BOULDER – When it comes to living history lessons, sometimes what you do is more important than what you say. Thus it was on Sept. 17, Constitution Day, when almost a thousand students and visitors, including many members of the Colorado legal community, gathered at the University Memorial Center in Boulder to hear former U.S. Supreme Court Justice Sandra Day O’Connor as part of the third annual John Paul Stevens Lecture hosted by the CU law school.
O’Connor often drew applause or laughter as she answered questions from the audience and from other students watching streaming video at several college campuses throughout the state. But journalists looking for the controversy that is the daily fare of today’s media would have been disappointed. Her habit of speaking judiciously — ingrained during a quarter century on the nation’s highest tribunal — readily parried efforts by questioners to elicit comments on hot cases or her erstwhile colleagues on the high court.
In addition, moderator Melissa Hart, a CU law professor and director of the Byron R. White Center for the Study of American Constitutional Law, reminded the audience that O’Connor still sits occasionally as a U.S. Court of Appeals judge and thus can’t comment on anything that might come before such a body.
But O’Connor’s historical importance was obvious just by looking at the panel, which also included Ruth McGregor, former Chief Justice of the Arizona Supreme Court and former Colorado Supreme Court Justice Rebecca Love Kourlis, now executive director of the University of Denver’s Institute for the Advancement of the American Legal System. Simply put, all four of the speakers on the stage at a major university observance of Constitution Day were women.
It would have been basically impossible to have assembled such a stellar distaff legal lineup back in 1981, when President Ronald Reagan appointed O’Connor as the first woman justice in the nearly 200-year history of the Supreme Court. Back then, the legal profession still reflected the gender bias that, as Hart recalled, caused at least 40 law firms to refuse to even interview O’Connor for a position as an attorney after she graduated from Stanford law school in 1952 — simply because she was a woman. She finally found employment as a deputy county attorney in San Mateo, Calif., after she offered to work for no salary and without an office, sharing space with a secretary. Eventually, her supervisors decided her competence outweighed her gender and started paying her a salary.
The progress women have made in the law since O’Connor’s historic appointment 32 years ago may not be perfect, but it is undeniable. Women now make up 31.1 percent of all lawyers and there are more women in the legal pipeline, with women making up about 47 percent of U.S. law students in 2010. Women now make up 47 percent of first- and second-year associates according to a National Association of Women Lawyers survey of the nation’s 200 largest law firms. Men still dominate at the equity partnership level, however, where only 15 percent of the lawyers are women.
If O’Connor was short on controversy, she was long on humor. Asked how she felt about being described as a “swing vote” on the court, she mutely waved her arm back and forth to mimic a swing, before answering: “How would you like to be described as a ‘swing vote?’”
Asked “Who was your favorite [justice] to work with on the court,” she diplomatically answered “Oh, you can’t answer that. They were all excellent.”
Asked whether the court is becoming more political, she tartly replied: “No, I don’t see any big change.”
O’Connor again drew laughter by recalling her introduction to former Justice Byron White, who was an All-American halfback for the CU Buffaloes before playing for the National Football League’s Pittsburgh Pirates (now Steelers) and Detroit Lions.
Carefully avoiding calling White by the nickname “Whizzer,” which he hated, she recalled when she first shook hands with the powerful athlete he squeezed her hand “until I thought I was going to die.”
“After that, I learned to shake his hand like this,” she said to widespread laughter, as she wrapped her right hand over the outside of her left hand, the best technique to avoid White’s vise-like grip.
O’Connor did offer some substantive opinions, most notably when she decried the lack of a Western justice on the current U.S. Supreme Court.
“It’s helpful to have westerners at the national level,” she said. “Take water. You have too much of it in Colorado right now,” she said, as the crowd laughed at her reference to the floods which have battered Boulder and other parts of the state.
“In the East, there is no problem of water shortage, no problem of distributing water. In the West, there are all kinds of agreements, lawsuits, pacts, etc. to regulate water. In the past, we’ve had one or more westerners on the court who played a critical role on such issues. It worries me a lot if we have a Supreme Court without any westerner on it with water law experience,” she said.
All three jurists chimed in when an audience member asked, “What are the threats to the independence of the judiciary?”
“All three of us share concerns about electing judges at the state level. When you have popular election of judges, you have a substantial worry that campaign contributions may influence decisions that come before them. So, how to ensure fair and impartial decision- making? I don’t think you do it by selecting them in partisan elections,” O’Connor said.
McGregor agreed, noting that she had helped nudge her state to a merit selection system similar to the one used by Colorado.
“We want candidates to be ethical and qualified. We opened our system so that that when somebody applies for a judicial position, we put their application on the Supreme Court web site,” McGregor said.
Kourlis noted that Colorado, like Arizona, uses a non-partisan commission to screen qualified candidates and recommend three nominees to the governor. After a judge is appointed, he or she then stands for a retention election after at least two years in office. A fourth vital component of the Colorado system is its extensive efforts to assess and improve judicial performance.
“Colorado is lucky. A lot of states still elect judges in knock-down, drag-out elections. With huge amounts of money raised and spent, there is at least a perfection of affiliation or obligation when a judge takes office. We’ve had anecdotes in other states where litigants would ask attorneys whether lawyers on the other side had contributed to campaign of the judge sitting on the bench — and ask their own attorneys ‘How much did you donate?’”
After Hart noted that federal district and appellate courts now have 92 vacancies, O’Connor called that record “shocking” and said, “I hope we can nudge that nomination and confirmation process forward.”
Asked about efforts to encourage civility among lawyers, O’Connor said, “Judges can’t enforce civility but can certainly encourage it.”
McGregor added that some judicial opinions “get very personal,” even sometimes snipping at fellow justices. “If we as judges don’t show civility it is hard to demand it of others,” she said.
O’Connor and McGregor differed in responding to a question from Hart about the possibility of televising U.S. Supreme Court hearings. McGregor said televised trials had worked well in Arizona.
O’Connor scoffed at the notion, saying, “I don’t know that the case for cameras in the courtrooms is great. Every word written or spoken in that courtroom is available. If you can read, you can what is going on.”
O’Connor also decried the lack of civics education in many schools today. In her own school days, “believe me, we learned civics. In today’s world, many school districts don’t teach civics at all. This is a mistake. We must teach young people how government works.” she said.
Asked about the dueling doctrines of “originalism” versus “living constitution,” O’Connor said, “‘I look at what it [the Constitution] has to say and what a hundred years of interpretation on the court has to say. I don’t go out looking for some wild new opinion — you are bound by precedent, by preceding opinion. I think we have an amazing constitution and it has lasted well and served our nation well. It has been a privilege to help interpret some of the unresolved issues of our constitution.”
As Hart adjourned the session, the crowd gave all four speakers a standing ovation. Filing out, no one seemed disappointed at the low-key nature of most of the reminiscences. Instead, audience members just felt privileged to have watched history in the flesh.
Bob Ewegen ended a 45-year career in journalism when he retired after 36 years at The Denver Post in 2008. Now a certified paralegal, he is director of research and communications at the Ewegen Law Firm headed by his daughter, attorney Misty Ewegen.