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Bench Memos

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Chief Justice O’Connor?



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David Boaz of the libertarian Cato Institute argues in the American Spectator that promoting Justice O’Connor to chief justice would be an “inspired choice.” I vigorously disagree. Indeed, I think that nominating O’Connor as chief justice would be a monumental blunder, both jurisprudentially and politically.

Boaz’s case, in a nutshell, is that nominating the “moderate conservative” O’Connor as chief justice would help pull professional women towards the Republican party, would be a slam-dunk confirmation, and would enable the president to appoint another chief justice in a year or two when O’Connor retires.

The media routinely portrays O’Connor as a “moderate conservative,” but this label cannot plausibly be applied to someone who pretends that the due process clause guarantees a right to abortion (indeed, an essentially unrestricted right throughout all nine months of pregnancy and a right to partial-birth abortion), that the equal protection clause prohibits differential treatment of homosexual conduct, and that the establishment clause bars governmental affirmation, acknowledgment, and promotion of respect for religion. If her positions on these culture-war issues were merely her own political views, they would place her well to the left. By wrongly entrenching them in constitutional law, she has usurped the power of the people to act through the democratic processes.

If O’Connor has any jurisprudential principle, it is that she should not be bound by any jurisprudential principle. More than any other justice, she has promoted a subjective, totality-of-the-circumstances, multiple-balancing-test approach that engenders confusion and maximizes judicial lawlessness. It is true that O’Connor’s unprincipled approach from time to time yields a vote in favor of results that might be labeled conservative, but she has an uncanny knack for doing so in cases where her vote doesn’t matter.

Rewarding O’Connor would be a flat betrayal of everything that President Bush has promised he is looking for in Supreme Court justices. Whatever marginal political benefit it might have with professional women would be dwarfed by the demoralizing effect it would have on conservatives (yes, including many conservative women) and by the resulting depressed turnout in 2006 and 2008.

Making O’Connor chief justice is also the single event most likely to extend her tenure on the Court. Why anyone would think that she would resign after one or two years, rather than try to establish the legacy of the O’Connor court, is entirely unclear.

There are only two justices on the Court who are plausible candidates for elevation: Scalia and Thomas. No other choice would be “inspired”–at least, not inspired by good judgment.



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