Bench Memos

Linda Hirshman vs. Justice O’Connor

On the New Republic’s website, Linda Hirshman contends that a letter that Justice Sandra Day O’Connor wrote to Senator Barry Goldwater in 1988 makes “clear” that O’Connor “saw the [Supreme] Court as a political body.” But that contention makes no sense if there is any difference between politics and judicial philosophy. (And for anyone who believes that there is no such difference, the contention is a trivial tautology.)

According to Hirshman, in her letter to Goldwater just days before the 1988 presidential election, O’Connor wrote:

I will be thankful if George B. [George H.W. Bush] wins. It is vital for the Court and the nation that he does.

Informed observers recognized that the justices that George H.W. Bush and Michael Dukakis would nominate would likely have very different approaches to constitutional interpretation. Recognizing that prospect, as O’Connor evidently did, does not entail regarding the Court as a “political body.”

Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

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