuse Souter and Breyer, which has created a number of very funny stories. Scalia also is a good storyteller.