science and math in the classroom than civics. >> in eighth grade, they had a portion devoted to american government and they spent a year studying american government and they have done since. what are the components that are -- i agree with you, something is missing. but what are the components? >> the specific things that need to be taught that aren't being taught? >> wyes. >> your kids are lucky. >> i think that's rare, to be honest. >> my daughter had, it's called nsl, national, state and local government. with the eighth grade, it was actually very -- >> it's hard to identify a root cause. we keep -- part of the problem is just government is treated like such a necessary evil, at best, that civics is tied to that. you don't have a good -- >> it's fallen out of a lot of curriculum. it really has. >> it has. >> it has, yeah. it's under funded. >> that's true. there is -- i've been with justice o'connor and when she talks about this, she's really

convincing. there is a problem. but here is another problem. when people are judging what they think of the courts, and that's the politicization, the process. i will tell you now if, for whatever reason, president obama has the opportunity to appoint somebody else as his nominee for the supreme court that before the appointment is made, before we know who it's going to be, all the democrats will be for it and all the republicans will be against. and then if mitt romney wins, you have a republican president and he is able to name somebody to the supreme court, you know, all the democrats will be against that nominee and all the republicans will be for the nominee. that's not the way it used to be. it used to be a very different system. and some of the most important and even controversial justices in our history were overwhelmingly approved when that time came. that time's gone. so, people are looking at the

court, looking at justices through a political prism. and i think that is helping to undermine confidence in them as impartial arbiters. >> is there any turning back? >> it's a very, very serious problem sbl. but to what degree are the courts themselves responsible for this? all of my colleagues have suggested focus on just high-profile cases. there are other factors at work. when you have a supreme court striking down 5-4 votes, conservatives all appointed by republicans and liberals by democrats, campaign finance reform, possibly affirmative action, and, of course, health care, it's hard to get that idea back. expressed frustration about the 5-4 votes and his agenda was to tr trance send that.

and he thought it would be good for the court and good for the country. i think so far his success has been mixed, you could say. he has had some success on important cases. this is why it's a movement of truth for the supreme court. if it chooses to be ruled along these lines -- >> along those lines, would you be critical of the court deciding to hear the headlight care -- on the eve of a presidential election? >> the health care case, lower courts disagreed. they didn't have to give three days of oral argument and examine every aspect of the legal challenge. >> did they have to take it? >> yeah, because it was right. >> the history of the court dodging cases right before election, as linda knows better than anyone, efforts to decide when roe came down for political reasons was not a great -- >> this problem that you identify is exacerbated in the state court setting where some 37 states still engage in

contested election of their judges. it's ironic, because the election of judges was regarded in the mid 19th century as a reform effort against the elitist, corrupt appointing authorities who had been appointing judges under an appointed system. so -- but what turned out to be the 19th century's reform has now become the 21st century's disaster in that judges are forced to be politicians. they're forced to seek contributions that undermines public confidence. and the justice state studies have been very helpful in documenting that fact. and something that's been very -- you know, another thing s sandra o'connor has focused on, because she sees those two things, public confidence in judicial selection to be so closely connected. one of the most start iing thin

to me, having been on the bench for a number of years, uncontested retention elections, last year for the first time, there were no fewer than five challenges to judges -- justices on high courts in state retention elections. you have to go all the way back to the mid 80s in california to see that kind of challenge. but then you had iowa and four others. >> maybe this is my imagination. but it seemed as if there was a time where criticizing justices was -- or judges was something people were careful about because they didn't want to undermine the system. >> not so sure about that. >> you exposed my ignorance. >> newt gingrich, by questioning the authority of the courts is going back to jefferson. >> john, what happens changed,

however, at the state court level is the massive amounts of money in judicial elections. >> citizens united. >> it will only make it worse but it had already been bad before citizens united, particularly in elections of the highest courts in a variety of states. the reality is that as much as i laud justice o'connor's efforts, she has had a conversion -- she was actually part of the problem in a case called republican party of minnesota versus white. >> she admitted that she was. >> yes. she has found jesus and come back in. it is wonderful. >> jesus is an intimidating judge. >> indeed. it's not just the elections themselves. there are ways to conduct elections that can deal with some of the problems that you talk about. nonpartisan elections, public funding in north carolina for judicial elections. there are ways to deal with it

so that the process, the reform that the jacksonians wanted to happen, you had to have judges present themselves to people, not just appointed from the wealthy classes. i can understand the impulse. the problem is that we've allowed a free for all in the election of judges. now citizens united will ratchet that up. the case in virginia, where the supreme court said the judge had to refuse himself after he received -- he hadn't really received it, but his election had been supported by $3 million by an individual that had a case before that judge in the west virginia supreme court. we only learned about that because west virginia happens to have an unusual disclosure law for independent contributions that most states don't have. we learned about that one case. but we don't know about the many other instances in which this kind of thing has been happening. it's worth pointing out that the supreme court -- that was a 5-4 decision. including the chief justice,

four judges thought it was okay for that west virginia supreme court justice to hear that case of that individual who had donated $3 million to see to it that the justice would be elected. so, we have a real problem at the state level with judicial elections. it's not just the word elections but how elections are conducted and it's money, money, money. >> we'll get a few more comments on this. we'll come to your questions soon, as well. howard, if you could help direct the mike handlers and position yourself in a place where you can be seen. and those of you who have a question, it's like an auction. if you scratch your nose, you might get the microphone. those are the people whose attention you need to get. then we'll come to your questions soon. let's continue up here as well. >> to underscore what she said about what happened in iowa and the other states, this last election, the missouri plan, with the retention election, it was the gold standard for the state courts. i mean, it was the -- you know, the goodest of the good

government kind of ideas. and now, you know, is it gone because of this? >> and it's under attack even in places, which are still trying to hold on to it, like missouri. >> is there some hope that this montana case might be an opportunity for the court to reconsider citizen's united? the evidence of corruption was so great and it was a state election, which -- state judicial election, which the supreme court has been more sympathetic to regulating them than the political system in general. the hope is that justice kennedy might find a way to see that even if citizen's united officially stands, corruption is such a problem that -- >> if they find a way to do it, they'll find a way. >> i wouldn't be myself if i didn't say that diversity is one of the things that i think is critically important. this is diversity of all kinds. obviously racial diversity, gender diversity. we still have an eighth circuit

court of appeals that only has one woman and has only ever had one woman on it. racial diversity, gender diversity but diversity of background and experience. i don't know if you've all seen the recent study by benjamin barton. the very narrow profile of supreme court justices that we have. we have a latina supreme court justice, three women, african-american, but they've all gone to harvard or yale. we don't have justices that have engaged in private practice. justice marshall was the last justice that represented a defendant let alone in a criminal case. so, you know, justice stevens was the last justice who served in the military. sandra o'connor. >> last elected official to state government.

>> exactly. so we're talking about a very narrow slice of individuals serving on the highest court. and then we have ongoing diversity problems, racial and gender, throughout the federal aappellate system but also throughout the state system. >> that's true. >> that's critically important. that goes to the public's sense of confidence in the judiciary. the sense that it is not closed off. it is not a collect groselect g. we should want all different kinds of people to serve so that those experiences, legal and otherwise, can interact and we can get the best judicial, most informed judicial making that we can. >> one other thing i would ask you to comment on, which came up earlier, but we moved so quickly to so many different topics. jeff, you brought it up in reference to an essay about the courts not being a democratic institution. >> i think they are. >> i'm with you. >> i have a book called "the most democratic branch." yes, of course the courts do play an important role in

checking the minority, in some cases. especially the first amendment and when democracy is -- when you look over the course of history, courts have tended to follow public opinion rather than challenge t on the rare occasions when they do something that the majority of the country contests intensely, there's a backla backlash. brown versus board of education as the great case of the court striking down segregation and protecting minorities. in fact, brown was popular with 54% of the country, supported by president truman and, reluctantly president eisenhower. >> what about those that say the courts are -- the defense of the rule of law against mob rule and democracy would represent mob rule? >> we have these wonderful quotations from the founders who said that lawyers are aristocrats, very conservative in their temperament and prevent unchecked democracy. of course, the founders had some

aspect of that in their civic republic thinking. it's not following the polls in any crude sensor preventing mobs from rule but enforcing fundamental values that the majority of the country has come to accept over time. that's why interventions are important, great fourth amendment decisions. they have to be used sparingly. when judges unilaterally believe they can impose a vision on the country, they often get into a lot of trouble. that's why our debates now are so important and poignant. questions from health care to campaign finance, these are things about which the country is divided on the razor's edge. when you put your thumb heavily on one side of the scales, you provoke a lot of public sentiment. >> that's the whole point, especially federal judges. that's the point of having lifetime tenure and having a salary that can't be reduced. they're supposed to be able to take the heat. they're not supposed to try to

calibrate between the two sides and say i don't know if the country's ready. they're supposed to make a decision based on what they believe is the law. >> do they represent democratic institutions? jeff is saying they are democrating. >> i think it's part of the democracy and is a democratic institution. >> it doesn't operate outside of democracy. >> no. what keeps the fort there is democratic. that doesn't mean that every function has to be by majority rule. it's so much more than that. >> i think of it even a step beyond in the sense that in my view the values of the people are enshrived in the constitutions which they've enacted, federal and state. and to the extent judges perform the function of vindicating those values, they are vindicating the values of the people.

and what is more democrat iic tn that? that is the sense in which i agree. >> there are standards that need to be upheld. i had the opportunity to do a book review. i read that and didn't even know if he knew what the consequentin was. >> should we include that in your -- >> but, you know, there is some fundamental here where the purpose of the court, regardless of the makeup, diverse or not diverse, is to apply what the law is. because it's not in the law machi -making branch. and trying to make it representative of the community at large and what the community now thinks would be good policy goes contrary to my view, to the purpose of reform. >> intimidated several authors on our panel. >> just a word on behalf of --

this is an important debate. nikki edwards is right to embrace the traditionally robust conception of traditional review. but it's part of an older bipartisan tradition of judicial minimalism that said judges should go one step at a time and second guess decisions only when the arguments were clear. i want to say descriptively, without saying who is right, it is interesting that bipartisan at the turn of the last century doesn't have a lot of constituents on the supreme court on the left and the right, you have people advocating for very robust judicial power, saying the court should strike down the law. >> activism. >> i would say activism. >> flying across the -- do you want to say anything about this notion of democratic institution or not before we turn to our audience's questions? >> yeah. so, i'll make two points. one, i think you have to define democracy, you know, system-wide. even though, say, life tenured

federal judge is not held accountable for this decision or that decision, there's an ultimate political accountability that resides in the president who appoints these people. you can look at the sort of evolution of the court from the mid 20th century and beyond actions and reactions. it's easy for politicians to demonize the court. there's a political dialogue within the democratic framework that's always going on about the court. that's one thing i'll say. another thing i often got the question, you know, well, the supreme court is so skrecretive. going back to this transparent idea. but i think somebody mentioned this earlier, too. one thing the court has going for it is they do give reasons, you know. the health care case is going to be very interesting, because

anybody who is going to vote to strike down the affordable care act is going to have to give a reason that's simply not political rhetoric. and that will be pretty interesting. whereas in congress, entire agendas can disappear without a fingerprint. >> true. >> the court, on the record, disposes of a piece of paper that comes in. it doesn't get lost. it gets processed. >> can we get them in the hands of these willing participants? >> i want to add a footnote to something that the congressman said. that is to accentuate a very real difference between federal and state courts in this regard. state courts are law making institutions in their common law function, a. and at least one scholar, burt newburn, wrote an interesting article saying because of the their -- state court judges have more latitude, deserve more

latitude than federal court judges. it's an intriguing notion. i've been pondering it for years. i don't know what all it means, but i wanted to put it on the table. enjoy it. >> jeff sessions, go ahead. >> judge durham came into the conversation about local courts. >> yes. >> it assume seems to me that this panel is uniquely qualified to begin a movement that would be professionalization of what we do in the judicial system. most of the state courts are involved in applying law to the facts. and it is the fact finding that takes time. it's evidence, witnesses, experts, all these things. i remember author t. vanderbilt jr., the dean of new york city law school and of the supreme

court for the state of new jersey. he had a court that was in disarray, and judicially inefficient. it seems to me if we look at it now and about your ability to secure independence for judges and respect for the courts and to solve the financial problems, we might look to try to perfect what we do and better what we do more efficiently and more effectively to apply the law to the facts. and the facts to the law. find ways in justice courts, in municipal courts to actually give a judge what the facts are as has been derived at, and it would be reviewable. it would be transparent. it would be at the lowest

possible level. it would be where all the country -- most of the people in the country interact with the judicial system. but you could take and liven that discussion on judicial efficiency and applying law to the facts. >> well, judge vanderbilt, of course, is known as the dean of judicial administration. is he one of the founders of the field. it's one wereason i'm so passionate about judicial administration. i think it is absolutely the case that the abstract questions has to be done well but also the managing of the courts has to be done well. and particularly the use of resources. we have no business asking for more resources if we are not well managing the resources we have now. >> first, i want to thank woodrow wilson for having all of you guys out here. you've had an interesting conversation this morning, this

afternoon. my question goes to something you spoke about earlier, about dna testing and how that clears and has cleared a lot of inmates. there are states that have passed laws where you can't get dna testing even though evidence may exist, because that's just the way the law is now in those states. and i would like to know what your thoughts are. because i think if you can do it across the board through all the states, which you actually can't right now, then you would address -- one, you wouldn't be imprisoning someone who is innocent, poe it tensitentially and you would be reducing overcrowding. >> is anyone familiar with why states that don't allow it don't allow it? >> i think it's resources. remarkably, the u.s. supreme court in the case a few years ago held that there's no federal constitutional right to have access to dna.

i think that was a case involving alaska which did not want to provide the sample and the supreme court said even though most states do provide it, the constitution did not give a right to it. your question raises the possibility of a federal solution. could we imagine congress actually creating a national right? i almost could, even in this dysfunctional congress where nothing can be passed and each side is at each other's throats. first of all, it's not that expensive and everyone on both sides agrees is a basic matter of justice. let's agree that there's interest in the room. let's try to -- bipartisan movements. innocence projects are doing good work along these lines. if go to the innocence project, you may find ways to lobby congress to pass a law of the kind you describe. >> who is next? >> in response to that, perhaps it's a little naive to suggest that there isn't prosecutorial

politics to dna. in part it may be legitimate for the interest in maximizing prosecutorial discretion can't be ignored. i want to go back to the court funding issue and the relationship between funding and transparency about the inefficiencies in the system. we're constantly caught in this dilemma about how we can be honest about how inefficiency we are. courts are not perfect institutions in terms of our efficiency. partly because there's so many nonefficiency values to which we ascribe. i would appreciate the panel's thoughts on first how we convince that there are ways that relatively small investments increases alcohols in justice and efficiency and how we can be transparent about our problems without the end resulting in decreasing funding as punishment.

>> one of the things that speaks to this point -- actually, both points you raise. there is this bizarre strain right now in american discourse that somehow we have too much justice. you know, like it's -- people have too many chances and i think this is some of the dna stuff, too. just too many, too much. and you have another trial. >> so they just want a harsh -- >> i just think it's a sense that we -- i don't think that people really, truly understand what the elements -- essential elements of a justice system are. the ways in which we have cut corners that create the kinds of problem, i think, that result and that's what i meant when i said we had to kind of look at the whole system rather than pull out one piece of it. the dna testing piece is one piece of it. absolutely, the question of prosecutorial discretion and the impulse to try to achieve high

levels of prosecutions. you get credit for how many people -- prosecutors are supposed to do justice, all right? but instead, the incentives are all towards how many people you can convict. we operate in a system in which three years we've had a supreme court case in which the supreme court has had to order a state to release prisoners because of overcrowding violates the eighth amendment. that's the case out of california. you have a case that jeff talked about, florence case just decided a month or so ago. and the supreme court has said we have 14 million people who are arrested in the u.s. each year and that the jail officials have discretion to strip search anyone that they arrest, regardless of whether that person, individually, constitutes a threat or not. we have all of these cases where prosecutors have when would evidence and held people in jail. there is something wrong with a narrative we're telling about justice in this country. and i think it's actually -- it's obviously harming citizens and individuals and harming the

innocent. it's harming the respect we have for the justice system. and all of that is actually harming the efforts of justices and judges who do need the resources, who are trying to make improvements, who are trying to make the court system work better. so, people are reacting and responding. until we begin to unpack all of these pieces -- you asked earlier if we were in a crisis. i have written about this. we are in a crisis in our criminal justice system. when the things i just described can happen just in the last three years, we're in a crisis and we have to begin to stop and recalibrate and figure out how we get ourselves into a narrative in which our ideals, which to me we should be prepared to spend as much as we need to spend on, can go first and our fears can go second. >> it's not just at the state level. so we find out from the justice department that exculpatory evidence being held from defense attorneys -- >> yes. >> -- and from defendants. that prosecutorial discretion, i

mentioned earlier, prosecutorial abuse. that's a real problem with a number of prosecutors who believe that it is their job to convict. and a lot to go directly to what you said, there are people in this country and i really home it's very few, but i doubt that, who take the attitude, of course they're guilty. they wouldn't have been arrested if they weren't guilty. and it really takes some push against this argument that there's too much justice already. you know, just put an end to it. i think that's a significant problem in our system. >> do any of you have a sense of where we would -- in this regard, cheryl has described something that's fundamentally flawed and problematic and it almost leads to a sense of hopelessness because it's too big to tackle. would you have a place to start? >> proportionality in criminal

sentencing. >> but that's got to be advanced through the legislative process. you've got to figure out a way to generate a commitment on the part of lawmakers when you address those issues. >> you're right. but i don't want to skip over missed opportunities. when the supreme court had before it the case of connick versus thompson out of louisiana, where the prosecution had when would information, a man sat on death row 14 years, he is released, retried, the jury deliberates 35 minutes and says he's innocent. this is after he spends 14 years on death row. he then sues civilly. here is an opportunity to create a disincentive for prosecutors to withhold evidence. the jury awards him $14 million, a million every year that he spent on death row. and the supreme court says you can't win that verdict simply because the low-level prosecutors didn't understand