Utah Bar Journal

When I retired from the Supreme Court I thought, well maybe for a couple of years anyway, there were a couple of goals that I could try to achieve during my retirement. The first goal was to try to redirect our national discussion about judges and courts into something a little more constructive than just hurling labels such as “activist” or “elitist” at those judges who have handed down some decision you might not agree with. I thought that was a fairly reasonable goal because we didn’t have any place to go but up on that discussion.

But what became clear early on to me, was that the only way to achieve any progress on the first goal was through a second one and that is to restore civics education in our nation’s schools. With nothing but these two modest goals in mind, I have to admit I thought retirement might give me a little break from work. Well that was naive. A few years in, I can tell you that I am now kind of exploring ways to retire from retirement. But I’ve also learned that there is a lot of work to be done, and I want to enlist everybody’s help, including yours. I’m going to focus on
those two topics of mine this morning: judicial independence and civics education, which is necessary to protect the first.

The independence of our judiciary was absolutely critical to the framers of our constitution. Two of the primary grievances that the colonists listed against King George in the Declaration of
Independence involved the absence of judicial independence in colonial America. The Declaration of Independence charged that the King had “obstructed the Administration of Justice, by refusing his Assent to Laws establishing Judiciary Powers” and he had “made Judges dependent on his will alone, for the tenure of their offices, and the amount and payment of their salaries,” said the Declaration.

Now, as a safeguard against those abuses, our Constitution was written to insulate the federal judiciary from political influences so that judges could apply the law fairly and without prejudice.
It did this by providing federal judges with lifetime tenure – well actually it says for good behavior – and a salary which can not be diminished during that term of office. Of course it hasn’t been increased either. That wasn’t a guarantee. At the Constitutional Convention, when a delegate there proposed that federal judges should be removed whenever the President and Congress saw fit, that proposal was shouted down by the other delegates. One elegate described that proposal as “weakening too much the ndependence of the Judges.” Another one said it was “fundamentally wrong to subject judges to so arbitrary an authority.” So we ended
up with the provisions we have in our national constitution that do protect federal judges.

Now the 50 states have followed different paths. They started, of course, like the federal government, with appointment by governors of states and a confirmation process of some kind,
often by the legislative branch. That’s how they started, but then along came President Andrew Jackson. There’s a new book out about him. I’ve refrained from reading it yet because he made
me pretty mad with what I’m about to tell you. He’s the one who went around telling states that they ought to elect their state judges, that we shouldn’t follow the federal model. The first
state he persuaded to do that was Georgia and a whole bunch of others followed suit. Today thirty-some states still have some form of election of state judges. Now that’s amazing when you consider we didn’t start out that way.

Arizona, I’m pleased to say, and Utah, I’m pleased to say, have adopted a so-called merit system for selection of most of their judges. Those systems have served our two states very well.

I’m talking today to a group of people, an audience, that already knows this history and you already know how critical it is to have an independent judiciary in the concept of the framework of our constitution. That notion has been one of our country’s greatest contributions to governance around the world. With the breakup of the Soviet Union and the establishment of 26
new nation states, we have the opportunity to help those new countries develop their own forms of government. And in each instance we stress the importance of a fair and independent judicial
branch. Not one of those countries has opted for the election of judges, I’m happy to say. In fact, we’re the only country in the world, as far as I know, that still elects so many of our judges.

But judicial independence is not immunity from criticism. Criticism of what judges are and what they do is perfectly fair. But there is a difference between criticism and ideological intimidation, and some of what we hear in the discussion really can be put in the latter category more often. The phrase “judicial independence” is tough to define, so it helps to have some examples. There’s no figure in Utah’s history that has tested the limits of judicial independence quite like the Federal District of Utah’s very first Chief Judge, Willis W. Ritter.

Now some of you may even have known Judge Ritter or practiced in court before him, and if you did then you probably have a strong opinion about him. So let me start by saying that I did
not know Judge Ritter, he passed away just as I was beginning my judicial career as a trial court judge in Arizona, so I do not mean to either praise or criticize him. I bring him up only as an example of somebody who tested our commitment to judicial independence, and he certainly did that.

In his third year on the bench in 1952, Judge Ritter’s courtroom did not resemble the beautiful facilities that you now have in Salt Lake City. He was on the second floor of an out-of-date building that had no air conditioning, and there were some ventilators directly behind the bench that ran down to a massive mail room on the ground floor, which had a loud and clunky freight elevator. Well one day when the mail room was particularly noisy, a testifying witness in Judge Ritter’s courtroom said he couldn’t hear anything because the courtroom, with all the mail room noise piping in, sounded like a bowling alley. Well, Judge Ritter ordered the Marshall of the court to arrest the offenders, and the Marshall returned with a postman who had two packages handcuffed to him, because he didn’t want to leave the packages unattended. Well the noise in the courtroom continued, and Judge Ritter continued sending the Marshall to arrest any mail carrier making noise or using the freight elevator. Within two hours Judge Ritter had 26 postal clerks, foremen, and supervisors arrested and sitting in the courtroom. Neither rain nor sleet nor snow can stop the mail, but on that fateful day a disgruntled federal judge did just that.

This is just one of various stories where it may be fair to conclude that Judge Ritter may have abused his authority as a judge, but did not commit a high crime or misdemeanor warranting impeachment. After giving a lecture to the people sitting in the courtroom who had been arrested, he released all of the postal workers. But the judge went on in this same way, stepping on toes for the better part of three decades on the bench. Now I should mention that
his somewhat defiant spirit may have helped him make some truly prophetic rulings, such as the case of Ex Parte Sullivan, in which he upheld a criminal suspect’s right to consult his
attorney during interrogation, and that ruling was more than a decade before the U.S. Supreme Court ruled in Gideon, Escobedo, or Miranda. As was often the case in his courtroom, his ruling
was overturned by the Tenth Circuit – twice – but only because it was ahead of its time. Because in time his ruling in that case proved to be prophetic. But just as sure as Judge Ritter was extremely intelligent, he was abrasive, and the longer he sat on the bench the stronger was the opposition to him.

As that opposition reached its apex, more than two decades after the mail room incident, the Utah Bar Association was presented with six resolutions in support of removing Judge Ritter from office. Now it was January, 1976, a few months away from our nation’s bicentennial celebration, and this Bar Association appealed to the same sentiment that had swayed our Founders 200 years earlier. While segments of the Bar were not especially fond of Judge Ritter, with good reason, the resolutions calling for his removal were overwhelmingly rejected by the state bar of Utah because of the importance of judicial independence.

Now Harold G. Christensen – who was the Utah Bar President at the time and not a political ally of Judge Ritter by any means – said with respect to those resolutions: “The issue before the Bar is not whether Ritter is a good judge. The issue is the independence of the judiciary. The resolutions are an unwarranted interference with the independence of the judiciary and probably unconstitutional.” Bar commissioner James B. Lee added, more poignantly, “Let’s
not make fools of ourselves.” Both Mr. Christensen and Mr. Lee were presented with lifetime achievement awards two years ago when this State Bar Association celebrated its 75th anniversary, and based on that small historical excerpt, they would have had my vote as well.

Now this Bar Association understood then, as I know it does now, that while Judge Ritter’s behavior may have been obnoxious, capricious, or even tyrannical at times, it does not compare to the oppression that could befall our citizens should we ever lose the check of an independent judiciary. It was the Founding Fathers’ judgment that the rogue judge poses far less risk to our system of government than any instrument we might otherwise wield to expeditiously remove him.

The reason why judicial independence is so important is because there has to be a place where being right is more important than being popular; where fairness triumphs over strength. That place, in our country, is in the courtroom. It can only survive so long as we keep out political influences. In order to dispense the law without prejudice, judges have to be assured they’re not going to be subject to retaliation by the other two branches of government for their judicial acts. In 1968, the year after the U.S. Supreme Court struck down the anti miscegenation laws in the case of Loving v. Virginia, there was a Gallup poll that showed that only 17% of white people responding in the region approved of interracial marriage. That’s a very small number, and it’s tough to imagine that judges, if they could be easily removed through political devices, would have issued that opinion striking down those statutes. I’m not sure what the Gallup polls in the South said about racial integration of the schools before the Supreme Court’s opinion in Brown v. Board of Education, but I suspect they were equally hostile to that idea as well.

Yet, our nation’s commitment to judicial independence is waning these days because we’re not educating our children about the role of our courts. According to the Annenberg Public Policy
Institute, two-thirds of Americans can name at least one, if not three, of the judges on the Fox TV show “American Idol,” but only one-in-eight Americans can identify our Chief Justice of the
United States. The worst statistic of all is that barely one-third of Americans can even name the three branches of government, much less say what they do. That’s really scary.

Now think for a moment about the implications of that kind of ignorance for the continuing validity of our nation. Two of the branches of government are democratically elected. In many
states, as I’ve already said, the third branch, the judiciary, is elected as well. I’m happy to count Utah, along with my home state of Arizona, among those that rely primarily on merit-selection for choosing our judges. I believe that the merit selection system is the best method for choosing qualified state judges and allowing them to apply the law evenhandedly.

But the reason we have so many states electing judges is that we are not teaching generations of young people what role the judiciary is supposed to play. They grow up viewing judges as
nothing more than politicians in robes, and I think that typically turns out to be a self-fulfilling prophecy. Judicial campaigns typically do little more than breed distrust of judges. Money is
funneled into so-called “information” for the voters about judicial candidates, often in the form of television advertisements. As one recent law review article explained,

Fewer than one in three TV ads in the 2004 State Supreme Court [election] races [in various states] focused on the traditional themes of qualifications, experience, and integrity. Far more often, those judicial TV campaign ads misrepresented the facts and tried to scare the voters. Complicated decisions were reduced to slogans and fealty to the law was subordinated to sound bites.

Worse yet, the most prominent donors of money to those judicial campaigns are the litigants and the lawyers who appear before the judges. Now you don’t have to be a constitutional law scholar to figure out there is something wrong with that. Just last month, the U.S. Supreme Court issued its opinion in a case called Caperton v. Massey Coal Company, that was a case in which a single campaign donor contributed more than $3 million to a state judicial campaign
in order to try to oust a sitting West Virginia Supreme Court Justice and elect a challenger. The donor in that case of the sum $3 million was the CEO of a company that was appealing a $50 million verdict against it in the state supreme court. It appeared that the campaign donation was a pretty good investment because the incumbent lost the election and the successful challenger in that race ultimately cast the deciding vote in favor of overturning the $50 million verdict against the donor company and its CEO.

Now the legal issue for the Supreme Court was tough, and the Supreme Court ruled five to four that under those circumstances the Fourteenth Amendment’s Due Process Clause required that
judge to recuse himself from the case, in as much as it involved such a substantial donor to his campaign. But the bigger issue is the distrust that judicial campaigns and cases like Caperton
breed in the minds of the citizens across the country.

All those advertising dollars are taking a toll in our country. Voters in states that elect judges are more cynical about the courts, they are more likely to believe that judges legislate from
the bench, and they are less likely to believe that judges are fair and impartial. That kind of distrust has the perverse effect of making voters more inclined to elect their judges rather than
go to an appointment process. If you don’t believe that judges can be fair and impartial, you might want to select judges by a process that you think will be most likely to result in a judge
who is partial to you and be unfair in your favor. I guess that’s the thinking, I don’t know. But people have to understand the role of an independent judiciary so they can properly uphold
judicial independence and ensure its accountability to the law of the land.

So what can be done about this growing distrust? You in this audience are among the people who can best combat misinformation. It’s true that many Americans do not understand our system of governance, or the importance of an independent, impartial judiciary. The solution is simple: We have to tell them. What I mean by “we” is all of us; everyone in this audience, including me. Many of you are lawyers, and as lawyers, you are leaders in your communities. You’re articulate, people will listen to you if you tell them what role judges should play, as long as you speak out clearly, loudly, and through the channels that your audience uses. I hope you will speak out: in private and in public, locally, and statewide. In schools, be part of that education process. Find ways to get groups of students together and put on programs that
are going to help them understand. Your voices need to be heard.

For my part, I’m working to address civics education through the internet. Let me just say first of all, that about one-half of the states in this country have stopped making civics, government, and American history requirements for high school. Think of it – half! We just can’t tolerate that. We have to return. The No Child Left Behind law has an unintended consequence in this regard. What we learned by testing our high school graduates against those of about 20 other Western nations, is that our high school grads score very low in math and science compared to those of other nations – very low. The President and Congress thought we ought to do something about it and what you do at the federal level is shovel out money, right? I mean, that’s the remedy for most everything. Money is going to schools for math and science education based on test scores. But the perverse effect that that’s had in many schools is that because the schools
are not eligible for any federal money for other subjects like civics and history – or even music or things like that – they stop teaching them and stop making them a requirement. So that’s
what’s going on and we have to stop it. For the most part in this country our schools are still governed by local school boards so it is possible to continue to have an influence and to make sure that your schools do not neglect those subjects.

I’ve used some people we’ve assembled at Georgetown University Law School and at Arizona State University in Arizona to develop a free, interactive, online civics curriculum called Our Courts.1 You heard about it in my introduction. And that website is up and running. It’s addressed to middle school students. Why? That was my choice because I think the middle school students have reached an age where the light bulb up here turns on. They start being interested in the world around them and wanting to learn things. They’re receptive and I think it’s the perfect time to get into this subject. So that’s what we’re trying to do. By the end of August we hope to have the two very interesting interactive games on the website. They will be used both in classrooms or at home. The website is very teacher friendly. The teacher doesn’t have to worry about a thing, just turn on the computer and follow the directions. It’s going to be good. It can stand alone or be used to supplement an existing curriculum. The interactive games that we’re putting on, we hope can be used by young people in their free time. We know that children tend to spend 40 hours a week using media of some kind; whether it’s computers, TV, video games, or music. That’s more time than they spend in school. That’s more time than they spend with their parents. If we can capture a little of that 40 hour time span to get them thinking and learning about government and civic engagement, I think it’s a big step in the right direction. So we’re trying to use the media that young people themselves opt to use by putting games on this program. I think it’s going to allow the student to do some interesting things. In the games the rule of law, in one of them, is just being developed, so with the outcome of each case, the world around them is going to change in some way, sometimes dramatically. That feature allows the student to see how the law, and their choices of how to use it, can have big impacts on the world around them.

Through games, online discussion, and social networking, the Our Courts website allows students to express themselves about relevant issues and to share ideas about worthwhile civics projects that can make a difference, and to tackle problems from the perspectives of different players in our government. I think this is a good tool to leverage the way things are done. And the new experts, who hold the key to this potential, are our youth, the youth of our nation. With this method the young people learn to be teachers themselves, and their parents – or grandparents in my case – turn out to be the students.

We have a big job to do to ensure that our children and grandchildren have the information and skills they need to use the tools of their generation wisely. We’re fortunate in the United States to have a stable and durable democratic government, but it shouldn’t be taken for granted. Because it is the citizens of this nation who have to preserve our system of government, and
in order to do that they have to understand what it’s all about. I hope that each one of you will help make sure that the citizens of Utah have that understanding.

Following Justice O’Connor’s remarks, she participated in a question/answer session with Frank Pignanelli. The following is a transcript of their chat.

Frank Pignanelli (FP): Well, Justice, thank you so much for coming. We’re honored to have you and you are to be congratulated. For the first time in the 60-odd years that the Utah State Bar has held a convention, this is the first time we’ve had anyone show up for a Saturday morning.

Justice O’Connor (JO): I was awfully impressed. Don’t tell me that.

FP: It won’t be like this next year, so thank you. As I expressed to you earlier, we sent out a broad range of questionnaires asking people about what they would like to ask of you. One of the most important, insightful questions, delving into the heart and soul of you and the court was this: Justice, do you Twitter?

JO: The short answer is no. See, I have a lot to learn too.

FP: Do you have an iPod?

JO: No.

FP: That answers that.

JO: Okay.

FP: We had a great deal of questions about what’s happening in the United States Senate right now with Judge Sotomayor, about the role of gender in everything and her experience. In your book you went to great lengths, really describing what Justice Thurgood
Marshall brought to the court and his experiences about the impact of gender. How did gender impact your deliberations and your decision making process?

JO: I can’t even answer that, I don’t know. But I think the main thing is that at least half of our citizens have two X chromosomes – they’re female. And I think it’s great for our citizens to be able to look at the important organizations of our government and see that women, as well as men, are part of it and making it work. We saw, where’s Christine Durham? Right over there. She’s Utah’s Chief Justice and she has done a fabulous job. She has earned
a fabulous reputation across this country and I’m sure that her presence on your Supreme Court has been important to all of you. To know that a woman, namely Chief Justice Christine Durham, is on that court. And it matters from the perspective of the citizens. I don’t think she probably decides cases any differently because she’s a woman than she would if she weren’t. I don’t think I did. But it matters to our citizens to see them there.

FP: Well, along that theme, my mother’s an Irish Catholic, and being an Irish Catholic, when I told her that I was going to have this big honor she cried. Then she said after 12 hours of labor and decades of disappointment, you’ve finally done something worthwhile.

JO: I don’t believe that statement at all. If I know your mom, she’s very proud of you.

FP: She’s a wonderful person.

JO: Yeah, okay.

FP: But this typifies a lot of questions and comments. One of the great questions we’ve had in this was how did you blend being a mother and having a legal profession? Who were your heroes and heroines that you looked up to to guide you?

JO: Well I didn’t have a lot when I grew up, I have to tell you. I grew up on a very remote cattle ranch down on the New Mexico/Arizona border, south of the Gila River and my companions as a youngster, until I was 10 years old, were my parents and the cowboys who lived on the ranch. And that was pretty much it. My mother never worked outside the home, and that was fine. There wasn’t any way to get any place to go to work. We all worked on the ranch, everybody did. My mother and I did along with everybody else and so I didn’t have role models. It was very funny, when it came time for me to finally go to school, my mother taught me to read early because she was a teacher by training. But they decided since I didn’t have any young people to play with or to be around that I should go away to school. I had grandparents living in El Paso Texas, so my grandmother said, fine, I’ll take care of her. So they packed me off to El Paso. I went to a little school called Miss Radford’s School for Girls and it was a funny little school. The headmistress was fearsome. She wore her hair pulled back in a bun. She wore pince-nez glasses, no makeup. She only wore shirtwaist dresses made out of men’s shirts-striped material, long sleeves, down to her ankles and she was just the
scariest person you ever saw in your life. She had me terrified.

Those were the years when we were in a big recession or depression. Remember the 30’s? Pretty bad. And we had a President named Franklin Delano Roosevelt. I don’t know about your experiences from those years but my father was not an admirer of Franklin Roosevelt, to put it mildly. And he didn’t believe in all of that government help. He thought we should take care of ourselves and the only person that he thought was worse than Franklin Roosevelt was his wife Eleanor. Well, anyway, Dr. Lucinda de Leftwich Templin, my principal at Radford decided to invite Eleanor Roosevelt to come to Radford to speak to us. And Eleanor Roosevelt came. I did not dare tell my parents. Oh my gosh! I didn’t know what to expect and I remember all of the little girls – we had one little boy at Radford School for Girls – his name was Sam Donaldson. Do you know Sam Donaldson? His mother sent him to Radford School for Girls.

FP: Explains a lot.

JO: Yeah, doesn’t it.

So we were all lined up out by the flagpole when Eleanor Roosevelt arrived. She was driven up in one of those kind of long black cars and she got out of the car and she was homely, I will say
that. But, I’d been prepared for the worst. And she had this shirtwaist dress, not unlike those that Dr. Lucinda Templin wore. It came down to her ankles and kind of high top black shoes and she had a slouch hat that covered half the head, you know, came down like that. And around her neck she wore the same thing that my grandmother had. You remember those
fox furs where the actual fox bit the tail of the fox and it was around your neck with the feet hanging? Oh! So there she was and she got out of the car and we were all around the flagpole.
She walked up and among us and she had charisma. Now how many people can you look back on that you’ve met that had real charisma. I’ll tell you a few that I’ve met in my life who did.
One was Nelson Mandella, and he had charisma. I’ll tell you, I’ve met him a couple of times and it was incredible. He walked among you and you knew there was someone special. Another
was the Dalai Lama. He’s an amazing person. And Eleanor Roosevelt had charisma, she really did. She walked among us and talked and I was very, very impressed. Now I didn’t dare tell my parents. I think it was some years before they knew that Eleanor had visited. But anyway, I didn’t have a lot of mentors, but I was impressed with Eleanor Roosevelt, among others.

FP: Thank you, that was great. As I mentioned to you earlier I had the opportunity to take a tour of the Supreme Court years ago and I was impressed by the basketball court which…

JO: The highest court in the land. It’s right over the courtroom.

FP: I was walking out and there was a sign that said the court is reserved every morning for Justice O’Connor’s aerobic class. Tell us a little bit about that.

JO: Oh well, I am a believer in getting a little exercise. You wouldn’t know it today, I’m old and creaky. But I really think that’s important to have a little exercise every day and so when I went to Washington the first thing I did when I got there – that was 1981 – was call the YWCA. I said do you have anybody you could send over to teach an exercise class at the U.S. Supreme Court, early every morning during the week. And they found a young woman who came and – she actually came three days a week not five, but I worked something else out on the other days and she stayed at the court 17 years teaching that class. I invited all the young women, law clerks, and employees at the court who wanted to join to come. I then included some of the women on capitol hill that included wives of a few of the congressmen. Then I thought uh-uh, that won’t work. So that class is still going on, believe it or not. Whenever I’m in Washington I’m up in that class. It was a good thing.

FP: I believe you’re the last Justice to have served in an elected position in a state legislature. In fact, you are a hero for many legislators and former legislators – there is life and respectability after serving in the state legislature.

JO: That’s right. You’re an example, aren’t you?

FP: Not of respectability, but a former legislator, yes. You may be the last one the way things are going. How did that work?

JO: Now, with our new nominee – it looks like she’ll be confirmed – her experience is impressive, both educationally and on the bench. But it means all nine justices will have been pulled off the U.S. Court of Appeals – all nine. When I went on the Court in 1981 Justice Rehnquist had been in my class in law school of all things, and he never served a day as a judge before going on the Supreme Court. But he was a fabulous justice and later chief justice. Lewis Powell from Virginia had never served a day as a judge and he also was just wonderful. And if you go back through history of justices on the court, a majority never were
judges first. So I think it’s probably good to have a little diversity on the court in terms, not only of gender, but also in terms of background. It was very funny because I think Bill Rehnquist
always felt a little bad that he had never had any experience at all sitting on the bench and so he decided, while he was a justice, that he would take a case in a federal district court,
a criminal case, and preside over it. And so he went down to Virginia and he sat as the trial judge in a case. And I don’t remember what the charge was against the defendant, but the
case went to trial and it was resolved and later there was an appeal. Wouldn’t you know, he was reversed on appeal and he never asked to go sit as a judge again.

FP: One of your causes has been the state courts and also state’s rights. You raise a good question about the impact of 21st century economics and dynamics and this push to nationalize everything and the concerns you have with that.

JO: Well, I do and I continue to have them but I’m not in a position to do anything about it now. But the framers of our national constitution, they thought what they had created was a national, a federal government of limited powers. That was the idea, right? And it took a long time for cases to come through the Supreme Court and it took a few wars and Congress started enacting legislation, not unlike legislation you’d expect from a state legislature. And as these issues came to the courts, the courts sustained, as within the powers of Congress, just about anything they wanted to enact under a liberal interpretation of the Commerce Clause powers. I certainly think the original notion of a federal government of limited powers has been severely challenged through the years and perhaps it’s a dead issue but we had a few cases while I was still on the court where we debated some of these issues
and made a tiny bit of headway, but that may not be long lasting.

FP: This is our attempt maybe to hit the home run – any insights, anything you can tell us about Gore v. Bush?

JO: Oh dear! Don’t make that the last question, I don’t want to end on a sour note.

FP: We’ve got a bunch of those.

JO: That was a difficult time for the Supreme Court. The election, the national election for President, had been very close. What many of our citizens fail to remember when we have a presidential election, is that we’re not having a direct election of the voters – we’re not. When the constitution was written we had a nation that was comprised of 13 colonies and they were kind of spread out. We didn’t have any telephones, telegraph, computers. We didn’t have any means of instant communication at all. And the framers realized that in holding an election for President and Vice President, that it was going to be hard to get the information from one state to the others so that we’d know how each state
voted. They decided it would be better to put up a system of each state electing electors and the electors could then assemble in one central place and the electors would be instructed by
their states how to vote in the presidential election and would cast their votes. The states can say it’s an all-or-nothing deal – we have 13 electors and all 13 are going to have to vote the
same way – I mean whoever carries the majority gets all 13. Or the states can say no, we’ll divide it just as they are, in fact, divided. Well, that is still our system today and people forget
that. And we came down to the election in the Bush/Gore election and in the state of Florida, we know that the popular vote was really, really close. Ultimately that translated itself into how the electoral college votes would come out for Florida and there were claims by some that Florida had violated federal law in how they were handling the counting of ballots in Florida. Florida, in some of the counties, had put in some kind of voting machines where you punch and it, if you vote properly, it punches a hole in the ballot, through the ballot, to cast your vote. And if you don’t punch it as you should, then it results in a hanging chad. Remember that? Well anyway, they didn’t have uniform rules in Florida about how to count these and to tell the volunteers who were working at the polls how they should operate so they could apply similar standards in all the polling places. So the Supreme Court took one of the cases, the petitions, from Florida and the whole court was unanimous in saying no, Florida hadn’t been following the rules and they sent it back to the Supreme Court of the state and we didn’t hear anything further from Florida. But things continued and there continued to be disputes and a second petition was filed, which the court accepted by a divided vote this time, then decided it and the
result was divided. But again, it concluded at the end of the day that Florida hadn’t been following the federal rules. The point of argument there was that it was then very close to the date when the new president was supposed to be sworn in and we still didn’t know. And so the Supreme Court said no, we don’t think they’ve been doing it right and we’re not sending it back
to Florida. This is the deal – as far as we can see, this was the result and that’s the end of the line. Well, that produced a great furor as you might imagine, and we’re still hearing it. You probably are here too. I mean it goes on and on. People thought that the Supreme Court chose the President. That’s what I hear when I go around. And I just don’t think that’s right. The Supreme Court decided Florida wasn’t following the federal law in the presidential election and the result was that President Bush was declared elected President.

Now there were three separate recounts of the four critical counties in Florida, the votes, after that – three – conducted by different groups of the press, because the ballots were all saved,
so they could go through and count them. And in none of the recounts would the result have changed, so you know, I don’t worry about it anymore. I think, okay, if there were something
wrong we would have heard about it. The press would have told us, right? So I’m going to let sleeping dogs lie.

FP: That’s good advice.

The questions that we’ve received the most, more than anything else, are about the children’s books.

JO: Oh, okay.

FP: Could you talk about the children’s books that you’ve written and you’re writing?

JO: Well, I have two children’s books that I’ve written. One is about my favorite little horse, we named him Chico. He was found in a wild horse herd and he was trained for riding and he was small, so we used the word Chico, which is small in Spanish. And he was a great little horse. He had what we call cow sense. He knew what to do. If you were on Chico in a roundup and you were trying to head some calf or cow off, that horse knew and he’d help you do it. I mean, you’d be trying to guide, but he knew already what he was supposed to do and he would do it. He was a great little horse and the best thing about him was that if I ever fell off he’d stop and wait for me to get back on. Now none of the other horses would do that so he was a real winner in my book and I wrote a little book about Chico.

Recently I have a second children’s book out about the wild animal pets that I had at the Lazy B. When my mother married my father and moved out to the Lazy B ranch we had no indoor
plumbing, no running water, no electricity, no nothing. The cowboys slept on the spring porch around the four room adobe house and that was it. And how she managed to handle diapers
and all that stuff when I arrived, I can’t imagine. Boy, I would have hated that. But they got along somehow.

She didn’t want any animals in the house. She thought she had enough problems as it was and she didn’t need any pets in the house. So I wanted… horses are great but they’re not cuddly
and so I thought, you know, it would be nice to have a cuddly little pet. We had to try various little things that I caught. We had a lot of wild animals around and I caught a little cottontail rabbit and they are so cute. You’ve seen those. The jackrabbits are ugly but the cottontails are adorable. And I tried making a pet out of the cottontail but he wasn’t interested. I mean he would
eat the lettuce and the carrots, but it didn’t have much interest in paying attention to a caregiver. So I eventually put him back where I found him.

I found a desert tortoise. They are incredible animals. They live to be over 100 years old. If you touch them they pull their legs and head in so you just have a big, hard shell. So that’s not too
cuddly either. We had a walled in front yard that actually had some green grass in it and the tortoise liked that. We put the tortoise out in the yard and when my mother wasn’t paying any
attention I’d bring it in the house. It was smart, it learned where the icebox was. We didn’t have a refrigerator because we didn’t have electricity, but you’d buy a big chunk of ice to put in the
icebox and keep things cold until you went back to town. So he learned where the icebox was and he’d clatter over and wait there for you to get something out for him to eat. This was a
very smart animal. Unfortunately, they hibernate for a couple of months in the winter. Did you know that? They go underground and we were getting close to winter and so I decided we’d better put the tortoise back. So that was the end of tortoise.

Then there was a little, young coyote that was caught in a trap. We didn’t know who set the trap, but we released it and I took that thing home and we tried to treat its leg and make a pet out of the coyote. The cowboys said uh-uh, you can’t do that. Bad idea, you can’t. That’s what my parents said too. But you know, well we’re going to try, so we tried. You can’t make a pet out of a coyote.

Then my father found on the roundup a little baby bobcat and he couldn’t see any evidence of a parent and the cat was crying and looked like it needed help. He put the thing in his jacket
pocket and brought it home and that night, pulled it out and we fed it milk with an eyedropper and it got to be huge. That was a pretty good pet, it was all right. It was a lot like a big cat.

FP: You raised a bobcat?

JO: Yeah! It was a pretty good pet. So that’s part of the story but then after three or four years the bobcat disappeared and my father said, well he’s found another bobcat. We called him Bob, it was very imaginative. So Bob disappeared and we had to go to town one day. We went once a week for groceries. The grocer said, Sandra come out back, I want to show you something. He took me out back and showed me this little white mutt dog
with a long curly tail and it smiled. How many of you have seen dogs that smile? Some of them do, honestly! Some do. And they know when it’s appropriate to smile and they show their teeth,
you know, the real thing. And this was a cute little dog and he said if your parents will agree you can take the dog. So I had to persuade my mother, who didn’t want pets in the house, and
she said, well, if it doesn’t come in the house, I guess you can. So we took the dog home and her name was Susie. So the little book is called Finding Susie, and Susie turned out to be the
perfect pet at the end of the day. So that’s the book. Now I’m not doing any more children’s books. I am working on one though for adults, young in spirit people. We’re working on that and
that’s kind of the end.

FP: Well, we look forward to that. Justice O’Connor, on behalf of the Utah State Bar and millions of Americans, thank you so much for your service and for coming today.

Sandra Day O'Connor was nominated as an Associate Justice of the Supreme Court by President Reagan and took her seat September 25, 1981. Justice O'Connor retired from the Supreme Court on January 31, 2006.