To: LindyBill who wrote (19391 ) 12/11/2003 2:21:50 AM From: LindyBill Read Replies (1) | Respond to of 793696 The seduction of Sandra O'Connor. JOHN FUND ON THE TRAIL WSJ.com The Limits of 'Growth' Justice O'Connor becomes a full-fledged judicial activist. Thursday, December 11, 2003 12:01 a.m. Justice Sandra Day O'Connor more or less completed her ideological journey toward judicial activism yesterday when she cast the deciding vote upholding the McCain-Feingold restrictions on campaign speech. Proponents of judicial restraint who were leery of her when Ronald Reagn appointed her in 1981 acknowledge that even they didn't expect her to come under the sway of elite opinion as much as she has. The court's decision in McConnell v. Federal Election Commission is a body blow to the protection of political speech, which the Founding Fathers thought so important that they wrote the First Amendment explicitly to make clear that Congress "shall make no law . . . abridging the freedom of speech." You wouldn't think they could be more clear. But by a 5-4 majority the Supreme Court upheld McCain-Feingold's restrictions on "electioneering communications," or ads that run close to an election and mention a particular candidate. It also gave a green light to a ban on the raising and spending of "soft money," funds contributed to the major parties in excess of the limits on contributions that to individual candidates. In a stinging dissent, Justice Antonin Scalia noted the dangers inherent in the court's decision: "The first instinct of power is the retention of power, and, under a Constitution that requires periodic elections, that is best achieved by the suppression of election-time speech. We have witnessed merely the second scene of Act I of what promises to be a lengthy tragedy." Another tragedy is the extent to which Justice O'Connor now routinely provides the necessary fifth vote to advance an agenda viewed favorably by judicial activists. Over a decade ago she joined with David Souter and Anthony Kennedy, two other Republican appointees, to uphold the constitutionality of that Magna Carta of judicial activism: Roe v. Wade. This year she followed that up by joining a liberal majority that struck down state bans on homosexual behavior by using broad sociological language that would have made even members of the Warren Court squirm. And, of course, Ms. O'Connor wrote the court's opinion this year upholding the use of race in university admissions in the University of Michigan case. "We expect," she wrote, "that 25 years from now the use of racial preferences will no longer be necessary." The naiveté reflected in that statement is breathtaking. Entitlements don't go away merely because they are no longer needed. Judge Laurence Silberman, recently retired from the U.S. Circuit Court of Appeals for the District of Columbia, made a landmark speech in 1992 that explained the kind of pressures that nudge someone like Justice O'Connor away from her conservative moorings. Judges, he noted, are often swayed by a desire for praise. Their judicial vanity is often flattered when reporters or professors at elite law schools write glowing descriptions of how they've "grown in office,"--that is, come to see a liberal point of view more favorably. Journalists "have a lot more impact than [they] think," he noted ruefully. He said the most prominent media practitioner of the effort to "put political heat" on judges to move them in a more activist direction was Linda Greenhouse, then and now the legal affairs reporter for the New York Times. Judge Silberman called this process of co-opting judges the "Greenhouse effect." Friends of Justice O'Connor in her home state of Arizona have noted that she has become increasingly removed from the conservatism she once espoused as a state legislator and judge. "She seems to have gone the way of Barry Goldwater, who in his later years became much more liberal than before," recalls one former member of the Legislature. "Barry moved from libertarian to liberal on a range of issues. I think Sandra may be playing to the galleries a bit as she prepares to step down from the court." Peer pressure is usually something we discuss in the context of kids and the social pressures they face. But adults, even those in high places, also face peer pressure and more often than they care to admit are willing to succumb to it. Back in 1992, Judge Silberman did praise one justice who had proved impervious to such influences. "Clarence Thomas has, for some time, resolutely refused to read all but a couple of newspapers," Mr. Silberman declared. "There will be, I would bet my shirt, no journalistic hole bored in his ozone level." More than a decade later, Justice Thomas has indeed remained true to his principles. President Bush would be well to look for men and women of Justice Thomas's fortitude when it comes time for him to fill the next vacancy on the Supreme Court.opinionjournal.com