transparent justice. >> and the appearance mat areas because it is erodes trust if people feel -- >> and trust is essential. the judiciary doesn't have its own army. its life blood is the trust and confidence of the people. snuch nick edwards, your turn to weigh in. >> i would pick up on the transparency and i think that's very important. i think one of the ways that you judge what's most valuable is when you look at what's under threat. and if you -- it's important that the people have confidence that the system of our courts is fair and impartial. that when you come before the court, you're going to get a fair hearing. it's not predetermined. and to the extent that at the state level there are people who run for office, you know, the court system is within a democratic system, but it is not democratic. >> yes, i agree with you. >> and the fact that we have people going before a court

knowing that the judge got supported by some person, some lawyers or other people might come before the court, might be on the other side really undermines the ability to have trust in the outcome. the idea that we run political campaigns with individual contributions i think is a serious danger torng people being able to have were confidence that they're going to get a fair consideration. >> well, sorry. >> no, go right ahead. >> it's kind of a seamless web all the themes that we're talking about because in the absence of trust the public's not going to betology give the courts the resources that the courts need. so it's kind of a, you know, a death spiral if you go down that route the public's only going to support that which they value. >> my comment say bit of a footnote to the that comment. i would add a third dimension on transparency. you mentioned decision making

and judicial selection. i would add to that maybe because i've spent the last ten years of my life engaged in judicial administration, but the courts have also got to be accountable to the public for their use of public resources, and for their performance. which implicates judicial performance evaluation which is very much accepted within the state court systems although not so much on the federal side. and the notion of performance measures for courts as institutions has gained a lot of traction in this notion that we're about the public's business and the public is entitled to know how we're doing it. >> can i just ask a question about transparency? so i just got the latest approval ratings for the u.s. supreme court. there was a new poll taken april 4th through 15th right after the health care arguments. they're at an all-time low. 52% offer a favorable opinion of the court down from 58% in 2010 and the previous low of 57 in

2005. three in ten say they have an unfavorable view. is it obvious? >> this is after health care, before immigration. >> whose poll is that. >> this is pew. >> so it's a public opinion poll. >> it's a public opinion poll. is it obvious that transparency breeds legitimacy sft wizard of oz says the opposite, the more the people maintain the mystique, it's all in the theory of authority, the less you see the more you are able to trust the leader. it might be when people see the ads afterward where the individual lawyers are taken out of context sort of stammering and their attack ads based on the oral arguments, people have less respect. >> along those lines, i want to ask mickey a question about this. this program is being shared with viewers across america on c-span who has been knocking at the door of the supreme court asking to allow cameras in for decades. you went through the process in

the congress where cameras did come into play. what do you think? on the you know, the -- is this good for trust and respect for the institution or does it do what jeff describes, pull back the curtain and expose the wizard? >> well, i don't want to suggest that people watching congress regularly now feel very good about the system. but i don't think that cameras and the visibility have that effect. they have a very negative effect at first in that members of congress aware of the cameras there were sort of playing to the cameras, but after a time, you forget they're there. so i don't think it real affects what the members of the court do. i think that it does make the citizens realize that the people who are on the bench are human beings. they're not infallible. you know, their grammar may not be always right or they may seem mean in a question they ask, and

you know, i think probably the point that jeff makes can that there is probably some value to maintaining the mystique. you know, but i mean that requires you to have a lot of trust in who got put on the bench and how they got there. but there are some things that having everything being open to public view is not always best. i've argued in terms of the congress. >> the sausage making problem. >> i've argued in terls of congress, one reason you can't compromise now is because every meeting, every meeting between the house and senate is open to public view and you can't now do the kinds of things. >> because you appear weak if you compromise publicly. >> like you're selling out, right. >> i'd like to take issue with jeff's comment. i think the united states supreme court is generous and is not a good model for assessing

the way courts relate with the public and the public relates with courts. for example,ing in state courts in i think a majority of states now, we have cameras fulltime in all of our appellate and trial courts. and the business of the public gets done, and the public -- and actually, public an probable ratings at least of the judges on those courts is much higher than that of the u.s. supreme court. i just think it functions in an entirely different context. >> what would the difference be? >> it seems to me what jeff is talking about is not just the presence of the argument, right? because we didn't see the argument. we didn't have cameras in the courtroom. he's describing tear approval ratings having dropped after the arguments have been interpreted by the media. he's not talking about seeing the argues on c-span and being able to make up your own mind. you're talking about the arguments having happened and now the various sides having spun whatever they're going to

spin and the public responding one way or another to that spin. i mean, on one hand, yes, of course, justice when we're very, very young, we think our parents are perfect until we learn they have clay feet. we can infantize the public and say let's keep it all mysterious so they're love the courts and think they're wonderful. i think in a functioning democracy, it's important we not infantize the public. i think people would tune out, people would recognize that most of the cases that the court hears are not that interesting and scintillating as it currently stands, they're only really hearing about the ones that the media thinks are really important and interesting, only the sexy cases. he so a fairly demanding job which i think is important. but that's only one aspect of transparency. we have to be very, very careful. i mentioned that transparency and how they're selected, there's transparency in the process so that could be cameras in the courtroom or i think simply having an open court that

people can come into, but it's also judicial decision making appearing in writing, judicial decisions, showing us what you've done. summary opinions where we don't know what the opinion is or sumpl decisions where we don't know what the opinion is, we don't know the basis of it, that's a transparency issue. so there are multiple levels of the court kind of revealing itself, showing how it works and thinks. but i think actually would not be corrosive of public confidence but would support public confidence. i think our tendency is to think it's just the cameras if we saw them. but there are a myriad of ways in which the supreme court which is not representative hides behind a veil. it's not just about not televising oral arguments and some of those things would be quite helpful to building confidence. >> sherrilyn mentions the layers of the onion. this is a very complex topic that we will not do justice to in two hours. it's impossible. we could spend a whole day, but

we'll talk about some of the things that you're interested in and then you'll help us a little late per. that's what i wanted to say now before i go whack to some more questions. eventually we're going to come to your questions, as well. you may want to think about which of the various aspect of this subject matter you'd like to focus in on. that will be your opportunity to do that. an one i'd like to focus in on now is the first that you listed which is resources because it's this emerging theme during this law day discussion is that all of that other stuff sounds great, but eventual to pay for it. it seems to be a basic theme in the world and in america right now. of so i want to ask you about that. and i want to think in terms of how do we characterize the challenge the courts face. is this a crisis? is this regionally uneven in a way where crisis some places just fine other places? but when you look across the country and you look at the justice system and you get back to this fundamental essential component necessary resources to

fulfill its constitutional mandates to provide the checks and balances to do all the things that we expect it to do, where do we sit as far as this is funding issue? is crisis hyperbolely or is it accurate? >> not to be too clintonesque, but it depends what you mean by a crisis. >> meaning what is is. >> yeah, if by crisis you mean that we are at a judge turl where we have to fundamentally re-examine the way in which we've been doing business in terms of our support of state court systems, then i think we very much have a crisis. >> perhaps morel went than what i would have said. when i this i of crisis, i'm thinking the british are coming. is this an emergency? are bad things going to happen if we don't pay attention or is this more of a technicality? >> well, no, in some places in this country bad things are happening. t the -- the aba's boys olson

report, commission that prepared a report actually made a stab at collecting the empirical data about the impact of the loss of funding in state courts around the country. now, it isn't universal. i mean, north dakota's got so much oil money, their courts haven't been suffering at all but other places are suffering there. closing courts, they're furloughing employees. they're actually reducing salaries for jungs. the state judges in new york until recently had not had. >> what does that mean? does it mean you can't get your day in court literally? >> no, what it means in the state of florida, for example, they attempted to assess the impact of the inability to get foreclosure and other types of commercial cases through the courts in a timely fashion. they estimated the damage to the economy in general as close to $10 billion.

not to mention the human cost associated with people who can't get to court promptly. so there are people suffering in very real ways. >> you know, it's the operation, the administration of the courts. but there are also problems with the ability to afford getting good competent counsel for the indigent, access to justice is sometimes compromised because you don't have the accesses and i know in the private law firms, some of the pro bono operations are being cut back. and so that's an important place, too, where lack of funding compromises the ability of some people in the court to actually get a fair hearing. >> now, our data in the state court systems suggest that in domestic relations cases, divorce, child custody, visitation, property, all that stuff, close to 75% of the cases filed one or more parties is not

represented in that litigation. it's on their own in terms of legal representation. they think get a hearing but whether they can get a fair hearing without help is a big question mark. >> there's also the question of the conviction of the innocent. we now know a lot about this, these dna exonerations, 250 people exonerated because of dna evidence and studies have found a persistent pattern of failures of badly organized lineups which are overly suggestive, poor -- genetic and forensic data presented, failure to record interrogations which results in coerced con fegs and unreliable testimony from jailhouse snitches, all of these things could be alleviated with money, giving people he access to dna evidence, recording confessions, fixing the line-ups. >> are you talking about buying better science? >> buying better witnesses, a private litigant who's well off can actually afford to hire the best expert witnesses and

they're obviously not bought in the sense of their opinion but you have access to the best forensic science that exists whereas the people who are for the prosecutioning are responsible for basic errors of science as found by into the recall review in courts that results in unfair convictioning. >> the crisis word is in play, my thought is, this is an a public presentation. people who are new to this subject matter, this an opportunity to engage them. how big a problem are we describing to them? what are we asking them to respond to? >> this one example, but no one, democrat or republican, liberal or conservative can deny it's a fundamental miscarriage of justice when an innocent person is actually convicted, not only a terrible miscarriage for the person wrongly imprisoned or even sentenced to death in some of these cases but also the real criminal goes free and can commit more crimes. this is something people of all persuasions can unite around. because it can it be fixes and

because resources can fix it, it's fair to talk about a crisis that can be dressed with bet are funds. >> so like any budget question is a question of priorities. >> yes. >> so taking the justice system as a whole, what seem to be our priorities? well one is incarcerating millions of people. so in many state budgets, the prison budgets are just eating up everything else. and there's a great you know lobbying effort on the part of the prison industries both you know, the private companies that unrun the prisons, the guards that work in the prisons really lobby against a more rational incarceration policy. that's one thing. >> because prisoners are profitable. >> that's right. and or you know, are a source of livelihood you might say. another thing that occurs to me is on the federal level, the

immigration adjudication crisis which is a crisis by any measure, is eating the federal courts alive in those districts where there are many, you know, deportation cases and so on. so in the second circuit and in the 9th circuit, you know, the immigration cases are now i think something like 40% of the entire caseload of those courts. and the -- that system is so badly broken, that i know a number of federal judges who are just in despair. i've heard judges say, one at an aba program a couple annual meetings ago, saying that you know, he has trouble sleeping at night realizing that there is simply no way to administer fair and impartial and informed justice to immigrants because the lower courts in the

immigration adjudication system don't even have to give reasons. so there's nothing for the federal judges to go on. it's a horrible problem and it's costing, you know, just millions of dollars that could better be spent on a more rational immigration policy. that's not our mandate but with other priorities and focused on the administration of justice. >> sherrilyn, you teach, you give grades. what if you were grading the system on fairness and impartial? >> which system? >> the state courts, the justice system that we're seeing is potentially underfunded into to be perfectly honest with you, and i'm glad linda raised what she's raised. i think it's actually not very helpful to simply pluck out the question of kind of funding of the courts. i mean once you start discounting your justice system, you're in trouble no matter what aspect of it you're discounting. right? if you start trying to kind of mark down and penny pinch around your justice, you get what you pay for. so there's no question about that, but there is a bigger request he about the allocation of resources within the system

and linda's pointed out some of the problems. but they go all the way to the vet beginning, to the practices of stop and frisking to marijuana arrests to all of the ways in which we have overloaded the system with criminalizing certain kinds of conduct that don't really require the kind of attention, time and resources that a full-time judge sitting on the bench has to bring to bear in a case. if we look at the practices of prosecutors, there's a wonderful article this week by alexander notipof in slate about misdemeanor cases and the number of cases and the pressure of innocent people to plead guilty if misdemeanor cases. so we begin to look at the conduct of prosecutors at the failure to hand over exculpatory evidence. we've had a number of cases in the last few years in which prosecutors most particularly in new orleans have become notorious for not handing over exculpatory evidence resulting

in the incarceration of individuals including those on death row for ten, 20 years. so how we're using our resources in the system, the way in which we're responding to an emotional need in the public, we're not running our system particularly our criminal justice system in a way i think that we should require of any system, which is that it functions on fakes, it functions on what works, it functions on logic, it functions on the best trained people. i don't think we're doing that. i think we have infused our system because, of cours of cou violent crime strikes an emotional chord in all of us. but i do think it requires a second look at how we're allocating resources in our criminal justice system. if we want to allocate them towards violent crime, it seems ta makes sense. but there are lots of ways in which we're allocating our resources towards nonviolent crime that's taking up the time and space of judge who have to then comply with the speedy trial requirement of the constitution to hear these criminal cases.

so we have an imbalance in allocation throughout the system. if we really want to talking about resources to the courts, i think we have to kind of begin to take that hard look that linda's begun to suggest and say, we can't operate business as usual, as the justice said. we have to actually say, what do we need today, in this century, in 2012, to run a competent, fair, impartial, independent judicial system and system of justice? how do we do it? and how do we do it in a way that honors the money of the taxpayers? >> can i he canno her point? it's an important one. our system is increasingly focusing great resources on low-level, nonviolent crimes rather than violent crimes and this makes us an outlier when it comes to western countries. in europe, the intrusiveness of a surge for government invasion should be proportionate to the seriousness of the crime being evaluated. that used to be enforced in the

american system by juries. at the time of the founding, famous case, a jury held that you couldn't search someone's desk to identify the author of a pamphlet criticizing king george, because it wasn't serious enough to rummage through people's houses. increasingly, for complicated reasons, we've been seeing the courts say there should be a no proportionality principle. you can arrest someone for an eroneous speeding offense and strip search them. >> how did we lose it? do you have any sense of -- i know that's a big question. but how did we lose it? >> some of it came and comes in waves to our reaction of what we see in spikes of crime. we do have spikes in crime. >> are you saying fear?

>> absolutely. the question is now the data all demonstrates that crime levels in the united states has dropped precipitously and are now at the same level they were in 1966. what many criminologists are asking, why is our incarceration so out of whack than what it was in 1966? we have a justice system overwhelmed by nonviolent criminal offenses, by low-level drug offenses. if, in fact, we no longer have this spike in crime, when are we going to recalibrate so that we're using our resources appropriately? we should be learning from the past rather than simply just kind of going on this roller coaster. >> one thing we're illustrating in this discussion is how it's impossible to segregate these issues. they all connect and overlap in w ways that are very complex. >> yeah. as a matter of fact -- >> go ahead. >> i agree absolutely with everything fitz said, i find from my perspective a frustra

frustrating discussion. almost no impact on the public discussi discussions you've identified. we've made contributions. for example, there's a move toward evidence-based sentencing that's come out of the drug sort of problem-solving court movement that originated in the state courts, but we don't get to tell the legislature to recalibrate its emphasis on low-level crime and on harsh punishment and we don't get to have an impact, other than to compete with them for money on the executive branch agencies, who are constantly seeking, you know, to grandize the industry of which they are a part. >> when you were chief justice, did you not feel you had a call on a bully pulpit to call on the industry or was that just inappropriate in your situation? >> you have to be very, very

careful. there is such a line between policy, effecting the, quote, administration of justice. and we did do it with the evidence-based sentencing, but the executive branch agencies took it over. they are dragging their feet like molasses. there's only so much you can do. >> i think there's another issue. we start talking about overburdening the courts with more or less minor crimes. there's also the question about prosecutorial discretion. >> right. >> we do have a problem, in my view, in this country with prosecutors who are overzealous, who are too quick to take things into court that don't rise to that level of concern. and, you know, that puts the -- you know, we're going to bring this. ends up in the court. and that just adds to the workload. >> whatever issue we focus on from moment to moment in our discussion, i want to get back to this bigger picture about

understanding about these issues. one of the co-sponsors of this event, the survey, showed a lack of positive reaction to the notion of judicial independence. is that correct? is that a correct characterization of the findings? what i'm wondering is those of you who teach about law, who practice law, who report on law, who sit on benches, are you doing enough to communicate these issues to the public in a way that they support right things, provide the right resources, and do all the things we need the citizenry to do to create the justice system? >> i think you're asking the right question. i do think there is a lack of understanding of precisely what the judicial function and role is supposed to be. i think we have become so

overwhelmed by politics and by -- this is a point i wanted to get to earlier about the supreme court. the encounter that most citizens have with the justice system is usually traffic court. so, i mean, the personal encounter, frankly, is with the judge who is, with all due respect, traffic court judges, the lowest end of the totem pole, not because they've encountered john roberts. mostly it's that. most of us don't sue someone. and most of us are not sued. even the civil system is not the spot. so, actually, if you judged it based on people's actual encounter with the system -- everybody comes mad out of traffic court, right? but the reality is, that's not what's shaping people's views in many ways about the court -- about courts. they're having that encounter.

they're coming out of that encounter and they have their story. everybody has their traffic court story. sometimes it goes well. sometimes it doesn't go well. but what is happening is that there is a story that's being told about who the judges are and who the courts are, and that story does come from the supreme court and the media's attention and focus on the court. and so confirmation hearings, and the process of confirmation hearings has penetrated our thinking. and that's how people begin to get this idea of whether we want them to be independent, whether we don't. that's the kind of thing we associate with judges even though, in reality, the majority of the cases don't have anything to do with what we talk about on confirmation here. who the judges are, what they do, the kind of cases they get to rule on is completely at odds with what the reality is for most judges and decision making. >> so the mainstream media is

focused on a top-down reporting model is giving justice a bad name? >> it is. i will hold us responsible, too, in law schools. most of the cases we're focusing on, right -- unless you're in -- i teach at the university of maryland law school. if you're in the maryland, yes, we're talking about the maryland civil law. we're teaching civil cases and criminal cases and appropriately so. students need to know the highest law of the land. and that's important. but that emphasis actually skews the view of the public and even lawy lawyers of the role that judges actually play and the ways in which they interact with litigants that appear before them. >> i think linda is next. >> to make a decision here, i don't think the problem is what we teach in law schools and i actually don't think the problem is the top-down media. i think the problem is that

problem which sandra o'connor has been devoting her post-court life to, which is a basic lack of education about civics in this country. and there's very good research that shows that the more people know about the courts, the more they're willing to support the courts. the less they know, the less they're willing. so, you know, to the extent that -- i mean, you can't blame the whole thing on no child left behind. but to the extent that the only thing that matters is math and science and you don't -- you have people coming out of high school that can't name the three branches of government, it's really a major -- >> fundamental problem that is so profound i'm too depressed to discuss it. >> justice o'connor has been working on this. >> right. >> but what do we think that would lk like? i hear people say the civics education thing all the time. i have three kids. they were in eighth grade. i looked at their textbooks. some of them were a little skewed but for the most part they did learn about the ju