The Journal Editorial Report | July 1, 2005 | PBS
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Lead Story
July 1, 2005

Here Retires a Good Judge
Sandra Day O'Connor
Sandra Day O'Connor after her unanimous confirmation by the U.S. Senate to the Supreme Court on Capitol Hill in Washington, D.C. on Sept. 21, 1981. Standing with O'Connor, from left to right, are: Attorney General William French Smith, Sen. Barry Goldwater, R-Ariz., Sen. Dennis DeConcini, D-Ariz., Vice President George Bush, and Senate Judiciary Committee Chairman Sen. Strom Thurmond, R-S.C. (AP/Scott Applewhite)

The July 4th weekend began with an announcement that will keep fireworks going for the rest of the summer. Justice Sandra Day O'Connor resigned from the Court after 24 years, setting up a major battle in Washington over the composition and ideology of the Supreme Court. Joining the panel is John Fund of OpinionJournal.com, who covers Congress and politics.




PAUL GIGOT: The president reacted on Friday to her resignation by saying, "Look, Senate, we need a dignified confirmation process, a fair hearing." Are we going to get something like that?

JOHN FUND: If there is anyone out there who thinks mud-wrestling is dignified, then we are going to have a dignified process. This is going to be ugly, and the reason is that Sandra Day O'Connor is one of two justices on the court who is viewed as a moderate or swing vote. On a whole range of issues, people are going to say this could tilt the balance of the court one way or the other. I think a lot of this is exaggerated. For example, on abortion, which is the big hot-button subject, Sandra Day O'Connor was part of a six to three majority that upheld Roe v. Wade in 1992.

GIGOT: The famous case in this decision.
Sandra Day O'Connor
Sandra Day O'Connor at the University of Houston Law Center, March 10, 2005. (AP)


FUND: Right, exactly. That wouldn't be changed. What might be changed is partial birth abortion, which the court struck down a state law on five to four. But that's an 80-20 issue in this country. Eighty percent of the country is uncomfortable with partial birth abortion. So, a lot of Sturm und Drang about this, but I'm not so sure the differences are that dramatic between O'Connor and any potential successor.

GIGOT: But certainly the argument that she is a swing vote is going to be heard. I think on affirmative action, on church-state relations, on federalism, she has been that fifth vote for a lot of those decisions. This resignation means probably, does it not, a tougher fight than if the chief justice had resigned?

DAN HENNINGER: I think that's right. Sandra Day O'Connor, in some ways, represents what the Democrats keep calling somebody who is in the mainstream. She was appointed a long time ago. Given the politics as it has evolved, it is really hard to be in the mainstream now. We have reached the point where there is a fundamental disagreement on judicial philosophy. This is the culmination of a sixty-year battle. It started in the 1940s when the idea rose that legislatures were not achieving justice, like in civil rights, that the court should do that. The courts did it across the broad canvas of American life. That's the Democratic position. George Bush represents the position that this authority should revert to legislatures, that they should be setting social policy in the United States. It is a very fundamental philosophical disagreement that is represented in these judicial nominees now.

GIGOT: What about the fact that she was the first woman named to the court, and that creates an opening, if you think that there are seats reserved for women on the court. Will there be any pressure for the president to replace her with a woman? Are there a lot of Republican candidates, conservative candidates, out there he could call upon?

HENNINGER: The short answer is yes. There will be pressure and he could nominate Janice Brown, he could nominate Priscilla Owen -- two women who were just household names in the fight over the appellate judges -- or Edith Jones of the Fifth Circuit. Having done that, we will be back to the races because those women were opposed by the Democrats on philosophical grounds and because of their judicial philosophy. Once you get past the fact that they are woman, it won't make any difference.

O'Connor
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GIGOT: Any way to avoid a fight here?

FUND: Well yes. There was an agreement on whether or not judges should be filibustered a few weeks ago. Remember the 14 senators?

GIGOT: Sure, the extraordinary circumstances test, which was introduced.

FUND: Exactly.

GIGOT: Only filibuster under extraordinary circumstances, a very elastic phrase.

FUND: But not that elastic, because those 14 senators pledged that several nominees that had been opposed in the base's ideology would now go through. They obviously did not represent extraordinary circumstances. They pledged to enforce that agreement. They said if the Senate was filibustering a nominee outside of extraordinary circumstances, they would all vote to end the debate. If that agreement means what it says, presumably you won't have the opposition to this nominee based on ideology, because I don't think that if you read the agreement thoroughly, that is in the agreement.

GIGOT: But certainly Republicans are going to try to define it that way, saying ideology is now off the table. And by ideology, we mean your view of the law on abortion, on issues, on cases. So are you saying that if Democrats want to filibuster, it is going to come down to personal qualities, or ethics, or something like that? And if that is true, then we are talking about a replay of some ugly confirmation fights from the past?

FUND: Because this is viewed as a swing-justice position, I think that there will be a filibuster, regardless of the circumstances, including ideology. That is why Bill Frist may have to start talking again about the so-called nuclear option. In other words, if he thinks -- and he has agreement from several of the senators that were part of this agreement -- that this filibuster is invalid, we may be seeing him threaten to do that again.

GIGOT: What about Alberto Gonzales, the attorney general, a very close friend, and loyal supporter of the president. Everything I hear says that the president would love to put him on the court to make him the first Hispanic justice of the United States, at some point, maybe not now. Would that be an easier confirmation fight?

HENNINGER: In some respects, yes, but he would still get a lot of trouble over the so-called torture memos that he was razzed about when he was nominated for attorney general. In addition, the conservative base is not happy with Mr. Gonzales. They have sent as many signals as possible to the White House that they are not pleased with his record on the Texas Supreme Court and they view him as unreliable.

GIGOT: He also only got 60 votes for confirmation for attorney general, after pretty rough treatment. That would tend to confirm your point, Dan, that anybody the president sends up is just going to be tough.

HENNINGER: Anybody who is paying any attention at all knows how divided our politics are now in Washington. The Supreme Court is not going to be an exception. It will go right into the same threshing machine as Social Security or anything else.

GIGOT: We'll be watching.

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