This week, former Supreme Court Justice Sandra Day O’Connor was at the Aspen Ideas Festival. On the day before the conference began, she sat down with Aspen Institute CEO and former Time editor Walter Isaacson to talk about the court, the qualities that make a good justice, and the need to preserve the independence of the judiciary.
States where there are partisan elections encourage judges to collect money for their TV ads, and they get a lot of it from lawyers who appear before them in court or from corporations that have cases.
Are you happy that a woman, Sonia Sotomayor, has been nominated to fill the latest vacancy on the Supreme Court?
I should say so. I was disappointed when I stepped down that I wasn’t replaced by a woman. It’s important for people to look around and see that women, who make up slightly more than 50 percent of the population, are represented on the court.
Judge Sotomayor’s supporters say that her background and life story would make her a good addition to the court. Should such things matter in picking a justice?
We’re all creatures of our upbringing. We bring whatever we are as people to a job like the Supreme Court. We have our life experiences. For example, for me it was growing up on a remote ranch in the West. If something broke, you’d have to fix it yourself. The solution didn’t always have to look beautiful, but it had to work. So that made me a little more pragmatic than some other justices. I liked to find solutions that would work.
You were the last elected official to serve on the court. You were the Republican leader in the Arizona state Senate, and you served in all three branches of state government. Was that important to your work on the High Court?
Absolutely. And here’s something I want to emphasize. It’s important for the Supreme Court to have a broader set of life experiences than just people who have served as judges. Judge Sotomayor’s appointment would mean that all nine justices are products of the federal courts of appeals. It used to not be that way. I was from state government. William Rehnquist had never been a judge before he was appointed to the Supreme Court. Lewis Powell had never been a judge. But they had broad real-life experiences, and I thought that helped make them good justices. In years past, you always had people on the court who had not spent their entire career as judges.
Do you think empathy is an important quality for a justice, as President Obama has said?
I’m not quite sure what that means. I have always tried to set aside emotional feelings when deciding a case. When you’re deciding an abstract principle, I don’t think it’s helpful to have an emotional attachment. But you do have to have an understanding of how some rule you make will apply to people in the real world. I think that there should be an awareness of the real-world consequences of the principles of the law you apply.
Does that apply in particular to affirmative-action cases?
On a question like affirmative action, you can’t simply go back and try to ask what the Founders thought.
Are you worried about threats to judicial independence these days?
Very much so. I have hosted four conferences on this issue. We are seeing increasing attacks on judges, who are being accused of being secular or activist or godless.
Do you think it’s a good idea to elect state judges?
Election of judges is a terrible way to go. Originally, most states had appointed judges, like we have on the federal level. President Andrew Jackson, as part of his populist approach, encouraged states to move to elected judges. In today’s climate, that’s an awful thing. States where there are partisan elections encourage judges to collect money for their TV ads, and they get a lot of it from lawyers who appear before them in court or from corporations that have cases.
An example is the recent case of the Massey Coal Co. It had lost a trial and faced a $50 million verdict, which it appealed to the West Virginia Supreme Court. In the meantime, there was an election for one of the five seats on that court. The company spent $3 million to help elect one of the candidates. That candidate won, and then refused to recuse himself from the case and cast the deciding vote to overturn the verdict against the company. The U.S. Supreme Court concluded that this was a violation of the due process clause. I think it’s an example of the problems of state judicial elections.
What’s a better system?
I like the system we had in Arizona, which I helped develop as a state senator. It’s a merit selection system. A bipartisan citizens’ committee considers potential judges and makes three recommendations to the governor for each vacancy. The recommendations include people from each party. The governor gets to choose, or in some cases ask for more options.
What’s the best way to protect an independent judiciary?
It requires civics education for all of our students. Barely a third of our people can name the three branches of government. Half of the states have quit requiring civics classes. We need to restore those classes. I’ve tried to further this by creating a Web site, ourcourts.org, that explains to young students the role of the court system. This summer we are even adding some interactive games to it. Maybe that will help the next generation learn how important an independent judiciary is.
Walter Isaacson is president and CEO of the Aspen Institute, a nonpartisan educational and policy studies institute based in Washington, D.C., and was previously chairman and CEO of CNN and editor of Time magazine. He is the author of Einstein: His Life and Universe (April 2007), Benjamin Franklin: An American Life (2003), and Kissinger: A Biography (1992), and co-author of The Wise Men: Six Friends and the World They Made (1986).