Greg Joseph: Good evening. Ladies and gentlemen, I'm Greg Joseph, President of the Supreme Court historical society, and I'm delighted to welcome you this evening to the society's celebration. Of the 30th anniversary of the first term of Justice Sandra Day O'Connor on the US Supreme Court.
We are deeply honored to have with us this evening Justice O'Connor, Justice Ruth Bader Ginsburg, Justice Sonia Sotomayor, and Justice Elena Kagan. This is the first time the four of them have joined together for a public program, and we are extremely grateful that they've done so this evening to join in this celebration.
We also want to thank Jim Duff, the CEO of the freedom forum and the freedom forum for making this magnificent space available to us at the Newseum this evening. Jim, long prior to his being CEO at Freedom Forum, has a history with the Supreme Court Historical Society, dating back to his time as Administrative Assistant to Chief Justice Rehnquist, and before that Chief Justice Burger.
I also want to thank Society president Emeritus Frank Jones for his generous donation to help support the events this evening Frank was a distinguished president from 2002 to 2008 and only because of illness isn't with us this evening. Our panel this evening consists of the four women who to date have served on the United States Supreme Court.
Even to Summarize each of their careers with highlights would take far too long. So I'll be very brief Justice Sandra Day O'Connor was nominated to the court by President Ronald Reagan on July 7th 1981, and she was confirmed by the Senate on September 22 1981 to succeed Justice Potter Stewart. She served for the next 24 years and she retired on January.
Excuse me, January 31 2006. Justice Ruth Bader Ginsburg was appointed to the court by Justice William Hughes made by President William Clinton on June 14th, 1993, and she was appointed and confirmed by the Senate and assumed her role on August 10th. 1993. Justice Sonia Sotomayor was appointed by President Barack Obama on May 26 2009.
And assumed her position on August 8th 2009 the following year Justice Elena. Kagan was appointed to the court by just by President Barack Obama on May 10, 2010 and assumed her position on August 7th, 2010. We are honored and grateful to bring all of them together to celebrate. The 30th anniversary of the groundbreaking tenure as it began of Justice Sandra Day O'Connor, I'd ask everyone to turn off cell phones and blackberries.
And with that. I'm going to turn the program over to Jim Duff. Thanks very much Jim.
Jim Duff: Thank you very much Greg. We're delighted that the Supreme Court storable Society is having the celebration of Justice O'Connor. 30th anniversary of her appointment to the Supreme Court here in the end and burgtheater at the Newseum.
We're very honored you're here with us this evening Justice O'Connor and we're also very very pleased and honored that justices Ginsburg Sotomayor and Justice Kagan or here with us on a very special night. It's all the more special because it's the fourth anniversary of the opening of the Newseum so we couldn't have done.
Better to celebrate that I would say we have we haven't we don't have a quorum but we have enough to Grant cert here tonight. I don't know if there's anything you might want to consider but. We'll move onto some softer questions. I think Justice O'Connor your nomination as the first woman to serve on the Supreme Court of the United States 30 years ago was certainly historic.
It was also a very closely guarded secret William French Smith writes in his Memoirs that of hiding you and clandestine meeting at Dupont Circle of a drugstore to.
Sandra Day O'Connor: He wanted to get me down to the White House to meet with the president. He had asked me to come back here and meet with some of the president's close advisors, which I did and he had rented Hotel space some place downtown.
So that we could meet that day and his members of his cabinet several of them had come and they were able to ask questions. And so then at the end of the day he said in the president would like to see you if the White House is afternoon. I've never been to the White House. I've never seen it. I didn't know where it was.
And I said well, where is it?And he said well I can explain it to you. But he said I'll tell you what I'll do. I'll ask my secretary to pick you up and she has an old Green Chevrolet and she'll pick you up on Dupont Circle. If you're out there. I had a meeting at Dupont Circle of a an organization to which I belong so I went out on Dupont Circle and waited and here came the old green car and the secretary picked me up and drove me down the lighthouse.
And we were admitted and made our way in due course to the Oval Office and it's so small. I mean, it's such a shock to get in there you think oh my gosh. This is the White House's president's office and it's this tiny little oval place. So we sat down and talked and it was very pleasant. He. A man very easy to talk to yes it is.
So it's great. That's how it all started.
Jim Duff: These days we see lists emerge and there's not so much secrecy around in their final listed. You think that's because it's just more difficult to keep a secret as to who's being considered or is it just a different approach?
Sandra Day O'Connor: I was touring the Newseum today, and they can tell you, I don't think you can keep any secrets in Washington.
I felt alright that's impossible.
Jim Duff: Was it a goal of yours to become a Justice?
Sandra Day O'Connor: Good Heavens no. Goodness. No, it certainly was not and I wasn't sure what I ought to do because. It's alright to be the first to do something, but I didn't want to be the last woman on the Supreme Court. Thank goodness for that.
If I took the job and did a lousy job, it would take a long time to get another one. So it made me very nervous about it.
Jim Duff: You paved the way for some great justices. When did you first think about it? Was it–
Sandra Day O'Connor: When he sent Ken Starr and some other people out to Arizona to talk to me and they wouldn't say what it was for. And so it could have been some cabinet post or something like that.
They wouldn't tell me and we had some nice visits, but they'd done a lot of homework out there. They'd gone through all my papers. And I had served in all three branches of Arizona's government so I had a big paper trail. He had to go through I guess.
Jim Duff: Who are your role models where there were what for you were a Trailblazer?So I guess you are the role model for everyone else. I suppose Justice Ginsburg. Where were you and your career with Justice O'Connor was appointed and what did it did it have any special meaning for you at that point in your career?
Ruth Bader Ginsburg: It was a moment.
One of those two in life that you remember exactly where you were and how you felt. I had been on a DC circuit for exactly one year and I was driving home turn on the news and the News wasn't for himself every day. Yeah, okay, and I was about to cheer but no. When hear me.
and then I found out what I could about this great lady including. What good lunch is she made when when when can store and whoever came with him? This is attorney Phoenix and I read but I knew that she'd been. Head of the senate in Arizona and auto trial court intermediate appellate court and you had been to a conference.
On federalism in William and Mary. Yes, and I've gone to a couple of those meetings with people from the British Isles lawyers and judges. Remember those that Warren Burger initiated. I'm gone to a couple of those. I certainly wasn't well known in the judicial community and Nation Justice Sotomayor.
Where were you with the in your career?
Sonia Sotomayor: I was almost at the beginning my second year after graduating from law school two years after I graduated in the DA's office in Manhattan, and I remember having conversations at lunch time. In that awful yell cafeteria talking about how long it would take for a woman to be appointed to the Supreme Court and there were bets being taken whether it would happen in our lifetime or now.
So the unlikelihood or the fact that it was still something we weren't sure of bespeaks how historic it. It only two years later son. Drew was appointed. What did it mean to you at that time in your career? Well in law school, there were no women on the Supreme Court. There was no woman on the court of appeals in my state New York most large law firms that at the time were a few hundred lawyers today, there are thousands but back then they were still a number of them that had no women lawyers.
And so for us in my time at law school that the doors were opening, but they were very very small openings. And so the idea that this barrier had been reached so quickly was sort of an inspiration to think that more could come and that certainly that opportunities for us would grow. And so they obviously have because Ruth followed took too long Elaine and I followed shortly thereafter.
I mean, it's just fabulous to have all these women on thecoral reefs. I will say for President Reagan when he was campaigning to be. He didn't think he was doing too well with the female votes and he started making statements about if I'm elected president. I would like to put a woman qualified woman on the Supreme Court and he made enough of those statements that then about four months after he had become president Potter Stewart Justice Stewart retired.
And there he was faced with what to do with what he said. Yeah. Well, he was a man of his word. Justice Kagan. Where were you and your career when Justice O'Connor was appointed.
Elena Kagan: Well, I was still two years shy of going to law school hate to rub it inbut even I knew enough to be impressed. I just graduated from college actually. And I remember the announcement and thinking interesting what a stunning thing. Did it have particular meaning to you at you thought at that time about going to law school and perhaps becoming a judge or just was thinking about it.
It was one of the things that that I was mulling over but I remember the announcement and and feeling very. Very inspired by it you clerk for justice Marshall when Justice O'Connor was on the bench true and did what was that was that particular meaning to you? You know, she she was a formidable person even at even a clerk who formidable Justice O'Connor was you going to tell your joke about the your caps?About what the cash? Oh, okay. Okay. Here's my Justice O'Connor joke from when I was born. So Justice O'Connor founded one of Justice O'Connor's achievements on the cord, which he founded in exercise group. Yes, and she likes to have women clerks come to the exercise group. Yeah, and I failed to come to the exercise group.
Noticedwell, that's the story. In fact, I used to play basketball instead. I used to play basketball on anybody. I didn't go to the exercise group and one day I tore something in my leg playing basketball and I was on crutches for a few weeks and the the day after is happened. I was on crutches. I was walking down the hallway and Justice O'Connor was walking the other way.
And she stopped and she said what happened and I said, well, you know, I Torah whatever I tore playing basketball and she sadly shook her head and she said it wouldn't have happened in exercise class.
Sandra Day O'Connor: And I'm sure that's true.
Ruth Bader Ginsburg: But is it 8:00 in the morning? I'm a night person.
Elena Kagan: I told her the same thing too.
Sandra Day O'Connor: Yeah I haven't done too well in–I still have my class. It's still going on. I went this morning as a matter of fact, at 8 a.
m. And it was good. And it, that meant a lot to me to have that class, I that just really mattered and all the years. I was in Arizona. I had an early morning exercise.
Jim Duff: You were a Trailblazer in many ways and that exercise class at the at the Supreme Court was one of the first in that regard.
What are you doing for exercise now Sandra Day O'Connor: I go to my exercise class, what do you mean?
Jim Duff: Do you still play golf?
Sandra Day O'Connor: Yeah every once in a while. I'm not very good and that's not much exercise.
Jim Duff: You know, it is for me. I do a lot of wild. How do you enroll in that or it maybe it's enlist how do you enlist in your exercise?
Sandra Day O'Connor: See me, I'll get you in.
I got Justice Breyer up there a few times, but he didn't want to be the only man up there. So if you join too, maybe we could get it.
Jim Duff: President Reagan signed your nomination to the court on August 19th, 1981 and you would confirmed by the Senate on September 21st, 1981 by a vote of 99 to 0. You took your oath on September 25th 1981.
We've certainly seen remarkable changes in the appointment and Confirmation process since then. Do you have any observations about the current state of the nomination process and what it's a little–
Sandra Day O'Connor: Well, it's less likely to be 99 to nothing. I think seems to be a little more controversy than there was at that time.
I at the time I went on I think it was expected that whoever was the incumbent president would fill a vacancy on the court and if she didn't have horns and look too frightening, they'd confirm the nomination. I think it's changed a little bit since then. I'm sorry to say.
Jim Duff: And Justice Ginsburg, you have had more recent experiences with it.
Do you have any observation and Justice Sotomayor and Justice Kagan to do you have observations to make now about now, you're safe you're on the court you can you make about the process, but it was a much different process. But Sonia and Elena that it was for me because I was the beneficiary. And the Senate Judiciary committee's embarrassment over the nomination of Justice Thomas and they wanted to make sure that they were civil.
Yes. They want to make sure that they were women on the Judiciary Committee. So my hearing I it was rather dull and the vote wasn't 99, but it was close. It was 96 2 3. And Justice Breyer was also a beneficiary of that atmosphere mean the Senate back in 1993 and 94 was truly bipartisan Senator.
Hatch was I think my biggest supporter on the committee. So I wish we could get back to the way the way it was in those years. What about your experience? Just I think that. What we Fallen prey to is the Public's expectation that there are answers to every question that hearings going to be a place where a perspective judge is going to say, yay or nay to whatever social issue and outcome and individual member of the public believes it.
and I think. That's so long as that expectation continues to be fed. By both the pundits who examine our records for tea leaves about how we're going to vote on certain issues or Not that we're never going to satisfy anybody with the system as it currently exists. Because the reality is if what you're attempting to do is to get clear answers to how we're going to rule on cases that are coming before the court.
I think better be suspicious if you have a nominee who says this is the way I'm voting right because it will suggest that that person is coming in with a premade of mind and an unwillingness to listen having said that. I at least found that my personal meetings with the senators were very civil by and large and to that extent.
It was easier to deal with the sort of public grilling that I received and knowing that it was each of us playing our role for purposes that I wish were different because it did become sort of role playing in front of the camera. But I don't know that we're going to be able to satisfy people so long as the expectation of what they're expecting from the process Remains the Same.
Justice Kagan to do you have well, there's no doubt that the two of us experienced a different process from the two of you. I remember thinking at one point during the process people were asking me what I thought of all the things that Justice Ginsburg had wrote and I thought I'm being asked as much about Justice Ginsburg as she was asked isn't there enough that I have to answer for?But you know, I wish that there were more bipartisanship in the in the current process. But that said I do agree with Justice Sotomayor that senators of both political parties. I felt treated me fairly and respectfully and it's it's a shame that it sort of come to a past where where people.
Republicans feels though they can't vote for the nominees of democratic presidents and vice versa. This made me more of an issue with the appellate courts and the district courts, but do you think it would be helpful if the Senate imposed a rule on itself of a time frame to vote up or down on a nominee rather than because some of the.
Pellet and District Court nominees dragged on for over a year and the nomination process. I think you write that it is a problem. For the courts of appeals and the district courts tell me you had experience with that. However is between your nomination. It was nothing really and I don't think Alana's was either it was just a couple of months for both of us.
I mean for the second circuit, oh for the second circuit, it was 22 months in court nominee. It's going to be short. It's going to get top priority and it will go through in a matter of weeks. But but it is still the case. It's been the case for some time that you can be nominated to a court of appeals and wait months and it's on his case 22 months.
I had 18 for the district court as well. Well good weights can be terribly. If they would just put a time limit on themselves and then move vote up or down and then move on that would be helpful. It seems just O'Connor when you arrived at the court, I recall an atmosphere of Civility on the court that time I think of Justice Powell and others and it continues certainly to this day in fact Justice Thomas.
Just spoke last week at the University of Kentucky. Which won the National Basketball Championship. Just recently. Oh you noticed. Yeah. We got soul just as well and he commented that he's never heard a harsh word or unkind word spoken in. Conference with the conference in which the nine justices meet. How important is civility in the work of the court?
Sandra Day O'Connor: I think it's vital.
I mean it's a small group of nine and I think it's exceedingly important that everyone be polite and kind and pleasant to each other. I think that's. You have to disagree on the merits of things, but you can disagree agreeably. And I think that's very important and the court does well on that score.
I think Jim Duff: how is it preserved when there's turnover on the court? I know I think Claire Cushman who's with historical society has written in her book Court Watchers that for example, Justice Ginsburg. Does Justice white gave you his Chambers manual to assist you or their other?
Ways in which Sandra Day O'Connor: I didn't know there was a manual, I never got one.
Sonia Sotomayor:
All the secrets Ruth Bader Ginsburg: are only see that was the internal operations within his Chambers.
Oh whip in his hand to me and he said it to me in the DC circuit and he said don't open this until you're confirmed. But when you confirm maybe it will be a little help. Look, my Clerk's job every year is to update it and I gave my manual to Sonia and to Elena when they came on board. So that was a tremendous help.
There's wonderful Traditions that the court and certainly Civility and in recent times has been a strong attribute of it. Do you think that the other branches of government should emulate it? Is that possible or they so different in structure and your future. Nine members on the court. So it's a small institution and they live and work in quarters that caused them to see each other frequently and I just think it's very very important that the relations remain cordial and friendly and thoughtful and I think they have I think we're lucky there was a time when the Senate was known as the gentleman's club when it was.
Great deal of cordiality and that has gotten that's gone to myself. Let it go at the court if Justice Ginsburg will remember the other day when we were having this conversation about why there's more civility in more recent times on the court than perhaps in its earlier history. Do you remember what you said Ruth?Perhaps she doesn't she said it's because we've had women for the last for my guess is that that's especially true of Justice O'Connor, you know Justice, Justice Thomas once told me we have a tradition on the court where. Eat lunch together after after we hear arguments and after we have conference, so it ends up being 8 or 10 or 12 times a month and just as Thomas once told me that if ever he went a couple of days without going Justice O'Connor would appear at his doorstep and say Clarence.
Why aren't you there one lunchtime? And you know, you you you encouraged everybody to participate in those kinds of communal. And I think that's very important. I do too. You know Justice Ginsburg was Justice O'Connor's presence on the bench of particular help to you when you join the court.
Yes advisor my big sister. She told me a little bit just enough for me to get fine in the early days. Then. I came to her with a problem when when the chief. Made assignments at the end of the University. the legend was that the junior Justice gets an easy unanimous case and it was true. Yeah.
Yeah, that's right. But the old Chief gave me a miserable Aretha case divided 6 to 3. So I went to Sandra thinking that you would persuade her. Have good friend Chief to revise the assignments. So I told her and she said Ruth you just do it before he makes the next set of assignments and that's really her attitude toward life.
She just does it whatever. Needs to be done when Justice O'Connor and you were on the court together. You were called Justice O'Connor on more than one occasion each term and Advocates seldom seemed to confuse Justice Scalia and Justice Breyer. Why do you suppose that that was the case joint 10 years.
I think the most likely to be confused would have been. Justice souter and Justice Breyer. I know let's see look something a lot could have confused people. I think you would never call Justice Ginsburg, but I might have been I'm not sure but there were some misstatements up there and I remember one time it was one of my former law clerks who made the mistake, you know, he knew who was he gets so nervous up there if anything can happen.
It was a former. Solicitor general there was a law professor. And I think people it isn't a tense time for The Advocates. I'm sure and they get up there and her so concerned about everything that anything can slip out in terms of. Calling names your comment about Justice souter and Breyer reminds me of a story Justice souter likes to tell he was out to dinner one evening downtown and someone came up to him and said o Justice Breyer.
I think you are the greatest Justice on the court. I really admire your work. Can you tell me who is your favorite Justice on the court and. Justice souter said well, I think by far the greatest intellect on the court is David souter,you know, the story about the National Association of women judges had a reception after my appointment and they presented us with t-shirts. Sandra's red I'm Sandra, not Ruth Mine. I'm Ruth nuts and remove I once saw an argument where the lawyer confused to women. I'm not sure I think it was actually when you were on the court.
So I think I might have been Justice Ginsburg and Justice Sotomayor who were confused but and and then 20 minutes later. The same lawyer confused two men on the court and I think that II was purposeful. I think he realized he had done it once and darned if he wasn't going to do it again being with gender-neutral e that's the difference that three makes because we haven't been confused three of us have not been confused.
I thought it had happened once. and I think it was you and I. But but that is also understandable because we flank the two ends of the court and I'm told that you can't always hear where the voices are coming from. So I'm giving them an excuse. What were your biggest challenges in joining the court and I all of you probably had different kinds of challenges.
But Justice O'Connor you being the Trailblazer.
Sandra Day O'Connor: Oh, trying to write opinions that not only deal with the issues but in a way that is useful and will be long-lasting. And that's a challenge. It really is. Many of these issues are issues that are ones where the lower courts have been in total disagreement and sometimes for a long time and things that matterthat are important or the court wouldn't have had to take them. And when you have to put down on paper permanently, the test that you're going to apply and see how it works. That's a challenge every single time, and you really want to do it well. And you won't know until many years have gone by how well you've succeeded.
You can tell instantly.
Ruth Bader Ginsburg: For me opinion writing wasn't new because I had been on the DC separate for 13 years, but was new was the death penalty cases. I had no idea that the Supreme Court would it deals with so many eleventh-hour applications for stays?And it was a whole newjust sort of my work. Do you do it was walking into a continuously running conversation that you're a newcomer to? I can't say how many conferences my first year adjust this would explain. His sometimes her position and I thought their explanation would be coming out of left field and it would take justice stevens or sometimes Justice Alito or Breyer who would see my note of.
Incredulity on my face. What are they talking about to lean over and say oh this has to do with this picadillo. They have about XYZ that wasn't argued by the parties and I certainly hadn't anticipated being part of the reasoning and that went on. And I remember the first time when Justice Kagan came in when she leaned over and said what are we talking about?There was some sense of satisfaction that after a year. I could actually explain something. But it is when you're working with the same nine people with the same other eight people that not same nine people are working together. It is a long-running conversation at times and moments coming into the middle of it can feel just like that is a very interesting observation.
I remember Justice Brennan wants saying to me that he had been on the court for. Couple of decades at that point and that is the thing about serving so long is that you've seen all these cases before the issues are very similar the come up year after year or so the ongoing conversation. That's a very astute observation Justice Kagan if you're a veteran now after a term and a half and are you still.
Are there still challenges for you adjusting or you know every day is a challenge but you know for me I had never been a judge before and just figuring out the mechanics of the job, you know, have these four clerks. What do I do with them? You know, what's the best process for drafting an opinion?When do I read the briefs do I read them the day before or the week before so all those things which I think most of my colleagues are just sort of figured out what process has worked for them. I was very much last year and and continuing to sort of do. Trial and error and experiment a little bit and figure out what worked for me as serving as a solicitor general.
Did you find that helpful and useful? Yeah, hugely helpful, if you know because you're just sort of looking at the court from a somewhat different vantage point, but but really spending all your time thinking about those nine people and what they're doing. So sometimes I think that the job doesn't really change at all that solicitor general.
My life was spent trying to persuade nine people. And now it's just trying to persuade eat people.
Justice O'Connor Justice Ginsburg you both served as the only female on the court during a period of time and you both I recall expressed hope for another female appointee during those times. It's it may be obvious. And obviously it should be obvious given the this conversation, but why is it so important to our country and to the court?Have–
Sandra Day O'Connor: Maybe you haven't noticed, but I think about 51 or 52 percent of the population are females.
And I think they notice when their public bodies are dominated entirely by one sex. I think women care about that, and they should. So I really think that's part of the deal.
Jim Duff: That is indeed. When you join the court in 1981 the court heard 184 cases that term. It heard 82 cases last year.
Sandra Day O'Connor: Isn't that amazing?It just shows they're not working.
Jim Duff: As they would say in Kentucky did these youngins have it easy?
Sandra Day O'Connor: They do. I mean it was a devastating amount of work, I'll tell you. Because you had to go through all the petitions for certiorari and that was new to me. I couldn't do it quickly. I could after many years, you've seen them before but that was hard. And then to have so many opinions to deal with was very challenging.
Ruth Bader Ginsburg: I would like everyone to know that I still work tonight. I don't think the job is any easier. I do think one thing has has been reduced substantially and that is in the old days when they were hearing a hundred fifty cases. You would get these terribly fractured opinions where someone would announce the Judgment of the Court.
An opinion in which Justice so-and-so join part 1 D and to I think with with fewer cases, there's less of that kind of fracturing.
Jim Duff: It would be you know, I think that yes, I from external observation. I would say that the opinions are crisper, cleaner, and easier to understand these days. It's probably better for the court.
There are several theories as to why the court is hearing fewer cases, everything from fewer conflicts among the circuits to differences. I guess my question is are there mechanical reasons internal to the court as to why this may be the case as well.
Sandra Day O'Connor: I'd be interested to hear that, too. I'm not sure why the number of cases the court is granting or fewer. I think the numbers of petitions are still I I don't think this is–
Jim Duff: Actually, that's probably that's one of the reasons I know that justices are working just as hard because you reduce so many cert petitions a over 8,000 a year and I didn't mean to suggest you weren't working hard.
Sonia Sotomayor: No, I have to say that I'm not quite sure how you manage. That number eight years before because I know I'm at the max where I am. There's I know because I looked at many of the studies and the discussions about why the court is taking less your numbers now and I wasn't sure when I read the studies that I really adhere to any Falafel to any reason as being the reason I.
Even being a part of it now. I'm I don't think the court purposely there's no conscious are conscious efforts to suppress the number. I don't think we look at the number and say we can't take more than x number this year. So we're going to turn this case down because it adds too much to our workload.
I know that for myself I can only speak for myself. I'm very conscious about is this a case with procedural vehicles or not? And a lot of those cases that I read from years before the court wasn't even reaching the issue that they are granted cert on because there were vehicle problems that they were addressing and resolving and never reaching the substantive questions.
Ruth Bader Ginsburg: There is that there is one contributed to it. That's it. It's not the whole