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Friday, July 01, 2005

A few words about Justice O'Connor

Sandra Day O'Connor's resignation as an Associate Justice of the United States Supreme Court is not particularly a surprise. Press and pundits will focus mostly on the question of her successor, but as part of that they will discuss Justice O'Connor's particular role in the Court over the last 24 years.

When President Reagan appointed Justice O'Connor, I was nearing the end of my judicial clerkship for Judge Carolyn D. King on the Fifth Circuit. It was widely rumored that President Reagan was inclined to make history by appointing the first woman to the Supreme Court. And even though Judge King had been a Carter appointee to the Fifth Circuit and was only in her second year on that court's bench, her nomination had come about through the recommendation of a genuinely nonpartisan advisory panel; her Senate confirmation had been entirely routine; her father, as a Republican, had served as the New York Commissioner of Insurance, and she had other family connections to prominent Republicans; and there was only a very small handful of female U.S. Circuit Judges at that time. Then as now, it was common and logical for Presidents to look for Supreme Court nominees among the Circuit Judges of the U.S. Courts of Appeals. So Judge King's name was among those being floated as possible nominees, and I entertained brief fantasies about getting to tag along with her if she were elevated (having already collected a complete set of very polite letters rejecting my clerkship applications to the other then-existing members of the Supreme Court).

I remember being a little bit disappointed, then, for both Judge King and myself when President Reagan announced the O'Connor nomination, and my private comments then on the nomination were probably quite snarky. Although no one made a big deal of it at the time, new Justice O'Connor's prior record on the bench was, viewed objectively, very thin — comprising only a few years as an Arizona state-court trial judge and an even shorter stint on an intermediate-level Arizona state appellate court. To some extent, that thin judicial record was offset by her genuinely superb academic credentials (third in her class at Stanford Law) and the variety of her other legal experiences, which included both private practice and public service as a deputy county attorney and assistant state attorney general.

I find much to admire in her overall record as a Justice. And certainly Justice O'Connor has been a gracious, diligent, and dignified jurist who has entirely transcended what was, realistically, the "affirmative action" nature of her nomination at the time; for that, she's entitled to a great deal of credit. In hindsight, however, the most significant and predictive prior credential that Justice O'Connor brought to the Court was as a former Arizona state senator — and indeed, she was not just any state senator, but the majority leader of the Arizona state senate. As a Justice, she's been quirky and unpredictable — the pragmatic politician and compromiser, rather than a consistent bastion of any legal or philosophical principles. And thus I also find much in her overall record to fault.

If there are one or two such Justices on the Court at any given time, that may not be a bad thing. If there are three or more, though, the Court loses its effectiveness in leading the federal judiciary; it produces fractured results, splintered decisions, unpredictability, inconsistency, and philosophical muck. Congress can consistently create enough of that for all three branches of government combined, and that's where the pure politicians, the compromisers, ought to hold forth.

It's for that reason that I hope and trust Dubya will nominate a principled judicial conservative to succeed her — someone perhaps less "pragmatic" and "flexible" who will help stop the Court's current muddy drift. Intending no disrespect to any of them — for I do indeed genuinely respect all of the current Justices, including those with whom I almost always disagree — at this point, we need no more Souters, no more Kennedys, and no more O'Connors.

Posted by Beldar at 11:50 AM in Law (2006 & earlier) | Permalink

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Comments

(1) James B. Shearer made the following comment | Jul 1, 2005 2:03:34 PM | Permalink

I am not convinced more "principled" justices will produce fewer splintered decisions. Seems to me "pragmatic" and "flexible" justices would be more willing to compromise to produce single majority opinions.

Btw the way do you have historic examples of the type of court you would like to see? I expect courts dominated by a single justice produce the most philosophical consistency. Principled and independent justices will always find things to argue about.

(2) ed made the following comment | Jul 1, 2005 2:11:57 PM | Permalink

Hmmm.

I certainly hope Bush will appoint a strict conservative constitutionalist. That 7 of the current 9 justices have been appointed by Republican Presidents is frankly too aggravating to consider.

If Bush tries some sort of quasi-idiotic "bi-partisan reaching out" nonsense, he is going to get his ass kicked in the Senate. The conservative base isn't about to put up any nonsense.

(3) Beldar made the following comment | Jul 1, 2005 3:43:49 PM | Permalink

Mr. Shearer, thanks, as always, for another thoughtful comment.

I don't think it's likely that any single human being could ever dominate or homogenize the Supreme Court. However, when (as now, and for the last couple of decades) there's a mushy "center" of the Court, you get these mushy and therefore essentially worthless decisions on critically important issues — e.g., Vieth, the recent redistricting case from Pennsylvania — where there's no majority opinion and the lower courts are left to flail around in confusion. The pragmatic and flexible Justices too often fail to unite with the predictable and consistent ones, and instead write their own separate opinions. When they do join a majority opinion, it's often through watering down and muddying up the law (offering up another damned "balancing test" that barely conceals the fundamentally ad hoc and arbitrary nature of so much recent Supreme Court law), or through some sort of horsetrading like O'Connor's pragmatic but absolutely unprincipled opinion for the majority in the Michigan Law School affirmative action case, Grutter. (Majority holding: racial preferences are constitutional for now, but won't be in 25 years.)

When the Court is unpredictable, inconsistent, drifting, and generally mushy, the public has a very hard time evaluating it. It's literally taken decades for the current mushy Court to generate much public dissatisfaction, and it remains to be seen whether that dissatisfaction and the current Republican majority in the Senate can get a non-centrist replacement for O'Connor confirmed.

In the short term, I don't think that the Court should sway in the winds of politics; but in the long term, I think the public has to be able to express its will effectively about the basic direction of the Court. I think "centrist" Justices actually make the Court less responsive to the political process over the long term. In some ways, and especially over the long term, I'd rather see another Ginsburg than another O'Connor, because at least with Ginsburg you know most of the time how she's going to vote, and if the result is both clear and a travesty, you can campaign more effectively for a President and for senators who'll ensure that the next opening is filled with someone completely different from her.

I realize the danger here of cutting off one's nose to spite one's face, and maybe with the Court, as with government generally, we get what we deserve rather than what we want. But I'm hoping that Dubya will push in his whole stack of political capital chips and pick someone who's not a mushy centrist. (You can be sure that the Dems won't make that mistake the next time they have the chance.)

(4) Carl Pham made the following comment | Jul 1, 2005 4:21:53 PM | Permalink

I think your hope is likely to be vain. My take on GWB is that he doesn't much like the judiciary, and the appellate judicial mindset that pays exquisite attention to the wordy splitting of delicate hairs is boring and alien to him.

GWB reminds me more of a successful postmodernist military commander, trading (superbly) in personal loyalty, very understanding of people's hearts, but fairly uninterested in and ignorant of their carefully crafted highly intellectual speechifying.

Believe it or not, the man you want here I think is Bill Clinton. He had no ethics or loyalty to speak of, was personally slimy, but he had an exquisite sensitivity to appearance and to the importance of words and their proper timing. He would (and did) nominate most carefully a judge that could be counted on to consistently uphold definite legal principles. Not yours, of course, but oh well.

GWB, I think, is likely to nominate someone who he feels has a good heart, a noble soul, someone who cares about people but also wants them to be adult and free. Stripped of warm fuzziness that means, alas, a compromising, flexible, pragmatic person rather more like O'Connor than not.

To get the judicial nomination you want, we'd need Poppy Bush, I think. The elder and more aristocratic Bush would have found someone capable of feeling, well, this or that is Right and Best and that's that, over a long lifetime of judging the bewildering human drama in front of him.

Put it another way: GWB is very good at picking people whose motto is Get The Job Done. (One reason he's hated and feared by the left.) What you want is someone who is less concerned with getting things done than in standing for principle, even if that means standing in the wilderness alone, for long years. A monk, of sorts. GWB's circle is not likely to contain monks.

(5) Patrick R. Sullivan made the following comment | Jul 2, 2005 3:27:18 PM | Permalink

'To get the judicial nomination you want, we'd need Poppy Bush, I think.'

Who gave us David Souter.

(6) John M made the following comment | Jul 2, 2005 6:59:07 PM | Permalink

Your comments on Justice O'Conner are clear and concise. Your reasoning is unassailable.

Is it possible your application to clerk at the Supreme Court was nixed because your grasp of reality might have intruded upon the tack the court was on?

Do I have your permission to recommend you for consideration for the vacant seat?

(7) Evan made the following comment | Jul 2, 2005 7:03:55 PM | Permalink

I think Beldar nailed it: less "balancing tests." Balancing tests seems to me to lead to increased unpredictability, judicial capriciousness, and tertiary costs.

(8) Bostonian made the following comment | Jul 4, 2005 12:21:43 PM | Permalink

These "balancing" tests are unfair, wrong, and misguided.

The idea of them presumes that somehow the two major political parties form one of the pillars of our Constitution, and they do nothing of the kind. They may serve as checks and balances in their own way, but too many people believe that somehow the correct answer is "in the middle."

There is no common ground, on many issues.

Moreover, Americans have elected Republicans more than Democrats in the last 15 years. To treat the left and the right as equals to be balanced is to ignore the voters themselves.

(9) kbiel made the following comment | Jul 5, 2005 10:40:29 PM | Permalink

Ugh...I hate that label, "judicial conservative". I know, I know. It is an apt descriptor, but it is also easily twisted by those who would paint a scarlet I (for idealogue) on any and every Bush judicial nominee. I prefer the term strict constructionist or originalist (though different, the outcome of their opinions on all, but the most hair-splitting of matters, are usually identical). Using those labels better communicates what conservatives truly hope for in a judicial nominee, someone who will read the law, and the constitution if necessary, and arrive at an opinion based solely on the language contained therein and not on public opinion, perceived rights, or foreign/international law. In regard to their political beliefs, I could not care less about what any appellate judge or SCOTUS justice personally believes about abortion, taxes, eminent domain, etcetera, so long as they apply the constitution and law as written.

(10) sammler made the following comment | Jul 6, 2005 2:58:45 AM | Permalink

The "judicial conservative" label is inevitable because in this case, "moderate" and "activist" really do mean the same thing. Beldar convincingly condemns O'Connor as a moderate who is forever "muddying up" the law, thus increasing judicial discretion, thus effectively increasing the activism of every court. (More here.)

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