Sanda Day O’Connor, the Supreme Court’s swing vote on many issues, has announced that she’s retiring — so get ready for the mother of all political battles and the possible return of hearing the words “nuclear option”:
Justice Sandra Day O’Connor, the first woman appointed to the Supreme Court and a key swing vote on issues such as abortion and the death penalty, said Friday she is retiring.
O’Connor, 75, said she will leave before the start of the court’s next term in October, or when the Senate confirms her successor. There was no immediate word from the White House on who might be nominated to replace O’Connor.
It’s been 11 years since the last opening on the court, one of the longest uninterrupted stretches in history. O’Connor’s decision gives Bush his first opportunity to appoint a justice.
“This is to inform you of my decision to retire from my position as an associate justice of the Supreme Court of the United States, effective upon the nomination and confirmation of my successor. It has been a great privilege indeed to have served as a member of the court for 24 terms. I will leave it with enormous respect for the integrity of the court and its role under our constitutional structure.”
The White House has refused to comment on any possible nominees, or whether Bush would name a woman to succeed O’Connor. Her departure leaves Justice Ruth Bader Ginsburg as the only other woman among the current justices.
Possible replacements include Attorney General Alberto R. Gonzales and federal courts of appeals judges J. Michael Luttig, John Roberts, Samuel A. Alito Jr., Michael McConnell, Emilio Garza and James Harvie Wilkinson III. Others mentioned are former Solicitor General Theodore Olson, lawyer Miguel Estrada and former deputy attorney general Larry Thompson, but Bush’s pick could be a surprise choice not well known in legal circles.
The White House seemingly floated a trial balloon about Gonzales. But If some recent reports plus highly negative feedback from conservative commentators, conservative columnists and conservative bloggers are any indication, it’s unlikely GWB will nominate Gonzales. Part of the base that Bush wants in his corner doesn’t want Gonzales, who is considered too liberal on some issues.
Meanwhile, there seems to be little question that he’ll pick someone more conservative than O’Connor — thus “tilting” the court. The only question is whether he’ll pick a conservative who is non-controversial or opt for a highly polarizing figure who has the same credentials as someone who is more low key. There are other options.
Another prospective candidate is Edith Hollan Jones, a judge on the 5th U.S. Circuit Court of Appeals who was also considered for a Supreme Court vacancy by President Bush’s father.
O’Connor’s appointment in 1981 by President Ronald Reagan, quickly confirmed by the Senate, ended 191 years of male exclusivity on the high court.
She wasted little time building a reputation as a hard-working moderate conservative who emerged as a crucial power broker on the nine-member court.
O’Connor often lines up with the court’s conservative bloc, as she did in 2000 when the court voted to stop Florida presidential ballot recounts sought by Al Gore, and effectively called the election for President Bush. As a “swing voter,” however, O’Connor sometimes votes with more liberal colleagues.
Clearly, that kind of “swing voter” is what one segment of the GOP wants to avoid, arguing the election results were partly due to their voting for Bush to bring about what they believe are needed changes in the judiciary.
OTHER VIEWS (A cross section):—Orrin Kerr has a great analysis which MUST be read in full. One point:
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.
—Atrios says good bye Roe.
—Glenn Reynolds:”O’Connor’s, um, variable voting pattern means that if whoever replaces her is more consistent it will make a disproportionate difference. That also means that this fight is likely to be nastier than the fight over, say, a replacement for Rehnquist.”
—Moderate Left:
Yes, one can hope that Bush would replace O’Connor with a libertarian; I’d love to see, say, Eugene Volokh get the nod. That’s not going to happen. The appointee will be a doctrinaire conservative. It’s just a question of how conservative they are.
At the end of the day, this sets up a massive fight. The nuclear option will be back in play, and then some. But the one thing the Democrats have going for them is that Bush is going to be putting forth a nominee at the absolute nadir of his Presidency, at a time when he isn’t obviously able to get anything accomplished. That’s a level playing field, I think.
—Pennywit has an analysis that MUST be read in its entirety. A small taste 4 u:
If President Bush his smart, he’ll tell Karl Rove and anybody else who offers poll-based advice to go stuff it. Because Bush cannot be re-elected, he really has no reason to pick a nominee who will please the Republican base, or anybody else. What can they do, after all? Not re-elect him? For better or for worse, President Bush can choose a nominee who reflects his own philosophy of the law.
–Talk Left has a series of vital reaction posts on the news here, here, here, here here and here.
–The Republican website Red State says its sources tell them the White House was surprised by O’Connor’s announcement — that it had been preparing for Chief Justice Rehnquist to resign, even to the point of telling senators to expect him to resign:”There is some mystery here. Will CJOTUS resign too? Some are already saying yes. My sources all think so. This slow news summer may just be about to go nuclear.”
—Blogs for Bush’s Matt Margolis:
This is exciting news for us at Blogs For Bush. It is moments like these when we understand why the election of 2004 was so important. With the retirement of Sandra Day O’Connor, and the expected retirement of Rehnquist, Bush is now in the position to nominate two new justices to the Supreme Court. The news of this morning makes me even more grateful that the election turned out the way it did…
With Bush as president, we can be sure that we’ll get respectable judges nominated who will faithfully interpret the Constitution, not rewrite it. We don’t have to fear nominees who will legislate from the bench, or activist judges who will put ideology before the law.
–The Daily Kos has a ton of posts on it including posts telling its activists readers who and what to contact now that O’Connor is leaving. The most interesting post is from Armando. Here’s part of it:
Some friends of mine who have good sources tell me that Gonzales is in the mix for filling Justice O’Connor’s Supreme Court seat. So we may be faced with the question of what we do if it is Gonzales. I may be in the minority here, but I will vigorously oppose his confirmation.Of course the condoning of torture marks Gonzales as morally reprehensible.
But, even if one is only going to look at this cynically, Gonzales can not be trusted. We THINK he is a moderate. We THINK he’ll support the right to choose. We THINK he’ll support affirmative action . But how do we know? What has Gonzales done to earn the belief that he won’t be a patsy in the hands of a Scalia?
—Mark Noonan:”It’s all about Roe, my friends – the Planned Parenthood release and the statements by Dodd and Kennedy I just watched on Fox all tell me that the pro-abortion lobby has put its foot down and is demanding a tooth-and-nail defense of Roe by the Democrats. Roe wont be mentioned much, but the pro-abort fear is that O’Connor’s replacement will provide that fifth Supreme Court vote against it…keep that in mind; the Democrat’s Holy Grail is threatened; the glue that holds them together as a Party. This will be a nasty political fight.”
—Project Nothing has a GREAT roundup and Nathan Lanier predicts:
Democrats will push for a consensus candidate. (AKA a candidate who will not overturn Roe. V. Wade). Bush will nominate whoever the hell he wants to nominate, despite democrat’s cries of bloody murder. There will be lots of pies thrown on cable news television, and someone will say the words “Nazi� and “Hitler� a few times.
BushCo might use this as a chance to turn the focus away from his dying SS plan – and even perhaps Iraq. Democrats will support a Gonzales nomination, perhaps even push for it – but it will not happen.
—Americablog has some fascinating stuff. Robert Bork attacking O’Connor (conservatives getting ready to demand a more conservative judge?), poll results showing most Americans and half of GOPERS WANT Roe in place.. then this:
The upcoming nomination to replace Justice O’Connor will have a life-long impact on the course of our country. Over these last years, Justice O’Connor has been the tie-breaking vote in a number of critical cases, in many cases staving off a significant pull to the Radical Right by justices like Scalia and Thomas. Her departure represents the loss of a significant check against the Radical Right’s completion in taking over the third and final branch of government.
So what does that mean to the average American? You need look no further than any of Justice Scalia’s dissenting opinions. As the ideological heart of the Right on the Court, his opinions represent where the Court will head if O’Connor’s moderate voice is replaced with another minion like Thomas.
—Bull Moose foresees an absoluteliy brutal political battle that could end in an opening for a third force in American politics. Read his WHOLE post but here’s a bit:
The Moose anticipates Apocalypse Now! It’s lock and load time in the Nation’s Capital. With the O’Connor announcement, the Mother of all Culture War battles will commence. While the President has the opportunity to use this Supreme Court nomination to unite the country, he will likely appease his base and further polarize our politics.
This is the true payoff time for the right wing of the Republican Party. For conservatives, nothing else matters. And this Administration cannot alienate their core supporters at a time the President’s popularity is plummeting. The specter of Souter consumes the right.
–Eugene Volokh on Fox News via The Political Teen. Also: Harry Reid on Fox via The Political Teen.
—Crooks And Liars details a conference call with Teddy Kennedy about the nomination. Part of it:”I was just on a call with some other On-Line Magazine editors and Sen Kennedy said that he hopes there isn’t a fight over this nomination, but that conservative groups have already lined up 18 million dollars to promote their choice. A fight is indeed expected unfortunately because of the dollars that are involved.”
–More details on this conference call at TalkLeft.
—John Cole notes that the Democrats lost the election, they’re the minority party and that the REAL skirmish will be how to sway Republicans who opted against the nuclear option:
So thus, the real participants in this debate are not the Democrats- ignore them. They can do what they want to try to shift the balance, but the real power brokers are the seven Republicans who approved of the recent compromise. This is, for the most part, a debate that will happen inside the Republican party. Sure, it would be all puppies and hugs and rainbows if Bush selected a nominee that 100 Senators could support, but that person does not exist. This is a debate between the conservative hardliners and the moderate wing of the party, and the real key is to peel off enough of the moderates to break the filibuster. If Bush selects a nominee that is acceptable to them, it matters not a whit what the Democrats think, and John McCain’s statement this morning should be a sign of what is to come in the form of a nominee.
Cole predicts the Democrats could overplay their hand and lead these moderates to opt with whomever Bush chooses, no matter what. And he MAKES A GOOD POINT: if it turns out that almost anyone Bush recommends who is conservative or moderately conservative is vehemently opposed, it could cause some of these moderates to defect. If Bush picks a truly polarlizing choice as Bull Moose suggests, it’ll may take a bit more work for the White House to peel them off.
—James Joyner:”There’s little doubt that O’Connor is the type of Justice Democrats hope to see nominated. I’m pretty sure that’s not what Ronald Reagan was going for. After all, he elevated William Rehnquist to Chief, appointed Antonin Scalia to the Court, and nominated Robert Bork before settling for Anthony Kennedy.”
—Mark In Mexico:”And the war is joined. Two immensely powerful forces meet in the political equivalent of toe to toe nuclear combat to fill the seat. What great entertainment this will be. Warning: Don’t misunderestimate the Chimpster, again.”
—Sacred Monkeys:”Who would have thought, Sandra Day O’Connor, the first woman appointed to the Supreme Court retiring before Chief Justice Rehnquist. This should make for a pretty interesting summer. Some where I think the Democrats today in the Senate are redefining the term “Extraordinary Circumstances”.
—Centerfield’s Mathew:
This President is a conservative, there is no two ways about it; however, at the beginning of his Presidency he had no problem keeping activists on the far right at bay on various issues, and letting them know periodically who was in charge. The Rove strategy for re-election has changed all of this and the administration has done it’s best in recent years to cow tow to the far right. Appointing Gonzalez, which no doubt would anger many conservative activists, would once and for all put them in their place and end this charade about who is exactly running the country. This course of action, among other things, could also put the President back in the driver’s and allow him to propose policy alternatives on Social Security, taxes, etc. like he did in his first term on “No Child Left Behind” and Medicare.
—Professor Bainbridge:”It’ll be a chance to replace a squish with a reliable conservative.”
—Josh Marshall:
Matt Yglesias and Atrios are right on this one. The end of Roe v. Wade is likely to be the most immediate and conspicuous result of today’s resignation…..The decision on who to appoint is in the hands of those who would turn the US economy back to what it was in the latter part of the 19th century, a world in which state and federal legislative action to insure the common good was hamstrung by court decisions that left everything in the hands of the marketplace. Pre-New Deal, pre-Progressive Era. It’s the Court in the hands of activist radicals.”
—Andrew Sullivan:”This is a critical moment for the president, a moment when he can reach back to a political center he has recently eschewed during a war in which a bitter and divisive internal fight should be avoided, if at all possible. I’m hoping for a reasonable and not overly ideological choice. What I’m expecting is another matter.”
—Ann Althouse has a VERY INTERESTING PREDICTION:” If Bush picks a very strong conservative to replace O’Connor, I predict…
… that Justice Kennedy will become a reliable liberal vote. This prediction is based on my belief that there is small group dynamic at work on the Court that tends to produce moderation.”
—Kevin Drum says it’s a mistake for Democrats to paint O’Connor as a moderate:
Generally speaking I don’t have a big problem with O’Connor’s tenure on the court, but when even Democrats start calling her a moderate, it moves the goalposts too far. They should be referring to her as a “moderate conservative,” a “mainstream conservative,” or a “thoughtful conservative.” Anything like that is fine. But whatever they call her, they should make it clear that she’s a conservative. After all, if she’s really a moderate, then surely a conservative president has the right to appoint someone just a little more conservative than her, right?
—Right Thinking’s Lee has a FASCINATING SUGGESTION for the White House on strategy.
—Booker Rising’s Molotov. Read IN FULL. Here is a tiny taste 4 U:
Justice O’Connor’s retirement leaves Justice Ruth Bader Ginsburg as the only woman among eight remaining justices. One official said that the president’s “short list” had included only men, and suggested a quick move to expand the roster of contenders. Justice O’Connor’s resignation takes effect when a successor is confirmed.
It’s about to get downright ugly in American politics, since she is a key swing vote on the high court. The replacement could determine the ideological balance of the court for decades. Personally, I liked the balance the way it was.
—Michelle Malkin has (as usual) a GREAT ROUNDUP and points to Bill Kristo: “Let’s hope he is wrong about her replacement: ‘President Bush will appoint Attorney General Alberto Gonzales to replace O’Connor. Bush certainly wants to put Gonzales on the Supreme Court. Presidents usually find a way to do what they want to do.'”
—Uncorrelated:”Could the Democrats be induced to trade a moderate conservative nominee for support on Social Security? I have my doubts, but its interesting to contemplate.”
—Conservative Outpost:”The great thing about O’Conner’s retirement is that it virtually guarantees that Bush will get to pick at least 2 justices for the court…meaning that Rehnquist is all but out the door, (and maybe was bolting for it but got shoved by O’Connor)…so I look to see Bush with 2 picks on the Court by this time next year. At that point, speculation falls on Stevens and Ginsburg…and W will have 2 1/2 years left on his term. THIS is what those last two elections were all about folks.”
—Digby predicts Bush will pick a BIG fight to win and show power (in other words send up a controversial nominee):
Being willing to stage a retreat — particularly on something about which the base is rabid and out of control — at a time when his popularity is sliding precipitously is not believable to me. I think they are desperate to show strength and get a big win that makes the Dems look weak. That is their theory of governance. The more you win the more people love you.
In their minds it’s the public perception of losing on Bolton, social security, Schiavo and Iraq that is causing their problems, not Bolton, social security, Schiavo or Iraq themselves. I think they want a big fight and they expect a big win. And they want that win to “create political capital” with which to consolidate their majority.
—Citizen Smash (one of our favorites because he is an independent thinker, no matter whether you agree with him or not) has a WEALTH of info. His final comments need to be quoted in full here:
Forget about missing teenagers, shark attacks, or Gitmo. This is going to be the summer of partisan slugfests over the future of the Supreme Court. If you thought America’s political parties were structured around some agenda other than the ongoing culture war over abortion, you’re about to find out just how wrong you were.
Frankly, I’m sick of it.
This one issue has distorted our national politics for far too long. Reasonable candidates are rejected, and total yahoos elected, on the sole basis of their position on abortion. Sometimes it simmers just below the surface, but it never, ever goes away. We have a national “litmus test,” and nothing else seems to matter. Every once in a while, an event like 9/11 shakes people out of their complacency, and reminds them that there are other pressing issues to be concerned about — but it never lasts for long.
What will it take to put this behind us?
—The Debate Link:”If you believe, as I do, that law should transcend politics, then that is a far more relevant distinction for judges than liberal/conservative. Replacing the Court’s foremost pragmatist with a rigid ideologue would constitute a radical shift–even if it appears on the surface to be merely moderate conservative to conservative.”
Joe Gandelman is a former fulltime journalist who freelanced in India, Spain, Bangladesh and Cypress writing for publications such as the Christian Science Monitor and Newsweek. He also did radio reports from Madrid for NPR’s All Things Considered. He has worked on two U.S. newspapers and quit the news biz in 1990 to go into entertainment. He also has written for The Week and several online publications, did a column for Cagle Cartoons Syndicate and has appeared on CNN.