Justice at the center

July 02, 2005

IN ANNOUNCING her retirement from the U.S. Supreme Court, Sandra Day O'Connor has - at once - left a gaping hole in the center of the court and given George W. Bush his first opportunity to have an even more lasting influence on American jurisprudence than he has had with scores of appointments to lower federal courts. Given the tense standoff between the White House and the Senate generated by some of those nominees, it's at least somewhat comforting that Mr. Bush expressed admiration for Justice O'Connor's "intellect, wisdom and personal decency." As he looks to replace her, Mr. Bush would do well to choose someone very much like Justice O'Connor.

Born in Texas, Justice O'Connor spent some of her early years on the Arizona ranch owned by her family before earning her undergraduate and law degrees from Stanford University. She sometimes spoke of her early struggle to be taken seriously as a lawyer, having been rejected by several California law firms. But by the time she was appointed as the first woman associate justice in 1981, she had worked as a government prosecutor, been in private practice and won election to the Arizona Senate, where she served as the first female majority leader.

During her 24 years on the court, she has certainly been taken seriously, especially as she came to play a pivotal role at the court's center. She was often the controlling vote in critical 5-4 rulings in areas such as abortion, affirmative action, environmental rights, voting rights, campaign finance reform and separation of church and state. Her diverse rulings caused many to characterize her as neither a conservative nor a liberal, but a pragmatist who could be guided as much by legal precedent as by the real-life consequences of those precedents. Her sharp and often tough questioning from the bench was tempered by her warm, down-to-earth personality off the bench.

Justice O'Connor's retirement has created the first opening on the court in a decade, and she leaves amid speculation about other possible changes, particularly the departure of Chief Justice William H. Rehnquist, who is battling thyroid cancer. Almost any appointment to the high court sets off legal and political sparks. Justice O'Connor's importance as a swing voter is likely to raise the stakes in the replacement battle even higher than they will be if and when Justice Rehnquist - a much more predictable conservative - steps down.

In fact, with armies of activists on both sides spoiling for a fight, it's difficult to foresee how Mr. Bush can avoid a major confrontation.

Abortion, of course, is the ideological fault line. Religious conservatives, who play an outsized role in Republican politics, will demand a nominee committed to restricting or eliminating abortion rights. Democrats who take their marching orders from liberal groups demanding a commitment to the status quo on abortion won't be able to accept anything less.

A welcome check on the potential pyrotechnics of the confirmation process may be applied by the bipartisan Gang of 14, who recently defused the filibuster crisis over appellate nominees and have the power to do the same for Supreme Court candidates.

But the wisest course for Mr. Bush would be to select a replacement for Justice O'Connor who shares her most laudable qualities: a sharp legal mind, a clear-eyed view of how the Constitution applies to modern life, and a willingness to decide each case on its individual merits rather than her personal views.

If he chooses that well, the nation can't lose.

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