they keep track of who makes the audience laugh. they know they are on stage here. the advocates know -- willie can attest to this. they're not thinking about the audience. they're thinking about the justices and making their point and trying to read the justices. the idea that showboating would occur doesn't add up. another concern is about the media, what they would do with camera access, concerns about snip pits and sound bites. there's a belief that there's concern what john stewart and stephen colbert would do with the clips. it doesn't add up with that we get audio or quotes athe newspaper. we heard about this question or that question. so the third area that is actually we're hearing more of from the justices and i find concerning is that we're hearing from the justices, even justices who at their confirmation hearings supported cameras in the courtroom are starting to

say these things. this say trend unfortunately we see. nominees start out in support. they change their mind. which suggests we can't wait out this issue. it's not an age issue. this is a concern about the public and that we keep hearing this concern that the public won't understand what they're seeing, that they wouldn't understand oral argument is just a part of the process. they won't understand that the justices have to be harsh on both sides. they mied think someone is getting ganged up on. i find this to be concerning because it suggests that more information is actually going to be bad for the public, that the public needs to be shielded from information. it does seem to have an elitism to it that already those of us who do read the transcripts and li listen to the audio or read the reports from the supreme court press corps, that we're the types that can understand where oral argument falls but tv would reach a different kind of

audience who wouldn't understand it. i find this very concerning. i certainly believe it doesn't meet the bar of is this argument good enough to go against our presumption that i think we should have of accessibility and openness. >> i want to give you a chance to react to one another. i want to ask another question. i think it flicks it at one theme that we're hearing, which is under girding about why the courts are different from the other branchs of government is just i think this sort of argument that we're different because we're different and we're just different. if there's more transparency, we will stop being different. almost every variation of the problem of transparency comes down to the idea that, look justices are different and that means their painers are treated differently, their decisions are treated differently, it means access to them is treated differently. we can't see the text of their speeches because they are different. so i wonder if anyone wants to

take a crack at this question of, are they different? are they just different? if they are, some of these arguments begin to make sense. clay, you look like you want to go. >> yeah. i think that to an extent they are different because these are the only people inside of government that don't need television in order to get their jobs. i suspect that a member of congress cannot get elected without television. i suspect the president cannot get elected without television, without stepping in front of a camera, without being in the public. whereas a justice can. so this idea of i guess, you know -- their confirmation hearings or whatever. this idea that television or video or transparency is part of their duty becomes sort of

difficult, because it wasn't part of the job interview process. right? so i mean, that would be my case for culturally why they are different. i also think that, you know, you have to look at the supreme court as a leader, so to speak, for the entire judicial branch for all of the courts. the interesting thing is when you look at the use of the internet and you compare it to the lower courts, the supreme court is doing quite well. it's sort of like, you know, my 1-year-old is doing quite well at speech compared to my cat. but still, you know, he's doing quite well. and i think that you are not going to see much change in this field until the supreme court changes, because the supreme court represents the end of

someone's career all without cameras, all without television, all without transparency. and as such, you know, why would i change now when i've never had to do that in my entire career? i've never found it to be that people at the end of their career are the first to embrace new technology. >> the court is not different in any way that would justify a reversal of the presumption of transparency in government. >> i meant culturally. >> they have the nomination hearings. they're not really hearings. on tv. they have no problem going on talk shows to hock their books. but the truth is, the supreme court justices are less like judges than any other judge maybe in the world. they're the only judges with life tenure that serve on our na nation's highest courts. their decisions are essentially political. the only secrecy they -- i don't

want to see their draft opinions. i don't want to hear deliberations with their law clerks. that's fair. everything they do that's public should be public. i will give you an example. it's a small thing, but -- cumulatively it's not a small thing. a justice was at a conference last friday. it was a three-day conference. the only person who said you can't tape record, video record my comments is justice scalia. then it turned out something happened that doesn't happen. no one gets to see it. a public official making a public speech, he ranted about how same-sex sodomy and abortion are not in the constitution and shouldn't be protected. he rant and ranted and got embarrassed and no one saw it. if he's going to go to the governor's mansion for a reception and appear in front of 500 people in a room and give a

public speech, it should be recorded. there's no reason -- there's no good reason why we should have had to exceed to his request. >> why? >> because he wouldn't have come over wise. >> to pick up on the remarks, it's self-evidence that they have come from one cloistered life to another. the route to the priesthood is through the federal appellate court. those institutions themselves are bundled up. so when they get to the supreme court, they are not -- don't reflect the range of professions and exposures in public life that other government people would have by the time they got to the high rung. >> you are saying they are different because they have super thin skin, not because they are -- >> no, no. it's because they are cultutur l

culturally. >> transparency is a cultural issue. when it's a technical issue or when it is a technical issue it fails. it almost always fails. if you look at the president's open government agenda, when the president was like, we're going to up this data and you go and look at the last time that the data sets got updated, it was 2009, 2010. that's because it was a technical issue and not a cultural one. so if an engrained with the culture of transparency, that will fail. >> did you want to respond? you lunged like -- >> i couldn't see. i think if anyone who agrees with eric that the court is just another political body and it's -- they are doing what they want, they are imposing their will and all -- >> does anybody disagree? >> i'm willing to say that that

i disagree with you firmly. i think because they are not public officials whose job it is to appeal to the public -- if a member of congress or the president does something that does not stand the light of public scrutiny, meaning it offends a lot of people, they may well be doing their job wrong. that is not true of june judge justices. that is what they are paid to do. for exactly that reason, the fact that -- their opinion might be unpopular, who cares. the fact that they are -- the private vote, the reasons they give in conference -- do you think the votes in conference should be public? >> no. it's preliminary. it can change. >> right. their deliberations are not public. oral argument is part of their deliberation, too. it's supposed to be a fleshing out of what is important here. >> it's public, with all respect. >> yes. absolutely. that's a separate question. public in what way? but i think with a we need to

focus on is, who are these people? what jobs do they do? which parts of it kind of are -- they are public officials running around giving speeches, selling books and taking money from the public treasury. the fact that they operate a branch of government, they have employees, they take gifts and travel -- accept travel and so on, that's fair game. but when you are talking about the job that they are doing as judges and justices, i think it's different. i think that equating them with members of congress and the president is a false -- >> i would throw in that the way they are different actually argues for open, even in terms of a legal branch and not getting into the political argument. they don't deal with witnesses. they don't deal with injuryjuri things that could raise issues about those kind of sensitive

things. the issues they deal with have the most national importance. they have life tenure which almost all government employees don't have except federal appellate judges. everything argues that if anybody should have this openness, it would be them. >> they are the only governmental officials in the western world anywhere that are final, leaving aside the constitutional amendment process. they are final. they have life tenure. there are no other officials in any western democracy that have that job title. if anything, they have the most transparency because of that, for those reasons. >> i guess i would also -- one more sort of valance to this is, how are they different from canada? because i always remember -- >> that's always the question. >> hearing -- it comes back to canada. but i just remember hearing a chief justice of the canadian supreme court talking about this. someone said, this is crazy.

canada has had cameras in the court. >> nobody cares about canada. >> that was the argument. it was, that's canada. >> the canada supreme court, most of the time, can be overturned by a vote of the legislature. that's a big difference. these men and women are final. >> i want to ask a question that i think sweeps in some of the things you have talked about. there are work arounds to the rules. it's not just the pen camera. that's a new and interesting work around. but when justice scalia says nobody is going to cover my speech, what happens is someone tweets it or -- clarence thomas came to uva and was off the record, you were sworn to secrecy. every word was published the next day with mistakes, because we don't have a record of it. a justice goes to speak at a dinner and someone just takes a

photo of him and suddenly the media has captured it. it seems to me that more and more when the court puts up these barriers to transparency, what happens is that what rushes n in is less than what they would afford us if they would just let us in. i wonder if anyone has thoughts about, is there some tipping point at which the court says -- i'm thinking of the healthcare cases when they were handed down. for the first couple of minutes, it was wrong. maybe the court has no obligation to help us get it right. but is there a cost to the court of these work arounds that aren't working? >> last friday, the atlanta legal newspaper got it wrong. they covered the event and they got it wrong. on this case, they did it to his benefit. it could have been to his detriment. it would have been better if someone could say let's go to the videotape. >> i have a screen shot of the front pages of fox news, msnbc

and cnn on the day of that. the fox news said, obamacare struck down. msnbc says supreme court upholds obamacare. cnn said, breaking news, supreme court issues response. we will tell you more in a minute. i find thatdemonstrative of our media. look what happened at the beginning of this administration when shirley -- a 30-second sound bite ends up on the glen beck show and you end up fired for words taken out of context. i think there's a level of fear. i think a healthy fear of public scrutiny for the sake of, when i

was working at the sunlight foundation, part of my issue with transparency is not only are you arming the smart lawyers but you are arming the glen becks and keith obermans to advance things that may not be the truth. unfortunately, the only real occur is a good transparency. i just -- i look back -- i look at the political discourse, the activist discourse around things like citizens united. i wonder how much better our public discourse would be if those deliberations were a bit more public. i mean, i understand that the oral arguments are public. but a bit more public. if the public could see the arguments. . i wonder what harm this lack of transaparentsy is doing to the

public because our discourse has to be distilled into what gets delivered to us through fox news, msnbc and cnn which on that day couldn't make up its mind. >> if it's fair to put the question back to you, with an analogy, maybe not a perfect one, but last summer when disclosures were made, the department of justice had subpoenaed ap phone records and seized e-mails from the fox news reporter, holder launched a process to work with the press on trying to figure out what reform needed to happen to media subpoena policy. i would wonder after some of the glitches in reporting the healthcare decision why doesn't the chief justice wander down the hall or reporters try to wander up the hall. >> there's no wandering. >> we need to talk. this was a monumental decision.

the reporting of it was flubbed. t the press needs to work with the court. is that an impossible conversation to have that you would launch a dialogue the same way that we have launched one with doj? >> i think it's a great question. if it's happening, i'm not in that conversation. i'm looking at tony. he would have been spearheading it. i think that the answer is in part that the court sort of separates the media from the court. there's a story of the press going to the then chief justice and saying, please don't dump six 100-page decisions on us and ask us to get it all right. can you space out decisions day so that we can do our jobs and get it right? the response was, why don't you just cover some of them today and then you can cover some more tomorrow. as though the news just happens magically at the caprice of the

court. i think the court thinks these are the media's problems. the court does not feel that there sis a cost to them gettin it wrong. >> there is avery substantive problem underlying this issue. i know there will be disagreement. but the problem is the justices really feel they are special, they are different, they are not political and it's a temple on a hill. they feel that way. they are not going to worry about the press. they're not going to worry about all kinds of things that other governmental officials have to worry about. we can't develop this today, but they're not special. their opinions are based on values and not poll lickties but their personal life experience, politics. and they are less special than they think. the faster we get more transparency, the more that will become clear. >> to circle back to the beginning about canada. they do it differently from

canada. the press corps, someone comes from the court and says, this is what this case is about. do you have any questions? this is how we can explain it. i think there's some sort of quarantine for a couple of hours where everyone reads and figures things out. i'm not sure how i feel about that. they do let them know when big cases are coming. it's just an idea that there is a different way do it. i think what we're hearing is this idea from the political branchs, there's an understanding, a love hate relationship with the press. that the press helps and hurts. with the court it's more either apathy, hate and the idea that the press could help them if they worked with this in terms of pub lishg understalic underss of what missing and it's a shame they can't get into the mind frame. >> when they let people into the cloister and give them an advance look at opinions, is that members of the

institutional president? does it include bloggers, interested members of the public who might want to talk about it on their own radio show? >> i wish we had that problem. that would be a great problem. >> i don't know the answer to that. of course, we have a supreme court that gives out press credentials. it's making those decisions on questionable grounds. >> it's giving out reserved seats and denying them to people who might have a blog. everybody gets the decision at the same time, right? >> yeah. i'm not advocating that. i think the two-hour quarantine is a little questionable constitutionally. >> the blog doesn't have a press pra den shall in the supreme court. if any other branch of government was making a decision so unbelievably stupid, it would be on -- the blog is where we get our information about the supreme court. and they are denied a seat at the table. that is crazy. there is an argument that tom

goldstein argues there may be conflict. the blog is our main source, other than dahlia's and tony's articles and they don't get a seat in the room. >> isn't that a circular argument? the blog has covered the court and made itself essential so the court has to let them in? >> yes. of course. it's the press. yes. >> i agree they're the press. but what form of access is it that -- what are you focused on? what access for the blog is it that you are focused on? >> adam, who i think is great and fantastic and is a supreme court reporter gets to hear oral arguments, the decision announcements, see justices doing this. he gets to see that firsthand in person. he was talking about this last friday. it's hard for him because he would rather be writing.

but he wants to be in the room because that's the most important thing. the blog is not in the room. amy doesn't have the benefit of seeing it firsthand with the emotions attached. at this moment in time with all due respect to adam, i think the blog deserves a seat more than "the new york times" because they are trying to live blog it. >> isn't lyle in the room? lyle is in the room. >> only because he has an independent press credential. >> one thing i like to tell people is that when we had to decide when the healthcare cases -- sorry to keep going on the healthcare cases. it was traumatizing. i'm not over it yet. i'm working through it with your help. one of the things that was super emblem attic is you had to make a choice between either being in chamber, watching this historic hand down, watching john roberts read his opinion, watching ginsburg read and then knowing

that when you were finally allowed to leave, 19 hours later, because they were reading, it was over. it had been tweeted. it had been discussed. wolf blitzer had been talking about it for an hour and a half. it was over. but i chose to be there. the other choice was to be in a room where you could hear it but you couldn't -- if you left, you were stuck. you could hear it but not leave. or could you be in a room where you could neither see nor hear but you could write. it was like the three among i cans. it was hear no evil, see no evil. had you to choose which monkey you wanted to be. it seems to me that in 2012 -- was it 2012? we need to be upping the ante on the monkey. that's not how to cover a major historic opinion. i think it loops back a little bit to bruce's question, which is does it affect the court that we didn't -- maybe it doesn't. maybe the court didn't care.

>> i will tell you, there's two ways to look at this in terms of transparency. it goes back to my opening argument. maybe the court didn't care. maybe the court shouldn't care. but the video could be released a year later or five years later and it would still have an impact. it would still be profoundly useful to the legal profession, to law students, to whatever the 50,000 law students that weren't allowed in the room. and i think that we have to start thinking about transparency as being a bit larger than helping reporters. it being about reflecting the dignity and math he is sti of the law. the other part of this argument is that the law itself is

completely locked up from the public. the only thing that's more morally offensive to me than the judges being locked up to the public is that have i to pay as a citizen of the state of georgia, havei have to pay a coy to get access to the official code of georgia. that is gross that we have privatized that -- that our courts -- our courts are basically paying westlaw hundreds of millions of dollars for access to its own records is preposterous. this is a thing that is i think hampering the legal profession. it's hampering our own history. and i think it's something that does not reflect the values of either the constitution or the united states. >> that's -- thank you for saying that. that's a useful frame. we have some questions. you are encouraged to write questions and hand them to a person who will collect them.

i'm going to ask the first question that i've got. since asking nicely appears to be an ineffective strategy so far, how do you or your organizations propose to make actual change and increase transparency? >> in 1802 congress shut down the supreme court for a year for bad reasons. but they did do it. they turned the candles off. i think congress will probably never do this. it would be fully constitutional for the congress which funds the supreme court to give the court a choice. either televise your oral arguments and decision announcements or do it with fwho heat, no air conditioning, no lights and fund yourself. that's a fully constitutional use of congress's power. i think they should do it. >> does anyone have -- >> we are done. >> does anyone have a less radical notion they would like to float? >> i think that the issue of the

credentialing has been kicking around for a while. it would be interesting to see that taken to another level to force the court to examine its own practices in a public way, transparent way. i think that we're part of this effort that we're engaged in today is part of an ongoing initiative to focus public attention on these issues and to hope that the people in the building who are there to protect the long-term reputation of the court, we just touched on it a few minutes ago. how do you get them to focus on the fact that they need to protect their own institutional legitimacy? essential to that is this kind of transparency initiative.

i feel that when you look back at richmond newspapers and those cases that were so important to the media, that at least the court and the press were in sync back then. what seems to discouraging today when you think about trying to get reform by bringing lawsuits is that we're so out of sync. the press and the court are so completely out of sync today. there was something special about that moment in the '60s and '70s where they were working together. they're not today. it does make he me think that the kind of strategy that we used in those decades probably will not be the most effective one today. the litigation strategy. >> the cameras in the courtroom thing say done deal. i think ten, 20 years out, i will have a small camera in my eyeglasses or something like that that will be -- the pen camera is the start of it.

what is the supreme court going to do, ban people from waearing glasses? >> yes. >> they will be undetectable. i think that cameras will be within the next 20 gheyears undetectable. the pen camera is like the tip of the iceberg. that technology is going to solve that problem. >> right now if you walk into the d.c. federal courthouse, you have to -- i think they make an exception for lawyers showing up for a case. they will make you surrender your phone because it might have a camera. five years from now you might surrender your eyeglasses. >> i suspect that if you remove my -- removing my ability to make phone calls is significantly different than removing my ability to see. right? the other stuff though, personal financial disclosures and stuff

like that, who knows how that will happen or if it can and ever will. >> let me segue to the next question, we have heepz of them. who gets -- this is an informational question. who gets to decide on the changes and the policies about transparency in are these all decisions taken by the chief justice? does the court vote? is the staff voting? how does -- >> we don't know. that's how lack of transparent it is. >> it's questionable. it's unknown in congress passed a law whether that would apply, whether they could make them do that. we really don't know how. >> the closest indication was when they closed the front doors. they published a dissent by the justice saying we should not have done this, we should still allow people to walk in the front door of our building. >> let's be clear. congress could do this. if the political will was there, they have the money. they could do it. >> it's just -- it's the chief

justice who is making the decision about audio policy and -- >> right. >> we know that. the chief was making the decisions about which cases were going to be audio -- same day audio. i think that was -- i think it was clear. >> that's my understanding. >> it was a case by case -- today we will release. but the other ones you will have to wait until friday. >> right. >> when they decided to start releasinining audio on friday - >> it's a problem. >> when justice douglas got sick and had a stroke, justices took -- americans don't know this -- a secret vote. they decided they had would not decide any case where justice douglas' vote would matter. they secretly decided that they would not decide any case where his vote would matter. the only reason we know that today is because justice white was so offended that he wrote a public letter about it. had he not done that, we would

never know. i mention that only because that's how they view themselves. they view themselves as having no obligation to tell the american people that justice douglas was so sick that he couldn't decide a case and that they would them decide which cases his vote might matter and not decide them. >> that goes to the justice scalia -- when he refused to recuse himself in the duck gate oral argument. he did america this courtesy of writing us a long letter explaining why he didn't think he had to recuse. i came away saying, why don't they all explain their recusal decisions? because oh, my god, the -- not just them as individuals but of the court can't help but be raised in the eyes of everyone to see this thinking, this behind the scenes thinking. it's incredibly material when they recuse and why. the idea that we kind of know today why justice scalia

sometimes chooses not to recuse himself is not a standard. right? >> don't get started. we will be here all day. >> eric, you are not allowed to answer this one. are the justices fundamentally afraid we're going to learn they are just not as neutral as they say they are when they are deciding cases? is that the fear? eric, you can answer. >> okay. yes. they spend -- i will do it fast. they spend so much time and energy in their written opinions, which is their argument for why they don't have to be transparent, because everything comes out in written opinion, hiding the reasons why they do what they do. in almost every written opinion you will see text, history and precedent. they will say, this is the text, this is the history, this is the precedent. a, b, c adds up to d. i'm suggesting the answer to the lack of transparency can't be

the written opinions is what we share with the public because they are dishonest. the real reasons why they decide the way they do is not in the text, history and precedent that's important but it's in a different set of values and life experiences, which is why scalia and ginsburg who go to the opera together and are brilliant disagree on virtually every contested issue of constitutional law that gets to the supreme court. it's not because they have different skills. it's because they have different values. they would never admit that in public. that's crazy. >> i point out it -- it won't. transparency won't solve that problem. because you turn the lights on in a roach-filled apartment doesn't kill the roaches. >> that wasn't my phrase. >> you see what i'm saying. sunlight isn't a particularly good disinfectant. alcohol is much better. you can't -- when you turn the lights on, when you shine the

lights at things, the shadiness just moved to the corner. the roaches call -- >> i disagree. scalia's a little bit bullish attitude does come out in oral arguments. i don't think he would change that. knowing his character, which is a little bit of a bully, with all due respect, is important to the american people. we should know that he is a little bit of a bully. we should know better than we do that justice thomas never speaks. >> we know he is a bully. as you said, it's final. he is there. it's alive. >> general fear is part of this. justice breyer said this, fear of the unknown. o'connor said this, too. we don't know what's going to happen. we have done it this way for a long time. let's not change anything. >> has to be cultural. >> this is an institution we need to protect. we don't want to make changes. fear of loss of privacy is clearly very important to justices.

so there's certainly just overall fear that is part of a lot of these. >> they have to look at the deeply unpopular nature of the other branchs and think that maybe ignorance of what they do is better. >> what is their approval rating? >> higher. >> it's higher. >> that's what's so sad. anybody who has been to oral arguments, it's -- >> it's majestic. >> it's majestic. the questions are so smart. everyone is prepared. the arguments are great. it's a terrific experience. >> if it would remain the same with cameras -- everyone assumes that would be great. but that's the if. that's what worries them that it wouldn't be same. everyone on this panel is convinced it would be the same. >> no, no. that's not true. that's not true. i don't know what would happen. i'm not smart enough to know. the question is where is the presumption? it should be anticipa openness. since we don't know -- the

burden of proof would be on the justices. you can't say i don't know. that's not a good reason. we don't know. >> i think clay's point is important. we're having a fight about does it have to be right now today. your point is that if they videotape them for history and release them later, that would have its own value. there the fear is that the reporters committee will never give up. if videotape exists, they will want it not on friday. they will want it today. it's not in 10 years or 50 years. the video would have tra member dou -- it would have tremendous value. >> prop comedy has taken off -- >> you can make a -- >> i taught brown last week in class. there's a hotel two blocks from my law school that didn't take african-americans in 1965.

if they could have seen the oral argument in brown, it would have made so much more power fell impression. the fact that we can't do that is almost criminal. >> or bush v. gore or the healthcare cases. >> you can listen to bush v. gore. >> you can't see what ted's face looks like. >> i think sonya you know the answer to this. the british supreme court in the u.k. have the cameras trained not on the justices but on the advocates. the idea is that they want students to be able to learn oral advocacy so they can watch that. there are hybrids where you -- query whether you want that. bruce doesn't want that. at least you can say there's this education purpose and there's this somewhat historic purpose being met. students can learn and watch and the greatness of what happened and still protect judicial privacy. there's something in the middle. >> can i ask, even if you are

against cameras at the oral arguments, you can't fathom anyone being against. how you can be against cameras at the decision? what reason would there be to not have cameras. had there been cameras the day domo was struck down, millions of americans would have had a shared citizen moment of unbelievable historical and present-day significance. what possible down side could there be to hearing justice kennedy announce this historic decision? how could there be a down side to that? >> i will say, i think one of the arguments would be that the opinion announcements are actually not the opinions are not signed off by all the justices and the majority. sometimes the other juss are like, that's what we agreed to? there's that -- i agree with you. i think it should be there. >> interns would gain weight because they wouldn't have to

run. obesity say problis a problem i. >> i'm trying to get through as many as i can. does true transparency require that records must be available online? isn't it too limiting in an electronic area to have access to dusty boxes in a library? >> the answer is yes. >> when didi did my adventure t figure out where justice douglas' papers are, you saw how few materials are available on line. a small percentage. the rest that are available -- are there are many that aren't. but the rest that are available, it's true you have to go to a research institution somewhere. >> that's a money issue. i think lee epstein has gone and had some intern photocopy and -- with a digital camera on a tripod and took pictures of the memos, the law clerks memoranda

up to eight of the justices who participate in deciding whether to grant a particular petition. she is going through the papers and had someone take pictures and they're on a website. the library of congress didn't do that for us. now they are there. it's a great resource. it's a question of what does it. >> i think 50 years from you no, supreme court justices working with papers is absurd. the people as they work through the -- who 50 years from now won't look as a keyboard as their first method of creating text, five degrees now, 50 years from now? do you have kids. >> that's being lost. i think to the extent the justices are e-mails with their law clerks and saying -- i'm not so sure about the quote on page 7, what if we say -- that is going to be lost to history. they don't -- they may save the paper drafts that get circulated. that's one reason to be glad

they use paper. because that will be saved. >> on the other side is, yes and no. the digital records are easier to preserve. >> i'm not saying they shouldn't preserve them. i suspect they don't. be glad there is something left for history. >> nobody is arguing we should -- we have a right to the discussions between justices and their law clerks during the deliberation process. i don't think anybody is arguing that. i'm not. >> i would argue 100 years later perhaps. >> i wouldn't. it has to be confidential. >> i think we have time for this last question. a few questions i didn't get to. i apologize. what if any problems or unintended consequences have high courts in other countries or i would add state courts, what problem or unintended consequences have other courts had after allowing cameras in the court? i think this is the lance ito

question. >> the supreme court justice in ohio has been doing a tour, because they have cameras there. i forget her name. >> o'connor. >> the other justice o'connor. her answer is i thought about this, i have canvassed other judges, more than half the state dozen it, zero. nothing bad. they can't find evidence of any harm -- i'm sure that's an over statement but that's her position. >> name a case decided by the supreme court of ohio. name one. >> why does that matter? >> because the amount of attention focused on -- they are broadcast on ohio news network. the amount of attention is not comparable. it's not a comparable -- >> if we were in ohio, the answer may be different. >> do you think that's going to affect the behavior of judges or lawyers in front of the supreme court? lawyers, certainly. have you ever been to an oral argument in which a state attorney general takes the lectern and argues for the state? >> it happens today. if you are an attorney general of georgia, you will be careful

what you say in front of the supreme court. i don't know if a camera will make a difference. in our society, it's too late. it's too late. it's a public hearing. some people get to go in. we're done. at that point, any other institution of government would have to televise proceedings if someone is willing to pay for it. >> ronald goldfarb studied these cameras and he said it follows the same pattern, sort of skepticism and concern at the beginning until acceptance and then enthusiasm to the end. it follows the same as people get used to it. iowa has had cameras in the courts for more than 30 years. their chief justice has come around and testified at congress saying no problems. it's been great. we put it online. people have access to it. as far as this fear of the unknown with the justices, what other way can we test it out other than in these other similar appellate courts, state courts, canada has this good

experience. other than running the experiment in the spreeupreme c, that's our best guess. the evidence is in favor of it. >> it can't be the case that only unimportant -- only ohio gets because we can't name the case. that was the court's argument. when they decided to pull the tv cameras out of the prop 8, that when the district court was ready to roll and when the court issues its -- the argument is this is too important. people care too much to have cameras. what is that argument? that only unimportant things should be televised? that can't be right. >> that decision, that procedural transparency decision had a hugely substantive affect. because if people could have watched that trial, they would have seen ted destroy any

plausib plausible argument. that would have had a great a a affect. >> it's interesting that when judge walker handed down his decision in that case -- this is the true of the 9th circuit decision affirming that. i think everyone got an e-mail. right? ping. here is the decision. everyone opens it. you read it. the supreme court, they all put their robes on and take the bench and they all go up there and they read a summary of their opinion because that is an exercise in transparency. they don't have do that. no other court does that. i understand that you think that they ought to televise that because it would be meaningful and historically significant to hear it. it's important to remember that that is something unique that the supreme court does. lots of other courts don't do it. if congress decided to pull their funding, they might well say, hey, we won't do that. >> i'm going to stop us there. it's time.

i want to say -- you should write articles about this. i really, really want to thank ga g gabe brown and his team for putting this together. thank all of you for being here. this say terrifically important issue. this has been one of the best panels on this issue i have ever seen. >> i agree. >> thank you. [ applause ] >> when you're not in the white house, my party doesn't have one thing to stand up to right now.

i'll share things i'm at odds with members of my party. i believe in the early '90s when congress passed mandatory minimum sentences in the u.s. congress that we swung too far and that i believe we need to revisit those. in particular for non-violent offenders and allow more discretion for judges and frankly more for states to make determinations. i think we went overboard in terms of federal sentencing, mandatory minimum sentences. i'm someone that believes in redemption and then reconciliation. i also believe we need to look at the prospect of banning the box in terms of checking after you served your time and paid your price in terms of time in prison for certain crimes and for certain jobs.

i don't think you should be required to check the box as a felon which increases recidivism. if people have paid debt to society, people need to welcome them back to society and make it easy for them to come back to society. for certain crimes and certain positions. >> i appreciate you asking that question. my whole campaign -- my opponent's whole campaign has been based on this bogus charge, 97% charge. independent political analysts have called it misleading and not reflective of my record. the national journal which does a review of all the votes ranks me in the center. where do i stand up against my party? let me go through the list. i support drilling off the coast of virginia as long as we get a share of royalties. i support the keystone pipeline. as a matter of fact i've been protested against in harrisburg because of that support.

i stood up for the president on foreign policy choices around isil but also in terms of being stronger against putin and russia. start calling early in march for stronger opposition to his forr opposition to his activities in ukraine and around europe. you know, it's that reason that virginians know my record. it's that reason why again, in this campaign, i'm so proud to have the support of more republican, former republican legislators than when is i ran the first time. this claim had merit, i don't think that would be the case. what it is though is the kind of political sound bite attack charge that comes from somebody who spent their career as a partisan operative. >> we have two more live debates tonight on our network c-span. live at 7:30 eastern from the 17th congressional district of illinois, incumbent congresswoman sherry bustos debates republican challenger bobby schilling.

later tonight, the democratic governor of illinois, pat quinn will debate republican challenger bruce rounder at 9:00 p.m. eastern also on c-span. c-span's 2015 student cam competition is under way. this nationwide competition for middle and high school students will award 150 prizes totally $100,000. create a five to seven-minute documentary on the topic the three branches and you. videos need to include c-span programming, show varying points of view and submitted by january 20th, 2015. go to student camp org for more information. grab a camera and get started today. tonight on c-span3, sports at school. we'll show you a house hearing on head injuries and other safety issues. also a smat hearing on academic standards for student athletes. it begins at 8:00 p.m. eastern here on c-span3.

this weekend on the c-span networks, friday night at 9:00 p.m. eastern on c-span, a memorial service for president reagan's press secretary james brady. saturday night on 9:00 p.m. eastern, former secretary of state colin powell talks about world affairs and sunday evening at 8:00 on q & a, author robert tim berg talks how as a marine nrnl vietnam a landmine explosion nearly killed him and changed his life. friday night at 8:00, ralph nader calls for an alliance between parties to take on the issues that plague america. saturday night on book tv after words, why medical science should be doing more for the aging and dying. and sunday, just after 7:00, syndicated columnist naomi klein on free market capitalism and impact on climate change. friday night at 8:00 on c-span3,

curator and director of the cia museum. virginia, tony hily explains the mission of preserving and presenting the agency's history and saturday at 8:00 p.m. eastern, the king georges war of the 1740 oz. how it helped the american colonists establish regional identities and gain valuable fighting experience for their own revolution. sunday night on the presidency at 8:00 p.m., president ford's congressional testimony on the nixon pardon. find our television schedule at c-span.org and let us know what you think about the programs you're watch by calling 202-626 oil 3400. e-mail us or send us a tweet @c-span #comments. join the conversation, like us on facebook, follow us on twitter. with live coverage of the u.s. house on c-span and the senate on c-span 2, here on c-span 3, we complement that coverage buying you the most relevant

public hearings and public affairs events. on weekends, it is the home to "american history tv" with programs that tell our nation's story including the civil war's 150th anniversary, visiting battlefields and key events. american art i fakes touring museums and historic sites to discover what art i fakes reveal about america's past. history book shelf with the best known american history writers, the presidency looking at the policies and legacies of our nation's commanders in chief, lectures in history with top college professors delving into america's past and anreal america featuring government and educational films from the 1930s through the '70s. c-span33, created by the cable tv industry and funded by your oh cable or satellite provider. watch us in hd, like us on facebook and follow us on twitter. >> up next on c-span 3, a conversation with judges on challenges to maintaining judicial independence. we'll hear from a florida judge involved in the 2000 bush versus

gore case. an iowa judge voted out of office after ruling in favor of gay marriage. and the president of the national association of women judges. this discussion is from the national constitution center. and was moderated by the group's president jeffrey rosen. ladies and gentlemen, thank you so much for joining us. and welcome to the national constitution center. i'm jeffrey rosen, the president of this wonderful institution. the national constitution center is the only institutioning in america chattered by congress to

disseminate information about the u.s. constitution on a nonpartisan basis. and to fulfill that inspiring goal, we have a series of programs we call ourselves america's town hall and we bring together the best voices from all sides of the spectrum to debate the constitutional issues at the center of american life. in the next few weeks, we have a series of programs i hope you'll join us for including on june 20th, david boies and ted olson will come to discuss their new book about marriage equality. on june 26th, we'll have a wonderful debate with our partners at intelligence squared about the constitutionality of restrictions on campaign finance reform. on june 16th, we'll have a discussion of the of cell phone cases that the supreme court is about to decide and talk about the future of the fourth amendment with the two advocates who argued the cell phone cases before the court here at the constitution center. so it's a wonderful series of events coming up and i hope

you'll join us both here at the center and online and on our website. i'm especially thrilled, ladies and gentlemen, to introduce today's program. presented in partnership with the national association of women judges. this is a program near and dear to my heart. my friend and i more than a year ago at gw law school where i teach and where you graduated from talked how wonderful it would be to bring together women judges who are defending the idea of nonpartisanship and the rule of law to talk about their concrete experiences with judicial elections, with the challenges of merit retention systems and to give you the people a direct insight into the real threats to judicial independence that are faced by judges today. you'll have an opportunity to learn more about the national association of women judges and been their inspiring goal. like ours is to be nonpartisan and encourage vote for judges

based on character, integrity, fairness, and a willingness to decide cases based on the law. software also delighted to recognize mark robert son, a partner for today's program. turn off your cell phones and prepare for a really engaging discussion. now let me introduce our esteemed and extremely impressive panelists. marsha turnis, former chief justice of the iowa supreme court, she currently practices in des moines, i was focuses on appellate consulting litigation. she was appointed in 1993 by governor terry bran stead, selected by her peers to serve as chief justice in the 2006. her term on the court expired on december 31st, 2010. you will hear her striking story about the reaction to a decision she issued in iowa and the

consequences that it had in iowa. justice of the florida supreme court since 1997 and served as chief justice from 2004 to 2006. she's been involved in her time on the court with several notable cases including the bush v gore case from 2000, the michael shy vol case from 2004, be some fascinating cases we've discussed involving dog sniffs and searches and seizures. you've had an amazing run and also had symptom extremely sobering reactions to your decisions, as well. we're going to learn about them. and finally i'm honored to welcome judge and nan back burn-riggs by, the president of the national association of women judges. she was nominated by president george bush to the district of columbia court of appeals in 2006. she chairs the districts of columbia court's standing committee on fairness and access. she's a commissioner on the

district's access to justice commission and before her appointment, she was nominated by president bill clinton to serve as an associate judge on the superior court of the district of columbia. so this is quite a remarkable panel. i would like you to join me in welcoming them. judge ternus, you had an extraordinary experience in iowa. you issued an opinion in a case involving iowa's defense of marriage act. tell us about that is case and your decision. >> well, our court had an appeal from 12 same-sex couples, 12 individuals, six same and sex couples who had been denied a marriage license in iowa based on iowa's version of the defense against marriage act. they challenges the constitutionality of that statute under the iowa constitution's equal protection clause. our court issued a unanimous decision that the statute did in

fact violate the equality rights of these individuals. describe the reaction to that will decision. >> the case itself was controversial even before we issued our opinion. there was a lot of social commentary, a lot of public discussion of whether same-sex marriage should be allowed or not. and there were demonstrations outside of the judicial branch building when we will heard oral arguments on the case. so we knew that our decision would be controversial and when we issued the decision of course, it was very controversial. and there were a lot of groups who were as opposed to our decision, primarily on religious grounds. >> some of those groups took out tv ads and we have videos of some of those ads now so. >> right. the actual the opposition reached its cree shen dole when three members of our court happened to be on the retention ballot. in other words, we were up for

retention. voters were asked to vote yes, retain these judges, no, do not retain these judges in the 2010 general election. what you're about to see were ads that were created to campaign against our retention. >> let us see the ads. ♪

♪ >> add to this judges on iowa's supreme court become political ignoring the will of voters and imposing same-sex marriage on iowa? liberal out of control judges ignoring our traditional values and legislating from the bench. it wasn't their own values on iowa. making you serve the will of voters and we define marriage what will they do to other long established traditions and rights? three judges are now on the november ballot. vote no on retention of supreme court justices. >> judge ternus, i'm going to ask what your reaction of those ads. what was the effect? did you keep your seat? >> we did not.

none of us were retained. i will point out only the second ad actually was on tv. the first video that you saw is i think about a two-minute video that was circulated within the religious community in iowa, which was kind of used as a grass-roots structure to organize no vote on the retention ballot. >> and do you think that the ad was responsible for your defeat? >> i'm sure it contributed. i don't know what single action they took resulted in our nonretention. but public opinion, based on polling done by the des moines register showed that the majority of eyen opposed same-sex marriage. they certainly had a receptive addiences in terms of whether people agreed with the decision or not, just on social grounds.

>> how did you feel when you saw the ad? >> honestly, i didn't -- this first ad i never saw until afterwards. i just didn't really want to watch them. i didn't even watch tv during that period of time. i'll admit. yeah. >> now, on the one hand, the ad is factually correct. it says that the court ignored is the will of the legislature and the people, but on the other hand, was that an appropriate ad to run on television? >> i think citizens can for or against a judge for any reason they want, including because they disagrees with an opinion. that's certainly how our democracy works, but i also think it's important for citizens to know when they are exercising their vote in that way that there are consequences to voting judges out of office because threw have issued an opinion that is contrary to public opinion. >> what are the consequences? >> well, it clearly sends a message to judges that in the

future, they should hesitate to the issue an opinion that may be correct under the law that may be a decision, a result that the law demands, and yet, is unpopular. they're telling those judges to check the opinion polls on the issue and follow those rather than following the law. and that's a very dangerous message to be sending. it was exactly the message intended by those who opposed our retention. they said on their website we intend to send a message across iowa and across the country that judges ignore the will of the people at their peril. and so it was a message of intimidation and certainly the fact that we weren't retained, the voters bought into that sent a message to judges by citizens we want you to follow what will we think the law ought to be rather than what the law is. >> do you think that message has

changed the way judges are deciding cases now? >> well, i think we're naive to think that it doesn't have an impact on judges whether it's consciously thinking gosh, if i make this decision i'm going to make this group mad or big business will come after me or whether it's just that subconscious knowledge in the back of their mind that maybe they don't even realize is there. sure, i think it has an impact but it's not measurable but judges are human. i don't think as a citizen i'm comfortable with them having to worry about whether they're going to keep their job. it shouldn't be about the judge keeping his or her job. it should be about enforcing the constitutional rights that we value. >> what was unusual about your case? had there been previous examples where all three judges were voted outs because of an unplarn decision? >> we never had an retention election that was controversial. in fact, i had two prairie tension elections. this was my third. i remember my first retention

election when somebody came into my office the day after the election and asked me how much of the vote did you get. i had forgotten that i was on the ballot. that's how much they were just you know, they were just not controversial. >> and remind the audience, the merit selection and retention system is a nonpartisan system where you're selected because of your abilities and stellar credentials, not because of your politics. >> right the intent of a merit selection system known as the missouri plan and i believe florida has the same plan is that a nonpartisan commission composed of laypersons and law educated persons licensed attorneys interview applicants and based on the applicant's professional qualifications, their integrity and character, choose the three most highly qualified individuals and those names are then sent to an pointing authority in the iowa. it's the governor and the governor has 30 days to appoint the person, appoint the new

judge from among those three nominees. the intent is to take politics out of the appointment process. and then the retention election is a way to involve voters and give them an opportunity it was startling because it was unanimous. and the individuals who opposed same-sex marriage felt you know, we have to stop this now. and the only way we're going to

do it is to intimidate other judges in other states so they won't do what the iowa supreme court did by removing us from office, that was the message they intended to send. obviously, you can see from the videos that the internet, youtube, media all that made it easier for them to sell their message. >> now, many other courts have considered the same-sex marriage quell since iowa. and it's my understanding that every court to consider the issue has in fact since the supreme court's decision last year ruled in favor of marriage equality. did this campaign successfully intimidate other judges or did they have selection systems that made them immune to those sort of pressures? >> i think most of the decisions you're referring to are in federal courts where they don't have to be worried whether they'll be retained because they have a lifetime appointment. >> so there is a difference between state and federal systems? >> i think the fact that federal

judges do not think the there will be retaliation against them for making a decision that's correct under the law yet unpopular certainly gives them some freedom to make those decisions without having to worry about their own career. and yes, that's probably a significant difference. >> what is the solution to the experience that you underwent? what is a better system of appointing state court judges and might iowa adopt it? >> i think before one discusses what is the best system for choosing judges or retaining judges, citizens need to ask themselves what kind of court they want. do they want a court that makes decisions under the law that upholds the rule of law or do they want a decision or a court that makes decisions based on who's the most popular, who has the most money, who shouts the loudest? and so once you make that decision, whether you want a

court that makes political decisions or makes judicial decisions based on the rule of law, then i think you look to a system that minimizes the opportunity for politics to get into the system. and i certainly think that a retention election where it's a simple yes or no vote versus running against someone just like politicians do, minimizes the opportunity for politics to get into the system. but no system is immune from politics. there is no perfect system that can guard against politics coming into judicial selection and retention. the only way that's going to stay out is for voters to demand that the systems remain nonpolitical. >> are voters likely to demand that? >> well, we're trying to educate them on the impact of their votes. the voters in iowa were sending a message to unages we want you to behave like politicians. we want you to test the winds.

and go with public opinion. we don't care that it's correct under the law or what another big component, of course, in iowa was that we violated god's will by ruling the way we did. and so the message there is i guess that i should have checked the bible or checked with my the priest in my church to ask how i should vote rather than checking the iowa constitution and our long years of case law which were in fact consistent with our decision. >> and you have warned in fact, that voters should not turn judges into theologians or politicians in robes. >> i don't think they should. that's the voters' choice. they can turn judges into theologians and judges in robes. >> you now have the opportunity to speak and write about the importance of judicial independence. what do you tell voters when trying to persuade them not to turn judges into politicians in robes? >> i think the rule of law is

what distinguishes our democracy and from other forms of government. and we have to be willing to uphold the rule of law even when it upholds it the rights of others. others whom we may disagree with. if the law doesn't protect everybody, are if the law depends on who's standing in front of the judge, then we don't have neutral decision make. we don't have fair and impartial judges and we cannot say that we are a society governed by the rule of law. >> well, said, judge. thank you very much for that. we will return to these -- i think that deserves a round of applause. claps . >> we'll return to these important questions in a moment. i want to turn now to justice pariente. are you no stranger to controversy. you decided bush v gore and the terry schiavo case.

it was a 2012 case involving an amendment to the affordable care act that your court rejected and got a lot of heat. what was the amendment and what did you hold? >> first of all, i must say that 2010 with what happened in iowa was a bellwether year. and as you all may recall, the health care affordable health care act, obamacare, had passed. and there was a lot of controversy about it. in our state, we have the way of mending the state constitution by legislative initiative or citizens' initiative. there had been a legislative initiative to put on the ballot an amendment that would have voters say yes or no, we are for obamacare or against it. and that's their prerogative. the only issue that the florida supreme court deals with is

whether the ballot summary is misleading. and in this case, the ballot summary had talked about that if you voted for this amendment which was against obamacare, you would eliminate waiting times for doctors visits. that was essentially it. and when it came before us, each side, they both conceded it was misleading. but they wanted us to rewrite the ballot summary, the majority of five of us said we didn't have that power. irony was by 2012, a new amendment had been proposed which had already been approved. but what happened was, my view is right after the iowa election and emboldened by that, we had immediate signs that there were three justices that were up for merit retention, myself and two of my colleagues, and that they were going to -- these groups partisan groups, special interest groups, were going to

run a campaign to take us out of office. and just like justice ternus, i'd been on the court since 1998. i had gone through two prior merit retention elections. and this would have been as a supreme court justice, one as an appellate judge. i'd been a lawyer, well, i'm now 41 years out of dw so although we know each other, we're contemporaries i must say although i would have loved to be. and the retention, i know pennsylvania is not a retention state. the idea as justice ternus said was that you are on the ballot. it's not a recall. you're just on the ballot every six years and the best we could tell is a check to see as justice ternus said, if the judge has violated ethical standards or integrity or is not hard working. or is being political.

it's a chance for the voters. the problem is that there's a low level of knowledge about why the judges are even on the ballot because again, under our federal system, what did the founding fathers do but put life tenures to avoid judges being beholding to the will of the king, the will of those in power. so our election was not really about a single decision. it was about 16 years of just saying we had ruled in ways that were against the mane stream, against popular opinion and that type of situation. we didn't have a hot button issue. but nevertheless, we had a very vigorous campaign to oppose the justices. we made a decision, different than ab-iowa, seeing what happened is that the justices were not going to just let this

happen. so we had ways to organize, again, judges are very restricted to try to educate the voters on what was at stake. and that continued over really a two-year period. >> well, let's see the ad which as you said raised several issues and then you'll talk about your response. >> this is a compilation of what ran. >> like a mixed tape of judicial attack ads. let's take a look. >> right here. >> we will try again for the volume. we can do voiceovers. >> one more was a criminal case which i'll explain. >> on a day such as this in a parking lot like there one, jean bikner, 38 years old was victim of two horrendous attack. barbara pariente, fred lewis

threw out the conviction citing a never before recognized legal technicality. pariente, and lewis, wanted to give this killer another chance. imagine a world without judicial activis activism. >> not rewritten by the courts. >> where power is in the people and not the government. >> where the rule of law still matters and the constitution still means what it has always meant. not what some judge thinks it should be. >> imagine a world in which florida didn't have to compete with california, new york and massachusetts to have some of the most activist judges in america. >> imagine no -- those who play by the rules. >> no more judges playing politics. >> and compromising their opinions. >> what if you could take a stand for freedom? >> it is being reborn but there are dark clouds gathering. and the court system is the last

best hope. these judges have also opposed patients' rights underwrite property rights, education and fair election. >> all justices pariente, convince and lewis and tell them to stop judicial activism. sl >> america needed health care reform but with the was the new law the right reform? it gave washington more control over our health care and it will cost trillions. most americans oppose it. that's why in many states like ohio gave their citizens the right to vote against it, not florida, our own supreme court denied our right to choose for ourselves. shouldn't our courts protect our rights to choose? you be the judge. visit you be the judge fl.com to

get the facts and sign the petition. >> that's the next one. >> okay. wow. >> and what you see and i think this is important for the viewers is you hear some of the same buzz words being used. judicial activism, is legislating from the bench, being against property rights or different rights. the right to vote. and so these are these buzz words that are meant to upset citizens that somehow courts are acting in their own self-interests and against the interests of americans, of our citizens. and so that was and the last ad was paid for by americans for prosperity, which is the koch brother group and others ran on the internet and that has been a very successful tool, the social

media. you asked about what's changed. you know, 16 years ago, social media was virtually nonexistent. social media is a very powerful tool now to get to constituencies that have that ability to get their message out. >> so describe the effect of these ads. the ads said the people should call you and say they opposed judicial activism. how many people called you? >> i don't know. we learned about it after bush v gore we didn't really want calls to our offices. but it will -- we ended up in florida not only having different groups opposing us but by october, the republican party of florida had come out against us using a decision. the first decision was called nixon versus florida, and it had to do with an issue of rights of constitutional rights to representation and but it had

been a 2003 decision. we were now in 2012. so what we had was dredging up a case. we didn't let somebody out of prison. issue was, they were going to get a new trial. and that was used as if you know, because this issue of being soft on crime again is another theme as opposed to protecting constitutional rights. in the end, and i say the republican party, it would be just as bad if it was the democratic party. coming out in a nonpartisan state for or against judges, that was the whole reason in our say the that judges became nonpartisan. but i -- what i believe is what happened is with our ability to organize and get our message out to our citizens, we were overwhelmingly retained. in other words, we were -- our percentages were excellent, i believe, and it was excellent

across all party lines that citizens properly informed did not want to transform the courts into a power grab for one governor or one side or the other. they recognized separation of powers, checks and balances. everything the national constitution center wants to emphasize, they appreciated the judges have to -- cannot be intimidated in making a decision that is right on the facts and the law but may be wrong on the political or popularity poll of the day. >> this is the most exciting and inspiring constitutional news i've heard this week. so tell us, how precisely were you able to launch a campaign in favor of judicial independence? >> this is a very difficult thing. we've heard a lot about campaign finance and campaign reform. it is a particularly problematic issue for the judiciary because judges are not there to raise money.

we are prohibited from raising money, at least in the state of florida and i think in other merit retention states. so committees have to form to assist you. well, those were going to be lawyers. lawyers that may appear before you. that's why we're so pleased to the american board of trial advocates which is a bipartisan nonpartisan organization of lawyers understanding the threat. it's not about being for business, against business, for consumers, against consumers. it's about judges who when everyone comes into the courtroom, that they are going to get a judge who will look at the facts, look at the law and look -- not look at who the litigants are and decide that case. so it was i believe a triumph for fair and impartial courts but as judge blackburn-riggs by will tell you, we're seeing this crop up across the country. >> how does it is work?

what are the rec nicks? do you do social media about the importance of judicial independence? >> again, that takes a state like florida where to run a statewide ad for a week would cost a million dollars, we didn't have anything close to that. also, we were prohibited from actually the three of us, the justices who were being attacked we couldn't do ads together because of our own canons. so we did useectively going to editorial boards. we did use the social media. we had facebook. i was very upset when my facebook page came up and i didn't get a lot of likes because i found out actually in the social media world, you've got to the actually drive people to those sites and that costs money. we did have independent groups that did run ads for us. but i really don't know the mechanics of it because under campaign laws, you can't coordinate with the third party

groups. it is the idea of campaigning and i know there are states that have wonderful judges but the idea for judges campaigning it's really contrary to what we are about. just like justice ternus said, she didn't want to see those ads running against us. it's not like we're in an ivory tower but we want to be insulated from what you see on tv, what's public opinion poll is of the day because public opinion changes. i bet if justice ternus had that decision today, the public opinion would be different. you can't make a decision brown v board of education would have never been decided if it was based on popular opinion, certainly not in the south. >> as we discussed, you've been part of the most controversial cases on your state court. has something changed? is is the polarization worse or does your inspiring counter

example show in fact, technology can be used to defend judicial independence? >> it's going to take all of us. there are over 300 million americans you know in florida, we have 16 million floridians. we can't do it alone. what's unique about what we're doing is judges and former judges speaking out about it because it's one thing for lawyers to speak out. no offense, law professors, but -- >> sorry. i'm on leave right now, sabbatical. >> but to understand, i mean, i grew up at a time i believe in the constitution and constitutional rights and to believe that you can make a decision that was fair based on the constitution protecting not the rights of the majority because if you look at james madison, he said no. the judicial branch exists to protect the rights of the minority. not minorities but someone who may have unpopular views on speech, flag burning, a terribly

offensive subject. and so if judges feel that they will have to put their finger up to the wind to make those decisions, justice ternus said it has a terribly intimidating effect. we right after our election, there was a pension case. and we ruled the majority ruled that the pension law that had been passed by the legislature was constitutional. that did not make teachers happy or unions. so next thing we see, the union's saying who were those people? we're going to vote against them next time. so that's not a good thing. so i guess the answer is, we've got to keep on -- we've got to the continue the conversation and realize that if we want to celebrate the rule of law and what's great about our country, we've got to the protect our judges from politics. >> just that deserves a round of applause, as well.

just one more question before i turn to judge blackburn-riggs by. when we met, i saw you at a public panel. you were asked the can obvious question you must be asked, wasn't your court being political in bush v gore. you had a powerful response to that. >> the message from our court was every vote should count. we weren't dictating a particular result. and that we had many opportunities during the six weeks of litigation to come up with a decision because it was only 600 votes that the separated bush from gore to come up with decisions that would have given the election to gore. how would we come up with it if we were saying there should be a statewide recount where votes undeniably had not been counted where they had intended to be. so we felt the majority of us felt that we were really vindicating the best tradition that every vote counts. so no, i to this day will defend

what our court did as being consistent with the precedent of the court and of the states who make sure that elections are conducted fairly. and i think that that point, we were discussing whether it was the supreme court, or our court, it's really -- it is -- that's what's not good for someone to say we liked your decision because we wanted gore. we didn't like your decision because we wanted bush. that wasn't at stake. so i would i would defend very much what the florida supreme court did in 2000. >> great. thank you so much for all that. judge blackburn riggs by, you are the president of the national association of women judges and thank you first of all, for your leadership of this wonderful organization. >> thank you. a round of applause for that, sure.

so the experience of justice asks ternus and pariente is not oo uniquing from kansas, to washington, texas and most recently okay, there have been a series of high profile attacks on judges. describe some of those attack. tell us what's going on in oklahoma, for example. >> well, i mean i first have to say that the fact that we're having this discussion here at the national constitution center is so important and that we have so many people here engaged in this conversation with us because one of the issues of concern and one of the reasons why the national association of women judges cares about this issue so deeply is that the independence of our judiciary, the fact that we have fair, open courts that are supposed to dispense justice and ensure access to justice for all is a cornerstone of our democracy.

and the design was that we would have three independent branches of government. that had specific and important functions and when we begin to overly politicize the jeshl branch which traditionally was the branch that was supposed to be one that had the more ability to make decisions based on case by case determinations of the law and the facts, when you blur those lines with the legislative branch where the legislators are elected by popular support of the constituents and they have a constituency to report to, you begin to blur the roles and the functions and one of the examples we've heard about iowa and florida, recently in the news, we heard about oklahoma where their high court voted to stay initially execution there

until they could get a little more information about the lethal injection manufacturer because there were some concerns. and there was a public outcry and threats to impeach those justices who voted to stay the execution. the decision was changed or revered or modified and the execution went forward. and many of you heard the stories of the excruciating nature of the particular execution because the lethal injection was flawed in some way. and we think about our eighth amendment that we should not have the cruel and unusual punishment. and the manner in which the execution was carried out i think meant t unfortunately tha standard. there are examples in other parts of the country. i think where the national association of women judges comes in it, wes are an organization of women judges at all levels of the judiciary and

we have mael judge who are colleagues who are members. members of the bar, but we're in all 50 states. trial appellate, administrative, military judges. indian tribunal judges. the important thing is i think a lot of people just don't know the a lot about the judiciary and what judges do every day. until one of our loved ones, family members, friends has to go into a courthouse and that will is a part of the problem. and i think what justice ternu su and justice pariente have talked about and what judges and lawyers in the community need to do more of is talk like this. so the informed voters fair judges project is a civic education program of the national association of women judges to do just that. we go into communities all across the country and talk about why fair and impartial courts are important to you, not

just important to the judge. and judicial independence and an independent and fair judiciary is not about the judge. it is about the community, it's about the people and about our democracy. and so we've collaborated with many organizations like the national constitution center, local civic groups, it's a nonpartisan nonpolitical effort just to talk about what you should look for in a judge. you know, when you go into a courthouse with your elderly parent and you have a will, probate dispute, you should expect the judge will look at the facts of your case or and not that a judge has a preconceived notion or agenda about how this kind of case or this kind of litigant should be treated. and sometimes when you have these moneyed influences from outside of the jurisdiction coming in that signal to a judge

if you don't do this in this way, you better watch out, i think that that affects the rule of law. i don't know. i just will share a story justice pariente and i participated in a global judicial conference involving women judges from all over the world, 500 different countries. and i tell you that they in many ways looked to our system where the judiciary is fair and anindependent or conceived of to be that way. because there are pressures that come into bear and other systems. and i just hopeing that americans continue to value our democracy and the way that the judicial branch, the role that we serve. it doesn't mean that judges are bob criticism because there are mechanisms for judges to be reviewed and disciplined if they act in an unethical or illegal

way. but the to attack a particular decision outside of the court or appellate process i think raises some of the concerns that we've talked about here. >> how are these impeachment efforts succeeding in the federal system, there's a precedent dating back to the failed impeachment of justice chase that you can't impeach federal judges for their opinions but only for criminal or high misconduct. are some state court judges being impeached because of the substance of their decisions? >> well, i haven't heard of actual impeachments being carried out recently. we had the threat in oklahoma. but you're right to look at the language in our constitution, and we're at the constitution center, there were very limited circumstances under which a federal judge could be impeached for a particular decision. i think certain high crimes and

misdemeanors and other extraordinary acts that cut against the moral character, adherence to the law or adherence to the code of judicial conduct. not for deciding this way or that way in a particular case that came before the court. that's why we have appellate rights for parties to appeal decisions that they disagree with. that's why we have a high supreme court to ultimately resolve differences like that. we have a process. and i tell you, in the district of columbia we have an extremely busy trial court. thousands of people walk through the doors of the courthouse every day that look like every one of us. and what amaze me and what good-byes me hope and why i love doing what i do is that they expect that the system will work. everybody's not happy and sometimes no one's happy when they lead, but they do expect

the system to work. all we have to do is look at the immediate around the globe in parts of the world that are in extreme conflict where there's no expectation that they can go to a courthouse and get resolution that will be fair and impartial. through a process that they have confidence in. and what we're talking about are attacks on bedrock principles of our democracy that the judicial branch should be fair and impartial and independent. >> well, you know, in the few minutes we have left, i'd like all of your ideas about what reforms can take place to ensure judicial independence. judge blackburn-rigsby, is the national association of women judges focused on the role of money in these campaigns? we've heard about the funding for these attack ads and the supreme court has upheld restrictions on funding of judicial elections to avoid corruption. is that an issue? >> well, the national association of women judges has

taken a broader approach. and we view our role as one to educate the community, civic engagement, civic education about the role of judges, the role of the courts and how the process works because there are different ways that judges are selected. some that you've heard of here, some are appointed. but whatever ways the judges are elected in your local jurisdictions, we need the community to understand that. and to care and to understand why it matters to each individual person. and so our informed voters project, fair judges project, ivp.nawj.org, we've got a fantastic website with tools really engaging not written like our judicial decisions, they're written in very understandable, common parlance so that high school students, college

students, civic groups can go to the web site and download materials about what will a retention election is. what qualities are important for a judge to be fair, to be educated about the law, to be impartial, to be neutral. and those materials are available to the public. we've partnered with civic groups and bar associations. we have over 25 different partners with us. a grass-roots effort to make our courts more open and accessible and understandable so that people understand the true jewel that our judicial system and tripartheid system of government offs. i used to have civic class. many of you remember in elementary school, we had civics class. they learn these things and we have to make people understand why they're important. when you're standing in front of a court with your loved one no matter what kind of dispute it is, as justice ternus said, ask

yourself what do you want the judge to be thinking? oh, my gosh, what is the paper going to say tomorrow if i do this or do you want them focused on the facts and the law and really bringing an open and fair mind to the resolution of your case. >> i would say just on the issue of the campaign finance, the u.s. supreme court decisions were in the context of the legislative and executive branch. i know the justice o'connor who is a great supporter of civics education has come out saying she's very concerned about the state of campaign and big money coming into the corrupting effect. we must i think look at and i would encourage a broader conversation about how judicial races are financed. the role of public financing.

and the studies that show certain troubling facts. i think that must be addressed as citizens look at what is happening in their state, they ought to be informed about the process by which judges are selected and see if that process encourages politics or discourages it. and if it discourages it, then it should be remain. they should look at legislative attempts to change the way judges are selected which is happening in many states. our judicial nominating commission is not as nonpartisan as it was 15 years ago. i think that is -- that's a mistake. so happy but we can't say, we can't sit here and say, well if you're from a partisan state like in texas, judges are elected still as democrats and republicans, we're not going to say today, well, we think that system is going to encourage politics. i would let the citizens and

voters think, well, if you're running as a democrat or a republican, doesn't that sound political. so the only thing i would love to do because i noepts we started a little late but it's also live stream, if we could show the justice o'connor video or do we have time for that? >> we certainly will have time. it's a great video. i want to give justice ternus the last word an then we'll watch this wonderful video which has been nominated for an emmy. justice ternus, you've lived this and heard our discussion. we just talked about three different methods of judicial election. judge rigsby's system of a term of years with the advice and consent of the president and senate. does the nomination system matter and what other reforms would you suggest could help avoid the kind of threats to judicial independence that you've experienced? >> well, i think the voters, the citizens have to decide as i

said earlier what kind of court they want. and then look at the selection system they have in their state and ask themselves, does this selection process promote the kind of court that i want or not? but even beyond the kind of system that i p you have, because any system can be politicized and i think the systems can be unpoliticized. i think citizens today have to do what americans did here in philadelphia what, 250 years ago? i don't have the math right in front of me. but you know, we need to understand that we have to have as much of a commitment to democracy and the rule of law as our founding fathers did or we will lose it. and so i think the main message that i would like to convey to you and that i hope that you would convey to people in the coffee shop and over the

thanksgiving dinner table with your relatives is that democracy has to be protected. and we have to commit ourselves to a fair and impartial judiciary or we will lose it. and that is what is happening now. if we don't do something about it. >> each of you is just knocking it out of the park. this is among -- this is really inspiring. we're about to hear this great video nominated for an emmy featuring our wonderful board member and the leader of civics education and the defense of judicial independence in america, justice sandra day o'connor. let us watch this video. >> as a member of the national association of women judges. >> fib me. >> and has done this in conjunction with our informed voters fair judges project. >> thank you for that, judge. let's watch the video.

>> life isn't always fair. but all of us want to be treated with fairness. treated with fairness. it seems we were born that way. before we can read or write, we know what fair feels like. >> none of us have to be taught how it say that's not fair much the first lessons we learn at home and at school are how to be fair. everybody gets a turn, no cutting in line. share what you have. it seems simple, until you try to do it. we all want fairness, we don't always agree on what's fair and what isn't? stripped down to the core, it's treating others the way you want them to treat you and knowing they will treat you the same way. it's playing by the rules even when you don't win.

because the same rules apply to everyone. life may not be fair, but the rules we live by must be. in america, fairness is the foundation of our laws. you won't find it more fair or fairness anywhere in our constitution or bill of rights. there is a good reason why you won't. our founding fathers and mothers are smart. it's impossible to find what is fair and what isn't in every situation. they created a branch of government devoted to fairness equal to the others. a branch whose one and only job is to decide what's fair. it is the judicial branch. it is made up of our nation's courts and judges. judges who don't represent one group or party versus another. judges who don't make decisions based on personal opinions. impartial judges who apply it without playing favorites.

free from fear or prejudice or the influence of special interest group groups or emotions that fuel the most divicive debates. judges and don't bend to pressure. they stand for one thing and only one thing. fairness. nobody ever went to a game to watch the referee, but there can be a fair contest without one. it means making hard, but fair calls and not letting the crowds change your mind. fairness has never been a popularity contest. doing what's right is not based on poll numbers. throughout our history, americans looked to the courts for fairness. today americans still go to court because they trust the judge will handle their case with an even hand, fair and square. they believe that while no one in america is above the law, all of us are entitled to the same law. guaranteed by fair impartial

judges. our courts are the great levellers. all men are created equal. i know idealists believe the integrity of our courts. that is the living, working reality. these words from to kill a mocking bird are true. >> i have seen that reality. i have worked alongside judges and justices dedicated to defending the integrity of our courts. even handed judges committed to impartial judges who stand outside of politics and partisan free from the influence of special interest or particular groups or causes. because when a judge does what is right according to the law when a judge decides each case

strictly on the merits, when a judge gives every case and every person the same treatment, our courts are what they have always been and must always be. fair and free. >> america's courts are fair. help keep them that way with an informed vote. >> wow, ladies and gentlemen, there many inspiring moments, but i can think of few more meaningful than this partnership with the women judges of a felly institution dedicated to this crucial ideal of non-part an justice. the take away from this discussion is that you have a role to play in this

conversation. it makes a difference whether in communities or across the nations there conversations about judicial independence and the difference between fair and principaled systems and one in which the judicial system will reign. join me in thanking these judges for their service to this country. >> per tonight on c-span 3. we will show you about head injuries and other safety issues. a senate hearing for student athletes. it begins at 8:00 eastern here

on c-span 3. >> the student cam competition is under way. this competition for middle and high school student award 150 prizes totalling $100,000. create a video entitled three branches and you. it must be submitted by january 20, 2015. go to studentcam.org and grab a camera and get started today. >> j rockefeller is retiring after 30 years representing west virginia. he is a democrat, but shelly moore is believed to have the edge against west virginia's natalie tenet. they debated earlier this week. >> would you vote again today to repeal aca that means the

100,000 west virginians would lose insurance? >> i would repeal and replace. i voted for that 50 times and recognize that the aca has good things about it. making sure people don't get their insurance cutoff for a preexisting condition. i was for that before the president decided to take it in a more detrimental direction. i believe keeping our students on until they are 26 is a good thing. there good things. we need to keep what's good and replace it with what will work. get rid of the business mandate. make sure that our businesses are not having a 30% increase in premiums which we are seeing. 7,000 rest virginians have lot of the plan. remember the president who i will remind you they support the policies. if you like your health care, you can keep it, period.

that dnd work out so well. it was sold as a bill of goods. people are losing their physicians and it's unaffordable. were there things wrong? yes. i wish we worked in a way to find a way who keep folks on the experience. they want to keep them insured. that's important to us, not just to them. it's important to us as a state. >> secretary, your response? >> well, there she goes again. i wish that -- she says one thing and votes another way. she said she is for these things in the aca, but yet voted to repeal it. i won't vote to repeal it. i know what it's like to go without health care. my daughter delaney had open heart surgery when she was a week old. many folks prayed for her and those prayers were answered because that surgery saved her

life. she is a healthy happy 12-year-old right now. but when my husband and i started our small business, we wanted to buy insurance so he call and i remember the day i came home and he said natalie, i talked to the insurance companies trying to get insurance for us and the business and family. they will cover me and you, but not delaney because of her preexisting condition. i was devastated because i thought what parent takes something their child can't have. i will never go back to the days when insurance companies can deny for someone with a preexisting condition. to say she is for that too, she voted to take that away. >> we have two more live

debates. from the 17th congressional district, sherry bustos debates bobby schilling. live from chicago, the democratic governor of illinois will debate challenger bruce rounder. a memorial service for james brady. former secretary of state coal ib in powell talks about world affairs. on q&a, the author talks about how as a marine in vietnam, a land mine explosion nearly killed him and changed his life. friday night at 8:00, author and activist calls for an alliance to take on the issues that plague america. the surgeon and author go on on why he