Bench fight begins - East Valley Tribune: News

Bench fight begins

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Posted: Saturday, July 2, 2005 5:56 am | Updated: 9:59 am, Fri Oct 7, 2011.

WASHINGTON - Sandra Day O’Connor, the Arizona ranch girl who would become one of the most powerful women in America as the nation’s first female Supreme Court justice, announced her retirement Friday after 24 years on the bench.

In a startling announcement kept secret even from her children, O’Connor informed President Bush by letter that she would step down after her successor was confirmed. The retirement allows Bush to name his first justice to the Supreme Court, although not, as had been widely expected, as a replacement for Chief Justice William Rehnquist.

Because of her role as a swing vote on such a closely divided court, the retirement of the 75-year-old O’Connor gives the president an opportunity to change the court’s balance. The White House said a successor would not be named until at least Friday, after Bush returns from a trip to Europe.

‘‘The nation deserves, and I will select, a Supreme Court justice that Americans can be proud of,’’ Bush said in a brief statement from the White House Rose Garden. ‘‘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.’’

O’Connor’s retirement is the first in 11 years on the high court — the longest period the nine-member panel has gone without a new member — and those on both sides began preparing Friday for a bitter ideological battle over her replacement. Senate Republican leaders said they hoped to have O’Connor’s successor in place for the court’s new term in October, but braced for arduous confirmation hearings in August or September.

If the fight lingers beyond the start of the term, O’Connor said she would not leave the bench until her successor had been confirmed.


Because O’Connor’s successor could transform the direction of the court in such critical areas as race, religion and abortion, the fight for her replacement gained an even greater sense of urgency than, perhaps, had Rehnquist stepped down. Her announcement caught the White House, Congress and an army of interest groups off-guard and set the stage for a new kind of Supreme Court confirmation battle, including a multimillion-dollar campaign with all the tension of a tough political race.

‘‘It has been a great privilege, indeed, to have served as a member of the court for 24 terms,’’ O’Connor wrote in her one-paragraph letter to the president. ‘‘I will leave it with enormous respect for the integrity of the court and its role under our constitutional structure.’’

Few secrets are as closely held as the retirements of Supreme Court justices. The White House was notified Thursday to expect news of a retirement from the Supreme Court, but did not learn until Friday morning that it was O’Connor who was stepping down.

‘‘You’re one of the great Americans,’’ Bush told O’Connor in an emotional phone call. ‘‘I wish I was there to hug you.’’

O’Connor was plucked from relative obscurity in 1981 as an intermediate-level Arizona state court judge. After graduating third in her class at Stanford Law School, where classmate Rehnquist was first, O’Connor couldn’t get work as a lawyer in California, and moved to Arizona to hang out her own shingle. She served in the state Legislature before becoming a judge.

When President Ronald Reagan offered her a position on the U.S. Supreme Court — fulfilling a campaign wish to nominate the first woman justice in court history — O’Connor said she felt additional pressure because of her gender.

‘‘I’ve always said it’s fine to be the first, but you don’t want to be the last,’’ she told the Chicago Tribune in a 2003 interview. ‘‘I was acutely aware of the negative consequences if I arrived here and did a poor job. It made me hesitant to say yes when the president called.’’

O’Connor was the court’s only female justice until President Bill Clinton nominated Ruth Bader Ginsburg in 1993. Her retirement upends a list of potential replacements who have been under consideration to replace Rehnquist, and it places pressure on the White House to either nominate or strongly consider a woman.

‘‘I hope there will always be women — plural — on this court,’’ O’Connor once said.


The White House said the president has yet to personally review files of possible replacements. But a senior administration official said a new shortlist would almost certainly include female candidates and Attorney General Alberto Gonzales, who would be the first Hispanic justice.

‘‘I think that it is very important for there to be gender balance on the court,’’ said Sen. Arlen Specter, R-Pa., who will oversee the confirmation hearings as chairman of the Senate Judiciary Committee. ‘‘I think two is a minimal number.’’

Senators said the confirmation battle, though, almost certainly would focus on ideology more than gender.

‘‘Justice O’Connor is a sterling example of what can happen when a president nominates a justice not from the right or the left wing of one of the political parties, but an independent judge capable of making up her own mind,’’ said Sen. Patrick Leahy of Vermont, the top Democrat on the Judiciary Committee.

In the Senate, both parties sought Friday to shape the politics of a nomination. Democrats insisted Americans are seeking a nominee who would convey unity, not divisiveness, and Republicans called for fairness, civility and dignity in the confirmation process.

In the letter announcing her retirement, O’Connor, a breast cancer survivor, gave few clues as to what prompted her decision. Her husband, John, suffers from Alzheimer’s disease, and the couple recently sold their home outside Washington to move into a smaller condominium in the city.

The court released statements of tribute from some of her fellow justices.

Rehnquist called her a ‘‘valued colleague,’’ and added, ‘‘I shall miss her greatly.’’ Justices Antonin Scalia and Clarence Thomas, two stalwart conservatives who often disagreed with O’Connor, praised her temperament.

‘‘As the first woman to be appointed to this court, Sandra Day O’Connor was thrust into the spotlight as no new justice has ever been. And she has become a star,’’ said Scalia. ‘‘The statistics show that during her tenure she shaped the jurisprudence of this court more than any other associate justice.’’

Thomas said she was ‘‘civil in dissent and gracious when in the majority,’’ and always ‘‘warm and courteous.’’

Ginsburg recalled O’Connor’s surprise appearance in a 1996 theatrical production of Shakespeare’s ‘‘Henry V.’’ O’Connor’s character uttered the line ‘‘Hap’ly, a woman’s voice may do some good.’’

‘‘Sandra Day O’Connor’s voice has done enormous good in the pursuit of justice for all in our land and the world,’’ Ginsburg said.


In her 24 years on the bench, O’Connor became, in the eyes of many, the court’s most powerful justice. She provided a key vote on highprofile cases in areas of race, religion, abortion and states’ rights, as well in Bush v. Gore, the controversial decision that stopped vote recounts in Florida and handed the presidency to Bush.

At other times, she tempered the positions of her more conservative colleagues, particularly in religion and voting-rights cases. She also was willing to break ranks to join the more liberal side, as in the landmark case two years ago that upheld the use of affirmative action in college admissions.

‘‘Her overall record was one of a very thoughtful judge who approached each case carefully,’’ said Andrew McBride, a Washington lawyer who clerked for O’Connor.

When O’Connor first joined the court, she appeared to vindicate the expectations of the people who supported her nomination. She was a solid, no-nonsense conservative, especially on law enforcement and other criminal law issues. Even on abortion, her early opinions suggested a strong conservative streak that her later decisions would belie.

In the mid-1980s, as other Republican appointees joined the court, O’Connor found herself more in the center. Scalia was a strong personality on the right whose bluntness in his opinions, at times, could be off-putting for the more circumspect O’Connor.

Her jurisprudence began to be seen as more ad hoc, with each issue to be examined and considered on a case-by-case basis. In key controversial cases, including affirmative action cases and a challenge to a provision in the federal Violence Against Women Act, lawyers often crafted their arguments with her in mind, believing that if they could win her vote, they could win the case.


Activists at both ends of the political spectrum swung into action within minutes of her announcement. O’Connor’s planned departure gave groups that had been on alert for a possible resignation by Rehnquist a new, even more pressing reason to rally supporters.

‘‘Her replacement will turn the direction of this court,’’ said the Rev. Rob Schenck, the president of Faith and Action, a conservative Christian group. ‘‘We are already praying and working for a nominee that will not waffle as she did.’’

The liberal group MoveOn began airing a new television ad urging Bush to avoid an ‘‘extremist’’ nominee.

‘‘The president should honor O’Connor and appoint a moderate Supreme Court justice,’’ said Ben Brandzel, the organization’s advocacy director. ‘‘If President Bush nominates an extremist, it will be up to senators to say no, and the American people will make sure that they do just that.’’

Democrats said they’d consider a filibuster, a parliamentary tactic that involves unlimited debate, to block any nominee they considered extremist. Although Senate confirmation requires a bare majority — 51 votes in the 100-member Senate — it takes 60 votes to end a filibuster.

In a deal negotiated with Republicans in May, centrist Democrats had said they’d use the filibuster against judicial nominees only under ‘‘extraordinary circumstances.’’

‘‘That’s an option,’’ Sen. Christopher Dodd, D-Conn., said when he was asked Friday about filibustering. ‘‘I hope we can avoid that. I don’t think any of us relish the idea.’’

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