Did Justice Sandra Day O’Connor intend her resignation letter–taking note of “the integrity of the Court and its role under our Constitutional structure”–as a barely veiled shot at the Bush Administration’s political aims? Wishful thinking, perhaps. But O’Connor’s unusual condition of departure–her resignation effective only upon confirmation of her successor–narrows the President’s political options, forestalling a recess appointment and evoking memories of Earl Warren, who held his seat for a full term after submitting his resignation when President Johnson’s nomination of Abe Fortas collapsed.
With O’Connor’s resignation, President Bush, the Senate and grassroots activists all face choices of the greatest historical consequence, in the face of political calculus whose complexity is hinted at by the religious right’s pre-emptive attack on Alberto Gonzales. The selection of O’Connor’s replacement–and the nomination fight itself–will have immediate fallout for abortion rights (with an important parental-notification case already on next term’s docket), the environment, campaign finance reform, criminal justice–all areas in which O’Connor in recent years demonstrated flexibility and pragmatism. This upcoming confirmation is not only about an as-yet-unknown nominee but also about laying down parameters of possibility within which future nominations and Supreme Court decisions themselves will fall.
It is important not to sentimentalize Justice O’Connor. Her nomination by President Reagan as the first woman on the Supreme Court was a historic marker for succeeding generations of female judges and attorneys, but many of the rulings she wrote or supported on voting rights and affirmative action closed the door on redress of past racial discrimination. On criminal justice, her rulings in the 1980s and into the ’90s helped erect rigid sentencing regimes that now haunt governors and judges alike, not to mention the error-ridden edifice of capital punishment–from which O’Connor, in recent years, hesitantly distanced herself, abandoning executions of the retarded to “evolving standards of decency” while mysteriously voting this year to uphold executions of juveniles.
Yet it fell to O’Connor, along with fellow Reagan appointee Anthony Kennedy and George H. W. Bush appointee David Souter, to complete the unfinished business of Roe v. Wade with Planned Parenthood v. Casey in 1992. Their joint opinion, establishing that “the ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives,” stands as a hallmark of judicial sanity, and as the Supreme Court’s most firmly persuasive articulation of women’s rights. Beginning with Casey, O’Connor’s opinions began showing a new openness to evolving political consensus, her emergence, in delicate chemistry with Justice Kennedy, as a frequent swing vote in 5-to-4 and 6-to-3 civil rights cases. It’s striking that neither O’Connor nor Kennedy can properly be called the leader of the Court’s centrism–they have seemed at times to rely on each other for critical mass.
Are we doomed to a Neanderthal nominee to replace her? The reality is that in some ways, O’Connor’s resignation could not have come at a worse time for President Bush. In the Senate, Bush has expended his political capital and irritated influential Republicans with the war, with John Bolton, with Social Security reform, with Guantanamo. Historically, Republicans have tended to walk in lockstep on judicial appointments, but some Republican Senators’ patience grew thin in the long haggling over Janice Rogers Brown and Priscilla Owen. The Terri Schiavo case taught all Republicans looking toward a presidential run in 2008 that public indulgence of the religious right is not unlimited, despite the powerful patronage machine Christian conservatives have built in the South and Midwest. The circumstance facing Republicans today is very different from that facing George H.W. Bush in 1991, when he placated a suspicious right by nominating Clarence Thomas. The current President is a lame duck, and his would-be successors–most of them in the Senate–need prochoice moderate voters as much as they need the right’s church buses.