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Bench Memos

NRO’s home for judicial news and analysis.

Is This “Extraordinary”?



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So, is replacing Justice O’Connor an “extraordinary circumstance” according to Senate Democrats? We’ll soon find out.

Media Signals



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Fox keeps showing film footage of POTUS looking on as Justice O’C swore
Alberto Gonzales in as AG. Are they trying to tell us something?

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Greens Gear Up



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Environmental activist groups are ready to fight over the next Supreme Court nominee. In a recent release, BushGreenwatch.org warned that a Court vacancy could “spell disaster” for the environment. Yet the substance of the release doesn’t support the claim. Most of the recent cases cited to show the Supreme Court can have a big impact on environmental law were decided by nearly unanimous courts, so one new justice won’t make any difference.

Timing



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The key question facing the White House is when to name O’Connor’s replacement. Obviously the administration wants a new justice before the Court reconvenes in October. Yet Fox reported today that the Senate Judiciary Committee expects to take several weeks to gear up for hearings on any nominee. If that’s the case, activist groups would have ample time to gin up opposition to any nominee–and it could be difficult to get a vote before the August recess.

“Conservative Majority” Lost before O’Connor’s Retirement



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Justice O’Connor’s retirement makes some sense, as this past term showed there is no “conservative majority” on the court. Of the seventeen 5-4 decisions this past term, Justice O’Connor joined her four more conservative colleagues only three times.

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Vacancy and Abortion



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The Left will start screaming that Roe is in jeopardy. Unfortunately, that is not true. The current Court is 6-3 in favor of Roe. The only abortion issue that comes into play is the barbarity of partial-birth abortion, where O’Connor was the fifth vote in favor of invalidating Nebraska’s partial-birth statute. Everyone but the most extreme pro-abortion fringe should welcome overturning that decision.

(For reasons explained here, it seems clear that Judge Gonzales, were he to be replace O’Connor, would not be able to participate in a case involving the federal partial-birth abortion statute and that his non-participation would lead to its invalidation.)

The “Swing” Justice?



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Justice O’Connor is often referred to as the “swing” justice who controls the outcome in key cases, but that wasn’t so much the case this past year. While O’Connor was in the majority in ten of the court’s 17 5-4 decisions, so were Justices Thomas, Souter, Scalia, and Kennedy. Moreover, O’Connor only wrote the majority opinion in one 5-4 case, whereas Justices Scalia, Kennedy, and Stevens wrote three apiece.

And So It Begins. . .



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Fox News Channel has just read Justice Sandra Day O’Connor’s letter to President Bush tendering her resignation, contingent on the appointment of her successor. And so it begins.

Many pixels will be posted on O’Connor and the nomination battle to come. My opening shot is that, whatever else might be said about her character or her significance as the first female justice, O’Connor should be remembered as one of the worst contributors to American jurisprudence in recent history. She was notorious as a “swing vote,” equally maddening to Left and Right at various times. But she consistently held one of the most expansionist views of judicial power, committed always to the most capacious version of the Court’s authority over American life. A few years ago I told my students my “O’Connor rule” for saving oneself a lot of trouble: If the Court has declared anything unconstitutional, and the vote was 5-4, and the fifth vote was provided by O’Connor, the case was wrongly decided. Reading the opinions is necessary only to confirm that judgment.

RE: Rose Garden



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He will speak on O’Connor, but news reports say, he will not name a successor today.

11:15



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The president will be in thhe Rose Garden then, presumably will talk SCOTUS.

Her Letter



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Here is the resignation letter from Sandra Day O’Connor to President Bush:

Dear President Bush:

This is to inform you of my decision to retire from my position as Associate Justice of the Supreme Court of the Untied States, effective upon the nomination and confirmation of my successor.

It has been a great privilege, indeed, to have served as a member of the Court for 24 terms.

I will leave it with enormous respect for the integrity of the Court and its role under our constitutional structure.

Sincerely,
Sandra Day O’Connor

Deep Breath



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The TV commentary is already out of control. She was the first woman. Historic. Obviously. Her replacement DOES NOT HAVE TO BE A WOMAN. Nine seats. All should be most qualified. And, thank you, conservative from this prez. Let’s not get caught up in quotas.

Expect an O’Connor Resignation Today



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is the buzz around town. Stay tuned–in here and The Corner

Re: Condemning Souter’s Property



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This crude forgery should fool no one, as the text is far too clear and concise to be Justice Souter’s (and doesn’t include the telltale “enquiry”). Still, it’s very much worth a look.

Developers Seeking to Condemn Justice Souter’s Residential Property to Build Hotel in New Hampshire



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The Corner covered this, but we haven’t mentioned: Instead of the Gideon Bible and a hairdryer, guest amenities at the “Lost Liberty Hotel” will reportedly include a copy of “Atlas Shrugged” and the U.S. Constitution.

NY Times: “We’re Above the Law”



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According to the conventional liberal mythology propagated by the New York Times and others, the Supreme Court is the final and authoritative expositor of the Constitution and all other government officials had better fall in line quickly with whatever it says.

Never mind that the president is required by the Constitution to take an oath that he “will to the best of [his] Ability, preserve, protect and defend the Constitution of the United States”–not the Supreme Court’s mistaken interpretations of the Constitution. Never mind that Marbury v. Madison, which is usually cited as the authority for this proposition, says nothing of the sort and that the Supreme Court itself never made such a claim until 1958. And never mind that Jefferson, Jackson, and Lincoln expressly repudiated the proposition. As Lincoln put it in his First Inaugural Address:

“[T]he candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, . . . the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”
As it happens, however, the New York Times would except its reporters from the obligation to follow even a final and specific court order directed at them. On Monday, the Court refused to review a district judge’s order requiring a Time magazine reporter and a New York Times reporter to turn over notes relating to the Valerie Plame leak investigation. Today, Time magazine stated that it would comply with the court’s order:
“The same Constitution that protects the freedom of the press requires obedience to final decisions of the courts and respect for their rulings and judgments. That Time Inc. strongly disagrees with the courts provides no immunity.”
The New York Times, by contrast, remained defiant and declared itself “deeply disappointed by Time Inc.’s decision.”

Disturbing



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This was in a piece yesterday in the Chicago Trib on Alberto Gonzales potential SCOTUS nominee: A “senior administration official” comments on conservative opposition to Gonzales for SCOTUS: “Does he [the President] care enough that that would stop him?” the official asked of whether Bush would nominate Gonzales over conservative opposition. “It would be a benefit to the party over a long period of time, and it would be historic.”

That doesn’t strike me as Rovian genius (i.e. this probably didn’t come from a senior White House official, I’d bet): Besides dissing conservatives, whose enthusiasm and support they’ll need, “Senior administration official” just admitted that a Gonzales nomination would be about politics–”benefit to the party,” including identity politics?

How about nominating the most qualified candidate? Which, for starters, given the recusal problems Ramesh and Ed Whelan have written about, AG Gonzales is not.

Chief Justice O’Connor



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I’m actually more sympathetic to David Boaz’s suggestion that Bush elevate O’Connor, and would enthusiastically endorse it if I thought Bush were guaranteed to name her eventual replacement as Chief as well. First, I don’t see it as a “reward” for her jurisprudence. It’s a pragmatic move that would potentially yield political benefits. Second, she’s already the swing justice in most cases, and the Chief’s role is often as a coalition builder. Whereas a CJ Thomas or Scalia would have to trim his sails to be an effective Chief — much as Rehnquist has done in many cases — O’Connor would not, as her sails are already trimmed. So, making her Chief doesn’t weaken the court’s conservative elements. Third, there’s always the chance — admittedly slim in the current political environment — that it would weaken opposition to the nomination of staunch originalist for the open associate spot. This is all moot in the end, however, as 1) I doubt O’Connor would take it, 2) If she did, she would probably feel obligated to stay on the court for more than two additional years casting doubt as to who would nominate her successor, and 3) I don’t think there’s any chance Bush will actually elevate her to Chief.

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.

Stevens & Ginsburg Retire, Write Book



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From Peggy Noonan:

Perhaps Justice Ginsburg or Justice Stevens will retire soon and write a memoir: Like Jefferson I held to principle, and like Lincoln I often lacked air conditioning. But in my intellectual gifts I’ve always found myself to be more like Oliver Wendell Holmes . . .

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