O’Connor Resignation Starts the Real Fight

The entire punditocracy had been expecting Chief Justice William Rehnquist to resign after the latest term of the US Supreme Court. Instead, “swing vote” Justice Sandra Day O’Connor has decided 24 years is enough on the top bench in the land. The appointment of her successor is going to be the political fight of the year, and the outcome will have effects well into the middle of the century.

Appointed by Ronald Reagan in 1981, Justice O’Connor was not the hard right ideologue one might expect the Gipper to have selected. In many recent cases, her non-ideological (or mixed ideological, or plain moderate-conservative) views put the reactionary or liberal bloc over the top in a 5-4 decision. She came down on both sides of the Ten Commandments in public places in two different cases (Note: Since the Protestants and the Catholics disagree on what the Decalogue is, posting any version establishes a preferred version of Christianity – the very thing that caused the Thirty Years’ War, the English Civil War, and more than 1 million deaths). Hers was the deciding vote in Planned Parenthood v. Casey, which upheld the right to abortion, Lee v. Weisman , which held that prayer before public school events was establishment of a religion, and Zelman v. Simmons-Harris, which allowed taxpayer funded vouchers to pay parochial school fees. And the less said about Bush v. Gore, which halted the counting of votes in an American election, the better.

The Bush administration now gets to pick a nominee that is more consistently conservative. The temptation will be to nominate a hard-right reactionary Scalia clone, but the truth is any conservative within the American mainstream will be far to the right of Justice O’Connor because the country’s entire political spectrum has shifted that direction. It would be wiser to save the arch-conservative choice for Rehnquist’s replacement, which can’t be far off, when the balance of power has already shifted.

The administration is also making a mistake in announcing the nominee when Mr. Bush gets back on July 8 from the G-8 confab. He should keep his mouth shut on the appointment until Labor Day, and reduce the amount of time the left has to nitpick over his man or woman’s record. The next term of the Supreme Court is October (what a lovely long vacation), and that sets a reasonable deadline of five or six weeks to get the confirmation done, and will prevent the nomination from dying a death of a thousand cuts.

The Gang of 14 who helped avert the nuclear option on the filibuster of judicial appointments now becomes key. The “extraordinary circumstances” exclusion that would permit a filibuster is about to be defined, and the wiggle room is narrow. The 7 Democrats within the Gang will be pulled hard by the liberal lobbies while the media will have rightists howling for their blood if they don’t allow an up or down vote (which guarantees confirmation since the GOP has 54 of the 100 seats in the Senate).

Of course, this predicament, where one person can shift the paradigm of American law and hence American society, has arisen because of the gutlessness of the left in America. Rather than get in the trenches during the Reagan-Bush years and fight tooth and nail, they came up with the Democratic Leadership Council and New Democrat Bill Clinton. Any real lefty moves were restricted to court battles. And now the courts aren’t friendly because in 1992, the progressives in America didn’t steamroller the GOP when they had the chance. Well, maybe this’ll learn ‘em.



© Copyright 2005 by The Kensington Review, J. Myhre, Editor. No part of this publication may be reproduced without written consent.
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