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O’Connor talks ‘Out of Order’

Justice Sonia M. Sotomayor isn’t the only justice on the media circuit to promote a book. Retired Justice Sandra Day O’Connor went on Comedy Central’s “The Daily Show with Jon Stewart” yesterday to talk about her new book, “Out of Order.” She wrote the book, she said, to tell ” some of the stories about how the Court works, and giving people a glimpse into some things.”

When Stewart asked the justice whether she sometimes wishes she were still on the Court to weigh in on some of its major cases, she said no.

“When they have a terribly difficult decision, I usually say to myself: Thank goodness I don’t have to be there deciding that!” O’Connor said.

O’Connor said she sometimes has lunch with the current justices at the Court.

“How hard is it to get consensus on the order for lunch?” Steward asked, earning a hearty laugh from the Court’s first female justice.

“You’re just ordering for yourself, so it’s pretty easy,” O’Connor said.

“So there was never any power in being the swing justice for, let’s say, we’re going to get fajitas?” Stewart deadpanned.

“For lunch? No,” O’Connor said.

See the full interview on Comedy Central’s website.

10 justices hear oral arguments

Spotted at the U.S. Supreme Court Wednesday morning: Retired Justice Sandra Day O’Connor.

O’Connor sat in the courtroom as the Court’s nine sitting justices took up the issue of whether the use of a drug sniffing dog outside of a house is a search for Fourth Amendment purposes. O’Connor frequently drops by her former stomping grounds when she is in Washington.

O’Connor’s got jokes

When retired Justice Sandra Day O’Connor cracks political jokes, people laugh.

That was the case last weekend at an exclusive black-tie gathering of Washington’s elite when O’Connor drew the biggest laugh of the night, according to attendees.

At the Alfalfa Club dinner, which drew President Barack Obama, Chief Justice John G. Roberts, Jr. and Justice Anthony Kennedy among others, O’Connor quipped about GOP presidential candidates Mitt Romney and Newt Gingrich, noting: “one is a practicing polygamist, and he’s not even the Mormon,” the Huffington Post reports.

O’Connor to lawyers and judges: ‘Wake up’ and fight court funding cuts

Retired Supreme Court Justice Sandra Day O’Connor said the nation’s courts are in crisis because of funding cuts. And what’s worse, legal practitioners don’t seem to be paying attention.

“No one, not even lawyers and judges, understands what a financial bind the courts are in,” O’Connor told the ABA Journal after speaking on a panel at the ABA Annual Meeting this past weekend in Toronto.

What’s more, O’Connor said, “[t]hey’re not ready for the political fights” that may be needed to return funding to the country’s judicial systems to adequate levels. “We have to wake them up.”

O’Connor urged legal practitioners  and judges to educate legislators on the funding problems, urging lawmakers on both sides of the aisle to act. “We need advocacy on this issue by lawyers at all levels,” she said, suggesting that business leaders be brought in as well because legislators “will listen to what they say.”

“Make sure to drop in some sob stories,” O’Connor suggested.

And as a last resort: “If things get really bad, buy some beer and Mexican food, and have them all over.”

O’Connor’s advocacy raising ethical questions (access required)

Since stepping down from the U.S. Supreme Court in 2006, retired Justice Sandra Day O’Connor has traveled the nation advocating for the end of state judicial elections. She has also continued to work, sitting on federal appellate courts, hearing dozens of cases and handing down opinions.

But some legal ethics experts say she should not be doing both.

University of Pittsburgh law school ethics expert Arthur Hellman told the Associated Press’ Mark Sherman that O’Connor should hang up her judge’s robe if she “wants to engage in this level of political or politically related activity.”

The criticism comes at a time that justices are facing increasing scrutiny over the perception of political bias. Justices Antonin Scalia and Clarence Thomas have been criticized for their attendance at events hosted by conservative political financiers Charles and David Koch.  Justice Elena Kagan has been urged by some to recuse herself from consideration of the constitutional challenge to the health care law based on her work in the Obama administration as solicitor general.

The criticism on O’Connor comes less than a year after she apologized for the use of her voice on 50,000 robocalls delivered  to Nevada voters in the middle of the night urging support of a ballot measure to end state judicial elections. O’Connor said she did not authorize the use of her voice on calls, but she did appear in a television ad supporting the ballot initiative.

Even D.C. Circuit Judge Laurence Silberman joined the criticsm over O’Connor’s activities. “[T]he issue of whether state court judges should be chosen or ratified by election or solely by appointment is a political issue on which serving federal judges should not publicly advocate, one way or the other,” Silberman said.

O’Connor and Souter talk diversity and cameras in the Court, get laughs (access required)

During a recent discussion in Boston, retired Justices Sandra Day O’Connor and David Souter chatted with veteran Supreme Court journalist Linda Greenhouse about how the public image of judges – including Supreme Court justices – has changed over the years.

Speaking at the John F. Kennedy Presidential Library and Museum in an event broadcast on C-SPAN, O’Connor noted that the biggest change on the Supreme Court is the new diversity on the bench.

She said she was struck by it while watching a recent oral argument.

“I sat there, and I looked up at the bench,” O’Connor said. “Nine positions. And it was absolutely incredible: on the far right was a woman. Boom, boom, boom,” she said, her hand motioning to describe the justice’s positions, “was a woman. On the far left was a woman. Three of them! Now, think of it! It was incredible!”

O’Connor said the changes were a long time coming.

“You know it took 191 years to get the first” woman on the Court, she said to laughter from the crowd. “And we’re moving a little more rapidly now. I was pretty impressed.”

Souter, noting the genders of the three panelists, got the biggest laugh when he added: “Well, heck – look at this group here. I’m here for diversity!”

Greenhouse noted that most Americans don’t get a chance to see the diversity on the Supreme Court from themselves. Cameras are barred from the Court, so only those who travel to Washington to see live oral arguments see the image of the full Court.

“Here we are on C-SPAN, and C-SPAN has a dog in that fight,” Greenhouse said, noting the network’s long advocacy in favor of allowing cameras at the Court.

Souter, who once famously said cameras would be allowed in the Court “over my dead body,” hasn’t changed his mind.

“[That’s] a fight which I hope C-Span loses,” Souter said.

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Stevens, O’Connor and Souter making the case for SCOTUS term limits? (access required)

The New York Times‘ Linda Greenhouse wonders if Justice John Paul Stevens’ recent post-retirement appearances – and the chords they are striking – make the case for term limits on the nation’s highest court.

In her latest “Opinionator” essay, Greenhouse clarifies that she doesn’t believe Stevens should have left the bench earlier than he did. Rather, she points out the value of the retired justice as someone who, like Stevens, can become a “public truth-teller” – and even a judicial “rock star.”

“Not so long ago, it was typical for justices to remain on the court until they died (the exit strategy of 49 of the 103 justices not currently serving) or became enfeebled by age (recall the explanation that Justice Thurgood Marshall gave when he retired in 1991 at the age of 83: ‘I’m old and falling apart,’)” Greenhouse wrote. “I can’t remember when the country was blessed by the presence of three retired justices who can get themselves from one place to another unaided.”

Indeed Stevens, 90, as well as retired Justices Sandra Day O’Connor, 80, and David Souter, 71, have all been active, visible and vocal since leaving the bench. O’Connor and Souter even continue to work, sitting on lower courts and hearing appellate cases.

Stevens most recently made headlines over his candid comments regarding the death penalty. During the course of his tenure on the Court, his stance on the issue changed: while his early rulings upheld the death penalty over Eight Amendment challenges, he later wrote – often in dissents and statements in capital cases – that he believed the way the system was administered is unconstitutionally cruel and unusual.

Stevens even recently penned a book review of David Garland’s Peculiar Institution: America’s Death Penalty in an Age of Abolition in the New York Review of Books essay, noting that two years ago Stevens called capital punishment “the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes.” He also appeared on CBS’s “60 Minutes” last weekend, showing he has no intention of slowing down.

O’Connor robocall gaffe raises ethical questions (access required)

The robocall snafu that caused thousands of Nevada residents to be awakened in the middle of the night with a message from retired Supreme Court Justice Sandra Day O’Connor has opened a bigger can of worms.

Not only was the justice’s recorded message not intended to ring the phones of Nevadans at 1 a.m. Monday. O’Connor says she never intended for the message to be used at all in automated phone messages, blogs The National Law Journal‘s Tony Mauro.

“I did not authorize the use of my recorded statement as part of automated telephone calls to Nevada residents, and I regret that the statement was used in this way,” O’Connor said yesterday in a statement issued by the Court. “In addition, I view my efforts in support of judicial reform as consistent with the Code of Conduct for U.S. Judges.”

The statement was released after a National Review Online piece questioned whether O’Connor’s advocacy for a ballot measure that would create a merit-based state judicial selection system violated ethics rules, since the retired justice still sits on federal courts. The Code of Conduct for United States Judges prevents federal judges from participating in political activities.

In the NRO piece, Ed Whelan notes that O’Connor cast the deciding vote Tuesday in Gonzalez v. Arizona, a 9th Circuit ruling striking down an Arizona law requiring voters to present identification and proof of citizenship before voting. “That’s just one illustration why the ethics rules bar her from engaging in political-campaign activity while still sitting as a federal judge,” Whelan wrote. Mauro notes that Whelan is also president of the D.C.-based Ethics and Public Policy Center.

While Whelan asserts that O’Connor’s participation may violate ethics rules, DePaul University College of Law Prof. Jeffrey Shaman tells Mauro that the Code of Conduct does not apply to Supreme Court justices, although justices have said they adhere to the code anyway.

“The idea was that Supreme Court justices are so visible that any misconduct could be taken care of through the political process,” Shaman said.

In the middle of the night, justice calls (access required)

It’s 1 a.m., and the phone rings. Who do you expect it to be?

For many Nevada residents, the voice on the other end of that middle-of-the-night call was retired Supreme Court Justice Sandra Day O’Connor.

A glitch caused thousands of Nevadans’s phones to ring in the wee early hours with a robocall message from O’Connor urging them to vote for a measure that would create a merit system for selecting judges as opposed to judicial elections, reports the Las Vegas Review-Journal. O’Connor has been a vocal opponent of elected judicial systems.

The public relations company in charge of the phone campaign said the error was both human- and computer-based: instead of being programmed to dial homes at 1 p.m., the computer was set to dial residents at 1 a.m.

The next afternoon the residents got another phone call – this time apologizing for the late-night interruption. Still, the company in charge of the campaign was fired for the mishap.

[Hat tip: ABA Journal]