Tuesday, July 5, 2005
Page 5
Justice Sandra Day O’Connor Announces Retirement After 24 Years
From Staff and Wire Service Reports
Sandra Day O’Connor, the first woman on the Supreme Court and a swing vote on abortion as well as other contentious issues, announced her retirement Friday.
A bruising Senate confirmation struggle loomed as President Bush pledged to name a successor quickly.
“It has been a great privilege indeed to have served as a member of the court for 24 terms,” the 75-year-old justice wrote Bush in a one-paragraph resignation letter. “I will leave it with enormous respect for the integrity of the court and its role under our constitutional structure.”
Little more than an hour later, Bush praised O’Connor as “a discerning and conscientious judge and a public servant of complete integrity.” He said he would recommend a replacement who will “faithfully interpret the Constitution and laws of our country.”
O’Connor’s decision—so closely held that a son did not know in advance—marked the first retirement in 11 years on an aging court. It came as a modest surprise, particularly since Chief Justice William Rehnquist has been the subject of retirement rumors for months. Rehnquist, 80 and ailing with thyroid cancer, has offered no hint as to his future plans.
O’Connor’s decision capped a pioneer’s career. President Reagan broke nearly 200 years of tradition when he tapped her—a top-ranked graduate of Stanford law school—for the high court
A former law clerk said she will be remembered for far more than her gender.
“This is one of the remarkable careers in American law,” UCLA law professor Eugene Volokh, who worked for the justice during the 1993-94 term, told the MetNews. Not only did O’Connor succeed in a male-dominated profession, he noted, she went into politics in her conservative home state, and then onto the state bench, “and did spectacularly well.”
Volokh said he learned of the retirement from his brother, who is currently clerking for the justice and remains on her staff for the time being, as the retirement is not effective until a successor is chosen.
O’Connor was considered a judicial conservative when she came to the bench. Over time, she evolved into a moderate conservative, but more importantly, a majority maker.
She voted with a 5-4 majority, for example, on the case that effectively awarded the disputed 2000 presidential election to Bush. She was on the winning side again when the court upheld the right of women to have an abortion if their health were in danger.
She was “remarkably influential,” Volokh said, not only in her votes but in her ability “to enunciate doctrines and approaches that ultimately brought around a majority.” He cited both the abortion issue and that of school choice, in which she rallied a majority around the idea that the government may give parents financial aid to send their children to religious schools, without offending the First Amendment’s Establishment Clause.
She expressed her views pungently at times. Last week, in a dissent in a 5-4 ruling that let local governments take personal property to build malls and other businesses, she wrote that the majority had unwisely handed more power to the powerful.
“The specter of condemnation hangs over all property,” O’Connor wrote. “Nothing is to prevent the state from replacing ... any home with a shopping mall, or any farm with a factory.”
Bush pledged to send a nomination to the Senate in time for a vote by the time the court begins its new term in October, but aides said it would not be before he returns from a scheduled trip to Europe on July 8. He said he and his administration would consult with lawmakers, and said “the nation deserves a dignified” confirmation debate.
Officials said the president did not know until around 9 a.m. Friday that O’Connor was stepping down, although his top lawyer, Harriet Miers, was alerted on Thursday to expect news of some sort from the court.
O’Connor’s retirement leaves Justice Ruth Bader Ginsburg as the only woman among eight remaining justices. One official said Bush’s “short list” had included only men, and suggested a quick move to expand the roster of contenders.
Volokh said his preference would be Ninth U.S. Circuit Court of Appeals Judge Alex Kozinski, for whom he clerked before going to Washington. But Kozinski’s name is not on any of the reported shortlists and his appointment is unlikely, Volokh said.
O’Connor, in a separate one-sentence statement, cited her age and said she “needs to spend time” with family. She and her husband, John, a former classmate at Stanford, have three sons, Scott, Brian and Jay. She had breast cancer in 1988.
Already, battle lines were forming in anticipation of a summer confirmation struggle in the Senate — judicial philosophy, not gender, the key factor among outside groups as well as lawmakers.
“We’ll look back on Justice O’Connor as someone who put reason ahead of ideological fervor, which stands her in stark contrast to many of the judges who might replace her if the radical right gets its way,” said Nancy Keenan, president of NARAL Pro-Choice America.
Progress for America, a conservative group, instantly launched a humorous Web-based advertisement meant to anticipate attacks on Bush’s as-yet-unknown choice and mock them at the same time.
“The president nominated George Washington for the Supreme Court. Democrats immediately attacked Washington for his environmental record of chopping down cherry trees,” it said.
Nowhere was O’Connor’s judicial reasoning more widely studied than when it related to abortion — an issue that divides the court as it does the country.
She distanced herself both from her three colleagues who say there is no constitutional underpinning for a right to abortion — and also from others who argue the right is a given.
O’Connor initially balked at letting states outlaw most abortions, refusing in 1989 to join four other justices who were ready to reverse the landmark 1973 decision that said women have a constitutional right to abortion.
Then in 1992, she helped forge and lead a five-justice majority that reaffirmed the core holding of the 1973 ruling. Subsequent appointments secured the abortion right. Commentators called O’Connor the nation’s most powerful woman, but O’Connor poo-poohed the thought.
“I don’t think it’s accurate,” she said in an Associated Press interview.
The enormity of the reaction to O’Connor’s appointment had surprised her. She received more than 60,000 letters in her first year, more than any one member in the court’s history.
“I had no idea when I was appointed how much it would mean to many people around the country,” she once said. “It affected them in a very personal way. People saw it as a signal that there are virtually unlimited opportunities for women. It’s important to parents for their daughters, and to daughters for themselves.”
At times, the constant publicity was almost unbearable. “I had never expected or aspired to be a Supreme Court justice. My first year on the court made me long at times for obscurity,” she once said.
On the court, O’Connor generally favored states in disputes with the federal government and for enhanced police powers challenged as violative of asserted individual rights.
In 1985, she wrote for the court as it ruled that the confession of a criminal suspect first warned about his rights may be used as trial evidence even if police violated a suspect’s rights in obtaining an earlier confession.
O’Connor wrote the 1989 decision that struck down as an unconstitutional form of affirmative action a minority set-aside program for construction projects in Richmond, Va.
In 1991, she led the court as it ruled in its first-ever decision on rape-shield laws that states may under some circumstances bar evidence that a defendant and his alleged victim previously had consensual sex.
O’Connor once described herself and her eight fellow justices as nine fire fighters.
“When (someone) lights a fire, we invariably are asked to attend to the blaze. We may arrive at the scene a few years later,” she said.
O’Connor was 51 when she joined the court to replace the retired Potter Stewart. A virtual unknown on the national scene until her appointment, she had served as an Arizona state judge, and before that as a member of her state’s Legislature.
A fourth-generation Arizonan, she had grown up on a sprawling family ranch.
The woman who climbed higher in the legal profession than had any other member of her sex did not begin her career auspiciously. As a top-ranked graduate of Stanford’s prestigious law school, class of 1952, O’Connor discovered that most large law firms did not hire women.
One offered her a job as a secretary. Perhaps it was that early experience that shaped O’Connor’s professional tenacity. She once recalled a comment by an Arizona colleague: “With Sandra O’Connor, there ain’t no Miller time.”
“I think that’s true,” confessed the justice whose work week most often extended beyond 60 hours.
But she played tennis and golf well, danced expertly with her husband, and made frequent appearances on the Washington party circuit.
O’Connor was embarrassed in 1989 after conservative Republicans in Arizona used a letter she had sent to support their claim that the United States is a “Christian nation.”
O’Connor said she regretted the letter’s use in a political debate. “It was not my intention to express a personal view on the subject of the inquiry,” she said.
Copyright 2005, Metropolitan News Company