captioning performed by vitac this is why this is such a moment of truth for the supreme court. if this chooses to rule -- >> along the lines of what you said, would you be critical of the court for deciding to hear the health care case and immigration case, two hotly contested political issues where the ruling will essentially be made on the eve of a

presidential election? >> well, they did have to take the health care case. the lower courts had disagreed. they didn't have to give three days of oral argument and examine every single argument before the election. >> did they have to take it before election? >> yeah, because it was right. >> there's a problem that you identify, it's 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 system. but what turned out to be the 19th century's reform has become

the 21st century's disaster in that judges are forced to be politicians, they're forced to seek contributions that undermine public confidence and something that's been very -- another thing sandra o'connor has focused on because she she's those two things, public trust and confidence to be so closely connected. but one of the most startling things to me having been on the bench for a number of years and being in a state that has merit selection and nonpartisan 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 or judges was something people were careful about because they didn't want to undermine the system. >> i'm not so sure about that. >> i'm willing to be wrong to start the discussion on it. >> 10% in the crew of -- >> it's going back to jefferson. >> no, john -- >> let me try again. >> what has changed at the state court level is the massive amounts of money into judicial elections. this did not used to be. >> citizens united. >> citizens united will only make it worse but it had already been bad, particularly to courts in a variety of states. the reality is, as much as i

laud justice o'connor's efforts, she's had a conversion. she was part of the problem in republican party versus white, she has fond let'scy tsai the lord -- >> she's admitted that. >> she's found jesus and she's come back. there are ways to conduct elections that can deal with some of the problems you've talked about, nonpartisan elections, public funding in north carolina. there are ways to deal with it show that the process, the reform that the jacksonians wanted to happen was you wanted to have justices who had to present themselves to the people, who were not simply appointed by people from the wealthy classes. i can understand the impulse. the problem is we have allowed a free for all and now citizens united will ratchet it further up. the case out of west virginia

that the supreme court said the judge had to recuse himself, his election had been supported by $3 million who had a case that appeared on the west virginia sport. we on the other hand learned about that because west virginia has an unusual disclosure law for independent contributions that most states don't have. so 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 and it's worth pointing the out the supreme court in that case, including the chief justice, thousand it was okay for that west virginia justice to sit and 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. it's how elections are conducted and it's money, money, money. >> we'll get to your comments on this.

howard, if you could help with the mic handlers, if you can position yourselves in a place where can you be seen. and those of you who have a question, it's like an option. if you scratch your nose, you might end up with the microphone. those are the people whose attention you need to get and we'll come to your questions soon. let's continue up here as well. >> just to understand what was said about what happened in iowa and what happened in states this last election, what happened was the gold standard, $ goodest of the good government kind of ideas and now is it gone because of this? >> it's under attack even in places which are still trying to hold on to it, like missouri. >> is there hope that this montana case might be an opportunity for the court to reconsider citizens united? this is the hope of the advocates who say that the evidence of corruption was so great and it was a state election -- stage judicial

election, which the supreme court has been more sympathetic to regulating them in general, the hope is jimmie johnson kennedy might say even if citizens united formally stands, judicial corruption is such a big problem -- >> if they want to do it, they'll find a way to do it. >> we started out this conversation by listening to things we thought were essential. i wouldn't be myself if i didn't say diversity is one of the things is critically important. i think we still have an eighth circuit court of appeals that has one woman and has only ever had one woman on it. i don't know if you've seen the recent study by benjamin barton about the profile of our current supreme court justices.

we have is a latina, an african-american, but they've all given to harvard or yale. we don't have justices who engaged in preeft practice. thurgood marshall was the last justice that practiced in solo practice. justice stevens was the last justice who served in the military. just o'connor -- >> with any connection to state government. >> we're talking about a very narrow slice of individuals who are serving on the highest court. we have ongoing diversity problems, racial and gender throughout the federal appall at system and district system but also throughout the state system. that goes to the public's sense of confidence in the judiciary, the sense that it is not closed off, it is not a select group and it also goes to the quality of judicial decision making.

we should want all different kinds of people to serve so those companies experiences, legal and otherwise, so we can get the best judicial decisions we can. >> we moved so quickly to so many different topics. jeff you brought 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." the basic thesis is of course the courts do play an important role in checking the minority in some cases, especially the first amendment and when democracy is clogged. but when you look over the course of history, the courts have tended to follow public opinion rather than challenge it. and on the rare occasions when they do something that a majority of the country intensely contests, there's often a backlash and a judicial retreat. so we think of brown versus board of education as the greats

case of the court breaking down segregation and protecting minorities. it wasn't the countermajorityian decision. we have wonderful quotes from tocqueville who say lawyers are aristocrats in their temperament and they'll prevent unchecked democracy from ruling. the founders had some aspect of that in their sifg republican thinking. i prefer the quotation from hamilton who stressed it's not following the polls in any crude sense but enforcing fundamental values a majority of the country has come to accept over time. that's why interventions are important, the great free speech decisions. but they have to be used sparingly. when the judges unilaterally believe they can impose a

contested vision of justice, that's when they get in trouble. that's why debates are so poignant and important because questions of health care to affirmative action to campaign finance, these are issues in which the country is divided on the razor's edge. >> but judges are supposed to be able to get in trouble. that's the whole point. especially federal judges. that's the point having lifetime tenure and having a salary, low though this may be, that can't be reduced is they're supposed to be able to take the heat. they're not supposed to try and calibrate between the two sides and say i don't know if the country is ready. they're supposed to make a decision based on what they believe is the law. >> do they represent democratic institutions? >> i think the institution is part of -- is a critical part of a democracy and is a democratic institution. i meant it's not a -- >> you're describing something that operates outside democracy -- >> no, the democracy -- remember the apparatus that creates the

courts and that keeps the court there is democratic. it doesn't mean every function of the court has to be by majority rule. it's so much more than that. >> well, i think it have even a step beyond in the sense that in my view the values of the people are enshrined in the constitutions, which they have enacted, federal and state. and to the extent that judges perform the function of vindicating those values, they are vindicating the values of the people and what is more democratic than that? so that's the sense in which i agree. >> i do think there are some standards that have to be upheld. i had the opportunity to do a book review of one of cat sunstein's books. i read that and i didn't know if he even knew what the constitution was. >> did you include that in your review? >> i did in fact say that.

but you know, there is some fundamental here where the purpose of the court, regardless of the make-up, diverse or not diverse, is to apply what the law is because it's not the law 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, in my view, to the purpose of the court. >> this is an important debate and -- cass sunstein's notion is part of an older, bipartisan tradition, liberals and conservatives used to embrace it of judicial minimalism that said judges should go one step at a time and only -- i want to sigh descriptively without say hog is right, it is interesting the tradition that sunstein

embraces, which is bipartisan at the turn of the last century doesn't have a lot of constituents today. on the left and right you have people advocating for very pro bust judicial powers. >> one might also say activism. >> i would say activism. >> linda, do you want to say anything about this notion of democratic institution or not before we turn it our audience for questions? >> yeah. i'll make two points. you have to define democracy systemwide. even though a 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. so you look at the sort of evolution of the court from the mid 20thth century on as reactions and it's easy for

politicians to demonize the court. there's a kind of a political dialogue within the democratic framework that's always going on about the court. so that's one thing i'll say. another thing, i often got the question, well, the supreme court is so secretive, back to this transparency idea, secretive, mysterious institution. but i think somebody mentioned this earlier, too. one thing the court has going for it is they do give reasons. i mean, the health care case is going to be very interesting who is going to vote to strike down the affordable care act is going to have to give a reasonness, not simply political. that will be pretty interesting. in kier agendas can disappear -- because court on the record disposes of every piece of paper that comes in.

it doesn't get lost, it gets processed. >> where are the microphones? can we get them in the hands of the willing participants? go ahead. >> i want to add a footnote and that is to accentuate a very real difference between volunteer and court. at least one scholar once wrote a very interesting article in which he suggested that because of their more democratic imprimatur, state courts had more latitude, state court judges deserved more latitude, both with their common law functions and -- it's an intriguing notion. i've been pondering it for years. i don't know what it manse. >> we can sometimes raise questions and not answer questions. >> judge durham came into the conversation about local courts. >> yes. >> it seems to me 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. its evidence, its witnesses, it's all these things. i remember arthur t. vanderbilt, jr., the dean of new york city law school and of the supreme court of the state of new jersey. he had a court that was in disarray, disrepute and in all facts judicially inefficient. it seems to me that 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 the judge what the facts are as they've been listened to by somebody else or arrived at so that you have can handle far more cases than you could before and it would be reviewable, it would be transparent, it would be at the lowest possible level, it would be where all of the country -- most of the people of the country interact with the judicial system. but you could take in light of that discussion on judicial efficiency and applying law to the facts. >> well, judge vanderbilt of course is also known as the dean of judicial administration. he's one of the founders of the field. it's one reason i'm so

passionate about judicial administration because i think it is absolutely the case that the abstract questions and the work of judging has to be done well but the work of managing the courts also has to be done well, particularly with respect to the need for resources. we have no business asking for more resources if we are not well organized and managing the resources we have now. >> hi. >> first i want to thank the aba and the woodrow wilson for having all of you guys out here. you had a very 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 inmate. 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. i would like to know what your thoughts are because i think if you can do it across the board

through all the state, which you actually can't right now, then you would address, one, you wouldn't be imprisoning someone who is innocent, potentially innocent and you would reduce the overcrowding and cost the inmates because nobody wants a jail in their back yard. >> is anybody familiar with why the state that don't allow it don't allow it? i think it's resources. >> i was wondering if that was the case. >> remarkably the u.s. supreme court in a case just a few years ago held that there is no federal constitutional right to have access to dna. i think that was a case involving baby. even though the constitution does provide it, the state did not get a rife rite to it. could we imagine congress creating a national right? i almost could, even in this difingsal congress, where nothing can be passed and both sides are at each other's throw.

in is not something which everyone -- is a basic matter of jg. there are bipartisan improvements,in owe sent movements afoot. the innocent progress are doing work along these binh lines. you might find ways to lobby. >> thank you. who's next? >> yes, sir. >> let me in response to that suggest that perhaps it a little naive to suggest there isn't prosecutorial politics. it may be and and the inmaximizing prosecutorial discretion can't be in order. i wanted to ask something very different and that's going back to the court funding issue and the relationship between funding and transparency about our own inefficiencies in the system. it seems to me we're constantly caught in this dilemma about how we can honest about how

inefficient we are. courts are not perfect institutions in terms of our value. and i guess i'd really appreciate the pam's thought are how, first of all, we convince the public and there are ways where wl -- and how we can be transparent about our problems without decreasing funding as punishment. >> one of the things that speaks to both points that you've raised is there is this kind of bizarre, strain right now in american discourse that somehow we have too much justice. you know, people just have too many chances and i think this is some of the dna stuff, too. >> it's i just think it's a sense that we -- why i don't

know -- i don't think people truly understand what the essential elements of a justice system are, the ways in which we have cut corns are, th -- corne and that's what i meant by what i said when i said we have to look at the whole, not just pieces of it. the impulse to achieve high levels of prosecutions, that you get credit for how many people -- prosecutors are supposed to do justice, right? but instead the incentives are all towards how many people can you convict. we're operating in sam and in the spror has had to order a state to release prisoners because overcrowding violates the eighth amendment. that's that's the case out of

california. you have a case that jeff talked about, the florence case just decided a month or so ago in which the supreme court has said we have 14 million people arrested in the u.s. each year and jail officials have the arrest to strip search anyone. we have cases in which prosecutors have withheld evidence and helped people in jail. it's think it's actually --? it's arming the the respect we have for the justice system and all of that is harming the allins make improvements, who are trying to make the work prts but until we again to unpack all of these pieces -- i've written about this before, we are in a

crisis in our criminal justice system. when the things that i described can happen withinst last three years, we're in a crisis. we have to figure out how we get ourselves into a fair tiff as we should be prepared to sell. >> do you have an idea -- >> it's not just from the state lefl. we find out from the justice department that exculpatory evidence being withheld from defense attorneys. and i mentioned earlier about prosecutor yal k-- prosecutorialism. there are people in this country, and i really hope 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 builty. >> it really some push armament

that there as i think that's a significant problem in our system. >> does anyone have a sense of where we would start in this regard? in order, sherrilyn has described something very fundamentally flawed and problem at is there a rule caught one flores -- >> proportionality in criminal season ternsing. >> that's got to be advanced through the legislative process. you have to find a way to generate commitment -- >> you're right but i don't want to skip over miss montana a case in which a man had been on death

row for 14 years, he retried, the jury deliberates for 13 minutes and comes back add says he's innocent. he then sues civilry. he sued the jury wanteds him $14 million and the case go up to the supreme court and the court space you can't you anyway ma the low tell prosecute. that's not good enough, $14 million wiped out, even though a jury of -- it's about the spror failing to take the opportunity to provide a disincentive to do what some prosecutors are doing, is withholding exculpatory

evidence, failing to train new lawyers. so you're right, it could in providing proper incentives that would recalibrate the system. >> so to give the court credit, we had this wonderful decision, we're ate, who -- you do prum thifl need a warrant if you're going to track his volunteery. then they looked for the next case, the justice said i

abandoned so we're talking about complicated moving parts and legislatures but one things courts can do is interpret the constitution and sometimes when they do it, they can pro. >> just as did your ham -- justice durham said the entire system is set up to do that. but if a supreme court nominee were to say that in the confirmation hearings, they would be pilloried for arrogance and a misunderstanding how the justice system works. and my point in saying that is we don't -- speet about the role of the court, we still it be ha