The Dwight D. Opperman Institute of Judicial Administration at NYU School of Law Issue Number 5 / Winter 2006–07 O’Connor Celebrates IJA and the Judiciary o celebrate the dedi- ecutive Co-Director, engaged cation and formal re- in a conversation on “The Im- naming of the Dwight portance of Judicial Indepen- D. Opperman Insti- dence,” attended by an au- Ttute of Judicial Administra- dience of four hundred Law tion, retired Justice Sandra faculty, students, and friends Day O’Connor of the Supreme of the Law School and IJA, Court of the United States vis- followed by a dinner honor- ited NYU School of Law on ing Board member Mr. Op- October 11, 2006. She and Os- perman for his long history car G. Chase, Russell D. Niles of unstinting service to the Professor of Law and IJA Ex- courts and generosity for ju- dicial education and recogni- tion programs throughout the In This Issue country. (For a profile of Mr. New Judges Seminar 2 Opperman and the Opper- Professor Oscar G. Chase and Justice Sandra Day O’Connor man Institute’s name change, IJA Summer Fellows 4 please refer to IJA Report No. urges, is under attack from the constitution,” said Jus- 3, which is available on the politicians and others who tice O’Connor, who favors the Special Tribute Section 5 IJA Web site). do not understand the role of more accurate description of Chinese Judges’ Program 6 A true independent spirit, courts in a free society. “a fair, impartial and inde- among her activities since Today, an atmosphere of pendent” judiciary. Workshop on retiring from the Supreme “angst about judges,” as Jus- In an op-ed published by Employment Law 7 Court, Justice O’Connor sits as tice O’Connor termed it, the Wall Street Journal on IJA Community News 9 visiting judge in the courts of seems to be encouraged by September 27, 2006, she appeals and a member of the the idea that judges should wrote, “An independent ju- Board of Directors 10 Baker-Hamilton Iraq Study be political, rather than serv- diciary does not mean, of 2006–07 Calendar 11 Group whose recommenda- ing as checks and balanc- course, that it is somehow im- tions the nation awaits. She es for the politically account- proper to criticize judicial de- Contact IJA 12 has decided to make her spe- able branches. Even the term cisions. To the contrary, it is a cial cause the promotion and “independent judiciary,” she healthy sign for a democracy Membership Form 13 protection of an independent says, has become negative- that the public is engaged IJA Membership 16 judiciary in the United States. ly loaded. “We use the term with the workings of the judi- Judicial independence, she independent because it’s in cial system.” During her conversation with Pro- norance about how our government dence. In Brown v. Board of Education, fessor Chase, Justice O’Connor listed works is the root of the problem. She for example, by deciding that “separate a number of features of the current cited an alarming statistic that only but equal” should not apply to public system that she felt impinged upon one-third of Americans are aware of education, the Court began a domino the independent nature of the judicial the judiciary branch. “No one knows effect that overturned laws promoting branch. Judicial elections were at the what we do,” she said. racial segregation. “It was an unbeliev- top of her list of threats to indepen- She seemed confident that a review able, necessary step, and trying to en- dence. Colorado has cut the terms of of the Court’s most historic cases would force it was hard,” she said. “But today, appellate judges in half so elections demonstrate the value of indepen- it’s history.” n and reshuffling occur more often to suit political groups’ agendas. Repeated at- tempts to dismantle Arizona’s method of judicial appointments, rather than 2006 Seminar for elections, often have been tried as well. “Our country can do better on judicial selection,” she said. New Appellate Judges Politically motivated limitations placed on the jurisdiction of courts have also become a dangerous trend with- in the past few years. Justice O’Connor referred to the Terry Schiavo case as a unique intervention by Congress and President Bush to take special mea- sures and force one hot-button case to the federal courts. Most disturbingly, however, she cited JAIL 4 Judges, the purposefully menac- ing name for a California-based interest group that placed on South Dakota’s November ballot an amendment that would eliminate judicial immunity and allow judges to be censured. Judges could even be subjected to jail time for making “wrong decisions.” Professor Chase asked what could Faculty and attendees of the New Appellate Judges Seminar be done about the threatened judicial branch, and how to combat some of n July 9-14, 2006 IJA hosted the Judges who attended the Seminar the support that has been garnered for New Appellate Judges Seminar, gave overall excellent evaluations of stripping away its equal standing with co-sponsored by NYU School of the program. In particular they high- the legislature and executive. Law and the Federal Judicial lighted the usefulness of the writ- “Bring back civics education,” said OCenter. The six-day conference, co- ten materials for future reference, the Justice O’Connor. She believes that ig- chaired by Professors Oscar G. Chase valuable opportunities to interact with and Samuel Estreicher, IJA Executive other judges, and the quality of the ex- Co-Directors, provided state and fed- perienced, practical-minded, and di- The 2007 eral judges with up to four years of verse faculty. experience on the appellate bench, in The Seminar opened with a recep- Brennan Lecture dialogue with a resident judicial and tion and dinner welcoming the judg- The Thirteenth Annual Brennan Lecture academic faculty, the opportunity to es. Keynote speaker Paul D. Clement, will be delivered by The Honorable explore the challenges inherent in judi- Solicitor General of the United States, Leah Ward Sears, Chief Justice of the cial decision-making and issues unique returned to IJA to deliver a keynote Supreme Court of Georgia, on February to appellate courts. The Seminar has address reviewing highlights of the Su- 22, 2007. All IJA members and alumni been held every years since 1956, and in preme Court’s 2005-2006 term. Previ- are invited to attend. recent years has been conducted with ous Solicitors General who have wel- the generous support of West Group comed the new judges to the Seminar and Cravath, Swaine & Moore. have included Theodore B. Olson, Ken- muid O’Scannlain (U.S. Court of Ap- peals for the Ninth Circuit), and Justice Save the Date! Bea Ann Smith (Court of Appeals of July 8–13, 2007 Texas for the Third District). The oral argument was followed by a discussion New Appellate Judges Seminar on appellate decision-making, moder- Judges with up to four years of ated by Professor Oscar G. Chase, with experience on the appellate bench Judge Rosemary Barkett (U.S. Court can apply to this Seminar. Please of Appeals for the Eleventh Circuit), visit www.law.nyu.edu/institutes/ Judge Marsha Berzon (U.S. Court of judicial/programs/2007/new to Appeals for the Ninth Circuit), Judge download the application materials. Harriet Lansing (Minnesota Court of Appeals), and Chief Justice Randall T. Shepard (Supreme Court of Indiana). neth W. Starr, and Walter E. Dellinger The rest of the program included a (all IJA Board members), Drew S. Days, number of substantive sessions, includ- Solicitor General Paul D. Clement and Seth P. Waxman. ing Criminal Law (District Judge John The New Judges Seminar faculty Gleeson of the Eastern District of New Law School) joined Judge O’Scannlain includes a lineup of lawyers, academ- York and NYU School of Law Professor in a lively discussion of the judge’s role ics, and distinguished judges, many Rachel Barkow), Developments in in interpreting legislation. of whom are themselves alumni of the State and Federal Administrative Law This year the judges attended the Seminar and members of IJA. (Cardozo Law School and Visiting Tony Award-winning production of The Seminar began on Monday with NYU School of Law Professor Michael Sweeney Todd on Broadway, including Gibson Dunn & Crutcher lawyers Mat- Herz), and the Craft of Judging, with a talkback with cast members after the thew D. McGill and Julian W. Poon ar- the entire judicial faculty. Professor show, and a special lunchtime Q&A guing Cunningham v. California (heard Timothy Terrell (Emory University appearance by leading actor Michael by the U.S. Supreme Court on October School of Law) returned for his popu- Cerveris. On Thursday night they went 11, 2006), to decide whether Califor- lar sessions on Opinion Writing, with to a festive dinner at the waterfront nia’s Determinate Sentencing Law, by commentary provided by Judges Water Club Restaurant. permitting judges to impose enhanced Barkett and Berzon. Judge Berzon and Commenting on the week’s events, sentences based on determination of Justice Ireland with Professor Chase Professor Estreicher said, “Every year facts not found by jury or admitted by and NYU School of Law Professors we have a tremendous turnout of the defendant, violates the Sixth and Burt Neuborne and Liam Murphy judges from around the country and Fourteenth Amendments. The panel conducted a dialogue on Theories of beyond, and we’re especially proud of judges, presided over by Chief Jus- Constitutional Interpretation. Judge of those alumni who return to join us tice Shirley S. Abrahamson (Supreme Lansing, Chief Justice Shepard, and as Seminar faculty.” Professor Chase Court of Wisconsin), included Judge Professor Chase presented a number added, “The Seminar’s best advertising Martha Craig Daughtrey (U.S.