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Their stories of world war two Korea and Vietnam. Three members
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of the Supreme Court talked about the role of the judiciary at this event hosted by the American Bar Association. justices Stephen Brier,
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Sandra Day O'Connor and Anthony Kennedy spoke for just under an hour and a half.
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As we get in this part of the program, we're going to vary from oral questions to written questions. So I, as you
Stephen Breyer
hear the
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presentation and you have your questions, please write them down. And then when we asked for them, you can put your hand up and we'll pick them up. Justice Kennedy will need to leave slightly early. But and we will miss him but we will continue to there's the normal time at this time. You already know my great co our president American Bar and he will now introduced this program.
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Good afternoon, everyone.
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We are all in for a treat
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during the next 90 minutes. And while we're doing the technology here, let me offer it an observation and a question of all of you. The observation is this, I have to leave immediately after this panel to go to the airport. Because tomorrow morning at 8am, I'll be in Seattle, Washington addressing the judiciary on the way judges are selected in the state of Washington. So I won't have a chance to speak with you after I leave. My question to you is this after I pay respects to the people who have made this conference happen? I want to thank the steering committee that put this program together. I want to thank our donors and I I want to thank our rule of law partners all over the world who have made this such a success, in particular belied, where are you, Bill? Please stand.
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My question to you is,
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do you think this is a worthwhile conference? Me hear it.
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And should we do it again?
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Let me turn now to the program.
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I want to welcome you to a discussion of the role of judges in promoting and protecting the rule of law, at home and all over the world. It's my great honor and pleasure to introduce our panelists. There is deep commitment The part of the people you see on stage to the rule of law, Justice Sandra Day O'Connor, Justice Anthony Kennedy, Justice Stephen Brier and Judge Robert Henry. They have made and continue to make tireless efforts to protect the rule of law. And they have made an enormous difference. The ABA is very fortunate to have their support in our rule of law work around the world. As Justice O'Connor has said, and I quote her words, there is almost there is an almost universal desire to have an effective and fair legal and judicial system. People have the notion that there are some basic human rights and privileges and that they ought to be enforceable through some system and rule and judicial system that will make them real. Our four panelists have made invaluable contributions to realizing that vision when the history books are written about the rule of law promotion movement in the United States, Justice O'Connor's contributions will fill many pages. If she had only lent her good name to our early work, that gesture alone would have been an important boost to our initial efforts to engage the judiciary in rule of law promotion efforts in the former Soviet bloc and beyond. Instead, for 15 years, Justice O'Connor has been and remains one of ABA sillies most active board members, embracing the cause of the rule of law promotion, with passion, dynamism, and vision predictively her humility, generosity and ability to inspire have one over her judicial counterparts from around the world. She has never lost interest in the hard work of the rule of law promotion. Understanding it as a challenging, long term project and a vital one. Justice anthony kennedy joined the ABA Asia council upon its establishment in 1998. his support for in participation in the work of the ABA in Asia has been invaluable. his stature opens doors everywhere we go. The benefits of his thoughtful counsel and advice on programs have contributed greatly to their success. He has given up himself to build bridges with judges in ways that have made enormous contributions to the rule of law. Justice Stephen Brier has served as a member of the ABA in Latin America and Caribbean law initiative council since its creation nearly four years ago. We are grateful for the many times that he has hosted the council at the Supreme Court and for his involvement in developing a strategic plan focus and direction for the ABA, his rule of law work in Latin America and the Caribbean. He has given his time and traveling to meetings to speak with judges from the Americas, and to share his insight and support. his commitment to developing the rule of law in our hemisphere has been a source of strength and support in the ABS work in Latin America and the Caribbean. I am personally pleased that Justice O'Connor, Kennedy, ginsburg and Brier have accepted my invitation to serve as special advisors to the new board of the ABA center for rule of law initiatives, which will further the ABA international rule of law efforts in the coming years.
Michael Greco
Judge Robert Henry has graciously agreed to moderate today's session. Judge Henry was appointed to the United States Court of Appeals for the 10th circuit. In 1994. He served in the Oklahoma House of Representatives as attorney general of Oklahoma, and as dean and professor of law at the Oklahoma City University School of Law. In 2005. Chief Justice William Rehnquist appointed judge Henry as chair of the Judicial Conference Committee on international judicial relations. Judge Henry has represented the US judiciary, and delegations to several countries, and has hosted numerous international delegations as well. Last September, he was part of a delegation led by Justice Sandra Day O'Connor that represented the United States judiciary at the Arab judicial forum, which included jurors from more than a dozen nations in the region. I welcome all of you to this engaging panel discussion, and I thank the justices and judge Henry for their partners. patient in our symposium, and now I will turn it over to our moderator judge Henry. Thank you.
Robert Henry
Thank you President Greco, the International rule of law, what can be a more important, more timely, more fascinating topic. And the American Bar Association spared no expense or effort to assemble a distinguished panel to speak to you today? Unfortunately, that panel could not be here. And
we selected three
judges at random.
Justice Kennedy with his typical politeness impressions scheduled a tea party Tuesday, and we met with our many of our foreign colleagues who raise questions then that's why these papers are they've asked me to ask In addition, we'll be asking you to pass questions up and as we go through these will ask those as well. I did want to begin very quickly if I could, though, with an important quotation from the late Chief Justice Rehnquist, in a speech that an important speech he gave an American University in 1996. The framers of the United States Constitution came up with two quite original ideas, he said. The first was the idea of a chief executive who was not responsible to the legislature, as chief executives are under the parliamentary system. The second was the idea of an independent judiciary, with the authority to declare laws passed by Congress unconstitutional. The first idea has not been widely copied by other nations in the Western world. But the second idea that of an independent judiciary with the authority to finally interpret a written constitution has caught on with many other nations, particularly since the end of the second World War. It is one of the crown jewels of our system of government today. And he might have also mentioned that a by camera legislature has not been copied extremely widely. But he stressed that it was an independent judiciary with the authority to finally interpret a written constitution that has caught on. It's a rule of law thing. Justice O'Connor, I'm going to begin by propounding a compound question to you because I've never got to ask a compound question to a Supreme Court justice might
Sandra Day O'Connor
get a compound answer.
Robert Henry
I have had so many people come up to me and asked me to ask you, how did you get interested in rule of law work and this after that opening, I also want you to talk about the topic that you speak eloquently on every time I see you and that's the end of this. inside of the judiciary and foreign context,
Sandra Day O'Connor
well, first, why that I get so involved in these rule of law efforts. It was with the breakup of the Soviet Union. And all of a sudden, there was this enormous part of the world that was breaking up and forming separate nation states, we ended up with about 26 of them being formed. And they had to decide what kind of governmental structure they wanted to have. It was just the most remarkable time in history, I don't think we will ever see anything like it again. And it was the idea of, I think, Sandy dAlembert and Homer Moyer on behalf of the American Bar, that we ought to volunteer as lawyers and judges in this country to help if any of these emerging states wanted some help, and they made some inquiries and what do you know, they did not help An effort was made to provide it and care was forthcoming by good hearted, well meaning lawyers and judges from across this country in the best American tradition of being volunteers, you know, that kind of sets us apart a little bit, frankly from many countries in that we have such a strong tradition of volunteer service here. And help was provided for the writing of constitutions, for writing codes for criminal law, bankruptcy, you name it, and for just setting up structures of governance that might work. Now what is the most important structure in a new government from the standpoint of a lawyer or a judge? It's an independent judiciary, one with qualified judges who are honest, decent, ethical, intelligent, and with the independence provided. Did for them by their Nations Charter to enable them to make fair decisions and not be afraid of following the law and being thrown out of office? Because they did that? So that's a short answer to both questions. Thank you,
Robert Henry
Justice Kennedy. What is the rule of law?
Anthony Kennedy
Piece of cake?
You know, I
cannot remember hearing the phrase rule of law when I was in law school. I think it's a phrase that has become current in the last 20 years or so it has, it resonates in PR, like I'm Tara, which is the phrase using the Magna Carta, the law of the land. And you can see references to it, particularly if judges are in trouble and say, Well, this is not the rule of law. But it's it's, it's it's a phrase that we ought to think about and ought to attempt to define, although I think you should define it at a high level of generality, just so that we don't get bogged down in all the details. I was asked that question once in China. And in China, it's often effective to tell an audience that something has three parts. And in Russia say my prayers trigger. Inside that little rule of law has three parts. Number one, the government is bound by the law. That, of course includes the court and through that you have judicial independent, the government is bound by the law. This probably reflects a large is just a corollary of the larger principle that the law must emanate from the people look at the law lives and the consciousness of the people. If you don't have that, you don't have it and it's a corollary The government is bound by the fact that the law must originate in the consciousness of the people and be sustained by the democratic process over time. That's number one, governments bound by the law. Number two, the law must treat all persons with equality, all persons in an equal man. And without attempting an exclusive list of prohibited classifications, you can give us some illustrated examples. Because those classifications those persons, those groups that can claim equal protection and that are discriminated against must be disclosed to us over the as the law of as time continues, we are bind to the injustices of our own times. So it would be unwise to have an excuse elusive list of those classifications that deserve equal protection. But illustrative of those classes are groups that are classified by race, color, ethnicity, gender, or religious beliefs. That's just a partial list. First, the government's panel was second, the law applies equally to all persons. For the law must recognize that in each person, there is a core of spirituality and dignity and humanity. And within that broad general formulation, you can begin to define those rights that are fundamental to our own humanity. And I will leave it at that because again, the definition of human rights or something that evolves over time as we begin to understand ourselves and the world around us, which is the duty of every generation to study a new.
Robert Henry
Thank you. Justice prior. Your recent book active Liberty has raised has resulted in some very favorable reviews. I don't know what they had. In the book, you acknowledge America's debt to the ancients, the foreign agents, the Greeks and the Romans and perhaps the near ancients, the French, the venerable Montesquieu, Benjamin constant and Britain, of course, and you talk about the people's right to an active and constant participation in collective power. And at the same time you talk about judicial modesty as a concomitant part of this. You are I know a student of modern constitutions. How is this active liberty of the
ancients, fairing
In modern constitutions, and how is judicial modesty fairing as well?
Stephen Breyer
I think within pretty broad limits, it's very pretty well, you want me to elaborate?
Robert Henry
If you don't mind,
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since you're here.
Stephen Breyer
The the point of that I'm trying to make in the book is really based on what Justice Kennedy said, elaborating from there, that there are two interesting ideas that are terribly important to us and to other people about the kind of rule of law that we want. And the first is why I call that ancient liberty the Greeks had a point besides showing historical area edition which some have found lacking. The The point is that the idea from ancient Greece on was one of the ideas upon which our constitution Ras and that is all Citizens now they had a rather limited idea of who those citizens were. And so did we, at the time of the founding, but still, those who were citizens would participate in the creation of the government and the laws under which they live. That's called democracy basically. And the constitution I think we all see, as a document, first and foremost, that creates democracy. That's the first idea. With the three of us. Were at a meeting at Mrs Annenberg where they were discussing what to teach high school students and tell me if I'm wrong about this, they had passed the bar associations and the A ally and other very, very good groups to say what was the main thing to teach listed in order of priority First Amendment and did to be the answer equal equality and they had way down on the lyst, something that surprised us to be that far down because to us, it's number one, number one, and we all said what is number one? This is what the Constitution is about. What it does first and foremost is create a structure of government. That is a democratic structure of government. Basically. That's the first idea. And we see that and that's why I say it's doing pretty well. We all see that there is no disagreement, I think, among judges or scholars or anybody on that one. That's the first thing. Now their boundaries. And that's the second thing. The boundaries really became very important just after the French Revolution, when people began to discover that if you let democrats or republicans i don't mean to be part of that. I mean, democracy isn't enough. Because acting under democracy, people can do terrible things. If they didn't know that at the time of the revolution in France, which They should have we certainly know it who are old enough to remember the mid 20th century. Second World War, it says, I need to point that out. But it's obvious. You cannot let even a majority trample very important rights of the minority. And that's the second part. And we've written a constitution that has that is the boundaries. Now sometimes we all argue like mad, but what are we arguing about? we're arguing about the precise nature of the boundary is this on this side or that side? We can disagree like mad over that. But that's implementing a system that creates boundaries protective of human rights, ensuring a degree of equality assuring a rule of law, ensuring division of power, boundaries, that within there is a democratic space. Those two types are of the are really I think, what the Constitution is about. And of course, the book, it says Let's not forget that first one. Let's not forget the importance of democracy is I think we, as judges can say, will tell you something from our experience. I don't know if you have to participate or don't participate. That's up to you as a person. But we can say, and I'll say that the constitution won't work if you don't participate, because the constitution for sees a citizen run country, ie a government that depends upon the active participation of the ordinary citizen.
Thanks the price. Thank you.
Robert Henry
The Chief Justice came by your tea, Justice Kennedy. And I wrote down what he said I thought it was very interesting and later some of the visitors came to me and asked me to pose this topic to you. He said it was not that long ago that this Place was an emerging democracy. And is it is important for us to appreciate that the values we hold dear came in great personal price. We want to do everything we can to support our brave compatriots in other lands. The topic is individual courage. And I want to let you all talk about that. But Justice O'Connor, I heard you speak about it in Wyoming. specific example, in Ukraine, and I wondered if you might talk about personal courage of judges.
Sandra Day O'Connor
Yeah. We really had an interesting situation in the world not too long ago, an example of judicial intelligence and, and courage and there was an election in Ukraine for Ukraine's highest elected position. And there were two competing candidates and the election was held and immediately there were allegations by The declared loser of widespread voter fraud and some of those were documented by election observers who had been there for the election. And a challenge was made in the courts and made its way to the Supreme Court of Ukraine or the whatever they call it Constitutional Court. I don't have there someone here from Ukraine who couldn't correct me on the proper title. And that court did a remarkable job. They held hearings over a period about five days, and they agreed to have it televised so that every citizen in Ukraine could listen to the arguments and hear the evidence being presented on both sides. And the court reached a conclusion that there had been voter fraud and declared that there had to be a new election. And because of the Think widespread opportunity for citizens of the country to see for themselves what the allegations were and how they were dealt with. There was acceptance of that decision and a new election was conducted and it altered the final outcome. But it was done without bloodshed in an area where it wasn't all clear that that necessarily would be the case. And I thought it was a very important milestone occurring in a relatively new nation state, one that had organized itself well enough to survive what could have been quite a crisis. Very impressive. I thought.
Anthony Kennedy
You know, the higher up you are on the judicial ladder, the less discretion you have in a sense
or even a law enforcement ladder, the most discretion with the police Officer is going to charge you a map and the state's attorney in the federal system, or district attorney, and then the trial judge. We're trying to get this to an epi appellate court that there's not that much discretion. And there's a lot of installation. We get criticized from time to time in the newspapers and one of my children have on Hey Dad, how you doing because they read this lousy article.
That's nothing there trial judges
worldwide, who have to live in the community after they've made an unpopular decision, that's hard. And there are judicial heroes throughout the world including in our own states where their elected judges and have to make unpopular decisions and they do and that's not written about and you know, all you know, those examples like I could repeat many, many of them. But if if we can foster a climate if if we can nurture The idea that there is such a thing, as a profession of judging as a commitment to judicial independence, and we can talk about what that means. And if people understand, then they will respect this thing we call the rule of law. They will respect the independence of the judiciary. But this is a matter of educated look at democracy is not inherited. You don't take a DNA test to see if you believe in freedom, it's taught. And you can't comprehend what you have never studied. You can't defend what you don't know. And we must do a better job of educating young people in this nation of people around the world with the essentials. And the requisites of what Stephen was talking about. In regards to a democracy being a structural was a structure where certain rules and I don't think we're doing a good job of educating our Young people, and I don't think we're doing, we could never do it enough. And I don't think we're doing enough in the rest of the world just as
Stephen Breyer
fire. What would I add to that? I'll add something that Justice Kennedy said that I quote a lot because it meant something to me at the time and still does. We were talking to a group of Russian judges about 10 years ago, the Russians, after all, remember, had what was called telephone justice, as they did in Eastern Europe, the telephone would ring it was the party boss saying decide this way or that way? And we'd heard them talk about why did we do that? And I said, It's obvious that our children needed the apartment, we needed the education. There's not too much choice. And they're trying to get over that. And that's why Justice O'Connor and you and others have gone to Eastern Europe to help them build institutions. And we were having dinner with some of the people who were trying to do it which isn't always easy for them, by any means. A lot harder than here. And What he said to that group rings a bell here, though. It said the the thing about judicial independence when you apply it, and when you take the decision independently, nobody will know whether you were or we're not. They won't know. But for you. I mean, the newspaper says how brave you were. I don't mean to sound cynical, but sometimes that means they like the result of your decision. The lawyers will they know the record, and you want to be true to that record, but they do have a view of it. And they do perhaps react in light of their advocacy. The other judges maybe it depends on how involved they were in the case. And ultimately, it can't be a question of whether the greatest civil rights groups in the world are the greatest wrong groups in the world or whoever they are. Say you're good or bad. Independent or not independent in here? And all the judges may know sometimes what you're going through. But they can't sympathize very well, either because it isn't them at you. And when you know, you know, and the problem of that that made a big impression. I think that's absolutely right. And I think the problem for all of us is to try to create those institutions, including here at home, where you get a pretty good assurance, that that's what will go on in your case, whether your case is the most minor thing in the world or the most major, whether it means a lot to your client, or only. And it's easy to say that it's important, and it's hard to do, the building of that institution.
Anthony Kennedy
And now judicial independence is such as judges almost overuse it if you were all a group of judges, not hundred percent judges, I'm here to talk about your digital independence applause about because it sounds somewhat like a kind of guild protectionism. But it's much more fundamental than that. Judges must be in or independent. Not so they can do is they choose their independent so they can do is they must. And and we have to do a better job of
Stephen Breyer
that I'll give you an example this one the hour, can I give an example this is sort of funny in a certain way, because I'll sometimes as you may or may not realize, say something that I think, to myself is uproariously funding, or at least meant in a comic way, and the audience might not understand it. So we were talking at one of these groups of the Bar Association, and there were some judges there from a different country I'll not say which, and they're talking about judicial independence, which mostly meant salary increases, which can mean here too. But the but the, the, the point was, they're going on about it and, and I said that, well, I know it's really hard, but to build that independent institution, I think It's hard for you, the judge to tell the public how important it is because the public thinks, of course, you think it's important, it's your job. You got to get other groups to do it. And the other groups have to explain why it's important to people who aren't judges who aren't lawyers. You know, the public, why do they benefit from it that it's hard to explain? There are only two people who can do it one of the I said they're both such pests really, you just get so annoyed at them because they do so many things that irritate you. The first is the press. I said, I know they're trouble, but they have to be listed in this and you have to have the free press or you won't get what you want. The other I said is the bar those lawyers can be very difficult sometimes. But I but basically you need the bar because they're the only ones who understand it. They're the only ones who understand it who can explain it. So remember that a free bar and a free press so the other person gets up the from the other countries justice. bribery is completely right. The press and the bar are terrible pests?
Sandra Day O'Connor
Well, judicial independence really is sort of hard to define because judges can be subject to discipline for legitimate reasons. And the political branches, of course, control correctly to some degree, both the jurisdiction and the political makeup of most courts and most countries. And on the other hand, I'll coin a phrase. I know judicial independence when I see it. And during just suppose that during a period of stormy relations between the White House and the Chief Justice, the President's bodyguards kill the chief justice as Pat cap. Or suppose the executive branch threatened to cut the water supply The Supreme Court building to prevent the court from meeting and making anti precedential statements are suppose the Council of Ministers tried to evict the Constitutional Court from its offices. Now, the first two events actually happened in the early to mid 1990s, in Russia, under yeltsin. And the third happened in Bulgaria in 1995. Now, I think we can all agree that those are examples of judicial independence. And judicial independence just doesn't happen all by itself. It's very hard to create. And it's easier than most people imagine to destroy. I mean, we faced certain issues in this country today by various members of our nation's legislative branch, suggesting a number of ways to strip courts of jurisdiction. Perhaps have mass impeachment and all kinds of criticisms that don't suggest a wide open notion of judicial independence. So this is not easy, either here or in any other country of the world.
Anthony Kennedy
But but the BB must also insist that judges be held to a certain standard. That's right just must give reasons for what they do. I sometimes say we're the only branch of the government that has to give reasons for what we do. And the bar has some very special duties with reference to the judiciary, and both Justice Breyer and Justice O'Connor have indicated that lots of people think judges have a lot of political clout, once they get on the bench they don't. And we really rely First of all, members of the bar to defend the judiciary when it's under attack. This is a little easier in the Anglo American legal system than in other systems. And in our system is, as you know, in our tradition, judges are selected from the ranks of the practicing bar. And that gives us a built in bond and affinity and affection over time. And, and there's this this close relation and we can rely on the bar to defend us when judicial win independence is under attack in other countries, as you all know, many better than I because you're from the host country. You elected judicial career very, very early. After after you finished your education and you go to separate tracks, you're going to be a judge or an attorney for the rest of your professional life. And in those countries, I think it's important that we do a lot more work to impress upon both bench and bar, that they are allies, not competitors. They are working in a single cause, which is the justice, which is the cause of the root cause of independence. And there are bar associations around the world that I think we should begin to work with, and have them meet with their judges and discuss problems of common concern and to address mutual mutual problems. I think we can do much more in that regard. Judge Henry than then then then we're doing.
Robert Henry
Thank you. If someone wants to, began to bring me some of the cards, I would appreciate that. Justice O'Connor, one of the things you mentioned, brought up another topic that our visitors wanted us to talk about, and that is judicial discipline, and codes of conduct. I wonder if you might, you mentioned that in your remarks, I wondered if you might give us your views on how important the Code of Conduct is and what it can do to develop the authority and independent of the judiciary,
Sandra Day O'Connor
it is pretty critical at all court levels to have codes and judicial conduct so that the judges serving in in those courts have a clear understanding of conduct that is acceptable and conduct that isn't. And it can be particularly challenging in newly formed countries or countries where a certain amount of telephone justice has occurred or a certain level of corruption has been going on for some time. And it is crucial to get a code drafted telling judges what is n is not acceptable. And set up committees of people who can enforce violations of the code can call judges to account when a complaint is made. And when they determine that there has been a violation. I think it makes a tremendous difference in enabling the public of the nation to have a little bit of confidence in the impartiality and the fairness and integrity of the judges that are serving
Anthony Kennedy
just as Brian and I.
And just kind of you were actually there the day before we were with a judges. And we were talking about judicial ethics and in judicial discipline, judicial codes of conduct. And we explained that there's there's some very simple their basic rules, you don't have ex parte a context where the judge talks to one attorney without the knowledge of the other. You You do not sit in cases where you will you have conflicts is very, very simple, simple, basic,