Saturday, July 2, 2005
THE ANNOUNCEMENT yesterday of the retirement of Justice Sandra Day O'Connor brings to an end the career of one of modern America's most important jurists. Justice O'Connor came to the Supreme Court in 1981 as its first female member, and she has served the court since with honor and distinction. In that time, she has become -- in part because of her own evolution and in part because of the court's -- a pivotal vote, oftentimes the pivotal vote, in a large swath of the court's caseload. To garner Justice O'Connor's vote has often meant securing a majority; to lose it is often to lose a case. The court today represents the sensibilities and preferences of no other justice more consistently. Her impending departure is not merely the end of a deeply important career in American law and life but a major turning point for the Supreme Court itself.
Uniquely among current members of the court, Justice O'Connor was a politician -- an Arizona legislative leader and later a judge -- before she was appointed by President Ronald Reagan. Her background has given her an unusual political sophistication and savvy both in her substantive jurisprudence and in her role on the court. Allergic to the sort of broad principles that excite more ideological justices of both the left and right, her opinions generally lacked lively or stirring rhetoric. Her instincts were pragmatic. She had a pronounced tendency to decide cases on their facts, leaving herself room to shift gears when facts were different.
These traits often exposed her to charges of judging with insufficient analytical rigor or consistency, charges that were sometimes justified. Though certainly a conservative, she has not been a reliable enough conservative to develop much of a following within the conservative movement. Yet because she has been wedged between the court's liberal and conservative flanks, her attitudes took on enormous importance. Many of the most significant tendencies and rulings of the court during Chief Justice William H. Rehnquist's tenure reflect them: its adjustment of the balance between state and federal power back toward state authority; its deference to state court convictions and criminal proceedings even where they produce manifest flaws; its ultimate refusal to overturn federal abortion rights even while granting states somewhat greater leeway to regulate abortion; its decisions to defer to states on affirmative action in higher education and to Congress on the McCain-Feingold campaign finance law; and its expansion of judicial power in a host of areas.
Putting aside the notable exception of the court's recent rewriting of the rules of criminal sentencing -- from which Justice O'Connor has been a vociferous dissenter -- it's hard to think of major areas of modern jurisprudence not affected by her thinking. As a consequence, her departure will leave a dramatic hole and a no less dramatic opportunity for a new justice to nudge the court in a different direction across a significant array of hot-button issues. President Bush's coming choice may therefore prompt an ugly political fight. No sooner had Justice O'Connor announced her retirement than the distasteful jockeying among any number of interest groups began: conservative groups demanding satisfaction; liberal groups pretending they get to dictate the president's choice. Everyone should take a deep breath.
Mr. Bush ran for and won election as a conservative who would name justices who share his philosophy, and he can be expected to name a conservative in this case. In doing so, however, Mr. Bush needs to bear in mind the fractious state of American politics and the capacity of a divisive nominee to trigger an all-out war that would hurt the court and the country as a whole. The president should consult as broadly as possible and seek a nominee who would satisfy his requirements while also garnering broad support from moderates of both parties. It is not too much to ask of Mr. Bush that he work for consensus in replacing a justice who, in a very real sense, had come to represent a bridge between left and right.