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Transcript: Former Justice Sandra Day O'Connor on 'FNS'
Written by Chris Wallace / Published May 20, 2007 / Fox News Sunday
"FOX NEWS SUNDAY" HOST CHRIS WALLACE: Even though Sandra Day O'Connor has retired from the Supreme Court, that doesn't mean the nation's first female justice is taking it easy.
She's in the process of putting together her own Web site to teach students about the court system and to try to answer critics she believes are going too far. We sat down with her late this week at the Supreme Court.
Justice O'Connor, welcome to "FOX News Sunday."
FORMER JUSTICE SANDRA DAY O'O'CONNOR: Thank you.
WALLACE: You say that one of the things that got you started thinking about this Web site were all of the partisan attacks on judges, all the talk about activist judges legislating from the court.
Why does that kind of talk disturb you?
O'CONNOR: It was a concern to me because I've lived a long time now. I'm a product of the last century, you know. And I do not remember a time when there were such a broad and widespread range of critics of judges.
Now, when I was a youngster I do remember seeing on the highway out by the Lazy B Ranch a big billboard saying, "Impeach Earl Warren," and that was in the years when there were some cases like Miranda and some criminal cases, and people got all excited.
But what we're seeing now is a more broadly based range of criticisms of the nation's courts, both state and federal, and we saw it in the last election.
Do you remember in South Dakota there was a proposal on their ballot to amend the state constitution? It was called Jail for Judges.
It was a proposition to, by constitutional amendment, remove judicial immunity from state judges and subject them to punishment by fine and/or jail for making an erroneous decision, and it would have affected jurors and witnesses as well.
And so these were symptomatic of what we were seeing across the country, and to such a degree that it seemed to me we should try to find out what was going on. What are the concerns, why are they concerned, what can we do about it?
WALLACE: But you certainly know that when courts, especially the Supreme Court, make decisions on such deeply felt issues that there's going to be criticism, even sharp criticism.
O'CONNOR: Absolutely. And by no means do I suggest that it's wrong to criticize courts for particular decisions. We will always have that.
Some of the issues that courts are dealing with end up being issues on which people can reasonably differ in the appropriate outcome. So it's understandable that there can be criticism, and our First Amendment gives every citizen the right to do that.
But when it goes further and when it is producing legislation to impeach judges for particular decisions that the legislators don't like, for example, that's a concern. That was not the constitutional scheme. Criticism is fine.
WALLACE: Let me follow up on that, because you say we must not allow criticism to cross over into intimidation.
O'CONNOR: Into sanctions and intimidation, that's right.
WALLACE: Do you see a real danger of that happening?
O'CONNOR: Well, I do, absolutely. And in the Congress of the United States, there were resolutions to impeach judges for the outcome of the Terri Schiavo case.
There were proposals for impeachment of any federal judge who ever would cite a foreign judgment in an opinion.
I mean, these are things that go beyond just saying some judge reached an erroneous decision. Removal from office is a kind of sanction, I think.
WALLACE: And a form of intimidation.
WALLACE: So what do you hope that this Web site, which I know you're still building — what will it accomplish?
O'CONNOR: Well, in many, if not most, high schools today, civics education is no longer required. And I don't know how long we can survive as a nation if we don't teach every generation how our government is structured and works.
I regard that as a very important thing for our public schools to teach. It's critical for every generation to learn it. You don't inherit that knowledge through the gene pool.
Indeed, when we got a Bill of Rights giving every citizen the right to due process of law, to freedom of speech, and freedom of religion and so on, the only way that can be enforced is to give courts the power to overturn actions by the legislative or executive branch that impinge on those freedoms. And that's how it has to be enforced.
So if you start imposing sanctions and punishment on judges for particular decisions within their jurisdiction, we have a problem.
WALLACE: But some of the critics would come back to you and say the reason we're critical, the reason we want to put these restrictions on, is because judges are overstepping their bounds.
O'CONNOR: Well, that's fine. They're free to say that. But to take a particular judge and try to impeach them for some decision, or take other sanctions of that nature, goes clearly against the constitutional structure. We don't do that.
What we're going to try to do is to create an interactive program that will be found on the Web site, on one's computer, and make it fun so that the student using it can play the role of judge and decide an actual issue, and then compare it with what might actually have happened.
I mean, there are going to be all kinds of ways to use this so that the learning process will be engaging and fun.
WALLACE: I have to ask you, do you surf the Net?
O'CONNOR: No. Seldom.
O'CONNOR: But young people do.
And I've watched my grandchildren. And I think they have more fun working with their computer than they do just reading a textbook. That's the point.
And I hope that we make this so interesting and so informative and engaging that a new generation is going to learn about how our courts work.
WALLACE: You left the court a little over a year ago. What do you miss about it?
O'CONNOR: Oh, well, it was interesting to be involved in the process of deciding issues of the day that came to the court. And it is a remarkable institution. It's a great institution.
WALLACE: Do you ever see a case coming up and wonder what are they going to do to a decision that you wrote some years ago?
O'CONNOR: Oh, yes, but that's idle speculation.
WALLACE: But I mean, do you sit there and go, "Gosh, you know, I kind of wrote the decision that's the law now?"
O'CONNOR: Oh, what I think doesn't matter. I'm not on the court anymore.
WALLACE: After you read a decision, just on a personal basis, do you ever sit there and think, "Well, they got that wrong?"
O'CONNOR: Well, I might, but I'm not going to say so.
WALLACE: But I mean, you still have to follow this, and you must have your opinion as to what the right way to apply the law is.
O'CONNOR: But it's not an opinion that I'm going to share.
WALLACE: Well, I didn't expect you to.
WALLACE: I am going to ask you this, though. Do you worry about the court chipping away or even reversing a woman's right to choose?
O'CONNOR: I'm not going to express a concern about anything that this court might do. I don't see that as my role as a retired justice. It just isn't.
I don't care what I feel about it personally, it's not — I think it would be quite inappropriate to express a view.
WALLACE: President Reagan's private diary has just been published, and in it, he has something to say about you. "July 6th, 1981, Nancy's birthday. Called Judge O'Connor in Arizona and told her she was my nominee for Supreme Court. Already the flak is starting and from my own supporters. Right-to-life people say she's pro- abortion. She declares abortion is personally repugnant to her. I think she'll make a good justice."
Does that sound like the Ronald Reagan you knew?
O'CONNOR: It does.
WALLACE: What stands out in your memories of former President Reagan?
O'CONNOR: That he was a marvelous leader. President Reagan had a manner about him that made people like and respect him.
He just spoke well, and he had a clear vision of the major things that he wanted to accomplish, and he focused on it, and he expressed his ideas well. And he was just a very effective president, I thought.
WALLACE: I want to go back to this question about attacks on judges, because I think this speaks to some issues that you may have to deal with in developing your Web site.
When one justice is replaced by another and suddenly the law of the land changes on an issue, can you understand why some people might come to think that the Supreme Court is less about principle than about politics?
O'CONNOR: That's the concern if stare decisis is disregarded. Obviously, that is a concern.
Our legal system is based on that of Great Britain. We just celebrated Jamestown's 400th birthday.
And from my perspective, one of the most important things the settlers of Jamestown did was to import with them the British system of common law.
And under the common law, if an appellate court decides an issue of law, then that's binding on the lower courts unless and until that appellate decision is modified or changed.
It's called stare decisis, and that's just an important concept under our legal system.
WALLACE: But what happens if that begins to go out the window, and as...
O'CONNOR: Well, we hope that it doesn't. We hope that most of us who've studied law have a respect for that basic principle.
WALLACE: So that the law doesn't change when the faces on the court change.
O'CONNOR: It shouldn't change just because the faces on the court have changed.
WALLACE: And to the degree it does, does that perhaps contribute to skepticism about the court?
O'CONNOR: Well, I guess it could, at a certain level.
WALLACE: Let's talk a little bit about Sandra Day O'Connor. While you have stepped down from the court, you have clearly not retired. And I know one of the things that you're doing is hearing appellate cases.
Do you ever worry about getting reversed by your former colleagues on the Supreme Court?
O'CONNOR: Well, I don't worry about it at all. If they think it needs reversing, let them do it.
WALLACE: And you wouldn't...
O'CONNOR: I easily could have made a mistake.
WALLACE: And you wouldn't sit there and think, "Those so-and- sos, I..."
O'CONNOR: Oh, no. Heaven's sakes, no.
WALLACE: You were also a member of the Iraq Study Group that proposed a plan for dealing with the war. And when the group, your group, issued a report, you said the following, "What we need to go forward in this very tough situation is a broad consensus in our country."
Are you disappointed that there has been no consensus and that, in fact, the divide is wider than ever?
O'CONNOR: It is a concern that, at the moment at least, we don't see a broad consensus on what to do. It would be helpful if we had a consensus.
It would make it easier to get financial support out of the Congress and other supplies and action, as needed. Obviously, it makes it easier if there is some kind of general consensus about what to do.
WALLACE: How's your husband doing?
O'CONNOR: Well, not as well as I would like.
WALLACE: I talked with Nancy Reagan once about her husband, and she said the toughest part of Alzheimer's is that you lose your shared memories.
O'CONNOR: That's right. It's very sad. And it's a disease that, as of now, has no cure. And it's a progressive condition. So it's sad to see it happen and progress with someone you love.
WALLACE: How long have you and Mr. O'Connor been married?
O'CONNOR: Fifty-four years, a long time.
WALLACE: So there are a lot of shared memories.
O'CONNOR: A lot of memories, yes.
WALLACE: Finally, you once told your brother that when you retire from the court, you become a nobody. Do you...
O'CONNOR: I don't remember that discussion.
WALLACE: You don't?
Well, you were quoted in the paper, so who knows?
O'CONNOR: All right.
WALLACE: Do you still feel that you have an important role to play?
O'CONNOR: If I can be part of the creation of a teaching tool to help teach the younger generation about the court system, I will feel I have made a very helpful contribution, frankly.
WALLACE: Justice O'Connor, we want to thank you so much for the interview and thank you so much for your service to our country.
O'CONNOR: Thank you. Thank you.
Sunday—we’ll get the latest on the battle over Trump’s cabinet picks and a preview the first orders of business for the 115th Congress from Senate Majority Leader Mitch McConnell. It’s a Fox News Sunday exclusive.