i can remember walking out of the first meeting and a half- jokingly said to john o'connor, i said, if anybody can get all the people in this room to agree upon what month of the year is, they would be doing a pretty good job, never mind all these details, especially housing in san francisco. it is not the first time a working group was put together. there have been many, many working groups. but in times where there's not a coalition or there is not a strong bond or it was done too quickly or recklessly and the details were not thought of, you cannot have consensus. what happens? the people who were not happy raised a couple bucks and they kill it. history is filled with examples like that. this group of the effort in. the terms on the term sheet. we listened to carefully. there were done out of respect for each other, and there was an awful lot of give and take what they really help the process. one other point, in closing, our inclusionary housing program now, it is is essentially a fee- out program. and these changes, they're not the agreement. it is not going to affect anything 12

sandra day o'connor, david tudor, and john paul stevens. hree more different human beings you'll never meet. sandra day o'connor, this tall, charismatic, outgoing, politician from arizona. david souter, the shy, introverted. and john paul stevens. what are they all have in common? they're all moderate republicans who left the court deeply and totally alienated from the modern republican party. in the oath, i tell a story of justice o'connor. justice o'connor and justice souter having a conversation in the hallway. and o'connor boiling with frustration, about how, and she said, why is it that our party is destroying the country? why are we spending money that we don't have? why are we engaged in this war in iraq with no end. barry goldwater she said, never gave a dam who slept with. [laughter] and that was the party who does give a care. and, you know, stephen breyer said that after the court, the seattle and louisville, the segregation cases, he overturned those and he said, it is not often in law that so few have done and undone so much. th

sandra day o'connor, david suiter, john paul stevens, all republicans and republican appointees who left completely alienated from their party because their moderate republican party no longer representatives, the senate or the united states supreme court. now, justice -- chief justice roberts, samuel alito justice thomas justice scalia, they represent the modern republican party and that is dramatically different. you know, moderate republicans really dominated the united states supreme court for many years. powell, stewart, they're all gone and they haven't been replaced. >> jennifer: it is such a shame for democracy, it is such a shame. i appreciate you coming inside "the war room." jeffrey, good luck with your book. jeffrey toobin author of "the oath the obama white house and the supreme court." and up next, mitt romney is like the guy who turns on the faucet and then stares into the garden hose for a second too long. we're going to see how his latest battle against his own instincts is playing out on the campaign front. that's next and you will find it only here in "the war room." [

sandra day o'connor, david suitor, john paul stevens. one more dramatically than sandra day o'connor, who, of course, was the symbol of the republican party for years, ronald reagan's first appointment to the court. but the new justices, alito, roberts, reflect the modern republican party. and that split between the moderate vanishing species of republican and the more modern conservative republicans is played out in court. >> what happens -- go ahead. >> i was saying the book is fantastic. there's so many interesting things in the book and i heard your talk last week and learned so much. >> thank you. >> right up to the minute on this health care stuff. you talked about how this health care decision got carved up and how the conservatives lost roberts. i thought that was fascinating. >> or is it a win in a way? >> well, it was a loss for the conservative cause. i don't think there's any doubt about that. in the short run or the long run. but john roberts, in addition to being very conservative, is also a strategic thinker. and he viewed

john paul stevens went out at 90. david souter 69, sandra day o'connor 75.a tradition of when justices usually retire, be it age, or time served? >> well, they're like most human beings. a lot of factors weigh in. there is -- there was a tradition where justices would tend to retire during the term of a president that was at the same party that appointed them. but we know neither justices souter nor stevens did that. they were both republican employees and went out during president obama's term. life circumstances can drive retirement decisions. so it's really not scientifically predictable or politically predictable. >> do you see any most likely candidates if another seat opens up under president obama? >> you know, i think if president obama, first of all, justice ruth bader ginsburg i think the pressure to replace her with another woman appointee would be enormous. we've made progress in getting a third of the court female and i don't think president obama or any president would want to go backwards on that. so some potential people for justice ginsburg,

fascinating story about sandra day o'connor saying when justice was retiring, it's my party that's destroying the country. >> the last three justices to leave the court, johnevens, all republican appointees who left deeply alienated from that party. and that scene in the supreme court corridors, the justices, they respect each other's space a lot. they don't go into each other's offices a lot but they have a lot of conversations in the corridors. >> it's like "60 minutes." >> it's a lot like "60 minutes." and o'connor went on and on to suter about how it was the republicans running up deficits and barry goldwater never cared who you slept with. and we didn't get involved in these foreign adventures, you know, under good republican presidents. o'connor, stevens, and suter a left completely alienated from the modern republican party and they were replaced by modern republicans who are much more congrd to talking more about it down the r lot mo tonight. isha? >> anrs nd teachers back to work today and end a six-day strike. instea union leaders say the mayor is using the schoolues such as teacherevaluations. >>> in new york, rallies and nearly 150 arrests as p

o'connor, suitor, stevens, all moderate republicans, they are gone. they have either gone to the democrat, suitor and stevens gave their seats to obama. the republicans who have been appoi appointed, johnts reflect the modern republican party. mitt romney, to be sure, would nominate someone like cavanagh, a young judge on the d.c. circuit. very conservative. not moderate republicans. that's why one seat would make such a difference. >> and those two have very clear records as did john roberts and sam aledo. we knew exactly who they were and what they would do. the senate wasn't ready to really look at that record and make an issue. >> can i ask a theoretical question. there's two ways of thinking about this. there should be a deference to the executive in naming nominees that comport with the president's legal philosophy, ideolo ideology. applying confidence because they are qualified for the job and hey, this is politics and a woman's right to choose on the line, this is a war against all against all. do what it takes. which is your belief system? >> you have to be confident and have an exemplary record. we need a candidate, republican or democrat who will accept the progress that has