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75–741 PDF 2012

S. HRG. 112–522 

ENSURING JUDICIAL INDEPENDENCE THROUGH 

CIVICS EDUCATION 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED TWELFTH CONGRESS 

SECOND SESSION 

JULY 25, 2012 

Serial No. J–112–90 

Printed for the use of the Committee on the Judiciary 

( 
(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

CHUCK SCHUMER, New York 

DICK DURBIN, Illinois 

SHELDON WHITEHOUSE, Rhode Island 

AMY KLOBUCHAR, Minnesota 

AL FRANKEN, Minnesota 

CHRISTOPHER A. COONS, Delaware 

RICHARD BLUMENTHAL, Connecticut 

CHUCK GRASSLEY, Iowa 

ORRIN G. HATCH, Utah 

JON KYL, Arizona 

JEFF SESSIONS, Alabama 

LINDSEY GRAHAM, South Carolina 

JOHN CORNYN, Texas 

MICHAEL S. LEE, Utah 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

KOLAN DAVIS, Republican Chief Counsel and Staff Director 
(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa ............................ 3 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 1 

prepared statement .......................................................................................... 25 

WITNESSES 

O’Connor, Hon. Sandra Day, Retired Associate Justice, The Supreme Court 

of the United States, Washington, DC ............................................................... 5 

(1) 

ENSURING JUDICIAL INDEPENDENCE 

THROUGH CIVICS EDUCATION 

WEDNESDAY, JULY 25, 2012 

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, D.C. 

The Committee met, pursuant to notice, at 10:04 a.m., in room 

SH–216, Hart Senate Office Building, Hon. Patrick J. Leahy, 

Chairman of the Committee, presiding. 

Present: Senators Leahy, Klobuchar, Coons, Blumenthal, Grassley, Sessions, and Lee. 

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. 

SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. Before we get started, I should say, one, of 

course, we are delighted that Justice O’Connor is here. Senator 

Grassley is on his way. He was doing a conference call with students. We were all trying to do education things. I am just wondering, all of you who are students in this room, would you please 

stand up just so the Justice can see? 

[Applause.] 

Chairman LEAHY. Not bad. In the past, we have had—I was telling Justice O’Connor earlier that Justice Breyer and Justice Scalia 

were here, and we have had so many schools around the country 

now have the DVD of that hearing. And even in the little State of 

Vermont, I have had people stop me, students stop me on the 

street who have seen the DVD, and it is a chance to learn, it is 

a learning experience, and we try to do that periodically here. 

Of course, Justice O’Connor was appointed to the Supreme Court 

by President Reagan in 1981. She served on the Court until her retirement in 2006. I recall—and we talked about this in the back— 

when then-Senator Barry Goldwater from Arizona came to see me, 

as he did others, to praise Justice O’Connor and say that she would 

make a great Justice, and he was absolutely right. She has been 

a leading voice for the importance of civics education. She currently 

serves as Chair of the Board of Directors for iCivics, an organization which promotes civics education in our Nation’s schools. 

I hope, Justice, you were pleased to see the number of students 

who are here. 

Justice O’CONNOR. I am indeed. Thank you. When I was a student a long time ago, I never had the privilege of coming to Washington, D.C., and sitting in on a Senate hearing. So I think it would 

be very instructive for young people to have a chance to do that. 
2 

Chairman LEAHY. Well, Justice, you are bringing a lot of students to Washington with this, and we are streaming it on our Judiciary website. 

Justice O’CONNOR. Good. 

Chairman LEAHY. And I think that discussions like this serve 

our democracy. As public officials, we owe it to all Americans to be 

transparent about what we do in our official capacities. We justify 

their trust by demonstrating how our Government works to uphold 

our common values, how we are guided by the Constitution, and 

how that Constitution has served over the years to make our great 

Nation more inclusive in our continuing effort to be a ‘‘more perfect 

union.’’ 

As I mentioned, with the students, just before Senator Grassley 

came in, I mentioned that Senator Grassley was doing his own outreach to students in a phone call before he came in here. And, 

Chuck, the number of students in here who stood to be recognized, 

that was quite a number. 

We have three branches of Government under our Constitution, 

but only two of them are political, and intended to be political. The 

third branch, the Judiciary, is independent by design. Both of the 

political branches come together in the judicial confirmation process to equip that independent branch with the men and women 

necessary to carry out its role in our democracy. 

I have had a chance to vote on every Justice for the last 37 years, 

starting with John Paul Stevens. 

Justice O’CONNOR. Oh, my, yes. 

Chairman LEAHY. Including, of course, Justice O’Connor. 

Judicial independence and the role of judges in our democracy 

has been the subject of two previous hearings with Supreme Court 

Justices—Justice Kennedy, Justice Scalia, and Justice Breyer. But 

in the wake of recent rhetoric about the sitting Chief Justice, I 

think the public conversation today is all the more relevant. I am 

concerned about some of the rhetoric about the Chief Justice when 

he has been called everything from a ‘‘traitor’’ to having ‘‘betrayed’’ 

President George W. Bush. Well, I think these types of attacks reveal the misguided notion that Justices and judges owe some allegiance to the President who appointed them or to a political party. 

I have served on this Committee for three decades—for more 

than that—and have questioned every Supreme Court Justice serving on the high Court today at their confirmation hearings. I have 

voted to confirm Justices and judges nominated by both Republican 

and Democratic Presidents, as I did in voting for Chief Justice Roberts. I have long noted that I do not vote to confirm individuals to 

the bench because I expect to agree with all of their decisions. I can 

find every Justice I have voted with, I can find decisions that I disagree with. I can find a lot of decisions I agree with. My only 

standard is will they be a fair and independent judge and fair and 

impartial. 

I say this because nobody should demand political allegiance 

from any judge, whether nominated by a Democrat or by a Republican. As many sitting Justices have noted, it is completely appropriate to criticize the rulings of any court—and we have that right 

as Americans—including the Supreme Court. For example, in the 

Chief Justice’s recent health care decision, much of which I dis-
3 

agree, I find the opinion of Justice Ginsburg compelling on congressional authority under the Commerce Clause and Spending Clause. 

But it reveals a complete misunderstanding of our system to attack 

the Chief Justice saying that he has not followed a political party 

or showed allegiance. 

So this is a teachable moment. Justice O’Connor has dedicated 

her life to public service. She has been elected to State government. 

She served on both the State bench and on the highest Court in 

the land. She is the last Justice not to come from what I call the 

judicial monastery. She has traveled the world to teach emerging 

democracies about the importance of the rule of law, and I know 

those have been teachable moments. She has directed her considerable talents to reminding us of the importance of civics education 

so that our own democracy will continue to thrive and be protected. 

Justice O’Connor, I am going to yield to my friend Senator Grassley, but as I told you privately, Barry Goldwater was such a good 

friend, and at his request I moved into his old office, and I have 

been there now for 30 years. You would blush to hear all the good 

things he said about you, some of it in language that I will not repeat in the hearing, but you know Barry. 

Senator Grassley. 

Justice O’CONNOR. Senator Grassley. 

STATEMENT OF HON. CHUCK GRASSLEY, A U.S. SENATOR 

FROM THE STATE OF IOWA 

Senator GRASSLEY. Thank you. Thank you, Mr. Chairman, for 

holding this hearing, and I remember one we had last year that 

was very valuable with Breyer and Scalia, as I recall. Very valuable. So it is going to be valuable to have you here as well, and 

I am glad to greet you for coming. 

Justice O’CONNOR. Thank you. 

Senator GRASSLEY. You were not only the first woman to serve 

on the Supreme Court, you are the first Supreme Court Justice I 

ever had a chance to vote for. 

Justice O’CONNOR. Oh, for heaven’s sake. Good. 

[Laughter.] 

Senator GRASSLEY. My first vote for confirming somebody to the 

Supreme Court. And I can say that, looking back after all your 

years of services, your performance justified the confidence that the 

Senate 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 not on their policy preferences. Judicial independence was 

established to make the courts independent of the other branches 

and independent of 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 role of the courts, unprecedented attacks on judicial rulings would vanish. 

This is a view that I believe is at odds with both the current reality and the history of our country. In fact, the leading reason for 

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 Court’s health care decision, the public ap-
4 

proval of the Supreme Court’s performance was at the 44 to 36 

margin. But the article reported that after the ruling, as many 

Americans disapproved of the Supreme Court as approved of its 

performance. That decision, which some have speculated was 

issued at least in part to reduce political opposition to the Court, 

appears to have accomplished exactly the opposite result, if you 

want to go by that poll. 

The article states that most Americans believe the decision was 

based mainly on the Justices’ personal or political views. Only 30 

percent of Americans say the decision was made mainly on legal 

analysis. 

For myself, I respect the decision, even if I am disappointed by 

that decision, and I question no one’s motives. But I do not think 

that the poll results would be different if only the public had a better understanding of the Court. In fact, I think the poll reflects 

that the public does have reason to suspect that politics enters into 

some Justices’ decisions. 

They accept the decisions, anyway, as shown by the polling on 

18 earlier major cases presented in that article, two-thirds 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 threats to judicial independence have occurred regularly in our history when the citizens were convinced that what the 

courts 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 Dred Scott decision was ‘‘erroneous’’ and refused to 

accept it as a precedent because it reflected ‘‘apparent political 

bias;’’ or when Theodore Roosevelt ran the most successful thirdparty candidacy in our country’s history on a platform of ‘‘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 rulings of State courts; or when Franklin Roosevelt 

tried to pack the Supreme Court because of its rulings striking 

down New Deal legislation. 

So let us keep everything in perspective. It is not a violation of 

judicial independence for a Senator to criticize Court rulings that 

he or she believes incorrect. It is not a violation of judicial independence for a Senator to conduct legitimate oversight of the judiciary. Those are appropriate 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 Justices when they 

cannot respond. Judicial independence could be threatened when, 

after a pending case is briefed or argued, the President publicly 

misstates the process of judicial review and claims that the Court’s 

legitimacy and a particular Justice’s legacy will be tainted unless 

the Court decides the case the way that the President wants that 

case decided. And judicial independence is certainly weakened if 
5 

Justices give in to those attacks rather than decide based solely on 

the Constitution or even appear to do so. 

Finally, I appreciate Justice O’Connor’s work in advancing civic 

education. I believe that all citizens in a democracy benefit from 

the participation of informed and active citizens. I think that the 

iCivics site is a good one, although I wish ‘‘Court Quest’’ told students that citizens can challenge laws on constitutional grounds in 

State as well as Federal courts. It should also say that a trial held 

for violation of a State criminal law claim to violate the Federal 

Constitution would be held in State and not Federal court. And although I have supported Federal efforts to promote greater understanding of our constitutional system, I do not believe that the Federal Government should develop and mandate civics 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. 

Justice O’CONNOR. Thank you. 

Chairman LEAHY. Thank you. And, Justice O’Connor, we are 

talking about iCivics, and here is one of the copies of it. And I 

could not help but think as I look at this, the young man on the 

front looks very much like a grandson of mine. I have got to make 

sure that all five of our grandchildren get a chance to be involved 

with it. 

But, please, Justice O’Connor, we welcome you here and the floor 

is yours. 

STATEMENT OF THE HONORABLE SANDRA DAY O’CONNOR, 

RETIRED ASSOCIATE JUSTICE, THE SUPREME COURT OF 

THE UNITED STATES, WASHINGTON, D.C. 

Justice O’CONNOR. Thank you very much, Senator Leahy, and I 

will welcome questions that you and Senator Grassley want to ask 

to direct the conversation. You have brought up the subject of 

iCivics. 

It is a website that relies on games to teach young people how 

Government works. We have had a wonderful group of skilled 

teachers of middle and high school levels who have helped advise 

us on the topics that we should cover on the next iCivics game and 

so forth. They have helped us 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 a long time ago. I went to school in El Paso, 

Texas. My parents lived on a ranch that was too remote from any 

school, and so I lived with grandparents in El Paso during the 

school term and went to school there. And I well remember having 

a lot of civics classes, mostly based on Texas history, and I got pretty sick and tired of it, to tell you the truth. I thought it was miserable. So 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 in the iCivics website 

a series of games that young people play that illustrates legal principles we are hoping to teach. And the system is working very effectively. 
6 

Recently Baylor University in Texas asked to do a study of 

iCivics through their education department to see the effectiveness 

of the program with students. Their study produced really exceedingly encouraging results. I was thrilled to get the report from 

Baylor about what they found from the use by students of that 

website and the games in it. So I am encouraged by it, and it shows 

me that young people need to know how our Government works 

and how they are part of it. 

It is not self-evident, and in schools today I do not think it is 

widely taught. Young people want to know how to be effective. 

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. 

iCivics tries to do that and tries to help young people develop their 

own proposals and programs and learn in the process more about 

how Government works. 

I think that the effort is effective and being appreciated. I have 

chairpeople now in all 50 States, including in Vermont, and it is 

doing well, I think. I welcome feedback from you and others, your 

constituents, on how they think we can improve what we are doing. 

And we have kept the program free so schools can use it at no 

charge. That is important in today’s circumstances where money is 

not often available for schools to develop new programs. But I hope 

that your constituents will report back to you occasionally on the 

effectiveness of iCivics and keep you informed, 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. 

Chairman LEAHY. Thank you very much. Again, I appreciate you 

doing that. I will make sure that we also get some of the feedback 

from Vermont. 

Justice O’CONNOR. That is good. 

Chairman LEAHY. I will check with Coventry, Vermont. 

Justice O’CONNOR. Absolutely. The town where my ancestors settled after the revolution. It has not grown much, I am afraid. 

Chairman LEAHY. I know. That is an area called ‘‘the Northeast 

Kingdom,’’ and some very special people come from that part of the 

State, including my wife of nearly 50 years. 

Justice O’Connor, you have often commented about how attacks 

on judges can be a threat to judicial independence. 

Justice O’CONNOR. Yes. 

Chairman LEAHY. I was wondering how you felt about the heated 

rhetoric that followed the final days of the Supreme Court session 

last month when a member of the Court was labeled a ‘‘traitor’’ and 

accused of somehow betraying the President who nominated him to 

the Supreme Court as though he should follow political direction 

from a President. 

Justice O’CONNOR. It is unfortunate because I think comments 

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 needed to be 

able to make independent decisions on the legitimacy, the lawfulness of actions at the State and Federal level when they are prop-
7 

erly raised in court. The Framers did a really good job in that regard. 

Not every State has followed the Federal model. Under the Federal model, judges are not elected. They are nominated by the 

President and confirmed by the Senate. In many States, that is the 

process, but not in all. Many States have popular election of judges, 

and the result of that has been the need for candidates to raise 

money for their election campaigns. I think that has a corrupting 

influence on the selection of judges, and it is disappointing to me 

to see the many States that still use judicial elections. I hope over 

time more States will follow the Federal model and have a system 

of judicial appointments. 

Many of the States that have these have a process, however, of 

confirmation or selection that involves public input, and that is 

fine. But I think the Federal model has been a good one for the 

States. 

Chairman LEAHY. I happen to agree, and that is the model that 

we follow in Vermont. 

Justice O’CONNOR. Yes. 

Chairman LEAHY. And it has worked very well, and it has taken 

politics completely out of our judicial system. In fact, we recently 

had a new Federal district judge following—her name was recommended from a bipartisan screening board. I recommended her 

name to the President. But, interestingly enough, she had been 

first nominated to our State court by a Republican Governor, actually someone who once ran against me. 

Justice O’CONNOR. Oh. 

Chairman LEAHY. And I have no idea—to this day I do not have 

the foggiest idea what her politics are and I do not care. 

Justice O’CONNOR. Yes. 

Chairman LEAHY. What I do like is the reaction we have gotten 

from Vermont of what a great judge she is being. 

Justice O’CONNOR. That is good. 

Chairman LEAHY. You do have to keep it out of politics, and 

would you agree with that, that while a judge might be and should 

be appreciative, as you were of President Reagan’s nomination, 

your allegiance is to the law, not to the President who nominated 

you? 

Justice O’CONNOR. I think the allegiance of every Federal judge 

is to the Constitution of the United States and the laws that are 

adopted by Congress. And that allegiance, I think, enables judges 

to resolve the cases that come to them. They rely on precedent. We 

follow the British model of years ago in which a case resolved by 

the Nation’s highest courts, the principles established will be followed by the lower courts in the future until the courts change the 

model or the rule. 

I think the system works quite well. It has served us well in the 

United States through the years, I think. We have a good Federal 

court system overall, in my opinion. 

Chairman LEAHY. Well, let me ask you about that, because during the primaries earlier this year, there were a couple candidates—or more than one, anyway—who said that those of us in 

political office should be more involved in the courts. One even suggested totally eliminating one of the circuit courts of appeals be-
8 

cause he disagreed with one of their opinions. We have heard others say that because we have the power on the courts other than 

the Supreme Court to set their jurisdiction, that anytime we have 

a disagreement, we should have a hearing and remove that. 

I remember standing side by side with Barry Goldwater on the 

floor to fight an effort by one Senator at court stripping even 

though the case where they wanted to strip the jurisdiction of the 

court was one where Senator Goldwater disagreed with the conclusion but felt that the court stripping was bad precedent. 

Would you agree with that? 

Justice O’CONNOR. I certainly do. I think our system is a good 

one. Sometimes a court, a Federal court, for example, will resolve 

some legal issue in a way that not everyone likes, and certainly in 

a body like the United States Senate, comprised of Republicans and 

Democrats, and I guess occasionally an Independent, you are going 

to have some disagreement among the members of this very body 

about whether a particular ruling of a Federal court is correct or 

the best ruling that the court could have made. Obviously there are 

going to be differences of opinion. But under our system, an issue 

that is divisive sometimes will come up again through the courts 

in a different posture. You will have related issues, and over time 

the courts themselves will have a chance to review the precedents 

and the effectiveness of earlier decisions. And the courts can make 

changes over time in the applicable legal principles if they think 

that is indicated. The system has served the Nation quite well, I 

think. 

Chairman LEAHY. One last question and then I will yield to Senator Grassley, but let me just ask you this. We have always talked 

about the question of diversity on the Court, and I want to make 

sure people know you were the first woman to serve on the Supreme Court, and I praised President Reagan at the time, as you 

know, for that. 

Justice O’CONNOR. Yes. 

Chairman LEAHY. But diversity is more than just that. You had 

diversity of background. You had been in elective office. You had 

had a lot of other experience. Today it seems on the Court, while 

we have some wonderful people, they come just from the same judicial monastery, as I call it, the same background. Do you think we 

should be pushing for more diversity? 

Justice O’CONNOR. Well, I think that over the Nation’s history 

we have had a very diverse group of judges on the Court, and 

early, in the first 100 years, let us say, we probably had Justices 

nominated from very diverse backgrounds. That does not happen as 

often today. As you point out, they are more apt to be people who 

have served on Federal district courts, Federal courts of appeal, 

and then being considered for this Court. 

That is not a requirement, and the President with a vacancy to 

fill on the Court is free to choose people with very different backgrounds. In fact, there is no requirement that the person appointed 

be a lawyer. I think they would have a pretty hard time if they had 

not had legal training, so I hope that is not abandoned in the process. But there is no requirement, as you know, in the selection of 

a Justice. In the first 100 years, I think we had a lot more diversity 

on the Court. 
9 

Chairman LEAHY. Thank you very much. 

Senator Grassley. 

Senator GRASSLEY. This is not one of the questions I was going 

to start out with, but you did bring up about election of State justices. 

Justice O’CONNOR. Yes. 

Senator GRASSLEY. Does what you said, leaning more toward the 

Federal system than what the various States have, does that apply 

also to retention elections? 

Justice O’CONNOR. Well, many States that still use appointments 

for State judges include a system whereby after so many years on 

the bench, the judge goes on the ballot in the State for the voters 

to decide whether to retain the judge, yes or no. That is the system 

we actually have in Arizona, and that is a system that I helped develop in my prior years in Arizona. Then the voters have a chance 

to look at the record of the judge and say, ‘‘Do you want to keep 

this judge, yes or no? ’’ 

Not many are turned out of office under that system, but a few 

have been for a variety of reasons. I think it is a perfectly valid 

system for a State to adopt. The Federal system does not have that. 

You do not have a system whereby after a few years on the Supreme Court the voters in America can have a chance to say 

whether a Justice should be retained or not, and I think the Federal system has worked very well. I am not proposing a change. 

But those States that use retention elections have had pretty good 

luck with them. Very few people are turned out. 

Senator GRASSLEY. OK. I want to refer to an article of 2008 that 

you wrote, Denver University Law Review: ‘‘I regret that threats 

to judicial independence seem to be occurring with record frequency. Members of Congress have faulted the Court for their decisions on various issues.’’ 

I do not find any fault with what you wrote, but I would like to 

explore with you some situations and see whether you think they 

could pose threats to judicial independence. 

Could judicial independence be threatened if the President at a 

State of the Union address in front of Justices who are not in a position to respond mischaracterize and criticize Supreme Court decisions? 

Justice O’CONNOR. Well, I do not know that it threatens judicial 

independence. It is just not what one expects as a citizen to hear 

a President in a State of the Union message get specific about Justices’ individual actions on cases and then say the President disagrees. It is certainly possible for a President to do, but it is unusual. It is not how that time is usually spent by Presidents. 

Senator GRASSLEY. Another question. Could judicial independence be jeopardized if the President, while a case has been briefed 

and argued and is awaiting decision, misstates a doctrine of judicial review, claim that a particular ruling would harm the Court’s 

legitimacy and claim that a particular Justice’s legacy will be tainted unless he decides the case in a manner that the President presumably wants? 

Justice O’CONNOR. Well, 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. I think we have not 
10 

tended in this country to speak out at some higher political level, 

either at the State level or the national level, about a decision in 

a pending case. I guess it could happen, but it is not what we expect, and it is not ideal. 

Senator GRASSLEY. Lastly, could judicial independence be jeopardized if a Justice decides a case in a different way than his original view if he does so due to Presidential pressure or out of concern 

that the Court would sustain political damage otherwise? 

Justice O’CONNOR. Well, I am sure that many things go through 

the minds of a Justice in a pending case where a tough issue has 

to be decided, and the Justice may, before the decision is made, 

learn things that cause the Justice to shift the tentative outcome 

in some fashion for that Justice. I mean, you can continue to learn 

up until you have signed on to some decision, and I would not preclude that. I think that is always possible. But it is not often that 

it occurs. 

Senator GRASSLEY. Since I still have time, what would you think 

are the most important elements of a court system that students 

should learn? 

Justice O’CONNOR. The system needs to give the public some assurance of the independence of the judge making the decision, the 

notion that the judge should base the decision on the law and a 

judge’s understanding of the law and the requirements of the Constitution and the laws passed by Congress and to do so fairly and 

independently. That is the concept, and that is what I think the average citizen should be able to understand is the concept and trust 

that that is what is going to happen. 

Senator GRASSLEY. I am going to make a comment. I do not know 

want you to react because I do not where you are on this and I do 

not want you to spoil something I am trying to do, but the Chairman and I promote cameras in the courtroom, and we do it because 

we think that there is a lot of mystery about the judicial branch 

of Government, and the education of the people by having more 

people have access to the courtroom would be a very good thing to 

do, and so I am taking my last minute here to advocate for cameras 

in the courtroom, including the Supreme Court. 

Chairman LEAHY. If you want to take more than a minute to advocate for that, I am all for it. 

[Laughter.] 

Senator GRASSLEY. I am done. I will yield back my time. 

Chairman LEAHY. Did you want to say anything to that, Justice? 

Justice O’CONNOR. I am happy to. 

Senator GRASSLEY. Only speak if you speak in favor of it. 

[Laughter.] 

Justice O’CONNOR. Well, then I had better keep my mouth shut. 

[Laughter.] 

Chairman LEAHY. Justice O’Connor, I have to tell you, you and 

I have known each other for a long time. 

Justice O’CONNOR. Yes. 

Chairman LEAHY. And it is refreshing having you here. 

Senator GRASSLEY. I would respect your view, anyway. I want 

you to know that. 

Justice O’CONNOR. Thank you. 
11 

Chairman LEAHY. One of the valued members of this Committee, 

Senator Klobuchar, is also a former prosecutor. I have a soft spot 

in my heart for former prosecutors, as you know. 

Justice O’CONNOR. Yes. 

Chairman LEAHY. Senator Klobuchar. 

Senator KLOBUCHAR. Thank you very much. Thank you, Justice 

O’Connor, for being here. 

Justice O’CONNOR. Senator, thank you for being here. 

Senator KLOBUCHAR. I truly appreciate it, and you should know 

that when we had the confirmation hearings for Elena Kagan and 

for Justice Sotomayor, I spoke about your background, not just as 

being the first woman but also, as I think it was—I am just doing 

this by memory—that before the age of 14 you were able to use a 

rifle, herd cattle, and ride a horse. 

Justice O’CONNOR. Absolutely. I grew up on a very remote ranch, 

and everybody had to do everything as soon as they were old 

enough to do it. 

Senator KLOBUCHAR. Exactly, and I would assume that some of 

your interest in the civics education was grounded in the fact that 

you came from such humble beginnings and were able to achieve 

so much in this country. And I wanted just to start with that, is 

where you saw this with civics education, what do you think the 

reason is that we are seeing such a decline in civic education, how 

do we improve it, and specifically the iCivics you are talking about. 

Justice O’CONNOR. Frankly, part of it is because we have 

learned, to our dismay, that our American students, when tested 

on math and science, are not doing as well as students of an equivalent age from many other countries, and I think that distresses 

us because our country has been pretty advanced in math and 

science, and we do not want to see our students lag behind. And 

that has promoted an effort to increase education efforts in those 

areas, and it has resulted in the dropping of civics courses. I mean, 

there are only so many hours in a day, and schools have to concentrate on something, and they have tended to maybe do more 

math and science and less on civics. 

And I would just like to be sure that we continue to teach some 

civics to students as they go through. My own concentration has 

been at the middle school level because by then the brain is formed 

and young people are eager to learn, they are receptive and they 

can get it, and it is not too early to start. 

So I think it is important, and students want to know how Government works, how their city works, their county, their State, the 

Nation. They want to be part of it. And the iCivics program teaches 

by way of games where the young people play a role and they play 

the games and learn. It is very effective. And in many cases—and 

I now have it in use in all 50 States, not as widely as it should 

be but it is started in all 50 States—students using it can learn 

how to take a project and get it through some city council level or 

some county board level or even a State legislative level, and it is 

great when they do, because the earlier you learn how Government 

works and how you can be part of it, the better it is. 

Senator KLOBUCHAR. I agree. My daughter is 17 so she has been 

through this, and one of my favorite projects that she did is she 
12 

interviewed Senator Murkowski for an hour and wrote—I think it 

is about a 50-page PowerPoint presentation for her class. 

Justice O’CONNOR. It is fabulous when they do, or—— 

Senator KLOBUCHAR. Lisa said it was more researched than she 

had seen on any—— 

Justice O’CONNOR. Or when they get a specific project and run 

it through somewhere—— 

Senator KLOBUCHAR. Right. 

Justice O’CONNOR.—to get something changed, it is great. 

Senator KLOBUCHAR. It is very good, and I come from a State 

that actually we have the highest voter turnout, I think we were 

number two for the census the last time, and it is just such a value 

in our State of getting involved. And as people feel increasingly 

distanced from their Government, from their courts—— 

Justice O’CONNOR. That is right. 

Senator KLOBUCHAR [continuing]. I think it is a major problem, 

and so much—— 

Justice O’CONNOR. It is. 

Senator KLOBUCHAR [continuing]. Of it is ours to fix. 

Justice O’CONNOR. Yes. 

Senator KLOBUCHAR. Because as a former prosecutor, we would 

find out that it was not always the result in a case—that matters 

to people a lot, but it is how they are treated in the system. 

Justice O’CONNOR. Right. 

Senator KLOBUCHAR. And if they understand what is going on, 

it makes them trust the system. We did surveys about this 

with—— 

Justice O’CONNOR. No question. 

Senator KLOBUCHAR [continuing]. Domestic violence victims. 

They understood sometimes a case would fall apart, but if you were 

not filling them in on what happened and they had no understanding, they would just feel completely mistreated by the system. 

Justice O’CONNOR. Yes. That is right. 

Senator KLOBUCHAR. I appreciate your emphasis and look forward to working with you on this. I know you have done some 

work in Florida and other places. 

Justice O’CONNOR. Yes. 

Senator KLOBUCHAR. I just had some other questions. One is 

about our Supreme Court nomination hearings. When I came in, I 

think Senator Grassley was asking about this. But what do you 

think we could do to improve them? I think they are still important 

for the public to be able to see a Supreme Court nominee answer 

questions, but what do you think could be done better? 

Justice O’CONNOR. It is miserable from the standpoint of the 

nomines. 

Senator KLOBUCHAR. Really? 

[Laughter.] 

Justice O’CONNOR. Well, it is horrible. From the standpoint of 

the public, it is perhaps the only chance the public will have to see 

a nominee and have some appreciation of their style and their 

manner and how well they answer the questions, or how poorly, 

and to have some understanding of the process. It really does matter to the public. So I think the system in that regard works fairly 

well. 
13 

Senator KLOBUCHAR. And what do you think about the—you 

know, the nominee answering questions I think is key, but then 

afterward there is this part where we have sort of like both sides, 

those who favor the nominee or put on witnesses and those who oppose. 

Justice O’CONNOR. Yes. 

Senator KLOBUCHAR. And to me, honestly, that seems—I know 

people want to have a chance, but it seems just so political in 

terms of—— 

Justice O’CONNOR. Well, it is, but that is the nature of the political House and Senate. I mean, you are the political branch of Government here. 

Senator KLOBUCHAR. My favorite one was one of the people that 

came on for, I think it was, Justice Sotomayor. He had known her 

when she was 12, but then he went on, I think, to be at the 

NAACP or something, he had a reason to be there. But I said, 

‘‘Well, what was she like when she was 12? ’’ And he said, ‘‘She was 

very judicious.’’ 

[Laughter.] 

Senator KLOBUCHAR. So it just made me think maybe we could 

change that part of the process because it just seemed so pro and 

con, and that is one idea I had. 

Justice O’CONNOR. It would be hard to do because you have a 

vote at the end, and the members want to express some views. 

Senator KLOBUCHAR. Yes. 

Justice O’CONNOR. So that is hard to change, I am sure. 

Senator KLOBUCHAR. It is. And then one last thing about—I 

know you have been a vocal advocate on the problems with judicial 

elections. 

Justice O’CONNOR. Yes. 

Senator KLOBUCHAR. Have we seen States ending judicial elections in recent years? And are there any reforms that you can 

think of that can be made, short of ending elections? 

Justice O’CONNOR. This is really important. I think the Federal 

model of appointment and no election of the Federal judges is the 

best model, and some States have followed it but not all. And a 

number of States still have a totally elective process for selecting 

judges. I think that is very unfortunate because it means raising 

money for campaigns, and there is just no way to be comfortable 

with that in the judicial scheme of things. It is not good to have 

judges that you know have had to take campaign contributions 

from certain interests. It is a worry. 

So I hope that more and more States will follow the Federal 

model of not having judicial elections. Many States—in fact, my 

own—have retention elections periodically so that after a period of 

years, the judge’s name goes on the ballot, and the voters can vote 

whether to keep the judge or not. They are not running against 

anyone. It does not require massive input of funds, and 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, and it seems to have worked to some extent. 

Senator KLOBUCHAR. Very good. Well, thank you so much for 

being here today. 

Justice O’CONNOR. I am so glad to be present. 
14 

Senator KLOBUCHAR. I look forward to working with you. 

Justice O’CONNOR. Thank you. 

Senator KLOBUCHAR. Thank you. 

Chairman LEAHY. Thank you very much. 

Senator Lee. 

Senator LEE. Thank you, Mr. Chairman. Thank you, Justice 

O’Connor, for joining us. 

Justice O’CONNOR. I did not see you come in. I am sorry. 

Senator LEE. That is OK. 

Justice O’CONNOR. I should have turned my head. 

Senator LEE. I am easy to forget. 

[Laughter.] 

Senator LEE. But it is a pleasure to have you with us. 

Justice O’CONNOR. Thank you. 

Senator LEE. I have many fond memories from my childhood 

watching my dad argue cases before you on the Supreme Court 

where you would ask him questions from behind the bench. I do 

not think I ever imagined as a 10-year-old that there would come 

a time when I would be sitting behind a different bench and asking 

questions to you. 

Justice O’CONNOR. Your father was marvelous, by the way. He 

was such a good lawyer. He really did a great job, and we miss 

him. 

Senator LEE. Thank you. Thank you. 

Chairman LEAHY. And I agree with that, Mike, I want you to 

know. 

Justice O’CONNOR. He was fabulous. 

Senator LEE. We miss him. He was a proud Arizonan, as you 

know. 

Justice O’CONNOR. Yes, he was. And I used to see him when I 

was in the State Senate and in committee hearings, as you are sitting here, and he would come in and present material on various 

issues affecting the State, and he was effective in that regard as 

well. He really was an amazing man. 

Senator LEE. That is good to know. Thank you very much. 

I wanted to follow-up with you about a comment you made a few 

minutes ago about retention elections in State judicial positions. 

Justice O’CONNOR. Yes. 

Senator LEE. You indicated that the impact that—the tendency 

to politicize the State judicial systems that those retention elections 

might have is relatively limited for the reason that they tend not 

to result in the removal of the judicial officer on—— 

Justice O’CONNOR. Not very often. 

Senator LEE [continuing]. Very many occasions. 

Justice O’CONNOR. Right. 

Senator LEE. Is there a possibility, do you think, that they might 

nonetheless have some politicizing effect, just the in terrorem effect 

of the retention election, is there a chance that that might affect 

the judge’s decisionmaking process? 

Justice O’CONNOR. Well, I guess there is always a chance. I prefer a system that does not involve elections at all, but many States 

do have the retention elections. And at a minimum, it gives the 

voters an opportunity at some point down the line to say, yes, I am 
15 

satisfied with this judge and I vote to retain the judge, or the reverse. And not many are removed by retention election. 

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

Justice O’CONNOR. That is right. There are not a lot of campaign 

contributions being raised. 

Senator LEE. In some cases, not any in some States. 

Justice O’CONNOR. Right. In most cases, I think not any. 

Senator LEE. Yes, so it really is—— 

Justice O’CONNOR. But it is possible. 

Senator LEE. And it typically requires, I think, something of a 

supermajority vote to oust a jurist, depending on—— 

Justice O’CONNOR. It depends on the State. 

Senator LEE. That is right. What about the judicial nominating 

commissions that are within States? I believe you have been kind 

of an advocate of what is sometimes referred to as the Missouri approach or—— 

Justice O’CONNOR. Yes. 

Senator LEE. Whereby State judicial nominating commissions 

meet and will give advice to the Governor, will advise the Governor 

on whom to appoint. 

Justice O’CONNOR. Yes. 

Senator LEE. Do you support that model? 

Justice O’CONNOR. I do. It is a model that I helped support in 

my home State of Arizona and that we have had experience with 

now over many years, and it has worked well. So I think that is 

a pretty decent model. 

Senator LEE. Is there an argument to be made that commissions 

like that might have a tendency to insulate the appointing Governor from the political process in a way that is not helpful and in 

a way that might make the appointing Governor less accountable 

to the voters rather than more? 

Justice O’CONNOR. Well, I have not seen it that way because the 

Governor has to make the appointment and say, yes, I am going 

to consider these names and here is who I pick. I think it has 

worked all right. 

Senator LEE. Yes, and I suppose that—in my State, I believe, the 

Governor has the option of rejecting the entire slate if he or she 

feels that—— 

Justice O’CONNOR. Yes, yes, and that is true in my State, too. If 

the Governor feels she did not get good names here, she can reject 

the whole batch and ask for more names. 

Senator LEE. If you had your druthers, I think I heard you say 

a minute ago you think the Federal system is the best model. 

Justice O’CONNOR. Yes. 

Senator LEE. Is it the best model just for the Federal Government or do you think the best model for the States would also be 

the Federal system whereby the Governor would have appointment 

power—— 

Justice O’CONNOR. That is up to each State to decide, what do 

you feel in your State is the level of voter participation that you 

need to have to make the system work for your State. And if some 

mixed model, such as most States seem to have today, where voters 
16 

have a retention election where they can weigh in, we do not have 

that at the Federal level, you know. 

Senator LEE. Right. 

Justice O’CONNOR. But if a State thinks that helps, fine. It seems 

to not do too much damage and it is OK. So if the voters in a State 

approve of that, I think that is all right. 

Senator LEE. OK. But you are just fine with the Federal model 

the way it is; you are not advocating a change. 

Justice O’CONNOR. That is correct. 

Senator LEE. OK. Now, when a State system gets really bad— 

I have long shared, by the way, your concerns with States that 

have contested partisan elections to fill the vacancy at the outset 

because I think it is difficult to reconcile that with the need for judicial independence. 

Justice O’CONNOR. Right. 

Senator LEE. Where you have a State system that follows that 

approach and you have a system that apparently is inappropriately 

influenced from time to time in a destructive way, do you think 

there is ever a reason for the Federal Government to consider intervening, or is that up to the State? 

Justice O’CONNOR. Well, I think it is up to the State, but certainly most States, if you are going to consider something that affects the State at least, are going to have an opportunity to hear 

from voters on the proposals and have some debate at the State 

level. And that is good. You will hear all this if you do. 

Senator LEE. But you certainly would not regard that as a due 

process concern of the sort that would warrant Federal legislation 

requiring States to do it one way or the other? 

Justice O’CONNOR. No, I do not think so. We have left the States 

free to choose their own method of judicial selection. 

Senator LEE. Right. And 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. 

Justice O’CONNOR. Yes. 

Senator LEE. And we have to respect that in order for our system 

to operate correctly. 

Justice O’CONNOR. Yes. 

Senator LEE. What would you advise the Federal lawmakers 

about how best to protect that system—not the Federal jurists but 

the Federal lawmakers about how they can protect the Federal system and the distribution of power between State government on 

the one hand and the Federal Government on the other hand? 

Justice O’CONNOR. Well, all members of this body, the Senate, 

come from one or the other of the States. You are all representatives of your States, and you have had experience in your own 

State with what the voters care about in terms of judicial selection. 

I am sure all of you have had that. So I do not think I need to give 

any advice on the topic. You are going to have plenty of it at the 

State level, is my guess. 

Senator LEE. We do get advice from time to time. 

Justice O’CONNOR. All right. 

Senator LEE. Thank you very much, Justice O’Connor. I see my 

time has expired. 
17 

Justice O’CONNOR. Thank you, Mr. Lee. 

Senator LEE. Thank you, Chairman. 

Chairman LEAHY. Thank you very much, Senator Lee. And as I 

told you privately before, I agree with Justice O’Connor’s reference 

to your father, and I cherish knowing him. 

We have Senator Blumenthal of Connecticut, former Attorney 

General of his State, and I will yield to Senator Blumenthal. 

Senator BLUMENTHAL. Thank you, Mr. Chairman. And as a 

former Attorney General for some 20 years, I am a very strong believer in federalism. 

Justice O’CONNOR. Yes. 

Senator BLUMENTHAL. And I would agree with Senator Lee that 

we get advice, but I also would suggest that we need advice, and 

so any ideas you have on that score, but also I want to focus on 

a point that Senator Grassley made in his opening remarks, which 

is the apparent decline in public approval, poll numbers. We all 

dismiss poll numbers when the results do not suit us, but they still 

are reflective of something happening. And the reason we are here 

today in a sense is because of the need to educate the public about 

what you did for so many years with such distinction and dedication in serving on the U.S. Supreme Court, and we all have a reverence, if not respect, for the institution and the need to preserve—— 

Justice O’CONNOR. Yes. 

Senator BLUMENTHAL [continuing]. The legitimacy and credibility 

of the institution. So I wonder if you would give us your assessment as to why there has been this decline in the public’s approval 

or respect for the institution. 

Justice O’CONNOR. I wish I knew. I did not conduct the polls, so 

I am not sure. I have read some articles about the polling that took 

place and the argument being made that perhaps the decline—the 

percentage of U.S. voter approval of the Supreme Court historically 

has been higher, generally, than that of the other two branches, 

and in very recent months, it seems to have declined rather substantially. And a suggestion has been made that that began with 

the Bush v. Gore decision. I have no idea if that is correct in terms 

of the assessment of the polling. It is conceivable because that was 

a very tense case that involved the holdovers from a very close election, and people would probably feel deeply about it and maybe be 

concerned. 

So perhaps that was the tipping point for a decline. I hope the 

decline will be temporary because the Supreme Court functions extremely well. I think as we look worldwide, we can be proud of our 

Court. It has served the Nation well and I think by and large is 

a marvelous institution. 

So I would think over time opinion would turn upward again. I 

certainly hope so, and I would expect that. 

Senator BLUMENTHAL. And I would agree with you certainly in 

the assessment of the Supreme Court’s work and in the hope that 

public approval will increase over time. 

Justice O’CONNOR. Yes. 

Senator BLUMENTHAL. And as one who has done arguments in 

the Court and has been a law clerk in the Court and has watched 

and observed the Court, I think the public often simply does not 
18 

see the work that the Court does, because by and large it is not 

Bush v. Gore or Citizens United. 

Justice O’CONNOR. That is right. 

Senator BLUMENTHAL. Its day-to-day work is much more mundane and complicated and challenging in certain intellectual ways, 

but less politically charged. 

Justice O’CONNOR. Right. 

Senator BLUMENTHAL. And so I wonder—and I know you were 

asked about it earlier—whether increasing public access to the 

Court’s work, whether—— 

Justice O’CONNOR. Like cameras in the Court? 

Senator BLUMENTHAL. Well, I know you were asked about that. 

[Laughter.] 

Justice O’CONNOR. Well, I did not really address it, but I do 

think it is important to remember that every word that is said in 

that courtroom is transcribed and available that same night, and 

if anybody wants to see and read what was said, there it is in black 

and white. There it is, you have got it in hand. So it is not that 

there is a lack of ability to know what is going on. It is there. It 

is just do we have to have it on camera and on the television, or 

is it enough that it can be available that very night and you can 

read it? I guess it boils down to that. 

I am a reader so, you know, do not ask me probably. I tend to 

read more than I watch television. 

Senator BLUMENTHAL. Well, I am not going to comment on reading versus television because everyone has his or her own style—— 

Justice O’CONNOR. Yes, that is right. 

Senator BLUMENTHAL [continuing]. Of learning. But in light of 

the prevalence of television and the impact, the powerful effect of 

the visual portrayal, I wonder whether you think that it might be 

worth considering opening at least certain arguments to broader 

view, and if not that, whether there is some way of increasing the 

potential attendance at Supreme Court arguments, because, after 

all, the number of people permitted in the courtroom is very small 

compared to the numbers who would like—— 

Justice O’CONNOR. It is limited because the courtroom is not that 

large, so you are never going to have a huge crowd that can sit in 

the courtroom. There are some adjacent chambers where you can 

hear it as it is argued, but not see it. And I guess this is a discussion that is going to continue for a while. You have members of the 

Court at present who are not at all comfortable with televising the 

proceedings, and I think if and when a change is made, it probably 

is more likely to be made when the members of the Court are willing to accept that. 

Senator BLUMENTHAL. And some of the members of the Court 

have sat where you are right now and said, in effect—and I am 

taking great license with their remarks—in effect, not over my 

dead body. That is how vehement they were in opposition to televising the Court hearings. 

Justice O’CONNOR. Yes. 

Senator BLUMENTHAL. But I think, if I may respectfully suggest, 

you are in a unique position because not only are you a highly respected member, former member of the Court, but also have the 
19 

perspective of many years in different branches and at the State 

level and so forth. 

Justice O’CONNOR. Yes. 

Senator BLUMENTHAL. So your opinion I think would carry great 

weight if and when you are willing to set it forth. 

Justice O’CONNOR. Well, my opinion is there should be general 

agreement that putting cameras in the court 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 sort 

of in sync on that kind of a move. 

Senator BLUMENTHAL. I want to thank you for being here today, 

for honoring us with your presence, and for your many, many years 

of extraordinary work for our justice system. And my time has expired, but I really think that your presence and your testimony has 

helped to enhance education. Any additional thoughts I know that 

you will let—— 

Justice O’CONNOR. Well, thank you, Senator. I really have been 

spending enormous time on my iCivics effort to educate young people how our Government works and how they can be part of it. I 

will say that I think the method we are using with the games is 

extremely effective. We have had it tested. Baylor University recently completed a rather extensive test, and they came back with 

extraordinarily good reviews of the effectiveness, which is encouraging in the extreme, and we will continue to develop some additional games on somewhat different topics to keep people informed 

and engaged. It works with young people, so I am excited about it. 

And it would be wonderful, if when you speak to schools in your 

States, you will encourage them to use it because it does work. 

Senator BLUMENTHAL. I would be honored and delighted to do it. 

Justice O’CONNOR. Good. 

Senator BLUMENTHAL. Very much so. 

Justice O’CONNOR. Good. That is great. 

Senator BLUMENTHAL. And I hope that we can follow-up as a 

member of the Committee and learn more about how we can get 

into the details. 

Justice O’CONNOR. Good. I have managed to keep it free, and 

with today’s costs of changing programs, that has been important. 

Senator BLUMENTHAL. Free is good. 

Justice O’CONNOR. Yes, I think so, too. 

[Laughter.] 

Senator BLUMENTHAL. Thank you. 

Senator KLOBUCHAR. Mr. Chairman? 

Chairman LEAHY. Yes? 

Senator KLOBUCHAR. I just want to note for the record that one 

Justice who came before this Committee, Justice Kagan, to followup, actually did say she wanted it televised. I know you know that, 

Justice O’Connor. 

Justice O’CONNOR. Yes. 

Senator KLOBUCHAR. So maybe we will see that change that you 

referred to over time. So thank you very much. 

Justice O’CONNOR. Thank you. 

Chairman LEAHY. As one of the ones who was here when we had 

the debate of televising the Senate, I remember we had—I do not 

know, Jeff, if you were here at that time or not. We had some vehe-
20 

mently against it, some in favor of it, others who could go either 

way. Notwithstanding some grandstanding we have seen since 

then, I think it has been a good thing for the American public to 

see how we deliberate. 

Senator Sessions, thank you for being here. Incidentally, before 

you came in, we noted that there are a lot of students in the room, 

and that is no doubt in relation to the Justice’s iCivics program. 

Justice O’CONNOR. Yes. 

Chairman LEAHY. So we have a lot of students here in the room. 

Go ahead, sir. 

Senator SESSIONS. Justice O’Connor, it is great to have you with 

us. 

Justice O’CONNOR. Thank you. 

Senator SESSIONS. I just so truly believe—and having traveled 

around the world a good bit, Armed Services Committee, in some 

difficult places, I am more convinced of the precious nature of the 

rule of law in America than I have ever been. 

Justice O’CONNOR. Absolutely, Senator. It matters. And we have 

been promoting that since the breakup of the Soviet Union. And I 

think the American Bar deserves some credit here because when 

the Soviet Union began to break apart and these nation states 

began to form, lawyers gathered together and they went over and 

served as unpaid volunteers in many of these forming countries 

and helped develop judicial systems and the notion of the rule of 

law. And it really has been a good thing. 

Senator SESSIONS. I could not agree more. But I would just say 

I remember early after the Iraq invasion being with General 

Petraeus in Mosul, and he had re-established a court. 

Justice O’CONNOR. I know. 

Senator SESSIONS. They found some judges, and they tried to appoint lawyers and have trials like we do. 

Justice O’CONNOR. Yes. 

Senator SESSIONS. But I think you know—and the real truth is 

it takes many, many years, decades, even centuries to create the 

kind of legal system we are blessed to have in the United States. 

Justice O’CONNOR. It does. You cannot do it overnight or even in 

a year or 2 or 3 years. It takes long-term development. 

Senator SESSIONS. Justice O’Connor, I am of the view that the 

Court needs to maintain its independence, its detachment from politics as much as it possibly can, and to the extent that the Justices 

are concerned that cameras might erode that even a little bit and 

create more of a political spin on the careful legal work they do, 

I support you, I support the Court in not having cameras in the 

courtroom live and would just say fundamentally I think it is a decision left to the judicial branch, not the legislative branch. 

I remember being in the chair one day, Mr. Chairman, when 

Robert Byrd spoke. He would come down on Friday around 11 

o’clock and make speeches pretty often, and that was my time to 

preside. He made a speech about textbooks, and he discussed democracy and a republic and the differences between the two and 

how the textbooks had not properly delineated the difference. And 

his closing line was it was ‘‘touchy-feely twaddle in our textbooks.’’ 
21 

So to the extent which you are working to help our young people 

understand this magnificent legal system that we have, I thank 

you very much. 

Pursue this a little further. To me, the most pernicious thing 

that could be taught to young people is that the courts are not 

independent adjudicators of discrete legal problems, but that they 

are somehow a part of the political process and their rulings are 

based on political stresses and pressures and views of Justices, and 

that this could erode the kind of respect Americans should give to 

the courts. Is that a concern for you? 

Justice O’CONNOR. Very much so. I agree with you completely, 

and it is best to maintain the independence of the judicial branch. 

That is what the Framers designed. It has worked quite well at the 

Federal level, and we need to try to maintain it at the State level 

as well. 

I happen to think that holding judicial elections in States is not 

the best way to go, that that lets too much poitical influence in 

through campaign contributions. That is dangerous. We do not 

need to do that. 

Senator SESSIONS. I can see that concern. I am not sure I share 

it, but I certainly understand it. 

Justice O’CONNOR. Yes, yes. 

Senator SESSIONS. And I think it is a valid concern. 

Justice O’CONNOR Yes. 

Senator SESSIONS. The Constitution contemplates that the courts 

would be independent adjudicators. I was pleased when Justice 

Roberts referred to it as an independent—what did he say?—a 

‘‘neutral empire.’’ 

Justice O’CONNOR. Yes. 

Senator SESSIONS. Like in a ball game, the umpire does not take 

sides to advance one team or another, but does its best every day 

to call the balls and strikes. 

Justice O’CONNOR. Yes. 

Senator SESSIONS. I think that is an image or metaphor that is 

valid and that we should push. 

Now, there are times when people on both sides think the Court 

does not do that. 

Justice O’CONNOR. I am sure. 

Senator SESSIONS. And they think that the Court is allowed personal and ideological and so forth views, political insights to impact 

their decisionmaking. 

First, would you agree that Justices should seek to guard against 

that and to live within the oath, which is to be a judge under the 

Constitution and the laws of the United States? 

Justice O’CONNOR. Of course I do, yes. I served on that Court for 

25 years, and I entered it without a lot of inside knowledge but 

with respect for the structure the Framers developed. I left after 

25 years with the knowledge and understanding that it works remarkably well along those lines. So I think we have been fortunate. 

Senator SESSIONS. Well, I think that my personal view is that 

the greatest danger to the independence of the American judiciary 

would be a belief on the part of the American people that it is not 

adhering to that role but is using the power to interpret the words 

of statutes and the Constitution to advance an agenda, and that 
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would be a great tragedy if that were to happen and people were 

to lose confidence. 

Justice O’CONNOR. Yes. I agree. 

Senator SESSIONS. And with regard to criticizing the courts, I 

have tried to—I believe a Senator and an American citizen has a 

right to question the Court, but I believe we should do it respectfully. 

Justice O’CONNOR. Yes. 

Senator SESSIONS. And some of the criticism that I have seen 

from the Congress I think has been over the top. But I would say 

that, in my view, if a nominee comes before this Judiciary Committee for confirmation and they are not philosophically committed 

to the limited role of a judge or their record indicates that they are 

not, I cannot give them that lifetime appointment. So that is sort 

of my standard, within the range of disagreements over how to interpret law and Constitution. If you are outside that, then I 

think—then you are not under the Constitution—I should not give 

you a lifetime appointment. 

I guess good people can disagree—Senator Leahy and I agree 

sometimes, sometimes we do not—about where that line should be 

drawn. But I do think Congress has a role to try to ensure that the 

judiciary remains a neutral umpire. Would you not agree? 

Justice O’CONNOR. Yes. The Senate plays a very key role in the 

overall process in terms of agreeing at the outset who is going to 

be serving and who is not. 

Senator SESSIONS. I would just conclude by saying how much I 

appreciate your interest in educating the next generation. 

Justice O’CONNOR. Yes. 

Senator SESSIONS. Because I have become convinced that we are 

not fully appreciative of the uniqueness of the wonderful legal system we have, how it is unlike almost any nation in the world. It 

has served us magnificently. It has created our growth, prosperity 

and freedom. 

Justice O’CONNOR. Yes. 

Senator SESSIONS. And if we get a misconception about how the 

legal system works, I think it could endanger it. 

And, Mr. Chairman, thank you for having Justice O’Connor to 

share her thoughts with us. 

Chairman LEAHY. Well, thank you, Senator Sessions. She is now 

the fourth Supreme Court Justice who has come before us as partly 

an educational thing. The iCivics, I like that very much. 

Senator Sessions mentioned the views we hear in some other 

countries. It is kind of an eye opener. I recall when one nation that 

had been under a very totalitarian form of government moved toward democracy, and a group of their leaders came to see me, and 

they said: ‘‘Now, is it true that in your country sometimes people 

sue the Government? ’’ 

Justice O’CONNOR. I know. 

Chairman LEAHY. I said, ‘‘Well, yes, it happens all the time.’’ 

Justice O’CONNOR. Right. 

Chairman LEAHY. And he said, ‘‘But is it true that sometimes the 

Government loses?–’’ I said, ‘‘Often happens.’’ And they said, ‘‘Well, 

then do you replace the judge?–’’ And when I explained, it was almost like, you know, in the cartoons where the light bulb goes on. 
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Justice O’CONNOR. Yes. 

Chairman LEAHY. They realized that we really are different. 

On the iCivics website that Senator Sessions and others have 

talked about, a majority of the Supreme Court Justices in the game 

‘‘Supreme Decision’’ are women, which is—— 

Justice O’CONNOR. That is my fault. 

[Laughter.] 

Chairman LEAHY. Hey, listen, my wife’s family came from Canada, and in Canada the majority of the Supreme Court are women, 

and the Chief Justice is. 

Justice O’CONNOR. Well, the Chief Justice in Canada is a woman, 

and they have had historically more women on than we have. It 

was not a majority, but—— 

Chairman LEAHY. That is right. Now, to what extent do you 

think diversity on the Court or anywhere in the top of our branches 

increases public confidence? 

Justice O’CONNOR. Oh, I think it does. I mean, our citizens like 

to look up at the U.S. Senate and see some diverse faces, skin 

color, et cetera, up there. And they like that at the judicial level, 

too, for courts of appeal that have multiple members. I think it 

gives the citizens some confidence. 

Chairman LEAHY. In an interview with Nina Totenberg a few 

years ago, you noted that statutes and constitutions do not protect 

judicial independence, people do. 

Justice O’CONNOR. Right. 

Chairman LEAHY. What people are you referring to? 

Justice O’CONNOR. Well, the judges, for one thing, and the voters 

who in the States put in a system that enables the citizens to have 

confidence in that system. 

Chairman LEAHY. I described the system we have in Vermont 

where the Governor appoints the judges, the legislature votes consent. After a period of years, the legislature has a vote on retention. 

Justice O’CONNOR. Yes. 

Chairman LEAHY. 99 percent of the time they are retained. 

Justice O’CONNOR. Yes. 

Chairman LEAHY. What do you think of a system like that? 

Justice O’CONNOR. Well, it is just one—— 

Chairman LEAHY. In other words, the legislature, not—— 

Justice O’CONNOR. It is one step removed from the public. I 

guess it can work. If the State is satisfied with it, fine. But you 

could set it up that way if you preferred, but I think most States 

that have retention elections refer the people to the voter. 

Chairman LEAHY. Yes. But when it is referred to the voters, that 

would be the time when people would start having to raise money 

for campaigns, is it not? 

Justice O’CONNOR. Well, normally it will not if it is just one 

name up for retention without being contested at some level. There 

would be no need for campaign money. 

Chairman LEAHY. That is a good point. 

A few years ago, you interviewed Justice John Paul Stevens, and 

this goes back to some of the questions on the confirmation. You 

said that—it came out in that interview that you both agreed on 

the fact that sometimes at a confirmation hearing, when you are 
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answering questions and issues come up and you may have a different view at the time the issue comes up. 

Justice O’CONNOR. Yes. 

Chairman LEAHY. Is that a fact? 

Justice O’CONNOR. Yes, that is a fact. 

Chairman LEAHY. And have you had that happen to you, without—— 

Justice O’CONNOR. Well, I do not remember specifically. Possibly. 

I do not remember. 

Chairman LEAHY. Well, would you agree with me that it would 

be a mistake if in the confirmation process that we should be able 

to expect that we are going to get a very specific answer on how 

you are going to vote on a case 5 years from now? 

Justice O’CONNOR. Yes, I think that is probably not a very good 

question to even ask a prospective Justice. 

Chairman LEAHY. But is it valid to ask questions of one’s judicial 

philosophy? 

Justice O’CONNOR. Of course. 

Chairman LEAHY. OK. 

Justice O’CONNOR. Absolutely. Absolutely. 

Chairman LEAHY. And their background? 

Justice O’CONNOR. Absolutely. 

Chairman LEAHY. OK. Senator Blumenthal, did you have anything further? 

Senator BLUMENTHAL. No, Mr. Chairman. 

Chairman LEAHY. Senator Sessions. 

Senator SESSIONS. I do not. 

Chairman LEAHY. Well, again, just for the two of you who came 

in after, again, would the students stand up, all the students who 

are here? I think this is great. 

Justice O’CONNOR. That is good. Yes, you still have a lot who are 

listening. That is good. 

[Laughter.] 

Chairman LEAHY. Well, Justice O’Connor, I thank you very 

much. I thank all of you who are here. But, Justice O’Connor, I 

thank you very much for coming. 

Justice O’CONNOR. Thank you, Senator Leahy, and thank you, 

Senators, for your interest and your presence. And if you have suggestions about iCivics or ways of telling people in your State to use 

it, if you are comfortable doing it, I hope you will because I think 

it will help us. 

Chairman LEAHY. Well, I have some grandchildren who are going 

to get a chance to. 

Justice O’CONNOR. Good. All right. I do, too. 

Chairman LEAHY. Thank you. We stand in recess. 

Justice O’CONNOR. OK. Thank you. 

[Whereupon, at 11:24 a.m., the Committee was adjourned.] 

[A Submission for the record follow.] 
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