people. she said there is nothing that is so crazy that someone does not believe it. but the point is, that it is true, people have very different points of view and they have decided to resolve their differences, and this is the kind of miracle that has taken us about 200 years to accomplish. .

by will begin and end with one issue about judicial selection. judges are the guardians of our system of law. at the same time, they are essential to this system of law. during the time when the president nominated about 200 judges, we made a list.

the overriding question that we asked was does this judge have the ability to interpret the law. that is as straightforward as a kit. -- as it gets. to govern our country, to help that our country according to the constitution -- that is the goal. independence from what? partisan politics? the impulses of the majority? all the reasons why justice o'connor and justice prior to cry a state judicial elections,

it is all of the reasons why we have these things in the federal system. there is a certain cost the comes with that which is the danger a judge once in the rope -- robe that will lead him or her to act outside the bounds of the law. there is that then an encroachment of judicial power. even though justice o'connor and justice breyer were nominated by different presidents and disagree on the fundamentals of the matters of law, but both have the respect for the role of a judge. that is all you can ask for in a

judge. i like to announce as it as investing for the long-term. you want to be like warren buffett. you can always ask a nominee would he or she would do in a particular case or a controversial issue. ubs and in other witches short- term speculation. others not give you the sense -- that does not give you the sense of how the judge will do in a democratic society as the role of a judge. i will trade short-term cases for a long-term vision any time.

that is why we have the system we have. there is an ongoing question at the state level. should we have elected judges? if they are appointed, that our report -- once they are appointed, is there a mechanism whereby they should be in office and for what purpose can they be removed from office? those are the same questions that the state level that we struggle with an answer with our constitution which is how about -- which is how you go about selecting in confirming judges to protect will also that it is not violated. >> the federal judge serves for

good behavior. the judge can be removed through impeachment through high kinds -- through high crimes committed. we have not headed just as remove for that. other federal judges have been a few times. the federal judge's salary has also been reduced. states all have limited terms of offices -- terms of office for their judges. it has been suggested by people from time to time that we ought to limit the terms of federal judges as well. we should make an amendment to the constitution which is hard to come by.

>> i want to pick up from opening, it -- from your opening comment. mr. phillips is a friend. there was a and boosting letter to the editor with regard to this issue defending judicial elections because of what i might say is a well justified point. it is of the way the state political system runs. the argument is that this personal lives of some of her. you mentioned that all of the

names were known. in looking around for the kind of selfless judges you describe, how many were democrats, republicans? i think the last cross-party appointment was president eisenhower's. presidents pick members of their own party for the supreme court. how do you answer the letter writer saying, look, do what you what to do is substitute an opaque form of politics for the

transparent form of politics? >> that is so wrong under the selection system that i helped design under my state of arizona,, we execute citizens to consider applications of people want to be a judge. those records are open to the public. when they interview these people, the hearings are open to the public. it asked the person who wants to be considered to file forms and answer questions which is open to the public. the commission is not dominated by lawyers. the citizens have to be of both political parties.

the commission has worked very well in making recommendations. they have to give the least three names in both political parties. we have a republican governor who recently appointed a democrat to the supreme court. i think that is about as bearish you can get. i was born in texas. i think he can have a very fair system. i wish more states would do it. >> i think the letter writer has a certain situation. i think people did distrust the political process of gov. appointments. when one person became mayor of new york, this system was

different. his slogan was i am my own man. the press said who are you going to appoint police chief? he said, i do not know. the boys have not told yet. [laughter] there is no perfect system by any means. that is why i was careful about the remarks on the campaign contribution aspect of this. when i grew up in california, there was an election system. the governor would appoint the vacancy. there was really a contest. there was some public input in the process.

missouri as a system like that. there are many ways of scanning the cat. we look at all of the ways, it has gone to go far with the campaign -- it has gone to go far with the campaign contributions. the democrats of. democrats and republicans. republicans. even my campaign contribution is part of a bigger problem. the bigger problem facing the judicial problem is not the campaign contribution, but the campaign contributions are a manifestation of it.

people more and more think of judges as junior league politicians. all the messages they come to people tell them that. you tried to think of how many cases you have read about in the newspaper that were not 5- quarter ended not involve a major social issue. -- 5-4 and did not involve a major social issue. you read about any of the 30 percent of cases that are unanimous. how often do you read a case or an article about a judge that like the articles 50 years ago did not have in it a clinton appointee, reagan appointee, in parenthesis afterwards. the messages that the public gets is these are political

people deciding things for political reasons. that is far from the truth. it could become the truth. i find it a big problem. judges are human. there is no perfect system. to talk about it in terms of politics is a distortion. i use the word distortion. it is a serious distortion. my problem is to go back to those people every day. it seems to me there are many things that unnecessary and used to attack this. those people in front of us every day who continue to have a faith in a system that depends for its existence on their fate. there is no way to predict how the judge will be hate. it is internal. you say what are the rewards for a judge? the zero.

that is an exaggeration. but nearly zero. it is internal. it is not external. not one of you knows when i wrote a dissent. it depended heavily on reading a record of 1000 pages of what happened in the state of arizona, and was i true to that record? what honest in what i said? maybe a few others know. you do not know. nor do the people who criticized and praised it. i have to live with myself. but i live in a system which continuously in reality, that is what i listen to praises me for being honest. they do not talk to me, but i

hear it. it is building a certain kind of institution. it takes years to build that in. i want you to see why i work about this corrosion of confidence in the system. [applause] >> i suspect you tire of being [unintelligible]

you are the last person confirmed to the united states supreme court who did not go to the harvard or yale school. that is simply an interesting fact. does it say something about too narrowin a casting of the net? >> i think it shows that they should look beyond harvard and yale. to look much more broadly and not require that the only people considered are those who served on the lower federal court as a district or appellate court judge. i think a diversity of backgrounds and experience is a

good idea on the u.s. supreme court. all nine of the justices were a product of the u.s. court of appeals. i guess most of them are harvard and yale. >> what about stamford? >> -- stanford. >> yes. but diversity is good. >> the last sitting justice bill at the time of his appointment was living west of the appellation was anthony kennedy. justice brier mentioned he was born in california. >> i grew up in san francisco.

>> do you think it would be a good idea if there were more justices from west of the appellation? should president obama be concerned about that kind of regional diversity when there is a next vacancy? >> >> one person was some colorado who decided to retire from the court. the supreme court during my time there had a number of cases involving disputes between different western states over water usage. if you lived in the west and it is about water, it is important. you would be amazed how injustices who are a product east of the mississippi do not

understand water long of the west -- water law of the west. i was concerned when one person stepped down. i could see the immediate effect of people on the court who did not understand those issues. i would like to see more people from the west. >> one person did not have a lot of experience with water of law. >> i am from san francisco. >> if you want to know what has an effect on a person, it is where you went to high school. >> he fits the qualifications. >> thank you. [laughter] >> do you want to weigh in?

>> no. >> what about the confirmation process that has it become too much of a circus to be genuinely helpful? >> we were confirmed. we were appointed. we did not appoint anyone. we did not vote to confirm anyone. asking me about this confirmation process is like asking for a recipe for chicken

from the point of view of the chicken. [laughter] >> i will take a crack at this. i worked in the senate. the primary job was to guide people through the confirmation process. it was a very interesting experience. we had one role. never take the bait. this is a kabuki dance. to not take the bait. there are ways to answer the question. do not live. do not take the bait. >> are you in favor of affirmative action?

discrimination is unconstitutional in our country. making a judgment based on race is a better quality. that said, questions arise all the time on this. there will be questions about personal financing. it is a ritual whereby if you can show that if you have the temperament and the ability to rise above it all, then i think you will be confirmed. if you take the bait, they go through the confirmation process. >> i bet this experience is shared. it is stressful. i was sitting there on one side of the table with 17 senators on the other side.

i am not used to that. i was very boring, and people kept turning it off. they will ask what they want to ask. they are the ones who are elected. if they ask things that too many people ask, someone else will be elected. what i see this as -- and i knew perfectly well that the people looking at those televisions and the images, if enough of them do not like what they see, i will not be confirmed. i was. i think people are pretty tolerant. i think americans, when they look at 3rd a thing, i do not -- when they look at certain things, i think they're being fair.

most of them are not looking at this ideologically. it had a happy ending for me. i was confirmed. if i had not been, i hope i would have had the maturity to think about it in this way. this is a window of democratic input into the selection of a person who will go to a court from which it is almost impossible to have him reserved. that person will have a lot of authority and ability to make decisions that will affect lots of americans. we do not want to have such a person or judge be easily removable, because he or she is there to be protected from public opinion.

but the normal constitutional compromise, we have a way in the democratic system of having input into this process leading to the selection of a person who was removed from democracy in the nature of the job. if you do not like the system as it had evolved, or if you think it is in the direction of kabuki theater, then the solution is to explain this to people through the institutions of molding opinions in a democratic society. if people begin to share that opinion, it will change. if they do not, then it will not. >> i suspect the senator's love the senate hearings of the supreme court justices.

they sit there asking intelligent questions and getting dressed call-up. they love it. it is not going to change. that is why the senate never had public hearings in the years before public television. there is very little on the plus side. . americans get to see for themselves a little bit of that character and presentation of the nominee. that may be their only chance. they may not have another chance to see this person alison to them talk. i think people would like it from that sense.

. i doubt that any circuit court nomination or does a court nomination on television would be very illuminating. before we turn to questions, i think that i am correct in saying that justice o'connor is the last person upon it to the supreme court that ran for elective office. >> i was in the arizona state senate. >> your the last person appointed to the supreme court from a state court. you spoke in a heartfelt way about the circus on capitol hill.

i think you are the last person of one to the supreme court whose experience on capitol hill -- rather than the executive department. talk about various diversity, whether it is regional. would the court benefit from having a successor who would actually run for elective office and the appearance the six -- an experience the office. >> with all things being equal, absolutely.

i think that is a reason why justice o'connor is very much missed. >> the hill is a strange creature. if you study american government, i think you can study the presidency in the supreme court without experiencing it. i do not think they appreciate it as a living institution. >> is, is a stranger than the executive branch? >> -- is congress a stranger than the executive branch? " people looking more -- two people look more natural in at that branch than people who have been in this quasi legislative

world? >> judges at the ability to interpret the law in the legislature. unless you have a special appreciation for that process, you may be more formalistic in terms of the view of the law rather than a more experienced . it may be the insight that a lot of people have could be useful. >> we will now turn to questions from the audience. please use the microphone.

>> justice fryer, the west virginia case is fascinating. there is a company leaving with a huge verdict. during the course of the appeal, there is an election to the court that is going to hear the appeal. a man who is not on the court runs for sit on the court and except $3 million from the descendants who are about to be heard from the court. it constitutes two-thirds of what the man got during the entire election campaign. somehow this is allowed to happen and get to you. where are the standards. where is the process for refusal

of this gentleman? should not there have been standards? should not you need a bit more on that? >> as i said, this violates the constitution. would it be important to have these standards in the state? i think that is what your point is. there were all kinds of institutions. we all follow the ada standards. there is no secret about that. these standards are complicated.

there is one different. when i was on the court of appeals, suppose i had a closed question on it. i could recuse myself or not. i might have done it myself. they can only get another judge. one is as good as the other. all the judges could decide the case. it makes a different -- a difference in the course. when there is a close question, i have to really think about it. if i think the duty to set is greater than the reason for recusal, i will sit. you're not free to decide

everything to recuse. that makes it more complicated. the standards are different. when i am having a tough time, -- there is nothing to prevent me from talking to my colleagues about it, which i sometimes do. all of us do that. i think it works out the same with the exception that i mentioned. maybe he thought why not? i do not have that luxury right now. >> i am from columbia. watching all the coverage surrounding the current nominee, i have been confused. given the dictionary definition -- the importance of it.

with regard to that now infamous " about the current nominee being a good choice given hurt racial, economic, and the gender background, i wonder if any of you would like to comment on where you've ball on this side of the debate. is it a good thing? >> the rule of law is the rule of reason. that is the ability to convince another person of your own state of knowledge. we are in a unique culture in

that we all recognize and respect the individuality of personal experiences. each one of us is an individual but we respect the universality of knowledge. what does one beat -- mean by the word empathy? if by empathy you recognize that we are all carried to the table individualized experiences, then fine. that is part of our ability to understand each other and reason to do law across differences like that. that is legitimate and desirable in selecting a judge. a personal experiences, you mean that there are certain barriers that one cannot cross

intellectually in order to achieve a will of reason and a world law. then it seems to me that would not only be illegitimate, but and just in a system of a democratic rule of law. i know we are all human. i know there is senate in the world. that does not mean that we aspire to sen. -- i know there is senin in the world. that does not mean that we aspire to sin. i know, because they have said this publicly. neither obama nor sonia

sotomayor main empathy as that the legitimate and unjust sense of the world -- word. >> aristotle also spoke about the importance of equity. the district judge spoke quite often about this. . it seems like you might be stacking the deck in terms of a very particular model law. it may not be as important to context and the human reality that will emerge in any given case. i think there was a case where justice ginsburg spoke quite candidly about the importance of

being able to look at the world from the perspective of a 13 year-old girl who had been forced into a strip search. >> several of the justices agreed with her. >> yes. the question is what would aristotle have thought. >> i am from cleveland, ohio. we have a public law program at duke to promote a public understanding of law and its relationship to society. we have educational goals from the public. justice breyer made a passionate and compelling case or description for out a judge or what their mind-set should

before deciding the case. how do we get the message across to the public so that they understand when they see these confirmation hearings, it is not about winning or losing this specific issue that may be of interest to them, but a process that is critical to our government? the supreme court is one of the few institutions that is still held in very high esteem by the american public. i a understand this is being televised. maybe some americans will watch it and understand a little better when the will of the court is and should be. >> they are spending an enormous amount of time on this.

it is abstract and general. the only way to do this is when someone is in the 11th grade and high school, by the end of that year, he or she understands how democratic government work. they are working on film, explaining supreme court cases. then there are other projects going. they are a necessary part, and so are we. what we tried to do is every chance you get, even if it drives people to distraction, repeat what it is that we do.

repeat what it means to be a judge. plead with people. ask them to require it. prepare materials so that the lawyers can go to the judge's and say, it is all here. the questions and answers. the lesson plan is here and the teacher can read it the night before. there is a television film with it. the kids will love it. that requires so much work on the part of so many people. there is no other way. >> he mentioned the website for justice o'connor. >> it is also key to mention one

of the conversations that will follow this. one of the things that was pointed out, one unanticipated consequence of no job left behind was the demise of civic education in public schools. the demise of arts education. this is the topic. it is vanishing from the american school system. >> i am a proud residents of los angeles. >> i love los angeles. >> my question for the whole panel is about the prior

discussion about public service. i am curious about your opinions on the tenure of the supreme court justices. i believe the european court of justice has a tenure of 15 years. what justice o'connor has been doing of the past couple of days i think is wonderful. you're the first supreme court justice i and my ear. i have learned a lot from you. would it be a win-win for our country if the supreme court justices have a fixed tenure of 20 years or 25 years after which you could go on tours like this? >> you have to change the constitution. have you tried to do that lately? [laughter] >> i know the prospects are dim.

i know that is a long shot. i believe that if there were a campaign by the nine of you, this would be an engaging conversation for us. you as examples of our judicial centum i think are unparalleled. >> justices can step down. i did. justice souter did. maybe it will take care of itself. >> you have to have been the long term plan. you deny get used to the job in five years. this is a job where experience helps. the problem is just as justice o'connor said.

people try to get around the problem with statutory gimmicks. this is an area where you have to think clearly and simply. i would be very nervous of some gimmicky statute. i would think the way to do it is a constitutional amendment. we have an interesting story. there was an old judge. the court said there is a judge who is old. we think he is lost. will you please go to tell them that it is about time for him to step down? someone goes to see him at his house. now he says, you remember this justice?

the judges pointed out to you that his career had gotten along in years. he was having a hard time and it was time for him to retire. they ask you to go to him and explain that to him. he says, yes. i remember. [laughter] [unintelligible] >> that is great. justice o'connor, if i recall correctly, in an affirmative action case, you said that one of the reasons we still needed affirmative action in some form is that in order for our institutions to have legitimacy, they needed to reflect the diversity of the population.

do you think that also applies to the judiciary and to what extent? does that apply to the supreme court? should that argument any place in the debate of the current nominees? >> i think it is helpful in our country that people can look at the supreme court bench and have some reason to think that it is somewhat reflective of society. with no women on it, i did not think it was. with one woman on it, i thought that was a small beginning. we are getting another one. i think that helps. we have a nominee who is hispanic. that will probably encourage hispanics who live in this country. we have an african-american on the bench.

that is probably an encouragement to african- americans. we are not totally bereft of some diversity on the bench at this point. i think we can do better. >> if that is one factor, how do you weigh that factor against other factors? >> that is up to the president. they can weigh them. they are capable of doing this. he did not have to ask the supreme court justice. we are lucky to get there. i think that is one of the concerns that any president would have in selecting them. >> to what degree did diversity be a concern? >> a different kind of analysis. the judicial positions are not entitlements.

the decision is not based on a political decision. president bush had this affirmative access. nobody can really articulate what it is. i think the way it works is, if we go to the president and say we have this seed that is open. here is the name of the candidates the committee recommends and it happens to be a white male, the president will say, are you sure? we say, yes, this is what everybody has agreed to.

he says, who did you look at that who were the top three? if they are all white males, he will say, go back and do your homework. we come back to the president and a similar name comes in. he will ask the same question. if this is the best recommendation, then i will trust you. but i want to make sure that you have not had a television into this decision. -- tunnel vision into this decision. those of the kinds of questions that are asked in a very practical manner. >> justice o'connor, you have done a tremendous job in making

this an important issue for all of us in civic education. i think transparency is important. i would like to know what the supreme court does not make its arguments available to the public to televise arguments? >> the oral arguments? >> they are available. >> why do we have television in the courtroom? >> why do we not have television in the supreme court at the time of oral argument? i think most people there think the negatives out with the positives. the positives are obvious. it would be a good education for people to see. what did discover is help people do their job. they would see some of these issues that they think obvious

are far from obvious. the term-limits issue, whether it violates the constitution, that would be discussed. jefferson thought one thing. madison and hamilton thought the other. there is a tremendous educational value. why not do it? their arguments on the other side. i am not endorsing one of the other. on the other side, people would worry because of the symbolic value of the court that the television would be in every courtroom of the country including all criminal cases where you have concerns about witnesses, jurors, and intimidation. it may not be understood very well.

people relate to human beings. our job requires for us not to focus on the particular individuals of the cases. that is probably most important. we need to worry about the 300 million people who have to live under this rule of law interpreted one way or the other. those people are not in that courtroom. people might -- a nice quality about human beings. they focus on individuals. you meet somebody, you relate. you see the picture, you relate. you see them and hear about them -- news stories, statistics, that is a characteristics of human beings. there are concerns there.

which way those concerns balance out, i do not know. it has not come up very much. people have different views on that. i am not going to express my view one way or the other. people might adapt to it more and more if it is on television. >> i obviously have not convinced you. i want to acquaint you with the arguments on both sides. >> it is important psychologically. everyone of us while we were there and all i am there, not one of us thinks that we are doing what 99 percent of the people think we are doing which is what we want. i think i am not.

we are trustees of an institution. that institution is to serve america well. we hope -- who knows about the future. if we were to vote for something, the implication for change, we do not know. that is called being very conservative about major changes in this institution. that is not illogical argument. it is a psychological argument. i would not understand its importance. >> the architects of the supreme court was a talented man. one of the features he put in the course of arts to hold the lambs up were [unintelligible] ? it is because justice moves slowly.

it is better to be sure than sorry. >> i think i speak for all of us in thanking you for being here. [laughter] [applause] >> how is c-span funded? >> the u.s. government. >> i do not know. i think some of it is government waste. >> it is not public. i want to say my tax dollars. >> how is c-span funded? 30 years ago, america's cable companies created the c-span as a public service. no government mandate or money.

" >> you are watching c-span, created as a public service by the nation's cable company. up next, "washington journal