Transcripts For CSPAN3 Working With Supreme Court Justice Sandra Day OConnor 20240713

Next, from the Ronald Reagan president ial foundation and institute, six former law clerks recall working with Supreme Court Justice Sandra day oconnor. This is part of an allday conference commemorating the 38th anniversary of Justice Oconnors senate confirmation. [ applause ] thank you. Its really an honor and a privilege to be here. So, i was asked just to say a few words to introduce the next panel. And i think i would start by saying something that probably we all know, which is the court is a fairly powerful institution. Now, of course, it wasnt always so, though. One of the signs of how powerful it is is that you really do see in any president ial election people saying it matters who you vote for. You should vote for x rather than y because theyre going to pick the next Supreme Court justices. But if you think about why that really is so, the Court Decides about 80 cases a year. And about 75 of them need to be decided, but theyre not the reason the court is such a powerful institution, and theyre not the reason people say that about who you should vote for in the president ial election. In any given term, theres typically five or six cases that are really the reason why we care about the court, and those are the cases that have truly Significant Impact on our politics, on our society, on our government. There are also, though, typically cases, the reason theyre so hard and part of the reason that makes them so important is the law runs out before you get to the decision. So, how do we justify giving so much power to what amounts to a kind of Monarchical Institution in cases like that . And its not actually so easy to do, if you think about it. But one of the ways we do it is by who we appoint, who we give that kind of power to. So, we look, ideally, for people who have experience in politics, who have been in a position where theyve had to make some of these really hard decisions with responsibility for the consequences of those decisions. And they, in the ideal world, we remove them from politics and the way we structure the court, and they have a kind of wisdom they can bring to bear on those cases when the law runs out. So that last little bit, when the legal justifications might take you one way or another, they can bring that to bear in the decision and exercise judgment, which is, of course, why we call them judges. So, in those five or six cases every term, its that kind of experience that matters. And the truth is, if you look across American History, we used to routinely appoint justices who had that kind of experience. We had justices who had been governors or senators or cabinet officials, people who had really been in the heat of politics, in important political decisions, sometimes at the state level, sometimes at the federal level, with real responsibility for the consequences of what they did. And if you think about it, Justice Oconnor was really the last justice of that ilk. And you see it reflected in her decisionmaking. Part of the reason, by the way, is its because the court has become so powerful. It becomes really difficult to get anybody through the appointments process we have now, if they have actually ever done anything in life. But at least when she was appointed, and for all sorts of reasons, we heard on the first panel, they went to somebody who was quite unconventional, but somebody whose important experience for the court was not her experience as a state court judge but as a state legislator, as the leader of her party in the state as someone who had had that kind of experience in politics. So, what happens when the law runs out is you can see that reflected in Justice Oconnors opinions. And you could see it in what she decided, but in how she decided it. Of course, no one gets to see how a justice decides their cases better than her law clerks, not even her fellow justices got to see as close or as much of what made the justice who she was as a justice. Clerking is a really unique job. Its not really a job. Its closer to a discipleship than it is to a regular job. You work long hours, and i can tell you that oconnors clerks worked longer hours than most of us. You have incredibly close contact with this person. You spend your time thinking not about how you can influence them, because very few of us had the kind of arrogance, particularly at the age of 26, to want to push the justice in a different direction than he or she wanted to go, but really trying to understand what it is that the Justice Needs or wants or is trying do and to fulfill those needs, to provide the research, to provide the thinking, to provide the kind of argumentation that helps the justice shape her views. So, who better to give us a sense of what it was that made Justice Oconnor the justice that she was, who better than those, particularly in those key cases and important cases, who did the work with her . And so, with that, let me bring on the next panel. I think youll be really interested to hear some of the firsthand experiences of the people who had the opportunity to work as closely with Justice Oconnor as only her clerks ever did. [ applause ] please welcome to the stage our moderator, mr. Jeffrey rosen, and our first panel of distinguished speakers. Chancellor kent syverud, ms. Marci hamilton, and ms. Julio osullivan. [ applause ] ladies and gentlemen, welcome to our panel about the firsthand experience of clerking with Justice Oconnor. We are honored to have three extraordinarily distinguished scholars who also clerked with Justice Oconnor during her early years on the court, during the 84, 85, and 89 terms. So, i think we should begin by asking, what was it like to clerk with her as she was still adjusting to the extraordinary role of being the first woman on the Supreme Court . And chancellor, well begin with you. The most famous woman in the United States at the time. She drove a honda civic, herself. She was incredibly demanding and incredibly supportive as well. And what a blessing that was to have early in your life, to have a boss who insisted on the best of you, but also knew you had a camera. So, id say it was exhausting and exhilarating at the same time. Marci hamilton, professor hamilton, you had talked about how she taught you to be a professional. Tell us about that. So, you know, the thing about clerking for Justice Oconnor is that you learn how to be incredibly honest while youre smiling, and you learn now to put in writing things that you dont want to read again. So, ill never forget in the abortion cases, i was very, very unhappy with Justice Scalias treatment of the justice, and i really wrote it up. And i wrote a response that i we nailed him. I mean, that was my plan. And i hear, marci. So, i went across by the secretarys desk and i go into her office and say, yes. She goes, we dont talk like that. And i said, well, i think we should. She said, no, no. Take it out. So, i went and took out all of the strong verbiage and left just the facts, and she was very happy with that. But i learned a really good lesson, where you can really, really disagree with someone, but you dont have to be disagreeable. And thats an amazing skill that someone gets early in their career. I have to ask, because after Justice Scalia said that one of her opinions cannot be taken seriously, she famously said, sticks and stones may break my bone bones. Thats probably not true. Did she find Justice Scalias barbs to be a little sharp . You know, she found them annoying and really capable of being ignored, you know. She was one of these people that understood that if you do not give back to the person thats trying to taunt you, you can really drive them crazy. And its she was gifted at it. I mean, she told me one time that she had figured out dealing with Difficult People she had four levels of dealing with them. And you know, you do this, then you try humor at this level, then you do this at this level. And i was like, oh, my god, i should take some notes because im never going to remember this. She was just so good with people. Excellent advice. Professor sullivan, she famously made chili and had these saturday sessions. Give us a sense of what it was like to have Justice Oconnors chili and discuss cases at the same time. Well, to give you a sense of how things worked so, i was the fifth year in. These guys were a little earlier. Later. Earlier. So, you know she came from the state court of appeals, so she didnt have a lot of experience either in federal law or constitutional law. And we were hearing we listen to me. Wasnt confirmed. We were the court was hearing 150 cases a year plenary. Now they hear about 75. So, we were doing the serve pool memos. She wanted every case to have a bench brief. And we were doing the opinions, majorities, dissents, denials. So, it was a punishing schedule, and maybe you remember, the computer was only up until midnight and 10 00 to 10 00 on weekends, and we were there every second that the computer was up. And so, what wed do is wed write our bench memos, then we were expected to read each others bench memos for maybe ten cases on friday night. Does this ring a bell . Jerks and wed get together on saturday morning and the justice would make her threealarm tacos or chili. Im a girl from new jersey. I did not know from tacos. I was just like, what is this . Anyway. Was it really spicy . It was good. I mean, you know, once you got past the, you know, for some people. It wasnt the tacos that were hot. It was the discussion. Yeah, well, all right. So, i was usually in the hot seat. The justice, in my experience, tended to hire someone whos a liberal, a real conservative. I mean, it didnt work every term like this, but i think it was somewhat intentional. And sort of two people in between. And i was clearly the liberal. And i shared my office with a conservative, who was the real conservative. And we had a wonderful time because we both smoked and drank too much, drank too much diet coke. We had tab. But anyway, so we got along famously, but i did get beaten up pretty thoroughly almost every saturday, and i was only 27 years old, which was i look back on the it and think, what were you thinking . You had some nerve. So i was a little insecure and but, those sessions, shed let us spar and didnt really enter into it until the end when she sort of gave you a sense of what she wanted. And she was really, really sincere about listening to a 27yearold tell her about the cases. We viewed our role not as telling her how to decide them but to make sure she could make the best decision possible. We were really htonest about wht the cases said. We were really honest about what the brief said. We might present our point of view, but our job was to protect her and make sure she made the best decision, which would include telling her how she had decided previous cases, if she had. Thats fascinating. That vision of her listening to the best arguments on both sides and deliberating and making up her mind is very powerful. Chancellor, can you give us a particular case and an example of how that played out and take us into her decisionmaking process . So, i guess id take a case that i, long after i clerked, which is planned parenthood versus kc, which is i just would say that she genuinely listened to everyone and she genuinely read everything. You had to give her everything you cited and everything you chose, you read that you chose not to cite. And marked with the pages that so, these huge book cards shed roll in with when you were preparing both for argument and then later with an opinion. Planned parenthood v. Kc, i talked with her a lot about. That was 1992. And the clerks were very sharply divided, as maybe youll hear later. And i guess id say she was able to when she had to struggle between her belief and the rule of law and her intuitions from her own background and experience were the hardest cases from her, and id say that was about the hardest. Professor hamilton, we all want to hear about kc, and that was obviously such a defining case for her. Can you shed any insights on that or any other reproductive rights cases . Well, i think i would compare to kc the hodgekin case, which was our term, and its the one case where Justice Oconnor would have voted to invalidate an abortion regulation. And the year i was clerking was one of those years when there conservative cabal of law clerks that snuck around and thought they were deciding all the cases for the justices, and there was a lot of fighting over this case and a lot of unhappiness that Justice Oconnor was going to go the way of saying, you couldnt say that two parents both have to give consent for a teenager to be able to get an abortion. But she was just a stalwart. She didnt really care what was going on in the halls. Mmhmm. She did call me in one time and ask me about it. And i said, well, im going to be honest with you, im not being invited to these meetings. There arent any women at these meetings. And she did not like that. So, in the end, she just did what she wanted to do, and we agreed it was by far the best oral argument of the term. Absolutely fabulous oral argument, her kind of argument, where the litigator for the reproductive rights project was saying things like, well, the answer to that question is on page 152 in the second paragraph. Oh, and the answer to that ones on 845. And you could just see her going, check, check, youre right, okay. So, it was an amazing year, but it is the only year that shes voted that way. Wow. Professor sullivan, there were two aspects of kc that were so distinctive to Justice Oconnor, her concern about the spousal notification provision, which she felt was a paternalistic violation of gender equality, and the undue burden test, which was so quintessentially central to her jurisprudence. Can you cast light either on those or on reproductive rights cases that you had during your term . We did not have reproductive rights cases my term and we also didnt have the unpleasantness, because all our death cases were held for a case, and the death cases tend to bring out, when youre asked to stay an execution, it tends to bring out just the really visceral feelings of the clerks, and it can get really ugly. So, our year was pretty benign. We had some reasonably important cases. We had an affirmative action case, where she weighed in on whether officiaffirmative actio whether it should apply when youre advantaging africanamericans. Tell us about that. Well, that was very difficult, and she really struggled. But one thing about the justice people talk about her discipline and her work ethic, but what people dont realize is how incredibly bright she was. You really dont it always amazes me. And i think its because her character was such, she made it look easy, but here she is, brandnew. Shes deciding these abortion cases a couple years ago in. Were wheeling in like tenfoottall stacks of books, right . And shes doing that between exercise class at 8 00 a. M. And going out with john dancing at 7 00. I mean, i dont i really literally dont know how she did it, but its in part because shes an incredibly quick study as well as a hard worker, and she was decisive, you know. She gave it her best shot and then did not look in the rearview mirror. That decisiveness is so striking. She had a pillow at one point in her chambers that said, maybe an error but never in doubt. And she heard the best arguments on both sides but then made up her mind and didnt look back. And yet, at the same time, she was such a model she is such a model of thoughtful moderation, of balancing competing interests in the madisonian spirit, in a way that seems so rare and precious today. How can you reconcile those two features, the balancing moderation and the decisiveness . And if you can give us some specific examples, that would be great. Well, first of all, she was a commonlaw judge, and thats hard for people today to understand in a polarized era where people are playing to get their books, their cases in the textbooks, rather she wanted to decide things on the facts and the messy facts. And shed seen as a politician, as a trial judge, shed seen how messy the facts are. And then the second thing just to say is that she was often in doubt. She knew they were hard cases. So, she wrestled really hard with them. But when she decided, she didnt look back because she had another case to deal with. And she really pushed me hard to say, the time to worry and the time to have doubts is before you make a decision, not afterwards, because if you wait until afterwards, then youre doing a disservice to the people in the next case. So, she was capable of doing really hard things and moving on cheerfully and positively, which was not by nature in my upbringing. But a good lesson to me. A commonlaw judge, thats a resident phrase. Professor hamilton, what did it mean for Justice Oconnor to be a commonlaw judge . What consideration did move her . Did she balance competing features . And again, give us specific examples. So you know, she was really an incrementalist in a lot of ways. And she was too humble to think that she could decide an issue for all time with one case. And she was very, very respectful of the case in controversy requirement. And i really didnt come to truly appreciate that seriously until i started comparing her approach with her dear friend Justice Scalia. And you know, for Justice Scalia, it was kind of zeus handing the truth down from on high, right . And it was supposed to be the truth for the next 20 to 30 years, which has kind of turned into the courts way of operating, you know. If they decide a case, theyre just not going to take it for a very long time. She was more willing to say, this is the four corners of this case. Heres how i would decide this case, and i am not going to pretend i know whats the next case. So, in that way, i just found her to be just deeply fair and deeply concerned about the case in front of her, not the horizon and not, you know, how she was going to go down in history. You know, i think its been unfair that shes sometimes been characterized as being the swing vote or ive heard some characterize her as, you know, looking both ways to see where the power was and then wanting to be the fifth vote. That couldnt be farther from the truth. She had a sense like a beacon. She knew where she wanted to land. She was going to land there. And if nobody else agreed with her on the court, well then, okay, but the way she operated, she often got agreement. Thats a fascinating observation, that she was the swing vote just by virtue of the fact that she happened to be in the center, but if it had been a different balance, she would have had the same approach. Oh, theres no and she would say later over the years that she had never changed, including when she had gone in the courts of appeals, that the court itself had shifted right and it became increasingly hard to remember what it was really like to be a republican or the right wing. She really no longer identified with that end of the political spectrum. Many justices have said that in public interviews. Justice stevens said he had never changed, but the court shifted right. And Justice Ginsburg also said she has not changed but felt the court shifted. And yet, professor sullivan, Justice Oconnors unique common law constitutionalism was distinctively consistent. She was absolutely approaching cases at the same way at the beginning and at the end, and it seems striking in its distincti distinctiveness. Theres not a single justice on the court that takes that approach today. So give us an insight into where that approach came from in her background and how it played out when you were clerking for her. Yeah, her incrementalism and her distaste for footnotes. Ah. Dont even think about putting a footnote in an opinion. Why not . Well, i think she thought people were hiding stuff in there. I know she thought Justice Brennan was. She thought he put like easter eggs in there so that three cases from now he could look back and say, oh, yes, in a footnote, we said x or y. And our year was the year that he did that . Well, we were challenged to not have a footnote for the whole term. Oh, geez. And i think we made it. And it was for the reason you gave. It was a fear that if she hadnt read it and didnt understand all its implications, she didnt want it there. And as to where her incrementalism comes from, i think part of it is just her personality. But also part of it was her deep experience. She had experienced legislature, she had experienced two levels of courts of appeal i mean, two levels of judging. So, she understood that the world is a messy place, right . These issues are not black and white, right . And Justice Scalia could hold forth with this worldencompassing view, but she knew that actually the devils in the details. And she also had a large measures of humility. When i interviewed with her, though, one question she asked that ill never forget was, she said, you know, these cases are so hard. They come up, and almost every single one, you could go either way. Theyre so difficult. And then she said, is there one case where you thought we really got it wrong, that its just unconscionable . And of course, i picked a case where she was in the majority wow. I wasnt prepared for the question. Whatd you pick . I picked a portionality case where a guy got they said it was okay for a guy to get life in prison for three bounced checks. And i said, i understood that its hard, you know, different people make different judgments about sentences and its hard to draw lines, but we may not be able to tell whats a just sentence, but we can definitely tell whats an unjust sentence. And again, my 27yearold, there i am telling the justice what i think, you know . I still cant believe she hired me, honestly. I was really obnoxious. But insufferable, maybe. And thats one thing i really admire about her. She consistently hired people who disagreed with her and listened to us until you always knew when shutter came down. It came down pretty but she listened to me for far longer than i would have. I mean, certainly. And i look back on it and i think, god, what patience she had and what a commitment to good decisionmaking, because she definitely wanted to hear from contrary positions. And what a powerful definition of judicial humility, the willingness to listen to people who disagree with you. A very memorable example. I think she spoke about how her background in arizona politics led her to compromise and she famously would have the republicans and democrats over to her house and make chili for them and listen to both sides. Do you think that that influenced her approach . You know, there wasnt a lot of lobbying among the justices. And i guess i was earlier, but i didnt spend a lot of time with other clerks in other chambers. And i think she liked that. So, there wasnt a lot of log rolling that we saw. Which i know you know, but unlike most institutions in washington, the justices interacted it through written opinions circulated to the other justices. So, it was the equivalent of an email message that everybody had to be copied on. And so, i dont think that part of the legislative process is what translated to what i experienced. What i experienced was her just understanding that law is not a theoretical jurisprudence exercise. It comes out of a very challenging political process in which human beings that are not perfect try and figure out solutions. And so, she was respectful of the constitution and the balance between the states and the federal government, but she was very realistic that the individual actors in state legislatures, in the courts, in among lawyers, were a mixed bag. That pragmatism and understanding of the strengths and limitations of human beings and of institutions was widely praised, and some have argued that she showed the virtues of having people with political backgrounds on a bench. She was the only one during her service to have actually held elective office. Marci, do you agree or disagree . Oh, i completely agree. The fact that she had Held Elected Office and had been in a state Legislature Led her to have respect for legislators that most of the other justices did not have. I would look at i mean, the most important case of our term, although no one in the building understood this at the time, was Employment Division versus smith, which was the peyote religious case. Which you wrote about as a scholar. Amazing. Tell us the story. Yeah. It became an obsession, one might say. But she you know, she would have decided that case by saying, okay, youre right, im going to adopt strict scrutiny under the free exercise clause, but hey, oregon, i agree with you that if a drug counselor uses illegal drugs, even if its in a religious service, they dont get out from under the criminal law that forbids the use of illegal drugs. And so, she had on7this, like common sense approach to lawmakers were to be respected for understanding the need to be practical and pragmatic, and she had no time for the idealists. And so, you know, nobody really gave i think the word was egghead. Egghead, right. Well, yeah. I mean, when i told her that i was going into teaching same when i told her i was going into teaching, she immediately called the u. S. Attorney of philadelphia and said, marcis making a mistake, and you should call her and hire her right now. Wow. I was like, um, how are maternity benefits there . And i had to go to the interview. There was no not going to that interview. She said, youre going to the interview and youre going to give both concepts an idea, you know, fair weight. Im like, i did sign a contract with cardoso law school. And i went. Then i had to explain to her why i was still going into teaching. And the only explanation she accepted is i said, Justice Oconnor, im 30. Ive got to have my children. And she goes, okay. Well, then she said, but maybe just put it all off. Take a few years, have your kids. And i thought my husband was going to kill her. No, shes just been gone for a year, get to work she did think some of us should be academics. She just had very strong she thought i should be a partner in a law firm. Dahlia youll hear from later on, thought he should have been she had a lot of opinions about these things. You should have listened. I should have. That advice to take a few years and have kids and come back, of course, was her path, and then she came back and became the most trailblazing judge in American History as the first woman on the court. But during the time that all of you were there, she was the only woman on the court. Its remarkable to remember, but Justice Ginsburg didnt, of course, get there until 93. What was it like for you to clerk for someone who was the only woman on the court and did those dynamics ever arise . That is funny. Everybody knew her name. Like, if you said you were you know, most of the general public cannot name the justices. Now rbg they can name. But everybody knew Justice Oconnor. I was terrified. I walked in and i just was so scared. It didnt feel like she was the only woman because shes such a normal person. I didnt you know, its not that you dont think of her as a woman. She wore a lot of perfume and lots of suits, and you know, she wore skirts and stuff, but it didnt feel maybe because she was comfortable. I was five years in. But she was a woman who really could talk to men. Men were very comfortable with her. Justice powell loved her. Shed wander in in his hush puppies and say, does sandra have a little time for me . That was the only schmoozing that went on. But she was completely comfortable in a mans world, and it never felt to me like, oh, shes a woman. She just got down to it. She worked as hard or harder than all of them. She was smart or smarter than all of them. And she got her stuff done. What was amazing about her was how disciplined she was and what a clear vision she had for what would make her happy, right . There was always an exercise component. There was a day of very hard work, hopefully with clerks that she liked, because she really did mentor us. And then she went out and she and john seemed to have a wonderful time. I have to say. I mean, they seemed to go out in washington. We were reading about her in the paper all the time. Remember john riggins . When he said, loosen up, sandy baby . Yeah, well, he sent her a dozen roses with a little sorry, love riggo. That was up in the office. The justice also had a very funny sense of humor. Yeah, i took those roses home to my wife. Did you . Yeah, so. I would just tell you so, i was a man who worked for her, and my wife worked and we had our first child in the middle of the clerkship. And it was a real blessing to work for somebody who understood that, because she was demanding, but she virtually adopted our kid. And you know, she went to his college graduation. So, she was somebody who understood two people in a marriage both having professional lives and careers and needing to not lower the standards of what she expected of either one of them but that the job of a boss was to be aware of both of them and their whole unusual family situation. And i think thats why, just she hired all kinds of people. She was the first justice to hire people with disabilities. She really hired a diverse array of clerks, not just idealogically. More clerks of color than almost anyone. And i think its because of her background as understanding of something to contribute. She was also very generous. I had a child and i wasnt married. This was 21 years ago. You know, in our circles it was not very common. You can believe that the justice is the last person i called. Her response was, oh, good. Youve gotta have more than one because you will spoil them. And then i was just so christmas arrived and theres a knock on the door and theres the justice and mr. Oconnor all dressed up with a Christmas Present for danny. Then she called him her grand clerk for years and was incredibly generous. Thats why her clerks had to be enormously loyal, because she did work us pretty hard. But she was also just enormously gracious as a person. She was very mothering. I mean, ive always did you get set up . She set up people on blind date glz gdates. No, no, no. I called her my law mom. In my professional career, i was so blessed to have clerked for judge edward becker. Then i got to clerk for my law mom. She just was very caring. In a way that you werent going to see in other chambers. Not your can a path she set out for you, which i appreciated. Until you deviated. Yeah. But she was also great at saying, yes, you must exercise and you must go do other things. She taught us that being a lawyer is not sitting in a dark corner 24 7. So when i interviewed with one of the big new york law firms after clerking for her in a moment of, maybe i did make the wrong decision, i talked to someone associated who had never seen his Young Children who were pictured in the daylight. I thought, you know, Justice Oconnor would not permit that. You would have seen your kid in the daylight. Thats just who she was. She was just she had family values. She believed in fun. She believed in making us do things when we were too tired and we ended up appreciating it. She fed us on the weekends. I dont think theres any other clerkship like it. Wow. In the spirit of Justice Oconnor, me end this segment on time. We will reconvene in a moment. For helping us appreciate the judicious humanity of Justice Oconnor, please thank our panelists. [ applause ] welcome for part two. You heard part one. Your colleagues were so superb. This was so quick that i didnt have a chance to ask you which terms you clerked for. Quickly tell us. 2002, 2003. Wonder. 04. 94. Great. We heard about Justice Oconnors years in the 80s. You heard the amazing discussion. 94 was the next decade. Did she have a different approach . I dont think so. She pretty much knew how she was going to decide cases, not every single case, obviously, but weather her judicial craftsmanship didnt change. I think she profoundly believes in constitutional democracy. By that i mean, it is fundamentally the job of a judge not to be the law giver but rather to be the law interpreter. A large part of that is the difficult task of researching the precedents to make sure you are consistent with the democratic expectations. You pull it back into the constitutional banks if democratic fervor overflows. Your job is not to disrupt constitutional expectations but to be the safeguard within which democracy works. That basic framework of judicial craftsmanship i think she established very early on and articulates throughout her career. Certainly by the time i was there, which is 13 years in, it was pretty well settled for her. Thats a very interesting way to put it. She cared about structural restraints like famously federalism but in other cases was inclined to defer. You see it best in her speeches. The one that struck me a lot was a speech she gave about the liberator of latin america. She talked about how it is the role of the constitutional structure to give a flower to democracy. She took on some of the myth regarding the revolutionary zeal but tried to make the case that it was to establish constitutional order. I think those speeches really bespeak her philosophy rather than trying to define little nuggets here and there from opinions. Because shes a very cautious and incrementalist jurist. Again, given to the humility of the judge. But in her speeches, if she feels more free to articulate her vision. Wonderful. By 2000, shes been serving for two decades. Shes been joined by Justice Ginsburg. We heard her approach didnt change. Do you want to give a concrete example of a case and tell us if you think it was the same way as your colleagues on the Previous Panel described . Sure. I think by then, she had a large body of opinions that we could look to and get guidance from. By that point, it was pretty well established where she was on certain issues. But a case that really stood out to me was the case regarding the ten commandments. That was our term. The way she approached issues around religion and the establishment clause i think was very it was very telling when you look back to her upbringing and some of the experiences she had. She, i think as a young girl, had an experience of being in a church once where people went around and you had to profess your beliefs in a very open way. She shared that story. I think it sort of rubbed her the wrong way. She didnt like the intrusion on personal beliefs. So i think she was always sort of looking for how would it make others feel . How would it make that person in the room who maybe had different beliefs feel . So she would sometimes share her personal experience, not necessarily in the contempt of ta talking about the case but at the time when the cases were being discussed. I think it was always interesting how she was very mindful of the affect of the courts decisions on different people and whether they would feel included. Thats completely fascinating. She was famous for the reasonab reasonable observer test. Reasonableness and focusing on its affects on others. Was it introduced in that case . Well, it was i should say that i didnt have the pleasure of working on that opinion with her. It was my coclerk. I want to be clear for everyone. I think it was a really important case. I saw that she had a good understanding, i think a common understanding with Justice Breyer at that time. It was interesting to see sort of that relationship and how it had developed and the fact that they saw eye to eye on a lot of these issues. Justice breyer so appreciated her pragmatism and her willingness to find common ground. He often said how much he missed her. Were there cases where they worked together and could you describe that relationship . Well, i think what i recall about Justice Breyer was less the cases that they worked on but as other speakers have talked about, the court can be kind of a cold place. Theres not as much interaction among the justices as you might expect. I recall Justice Breyer as sort of an exception to that. I recall him coming down to chambers and they would talk. So i just recall that them sort of having i loved what a previous speaker said about Justice Oconnor putting a human face on the court. And i just i saw in her relationship with Justice Breyer a kind of similar interaction. Two people who enjoyed getting together and talking. Who knows, maybe it was about cases. Maybe it was an entirely different subject. It was wonderful to see their interaction off the bench as well. Wonderful. Is there a particular case that you remember that you want to tell us about working on . You know . I think one i would highlight and i would springboard off of something that was said in the first panel. I clerked during the 2002 2003 term when the affirmative action cases were decided. I think a distinction was made earlier about the justices approach to the law but from the point of view of society. I think there was a line. I wont get it exactly right. In the justices opinion that talked about the importance of paths to opportunity not just being open but appearing open. I think we heard on the first panel how it was on the one hand the justice always said, you know, a wise old man and a wise old woman will come to the same conclusion. But i think she did feel that it was important for the nation to see a court where women sat on the court and participated in it so that the path to opportunity there wasnt just open but it appeared to be open. Which i think was a central theme in those cases to her. So powerful. The theme of women serving together, of course, became quite powerful when Justice Ginsburg joined the court. You were there the year after Justice Ginsburg joined. What was it like to have the second woman for the first time . How did they get along at the very beginning . We talked about this. She was very clear that she did not mind being the first. Matter of fact, i thought she thought it was the time. But she did say it was pretty clone l lonely the first ten years. She very much appreciated Justice Ginsburg being there because of not only comradery but, frankly, it takes the pressure off of Justice Oconnor. A lot has been said about her being first and the like, thanks to evans book title. Shes first because shes good. Shes extraordinarily good. That fundamental competence came out in her jurisprudence. Consider what would have happened if the governor had not recommended his primary political challenger to president reagan. Right . She would likely have been running for governor, would likely probably would have won. Then from there, may well have been the first vicepresident ial female candidate. From there, of course, could have shortcircuited next female president ial candidate by a decade at least. Imagine how her greatness would have manifested itself but for this. She was destined to be first simply because shes that good. This happened to be the man fs tags h manifestation how she changed history. It could have taken a number of ways. What a powerful and important reminder of that other panel she could have taken. Justice ginsburg had said frequently when she joined Justice Oconnor was the best friend that any justice could have. She appreciated her thoughtfulness and support. And their shared experiences. How was it manifesting itself . How did Justice Oconnor view and value Justice Ginsburg . She valued her very much. I think they both respected one another greatly. They had a little bit of a competition over who would get out the first opinion. Theyre both pretty fast. Which was kind of fun. But Justice Oconnor i think respected her tremendously. It was just wonderful for us to be there and to see that. Thats remarkable. Justice ginsburg says in her book that Justice Oconnors advice was, just get the decision out as fast as you can so you dont get a boring assignment the next time around. I didnt realize they competed. I have to ask the obvious followup. Who won . My coclerk is sitting in the audience. I believe we won. Nice. Thumbs up. Im sure the competition continued. Congratulations to that. Thats a tough competition. Any insight on the Justice Ginsburg and Justice Oconnor relationship . Just to echo what my coclerks have said. One interesting thing about the year i clerked is that was the year the current that court reached a milestone very quietly. They had been together on the court longer without a personnel change than any other court in modern history. We as law clerks found out afterwarafte afterwards convened a special dinner. They gathered at the court. They invited Justice Thurgood marshalls witd dndow to attend quietly celebrated. It was a special time because you were there at the end of a court of justices who had been together longer than any other court in modern history. What a beautiful vision. They really that groupc cohered very well. You havent given us a specific case. Is there one you want to share . Yeah. We had a wealth of riches our term. We had the lopez case. We had the term limits case. We had the racial gerrymandering case. We had a blockbuster of a term. Wow. Without going into any specific cases, i do remember that the day after lopez came out and the Washington Post had an editorial, saying that it was about time that theres a reign in of congressional power and returning some meaning to article 1, section 8, jurisprudence. Larry tribe, great constitutional scholar was quoted in the New York Times saying this was one step too far. Theres a first case but this was too far. Congress was daring the court to affirm its structural role. We brought both to Justice Oconnor. She said larry tribe and the Washington Post . What did we do wrong . It was before fred ryan. Thats an amazing list. It reminds us how central her vision was in defining the court. Lopez and federalism. Term limits a s and structural limitations. The gerrymandering cases were defined by Justice Oconnors vision. Which is why so many called it during her long tenure the Oconnor Court. What was it like for her to be at the center of the Oconnor Court . She just did the work. She was so hard working and focused. And i dont think that she really cared for that. I think she just focused on each case and getting to the right decision in each case. She was so committed to that. And she was pragmatic and she was all of these things that we have heard today. But she didnt take herself too seriously at the same time. Which ties into that wonderful theme of humility that we have heard throughout. Did you have that experience as well, alison . Thats quite a humility to maintain when you literally are defining the law for the entire country. Yes. I recall a time one of the i think one of the Previous Panelists sort of referred to the justice as a cruise director. It was true. We had field trips and activities. I remember one time we were we had gone out. We were in a restaurant. A woman came up to the justice and said, has anybody ever told you that you look like the justice said, yes, ive been told that. The woman leaned in and said, are you her . She said, pretty much. Just her humility and working hard. I cannot ever, ever repay her for the lessons of quiet confidence and that there is no circumstance, no challenge, no task that you are not equal to if you are willing to do the work, if you are willing to work hard. I think her life exemplified that. I think perhaps as much as the cases that we have talked about, her Lasting Legacy is really the person that she was and the people that she helped us become as her law clerks. Wow. What an inspiring life lesson. The quiet confidence that if you work hard enough you can do whatever you set out to achieve. What life lessons did you learn from the character and example of Justice Oconnor . You know, let me start by going back before my time with Justice Oconnor. Then we will take it from there. Were all admittedly a product of our experiences. Justice oconnor brought a very special sensibility, if you will, coming as the first as a legislator and an expert practitioner in the art of legislation and politics to the court. She is by no means a disembodied head. She brings her experiences of wisdom and her judgment to that. Her influence, therefore, endures to this day. Last year, the big controversy was the decision, the gerrymandering case. The court after 16 years finally says that there is no standard in order to adjudicate an equal protection claim in nonpartisan gerrymandering. They draw on oconnor a good 20, 30 years before. That was her insight was driven almost primarily from her experience as a legislator and a political practitioner as opposed to a legal jurisprudence because once you admit that there is an equal protection claim, then the logical import is that there has to be some sort of approximation to one man, one vote. Some sort of approximation of proportionality. Her opinion says that assumption is upended because not a single state in the 50 states has any system of statewide partisan election. Everything is divided in the districts. So there is no such concept of democratic proportionality along partisan lines because our constitutional structure is not designed that way. Yet, you apply equal protection legalistic lens to it, the measure of one man and oneportis upened upended by the political system. That insight seems to me is an insight that is perfect for Justice Oconnor to come to and the court ultimately after 60 years to adopt. That is distinctively her an illustration not only of her wisdom and judgement but also of her experience and that understanding of constitutional democracy that i talked about earlier. So she taught me very straightforwardly not only through the jurisprudence but by her example that you dont run away from your past, from your experiences. You make the most out of your experiences and learn from them. The failure of learning from your experiences makes you who you are is the failure of your upbringing and failure of your character. I think that more than anything is the life lesson i take from my time with Justice Oconnor. Very powerful examples. Both of her remarkable influence decades after she came to that decision and the lesson you took from it about the importance of learning from experience. Im really eager for your life lessons as well. What did you take from this great womans example . I asked Justice Oconnor it was at the end of my clerkship. I asked her, justice, how did you do it with three small children and we all know your story . We had a nice conversation. She said, well, i didnt think about it. I just did it. She said, thats what you need to do. You just do it. Whatever you need to do, you just do it. She was so firm about that. But i think it reflects what we have heard a lot of today, that she was a doer always and didnt fret over tough decisions or challenges. Just took them on one by one. She always loved everything about life, whether it was going out to see a new art exhibit or i remember the first time i saw her in washington, i house sat for her. So i arrived in washington. I had only met her briefly during my interview, which happened at a Mexican Restaurant in a strip mall in phoenix, by the way. After she picked me up from the airport in phoenix. Took me to lunch. That was my where my interview happened. I arrived at her house in chevy chase. She was a little impatient because i was a little late. But i had driven from boston. I had an excuse. There was a lot of traffic. She said, were going to be late for the movies. I didnt know what movie she had planned. We went to see a documentary about mongolia. She talked throughout the movie about how she had just been there and what it was like to live in a yurt and she doesnt recommend goat milk. She was talking about the food and the people and she had a wonderful experience. She loved to learn from new and different people and to experience everything to the fullest. At the same time, she had such a balanced approach to everything. So i think thats just another example of the kind of life she always led and taught us to lead. Thats another amazing example. Have you found that her counsel and modelling of the principle just do it has affected you on a daily basis . Have you managed to live up to it . Absolutely. I try to. Just bill it. Absolutely. I want in our remaining six minutes to try to just give us a sense of what made her great. We have heard of her sterling personal characteristics, her discipline, her insistence on just doing it, her humility. We heard how she applied that on the bench with decisiveness but a willingness to listen to both sides. We have heard how that common law approach is unique and missed today. Why did all those qualities manifest themselves in this one remarkable woman . I guess whole articles, law review articles could be written trying to address that. I do think a lot of her greatness really sprang from her unique upbringing on the ranch. I think her lessons of selfreliance, of no excuses, of hard work but always within a context of humility and modesty. And when i clerked for her, i also became engaged to my husband. My parents came to visit. They shared with the justice how pleased they were that my husband had journeyed down to texas to talk with them before he proposed to me. The justice said, well, thats all well and good, but no one talked to me about that. So i got back to my desk and i called my then fiance. I said, im pretty sure she was kidding but i think you need to come down and make and talk with the justice. And he did. We have been married since then. I like that story because she i think it comes through today is her investment in peoples lives and particularly the lives of her law clerks. I remember being in chambers, one of the lessons of clerking for Justice Oconnor is if anything you wanted to be ahead in your work. You never knew when she would come down and stand by your desk and say, alison, so and so is visiting. They are interested in the Shakespeare Library. You used to study shakespeare. Would you take so and so down and give her a tour of the Shakespeare Library . That was not an unusual occurrence. She loved people and people loved her. Being in the chambers with her, seeing that her curiosity and her invest emergency in people and the selflessness. It was i think a very rare combination of assurance and confidence with humility and selflessness to me is one of the things that made her great. The definition of wellbeing and of how to lead a good life. Its very inspiring and very well put. Last thoughts about where Justice Oconnors personal and professional strength and greatness comes from . I think it comes from her backbone, clearly. Lets not be remiss that she had a tower of strength in john oconnor. John was steadfast. He was always there. Always supportive. Was never jealous of her extraordinary achievements but rather celebrated all of them. I never heard a cross word from either of them. Thats a great comfort. I didnt appreciate how important that is when i was 26 years old now that we are in families and have children, we understand what source of strength that is. You cant do it alone in this world. I frankly she could have done a lot. But i dont think she could have done as much without john, certainly with not having raised a beautiful and successful family she has and built up a family of clerks and an entire grateful nation without johns support. Very well said. [ applause ] thank you for acknowledging John Oconnors central role. The last word in this superb discussion is to you. Where did Justice Oconnors personal and professional greatness come from . Her upbringing, her intellect, her grit, her courage, her humility and her family. She loved her family, talked about them fondly. Not just her personal family but her clerk family. She talked fondly about her grand clerks and meeting their children and she wanted to know who you were maybe going to get engaged to. Did she approve of them . But she took a real interest in people and people loved her for that. Thats part of what made her great. For further illuminating and bringing to life the personal and professional greatness of Justice Sandra day oconnor, please thank our panelists. [ applause ] you are watching a special edition of American History tv. Tonight, we focus on franklin d. Roosevelt. With this month the 75th anniversary of his death. Starting at 8 00 p. M. Eastern, a film depicting scenes from his funeral and information about his successor harry truman. American history tv, now and over the weekend on cspan3. Every saturday night, American History tv takes you to College Classrooms around the country for lectures in history. Why do you know who lizzy borden is . The deepest cause where we will find the true meaning of the revolution was in this transformation that took place in the minds of the american people. We will talk about both of these sides of the story here. The tools, the techniques of slave owner power. We will talk about the tools and techniques of power that were practiced by enslaved people. Watch history professors lead discussions with their students on topics ranging from the American Revolution to september 11th. Lectures in history on cspan3 every saturday at 8 00 p. M. Eastern on American History tv and lectures in history is available as a podcast. Find it where you listen to podcasts. Next on American History tv, a look at the legacy and Historical Impact of sandra day oconnor, the first woman to serve on the u. S. Supreme court. We will hear from Justice Oconnors first law clerks and library of congress carla hayden. Good afternoon. Before we move to the third panel, the lasting