Retired Supreme Court Justice Sandra Day O'Connor told University of Montana law students Thursday she holds little hope that the nomination process for federal judges will become less contentious.
"There isn't anything that can be done until this nation decides it doesn't need that much controversy over anything," O'Connor said.
O'Connor was back in Montana this week for a special session of the 9th U.S. Circuit Court of Appeals held at UM's University Theatre. O'Connor joined 9th Circuit Judges Stephen R. Reinhardt, based in Los Angeles, and Sidney R. Thomas of Billings, who in 2009 was a finalist to replace Justice John Paul Stevens on the U.S. Supreme Court.
O'Connor, an enthusiastic fly-fisher, has made several trips to Montana, including sitting on a 9th Circuit panel in Billings last year, meeting with Mayor John Engen in 2007, and launching a UM law school lecture series and delivering the university's commencement address in the 1990s.
After the panel heard arguments in three cases Thursday, O'Connor, Reinhardt and Thomas took a few questions from students at the law school.
Prompted by Thomas, O'Connor used the opportunity to expound upon two of her favorite causes - advocating for appointed, not elected, judges, and for the return of civics to public school curricula.
"I agree that it's kind of boring," she said of the latter as a few students chuckled knowingly. Then she touted a free website - www.icivics.org - that's designed to make it far less so. (One of its games, Responsibility Launcher, asks participants "Have you ever wanted to knock some civic sense into someone?")
O'Connor also told students of her own experience in Arizona, which still elected its judges when she first sought to become one. To run for office, she said, "I had to raise money. Who gave me money? The very lawyers mostly likely to appear before me."
Once elected, O'Connor successfully pushed for a constitutional change mandating appointed judges - with the entire process open to the public - in Arizona.
"I hope someday that Montana will take that next step," said O'Connor, who in 2009 launched the O'Connor Judicial Selection Initiative at the Institute for the Advancement of the American Legal System at the University of Denver.
The judges also offered the law students some nuts-and-bolts advice.
"Know what you're talking about" in oral arguments, Reinhardt said, in a tone that indicated lawyers don't always do their homework.
Be alert to clues from a judge that his or her interest might lie in other aspects of the case than the points you're arguing, and be nimble enough to adjust your argument accordingly. "It's what the judges want to know that will decide the case," he said.
Both Reinhardt and O'Connor chimed in when Thomas advised another student to keep his briefs, well, brief.
Judges read 25 to 30 cases a week, Thomas said, including all of the briefs and memos. That makes for long and, too frequently, dull reading, the judges said.
"Be potent and write well," O'Connor added. "Don't load it up with a bunch of footnotes." Then she edited her own pithy advice: "Be succinct and powerful."
The judges heard arguments in three Montana cases. United States v. Bear involves methamphetamine on the Fort Belknap Reservation. Wallene and Amber Bear are appealing the denial of motions to suppress evidence in the case.
The judges questioned attorneys closely about a search of a car, which ostensibly involved a possible open beer can in alleged violation of tribal law. Police also searched a purse in the car. Was that justified? Could a purse, especially if it was sitting up, have held a can of beer?
"It certainly could in my purse," O'Connor volunteered.
Blair v. the Schwan Food Co., revolves around Steven Blair's claim that Schwan's shouldn't have fired him for paying an outside worker cash for helping to unload a Schwan's truck. Blair, of Billings, contends the practice was commonplace, and a district court found in favor of him in 2010.
Blair watched the proceedings from the audience Thursday, as did the children of Kathryn Liebrock-Josephs, a 45-year-old woman who died in the Gallatin County Jail while awaiting a court appearance in 2005. A decision in that case, Gallatin County v. USDC, is being appealed both in federal and state courts.