Transcripts For CSPAN3 Working With Supreme Court Justice Sa

Next, from the Ronald Reagan president ial foundation and institute, six former law clerks recall working with Supreme Court Justice Sandra day oconnor. This is part of an allday conference commemorating the 38th anniversary of Justice Oconnors senate confirmation. [ applause ] thank you. Its really an honor and a privilege to be here. So, i was asked just to say a few words to introduce the next panel. And i think i would start by saying something that probably we all know, which is the court is a fairly powerful institution. Now, of course, it wasnt always so, though. One of the signs of how powerful it is is that you really do see in any president ial election people saying it matters who you vote for. You should vote for x rather than y because theyre going to pick the next Supreme Court justices. But if you think about why that really is so, the Court Decides about 80 cases a year. And about 75 of them need to be decided, but theyre not the reason the court is such a powerful institution, and theyre not the reason people say that about who you should vote for in the president ial election. In any given term, theres typically five or six cases that are really the reason why we care about the court, and those are the cases that have truly Significant Impact on our politics, on our society, on our government. There are also, though, typically cases, the reason theyre so hard and part of the reason that makes them so important is the law runs out before you get to the decision. So, how do we justify giving so much power to what amounts to a kind of Monarchical Institution in cases like that . And its not actually so easy to do, if you think about it. But one of the ways we do it is by who we appoint, who we give that kind of power to. So, we look, ideally, for people who have experience in politics, who have been in a position where theyve had to make some of these really hard decisions with responsibility for the consequences of those decisions. And they, in the ideal world, we remove them from politics and the way we structure the court, and they have a kind of wisdom they can bring to bear on those cases when the law runs out. So that last little bit, when the legal justifications might take you one way or another, they can bring that to bear in the decision and exercise judgment, which is, of course, why we call them judges. So, in those five or six cases every term, its that kind of experience that matters. And the truth is, if you look across American History, we used to routinely appoint justices who had that kind of experience. We had justices who had been governors or senators or cabinet officials, people who had really been in the heat of politics, in important political decisions, sometimes at the state level, sometimes at the federal level, with real responsibility for the consequences of what they did. And if you think about it, Justice Oconnor was really the last justice of that ilk. And you see it reflected in her decisionmaking. Part of the reason, by the way, is its because the court has become so powerful. It becomes really difficult to get anybody through the appointments process we have now, if they have actually ever done anything in life. But at least when she was appointed, and for all sorts of reasons, we heard on the first panel, they went to somebody who was quite unconventional, but somebody whose important experience for the court was not her experience as a state court judge but as a state legislator, as the leader of her party in the state as someone who had had that kind of experience in politics. So, what happens when the law runs out is you can see that reflected in Justice Oconnors opinions. And you could see it in what she decided, but in how she decided it. Of course, no one gets to see how a justice decides their cases better than her law clerks, not even her fellow justices got to see as close or as much of what made the justice who she was as a justice. Clerking is a really unique job. Its not really a job. Its closer to a discipleship than it is to a regular job. You work long hours, and i can tell you that oconnors clerks worked longer hours than most of us. You have incredibly close contact with this person. You spend your time thinking not about how you can influence them, because very few of us had the kind of arrogance, particularly at the age of 26, to want to push the justice in a different direction than he or she wanted to go, but really trying to understand what it is that the Justice Needs or wants or is trying do and to fulfill those needs, to provide the research, to provide the thinking, to provide the kind of argumentation that helps the justice shape her views. So, who better to give us a sense of what it was that made Justice Oconnor the justice that she was, who better than those, particularly in those key cases and important cases, who did the work with her . And so, with that, let me bring on the next panel. I think youll be really interested to hear some of the firsthand experiences of the people who had the opportunity to work as closely with Justice Oconnor as only her clerks ever did. [ applause ] please welcome to the stage our moderator, mr. Jeffrey rosen, and our first panel of distinguished speakers. Chancellor kent syverud, ms. Marci hamilton, and ms. Julio osullivan. [ applause ] ladies and gentlemen, welcome to our panel about the firsthand experience of clerking with Justice Oconnor. We are honored to have three extraordinarily distinguished scholars who also clerked with Justice Oconnor during her early years on the court, during the 84, 85, and 89 terms. So, i think we should begin by asking, what was it like to clerk with her as she was still adjusting to the extraordinary role of being the first woman on the Supreme Court . And chancellor, well begin with you. The most famous woman in the United States at the time. She drove a honda civic, herself. She was incredibly demanding and incredibly supportive as well. And what a blessing that was to have early in your life, to have a boss who insisted on the best of you, but also knew you had a camera. So, id say it was exhausting and exhilarating at the same time. Marci hamilton, professor hamilton, you had talked about how she taught you to be a professional. Tell us about that. So, you know, the thing about clerking for Justice Oconnor is that you learn how to be incredibly honest while youre smiling, and you learn now to put in writing things that you dont want to read again. So, ill never forget in the abortion cases, i was very, very unhappy with Justice Scalias treatment of the justice, and i really wrote it up. And i wrote a response that i we nailed him. I mean, that was my plan. And i hear, marci. So, i went across by the secretarys desk and i go into her office and say, yes. She goes, we dont talk like that. And i said, well, i think we should. She said, no, no. Take it out. So, i went and took out all of the strong verbiage and left just the facts, and she was very happy with that. But i learned a really good lesson, where you can really, really disagree with someone, but you dont have to be disagreeable. And thats an amazing skill that someone gets early in their career. I have to ask, because after Justice Scalia said that one of her opinions cannot be taken seriously, she famously said, sticks and stones may break my bone bones. Thats probably not true. Did she find Justice Scalias barbs to be a little sharp . You know, she found them annoying and really capable of being ignored, you know. She was one of these people that understood that if you do not give back to the person thats trying to taunt you, you can really drive them crazy. And its she was gifted at it. I mean, she told me one time that she had figured out dealing with Difficult People she had four levels of dealing with them. And you know, you do this, then you try humor at this level, then you do this at this level. And i was like, oh, my god, i should take some notes because im never going to remember this. She was just so good with people. Excellent advice. Professor sullivan, she famously made chili and had these saturday sessions. Give us a sense of what it was like to have Justice Oconnors chili and discuss cases at the same time. Well, to give you a sense of how things worked so, i was the fifth year in. These guys were a little earlier. Later. Earlier. So, you know she came from the state court of appeals, so she didnt have a lot of experience either in federal law or constitutional law. And we were hearing we listen to me. Wasnt confirmed. We were the court was hearing 150 cases a year plenary. Now they hear about 75. So, we were doing the serve pool memos. She wanted every case to have a bench brief. And we were doing the opinions, majorities, dissents, denials. So, it was a punishing schedule, and maybe you remember, the computer was only up until midnight and 10 00 to 10 00 on weekends, and we were there every second that the computer was up. And so, what wed do is wed write our bench memos, then we were expected to read each others bench memos for maybe ten cases on friday night. Does this ring a bell . Jerks and wed get together on saturday morning and the justice would make her threealarm tacos or chili. Im a girl from new jersey. I did not know from tacos. I was just like, what is this . Anyway. Was it really spicy . It was good. I mean, you know, once you got past the, you know, for some people. It wasnt the tacos that were hot. It was the discussion. Yeah, well, all right. So, i was usually in the hot seat. The justice, in my experience, tended to hire someone whos a liberal, a real conservative. I mean, it didnt work every term like this, but i think it was somewhat intentional. And sort of two people in between. And i was clearly the liberal. And i shared my office with a conservative, who was the real conservative. And we had a wonderful time because we both smoked and drank too much, drank too much diet coke. We had tab. But anyway, so we got along famously, but i did get beaten up pretty thoroughly almost every saturday, and i was only 27 years old, which was i look back on the it and think, what were you thinking . You had some nerve. So i was a little insecure and but, those sessions, shed let us spar and didnt really enter into it until the end when she sort of gave you a sense of what she wanted. And she was really, really sincere about listening to a 27yearold tell her about the cases. We viewed our role not as telling her how to decide them but to make sure she could make the best decision possible. We were really htonest about wht the cases said. We were really honest about what the brief said. We might present our point of view, but our job was to protect her and make sure she made the best decision, which would include telling her how she had decided previous cases, if she had. Thats fascinating. That vision of her listening to the best arguments on both sides and deliberating and making up her mind is very powerful. Chancellor, can you give us a particular case and an example of how that played out and take us into her decisionmaking process . So, i guess id take a case that i, long after i clerked, which is planned parenthood versus kc, which is i just would say that she genuinely listened to everyone and she genuinely read everything. You had to give her everything you cited and everything you chose, you read that you chose not to cite. And marked with the pages that so, these huge book cards shed roll in with when you were preparing both for argument and then later with an opinion. Planned parenthood v. Kc, i talked with her a lot about. That was 1992. And the clerks were very sharply divided, as maybe youll hear later. And i guess id say she was able to when she had to struggle between her belief and the rule of law and her intuitions from her own background and experience were the hardest cases from her, and id say that was about the hardest. Professor hamilton, we all want to hear about kc, and that was obviously such a defining case for her. Can you shed any insights on that or any other reproductive rights cases . Well, i think i would compare to kc the hodgekin case, which was our term, and its the one case where Justice Oconnor would have voted to invalidate an abortion regulation. And the year i was clerking was one of those years when there conservative cabal of law clerks that snuck around and thought they were deciding all the cases for the justices, and there was a lot of fighting over this case and a lot of unhappiness that Justice Oconnor was going to go the way of saying, you couldnt say that two parents both have to give consent for a teenager to be able to get an abortion. But she was just a stalwart. She didnt really care what was going on in the halls. Mmhmm. She did call me in one time and ask me about it. And i said, well, im going to be honest with you, im not being invited to these meetings. There arent any women at these meetings. And she did not like that. So, in the end, she just did what she wanted to do, and we agreed it was by far the best oral argument of the term. Absolutely fabulous oral argument, her kind of argument, where the litigator for the reproductive rights project was saying things like, well, the answer to that question is on page 152 in the second paragraph. Oh, and the answer to that ones on 845. And you could just see her going, check, check, youre right, okay. So, it was an amazing year, but it is the only year that shes voted that way. Wow. Professor sullivan, there were two aspects of kc that were so distinctive to Justice Oconnor, her concern about the spousal notification provision, which she felt was a paternalistic violation of gender equality, and the undue burden test, which was so quintessentially central to her jurisprudence. Can you cast light either on those or on reproductive rights cases that you had during your term . We did not have reproductive rights cases my term and we also didnt have the unpleasantness, because all our death cases were held for a case, and the death cases tend to bring out, when youre asked to stay an execution, it tends to bring out just the really visceral feelings of the clerks, and it can get really ugly. So, our year was pretty benign. We had some reasonably important cases. We had an affirmative action case, where she weighed in on whether officiaffirmative actio whether it should apply when youre advantaging africanamericans. Tell us about that. Well, that was very difficult, and she really struggled. But one thing about the justice people talk about her discipline and her work ethic, but what people dont realize is how incredibly bright she was. You really dont it always amazes me. And i think its because her character was such, she made it look easy, but here she is, brandnew. Shes deciding these abortion cases a couple years ago in. Were wheeling in like tenfoottall stacks of books, right . And shes doing that between exercise class at 8 00 a. M. And going out with john dancing at 7 00. I mean, i dont i really literally dont know how she did it, but its in part because shes an incredibly quick study as well as a hard worker, and she was decisive, you know. She gave it her best shot and then did not look in the rearview mirror. That decisiveness is so striking. She had a pillow at one point in her chambers that said, maybe an error but never in doubt. And she heard the best arguments on both sides but then made up her mind and didnt look back. And yet, at the same time, she was such a model she is such a model of thoughtful moderation, of balancing competing interests in the madisonian spirit, in a way that seems so rare and precious today. How can you reconcile those two features, the balancing moderation and the decisiveness . And if you can give us some specific examples, that would be great. Well, first of all, she was a commonlaw judge, and thats hard for people today to understand in a polarized era where people are playing to get their books, their cases in the textbooks, rather she wanted to decide things on the facts and the messy facts. And shed seen as a politician, as a trial judge, shed seen how messy the facts are. And then the second thing just to say is that she was often in doubt. She knew they were hard cases. So, she wrestled really hard with them. But when she decided, she didnt look back because she had another case to deal with. And she really pushed me hard to say, the time to worry and the time to have doubts is before you make a decision, not afterwards, because if you wait until afterwards, then youre doing a disservice to the people in the next case. So, she was capable of doing really hard things and moving on cheerfully and positively, which was not by nature in my upbringing. But a good lesson to me. A commonlaw judge, thats a resident phrase. Professor hamilton, what did it mean for Justice Oconnor to be a commonlaw judge . What consideration did move her . Did she balance competing features . And again, give us specific examples. So you know, she was really an incrementalist in a lot of ways. And she was too humble to think that she could decide an issue for all time with one case. And she was very, very respectful of the case in controversy requirement. And i really didnt come to truly appreciate that seriously until i started comparing her approach with her dear friend Justice Scalia. And you know, for Justice Scalia, it was kind of zeus handing the truth down from on high, right . And it was supposed to be the truth for the next 20 to 30 years, which has kind of turned into the courts way of operating, you know. If they decide a case, theyre just not going to take it for a very long time. She was more willing to say, this is the four corners of this case. Heres how i would decide this case, and i am not going to pretend i know whats the next case. So, in that way, i just found her to be just deeply fair and deeply concerned about the case in front of her, not the horizon and not, you know, how she was going to go down in history. You know, i think its been unfair that shes sometimes been characterized as being the swing vote or ive heard some characterize her as, you know, looking both