The unexpected retirement of Justice O'Connor fills many of us with dread. Who would have thought, when this conservative Arizona jurist was appointed by Reagan nearly a quarter-century ago, that she would come to be one of the last lines of defense against extremist government?
As has been endlessly noted in the last 24 hours, this Justice has held the balance of power on many key issues before the Supreme Court, and therefore the country, tipping it our way (affirmative action) sometimes and their way (Bush v. Gore) other times. It shouldn't be that way, in a balanced, well-functioning democracy, but we are dangerously close to it. One commentator -- I think it was Jeffrey Rosen of the New Republic, though I am not hisleading fan -- wrote something about the Court and O'Connor recently that rang true to me: given the extreme polarization of the elected branches of government, the Supreme Court has come to reflect the actual mood of the country better than the Congress. But maybe that's as it should be. After all, the role of the court in our democracy is to check abuses of power by political majorities.
The center-right members of the court have come to be, along perhaps with a handful of Senators represented in the "Gang of 14" who forged the filibuster compromise, one of the few remaining not-completely-predictable players in American public life. Try to figure out the Kelo decision of last week, involving use of eminent domain by cities to seize homes to promote economic development. Breyer, the last Clinton appointee, was part of the majority that cleared the way for it; O'Connor was passionate in dissent. A victory for big government over private property rights? Maybe, since the next day a group of extremely right-wing members of Congress, led by Tom DeLay, gathered to vow to overturn the decision (along with the Ten Commandments decision they don't like). Then how to explain the "outraged" reaction from Rep. Maxine Waters, who said of the decision: "It's the most un-American thing that can be done." We need more strange bedfellow issues in American life.
My mailbox has been flooded since O'Connor's announcement with the alarms of advocacy groups, and sorting through all this I have a few thoughts.
It would be nice to be able to hope that President Bush will actually try to pick a candidate who would be acceptably conservative, not extremist, and avoid a bloody, protracted, polarizing battle over this, including yet another fight over the "nuclear option." But it's hard to imagine he will. The way Bush misled the nation on Iraq is unforgivable, but I was never taken in by it. The way he misled the country about his true nature -- "I'm a uniter, not a divider" -- shilled me, too. Not into voting for him, of course, but into hoping (and expecting, based on his Texas record) that he would govern a divided country by tilting to the middle.
The fact that it is O'Connor who is creating the vacancy ratchets up the likelihood that an extremist will be nominated, since I doubt Bush would want to reduce the number of women on the court, and the female judges on his list, including the two Ediths, are more hardline than many of the men.
Harry Reid has been talking up the idea of a Senator or someone else from the political world for the next Supreme Court vacancy, and this is something I've felt for a long time, too. O'Connor herself is the member of the current court with the most political experience, having served as Minority Leader of the Arizona House. (Not counting Rehnquist's youthful efforts to bar black voters from the polls.) Earl Warren, Hugo Black, William Howard Taft, Charles Evan Hughes -- all of these former Justices and Chief Justices held political office. Clinton came close to nominating Bruce Babbitt or Mario Cuomo. I worry, of course, about what kind of politician Bush would nominate. If it's Rick Santorum, I take back my enthusiasm for this idea.