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Sandra Day O’Connor on Judicial Elections, Supreme Court’s New Players

October 13, 2010 at 12:00 AM EDT
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Judy Woodruff speaks to former Supreme Court Justice Sandra Day O'Connor about her efforts to improve literacy for students, judicial elections and the new makeup of the court.
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JEFFREY BROWN: And finally tonight: a second Supreme Court story, a conversation with Sandra Day O’Connor, the first woman to sit on the bench, appointed by President Reagan in 1981.

She retired from the court in 2006, but her work since has taken her many places, including into the classroom. Judy Woodruff spoke with her earlier today.

JUDY WOODRUFF: Justice Sandra Day O’Connor, thank you for talking with us.

SANDRA DAY O’CONNOR, former justice, Supreme Court: My pleasure to be here.

JUDY WOODRUFF: Well, we are at the Stuart-Hobson Middle School, a public school in the District of Columbia located just a couple of blocks from your old stomping grounds, the United States Supreme Court.

SANDRA DAY O’CONNOR: Yes.

JUDY WOODRUFF: And we’re here to talk about — to begin to talk about a program you have embraced, iCivics.

SANDRA DAY O’CONNOR: Yes.

JUDY WOODRUFF: Tell us what it’s all about.

SANDRA DAY O’CONNOR: I had become increasingly concerned in recent years about the lack of civics education in our nation’s schools.

Now, we got public schools in this country to begin with because of the concern about the need to teach young people how to be good citizens, how our government works, so that everybody could participate. That was the selling point for public schools.

In recent years, the schools have stopped teaching it. And it’s unfortunate. Half the states no longer make it a requirement to get out of high school, if you can believe it. And it’s — it’s really a remarkable withdrawal from the very purpose we had originally for public schools.

JUDY WOODRUFF: So, what are you suggesting schools should do?

SANDRA DAY O’CONNOR: All right. So, solution. I thought maybe we should start a Web site that could be used in schools, free of charge, and feed it a bunch of games designed to teach young people who play them how our government works.

We started with the judicial branch, the third branch. I was very concerned at the time about the lack of knowledge about the third branch of government by members of Congress, not to mention schoolchildren. So we started there.

But it became apparent after a while that we could successfully teach that, but we should include the other two branches of government.

JUDY WOODRUFF: How do you know it works?

SANDRA DAY O’CONNOR: Well, because we have put these games online, and we have observed and tested young people by having them play the games. They love them. They’re addictive. They just adore games.

And we then tested how much they have learned. And they learn incredible amounts. It is fabulous. That’s the way young people today want to learn.

JUDY WOODRUFF: And how many schools are doing this, and how many schools do you want, ultimately?

SANDRA DAY O’CONNOR: I want every middle school in America to use this Web site. It’s free of charge. It is sensational. And if they use it, the kids are going to come out knowing how our government works. And I think it’s terribly important and workable.

JUDY WOODRUFF: And have you taken the test, the questions? How did you?

(LAUGHTER)

SANDRA DAY O’CONNOR: Oh, I have done a couple of games.

JUDY WOODRUFF: I assume you aced it.

SANDRA DAY O’CONNOR: Oh, heavens, no.

(LAUGHTER)

SANDRA DAY O’CONNOR: You know, it’s just fun. And I’m very enthused about the potential for this country of using it. One of the problems, unintended, is No Child Left Behind. Our students in America were tested, along with those of 20 other nations of the world, prominent nations, and who came in at the bottom in math and science? We did.

The president and Congress were worried about that, as they should have been.

JUDY WOODRUFF: Right.

SANDRA DAY O’CONNOR: They devised a program to funnel some public money into schools based on test scores in math, science, and reading. And a school that tested adequately in those areas would get some federal money.

Now, they don’t fund for history or civics. That’s not part of the program. And because there’s no federal money involved, many schools have opted not to teach them anymore and to work on the ones where they can get some money. And, so, that was unintended, but a consequence nonetheless.

JUDY WOODRUFF: So, this is — this is taking up a lot of your time and interest right now?

SANDRA DAY O’CONNOR: It certainly is. I think it’s probably the most important thing that I could possibly be doing.

JUDY WOODRUFF: Another important thing that — thing that you’re working on that you have said is important is the idea of keeping the judiciary independent, addressing the — the question of judges who are elected, rather than appointed by merit.

SANDRA DAY O’CONNOR: Yes.

JUDY WOODRUFF: Why has this become an important cause?

SANDRA DAY O’CONNOR: Unfortunately, it has. The concept of the framers of our Constitution in creating three branches of government, when they came to the judiciary, they wanted it independent of the other two branches, so that it could do its job to fairly and freely interpret the laws on Constitution, as they should be, and without a threat of retaliation by the other two branches. That was the intent of the framers.

So, federal judges are not popularly elected, as you know, none of that. But the states all started the same way, not popularly elected. But, over time, they changed.

You can get decent judges by election. But what you get these days is large campaign contributions when you have elections. And I don’t think we should have any cash in our courtrooms. It doesn’t belong there.

JUDY WOODRUFF: Speaking of cash in elections, you’re familiar with the Citizens United decision handed down by the court this year. You have spoken out and expressed unhappiness with that…

SANDRA DAY O’CONNOR: Well, I have been — I tried not to, but I didn’t express any enthusiasm…

JUDY WOODRUFF: … decision.

SANDRA DAY O’CONNOR: … simply because of my concern in the judicial area, particularly about big campaign contributions to elect judges.

How can the judge be expected to be absolutely fair and impartial if the donor is before him in the court?

JUDY WOODRUFF: And what about, more broadly, the idea that we’re watching this year, the elections, a lot of money come in from outside groups, no disclosure? Some of that…

SANDRA DAY O’CONNOR: Yes, that’s a worry. We would like to know who’s contributing, wouldn’t we?

JUDY WOODRUFF: How much of a worry is that?

SANDRA DAY O’CONNOR: It’s significant, I think, very.

JUDY WOODRUFF: The court made a mistake this year?

SANDRA DAY O’CONNOR: That’s not for me to say. I can only say that it is a source of serious concern.

JUDY WOODRUFF: Three women on the Supreme Court…

SANDRA DAY O’CONNOR: Hooray.

JUDY WOODRUFF: … for the first time, does it make a difference?

SANDRA DAY O’CONNOR: Well, it does from the standpoint of the public being able to look at the bench and say, ah, we have women on the bench, plural, not none and not just one. We now have three.

I went in the courtroom myself and looked at the bench of nine, a woman on the right end, a woman on the left end, and a woman near the middle. It was marvelous to see.

JUDY WOODRUFF: And does it make a difference in the long — in — in how the court approaches and makes decisions?

SANDRA DAY O’CONNOR: I don’t know that it affects decisions, because I have always said that, at the end of the day, a wise old woman and a wise old man are going to reach the same conclusion on some legal issue.

But it’s the perception of the public, whether you can rely on the court to do a sensible thing. And you are more apt to if you look there and see something that resembles the public at large.

JUDY WOODRUFF: In terms of the court broadly, though, there is an increasing sense now that the court is divided along ideological lines…

SANDRA DAY O’CONNOR: Oh, I don’t know.

JUDY WOODRUFF: … and that that is the way it is.

SANDRA DAY O’CONNOR: Look, some of the decisions — some of the decisions are made by drawing very fine lines. And reasonable people can disagree on where those lines should be drawn.

I have been there. And I know how challenging it is. It is not surprising at all that some cases are decided by drawing fine lines, with five people here and four people on the other side.

JUDY WOODRUFF: So, the perception that the court is getting set in a 5-4 mold, if you will, for years to come, people shouldn’t be concerned about that?

SANDRA DAY O’CONNOR: I wouldn’t be, I think.

JUDY WOODRUFF: Last question. It’s been proposed — in fact, there’s legislation now — that former Supreme Court justices come back and sit on the court when a justice has to recuse himself or herself. A lot of recusals right now on the part of Elena Kagan, the new justice. Is that a good idea?

SANDRA DAY O’CONNOR: Well, I don’t know. It’s too bad when the court has to have someone recused, and then they decide something — don’t decide it because they’re 4-4. That happens often. But I would be surprised if Congress is able to agree on a solution.

JUDY WOODRUFF: We will leave it there. Justice Sandra Day O’Connor, very good to talk with you.

SANDRA DAY O’CONNOR: Thank you.