RKMBs Forums .::Important::. Politics and Current Events Supreme Court Justice O'Connor retires

WASHINGTON (Reuters) - Justice Sandra Day O'Connor, the first woman on the U.S. Supreme Court and a moderate conservative who often controlled the outcome on abortion and other issues, announced her retirement on Friday, setting the stage for a major political battle over her successor.

"This is to inform you of my decision to retire from my position as an associate justice of the Supreme Court of the United States, effective upon the nomination and confirmation of my successor," O'Connor, 75, said in a letter to President Bush.

O'Connor gave no reason why she was resigning from the nine-member court, whose decisions play a central role in shaping the social, cultural and political fabric of the United States. It has been closely divided on such hot-button issues as abortion, the death penalty and church-state separation.

A court spokeswoman said O'Connor needed to spend time with her husband. He has Alzheimer's disease.

"It has been a great privilege, indeed, to have served as a member of the court for 24 terms," O'Connor said in the one-paragraph letter released by the Supreme Court.

Her resignation was announced four days after the end of the court's term. There had been widespread speculation that Chief Justice William Rehnquist, 80, who has thyroid cancer, would resign at the end of the term, and even some of her colleagues did not think O'Connor would be leaving.

Her resignation allows Bush to make his first appointment to the high court, which must be confirmed by the U.S. Senate. Who Bush nominates to replace O'Connor could trigger a fierce fight between Republicans and Democrats, and could threaten a shaky truce over judicial nominations that has kept intact the minority's ability to block a controversial candidate.

Foreshadowing the likely battle over her successor, Bush hailed O'Connor in the White House Rose Garden and called for fair treatment for his yet-to-be-named nominee.

"The nation deserves and I will select a Supreme Court justice that Americans can be proud of. The nation also deserves a dignified process of confirmation in the United States Senate, characterized by fair treatment, a fair hearing and a fair vote," he said.

O'Connor's departure, the first in more than a decade, could shift the balance of power on the court, which has been closely divided between the conservative majority and a more liberal faction on the various controversies, including the power of the states versus the federal government.

O'Connor has been a key vote to preserve the constitutional right to abortion and to allow race to remain a factor to be considered in admissions at universities.

Bush pledged to be "deliberate and thorough" in naming a replacement and said he would announce a nominee in a timely manner in hopes of having the new justice start work when the court reconvenes in October. No decision is expected until Bush returns on July 8 from the G8 summit in Scotland.

One possibility is Attorney General Alberto Gonzales, the former White House counsel and a longtime Bush aide dating back to when Bush was governor of Texas. Bush may want to make history by selecting the first Hispanic American for the Supreme Court.

Other possible candidates could include U.S. Appeals Court judges J. Harvie Wilkinson, J. Michael Luttig, Michael McConnell, John Roberts, Samuel Alito and Emilio Garza.

If Bush wants to name a woman, possibilities include federal appeals court judges Edith Jones and Edith Brown Clement and Judge Janice Rogers Brown of the California Supreme Court, who was recently confirmed as a U.S. appeals court judge.

No matter who Bush picks, both liberal and conservative lobbying groups have prepared for a major political battle.

The nomination could test the compromise deal reached in May by 14 Republican and Democratic senators under which a vote-blocking procedure known as a filibuster could be used for a judicial nominee only "under extraordinary circumstances."

A simple Senate majority is needed to confirm a nominee, but 60 votes are required to stop end a filibuster. Republicans hold 55 of the 100 Senate seats.

On the court, O'Connor and another moderate conservative, Justice Anthony Kennedy, have often controlled the outcome. Rehnquist and Justices Antonin Scalia and Clarence Thomas are the court's most conservative members.

The court's more liberal members are Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer, the last justice to join the court in 1994.

Bush has often railed against what he calls "activist judges" who he says legislate from the bench, and says he wants justices to "strictly and faithfully interpret the law."

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the G-man said:
When a court is accused of legislating from the bench, it is essentially being accused of making laws instead of interpreting existing laws.

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rex said:

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the G-man said:
When a court is accused of legislating from the bench, it is essentially being accused of making laws instead of interpreting existing laws.

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There are whole law school courses to explain that? Seems like a waste of time.

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the G-man said:
When a court is accused of legislating from the bench, it is essentially being accused of making laws instead of interpreting existing laws.

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rex said:
There are whole law school courses to explain that? Seems like a waste of time.

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Wingnut-EL said:
What exactly do you mean by that PenWing. I hear the comment a lot, but never understand what people are complaining about.

Isn't it the job (or part of the job) of the Supreme Court to determine what is or isn't constitutional?

If they overrule or confirm a given bit of legislation, or the application of legislation, isn't that just fulfilling their constitutional role?

If the legislature or the executive gets to set law indiscriminantly (or allow prosecuters to enforce it w/o judicial oversight) is there even a need for a constitution?

When you get right down to it isn't the independent judiciary what sets the US system apart from most others? The true source of our freedoms?

Cheers!

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The ink was scarcely dry on Sandra Day O'Connor's resignation from the U.S. Supreme Court before Washington's divisive political attack machines were firing full bore.

Within minutes of O'Connor's announcement Friday, forces on the Democratic side were shrilly positioning themselves to denounce almost anyone he might nominate, no matter how qualified.

Less clear is what abortion-rights, civil-rights and other pressure groups think they can actually achieve, or whether they can agree on priorities. The nominee certainly will not be to their liking.

Meanwhile, the most rabid opponents of abortion, affirmative action, equal rights for gays and maintaining the separation of church and state threw down their own gauntlets, warning the president not even to consider a nominee who doesn't meet their similarly rigid litmus tests. They, too, are not entirely of one mind.

One religious group's particularly offensive statement called on supporters to "thank God" for O'Connor's departure. Others focused personal attacks on Attorney General Alberto Gonzales, close to Bush for years and long touted as a likely nominee if the president wants to make history by appointing the first Hispanic to the nation's highest court.

The weekend spasm of press releases and sound bites forecasting judicial Armageddon left just one certainty: Barring some extraordinary statesmanship by
President Bush and key Senate leaders, the process is likely to leave most of the public disgusted. And this with public confidence in government already at its lowest level in years.

Avoiding that sort of partisan food fight is particularly important because O'Connor has for 24 years played a particularly pivotal role on a court that often divided into ideologically hostile camps. She was frequently the decisive voice of moderation on emotional issues from abortion to affirmative action to the place of religion in public life. Her opinions were characterized by close attention to the facts in each case, carefully reserving the right to decide another case, with slightly different facts, differently. She regularly rejected the arguments of those who clamored for doctrinal and ideological absolutes. And she repeatedly showed her concern for the effect of the court's decisions on real people, not abstract legal theories.

O'Connor will be known in history as a coalition-builder who often built majorities among her fellow justices by steering the court between the shoals of divisive ideology. One of the most senior Republicans in the Senate spoke of the importance of that philosophy in describing the opening that the president now has: "This nomination," said John Warner of Virginia, "gives him an opportunity to be a uniter, not a divider."

When O'Connor was nominated to the Supreme Court in 1981, despite a partisan political background, she was confirmed by the Senate 99-0. That will not be repeated in these more partisan times. But it is not out of the question that Bush can find a nominee who both reflects his views and whose credentials merit strong bipartisan support.

In an interview with USA TODAY Monday, Bush urged the interest groups to "tone down the heated rhetoric." Nothing would aid that cause more than a nominee who can draw substantial support from both sides.

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Steve T said:
Oh and if I were a Yank and had a stake in it, I would want to replace one of the Liberal judges (Stevens, Souter, Ginsburg and Breyer) with a moderate and elect a new moderate for O'Connor. That would leave a nice balance.

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wannabuyamonkey said:
Is O'Connor a moderate? Was she moderate when she pissed all over the little guy and decided the government has the right to take property from one private citizen and give it to another private citizen based on wich one would pay more money? no.

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O'Connor argued that cities should not have unlimited authority to uproot families, even if they are provided compensation, simply to accommodate wealthy developers.

"Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random," she wrote. "The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms."

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wannabuyamonkey said:

There are two types of judges those who stick with the constitutions original intent and those who make stuff up and "find" rights or what no that have been "hiding" in the constitution of nigh these 200 years.

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Wednesday said:

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wannabuyamonkey said:

There are two types of judges those who stick with the constitutions original intent and those who make stuff up and "find" rights or what no that have been "hiding" in the constitution of nigh these 200 years.

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You feel the Constitution is crystal clear on all accounts, yes?

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wannabuyamonkey said:
Is O'Connor a moderate? Was she moderate when she pissed all over the little guy and decided the government has the right to take property from one private citizen and give it to another private citizen based on wich one would pay more money? no.

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lease try and actually read the articles that posts such information.

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thedoctor said:
No, but you made this claim:

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wannabuyamonkey said:
Is O'Connor a moderate? Was she moderate when she pissed all over the little guy and decided the government has the right to take property from one private citizen and give it to another private citizen based on wich one would pay more money? no.

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President Bush's promise to appoint originalist justices invites the question: What is this peculiar creature, the originalist?

The term "originalism" identifies the traditional, common-sense principle that the meaning of various provisions of the Constitution (and of other laws) is to be determined in accordance with the meaning they bore at the time they were promulgated. The status of originalism as the only legitimate method (or class of methods) of constitutional interpretation inheres in the very nature of the Constitution as law. As Chief Justice Marshall explained in his landmark 1803 opinion in Marbury v. Madison, the Constitution is "committed to writing" so that its "limits may not be mistaken or forgotten." To disregard its limits is to "reduce to nothing what we have deemed the greatest improvement on political institutions — a written constitution."

It is significant that the term "originalism" appears to be of relatively recent vintage. The reason for this is not that there is anything novel about originalism. Precisely the opposite. Until recent years, originalism had been so unchallenged as constitutional orthodoxy that there was no reason to develop a term that would distinguish it from any rival. As Justice Scalia has put it, "in the past, nonoriginalist opinions have almost always had the decency to lie, or at least to dissemble, about what they were doing." But the rise of the "living Constitution" — the Orwellian euphemism that activists have used to pretend that the Constitution has somehow "grown" to entrench forever their own policy preferences — made necessary a label for what everyone had previously recognized as elementary.

Here's my simple single-question multiple-choice test for whether you are an originalist:

Q. The Constitution provides, as one of the criteria to be eligible to become president, that a person must be a "natural born Citizen" (or, alternatively, in a provision that long ago ceased to apply to any living persons, "a Citizen of the United States, at the time of the Adoption of this Constitution") How would you figure out what the phrase "natural born Citizen" means?

(A) You would determine that the "natural born Citizen" requirement, whatever it means, is obviously a relic of a benighted and xenophobic past, a past that "evolving standards of decency," as reflected in modern European electoral practices, requires be abandoned. It simply isn't fair, you would conclude, that any candidates should be excluded by such an arbitrary requirement from running for president. You would invoke "the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life" as you instead substituted your own arbitrary criteria for eligibility.

(B) You would try to discern the current meaning of the phrase "natural born Citizen." Its closest connection would appear to be to the concept of natural childbirth. Therefore, you would conclude that only those whose mothers did not use drugs during birth satisfy the requirement.

(C) You would look to literature as your guide. Macbeth finds great comfort in the promise that "none of woman born/Shall harm" him. But his comfort proves unwarranted when Macduff, who "was from his mother's womb/Untimely ripp'd," kills Macbeth. It follows that anyone whose birth was by Cesarean section is not a "natural born Citizen."

(D) You would try to determine the public meaning of the "natural born Citizen" requirement at the time that the Constitution was adopted.

If it is obvious to you that the proper response is (D), then you are an originalist. If you think that the answer might be (A), then you are probably Justice Stevens, O'Connor, Kennedy, Souter, Ginsburg, or Breyer.

For what it's worth, although I haven't researched the issue, my own strong intuition is that the phrase "natural born Citizen" is meant to identify those persons who were citizens at birth, by virtue of the citizenship laws in effect at the time, as opposed to those who were naturalized after birth. And, any of you lawyers out there, please don't tell me that the issue isn't, or might not be, justiciable; my question is how to determine what the provision means, not whether courts would in fact decide it.

Some theorists, of course, contend that certain constitutional provisions, like "due process of law" or "cruel and unusual punishments," are, to various degrees, open-ended, and deliberately so, and that these provisions were understood to delegate considerable discretion to judges to supply their meaning over time. This short essay is not the occasion to examine the validity of those claims or their compatibility with American principles of representative government. For present purposes, it suffices to observe that these theorists either expressly acknowledge or implicitly concede the legitimacy of originalism and merely contest with other originalists what originalism yields.

I hope that, if you have just discovered that you are an originalist, your reaction is more like the delight of Molière's Monsieur Jourdain on learning that he had been "speaking in prose" all his life without knowing it.

EDITORIAL BOARD


Chick List

A look at the women who may replace Justice O'Connor.


BY MELANIE KIRKPATRICK

Sunday, September 25, 2005 12:01 a.m. EDT

If Edith Jones is nominated for the Supreme Court, at least she'll know what she's in for. The confirmation process for federal judges has deteriorated into "trench warfare," she told The American Enterprise magazine in June. "Every time I think it can't get any worse, it does."

John Roberts's confirmation may be the exception that proves Judge Jones's rule. During his hearings, Sens. Arlen Specter and Dianne Feinstein asked insulting questions about his Catholicism; Ted Kennedy called his Reagan-era writings "mean-spirited"; and several Democrats roughed him up over his views on civil rights. By modern standards, that's a love fest.

But the next confirmation is another matter. In selecting a nominee, one factor the White House must weigh is who would have the best chance of surviving what is sure to be a fight and, probably, a filibuster attempt.

It's all the more interesting since the nominee weathering Ted Kennedy's attacks may be of the same sex as Mary Jo Kopechne. There are 10 or so women whose names come up as possibilities for the Court, including Edith Clement of the Fifth Circuit, whose reported nomination faked everyone out on the day Judge Roberts was named, and appeals-court judges Karen Williams, Diane Sykes and Consuelo Callahan.

But the feminine Big Four are Edith Jones, Priscilla Owen, Janice Rogers Brown and Alice Batchelder, all appeals-court judges. Each is a judicial conservative of intellectual heft and with more experience on the bench than Judge Roberts. None, however, is as bulletproof as Judge Roberts, who managed to pursue a 25-year career in law without leaving much of a public record of his views on hot-button issues.

Ms. Kirkpatrick is associate editor of The Wall Street Journal's editorial page.