Liberals, Don't Make Her an Icon

LOS ANGELES

In the debate over the future of the Supreme Court, Democrats and liberals are off to an ill-advised start: falling all over themselves to embrace Justice Sandra Day O'Connor as the model for the kind of jurist Bush should select. This impulse is understandable as a political matter. O'Connor joined the court's more liberal wing on several key issues, including, most significantly, in upholding the core of Roe v. Wade, which guaranteed a woman's constitutional right to choose abortion.

But O'Connor reached these positions -- as well as many conservative outcomes -- using an approach to constitutional interpretation that should be as troubling to liberals as it is to her more conservative colleague, Antonin Scalia. Indeed, liberals link themselves to O'Connor's judicial legacy at the risk of losing the war of ideas before the next battle is even joined.

The rap against liberals is that they do not care about the text or history of the Constitution and do not have any principled method for interpreting the document. Instead, they simply enshrine their moral choices in the Constitution under the guise of interpretation. In common parlance, this is called legislating from the bench.

There is some truth to this charge. In the 1970s, for example, liberal justices declared the death penalty per se unconstitutional even though the Constitution's due process clause (which protects against the deprivation of "life" absent due process of law) explicitly contemplates the idea of capital punishment. Roe v. Wade is another example. The generalized right to privacy on which the 1973 ruling is based has no obvious textual basis in the Constitution; the decision's grounding in history and precedent is scant; and the opinion itself spends only a few sentences trying to explain its constitutional justification.

Liberals have tried to paper over these flaws with nice-sounding rhetoric about the Constitution's grand promises of individual liberty and the "evolving standards" that infuse them with meaning. A case can be made for this -- up to a point. But when unelected, life-tenured judges use their power of judicial review to overturn the enactments of elected representatives, there has to be some greater justification than a judge's own sense of modern morality or wise policy.

This is where the difficulties with O'Connor's jurisprudence arise, as does the danger for liberals who now champion its virtues. In one field of law after another, she has imposed on the court highly idiosyncratic and personalized tests for what the Constitution requires. Take the issue of abortion. In O'Connor's controlling view, states are free to regulate abortion as long as they do not impose an "undue burden" on a woman's right to choose. What is an "undue burden?" On this closely divided court, it boiled down to O'Connor's personal judgment.

O'Connor's approach to the constitutionally mandated separation of church and state is much the same. Thanks to her, under current doctrine, government can 5ccommodate religious observance, including permitting religious displays on public property, so long as government does not appear to be "endorsing" religion. What constitutes an "endorsement" as opposed to some lesser form of recognition or affinity? O'Connor's personal judgment on a case-by-case basis, that's what.

Simply put, O'Connor has been the master of self-referential, "I know it when I see it" standards for interpreting the Constitution. In the current rush of praise, O'Connor-philes new and old extol what they see as the judicial restraint in her "incremental," or "minimalist," style of judging. These can be judicial virtues. But they don't properly describe O'Connor's approach. While her malleable tests may often minimize the reach of particular decisions, they maximize the power of an individual justice at the center of the court to define the Constitution according to subjective judgments about right and wrong instead of more objective and broadly applicable principles.

Liberal lobbying for an O'Connor-esque nominee carries a double shot of danger. First, it will serve to confirm and reinforce the conservative critique of liberals that, when it comes to the Constitution, they have no principles, only preferences that they want to impose on the nation. And, second, most of the time -- and usually when it really counts -- a conservative in the O'Connor mold will vote conservative, often extremely so. Remember Bush v. Gore ? That was a classic of unprincipled, case-specific, result-driven judging -- and the O'Connors of the world would be on board every time.

The liberals' search for the next O'Connor is already twisting them into intellectual pretzels. Who could have imagined, as Democrats appropriately skewered then Attorney General-designate Alberto Gonzales for his authorship of the notorious torture memos, that these same senators would be virtually praying for Bush to nominate him to the Supreme Court?

There is a root cause for this incoherence. It is the liberal obsession with Roe. Many on the left cherish O'Connor because she helped save Roe. They will confirm Gonzales because they hope he will do the same. And they will try to torpedo a more right-wing nominee -- as they did Robert Bork -- as an enemy of the right to privacy on which Roe is based.