Andrew Cohen cheers here that the “political bullies who have launched and maintained their despicable attack on the authority and independence of the federal judiciary finally have met their match.” Reading this, I naturally expected an essay about the downfall or smacking down of anti-judicial-independence political bullies like Senators Dick Durbin, Chuck Schumer, Pat Leahy, and Ted Kennedy. No, it turns out that the meanies are people like the intelligent and even-keeled Sen. John Cornyn, and the conquering hero is “a small, frail woman by the name of Sandra Day O’Connor.”
For starters, Justice O’Connor is a formidable and impressive woman and lawyer . . . there’s nothing small or — all things considered — “frail”
about her. True, as Cohen writes, Justice O’Connor tried and tries hard to be “on the side of the Constitution and the Bill of Rights, checks and balances, and the separation of powers” — like, for instance, when she joined with Chief Justice Rehnquist to fix our distorted Religion Clause jurisprudence, or to dial back judicial management of the criminal-procedure process, or to re-invigorate our structural federalism. Of course, those who cheer Justice O’Connor’s (unremarkable) warnings about “dictatorship” (who’s for that?) probably were not so wild about her opinion upholding vouchers, or invalidating provisions of the Violence Against Women Act, or trimming the Miranda rule. Justice O’Connor had a groundbreaking and impressive career; she deserves better than to be used cynically by those who are too thin-skinned to distinguish “attacks on judges” and the road to dictatorship from disagreement with wrongly decided cases. After all, that judges are (and should be) independent does not make them infallible or immune from criticism. I’m sure Justice O’Connor knows that. It appears that Cohen does not.