Posted on 07/02/2005 7:08:40 PM PDT by CHARLITE
The first woman to serve as a justice of the U.S. Supreme Court should have been the first woman to serve as the chief justice of the United States. Sandra Day O'Connor would have been a brilliant choice for that symbolic position for many legal and political reasons.
At a time when the court specifically and the federal judiciary in general could use a jolt of public respect and support, O'Connor would have taken the reins as Lady Justice, one of the most well- known and culturally in-tune major-league judges in recent history. A grandmother who looks like one, and a judge whose hardscrabble upbringing and political background has helped humanize her legal philosophy, O'Connor actually is what most people think a judge ought to be. She is restrained, fair, and not so bolted to any single jurisprudential concept that she loses sight of what is just.
For these reasons, and many more, an O'Connor's nomination for chief justice would have been embraced by a fractious Senate. She would have kept in place the court's fragile ideological balance that oscillates between moderate and right. And she would have burnished her image as one of the most important women in the history of the country.
But such a fairy tale is not to be. And O'Connor's long-speculated departure from the high court won't even leave that precious institution in neutral. She was the pivotal "swing" vote on many of the most contentious issues of the day, including affirmative action, abortion rights, campaign-finance reform, federal disability access law, gay rights and the death penalty. With that moderate-right seat now empty, and with the court's collective ideology hanging in the balance, O'Connor leaves a vacuum that easily and quickly could create a vortex of political and legal infighting that would make the Robert Bork judicial nomination in the '80s seem like an episode of "Barney," the purple dinosaur.
Because O'Connor sidled between the court's conservative and liberal wings, her departure is far more significant than the departure of Chief Justice William H. Rehnquist would have been. Had he retired, his vote on the court would simply have been substituted by President Bush with another vote from the "original intent" wing of the Republican judicial party. Or, the chief justice might have been replaced by someone to his right, a clone of the president's heroes on the court, Justices Clarence Thomas and Antonin Scalia. But even then, the court's balance would have been altered only in those few cases where the chief justice didn't vote with his legal soulmates.
But O'Connor's absence does impact the court's future and the country's legal destiny, and everyone knows it. That's why the political heavens are surely going to fall in her wake. The constitutional rule that precludes states from criminalizing certain types of abortion procedures now is in jeopardy. Many federal laws that she supported, including the Americans with Disabilities Act, now may come under successful assault. Affirmative action? Its precarious position is even more fragile today. Even in the area of death penalty law, O'Connor's written remarks in recent rulings and her public comments suggested she was growing increasingly concerned about substantive, inherent problems in what former Justice Harry Blackmun once aptly called the government's "machinery of death."
So President Bush now has a choice to make. Will he satisfy the right wing of his party and nominate a candidate for O'Connor's spot that is far more conservative than she? Or will he be content to select some of the many fine moderate-right voices in the law, men and women who are more in the O'Connor mold and not then as likely to generate a big fight on Capitol Hill?
The thought at the White House is this: The more conservative the pick, the more the battle stirs in the Senate; the less conservative the pick, the more the president's core constituents bang their drums. There are plenty of candidates of both stripes to choose from and surely no candidate ever will or can satisfy everyone.
Indeed, O'Connor was hated by some on the left for the same reasons that she is despised by some on the right. She was more of a centrist, after all, like her old friend Justice Lewis F. Powell Jr., who was on the court when O'Connor arrived in Washington, and like the courtly David H. Souter is today. But the reason no one sings odes to Souter - he is probably even more despised by the right than is O'Connor, even though he was appointed by the first President Bush - is because centrists, whether they are legal or political, are these days a hunted and diminishing breed. That's a shame, of course, because what both the country and the court desperately need right now are precisely what they both are most unlikely to get: moderation. O'Connor had it. Her successor almost certainly won't.
Denver attorney Andrew Cohen is a CBS News legal analyst and a contributor to The Denver Post.
Betcha' real money Denver Post wouldn't have let O'Connor be in charge of the cash register for even a half an hour.
Char :)
Geez...how...inconvenient for Cohen that Reinquist stayed alive over the last 20 years and prevented O'Connor from taking her "rightful" place in history.
(rollseyes)
Somebody said the other day "Sandra Day O'Connor would have made a great PTA president. But that's it."
LOL
"O'Connor actually is what most people think a judge ought to be."
Crap! Until yesterday, "most people" couldn't name her or anyone else on the SCOTUS!!
I think the court needs balance to Ruth Bader Ginsberg!
The bottom line: strict constructionists should be the only ones nominated to the position. I don't care what their political leanings are (clearly, that hasn't been much help anyway), they need to interpret law, and in particular, the intentions of the architects of that law, rather than try to make law.
Translation: "Oh God we're screwed! Conservative SCOTUS for 20 damn more years! Mommy!!"
LOL!
Pack the Court!!
Pack the Court!!!
Pack the Court!!!!!
what disgusting schmuck!
all of his tribe are liberally painted with "brilliant", o'connor when she's doing what he wants, the "courtly" souter,
but, president bushes' heroes thomas and scalia are called "clones".
Yet another Ode to Moderation.
Cohen preferred O'Connor and believed she was a "moderate" because she was the judicial equivalent of an "impulse shopper" -- one decision for the left in Aisle 3, another for the right in Aisle 5. And, occasionally, a decision selected from the end aisle gondola.
What kind of a game would baseball be if umpires called the game like O'Connor and the gang of activists called their judicial shots. What if some balls weren't balls? And not all strikes were strikes? What if some outs didn't count, but others counted double? What if umpires made their calls, not on the observable facts, but on their personal rooting preferences?
In baseball, at least, the umpires can't change the rules...
A comment from Colorado, the home of distinguished scholar Ward Churchill, and a comment that would do Professor Churchill proud.
So now David Souter is a centrist too?
One of the most sickening things about the Left and its dominance of the maintream media is how it constantly declares obvious liberals to be moderates.
The reason Souter is more despised by the Right than O'Connor is because O'Connor occasionally sees fit to offer a sane judgment, while Souter never does; at least on social/cultural issues.
But on those social and cultural issues, O'Connor is a liberal too, and just because she voted for Bush in the Bush v Gore doesn't change that.
Pres. Bush's picks ought to be as conservative as Clinton's were liberal. Billy Jeff certainly didn't choose moderates when he chose Ginsberg, an ACLU lawyer, and Breyer, a flaming eastern lib. Shame on the Pubbies for rolling over then, after the merciless smear job the Rats had done on Bork. It's way past pay-back time.
Sandra Day O'Connor as Chief Justice simply is not an option any more. Nobody gets extra downs in football, or extra strikes at the plate in baseball.
Justice O'Connor has retired. Give it a rest.
The jurisprudential concept that, by implication, has been "bolted to" by the likes of Rehnquist, Scalia, and Thomas is to make rulings according to The Constitution. If that turns out not to be "just" then the citizenry needs to elect legislators to write laws that are just. All conservatives understand this concept. No liberals do.
Sheesh, I don't believe the word "centrist" was even coined until around the time Clinton I.
;-) ;-) ;-/
Oh, yes! That one jumped off the page at me. If dim witted readers don't quite get how far to the left this Anderew Cohen is by the time they get to the "courtly Souter" line, then that ought to educate them about which ring of Saturn this guy lives on.
Char :)
Yes, last evening, the late news (Nightline?) made the point over and over again that SD O'C was a moral relativist and interpreted the Constitution as a living document. As if that was a compliment...
May the reader take this as advance references to Ann Coulter and Laura Ingraham?
;-)
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