ED: WE ARE BACK ON "OTR" WITH MARGARET MARSHALL.
TWO QUESTIONS -- NUMBER IS IT ONE, TIME FOR TERM LIMITS FOR SUPREME COURT JUSTICES LIKE HERE IN MASSACHUSETTS?
AND TWO, WHAT YOU THINK ABOUT THE COURT SHOULD BE PACKED, HAVE MORE JUSTICES?
JUSTICE MARSHALL: IT IS THE ONLY COURT WHERE PEOPLE DO NOT HAVE A SINGLE NUMBER OF TERMS.
EVERYWHERE YOU LOOK HIM EVERYONE HAS A SINGLE, LENGTHY TERM.
I HAVE BEEN ARGUING THIS FOR 20 YEARS, AND BY THE WAY, WE HAVE THAT IN MASSACHUSETTS.
ORIGINALLY WE HAD, FOR LIFE AT THE TIME IN THE UNITED STATES CONSTITUTION WAS 48 YEARS.
IT IS NOW IN THE 90’S.
IT IS ABOUT TIME WE HAVE TO CHANGE THE CONSTITUTION BE -- AND PEOPLE HAVE TO GET WORKING ON IT NOW BECAUSE PROBABLY FROM MASSACHUSETTS THEY WILL BE ON FOREVER.
ED: SECOND THE COURT.
JUSTICE MARSHALL: IT WAS ATTEMPTED BY ROOSEVELT.
IT DID NOT SUCCEED, BUT THE REASON PRESIDENT ROOSEVELT WAS ATTEMPTING IT IS BECAUSE THE UNITED STATES SUPREME COURT WAS BLOCKING WHAT HE CONSIDERED ESSENTIAL DECISIONS TO GET US
OUT OF THE DEEP DEPRESSION.
I THINK THAT ONCE YOU START PACKING THE COURT, THE NEXT PRESIDENT WILL CONTINUE THAT, BUT THE COURT NATIONAL UNITED STATES SUPREME COURT DID CHANGE ITS JURISPRUDENCE WHEN THERE WAS
A SERIOUS THREAT OF PACKING THE COURT.
THESE ARE POLITICAL DECISIONS.
I WOULD NOT SECOND-GUESS THEM.
I THINK THERE HAS BEEN AN ATTEMPT BY THE CURRENT MAJORITY LEADER OF THE SENATE -- I REGRET TO SAY SO -- TO HIJACK THE COURT AND TO PUSH THROUGH THE PEOPLE THAT HE WANTS IN A WAY THAT WE
HAVE NOT SEEN -- WE HAVE NOT SEEN FOR A VERY, VERY LONG TIME.
THIS IS A GREAT, AND REVERED INSTITUTION.
IT IS A CRITICAL PIECE OF OUR CONSTITUTIONAL DEMOCRACY, AND I THINK UNTIL WE CAN GET BAC SOME UNDERSTANDING THAT THE UNITED STATES SUPREME COURT IS NOT A POLITICAL FOOTBALL, SHOULD NOT
BE A POLITICAL FOOTBALL, I THINK IT IS FAIR TO HAVE EVERY SINGLE OPTION ON THE TABLE.
I RESPECT SENATOR MARKEY AND SOME OF THE MOST THOUGHTFUL PEOPLE -- BY THE WAY, ON TERM LIMITS, LEFT AND RIGHT, PEOPLE DISAGREE WITH THAT, PACKING THE COURT, LESS SO BECAUSE IT IS
NEVER BEEN DONE, BUT THERE IS NO CONSTITUTIONAL LIMIT ON HOW MANY JUDGES THERE SHOULD BE.
PERHAPS IT WOULD BE A GOOD IDEA -- WE ARE A HUGE COUNTRY.
WE ARE A -- PERHAPS IT WOULD BE A GUIDE TO HAVE 11 JUSTICES.
THERE ARE MANY COURTS BIGGER THAN NINE, AND MANY THAT ARE SMALLER.
I AM GOING TO SAY THAT IS SOMETHING THAT SHOULD BE LOOKED AT VERY CAREFULLY, UNDERSTANDING THERE ARE HUGE POLITICAL CONSEQUENCES EITHER PARTY TAKES TO DO THIS.
JANET: WE DON’T HAVE A GREAT DEAL OF TIME, BUT I DO WANT TO ASK ABOUT THE NEW OPENINGS ON THE MASSACHUSETTS SUPREME COURT.
WHAT IS MISSING ON THAT COURT THAT NEEDS FILLING AS FAR AS NUMBERS SHOULD BE NOMINATED?
JUSTICE MARSHALL: I DON’T WANT TO SAY ANYTHING IS MISSING BECAUSE THEY ARE WONDERFUL JUSTICES, BUT WHAT ONE HAS TO LOOK AT HIS LIFE EXPERIENCE.
FIRST OF ALL, THERE IS SOMETHING OF A SIMILARITY OF THE EXPERIENCES OF SEVERAL OF THE JUSTICES.
-- WON’T LIKE ME TO HOLD HIM UP THIS WAY, BUT I LIKE TO THINK OF A PROSECUTOR, DEFENSE ATTORNEY, IN PRIVATE PRACTICE, INSTEAD GOVERNMENT -- NOT EVERYONE CAN HAVE THAT KIND OF EXPERIENCE,
BUT I CERTAINLY THINK THERE IS A SHORTAGE OF IN-DEPTH EXPERIENCE IN CIVIL CASES.
OTHER JUSTICES HAVE A LONG AND DISTINCT HISTORY IN THAT REGARD.
AS FAR AS I CAN RECALL, OFF THE TOP OF MY HEAD, WE DON’T HAVE ANYBODY THAT HAS BEEN A DEFENSE ATTORNEY.
I HOPE THEY WON’T BE DEFENDANTS.
FOR ANY LENGTH OF TIME.
I THINK IT WOULD SADDEN ME GREATLY IF WE DIDN’T KEEP TO HAVING AT LEAST THREE WOMEN JUSTICES, IF NOT FOUR.
I LIKE JUSTICE GINSBURG -- UNTIL THERE IS SEVEN, I AM NEVER GOING TO BE SATISFIED.
WHEN JUSTICE ABRAMS AND I WERE ON THE COURT THERE WERE FOUR WOMEN’S -- WOMEN JUSTICES.
I CARE LESS ABOUT WHAT THE PERSON LOOKS LIKE AND WHAT THEIR EXPERIENCES.
HAVE YOU BEEN -- FOR EXAMPLE, HAVE YOU HAD ANY EXPERIENCE IN THE HOUSING COURT, THE BANK AND FAMILY COURT?
THINK ABOUT WHAT IS GOING ON IN THE HOUSING COURT AT THE MOMENT.
I THINK THE GOVERNMENT JUST HAS SUCH A RIP -- RICH PEN A PLATE OF FABULOUS LAWYERS FROM WHOM TO CHOOSE, AND I HOPE WHAT HE WILL DO, WHICH IS WHAT EVERY OF THE GOVERNOR HAS DONE, IS TO SAY
POLITICS DOES NOT MATTER -- IS GOING TO SERVE THE PEOPLE OF MASSACHUSETTS THE BEST, WHO BRINGS THE GREATEST AMOUNT OF EXPERIENCE, WHO HAS JUDICIAL TEMPERAMENT -- WHO WILL NOT
THINK THAT AS SOON AS WE PUT ON THIS PARTICULAR BLACK ROBE THEY DO NOT HAVE ANY DISPENSATION TO BE RUDE, ARROGANT, OR WHATEVER IT IS.
A WONDERFUL COURT.