Reflections of a retired justice: Sandra Day O'Connor

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Reflections of a retired justice

Sandra Day O'Connor retired from the U.S. Supreme Court in January after a quarter-century on the bench, where she was viewed in many cases as the pivotal vote. In the ensuing months, the court has added two justices, judicial independence has come under attack and critics have questioned the wisdom of citing foreign court decisions in U.S. rulings. In the meantime, the immigration debate has ignited legal challenges, protests and a political firestorm. O'Connor, a border state native, discussed these and other issues with members of USA TODAY's editorial board. Her comments were edited for length and clarity.

Q: The issue of judicial independence has been much in the news. How serious a threat is such "court bashing" in the country today?

A: It's very serious. There were "Impeach Earl Warren" signs in the western United States when he was chief justice, but it never amounted to anything truly threatening. But the concerns today are not only at the national but at state levels. Have you watched what's happening in a proposal in South Dakota? They're looking to remove all judicial immunity from judges for their judicial decision-making and want to subject them to civil and criminal lawsuits for their actions on the bench. The sponsors want to take it elsewhere.

Q: What might be the effect of such a proposal?

A: That would be a remarkable change in direction from what the framers of our Constitution intended. They went to enormous effort to set up three separate branches of government? each with power to affect the other two but providing for independence of each of the branches, in effect letting them do their jobs.

Q: Do you see other instances today in which the separation of powers has been breached?

A: Some leaders in Congress have expressed concerns about the service of the search warrant in the office of a member of Congress (Rep. William Jefferson (news, bio, voting record), D-La.) as being a breach. Similarly, the notion of cutting budgets of courts, impeaching a judge who would cite a foreign judgment in an opinion, stripping federal courts of jurisdiction over whole categories of cases because of concerns about individual decisions. These are not the types of actions the framers would have envisioned as consistent with judicial independence.

Q: Do you think money has polluted the process in some states in which judges are elected?

A: In some states, very much. I came from Arizona, which provided for the election of all judges. I did not think that was a good system because when judges ran they had to spend money for advertising and campaigning to win the nomination and then the election. Where did that money come from? It came from lawyers. And what lawyers? The lawyers most likely to appear before them. I think that's a lousy system.

Q: Did you do anything to change that system?

A: I served in the Legislature, and I tried to get the Legislature to amend Arizona's constitution to put before the people a system of merit selection of judges. I could not get that out of the House of Representatives. I could get it out of the Senate. So I helped organize an initiative drive to get voters' signatures to put it on the ballot. We got enough signatures, we put it on the ballot, and I had decided that I was going to try to be a judge, and I ran for office as a trial judge in the same election the same year that that ballot went before the people. And it passed by a very narrow margin.

Q: Should U.S. courts pay attention to what courts around the world are deciding?

A: We share a common law system developed originally in Great Britain, so it might be of some interest to know how British courts are dealing with the same issues that we're addressing. Does it govern what we do? No. Do their decisions speak authoritatively to the meaning of our Constitution? No. Might they say something sometimes in an opinion that we say, "Oh, well that's an interesting argument"? Now, if you read it in a judicial opinion of another country, is it somehow off limits to look at it? I don't think so.

Q: The confirmation process for the court is extremely contentious. How did it get that way?

A: There is an intersection of the political process with the judicial. And the selection process the framers installed makes the political process involved at the selection stage. That was a choice the framers made. The thing that's different today is television coverage of the hearings. That is why it is so contentious today. Without that gavel-to-gavel coverage, believe me, it probably would be a different scene.

Q: Do you think it would be a good idea to have cameras in the courtroom?

A: You can (already) listen to the arguments. And every word is written down, so you can read it. I think (cameras are) going to be slow in coming. Courts don't like to make changes very rapidly, and that would be a massive change for how the courts operate.

Q: Having grown up in El Paso and lived in Arizona, how do you view the current debate on immigration and the influence of Hispanics today?

A: In my part of the country, the Hispanic influence is enormous. I remember in El Paso we would go across the border to Juarez all the time. My grandmother grew up in northern Mexico because her father ran a freight service to the mines. She spoke Spanish before she spoke English. And we had lessons in Spanish from kindergarten on. So in Arizona, I arranged to have each of our children live for a short time during the summer with a Mexican family and work on their Spanish and then bring the children of that family back to us for a time so they could work on their English. This was a pattern of life.

Q: Do you agree with the concern that immigrants are retaining too much of the language and culture of their original country?

A: I do think it's helpful if people can learn the language effectively if they're going to come live here. If I went to live in France, believe me, I'd want to learn to speak French fluently. And I hope people coming to live here want to learn to speak English fluently.

Q: How is retirement suiting you?

A: I need to retire from retirement. I'm too busy!