Host
And that is very high praise from him. Maybe growing up in the arid West now draws you to its waters. In appreciation for all that you have done for us and for the nation. We offer you a small token of appreciation and hope that the waters of the West will bring you back to us in the years to come. Justice O'Connor, thank you. And our, the gift is a fly box, inscribed, "Presented to Justice Sandra Day O'Connor, with appreciation, from your friends in the Ninth Circuit, July 21, 2005."
Sandra Day O'Connor
But what's in it? Aha. All right. Now this looks like some serious fishing flies that I will very much enjoy trying to put to use with better luck than I had on Tuesday. And it's a perfectly wonderful box and the flies look great. And I can't imagine a better thing for you to leave with me to tempt me to come back many times. Ninth Circuit territory.
Host
Thank you judge–
Sandra Day O'Connor
Now they're gonna make me go to work.
Host
Thank you, Judge levy. Justice O'Connor. Your announcement took us all by surprise. Was it a difficult decision for you?
Sandra Day O'Connor
Yes. Yes. It's been such a privilege to serve on the Supreme Court. When I was little, I always wanted to work. I wanted to work at some kind of work worth doing. Something where the individual effort put in would make a difference. And I was so privileged to serve 24 years at work that fitted that category very well. And then some. So I was lucky to have it.
Host
Judge Marilyn huff who was the former chief of my district, the Southern District of California, named her six iron Sandra.
Because she she she she thinks that you got a hole in one with your six iron.
Host
What will retirement mean for you? Is there going to be some time for golf? Can you share with us? What anything about your plans?
Sandra Day O'Connor
Well, I hope so. I hope a lot with golf. I really love golf. I didn't get to play in the tournament this year. Because, you know, luggage was limited. And I'm headed for longer fishing expedition. And I couldn't bring golf clubs plus fishing here. So one of math ago. And I actually just had one hole in one, I'm ready for another. And it wasn't with a six hour and it was with my three one I hate to tell you.
Host
Let's turn to let's turn to some substantive matters.
Host
Let's start with the relationship between the branches. Our panel
Sandra Day O'Connor
He's picking the worst first.
Host
Our panel on on on on Tuesday, I guess it was on the relations between the branches, said that the relationship between the federal judiciary and Congress has deteriorated to created to a low point. We understand that during the past term, you've invited some House Republicans for private lunches at the court to open the lines of communication. What insights can you share with us about the current state of the relations between the judicial and legislative branches?
Sandra Day O'Connor
Well, I'm pretty old, you know. And in all the years of my life, I don't think I've ever seen relations as strained as they are now between the judiciary and the some members of Congress, and it makes me very sad to see it. One of the strengths of this country has been its federal judiciary. And traditionally, I mean, in my early days, as a lawyer, we looked at federal judges as being the very finest legal minds in the country. And we, we expected that they would be drawn from the best in the legal profession, they made sacrifices to serve, because they were successful in the practice of law, and then would accept if offered a position on the bench. And the present climate is such that I worry about the future of the federal judiciary. For one thing, Congress has not seen fit to have judicial salaries keep pace with what would be expected of people in equivalent positions. I don't know about you, but I know when my law clerks go out and get a job, they earn far more the first year than any federal judge earns me to that and the pay of professors and the law schools exceeds that of federal judges. I mean, if you just look across the landscape, you see that it's been a struggle, and federal judges, like other people often have children to support and try to educate.
Now, it's always going to be somewhat of a sacrifice to serve. But it's gotten worse and with the present climate of antipathy in Congress, I don't see any prospect for adjustment of those salaries. And that's a disappointment. And, in fact, there are efforts being made currently to limit federal court addiction to decide certain issues on an issue by issue basis, in areas that some members of Congress think that the federal courts should not be involved. And that's a new approach, that's worrisome. And one of the things that our country has tried to do with the breakup of the Soviet Union, is to promote the concept of the rule of law around the globe, in hopes that that will enable us to keep the peace better in the future than we have in the past. We're even working in areas in the Middle East hoping that all these efforts to promote the rule of law will, in the long run, make this whole world a safer, better place.
And a key concept of the rule of law is the notion of an independent judiciary. That's, that's what our country, as a policy, has been supporting and trying to do. And I've worked, as some of you know, for a long time with something that originally was started by the American Bar Association called a central Eastern European law initiative. Now, it's central Eurasia. and Eastern Europe, I mean, we've expanded and now we're also, as I say, trying to help in the Middle East and other areas. And basic to that concept, is an independent judiciary, well trained, responsible people who are able to be that independent entity of government that brings balance to what otherwise can we get out of kilter? by majority decision making. in our own country, we had a bill of rights that was added, in order to make sure that our country adopted the Constitution, it wasn't going to happen without a bill of rights.
And the Bill of Rights concept was there are certain rights that extend the individual citizens, that cannot be taken away by laws passed by the majority in the legislative branch, if they violate one of those individual rights. And the concept was that we had federal courts and courts in the states as well, who could no force those guarantees of individual rights. Now, that concept is one that we've tried to promote across the globe. And it's been fairly successful.
Look what happened recently in Ukraine. There was an election. And the election was between the existing I don't know how to characterize them. But the pro con, the existing prime minister or president, if you will, who represented the old guard, and the new candidate who offered to be a candidate who would better serve the people of Ukraine, in this free market world world in which we live, you have Yushchenko, and the election was held. And the old guard incumbent was declared the winner. And many people who had participated in the election thought that it was fraudulently conducted, and they recounted many examples of stuck ballot boxes and so forth. And there were massive protests. The protesters succeeded in bringing an action in the courts of Ukraine.
Now, this CEELI group that I've worked with, went to great trouble in Ukraine to promote an independent judiciary. And we had programs attended by every one of the justices on the Ukrainian Supreme Court. Now, this issue of fraud went to the Ukrainian Supreme Court, they did a brilliant thing. They allowed evidence to come in, and it was televised. So the whole nation saw the nature of the proof and the evidence. And at the end of the day, the Ukrainian Supreme Court in an act of incredible independence and wisdom, found there was indeed election fraud, and the rightful winner was declared. And all of this took place without bloodshed. I thought that was a transforming moment. In the success of our efforts to promote the rule of law, and the role of an independent judiciary, and yet in our country today, we're seeing efforts to prevent that. A desire not to have an independent judiciary. That worries me. Thank you.
Host
I'm going to turn to my colleague Harvey.
Host
Thank you, Justice Connor, let's switch to another area of relations. This time the relations between state and federal government, something we call federalism. In Arizona, you served in all three branches of government before you went on the Supreme Court. I assume your experience in Arizona legislature and Attorney General's Office helped form summer us on when an f2 defer to state and local governments. Could you talk a little bit about that? And what do you think it's going to be like when we have a court without you and without somebody who's been in state legislatures and State Attorney General's office?
Sandra Day O'Connor
Well, I think people can be great justice without the experiences iPad, but on the other hand, doesn't hurt. So it'll probably be all right. But I did serve, as you pointed out in all three branches of state government, and I thought we had a pretty good state government in the state of Arizona. I know that hasn't always been through in all states and all parts of our country. But we're talking about the here and now. And I think we have some pretty good state governments around the country. And the intent of the framers of our Constitution, as you know, was to leave in place the separate state governments and to enable them to carry out the bulk of the decision making. And the rulemaking for the citizens in this country. The laboratories. Yes, the different state laboratories, let them try things and see how it works.
In California, they wanted to the voters wanted to try a program of prescriptions for medical use of marijuana. Now, as a state legislator, I don't think I would have gone for that. But the people of California did, overwhelmingly it even went to a public boat. And the case came to our court this year, and our court found is you know, that the federal law preempted the state's efforts, I didn't think that was a necessary result and wrote in dissent. But it was one example of the kind of issue that continues to arise in the area of federal state relations and regulations. And it is an important area, it's never going to go away. But what we've seen through the passage of time is a much larger role for national legislative branch, the Congress, and as time has gone on, the Congress has wanted to extend its law making into areas that at least traditionally had been left to the States. And since I have been on the court, I think the court had enough votes to try some line drawing. it all turns around the interpretation of the Commerce Clause power of Congress, is it totally unlimited? Or is there some areas still left for the states, and the court had a few cases in which it held that Congress had crossed that line, but in cases decided this term, it appeared to go back the other way. So this seems to be an area of continued uncertainty and perhaps drifting back in the other direction. So who's to say?
Host
I don't know. Thank you. I'm going to turn the program now over to my colleague, Judge Rowlandson.
Judge Rowlandson
Thank you, Harvey. Justice O'Connor, like now like to turn to discussion of one of the landmark cases decided by the court this term, Booker, I know that's one of your favorite topics of this.
Judge Rowlandson
Many of the lawyers and judges in this room are presently engaged in the practical application of the Booker decision. Could you share with us your observations about the aftermath of Booker?
Sandra Day O'Conner
Well, I've written a little bit about that.
In dissent.
Sandra Day O'Connor
And I, I just I thought that the court's decision to require submitting to jury all the various aspects of sentencing determinations, when their factor determinations to be made was one that was an enormous step for the court to take, after more than 200 years of not finding that requirement, and that it was going to necessitate a huge amount of work for the federal courts and the state courts to reduce sentences that have been handed down. And that it would not sit comfortably with the sentencing guideline regime that Congress had passed on a different understanding. And all of those predictions I think have come true, because those of you in the federal courts, as judges have seen the necessity to go back and review countless sentences. And to try to implement this new concept. The court had to decide what to do with the sentencing guidelines, which, as I say, sat very uncomfortably, and in conflict, in part with that concept. And so it held that the guidelines, the federal guidelines passed by Congress would be not binding, but in effect, discretionary. And Congress is now taking a look at what it wants to do with that.
I don't know what the outcome will be. But we know at least that there are many provisions being drafted to impose mandatory minimum sentences. And I think that has been a concern to a lot of federal charges to have mandatory sentencing. So I don't, again, it's hard to say, but probably Congress will resort to a great many more mandatory minimum sentences. Thank you, Justice O'Connor, you had earlier discussed your involvement with see me the central Eastern European law initiative, how has that involvement influenced your view regarding the incorporation of international law norms into this country's jurisprudence? I don't think that has much to do with the issue of whether courts can ever in the course of writing appellate court, opinions, occasionally cite opinions from a court of another country.
Now, I don't believe that our court or any member of our court has ever cited an opinion of a another country as binding authority on us in interpreting our own constitution. I don't believe that's happened. But I think that is the fear expressed by some in Congress who've taken great offense to the notion of ever discussing any kind of foreign judgment. But of course, we're pretty much forced to do it. In many contexts, our nation has entered into hundreds of treaties with other countries trying to impose by treaty obligations, certain ground rules in certain areas, for instance, in the liability of air carriers, or damage to life or property. And just hundreds of other examples, Master captor a whole ball of wax. And when you do that, then it is going to become necessary to look at the opinions of other member nations courts in interpreting those treaties, when we have to interpret them.
And so it's not going to be possible to ignore judgments from other countries in some areas. What about the enforcement of foreign judgments here? Or the enforcement of our judgments overseas? What about regimes of
looking for evidence in advance of trial discovery? If we want to impose it on foreign foreigners or vice versa? I mean, you can't avoid, I think, looking into these things. But I suppose that a touchy citation was in the juvenile death penalty case. And that seems to have set on fire Firestorm. I think in writing appellate court opinions, we generally feel free to look at opinions of Law Review writers, text book writers, other people who've commented on a particular problem in the course of applying our own rationales, and in that case, several members of our court thought that it was at least noteworthy that no other nation but to the United States, and was it Sudan still imposed a death penalty for juveniles under the age of 18. And so commented, but that those citations were found very effective sit by some members of Congress, and I don't personally think that it's a good idea to restrict freedom of speech or thought, for any of our citizens, even if they're federal judges
have been great champions of that course, was Oliver Wendell Holmes. What was this wonderful quote, I should have looked it up and brought it here today. But he was the great defender of the notion that the First Amendment guarantees the free flow of thinking and ideas. And I suppose it does.
Host
Thank you very much. Justice O'Connor, we'll turn now to Alan.
Host
Speaking of the First Amendment, let's turn to another highly charged issue, the establishment clause. This term, the court decided the 210 commandments cases, both decisions were five, four and when came out different ways. Can you give us any comments on how we as a society can accommodate expressions of public faith?
Sandra Day O'Connor
Well, this has been a very difficult area for the courts, because there's never been any totally clear doctrinal framework for deciding these issues that has satisfied the nation as a whole. It prompted me to write separately in the McCreary County case, this term just ended. And I think I'll read just a very brief portion of what I wrote. The first amount expresses our nation's fundamental commitment to religious liberty by means of two provisions. One protecting the free exercise of religion, the other barring establishment of religion. They were written by the descendants of people who had come to this land precisely so they can