A few words about Justice O'Connor
By Beldar on Law
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.
beldar.org
air.fjc.gov |
