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A Justice Reflects
Fred Schilling / Newscom
With Sotomayor's hearings two weeks away, former Justice Sandra Day O'Connor tells Walter Isaacson she regrets she wasn't replaced by a woman and says real-life experiences matter.
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.
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More Credit Deserved
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).
deegeezee
Justice O'Connor is often derided by both conservative and liberal law professors.
That means she was probably one of our better justices. I'll miss reading her opinions.
Hawnzz
Me too...
joymars
"I was disappointed when I stepped down that I wasn't replaced by a woman."
WHAT? She stepped down at the absolutely WORST political time, GUARANTEEING she would be replaced by an ultra-conservative MAN.
I will NEVER forgive her for not waiting until Bush was gone.
deegeezee
no, no. a conservative was guaranteed, a man was not.
AiriqS
And Judge O'Connor was appointed by a "ultra-conservative MAN".
A bit of irony, don't you think?
Lotto1
Bush was gone She appointed Bush to the Presidency so she could retire. That was her great reasoning for all of us suffering. Miss her never and who cares what she has to say?
AliceJ
She stepped down because her husband was getting progressively worse. She felt she needed to care for him. I don't think we should fault her for that decision. Sadly, his Altzheimer's progressed much more quickly than anyone anticipated and he soon didn't even recognize her.
roger37
Sandra Day O'Connor voted for Bush in Bush v Gore, hoping that she would eventually be appointed Chief Justice of SCOTUS--the first woman in that position. And that's why she stayed into his second term.
When it became clear that W was going to put Roberts in the CJ position, she retired, ostensibly to take care of her ill husband.
Who says this? Her personal acquaintances. Google her and Bush and read the quotes.
She gave us Bush for at least 4 of the 8 years for reasons of personal ambition. She knew Bush was incompetent, but didn't give a damn.
Patco13
Forgive? I would say she requires no forgiveness. Her husband was ill and she didn't have the luxury of waiting.
Tango121
While most of her time on the court was good for America, the 5 to 4 narrow decision to overturn 250 years of case law, and allow private property to be taken from a citizen and given to another citizen so the latter can make a profit will be a black mark on her many years of good work on the court.
Hawnzz
Nobody is perfect..
foolscap
Tango -- I assume you are talking about Kelo. If so, you are wrong on 2 counts. First, the case upheld existing case law, and second, Justice O'Connor wrote a dissent.
Josh-Narins
The way I hear it, Justice O'Connor wrote that she would be satisfied that gender equality had been reached when the numbers were 50/50.
However, when it comes to skin color, that whole formula goes out the window, and she'd be glad to get rid of all affirmative action in, say, 50 years.
She is not a reputable character when it comes to discussing equality.
Hawnzz
It also gets incredibly more complicated trying to match equality with only 9 positions. Women make up about 52 percent of the human population. They should get 5 out of the 9 seats. And from there you would have to break it down by skin color, by fractions... Lord help us.
AiriqS
Just to be a mathematical nitpicker, it is impossible to get to 50/50 on a 9 judge court (unless we nominate a trans-gender judge)
:)
Hawnzz
I know :)
Josh-Narins
She didn't mean on the Supreme Court, she meant in the workplace, generally.
sadie101
There is a difference in affirmative action that lowers the bar and discrimination that raises the bar.
From Femisex.com, writing about this Daily Beast story:
"Another commenter finds fault with O'Connor b/c she wants women represented on the Court in relation to their percentage of the population.
Josh say O'Connor is a hypocrite b/c she would phase out affirmative action in another 50 years. I think we all need to be clear the difference btw affirmative action and gaining representation in relation to population.
No one is saying we need to lower the bar to put women in powerful spots at rates that equal their percentage of the population. On the contrary, we want qualified women put in power. On the court we now have one black justice, and blacks are 12% of the U.S. population. Thus this is a proportional representation. Women, on the other hand, are 51% of the U.S. population and there is one on the Court-that clocks women in at 10% representation.
When women don't pass a test, we will not sue to say there was discrimination in the test. Women MUST pass those tests. Period."
AiriqS
I liked her comment about Obama's quest for empathy - I'm not quite sure what that means. I have always tried to set aside emotional feelings when deciding a case."
Quite a lady; and an astute comment on Obama's political pandering.
Hawnzz
I don't know if it is pandering, or if he truly believes that the court should look at how it's rulings affect the populations which must live under those laws. Too often the court rules EXACTLY according to it's political party slant... (and that is sad) On the Supreme Court there should be no political slant, only justice.
roger37
Yeah, well she forgot to "set aside" her feelings of personal, naked ambition in Bush v Gore.
And "emotional feelings" are not what "empathy" is referring to. It's an obstructionist strawman argument against Sotomayor trumped up by the Old Men from the South (Repubs).
imac1025
At first, I heard that comment about empathy and was confused---law is about the letter not about feelings. But then I thought about what he meant. The law requires empathy, not sympathy. Empathy means being able to understand what it would be like to be in the other person's position. That is exactly what law is about--it is based on the principle "do unto others as you would have done unto you". Law is based on universalizable principles, ie, dont murder, because you would not want anyone to murder you. Therefore, empathy is precisely what a justice needs to execute the law to the most just extent
writerforhire
Justice O'Connor is right; the court certainly needs more women represented.
It just doesn't need Judge Sotomayor's. Her past record that includes legislating from the bench and a dual judicial system, one for the common man (non-corporate lawyer) and one for the elite (the corporate lawyer) is the type of duality that has caused a severe breech in the American judicial system.
In common man language: lawyers are like family and you're cutting them a break. I understand a covering a speeding ticket but violent serial criminal activity and clear violations of the constitution cannot be covered with the casualness of a speeding ticket. "No man is the above and her previous rulings allow leeway in the law for those she deems "elite."
Additionally, Sotomayor's bench rulings have collided with the high court's opinions and in reality are removed from the current landscape of the American fabric. Diversity in America is in a pendulum swing with minority siftings that have & will be addressed through the high court, including opposed discrimination. Clear thought and unbiased opinions must be the rule.
Hawnzz
According to her record, she is a very unbiased judge. I'm sure every judge would have certain cases that could be debated. She has always taken a centrist line and has even been backed by conservatives in the past.
We are not going to find perfection. Her record is impressive. Her life is impressive. I don't think we can expect to find alot more then that. (Though there were a couple other choices Obama had that were very good too.) (But this is also about politics... and when it comes to politics, the man is good. The fact Sotomayor is latin, is political maneuvering at it's best.)
TotalRecall9
A biased judge is a horrible judge!
If somebody breaks in and robs a judge's house, we don't want that judge to go to court and start "throwing the book" at every defendant that appears before the judge. Then, when the police arrest two black male suspects, we don't want that judge to take it out on all black male defendants. This is a big reason why "life experiences" is not something that a judge should rely on when making a verdict and sentencing.
Isn't justice suppose to be equal and not subject to influence?!? But, judges have become biased political appointments! Case in point is the recent New Haven firefighters' case...a 5-4 decision that should have been 9-0. There was no bias in the test and, in fact, the city went out of their way to see there wasn't any bias. But, just because they didn't like the color of the skin of all the top scorers, they wanted to throw out the test. This is clear discrimination!
Hawnzz
Look at her record as a WHOLE... NOT JUST ONE CASE! Her record as a whole is very centrist and stands up very well. She has been supported by both conservatives and liberals. She is a good choice. (I am not saying she is perfect.)
But what I know of her record as a whole... it stands up very well.
TotalRecall9
Another case...the challenge to New York's ban on nunchucks as violating the 2nd Amendment. Sotomayor et al. ruled that the 2nd Amendment rights do not apply to the states, but only to federal land. THAT is bouncing off-the-wall NUTS!
roger37
The only person who thought the firefighter's case should be 9-0 is Rush Limbaugh. So we know how much you think for yourself.
pbwest
You are misunderstanding the idea of "life experiences" and how it is used in court decisions.
Although you clearly disagree with any logic used by the dissenting judges in Ricci v. DeStefano, go back and read Justice Ginsburg's opinion. She urges us to be accutely aware of the real life history of written exams, which have been explicitly used, in the past, to bar professionally qualified yet rhetorically inferior minorities from higher positions in police and firefighter stations.
The majority claims that one must have a "strong basis of evidence" to prove that the issuance of the exam results would have subjected the city of New Haven to litigation which liabled them under disparate impact. She points out that there are other documented ways of testing for promotions -- methods that don't involve judging the written language of some people for whom english is their second language. Some communities have even banned written tests as a means to determine promotions in police & firefighter offices, and parts of Title VII speak specifically to limiting the usage of written tests. For her, the negative illusions in this situation, and its context within the history of racism, serve as the basis for the "strong evidence" the majority cited as necessary.
This is what I take it to mean that "life experiences" should be utilized by judges. Unfortunately, this decision was a stiff-armed policy move, proved by the fact that the majority refused to send the case back down to the lower courts to actually pursue the "strong basis of evidence" clause that they created in this decision. Such is the case w/ the rule of law -- the majority always wins.
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speekup
Just one small niggle here, after all this continuing brou-ha-ha about "empathy." The word, in its strict sense, simply means the cognitive ability to imagine circumstances you yourself have not experienced. It means nothing about "emotional attachment" to those circumstances--that instead is "sympathy" (which we know would be a frightful quality in a judge!). Do we really not want our judges to be "open-minded"--we want their minds closed to anything except the strictest meanings of the law? That could only work if the world never, ever changed--and we know that's not gonna happen.
imac1025
good point...i just wrote something similar above before I had read your post--exactly what I was going for though
cbl99201
She did a creditable job and served her country well.
mycomment
she will forever be remembered for hoisting that incompetent, ignorant texas pos to the presidency of the united states.
roger37
Absolutely. And for reasons of her own career. Remember that she was a politician, not a judge at first. She was in the Arizona Legislature.
She thought W would make her the first Chief Justice of SCOTUS. When it looked like Al Gore might win, she complained about it (as a justice of SCOTUS), and then she denied she said that.
motrbotr
See, I feel the appointment should go to the best qualified at the time. Appointing a woman because she is a woman or a hispanic because they are hispanic or white for being white or black for being black are all stupid ideas. What the hell is wrong with this country that we should hire someone simply because of their minority or sex or race or whatever. How about the best person for the job. what the hell is wrong wtih you people? Im not saying conservatives do it any better but come on. Could Sotomayor be any more racist? If i ran around telling folks I am better off for this job or that because i am white and have better life experiences than someone who grew up in the projects or better qualified. Id be lucky to come out alive. Whatever. Appoint whom you want. The US is going to hell in a handbasket and I dont think we can stop it if we wanted to.
roger37
Hey, Alito said he would be a better judge because of his ethnic Italian background, and nobody batted a damned eye. The racism crap is simply something the Rethugs dragged up to obstruct the appointment.
And Barack's statement of wanting empathy is also not a valid criticism. Empathy does NOT mean emotional involvement. So the Teflon-coated Sandy Day O'Connor is wrong when she makes that connection.
Empathy is NOT sympathy. Empathy simply means the ability to momentarily place yourself in someone's shoes and look at a situation from their point of view. Sympathy is emotional involvement, which can lead to bias.
This line of argument against Sotomayor is all bullshit.
Slamlander
I like the last bit "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 was badly suprised that it wasn't mandatory. Civics Class should be mandatory! That's how we get responsible voters!
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