O'Connor to Retire From Supreme Court

As High Court Battle Nears, Parties Parse the Senate Filibuster Deal

By Peter Baker and Charles Babington
Washington Post Staff Writers
Wednesday, July 6, 2005; Page A01



The White House and Senate Democrats headed toward a collision yesterday over the role ideology should play in the selection of the next Supreme Court justice, outlining a key conflict that could define the nomination battle over a successor to Justice Sandra Day O'Connor.

http://www.washingtonpost.com/wp-dyn/content/article/2005/07/05/AR2005070501698.html?referrer=email

Both she and Breyer, both reputed to be seriously liberal judges, breezed through the confirmation process. Let's hope the Democrats now are as reasonable as the Republicans were then.

[It] was not a surprise when the President called to talk about the appointment and what he was thinking of doing.

President Clinton indicated he was leaning toward nominating Bruce Babbitt, his Secretary of the Interior, a name that had been bouncing around in the press. Bruce, a well-known western Democrat, had been the governor of Arizona and a candidate for president in 1988. Although he had been a state attorney general back during the 1970s, he was known far more for his activities as a politician than as a jurist. Clinton asked for my reaction.

I told him that confirmation would not be easy. At least one Democrat would probably vote against Bruce, and there would be a great deal of resistance from the Republican side. I explained to the President that although he might prevail in the end, he should consider whether he wanted a tough, political battle over his first appointment to the Court.

Our conversation moved to other potential candidates. I asked whether he had considered Judge Stephen Breyer of the First Circuit Court of Appeals or Judge Ruth Bader Ginsburg of the District of Columbia Court of Appeals. President Clinton indicated he had heard Breyer's name but had not thought about Judge Ginsberg.

I indicated I thought they would be confirmed easily. I knew them both and believed that, while liberal, they were highly honest and capable jurists and their confirmation would not embarrass the President. From my perspective, they were far better than the other likely candidates from a liberal Democrat administration.

In the end, the President did not select Secretary Babbitt. Instead, he nominated Judge Ginsburg and Judge Breyer a year later, when Harry Blackmun retired from the Court. Both were confirmed with relative ease.

Note that prior to this exchange, nobody in the Republican Party, let alone the Senate, had indicated they intended to make it difficult or impossible for President clinton to get a confirmation no matter who he nominated

Reagan's biggest mistake finally retires
Ann Coulter (archive)

July 6, 2005

The fundamental goal of the next Supreme Court justice should be to create a record that would not inspire Sen. Chuck Schumer to say, as he did of Justice O'Connor last week: "We hope the president chooses someone thoughtful, mainstream, pragmatic - someone just like Sandra Day O'Connor." That's our litmus test: We will accept only judicial nominees violently opposed by Chuck Schumer.

Showing what a tough job it is to be president, when Bush announced O'Connor's resignation, he called her "a discerning and conscientious judge and a public servant of complete integrity." I assume he was reading from the script originally drafted for Justice Rehnquist's anticipated resignation, but still, he said it.

Cleverly, Bush also made a big point of noting that Reagan appointed O'Connor, reminding people that whatever mistakes Bush may have made, at least he didn't appoint O'Connor.

It's hard to say which of O'Connor's decisions was the worst. It's like asking people to name their favorite Beatle or favorite (unaborted) child.

Of course, it was often hard to say what her decision was, period. In lieu of clear rules, or what we used to call "law," O'Connor preferred conjuring up five-part balancing tests that settled nothing. That woman could never make up her mind!

In a quarter-century on the highest court in the land, O'Connor will have left no discernible mark on the law, other than littering the U.S. Reports with a lot of long-winded versions of the legal proposition: "It depends."

Some say her worst opinion was Grutter v. Bollinger, which introduced a constitutional rule with a "DO NOT USE AFTER XXXX DATE." After delivering a four-part test for when universities are allowed to discriminate on the basis of race (a culturally biased test if ever there was one), O'Connor incomprehensibly added: "The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today."

So now constitutional rules come with expiration dates, bringing to mind the image of O'Connor proffering one of her written opinions to Justice Scalia and asking, "Does this smell bad to you?" Strangely enough, she failed to specify which month and day in the year 2028 that affirmative action would no longer be justifiable under the Constitution.

Others say her worst decisions came in the area of religion. In determining the constitutionality of religious displays on public property and government aid to religion, Justice O'Connor evidently decided she preferred her own words, "entanglement" and "endorsement," to the Constitution's word "establishment."

No one could ever understand O'Connor's special two-prong entanglement/endorsement test - including Justice O'Connor. Over the years, she struggled to resuscitate her own test by continually adding more tines to the prongs.

Among the tines to the "endorsement" prong is the "outsider" test, requiring that the government not make a nonbeliever feel like an "outsider." But wait! There are spikes on those tines!

O'Connor discovered a spike off the Feelings tine of the Endorsement prong, which requires the court's evaluation of the feelings of the nonbeliever to be based on a "reasonable observer" who embodies "a community ideal of social judgment, as well as rational judgment."

It's often said that O'Connor's problem is that she is not a judge, but a legislator. On the basis of her bright idea to replace 10 blindingly clear words in the Constitution ("Congress shall make no law respecting an establishment of religion") with a 40-page manual of flow charts and two-pronged, four-tined, six-spiked tests, she wouldn't have made much of legislator, either. O'Connor's real calling was as a schoolyard bully, maliciously making up rules willy-nilly as she went along.

Processing the religion cases through the meat grinder of her own multipart tests, O'Connor found it was unconstitutional for a Reform rabbi to give a nonsectarian prayer at a high school graduation. It was also unconstitutional for a courthouse in Kentucky to display a framed Ten Commandments along with other historical documents.

In the latter case, McCreary v. ACLU, O'Connor haughtily added this bit of advice to religious believers: Visionaries "held their faith 'with enough confidence to believe that what should be rendered to God does not need to be decided and collected by Caesar.'"

Religion may be able to get along without the government, but apparently sodomy and abortion cannot. Those, O'Connor found, were special rights protected by the Constitution.

O'Connor took sadistic glee in refusing to overturn Roe v. Wade in the face of the unending strife it has caused the nation. (And it hasn't been easy on 30 million aborted babies either.)

She co-authored the opinion in Planned Parenthood v. Casey which upheld Roe v. Wade, gloating: "[T]o overrule under fire in the absence of the most compelling reason ... would subvert the Court's legitimacy beyond any serious question." Yes, the court has really crowned itself in glory with those abortion decisions.

At least she would not overrule a precedent for something as trivial as a human life. Overruling a precedent would require a really, really compelling value like our right to sodomize one another.

Thus, in the recent sodomy case Lawrence v. Texas, which overruled an earlier case that had found no constitutional right to sodomy (risibly titled Bowers v. Hardwick), O'Connor specifically cited criticism of Bowers as a reason to overrule it. "[C]riticism of Bowers has been substantial and continuing," O'Connor explained in her concurrence. When "a case's foundations have sustained serious erosion, criticism from other sources is of greater significance."

Mercifully, O'Connor was concurring only in Lawrence, so there is no multipronged test for sodomy under the Constitution.

For all the blather about O'Connor's moderation and pragmatism and motherly instincts, Mommie Dearest signed on to the most monstrous opinion in the history of the court, Stenberg v. Carhart, which proclaimed a heretofore unnoticed constitutional right to puncture the skull of a half-delivered baby and suction its brains out - just as the framers so clearly intended.

In her 2003 memoir, Miss Pragmatic-Consensus wrote, "Humility is the most difficult virtue," which perhaps explains why she never attempted it.

Every human being on the globe has heard the lachrymose tale of O'Connor being offered the job of secretary after her graduation from Stanford Law School. Bushmen in Africa weep at the unfairness of it all - though not as bitterly as O'Connor does.

O'Connor spent the last quarter-century paying America back. With no offense intended to the nonbelievers who are "reasonable observers" embodying "a community ideal of social judgment, as well as rational judgment," thank God the punishment is finally over.

U.S. senators should be considered by President Bush to fill the vacancy on the U.S. Supreme Court, Senate Minority Leader Harry Reid said Wednesday.

Reid, D-Nev., also said he and Bush have talked privately to ensure that the appointment of the successor for Supreme Court Justice Sandra Day O'Connor does not reach the level of partisan squabbling that has epitomized the debate over recent judicial nominations.

"I know that I won't get someone who I will jump up and down and cheer for," Reid told a group of employees at the Reno Gazette-Journal. "But there are many fine and conservative jurists out there.

Excerpted from an article in Reno-Gazette Journal today. I couldn't figure out how to post the impossibly long link without severely stretching the page, however.

Thank you Tico. Now would you please PM me and explain to me how you do that thingee where you translate an impossibly long link into one word? Please keep it in simple words - computer klutz here.

And even with all that, could you elaborate on what any of that has to do with the GOP supporting Clinton's high court nominations?

it was the DEMOCRATS who iwere in charge when Congress instigated an investigation of Whitewater that, at the order of Janet Reno, eventually expanded into the Paula Jones/Lewinsky scandal, all with a special counsel hand picked by Clinton and Janet Reno.

> From the St. Petersburg Times:
>
> Scalia's scary America
>
> By ROBYN E. BLUMNER, Times Perspective Columnist
> Published July 3, 2005
>
> Justice Antonin Scalia would remake our secular republic into a
> quasi-theocracy; and with the pending retirement of Justice Sandra Day
> O'Connor, we may soon have a court that is one step closer to adopting
> his
> vision.
>
> In Scalia's America, Buddhists, Hindus, atheists and anyone else not
> belonging to a monotheistic religion would become potted plants, shunted
> to
> the side as marginal citizens. Government would embrace, promote and even
> possibly fund a belief in the worship of one God.
>
> In McCreary County vs. ACLU of Kentucky, a 5-4 majority of the Supreme
> Court ordered the removal of the Ten Commandments from courthouses in two
> Kentucky counties. Scalia, in an apoplectic dissent, made a case for a
> civil religion. He claimed the founders intended for government to
> endorse
> a belief in a single, personal God who is directly engaged in the affairs
> of men.
>
> "With respect to public acknowledgment of religious belief," Scalia wrote,
> "it is entirely clear from our nation's historical practices that the
> Establishment Clause permits this disregard of polytheists and believers
> in
> unconcerned deities, just as it permits the disregard of devout atheists."
>
> As proof, Scalia offered up a litany of occasions when the founders
> invoked
> "God" during official business, including Thomas Jefferson's second
> inaugural address in which he asks for "the favor of that Being in whose
> hands we are" and James Madison's first inaugural address in which he
> places his confidence "in the guardianship and guidance of that Almighty
> Being."
>
> Scalia, a devout Catholic, is distorting the historical record in order to
> shoehorn his personal faith into civic life. Scalia discounts a singularly
> important fact: The Constitution, our nation's seminal document, purposely
> includes no mention of a deity. Religion is mentioned only to guarantee no
> religious test for public office. The founders at the Constitutional
> Convention were creating a nation governed by men, based on the ideas of
> men, and they understood perfectly - having been witness to the centuries
> of religious conflict in Europe - the danger of government entangling
> itself in sectarianism.
>
> As to Jefferson, far from injecting religion into his official role, he
> scrupulously avoided it. He refused to proclaim national days of fasting
> and thanksgiving as had Adams and Washington before him. And in his
> famous
> letter to the Danbury Baptists, Jefferson reassured the group that the
> Constitution had erected "a wall of separation between church and state."
>
> Madison also wrote often on the need to separate the ecclesiastical and
> the
> civil - for the benefit of both realms. In 1822, he said, "religion and
> government will both exist in greater purity, the less they are mixed
> together." His 1785 Memorial and Remonstrance Against Religious
> Assessments stands as one of the greatest exhortations against the use of
> taxes to support religious teachings.
>
> Scalia's argument is that the founders sought to keep government neutral
> relative to differing denominations but not between the religious and
> nonreligious. He approved the display of the Decalogue in the Kentucky
> courthouses because the Commandments reflect the
> "Thou-shall-have-no-other-gods-before-me" monotheism of the nation's three
> most popular religions: Christianity, Judaism and Islam. All three,
> according to Scalia, believe in the divinity of the Commandments and the
> same God. (That's a nice gloss to put on historic and bloody divisions on
> the nature of God.) As to the 7-million Americans who adhere to religions
> that are not monotheistic, Scalia says tough luck. There should be no
> government neutrality as to them, because they are so few.
>
> "(W)e do not count heads before enforcing the First Amendment," Justice
> Sandra Day O'Connor scolded. She reminded Scalia of the oft-repeated
> principle that the very purpose of the Bill of Rights was to remove
> certain subjects "beyond the reach of majorities."
>
> Scalia seemed rhetorically unprepared when Justice John Paul Stevens
> informed him that the Decalogue comes in different forms depending on
> one's faith. The Kentucky counties chose to display the King James
> version. But Jews and Catholics have their own. By choosing one form over
> another, Kentucky was violating the very denominational neutrality that
> Scalia claimed to support.
>
> His answer to this inconsistency was to punt. "I doubt that most religious
> adherents are even aware that there are competing versions with doctrinal
> consequences (I certainly was not)," Scalia wrote. He then claimed that
> due
> to the context of the postings, no viewer could "conceivably" believe
> that
> the government was taking religious sides.
>
> Oh, no? Then why didn't the good people of Kentucky choose the Jewish
> version?
>
> Scalia has looked out upon the nations of the world where the government
> endorses certain religious ideas and not others - Saudi Arabia, China,
> Sudan - and decided that the United States should join in. Our national
> religion should be monotheism, and all those who don't agree should just
> shut up and thank their lucky stars that they're allowed to stay at all.
> What a scary, un-American place it would be, living in Scalia's America.