U.S. Supreme Court: The Highest Court of the Land - Backgrounder Prior to Confirmation Hearing of John G. Roberts

1:00 P.M. EDT

Real Audio of Briefing

MR. BAILY: Welcome to the Foreign Press Center for today's briefing. I know many of your colleagues and many of you were paying attention down to events in the South and in New Orleans. But, as you know, next week will begin the hearings for the nomination of Judge Roberts to the Supreme Court. That is the first time in 11 years that we've had a nomination to the Court. And so I know for many of the foreign correspondents here it is a somewhat new subject. For that reason we've invited today Professor Melvin Urofsky of Virginia Commonwealth University and a noted scholar on the Court to come and talk to you and give you some background on the Court and put this process in some perspective.

Professor Urofsky has written extensively -- I think you all have a copy of his biography -- and he has also talked extensively about the Court and the U.S. Constitution overseas. So I think he has a good sense of some of the kinds of questions you and your readers might be interested in, in looking at the Court in this process. He'll give a few opening comments and then take your questions.

Just also to reiterate, this briefing is on the record. I know we called it a backgrounder, more in terms of the background to the news than the ground rules. So Professor Urofsky, thank you for coming.

PROFESSOR UROFSKY: You can identify me as a reliable source or something like that. (Laughter.) When I travel overseas one of the things that always amazes me is very often I talk to groups of judges or I meet with them, how jealous they are of the United States Supreme Court. There's no question that, as far as constitutional courts go, the United States Supreme Court is the most powerful constitutional court in just about any country. It has powers that -- I just came back. I was a Fulbright down in Australia this past spring, and I was having dinner with one of the judges on the court there and he said, "If we tried to do what your judges do, they'd take us out and lynch us."

But this has become -- part of it -- and it goes back a long time. This is not something new. Alexis de Tocqueville in the 1830s famously commented that in the United States every major issue eventually becomes a judicial question. We don't go to the streets. We don't riot. We don't have palace coups; we litigate. We have more lawyers per square foot and per head than any other country in the world. There is a famous saying, it's not always true, but, "I'll take it to the Supreme Court." And each year some 7,000 cases are appealed to the Supreme Court, of which the Court chooses roughly about 80 to actually hear. So an appointment to this Court is an important appointment.

The next thing to keep in mind is that, although all of you will be following the political "footballing," I predict now that Roberts will easily win confirmation. The opponents are going to say he said this, he said that, he said lots of other things. There isn't a single thing that he has said that has not already been said by a sitting member of this Court. He is not out of the mainstream. He is exactly the type of conservative that one would expect a conservative President to nominate.

Having said that, let me point out something that I doubt this President may have thought about. A true conservative is also one who is institutionally bound by the rules of the Supreme Court and especially its reliance on precedent. If there is a single rule that a conservative tries to go by it's stare decisis, that is the importance of precedence.

And one of the most controversial cases that was decided was the Casey abortion case in which three conservatives got up there and said, "We feel bound by Roe. It's accepted law." Now I know that the conservative right is hoping that Justice Roberts will be the fifth vote to overturn Roe. I doubt if that's going to happen. More importantly I think that what is lost there is something that we have seen happen in this country in this Court several times within the last 50-60 years. People are nominated to the court on one agenda and the Court goes off on another agenda.

In the 1930s, those of you who are familiar with our history know that there was a big fight between Franklin Roosevelt and his New Deal and conservatives on the Court, and so he appoints a whole group of economic liberals to the Court. And within two years the issue for which they had been appointed to the court, i.e., giving the Federal Government more power to deal with the economy is a non-issue. The last important case we heard on this was 1942. What took its place? Civil Rights -- an issue that we had no litmus test on any of these judges.

And in 1954, when Brown vs. Board of Education was handed down, a majority of the judges on the Court were Franklin Roosevelt appointees. That had not been an issue at that time. In the 1980s when people were trying to get a sense of, you know, how do you stand on Civil Rights -- that issue is over. No one is going to overturn Brown. Affirmative action is a current issue, but it's not going to be a long-term issue because in less than 20 years white males are going to be a distinct minority in this country.

On the census figures a few years ago, a new category made its first appearance under race. It was called "Mixed." If you want to know what that means the answer is Tiger Woods, someone who blends two races, not necessarily white and black. We have a large Latino population. We have a large Oriental population in this country and they're intermarrying, which is what immigrants in this country have always done in the past, except those immigrants who are all from Europe. Now we're having immigrants from all over intermarry. So that's not going to be an issue, at least not a big issue.

What's going to be the issues: Things that are not even on the horizon now in many instances. For those of you who are young enough to still want children, scientists are promising that you can now genetically choose not only sex, intelligence, athletic ability, hair color, body size, whatever you want. Who's going to regulate that? Should the government be regulating that? If the government doesn't -- now we're now allowing the patenting of certain genes. I think patenting life. Is that going to continue?

We have an aging population in this country and that aging cohort are baby boomers who have always been in control of what they want to do. They want to control how they die. When they get old enough and sick enough and painful enough, they don't want to have to wait for the Grim Reaper to come. They want to take the little black pill and they want to take it when they want and we have a case coming up in the Supreme Court next year on that.

So while the politics will be fun, no one I think is going to really be asking the question, i.e., Mr. Roberts, or Judge Roberts as he should be called, what about technology, what about patenting, what about end-of-life decisions, what about cloning, what about privacy? A case just started in a district court this past week. The Federal Bureau of Investigation under the U.S.A. Patriot Act issued a national security letter. Now a national security letter does not have to go through judicial review. It doesn't meet the requirements of the Fourth Amendment. It doesn't have to have probable cause. It was a letter to a library in Connecticut asking them to turn over the Internet usage records of one of their patrons, and forbidding them to inform the patron that this request had been made.

Now, this is one of the first cases arising under the Patriot Act, but it's not just that. It's the whole beginning of how technology is going to affect the right of privacy. Now a couple of years ago the Supreme Court handed down a decision where the police could not use heat-seeking technology to determine whether someone was growing marijuana on the other side of a garden wall, because this was a violation of the Fourth Amendment.

Terrorism and its effects have upset the balance that existed between privacy and police work that existed for a long time in this country. And no one exactly knows where that's going. Judge Roberts, when confirmed, because I have no doubt in my mind that he will be, is going to have more of those cases than cases on abortion or on affirmative action. The one thing that we do know about any judge who can expect to sit 10 to 15 years, and most of them do, is that the cases they will hear by the middle of their term are nothing like the cases they heard at the beginning of their term.

So, what we really need to know about Judge Roberts is not what his politics are, who he worked for, whether 25 years ago he wrote a memorandum for Ronald Reagan that said X, Y or Z, but rather how does he view technology and privacy. How does he view traditional interpretations of the First and Fourth Amendment against the requirements for security in a world that now is threatened by suicide bombers, plane hijackers, what have you. No one knows the answer. I don't even think Judge Roberts knows the answer. But if he is a true conservative, what he'll do is go in there and try to use the rules of free speech of search and seizure and try to apply them creatively. My favorite conservative on the Court was and always has been Louis Brandeis.

So that's pretty much all I'll say and I think, you know, the best thing for me to do is just answer any specific questions you may have. Are there any rules on the questions, like do they have to identify themselves?

MR. BAILEY: Yes, if you would state your name and your organization. I should also say that we have colleagues joining us from New York via digital video conference.

PROFESSOR UROFSKY: I think they want you to use a mike, so they can record this for posterity.

MR. BAILEY: Right. Okay. That is correct.

QUESTION: Thank you. My name is Sonia Schott with Radio Valera, Venezuela. I would like to know what makes the difference between Mr. Roberts and Mr. Gonzales? Why Mr. Roberts can and why Mr. Gonzales couldn't? Thank you.

PROFESSOR UROFSKY: Ideologically I don't know if there's a very large difference. Mr. Gonzales, unfortunately, carries a lot of political baggage. Mr. Roberts doesn't. It's that simple. Gonzales was the counsel to George Bush when he was Governor of Texas. And according to some reports had very little interest in reviewing appeals from death row inmates and just sort of initialed and passed them on.

The President's Counsel, which is what Mr. Gonzales was, is a highly political appointment and so they tend to look for people, while they might have other types of baggage, don't carry that sort of baggage with them. And Mr. Gonzales has an awful lot of political baggage. That's the only difference.

MR. BAILEY: Here in the front.

QUESTION: I'm Antonieta Cadiz, El Mercuro, Chile. And Roberts continued to judge a lawsuit against Bush Administration -- Hamdan case. Is this adequate, considering that he's a nominee?

PROFESSOR UROFSKY: Until he is confirmed by the Senate, he is a judge of the Court of Appeals and he has responsibilities there. Now, you may recall a President named Richard Nixon, who had to turn over evidence that led to his resignation by a court staffed by several of his appointees. It goes with the territory. The government is the chief prosecutor in the United States. You can't be on any federal court without the government being there in case after case. So he couldn't recuse himself, even after the appointment because the Court is understaffed. Besides what better way to show your independence than to say, "Hey, I'm a judge. I do what judges do."

QUESTION: Jyri Raivio, Helsingin Sanomat, Finland. You said that you are pretty certain that Mr. Roberts will sail through these hearings.

PROFESSOR UROFSKY: I didn't say he would sail through, but I said he will be confirmed.

QUESTION: Will be confirmed, yes. Does this mean that this process is going to be a short and concise one or do you expect to see long drawn hearings?

PROFESSOR UROFSKY: Well, there is a middle position, neither short nor long. It is in everybody's best interest that if he is not going to be defeated that he be confirmed before the first Monday in October, which is when the Supreme Court normally begins its term. There is a pile-up of certioraris, that is, petitions for certiorari, petitions to hear cases. There are only, you know, nine members of this court; they each have one vote. And you don't hear an appeal unless there are four voices for it. Which means that if he is not confirmed in time to join the initial round, any case that gets three votes for hearing is going to be put aside, which means that the administrative backlog of the Court will become difficult.

So one reason O'Connor -- now traditionally a judge resigns immediately after the end of the term, which she did, in order that his or her successor may be in place by the first Monday in October. My guess is that there will be a lot of posturing, but so far nothing I have seen in the paper leads me to believe that there'll be anything like the hearing on Judge Bork in the 1980s. His conservative views are, indeed, conservative but they're not out of the mainstream of American conservatism. So my guess is that after some initial posturing, he will be confirmed and he will be confirmed in time to take a seat at the beginning of the term.

Now you've got to remember one thing here: I'm a historian, I do better with what happened in the past, okay. I got a degree to talk about the past. No one gave me a license to foretell the future, so you just take everything I say with what, un grano salta.

Yes.

QUESTION: Well, coming directly after this -- my name is Bjorn Malmquist. I'm from Icelandic National Broadcasting Service. And given the fact that you just -- that you like to talk about history, kind of ruins my question, but -- (laughter) I do want to ask it, though. It's been stated in editorials and reports that he can expect three senators on the Judiciary Committee to give him the most grief or something -- among them, Kennedy. On what grounds do you think that they will oppose his nomination? Just purely, you know, speculative?

PROFESSOR UROFSKY: Privacy. One of the memos he wrote cast doubt on whether or not a right to privacy exists in the Constitution. Affirmative action, another memo he wrote cast doubt on that. In general, there has been some concern expressed about his view towards the Bill of Rights as a whole and his argument for judicial deference to the legislature on this. Now this has been an ongoing issue in American constitutional law 60, 70 years now. How much does the legislature, which is constitutionally empowered to set policy what are the limits imposed upon it by the Constitution of which the court is the chief arbiter?

So the Court and the Congress have been going like this one way or another for the better part of 70 years. I don't expect that to change. So those liberal senators -- and there is no one more liberal than, you know, Senator Kennedy -- will be upset by this and they should raise the issue. But I don't think they will be able to garner a great deal -- or again, that's just my reading of this. I don't think they'll be able to garner a great deal of support.

Another thing that could happen, everybody is saying is that Roberts is not going to be forthcoming. I think he's liable to surprise everybody. He could disarm a lot of people by saying, "Look, I will not talk about any issue that I might be called upon to adjudicate," which is perfectly legitimate. No one expects him to. "But you have questions? Go ahead and ask them."

And, I mean, he's got a paper trail. He can say, "Yes, I wrote that." And he's also got something: "I'm a lawyer. I argue the case that my client wants me to argue." Okay? And he has argued both -- you know, he's done some pro bono work for a homosexual group. That went over real well with the, you know, the Family Alliance. Does that mean he's a homosexual or that he favors, you know, homosexual rights? No, it means he's a lawyer. You know, you send your shark to meet my shark and they can argue it out.

And he was the shark for some pretty big people, like Ronald Reagan. And I think it's a perfectly -- you know, and the Senate is full of lawyers. They will understand. You know, the client wants X. I'm the lawyer. That's my job.

So I think it would be a really nifty tactical move for him to say, "Go ahead, ask me anything you want." And he's just smart enough and personable enough to get away with it.

Yes, sir.

QUESTION: L.K. Sharma, Deccan Herald. I was wondering whether you could comment on some of what may appear to be oddities to outsiders who are laymen. Number one, if there is a written constitution, why should there be such controversy about who is a conservative, who is a liberal? One doesn't come across this kind of thing even in a country which does not have a written constitution. That is number one.

Number two: At a certain age in some countries people are not even allowed to drive because they become senile. (Laughter.) How is it that these people are able to deal with such complicated issues when they are past 80? Was this issue ever debated that there should be some kind of age limit?

PROFESSOR UROFSKY: All right, let me try and answer. The First Amendment to -- all right. The Constitution says things that, on first glance, seem very straightforward. Okay? The First Amendment says, "Congress shall make no law abridging the freedom of speech." Well, now, Justice Black said, "No law is no law." But as Holmes pointed out, you can't shout, "Fire," in a crowded theater. So clearly, "no law" doesn't mean no law.

It says you can't get a search warrant except on probable cause, but the Constitution doesn't explain what probable cause is. It says the executive power shall be vested in a President of the United States. It never says what the executive power is. And the judicial power shall be vested in a court. The shortest part of the Constitution is Article III, dealing with the judiciary, with the courts. Why? Because they figured everybody knew what judges did so they didn't spell it out.

So the Constitution, while it is -- it's really a very lean document. I mean the commentary on it is a thousand times longer than the document itself. Phrases like that have to be interpreted. And how you interpret it will depend on whether you're a liberal or a conservative. So if you are a conservative, probable cause means that if a policeman thinks there's something wrong, he ought to be allowed to go in and take a look. A liberal will say, uh-uh, he's got to go further; he's got to not prove that this guy is guilty but at least give us some suggestion that there really is some fire behind that smoke. And there are hundreds of cases trying to figure out what probable cause meant.

I have an article on my desk. I'm 66 years old now. Okay? I retired a couple of years ago to do things like come up and talk to press, to reporters. And it says, "The grey cells," essentially -- as Hercule Poirot would say, "The little grey cells keep working if you keep using them;" i.e., use it or lose it.

Now, one of the sharpest minds on the Supreme Court belonged to Oliver Wendell Holmes, who was in his 90s when he stepped down. I will not mention names about some of the dullest minds on the Court, who are considerably younger than that. (Laughter.)

Now, there is a difference between driving a car, which requires physical -- you know, the ability to respond quickly to danger, and thinking. There was -- what was it? Oh, there was a case that came up a couple of years on age discrimination, about a year or two ago, and the Justices, who of course are all in their 60s or 70s, just lampooned this guy who said there ought to be physical things. And they were pointing out Faust wrote this when he was X, and the only one that goes against this is Mozart, who, by the time he was 40, was dead. But everybody else -- you know, they kept pointing out all these great men who wrote their symphonies, who wrote their epic novels when they were in their 60s, 70s and 80s.

There have only been one or two cases in over 200 years of senility on the Court. And in both those times, the Justices themselves moved quickly to get the guy off the Court. Most of the time, nearly all of them -- I remember Justice Powell talking to us one time after he had retired, and he said, "I could have done the work longer." But I had a group that he had put together, his family and some of his clerks, and I said, "I want to know not when I'm unable to do it, but when it looks like I might be unable to do it." He wanted to get off before he became an embarrassment.

Most of the people on the Court -- in fact, nearly all of them -- have such a respect for the institution that they don't want to embarrass it. Nearly every one of them that I have spoken to has some device in place that if they or people near them begin to sense that their mental acuity is faltering, will tell them and they will leave. Now, I don't know how many of them continue to drive cars when in their 80s, but it's a different function.

QUESTION: On the first issue, if there is something lacking in the Constitution, if that is a general view, or the legislators themselves are finding the Constitution is being hijacked by the Judiciary, as there is the feeling in some other countries also, the so-called activist judges and all that, so why is there no debate on kind of reforming the Constitution as a whole piece of work which requires some kind of a radical overhaul? I have not come across any debate on that issue. That is number one.

PROFESSOR UROFSKY: Okay, well, let me answer that quickly. The only way to reform the Constitution as a whole is a constitutional convention, which is provided for in the document. No one, neither conservatives nor liberals, want to go down that road because once you get there, you may want to go in there saying this is what I want to fix, but everything is now open. No one wants to touch that. Okay? So that's why we don't do it that way.

Now, in terms -- the Constitution builds in -- and this is something -- it's important to understand. There's a built-in tension. It's supposed to be there. It was Churchill, I think, who said that democracy is the most inefficient form of government. The inefficiency is built into it. Brandeis gloried in the inefficiency. Efficient governments can be dictatorships. The Legislature is supposed to butt heads against the President. They're both supposed to butt heads against the Judiciary. And what you get out of this is hopefully a sort of Hegelian synthesis. You know, after they're butting, they come to a sort of compromise and then they move on to the next issue. Each one keeps the other honest. This is what separation of powers is all about; this is what checks and balances is, so that there is this constant tension. You want it.

Now, in times of crisis, we have shown in the past that the three can work pretty well together when necessary. But in peacetime, in times of non-crisis, I think you want to have this tension. This is how we air issues. This is how we deliberate issues. Now, very often -- now, the Court makes two kinds of judgments. Actually, they make a lot more, but two of them are important.

One is a constitutional judgment. The Constitution says X. Okay? Now, when the Court says that, there's not much the Legislature can do. Unless the Court, which it very often says, and if the Legislature wants to do this, then they've got to do it by doing some other things to keep the constitutional things. So the Legislature can go back and rework it.

The Court also interprets statutes. Given the enormous number of lawyers in the Congress and the even larger number of lawyer aides they have to help them draft bills, Congress is one of the worst drafters of legislation that there is. So you have these bills that run hundreds of pages and then there'll be this clause, and no one knows what the heck it means. So they take it to Court. And what the Court says, we think it means this, but hey, you're the Congress, so if this is not what you meant, rewrite it so somebody can understand it. And that's how you get some of this going on.

So I think that this tension is a very healthy part of democracy. I think it's been essential to democracy in the United States for 200 years.

You had a follow-up question, I believe.

QUESTION: Wasn't there somebody --

PROFESSOR UROFSKY: Oh, okay.

QUESTION: My name is Karin Reber. I'm working for Der Bund newspaper in Switzerland. I have two questions.

First is I've read somewhere that Roberts is supposed to be one of the most brilliant judges nowadays. Do you agree on this?

PROFESSOR UROFSKY: I can't speak from personal opinion. I've never met the man. He is extremely articulate. What I've read about him would seem to indicate -- I mean, stupid people, by and large, don't get to the Supreme Court. Even some of the people that I would characterize as, you know, the elevator not going all the way to the top are still smarter by far than, you know, your man in the street or woman in the street. So you don't get stupid people on the Court. They don't pass the bar exams. You know, they catch them early.

We have had some very, very bright people on the Court. But being bright, by itself, is not enough. Probably, one of the brightest men ever to sit on the Court was William O. Douglas, whom Justice Brennan said was the only true genius he had ever met. But Douglas was bored on the Court; it didn't occupy him fully. So he got married several times, he took trips and wrote books and did other things. But he once said, "The only soul I have to save is my own." That's a very nice theological statement, but it's not a very good judicial statement.

The magic number on the Court is five. If you don't have five votes, you lose. Somebody like Justice Brennan could scrape together those five votes even after Rehnquist was Chief Justice because Brennan was a Court politician. He may not have been the greatest genius there, but he was certainly one of the great politicians on the Court and the Court is a political body -- not partisan, but political.

So the question is not how bright Roberts is in terms of IQ or something. How will he function? Is he bright enough to function effectively within the rules of the Court and how the Court operates? We don't know that yet because the lower courts are much different. On an appeals court, there's a group of anywhere from 15 to 25 judges and the chief judge names three of them to a panel, so you have a constantly rotating thing. You don't have nine people who are always working together. So we don't know how Roberts will function that way.

Is he bright? Certainly. Is he extra bright? Don't know yet.

And your second question?

QUESTION: It's a little bit -- as you just mentioned, I mean, we could hear all the time that O'Connor played a very crucial role in the Supreme Court. What do you think will change with Roberts?

PROFESSOR UROFSKY: We don't know. O'Connor and Kennedy and Souter were the middle. Scalia, Rehnquist and Thomas are the conservative wing. By the way, there are no real liberals on the Court. Not the way Brennan was. That leaves John Paul Stevens, Ruth Bader Ginsburg and David Breyer as -- let's call them the moderate wing. Okay? If Kennedy, when he's not with the moderates, tends to be with the conservatives, and that's four votes. Souter, when he's not with the moderates, tends to be with the -- what would you call them? Ultra-moderates? The Breyer-Ginsburg group. That's four votes. O'Connor was the fifth vote. O'Connor was rarely in the minority on a 5-4 vote. Hers was the fifth vote. Remember, I told you the magic number is five.

If Roberts casts his lot with the conservative group, they will dominate the Court more than they have. He will not, I suggest, cast his vote with the Breyer group, although he will vote with them from time to time.

If he chooses O'Connor as his model -- and here again, we don't know. It depends on what comes up. It's so hard to tell where he's going to be until we know what the Court's docket is. But if he chooses to join the center, he will be excoriated, just as Kennedy has been, by the right. And Kennedy is one of the most judicious of the judges. I mean, he really does believe in stare decisis. He does believe in the Court as an educational institution. He does believe that opinions ought to be written, not for law journals, but so that people can understand them. And I think we can do a lot worse than have another Kennedy on the Court.

So we don't know until he gets there. A lot will depend what will be on the Court's docket where he's going to wind up.

QUESTION: Sir. I probably have a very stupid question, but I think --

PROFESSOR UROFSKY: As I always told my class, there are no stupid questions. That's usually before I yell at them, but go ahead. (Laughter).

QUESTION: How much -- what's the salary of a Supreme Court judge? And is it -- am I correct in assuming that he or she is one of the worst paid lawyers in this country?

PROFESSOR UROFSKY: My son --

QUESTION: I mean that the brightest minds actually look elsewhere.

PROFESSOR UROFSKY: My son makes more than he will make on the Court -- than Roberts will make on the Court.

QUESTION: (Off-mike).

PROFESSOR UROFSKY: No, my son is with Cadwalader, Wickersham and Taft. He's a lawyer. (Laughter). They'll make, I think, $130,000. But people don't go on the Court for money.

Now, there has been an argument -- not for the Supreme Court because there's so much prestige and power there -- but lower court, it's hard to get some of the brighter people because -- and they have raised the salaries of lower court judges. People don't go -- you know, the wealth on the Supreme Court, over half of them are millionaires. They've made their money -- Roberts was with, what, the Hogan and Hartson firm. That's one of the high priced law firms in Washington. I think he probably has put enough away for his children's education. That's not what he's going on the Court for. If he wanted to make money, he wouldn't have gone on the appellate court. There is a cache. This is what lawyers want to be. We don't go to law school to become lawyers; we go to law school so we can become judges eventually. That's where you make the law. All you do as a lawyer is work for somebody else.

So people who go on the Court, either the appellate level, the district court level, the Supreme Court, are not going on it for the money. The President of the United States doesn't get that much. I mean, in terms of what -- my university -- the President of my university makes more than George Bush does. He's worth it, too, in case anybody asks.

QUESTION: Michael Backfisch, Germany's Business Daily Handelsblatt. A few weeks ago, there was a lot of speculation that Mr. Rehnquist might resign. He's still there, but nobody knows for how long. Provided that he resigns some time in the not too far future and how far do you think that might change the balance of the Court? And what might be the considerations of the President? And does the guy with the big political baggage play a role on this equation?

PROFESSOR UROFSKY: Okay. We were expecting a retirement this year, but we were expecting it to be Rehnquist, not O'Connor. People were not paying enough attention to how sick her husband is. And when she said she was resigning for family reasons, I mean, she really did mean it on that. Her husband is quite ill.

She and Rehnquist, as you know, went to law school together. They were in the same class at Stanford. They've known each other many years. And while no one will speak on the record, it appears that she went to him, probably around January or February, to indicate that she wanted to retire, which is why he didn't because two vacancies on the Court, given the current political situation, would have been terrible for the Court. One vacancy, they can handle; but two is -- the politics of that would have been atrocious.

Had Rehnquist gone first, the political dynamics for President Bush would have been different because there you have a, clearly, one of the most conservative members of the Court. And so he could've gone with someone even perhaps more conservative than Roberts. Maybe.

With O'Connor going, there was an enormous amount of pressure, from within his own party as well as others, to appoint someone more moderate. Now, no one expected him to name someone who was not a conservative. But there are "conservatives" and there are "where's my right." There are conservatives, okay. Roberts is about here. So that I think is part of it.

Now, with Rehnquist, he is ill but from all reports, the little grey cells are still working. I saw him a while back at a function and he had a great deal of difficulty moving. He walks with a cane now and I know he's had back problems for years. Once he started talking, there was nothing wrong with his mind. And the opinions he wrote this year, now granted, he gets help from -- they all get help from their law clerks -- but in the end, he's the one who signs off on it and there was nothing wrong with those opinions, not from his point of view.

This woman, I think, had a -- she's back. (Laughter).

QUESTION: Thank you. Yes. Sonia Schott again. I would like to know about -- well, some comments on the death penalty. It is an issue in the Supreme Court. And what speaks in favor of the death penalty? Thank you.

PROFESSOR UROFSKY: We've always had the death penalty in this country. And while many other countries have abolished it, we haven't. And one reason we haven't is because we are a federal system, which means that most of the crimes to which people are punished are state crimes, not federal crimes. So if you commit murder in Virginia, you're not going to be tried by the FBI or captured by the FBI. It's the Virginia State Police who are going to get you and you're going to be tried before a Virginia court under Virginia law. And unless or until the Supreme Court says that the death penalty constitutes cruel and unusual punishment in violation of the 8th Amendment, the states are free to do that. That's what our constitutional system, our federal system allows the states to do.

Now, some states, roughly one in four, have done away with the death penalty. There is a lot of criticism of it lately. DNA testing -- now here's, you know, I mentioned new issues. DNA is just beginning to work its way up to the Supreme Court as a question. There have been some states that have gone back and reviewed all their death sentences. Illinois -- the Governor just sort of blanketedly said, "No more while I'm Governor." Of course he left shortly thereafter, but he commuted all those sentences because there was too much question.

The Court has now held that it is unconstitutional to put to death someone who committed their crime while a minor or someone who is mentally retarded. I do not think there is sufficient popular opinion in this country to do away with the death penalty. And I certainly don't think there is any momentum on the Court to do so. The people who voted for this would not -- the way Brennan and Blackman and Marshall did -- say that the death penalty was, per se, unconstitutional. You don't have anybody on the Court who is going to go that far right now.

What one's personal views are -- and I know this has become an issue of controversy between the United States and other countries in terms of extradition and everything, where a person might -- I think in France -- wasn't a Frenchman -- was wanted here in relation to 9/11 and they didn't want to extradite him until there was a promise that there wouldn't be a death penalty. So I mean, I know that this is an issue, but we are a federal system and as long as Virginia wants to have the death penalty, Virginia can have the death penalty, with the exception of people who are mentally retarded and underage at the time of the thing.

It's just how the system works. You would have to change the laws in something like 39 jurisdictions to do away with the death penalty in the United States and that's not about to happen. After the Court struck down the death penalty, as applied, in the 1970s, there was hope among abolitionists -- people who opposed the death penalty -- that states wouldn't put it back in. Every single state that had the death penalty before Greg put it back in after the case. So there continues to be, especially among conservatives, a lot of support for the death penalty.

QUESTION: I was feeling guilty now because watching your performance at this age, of for having raised issue, but I'm (inaudible) sort of deal with that issue from another angle.

PROFESSOR UROFSKY: Okay.

QUESTION: Since you say that most of issues now are coming up in the field of high technology, some of these gentlemen are born before the telephone was discovered --

PROFESSOR UROFSKY: No, no, no, no. (Laughter). Let's not get carried away. Certainly before the computer.

QUESTION: All right. And now, in this internet age and biotechnology and (inaudible) issues and IPR issues -- so perhaps it is accurate to say that they may not be --

PROFESSOR UROFSKY: They'll do what I do. They'll do what I do. I'll pick up the phone and I'll call my son and say, "What do I do" -- (laughter) -- he said, "Did you turn it on?" No -- they all have clerks who are right out of law school, who are right with it.

Now, I've been very impressed and so have people who work in this field, that in the internet cases that the Court has decided over the last ten years, there is no stupidity in those opinions. There is, in fact, quite a bit of sophistication about what the net is, how it works, what a provider is, what the problems are -- these are people who are very smart. They keep up. I know a lot of people who will not use a computer. I even know some people who don't eve want to use a phone. I don't mean the cell phone. I mean they don't want to talk on the phone. Period. I just gave up a stick shift last week. I mean, so it's -- (laughter) -- I finally don't have a car with a stick anymore.

But these are not stupid men. The question before, "Is he the brightest?" I don't know if he's the brightest, but I've been in their offices of several of the Justices. They all have computers and they use them. In fact, Kennedy, if you recall, was criticized because he was on the net to find out what foreign law was on some of the cases that he was checking. Why are you checking foreign law, they said. Because it's relevant, you know. So I mean, these are not stupid people. And they have the use of their clerks. Some people say the clerks wield too much influence, but the clerks certainly know those computers.

My son, when he was a clerk -- not at the Supreme Court but in a Court of Appeals -- one of his jobs was to help the judge learn how to use the computer. So these people are smart enough to know that that's an issue and that they have to -- they don't have to write the algorithms, okay? They just have to have an idea of how it works, insofar as that it affects a constitutional issue.

QUESTION: One operational (ph) issue, you mentioned that some 7,000 cases are pending.

PROFESSOR UROFSKY: No.

QUESTION: Are brought to the Court.

PROFESSOR UROFSKY: Right. Most of them are dismissed.

QUESTION: Oh, I see.

PROFESSOR UROFSKY: Yeah. These are like --

QUESTION: But it's not that they're -- the Court is overcrowded. It's not that they're --

PROFESSOR UROFSKY: No, no. Most of these cases are written by people sitting in prison who have nothing better to do than file another appeal. Now, I don't mean, you know, to denigrate their right to appeal, but most of them file an appeal every year. They've got nothing better to do. A lot of other times, you lose -- I had a case turned down. I was involved in a free speech case and my case was one of those that the Court turned down. Now, I think they turned it down for a good reason, not that I was wrong, but jurisdictionally, they turned it down for a very good reason. So a lot of these cases, say maybe half of those 7,000 or more, there's no constitutional issue and they're not even paid attention. They're just dismissed.

QUESTION: There are not many pending cases.

PROFESSOR UROFSKY: No. The Court is not in a backlog. Every case that was accepted last year and will be accepted this fall will be heard this year. Some of them are accepted too late to be heard. There's no case pending in the Court that's been there more than 12 months. Now, sometimes, it takes a long time to get there, but once the Court accepts it, they move fairly quickly.

Okay. Yes, ma'am. You. You're the ma'am. (Laughter).

QUESTION: Dubravka Savic, Belgrade Daily, Vecernnje Novosti. You mentioned that you heard a lot of times from internationals that they are jealous on the U.S. Supreme Court. What would you tell internationals why the U.S. so opposed to international criminal court, being at the same time, so abrasive at ad hoc tribunals, like for ex-Yugoslavia and Rwanda? Thank you.

PROFESSOR UROFSKY: Because we're a perverse people. (Laughter). We don't like having our affairs settled overseas. Remember, we didn't go into the League of Nations, which was a mistake, but we didn't go. And although we were one of the prime movers to set up the UN, we have ignored it when it suited our national interest to do so. This is no big secret, right? I'm allowed to say that here. (Laughter).

MR. BAILY: You speak for yourself.

PROFESSOR UROFSKY: I speak for myself. Right. We have our own system. We're used to it. And for most of our history, we have tried to ignore the outside world. And only when the outside world came banging through our door did we pay attention. We are very leery of other legal systems, especially the continental system. It seems to go against the grain of the way we think trials ought to be conducted, where most of us think, rightly or wrongly, that in the continent you are guilty until you prove yourself innocent. Whereas in the United States, the assumption is, you are innocent until the state can prove you guilty. This, I think, is overstating it by a bit, but that is the general feeling that our legal system is more protective of individual rights.

I think part of the problem is also that there are strategic interests in not getting involved in some of these because then we would be called to account for some of the things that we feel it necessary to do.