(calm electric guitar strumming) - Coming up next on this special edition of "Arizona Horizon," we visit with longtime ASU law professor and legal scholar, Paul Bender.

"A Life in The Law With Paul Bender," next on this special edition of "Arizona Horizon."

- [Announcer] This hour of local news is made possible by contributions from the friends of PBS, members of your PBS station.

Thank you.

(upbeat bright music) - Good evening, and welcome to this special edition of "Arizona Horizon."

I'm Ted Simons.

Tonight, a conversation with Paul Bender of ASU's Sandra Day O'Connor College of Law.

Bender has influenced untold numbers of attorneys in Arizona and around the world through his career as a professor, and one-time dean of ASU's Law School.

He's appeared here on "Arizona Horizon" for decades, helping explain and analyze a variety of legal issues.

Paul Bender had indeed lived a life in the law.

He had attended high school in Brooklyn with the late Supreme Court justice, Ruth Bader Ginsburg.

He clerked for two Supreme Court justices, served as solicitor general of the United States, and tried numerous cases before the nation's highest court.

To this day, he still teaches at ASU's Law College.

And we welcome Paul Bender to "Arizona Horizon," a good friend of the program.

Good to see you, thanks for doing this for us.

- This has been one of the high points of my life in Arizona.

I don't know how I fell into this.

Mike Grant, I guess.

- Yeah.

- We got together, and as you know, he was a lawyer.

And we really used to enjoy doing those things, and I really got to like it.

- Well, you got to like it, and you'd done such a great job, we kept you on.

(Paul laughs) After Michael left, we kept you on.

I just wanna start kind of 30,000 feet here.

The law, when I say the law, what does that mean to you?

- It's a system.

It's a way of that people live together, according to the law.

It means they have rules, and they try to make the rules reasonable and fair, and live by them.

And that's a way of structuring a society.

Without law, if everybody just does what they wanna do at the moment, that can be chaotic, and really bad for most people.

So, the law to me is a way of organizing life, of taking the things that people do all the time, and trying to make sense out of them, and make rules about what you can do, and what you can't do.

And they're rules that relate to being a human being, relate to the reasons why you're a human being, and also relate to your relationships with other human beings.

Law is always a conflict between two people.

And so, the law tries to bring logic and principle to the resolution of those conflicts.

That's what's attracted to me about it.

- Yeah, I was gonna say, you were born and bred in Brooklyn, New York.

I want to get to the what attracted you to the law here.

But born and bred, what kind of kid were you?

- I don't know.

- You can't remember about that?

(laughs) - No, I was a normal kid, I guess.

I pretty much liked school.

- [Ted] Yeah.

- I was a good swimmer.

- [Ted] Interesting.

- I was on a high school swimming team, but I was not really athletic.

I played the piano for a long time.

I still do.

And I went to school.

- Yeah.

A lot of kids, you know, grew up in Broad would imagine Dodger fans and all this kind of business sports.

- Yeah.

I was a great Dodger fan.

- But sports, not entirely your existence when you were a kid.

- No, not entirely.

I was really interested.

In fact, I didn't know why I really got into the Dodgers.

- [Ted] Yeah.

- But that was just part of my life.

I mean, I wasn't a fan in any real sense.

- Sounds like a normal kid.

So what attracted you to the law?

- Well, I was originally when I went, yeah, I am not a person who thinks very much about what he's gonna be doing.

I don't live a structured life.

I just let things happen, and so there I was.

And in high school, you don't have to make choices, but then you have to decide what you're gonna do afterwards.

So that was pretty easy because I went to Harvard College.

That was a very good place.

I knew people who had gone there.

I had nothing exact in mind about why you're going to Harvard, why you're gonna college.

I was just, because everybody goes to college.

- [Ted] Right.

- So, but then when college is, and then you have to decide what you wanna do there.

And I was attracted to physics because of, again, of the logic in it that really attracted me.

And so, when I got to Harvard, I decided to major in physics.

I always liked courses in English especially, but a little bit stuff in government, but mostly, Math and English were the kinds of things I was interested in.

So I said, lemme try being a physicist.

And so, I majored in physics and it became clear to me that I was not a first-rate physicist.

I mean, there were people in my class at Harvard majoring in physics.

I mean, you could imagine- - [Ted] Right, right.

- the brains that were there.

And so I says, you know, I can survive this, but I will not really be good at it.

And then, where we lived in Winthrop House, the two guys next door were both going to law school.

And there was a course I took as an undergraduate in constitutional law, given by Robert McCloskey, who was a lawyer.

He wasn't on the law school faculty, but he taught law-related stuff.

And it was just wonderful, that course.

And it, that to me was just an, you can think about the way people relate to each other logically according to principle.

That just really attracted me.

So I said, "Hey, why don't I go to law school?"

- (laughs) Well, and there you went to law school.

- [Paul] And then I went to law school.

- And from there, before we get too far ahead though, did you go to high school with Ruth Bader Ginsburg?

- Yeah, yeah.

We were in the same class.

- [Ted] What was she like in high school?

- She was at the top of the class.

(both laugh) I was pretty far down.

I think she was the second in the class.

I remember the guy who was first in the class, he went to Princeton and she went to Cornell.

And I almost went to Cornell.

That's where I would've gone if I hadn't gotten into Harvard.

We were not good friends- - [Ted] Yeah.

- in school.

We knew each other, but she had a whole different, it's a big school, but she was very smart, and she was a real star in high school, as you can imagine.

She was a wonderful person.

- Yeah.

Yeah.

Okay.

So you're at Harvard?

- [Paul] Yeah.

- All right.

She's off at Cornell or whatever, but you're at Harvard.

- [Paul] Yeah.

- The law is just one class, especially kind of gets your attention, but there are different aspects of the law.

When did you know constitutional law was kind of the lane you wanted to stay in?

- That's a really good question.

I was attracted to it initially, as I just said before, by taking a Con-Law course in college.

So that was kind of in the back of my mind.

And then you go through law school, it's what you.

I don't plan anything.

I just do what's there.

So I'm there I am in law school.

What do I do after that?

Well, that was an easy problem to solve because Harvard has a traveling fellowship, which they award to three law school graduates on the basis of their degrees.

So I was third in the class, I think.

So I got a Sheldon Traveling Fellowship.

I didn't have to make any choices.

So my wife and I had a wonderful year traveling around Europe, and I was doing absolutely nothing constructive.

I mean, we would go to courts and talk to lawyers and stuff like that, but it was a vacation.

It was a honeymoon.

It was wonderful.

But then I had to get a job.

And so I had, before I went on the trip, I had interviewed with a couple of firms, and I took a job at Paul, Weiss, Rifkind, and Wharton, and Garrison, still a prominent New York firm, very much into theater and the arts.

And it seemed like a good place for me.

And so when the Sheldon was up, well, so I was about to go there and take a job, but then people come around, and to law clerks and law schools come around and say, "Hey, you wanna go teach law school?"

And I decided that that sounded like a good thing to do.

I'm trying to make sense, give you a sensible answer to why I do what I did.

Law school was very enjoyable to me.

I really liked that way of approaching things, especially the way the Harvard faculty did things.

Everything was questioned.

- [Ted] Yes.

- Nothing was there for sure.

And I just, I liked that kind of thing.

So I said, "Hey, let's try being a law professor."

And then, because I had clerked for a Supreme Court justice and also learned at Hand, who was very well known, I had some experience with constitutional issues, and I had always been interested in it from the beginning.

And so as a teacher, when it became a chance to, I think I started teaching evidence.

And I remember Justice Frankfurter was asking me what I was gonna teach.

He was a professor before we went on the court.

And I said, "Evidence."

And I said, "You know, I don't know what to do.

I've never tried a case.

I don't know.

What am I gonna do?

How am I teaching Evidence?"

He said, "Don't worry about it.

You're smarter than most of them."

- (laughs) That's nice to hear from a Supreme Court justice.

- So, but, and that was interesting, too, but constitutional law was always something you're interested in for the reason I've said before.

And so, when a chance came to teach the basic common law course, I started doing that.

And that's what I've done ever since.

- Yeah.

You went on to Penn, correct?

- [Paul] Yeah.

- Yeah.

And then became Dean at ASU's Law School.

- [Paul] Right.

- So academia, it sounds to me like you were a kid who got to college and pretty dug on good college and was very successful there and moved on to academia.

It sounds like academia was always there, whether you knew it or not.

- Right.

I'd never planned to do that, but I liked law school so much.

- [Ted] Yeah.

- And I admired a number of people on the faculty.

And so when a chance came to do that, which I had found so enjoyable as a student, I took that chance.

And I've been very lucky in what happened to me after that 'cause I've been involved in a number of really interesting things, like being the Solicitor General's office.

That's a reason why I've been in constitutional law all along.

Archie Cox, is that a name to you?

- [Ted] Archie Wilcox, yes.

- Solicitor General- - [Ted] Yes.

- at that time.

And he, I think he was the first one to do it.

He started hiring people from law schools to come during the summer and work on some briefs and some other things in the office.

And I had a classmate, Bruce Terrace, who was in the office as an assistant.

And he told me about that.

And he said, "Why don't you apply?"

And I said, "Okay."

So I said, "Yeah, I'm interested."

"Oh, fine."

So I get hired as summer assistant associate now, which I really liked.

And then they asked me if I could stay for a couple years, and so I did that.

And that gets you really into law at the highest levels.

And I really love that.

I love the process of oral argument, especially in the Supreme Court.

It's just a really enjoyable, constructive thing, which I have always liked doing.

- And you wound up Deputy Solicitor General during the Clinton administration, correct?

- Yeah, I was in the Solicitor's General's office twice.

That first time with Cox, I was just an assistant.

It's a small office, nine or 10 lawyers.

And then, when Clinton was elected, Drew Days, who I had gotten to, one of the things I did when I was at Penn originally, we somehow get in touch with the legal NACP Legal Defense Fund, which is the preeminent litigating organization for Civil Rights in the United States.

I don't remember how that happened, but I think a colleague of mine, Tony Amsterdam, was a really brilliant guy.

He was supposed to give a summary of the Supreme Court to an annual meeting of the Legal Defense Fund.

And he couldn't do it for some reason.

And they asked me if I could fill in for him, and I did.

And so I gave a talk about the term, and they really liked what I did, and I liked doing it.

So I became very much friends with, I went back to that for 20 years- - [Ted] Wow.

- and got to know people there.

And that was a big part of my development as a scholar because I saw things from, they were all involved in all kinds of interesting issues.

I got to talk to them about that.

And so that just made things more and more interesting.

And they were on the right side of almost everything.

- [Ted] Right.

- Which is easy for an organization like that.

You can pick what side you're on- - [Ted] Sure.

- and so, I really admired that.

And that was a big part of my becoming a lawyer, was my association with the Legal Defense Fund.

- You've argued many cases for the Supreme Court.

- [Paul] Yeah.

20 some odd.

- 20 Some odd cases.

Give a case that really stood out for you.

- I guess the most well-known is the United States against Virginia, which is whether women could be at the Virginia Military Institute- - [Ted] Ah, yeah, VMI.

- VMI.

And the federal government had taken the position that VMI was a state institution, that the state institution could not be only for boys or men, that it had to admit women.

And VMI fought that.

And so I got to argue that case in the Supreme Court then that was just, I dunno why I was lucky enough to get that.

I think Janet Reno, who was the Attorney General then actually was thinking about arguing herself, but decided not to.

And so, they asked me if I would do that.

- What about, why does that case stand out to you?

Obviously, it's very famous and people know it, but just the case itself.

- Well, the issue was really interesting.

I thought we're clearly on the right side.

It was interesting making the arguments about why we were on the right side.

And I had a feeling that I was accomplishing something by getting the court to do the right thing.

Gender discrimination was not at that well-settled a field at that time.

United States against Virginia is one of the main cases.

Justice Ginsburg wrote the majority opinion.

That's an interesting thing.

I was sure that Justice O'Connor was gonna write the opinion, why?

If we won, which it looked like we were gonna win, because we would win, and we'd get a majority of the justices, actually, we got eight of the nine.

But it would be assigned to not one of the strongest liberals on the court, but somebody who was a swing justice.

And so, it was Kennedy or O'Connor.

It's women's issue.

So I figured that O'Connor would get the opinion, but Ruth got it instead.

And vote wrote a wonderful, wonderful opinion.

That was an interesting, all the arguments in the court were interesting, but that was especially interesting because I had to think about how do you argue a case like that to the court?

Here is an institution, Virginia Military Academy Institute, which just didn't take women for a long period of time.

And they developed a culture around that, and now women wanna come in.

And I said, just think of the law school.

You all went to, all of us, myself, and the Justices, Harvard Law School, which most of us went to.

- [Ted] Yeah.

- For a long time that did not admit women.

And then would it work to say what VMI wanted to do was admit women, but keep them separate, in a separate institution.

And I said, well, you know, suppose Harvard had done that.

What would you have?

How could you have two law schools, one for men, which had been there for a hundred years and another new law school for women.

That would never work.

It wouldn't be equal.

And I gave some examples of why that was true.

And that was the main argument I made.

- And just in describing that, and when we have you on the show here, numerous times for Supreme Court previews and reviews, and when a big case comes down, you do a great job of distilling things into bite-sized-story, kind-of-arc things where there's a bid mineral.

And then, I mean, that is the law, understanding the law.

That's what you do so well.

You've got, these are stories.

- Exactly.

I mean, that's the way to think.

That's the way I've always thought about it.

And in fact, I remember after my first argument as a principal deputy, Drew Days came to me and said, "You know, it was a really good argument."

"Why," I said.

He said, "'Cause you told a story."

- [Ted] Yeah.

- And that's the magic to it is you're telling a story.

You're telling people something you know about.

You want them to know about.

You have a position on it.

You wanna explain your position, and you wanna explain it to those people.

And so, that's what oral argument is all about.

- Do you think the legal profession, the legal world, constitutional scholars, what have you, do they sometimes make things more complicated just to make 'em seem smarter?

I mean, it's just, it seems to me like you could.

There should be more people out there, Paul, doing what you're doing.

- That's a good question.

You asked whether lawyers or judges do something to make it seem as though they're smarter than they are.

I don't think so.

- [Ted] Yeah.

- Maybe under.

- [Ted] Yeah, a little, maybe a little bit.

- I don't think it's a, but that gives me an idea of something I might want, thought I might wanna talk about.

And that is the Supreme Courts, one of the things about the Supreme Court, which is a real problem to me, which is not talked about now.

Their ethics are a big problem.

Their decisions are a bigger problem.

But another thing that's a problem, which has been on my mind for years, is there are opinions.

These opinions are unreadable.

- [Ted] That's right, yes.

- A hundred pages long, an important opinion, like the affirmative action case now.

Who were they written for?

Who were they writing for?

Law professors?

Law professors read it.

Law students?

They never get the whole opinion in law school because the law professors who write the books, take the opinion, and edit them down to the essential parts.

And so, I'm saying to myself, why are they spending all of this time doing?

Why aren't they telling a story that people can understand?

Because that's why they're there.

That's why the law is there.

That's why the constitution is there.

If the government wants to do something, it has to explain why it's doing something.

And if a court, it's only powers to decide whether the government is doing is right or wrong, well, how do you decide that?

You have to have reasons for that.

And so these opinions should be saying, "Hey, here's what we're deciding and here's why."

And you can do that in 10 pages.

You don't need a hundred pages.

- [Ted] Yeah, yeah.

- So all these opinions keep getting churned out.

And I'm wondering who they're for.

And that's a big problem, I think.

I think if they had to or force themselves to say, I'm gonna communicate this to ordinary human beings, why we're doing this in a way they can understand, and we can understand, I think their opinions would be a lot better.

And I think some votes would be changed.

- You are on the Court of Appeals, I believe, for San Carlos Apache Tribe- - [Paul] Yeah.

- and Supreme Court Justice, Fort McDowell Yavapai Nation.

Your relationship with American Indian tribes and nations.

Where that come from?

- That's interesting.

That happened mostly in Arizona.

They asked me to be dean of the law school here.

I'm not quite sure why, but when I decided I would do it, I'd had to start thinking about why am I going there?

What is it gonna be like?

And my wife had been, my wife is a wonderful parish person, and anything I have done, she's as responsible for as I am.

And this is a good example of that.

She was at the University Museum in Philadelphia giving tours about things.

And a lot of the things were Indian objects and Indian cultures, and she was really into that.

So when we got to Arizona, we started delving into Indian cultures.

And also, I noticed that there were almost no Indians at the law school.

(chuckles) Here is a law school in the middle of Indian country.

- [Ted] Yes.

- And yet, you have what?

One or two Indian students at the school and no Indians on the faculty.

And so, you know, when I'm asked, "What do I wanna do with the law school as Dean?"

I had two objectives.

One was diversifying the faculty, getting more minorities on the faculty, more black people, more Hispanics.

And the other was integrating Indian law into the law school curriculum.

It seemed to me to be a natural thing.

It needed it.

Indian legal problems are very complicated.

And so they're really fun to work on, and it's good to have a school doing that.

And so, we started a program of trying to create an Indian legal program, and we did by using affirmative action.

And that's how we got the program.

And it's, I think it's a wonderful program.

I think it's the best in the country.

It's the most Indian students of any law school in the country.

And so, I really got into that because of my wife's cultural connection, and then I liked the stuff.

I liked the objects that were, you know, the pottery, and stuff like that.

But then I'd have to meet the people.

- [Ted] Yeah.

- The Indian people are just wonderful.

The people who go into law are just wonderful.

They have exactly the kind of approach I was talking about that the Supreme Court ought to have.

It's a down-to-earth thing.

You do things for a reason and the reasons make sense, and so, it was wonderful dealing with them.

And then they asked me if I would be on, I was originally on the Hopi Court of Appeals, and then later, I got to be on other courts as well.

- Yeah.

You know, we're running outta time, which is a shame because I wanted to ask you about opera and the arts.

We've seen you out and about there on some of these cultural things.

You're very big on that.

But I can't let you go without talking about attacks on the judiciary in general and concern regarding the politicization of the Supreme Court.

Can you do that in a few minutes for us?

- There should be a concern about the politicization of the Supreme Court because the Supreme Court's job is to decide things according to the law.

And that means to decide things according to principle.

And I think most people today, not on the court, who think about the court, think it's not deciding things on the basis of principle, but it's to say, oh, they're Republicans.

They're appointed by a Republican president, so they do what the Republican party wants 'em to.

Or the Democrats, the liberals are doing what the Democrats want 'em to.

That's just wrong.

I mean, the whole purpose of the court is to do things on a principled basis, not on a partisan basis.

And the court has been doing too many things on a partisan basis, and it's not good for the court at all.

And it doesn't help to have a president, like President Trump, appointing people for specific reason.

Hey, we wanna overrule Roe and Wade.

I'm gonna appoint people to overrule Roe and Wade.

That's not what the court is for.

The court is to decide things according to basic principles and the reason about them logically.

And this court has drifted away from that.

- With that said, how confident are you in the strength of the Constitution to withstand assaults, to withstand ethics concerns, to withstand politicization, how confident are you that this experiment continues?

- I'm not as confident as I'd like to be.

(chuckles) I've just been amazed at the Chief Justice's resistance to adopting a code of ethics that was judicially enforceable.

I cannot imagine why he is resisting that.

You know, all the other federal courts have it.

They ought to have it also.

And it's a big problem because, I mean, these are people who are prominent people, they get to be on the court.

They know a lot of prominent people.

A lot of cases come to them that they know something about.

And they ought to stay away from those because they have some relationship with the parties and they resist having rules like that.

They make up their mind on each individual case, on an individual basis by themselves.

And that's not a good way of doing things.

And so, they're losing a lot of respect from the country in doing that.

That's a big problem.

And the ethical problem is a big problem.

They, I mean, they much, much into wanting to make money.

Just all of the justices.

They all work at another job home.

If they teach during the summer, they go to Greece and teach a law school course, or Rome, or something like that.

Nobody used to do that.

And so, and they also appear at conferences and meetings, and they talk about things too much.

They don't spend enough time doing their job amongst themselves and just doing that.

They've, all of them, to some extent, have gotten a taste for the public life and being public figures, and that's a bad idea.

- [Ted] Interesting.

- Supreme Court justices should not be public figures.

- Interesting.

Interesting way to look at that.

Well, I'm glad we had some time to talk to you.

I just wanna thank you again for being such a friend of this program and coming on, and helping explain legal matters.

- Glad, it's been one of the high points in my life.

- Well, you're just excellent at it, and we'll keep asking you as long as you keep saying, yes.

- Thanks, Ted.

- Paul Bender, constitutional scholar.

What a pleasure.

Thank you so much, sir.

We appreciate it.

- Thanks, Ted.

I really appreciate it, right.

- And that is it for now.

I'm Ted Simons.

Thank you so much for joining us.

You have a great evening.

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