Justice Sandra Day O’Connor, the first woman appointed to the United States’ supreme court, today announced her retirement, paving the way for an ideological battle over her successor.
In the divided supreme court, Ms Justice O’Connor was a crucial figure who often cast the deciding vote on contentious issues such as abortion. Her appointment in 1981, by the then president Ronald Reagan, ended 191 years of male exclusivity in the high court.
I’m going to use this post to post interesting quotes from around the Blogosphere, so I’ll be updating it as I browse.
9. O’Connor’s retirement may shift the Court a lot less than people think. In the big ideological cases of the last Term, Justice Kennedy was the swing vote as often as (or maybe even more often than) Justice O’Connor. Let’s assume for now that O’Connor is replaced by a consistently more conservative Justice; even if that’s true, the left-of-center Justices presumably still have 4 very reliable votes and a good shot at picking up a 5th vote with Kennedy. Plus, new Justices are hard to predict, and it’s often hard to tell whether a new Justice will vote consistently one way or another.
10. We’re likely to hear a lot about the future of Roe v. Wade in coming weeks and months. The common wisdom, assuming no shifts in votes from past cases, is that the 8 remaining Justices include 5 votes for Roe (RBG, SGB, DHS, JPS, AMK) and 3 against (AS, CT, WHR). On the constitutionality of partial-birth abortion bans, the common wisdom is that the 8 remaining Justices split 4 to 4, with Justice Kennedy switching as seen by his vote in Stenberg v. Carhart.
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Marty Lederman at SCOTUSblog is putting together a list of important decisions in which O’Connor was the swing vote.
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I predict the death of Roe V. Wade.
Sandra Day O’Connor just announced her retirement. And Rehnquist is dying.
There goes our 5-4 lead.
Actually, Roe has a 6-3 lead. So Roe is safe for now, unless at least one more of the six anti-Roe votes retires. Rehnquist is firmly anti-Roe, so replacing him with another Justice can’t hurt Roe.
However, O’Connor was the swing vote on “Partial Birth” abortion, so there’s a good chance that pro-lifers are finally going to be able to get through a PBA ban that has no provision to protect the woman’s health.
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From Project Nothing:
IF YOU’RE NOT WATCHING CABLE NEWS – It’s basically playing out like you’d expect. Republicans are already painting Democrats as obstructionists by saying “not letting the president have his nominees”? confirmed is a “fundamental misunderstanding of democracy”? and the Democrats are screaming for a moderate which is, like I said, someone who will not overturn Roe v. Wade.
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From Jesse at Pandagon:
Some are saying that we should draft Prado, however, I just support replacing the entire court with Galactus, who is not only truly impartial, but also reserves the right to eat all of us should the mood strike.
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From Nathan Newman:
The trap for progressives on the nominations fight for O’Connor’s successor is just to talk about abortion and other social issues. We need to split social conservatives away from their corporate allies and highlight the rightwing ECONOMIC views of potential nominees.
The Supreme Court is the interpreter of legislative statutes and they can either enforce them strongly on behalf of the rights of middle class families or they can give corporations a free pass to loot pensions, poison the environment and violate their employees rights at work.
We need to wedge the opposition base and, even if some Bush supporters cheer an anti-choice nominee, we should raise questions with them about why that nominee also screws workers in all their legal decisions and never really punish corporations for their wrongdoing.
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Justice O’Connor’s resignation today raises interesting questions about her political identification. If one reads many far-right wing sites, O’Connor was a liberal, barely distinguishable from Justice Ginsburg, if not Jesse Jackson. Yet, if the rumors of her comments when Gore was thought the victor of the 2000 election are correct, and there is some truth to claims that Justices try to time resignations, Justice O’Connor clearly preferred that Bush appoint her successor than Gore. Apparently, her efforts to push the court to the right on such matters as federalism and takings were far more important to her than the occasional vote to overturn a particularly eggregious death sentence and the privacy cases.
The most interesting question now is whether the Bush administration will try to defend its version of judicial activism or, more typically, deny that the administration has any agenda other than vague strict construction. At least Democrats openly admit the forms of judicial activism they favor.
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LiberalOasis has a good post on fighting Bush’s nomination (assuming that nomination is unacceptable from a lefty point of view – which seems like a safe assumption).
Bush V. Choice has a collection of “What you can do” links.
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So here’s a question: can we actually block anyone that Bush wants? The last heroic victory was the rejection of Robert Bork, and that was pulled off by a 55-45 Democratic majority. I guess we can filibuster, at least assuming the nuclear option can be blocked, but what, realistically speaking, is the plan here? Make a judgment call, shut down the Senate over Luttig, and hope we win the aftermath? With party loyalty as strong as it is in this era — even Janice Rogers Brown got confirmed, contrary to Graham’s predictions that she wouldn’t — do Democrats have any possible chance of winning this without a filibuster?
And from “Jim” in Ezra’s comments:
The best the Dems can do is to conduct a spirited information campaign. We should fight a bad candidate, but any Bush choice is unlikely to be centrist like O’Conner. Only if the nominee is as bad as Janice Rodgers Brown should the Dems conduct a filibuster, since we will be labelled as obstructionists by the media – with a unified GOP attack and distortion machine behind them.
This does not mean rolling over for Bush, or voting for a bad nominee. United Dem party opposition is even more important if you are going to lose since making the electoral choices for the future depends on CHOICE – we must be an alternative.
Many soft Dems will vote with Bush once they know the Dems can’t prevail. That is one of the principal reasons the party is weak.
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Scott at Lawyers Guns and Money concurs that O’Connor’s retirement doesn’t mean that Roe is doomed – but it’s certainly cause for concern.
Having said that, this is not to say that O’Connor’s replacement doesn’t matter for abortion right–far from it. First of all, it means that the “partial birth abortion” ban passed by Congress will almost certainly be upheld, something that has all kinds of potential for mischief. It also means that the chances of abortion regulation meeting the “undue burden” test has become greater. And, of course, even if the effect of replacing O’Connor is to make the vote for upholding Casey 5-4 rather than 6-3, that’s obviously not trivial. John Paul Stevens is 85. Ruth Bader Ginsburg is 72 and has had cancer. As today’s announcement reminds us, Supreme Court resignations are unpredictable; we could easily see a dam burst, as happened in the 30s, and we don’t know who will be in the White House in 2008. So, no matter what Kennedy’s current views are, O’Connor’s resignation and replacement matter a great deal for reproductive freedom.
…MJD brings up another point in the comments below. I do think that overturning Roe would not, on balance, be good for the Republican Party. My guess, though, is that this doesn’t really matter to Bush. If he’s willing to make social security privitization the domestic centerpiece of his second term, he’s certainly going to be willing to appoint an anti-Roe justice to replace O’Connor. Everything about the lead-up suggests that Bush wants the most conservative justice he can get through the Senate.
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Regarding O’Connor’s legacy, Scott quotes Jeffrey Rosen from The New Republic in 2000 to good effect:
And, by not even bothering to cloak their willfulness in legal arguments intelligible to people of good faith who do not share their views, these four vain men and one vain woman have not only cast a cloud over the presidency of George W. Bush. They have, far more importantly, made it impossible for citizens of the United States to sustain any kind of faith in the rule of law as something larger than the self-interested political preferences of William Rehnquist, Antonin Scalia, Clarence Thomas, Anthony Kennedy, and Sandra Day O’Connor [...]
The unsigned per curiam opinion in Bush v. Gore is a shabby piece of work. Although the justices who handed the election to Bush–O’Connor and Kennedy– were afraid to sign their names, the opinion unmasks them more nakedly than any TV camera ever could. To understand the weakness of the conservatives’ constitutional argument, you need only restate it: Its various strands collapse on themselves. And, because their argument is tailor-made for this occasion, the conservatives can point to no cases that directly support it. As Justices John Paul Stevens, Ruth Bader Ginsburg, and Stephen Breyer wrote in their joint dissent, this “can only lend credence to the most cynical appraisal of the work of judges throughout the land.”
The most important part of O’Connor’s legacy is that, when push came to shove, she was a traitor to Democracy in order to protect a Conservative candidate.
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A point that came up when I was talking to my mother (hi, Mom!):
As my mom argued, I think persuasively, it’s good that O’Connor retired first. There was no chance she wasn’t going to retire, and there will be more energy in the Democrats for the first nomination fight than for subsequent nomination fights. It’s in our favor that Rehnquist wasn’t the first to go.
On the other hand, I’m still pretty pessimistic overall. Even if the Democrats are united, I don’t think they’ll be able to block a right-wing replacement for O’Connor – the “nuclear option” guarantees that the Republicans, if they stick together, will win.