Susan Herman
Let me say to start that I cannot claim to be a non woman, but I certainly can claim to not be a judge. And I'm looking at the three pictures in the program. I thought, well, you know, law professor takes you pretty far when you're the front of a classroom. But yeah, I was feeling said about ranked until my daughter said to me, Mom, for tonight you can outrank anyone, you're Oprah.
Judith Kaye
So I let's talk
Susan Herman
I guess we've all been around court circles long enough to know that you never get to start by talking to the judges on the highest court first. So I would like to ask judge K to start us off our reminiscences by reminiscing, your husband referred to your decision to go to law school. Would you like to share some of how you went into the law and why you decided on that?
Judith Kaye
May I say, first, that I think the evidence is incontrovertible that I married very well. Excellent.
And indeed, I I never, never for a moment growing up, wanted to be a lawyer. In fact, I did grow up as you've heard so much about me already in a small community. I think there was one woman lawyer there once but I never saw her. Talk about private people. So being a lawyer was not something I ever saw or aspire to infect. What I aspire to was a career in journalism. I sort of saw myself as critic of the decision makers. That was what I yearn to be. But it was impossible to find work back in the year 1958 when I graduated, just like you from Barnard, during a generation of generation earlier, it was impossible to find work at that time in that field. I entered law school at night, only to get a job on the new side of a newspaper, because the only job I could find in the neighborhood, that means the entire East Coast of the United States was as a social reporter reporting on weddings and things of that nature. And that was not exactly the image that I had for myself. So I started law school at night thinking a year or two would give me a credential that would get me off that darn social page. And lo and behold, law school was Fabulous. I love law school hated the daytime job. And that's how it started.
Susan Herman
That's a great story. Justice O'Connor, you've certainly come a long way from the Lazy B cattle ranch in Texas to the Supreme Court.
Sandra Day O'Connor
Well, the ranch was in Arizona and New Mexico both.
Susan Herman
Oh my goodness, I had read Texas. But now I trust those reporters,
Sandra Day O'Connor
because my mother wanted to go to a hospital when I was born, was 200 miles away? Well, that's where we went.
Susan Herman
Well, your legal career has been extremely varied. I mean, in addition to doing some private practice, you served in all three branches of the Arizona state government. And I wanted to ask you actually about a point in time when you had served in the State Senate for several terms and in fact, had been elected Majority Leader. And I gather also during the 1970s, a number of people were talking to you about whether you would agree to run for governor of Arizona, but instead of continuing in the Senate or with the political career, you decided to run For a seat as a trial court judge, now what judging?
Sandra Day O'Connor
Well, I was serving I think as a trial court judge when gubernatorial race emerged. And it was a decision whether to stay there or not. And I decided to remain at that point in the judicial branch. I've been a long time getting there, having served in the executive branch of Arizona's government and then in the legislative branch, and I hadn't been a judge that long. And I still have a lot to learn about the judging business. So I thought I better stay put than I did. And then along came governor Bruce Babbitt, who put me on the Arizona Court of Appeals. And he assures me that his notion of self solving a problem by potential candidacy against them had it Absolutely nothing.
Susan Herman
One thing to do with the judgeship. UHK your career, in some ways was more linear than Justice O'Connor as he were mostly a litigator before you were appointed to the New York Court of Appeals. How well do you think your career as a litigator prepared you for your job as an appellate judge? And how much on the job learning? Did you feel you had to do this?
Judith Kaye
Well, I think you're probably every single one of us feels we have to do a lot of on the job learning. I'm sure all of my colleagues would say it's hard to be superbly prepared for the extraordinary challenges we face on the bench. But in fact, I think my experience roughly 21 years as a litigator in the city of New York prepared me well, and I think on a court such as ours, that's a seven person court, that it's extremely desirable to have people with different backgrounds that we speak so often have diversity of experience gender diversity and racial diversity. And I think having a person who comes from the litigation world is a good perspective for a high court, such as ours. And I think, having been the choice for that position, I must say, I think it was a particularly good decision. But I often think as I watch lawyers, I think of myself back in that role, and I promised myself never never to be too hard on a lawyer. I know how stressful it is standing in the will and making argument and on those rare occasions when I have asked a lawyer question and the lawyer is sort of stopped for a moment or so I just want to come off the bench, put my arms around the person and say I'm sorry, I'm sorry, I didn't mean it. But I think having been a little bit Having been in the trial courts is a good perspective for a judge of the High Court of the state.
Susan Herman
Are there any ways in which you felt your perspective change from the other side of the bench?
Judith Kaye
Well, I now have a much greater appreciation of how difficult it is to be the decision maker, you know, four members of the bar, the direction is to represent your client zealously within the bounds of the law. You know exactly what you have to do to fulfill that professional obligation. For a judge you have only to do the right thing. And doing the right thing is, by far the most difficult thing. You always want to do the right thing, but often figuring out what that is, is very, very difficult.
Susan Herman
Justice O'Connor, Judge k was talking about the difficulty of finding a job even as a journalist as a woman, and looking around this room such an amazing experience for me. And I'm sure you must share some of my feelings since I remember the days certainly when it was difficult for a woman to become a judge. Not that many years ago, I gave it one of the first speeches i given for a federal judicial center group. And it was a group of about 100 judges from the sixth and eighth circuits. And in that room, there were maybe five or six women. So it's amazing to see all of you there. And I'm sure we all remember the times when that was not so easy or obby obvious.
Sandra Day O'Connor
Well, I remember back in Arizona, when I first came back there and started practicing law trying to find something to do in 1957. And all of the women lawyers and judges in all of Phoenix and Maricopa County would get together every month or so, and have lunch. And all of us could sit around one of these roundtables well, and there was one woman judge, it was just Justice Laurin a Lockwood's. Some of you may even remember her name, because she became the first woman to serve as a chief justice of a state Supreme Court. She was very interested in helping young women come along in the legal profession in Arizona. And she was always so happy to meet with us and encourage anyone who was coming along in the legal profession, who was female and giving them ideas and advice. And when I look around the room like we have tonight, filled with women judges, it's just really a joy. And I'm constantly amazed that I live long enough to see it.
Judith Kaye
Right, and I echo that is Yeah, it is terrific. And I think it's so important that each of us remember that and be that kind of person for other women to enable them to reach their goals, whatever they are.
Susan Herman
I think that you've been since we were reminiscing up Justice O'Connor.
I know you've told the story before about you when you graduated law school and about the special role that William French Smith played in your life. But I think this audience would enjoy hearing it either again or for the first time.
Sandra Day O'Connor
When I got out, you probably are referring to when I got out of law school back in the dark ages in the last century about 1952. And it never occurred to me that I wouldn't be able to get a job as a lawyer. I asked all thumbs who's, who had left notices on Stanford Law School placement board, asked them if I could have an interview and I didn't get an interview. And my colleagues in class my classmates, were getting them and I finally asked a young woman friend of mine at Stanford whose father was a lawyer, and Gibson done on Cracker Barrel. firm in Los Angeles, whether the firm maybe would give me an interview, ask your father I said, so she did. And he arranged for me to have an interview. And I went down to Los Angeles and talked to the partner who was conducting those interviews. And he said, Well, Mr. Day, how do you type? And I said, Well, actually, you know, just fair, I would say, and he finally said, Well, I think maybe I can arrange for you to work as a legal secretary at Gibson done. But we've never hired a woman lawyer here and we don't see the time when we'll be doing math. So I thanked him very much and said that I really did want to find job as a lawyer, a job as a lawyer, not a secretary. So off I went, and I did not get a job in the private sector. In those years. I finally got my first job as a lawyer as a deputy. district attorney in San Mateo County, California and had to sort of talk my way into that. But that's another story. And it was years later in 1981. When I was on the court of appeals bench and Arizona and got a call from the Attorney General of the United States. It was William French Smith. And Mr. Smith had been a key partner in Gibson done on Crutcher in Los Angeles. And he asked me if I'd come back to Washington and talk to him about a vacancy. And I thought to myself, well, I'm sure you may know secretarial. But
Unknown Speaker
I had something else in mind.
Susan Herman
Right? And what else he had in mind was that President Reagan had of course promised during his campaign that he was going to appoint with just a so called As wonderfully referred to as the FWOTSCI. For those of you who don't do anagrams at first woman on the Supreme Court, and one thing that our two guests have in common this evening is that in the history books, there's that that caption, first woman you have for you is the FWOTMYCALXF. So when when Governor Cuomo nominated you to be on the court of appeals, he said at the time that of course, what he was much more interested in was your super qualifications, rather than just, of course, merely the fact that you were a woman. And then I read one interview where I thought you would do priceless mark, one of the reporters must have said something to you about what it would be like to be a woman and be on the court. And judge Kay said, Well, I always bring my gender with me wherever I go.
Sandra Day O'Connor
The question that I wanted to ask you
Susan Herman
is so when you got to the New York Court of Appeals bringing your gender along, what changed on the court
Judith Kaye
Well, there was the first woman on the court of appeals, a lock on the bathroom door. That seems to happen so often, doesn't it? But I can't imagine why they didn't have one before Come to think of it. But I was very warmly welcomed by my colleagues. And I can't honestly point anything I, you have reminded me of my very first day on the court. And I just want to tell you what the greeting was like being the first woman because I had chosen my suit very carefully and choose very carefully. I mean, just and laid all that aside for the study of the law. But the judges of the Court of Appeals have a marvelous tradition of dining together every night that the court is in session. We're in session two weeks out of every five conference in the morning arguments in the afternoon dinner in the evening. There I was, with the six, my six male colleagues seated around a table. And I picked up a forkful of salad. I you know, these are things you just never forget. And wouldn't you know, it landed on my new light colored shoe. And my colleague seated right next to me judge Hugh Jones, who was wonderful said, Judas. If you bring that shoe to me, after we return, I will remove the stain for you.
That was my welcome to the Court of Appeals. You know, he did remove that stain and I still wear those shoes.
Unknown Speaker
That's good to know.
Judith Kaye
Good people. They are really wonderful people. So you found them
Susan Herman
welcoming.
Judith Kaye
Oh, yes, very welcoming.
Susan Herman
Just Just what changed on the Supreme Court with your arrival?
Sandra Day O'Connor
Not much. The first woman on the Supreme Court, I guess But like, Chief Judge K, my colleagues there, were just delighted to get on ninth justice on board. You know, those were the days when the court divided more often than not five, four. And they were four to four, and couldn't decide a bunch of cases and they really wanted a ninth member of the court. So male or female, I was welcome. And I knew that immediately, and it was great. The only problem was, there was no how to do it manual for becoming a Supreme Court justice. And I think I put my foot in my mouth and probably a few other places to learning the ropes over a period of years. It's an institution with a lot of customs and habits built up over a very long period of time. 191 years old. I got there. And it took me not 191 years to learn those customers, but it did take a while. And that was an interesting process in and of itself. Shortly before my appointment to the court, the justices did make one major change all the signs to their chambers and down in the basement where they park used to say, Mr. Justice, so inside. And before I was nominated, they had taken off the Mr. Justice, and it was just justice, so and so. So that made the the entrance much easier than I thought otherwise would have been, I think,
Susan Herman
right? Although How long did it take you to teach them not to say the brethren and
Sandra Day O'Connor
that was outsiders, new outside of Satan use a mouse.
Susan Herman
I've also heard that another new thing that came to the Supreme Court was that you started in the aerobics class for the whale. Do that.
Sandra Day O'Connor
But none of my colleagues and Ever seen fit to join me? It starts a little early in the morning for one thing.
Susan Herman
Well, another thing that you actually both have in common is that having been the first woman on your courts, you've then been joined by a second and in your case with third woman, did anything change incrementally with the arrival of additional women judges feels
Judith Kaye
very, very good to have a second and now a third colleague, especially when there is wonderful has judged Eric and judge graph EO, but there to see three women on a bench of seven. You know, there's nothing quirky about that we're here to stay. We're here to stay. We're here to grow. This is not a passing phenomenon. This is a a forever achieve.
Sandra Day O'Connor
It made an enormous difference on the bench on which I said when Justice Ginsburg rather Until that time, there tended to be in the press anyway, in writing up decisions of our court, they write about it. And then they'd have a little separate section on how the one woman justice had a great deal of focus on that. And the minute Justice Ginsburg arrived, it changed. And we're all just justices and interchangeable in that sense. And it was a very wonderful change that I saw at the court with her arrival. And I wish we had three of we'll just have to wait. in the right direction.
Susan Herman
On the subject of interchangeable we've actually done a little homework before conversation this evening to talk about what we thought you all might be interested in and what we were talking about. And when I was speaking with Justice O'Connor, she said, you know, everyone always wants to ask is it different being a woman judge? Does a woman judge differently from a man? So there's that question that's kind of always on the table. I'm sure for many of you, too. But I think rather than just ask you to answer the question, I would also invite you to critique the question if you'd prefer. Why does everyone asked that question?
Sandra Day O'Connor
I think it's natural when women are, were initially a rarity on the benches of this country. And having selected a few then people wanted to ask the next question, which was, well, does it make a difference? Do you decide cases differently? What if you brought to the bench that wasn't already there? And I would imagine there is not a woman judge in this room who hasn't been asked that question or who hasn't thought about it or tried to think how to answer it. And I, for one, have found that sort of a frustration question, because my sense is that the very qualities that one might look for in a good woman judge are the same qualities one would look for and a good male judge. And I'm not sure if that you can answer the question by pointing to any specific difference in outcome or work product or anything else. I've heard my colleague Justice Ginsburg address the same question and give the same answer. And I think many of us have, what is important, I've always thought is for American citizens to see in all their institutions of government in all three branches, both men and women capable mom's doing a good job. I think it is a source of satisfaction for the public at large to see women represented in our institutions of government, including on the bench. And I think that's what
Judith Kaye
matters. I'm going to exercise a rare prerogative and I am going to affirm in full the opinion.
Susan Herman
Well, let me ask you, we've talked about the the first woman on the court phenomenon. Now you also were in the position of finding yourself first Chief Judge of the New York Court of Appeals.
Judith Kaye
That is my other job, your other job,
Susan Herman
which in addition to presiding over the Court of Appeals itself, you're also in effect, the CEO of the very big business of the New York courts, thousands of judges, thousands of employees a billion dollar budget.
Judith Kaye
What What about the chief judge, it is a remarkable life, having both of those jobs. It was a remarkable life for 10 years, being a judge of the Court of Appeals. That was a very full answer. satisfying life. And the truth is looking back on my own career and the things that I love to do and the things I feel I do well, I thought being an appellate judge was really what I would most enjoy. Until that great day, March 23 1993, when I took the oath of office as Chief Judge of the state of New York, and became, as you point out, the chief executive officer of this phenomenal state court system with great judges and court personnel. And I have discovered that I really love this additional responsibility because the opportunity is enormous to do wonderful things to improve the justice system and the court system. And I guess the first taste of it was the reform of the jury system to begin a long term program this will take a long time it is by no means a completed project. But that was the first taste of actually changing something that had been around for a very long time, where people just folded their hands across their chests and said it can't be changed. And of course, it could be changed. And every everybody is just delighted to see positive change of that sort. And, and time after time, I have these terrific partners in the New York State judiciary, so many of them in this room, who have just been wonderful in bringing our court system our justice system, not only into the 21st century, but in many respects into the 20th century. And and there were there were so many things and I think especially of Well, the domestic violence initiatives were it's such a long neglected problem. It was wonderful being a judge of the court of appeals and being able to work on decisions in the area. But my goodness to be able really to make a fundamental change to see that victims of domestic violence receive proper treatment in the courts. Now that is really a high that is a wonderful opportunity and and the same for, for drug addict to people who commit minor crimes and are just recycled through our court system. What a terrific opportunity to be able to step back and think how we might better as a society as a court system, treat these people who are in our courts and then actually to work with these judges and to make a change. So I say I have discovered things about myself, but I I'm confident and I Apologize, Justice O'Connor, but I do have the two best jobs in the world.
Sandra Day O'Connor
I do you have a job that has so much meaning for this country and as Chief Judge of the state of New York, you know, 98% of all the work of judging is carried on in the state courts, not federal courts. And the cases that I see where I sit are a tiny fraction of the cases heard all across America. The work is done in the state courts. And I think it is really exciting to have a woman as New York's Chief Judge soda why
Unknown Speaker
not every state
Sandra Day O'Connor
has a position like that. Is there any other state besides New York There are
Judith Kaye
some of them do yet are they?
Unknown Speaker
I'm we have some people out here.
Judith Kaye
We have some of them in the room in
Unknown Speaker
Texas, okay. And
Judith Kaye
I can't I can't resist adding a little mini a little footnote here that when my
grandmother's both but my six my then six year old granddaughter when she wrote her school composition when I grow up wrote, when I grow up, I would like to be a chief judge. But it's good. I thought that was great at the time, but now she's almost nine years old. And before I came here, I asked her if she still would like to be a chief judge and she said absolutely. So I think the important thing is the three years that have elapsed since that six year old
Susan Herman
Well, I did say a Justice O'Connor I understand was Chief Justice of the Supreme Court for 15 minutes. Is that right? Something I've read about
Sandra Day O'Connor
No, not I preside and presided.
Susan Herman
Oh,
Sandra Day O'Connor
but acting that job No, not even a man.
Susan Herman
Well, so we still have two promotions, we still have to wait for the first woman Chief Justice we do. We try.
Sandra Day O'Connor
I just want to go back for a minute to to the role of the state court judges, because the vast majority of the women members of this association are state court judges. And it really is there that the basic changes and improvements are going to take place and I am a great proponent of reform of juries and how we treat them and use them and deal with them. And was really delighted when New York was one of the first States under Chief Judge K to undertake that reform and I hope every state is going to take a serious look at it a good many have, but changes were greatly needed. And the problem of dealing with abused victims in families is just a crying need around the world and in all countries and including this one. So you've been in a position to make a difference and really have. And I've wondered, you know, we talked earlier about whether it makes a difference in judging to be a woman and in one area. I think it mind. Those women who have had families and households to manage and also careers to carry out have learned to be efficient. They've learned how to make good use of their time, and to manage both people and events. Well, and perhaps part of that is What has gone into making someone like Chief Judge K, such an effective Administrator of the courts in the state of New York? And I think women can bring a lot to bear in a role like
Judith Kaye
you're you're, you know, thank you so much, you know, on the subject of women and women judges and decision making I agree wholeheartedly with every bit of Justice O'Connor statements. But there is one area where the circumstantial evidence is very great. I think that women have made a difference, and that is that, that issues relating to women, to gender equality, to better treatment of domestic violence victims, problem solving courts, improvements in family court, those have really come to the fore in the years that more and more women have been entering law school and entering the legal profession. I think the circumstantial evidence there is great that in that respect there, there has been a difference that I think can be attributed to the increased number of women.
Susan Herman
Listening to both of you speak is actually reminding me of another part of both of your jobs, which I don't know if this was something you expected. But you're such public spokespersons for the justice system. And so much of your job involves your public persona as you're speaking it countless graduations dinners like this groundbreakings as Justice O'Connor did in New York just last week. And when I had our school library and run a little Bibliography on what judge k has written lately, 93 articles came up.
So what about the public persona part of the job? Is that something that was unexpected to you and how do you how do you deal with that?
Sandra Day O'Connor
I had, perhaps had a fair amount of when I was the senate majority leader, where it was required to make speeches several times a day. And where I was often in front of a microphone. So that was not a new situation for me. But there is no question that someone in Chief Judge Kay's position would be called upon constantly to make public appearances and to be expected to give inspiring remarks on every occasion, and Supreme Court justices are given many opportunities to speak and we can't take advantage of most of those invitations. Because the schedule comes first at court. And it's very hard to leave Washington and travel elsewhere take that time to do it and to participate. But I suspect when when you're in state, you don't have as much of an opportunity to decline as we move.
Judith Kaye
There is a heavy schedule and Sometimes those two weeks in Albany are very, very welcome. because inevitably, when I'm somewhere in that moment comes when someone says, wouldn't you like to say a few words? And I rarely answer that question, honestly.
Susan Herman
Well, I think another thing that comes with the job and that you can't really decline as the amount of attention that each of you gets from the press. I don't know if you read as much of your press as we do, but you both certainly have drawn a lot of attention from reporters, and reporters have their own idea about you who you are as famous people and what you're famous for. So just one example. I was wondering, one interesting question to me would be to know whether there's a particular case or line of cases that either of you would think about as kind of a very significant part of your career, the kind of thing that you would focus on in your Autobiography of Justice O'Connor, I think, from what we've been reading from reporters, if they had to guess they would say, oh, Planned Parenthood v. Casey, it's all about abortion rights. What would you choose? I know you're in fact writing a memoir, but I don't know if it was on your own.
Sandra Day O'Connor
My brother and I have completed a little story of life on the Lazy B ranch where we grew up. But that's kind of far removed from cases. Okay,
Susan Herman
so if you had to talk about cases, is there any anything in particular that would spring to mind?
Sandra Day O'Connor
I don't think so. And I'm often asked, Well, what cases been the most difficult for you or what one stands out most in your mind? And several do, of course, but I, I think because I was the only woman on that court for a while, I tended to get a lot more male than most of my colleagues. And there have been periods of time particularly when a number of abortion related cases were coming to the court, where I would find at least three enormous sacks of mail Every day at my door at the office dealing primarily with that issue. And I think that every woman in America wrote to me, maybe some of them several times. And there was so much mail on both sides of the question that my office was unable to even open it and deal with it. And we ultimately had to chuck it out. And I was hoping we could get a more discerning postmaster free screen for us because it was just flowing in such an extent. So I certainly remember from those days the the heavy volume of mail. Yeah.
Judith Kaye
The Court of Appeals. The High Court in this state doesn't have that same public visibility, which sometimes I regret, but most of the time, I don't know, but I On the subject of mail, I do remember one particularly delightful piece of mail that began dear mother of justice, mother, savior that I thought I've had a few moments to think as I sat her listening and I thought I just wouldn't answer with it is hard to pick a favorite case, I would never do that. But I have a few that have stood out in my mind. One relates to a free press issue which we decided we hated the call of Justice O'Connor and Michigan against long, we decided the issue on the basis of the New York State Constitution. And I would certainly single that out as a constitutional case because again, regrettably, lawyers just don't raise state constitutional issues that much, we're all very federalized and more people should read Michigan against long and cases like that. In it, it felt very good to be able to, to decide an issue under our state constitution. And I say I've had a chance to think so we have constitutional law cases statutory law cases, I would single out our decision constraining the adoption statute in the state of New York to permit same sex couples to adopt a child when I walk through the courts. People most often will come up to me and thank me for that one, they'll they'll mention that that they thought that was such a an important decision. And then our third source of laws common law, and maybe there I would refer to a case involving the disposition of frozen embryos, which we decided as a matter of contract law in in the new world. So I said those are just three then that came to mind.
Susan Herman
But looking around this room and listening to you talk about cases you've decided it's It's occurring to me that just by the numbers, most of the judges here are probably trial court judges, and have to make decisions on their own. And both of you, of course, belong to courts. Were there, you know, seven or nine judges, which means you have to do a lot of group decision making, or is there anything that you could share about the group decision making process and how you approach that, particularly in areas where you know, from past cases that there's likely to be a sharp disagreement among the judges.
Sandra Day O'Connor
It's interesting to contrast the job of being a trial judge where you act so independently and have to do it all yourself with the job of being on a collegial appellate body, where you work as a group and it is a very different experience. And on our court, as you know, there are nine and we sit together on everything we don't sit and panels so it is group decision making. In a very real sense, we got to know each other very, very well and work together constantly. I'm pleased, enormously pleased that during