O'Connor Steps Down

Supreme-court watchers expected a retirement this week, and they got it--but not the one they expected.  This morning Sandra Day O'Connor, the first female Supreme Court justice, announced her retirement.

Dear President Bush:

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. 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

What was expected to be a bitter confirmation for Rehnquist's replacement now looks quaintly tame in the light of the retirement of the Court's swing voter.  We will keep you updated on potential replacements, what Senators Wyden and Smith are up to, and other news as it becomes available.

Ready?  Here we go.

Discuss. 

[Update: This news is ripping through the newso- and blogosphere with incredible speed.  Here are a few of the more interesting threads in the nomination tapestry:

Harry Reid calls for "meaningful consultation with senators of both political parties;" the national Dems, baseball bat in hand, ratchet up the pressure: But if Bush chooses not to consult with the Senate and chooses someone outside the mainstream, Democrats will make sure we maintain our system of checks and balances."  Howard Dean offers more of the same.

Judd Legum reviews how critical O'Connor was to liberals (this is a good one).  Now that you're good and alarmed, Kos has some suggestions about what you can do.

It appears that the early money is on Gonzales.  You can read a thorough analysis of his record here.  Everyone in the blogosphere seems to think Brad Plumer's onto something with this grim scenario, and they're all linking to it.  You'll also find worthwhile reading at Liberal Oasis, where Bill Scher springs into strategic action.  David Corn?  He's not optimistic.

Nothing yet from Senators Wyden or Smith, but I'm glad I'm not wearing Gordon's shoes now.]

  • Brian Wagner (unverified)
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    Actually, if you read Novak's latest column, you'll find that news that it was O'Connor and not Rehnquist going first started leaking in the last day or two.

    Also, my two cents is that this could be bad, especially if Rehnquist decides to stick around. As much as I disagreed with O'Connor, I appreciated her presence on the bench, as opposed to having 5 solid conservative votes. She motivated a lot of good discussion, and it may be noted that she refused to join conservatives in the 80s in overturning Roe v. Wade.

    Most of the talk coming out of the White House points toward a host of conservative appellate court justices, and then there is Alberto Gonzalez. Though I can't stomach his terror stance, he is much more moderate than most of the potential nominees, and Bush does like him. Novak says conservatives are up in arms about the suggestion of Gonzalez, which might mean Dems will end up "embracing" him if he can survive the rumor mill.

  • afs (unverified)
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    We have to approve a corrupt nominee.

    If Bush appoints an honest wing-nut, we will be stuck with them for 2 generations. I don't believe Bush is smart enough to appoint an honest wing-nut. I believe Bush will appoint someone as thoroughly corrupted as the last batch of Bush appointees.

    If Bush puts forward a corrupt nominee, we can impeach the documentably-corrupt new Justices when the Dems re-take control of Congress.

    We have to hope we re-take Congress before a case gets through the legal system in which the corrupted court can overturn Roe v. Wade. This is the only way Roe v. Wade will not get overturned.

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    Prediction: The nominee will be a U.S. Senator.

  • Aaron (unverified)
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    My guess: Emilio Garza, Judge on 5th Circuit Court appointed by Bush Senior We had a woman on the bench for a quarter of a century--still have an Afro-American. Just appointed a Latino to AG.

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    Sen. Reid brilliantly suggested four or five Republican Senators for Bush to nominate as a compromise. This serves the purpose of 1) whittling down the Repug majority in the senate and 2) Dems appearing cooperative in the process. A standing senator has never been rejected in the nomination process.

  • Brian Wagner (unverified)
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    But as has been noted in blogs as of late, recent decades has seen a shift away from appointed non-legal candidates, despite the fact that historically, many of the most influential justices were politicians. I would be interested, though, to see some politicians discussed, just because I would like to see more on the topic of how background affects judicial ability.

    As for whitting down the Republican majority, that only works if the guy/or gal appointed comes from a swing state. If it is Gordon Smith, that's one thing, Dems have a good chance. But if it is someone from the Bible Belt or the South, it is likely a new Repub will just plug the hole in the dam.

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    Do you have anyone in mind, Kari? A senator seems unlikely to me for a couple of reasons. First, the conventional wisdom is that Bush is motivated by two desires: (1) to please his base by appointing a known-quantity judicial conservative like Luttig or Roberts, and (2) to make history by choosing a minority or a woman (or both). Picking a senator nearly rules out a woman or minority, and unless it's Cornyn, you get a total judicial unknown, which may make the base skittish. Second, the main reason to pick a Senator is to grease the wheels for confirmation, but nothing about Bush suggests that he is motivated primarily by the desire for an easy, bloodless process.

    The calculus now is whether the White House assumes it will get a second vacancy. If the assumption is yes, it seems to me a possible scenario is that Bush fills the current vacancy with a Gonzales, Garza, or woman -- the history-making or woman-preserving choice whom the Dems would have a harder time opposing and whom the Bush base can stomach more easily this time because it's only a moderate being replaced. Then the Rehnquist vacancy gets filled with a Luttig, Roberts, or someone else whom the base adores.

    On the other hand, knowing how Bush thinks, he may view this as a golden, unexpected opportunity to dramatically shift the balance of power on the Court, and nominate a guaranteed hard-right candidate. Then he can use a Rehnquist vacancy to make history, and any doubts about that nominee's philosophy (Gonzales, etc.) are easier to swallow because you've already put a Luttig type on the Court.

    Either way, I don't see how a white male Senator fits into the equation.

  • Kelly Steele (unverified)
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    Except that Bush (okay, Rove) is not retarded and will never nominate a US Senator in a vulnerable spot/from a state with a Democratic governor.

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    I bet the GOP is no more excited to see this development than Dems are (and I make the careful distinction of GOP/Dems vs. lib/conserv). The GOP had a little wiggle room with a Rehnquist replacement. It was going to be the first liberal replacement where the fur was expected to fly, so GOPpers thought they could get someone in the Scalia mode to replace the Chief Justice--all in all a net gain.

    But even worse than a liberal replacement is O'Connors. Both parties have equal stake in this. The GOP, having displayed the fissures of discipline on the filibuster battle, know that part of the caucus might not back the nuclear option if Bush nominates another Scalia. And they definitely know the Dems are united. (Interestingly, getting all the lower-court nominees through in the wake of the filibuster battle has also weakened their hand: the Dems played ball so will expect Bush to play ball.)

    So Bush can't nominate a far-right judge (or senator). But nominating a moderate who fails the Santorum purity test is less than what Bush wanted in his first Supreme placement. Upshot: everyone's got something to lose on this one. Thank God we have Harry Reid and not Tom Daschle leading the party right now.

  • Jon (unverified)
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    The departure of Sandra Day O'Connor from the Supreme Court will no doubt start the much anticipated war over the judicial filibuster and reproductive rights.

    But the biggest long term issue may be the intent of the coming Bush judges to dramatically reduce Federal regulatory power by the narrow interpretation of the Commerce Clause. For more on this and the impact of the "Constiitution in Exile" advocates, see:

    "Sharpening Their Clause: The Coming Bush Judges."

  • Kelly Steele (unverified)
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    I'd agree with that sentiment, but Bush (okay, Rove) is not retarded -- they're not going to nominate a US Senator from a state with a Democratic governor or in a seat that could potentially then be vulnerable.

  • Kelly Steele (unverified)
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    Man, this posting thing can be screwy.

    Alworth -- I think your comments are spot-on.

    I think that political "lay of the land" you describe has two consequences:

    1) It proves the deal on the nuclear option was a good tactical move by Democrats. The showdown on the Senate floor would have been an "absolute victory vs. absolute loss" situation for Democrats. But after "moderates" were able to cut a deal that was "fair", employing the nuclear option seems "radical," and it is a "radical" move that would have to be taken under a much heavier spotlight. Means that there's a greater cost in terms of political capital, and a much higher likelihood of GOP defections from their caucus.

    2) Also makes it less likely Bush appoints a "moderate." Think about Bush's choices with the situation you describe. Neither are good. But if we've learned one thing from this Administration, it is that given the type of choices he's facing now, they're probably going to go for it all. When these guys are faced with choices like this, they know one move: hit the gas.

    I hope I'm wrong, and I hope they choose consultation and a reasonable nominee over confrontation and a bloody fight. Someone like O'Connor would be a helluva surprise to me though.

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    Chris...

    "unless it's Cornyn"

    Bingo.

  • (Show?)

    Chris...

    "unless it's Cornyn"

    Bingo.

  • jj ark (unverified)
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    I have a feeling that it will be Cornyn as well. It just passes the sniff test (although its kinda like finding the wafting scent of vanilla in the midst of rotten salmon).

  • Ed Bickford (unverified)
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    Regretfully I have no nominee guess, but find myself horrified by the philosophy of the “Constitution in Exile” movement pointed out by Jon, a movement which putative nominee Senator John Cornyn (R., Texas) has disingenuosly disavowed.

    From the U. S. Supreme Court decision in Sunshine Anthracite Coal Co. v. Adkins (1940), which in part addressed the constitutionality of Congress' delegation of authority to regulate the details of interstate commerce to an administrative commission under the The Bituminous Coal Act of 1937:

    “Certainly in the hands of experts the criteria which Congress has supplied are wholly adequate for carrying out the general policy and purpose of the Act. To require more would be to insist on a degree of exactitude which not only lacks legal necessity but which does not comport with the requirements of the administrative process. Delegation by Congress has long been recognized as necessary in order that the exertion of legislative power does not become a futility. . . But the effectiveness of both the legislative and administrative processes would become endangered if Congress were under the constitutional compulsion of filling in the details beyond the liberal prescription here. Then the burdens of minutiae would be apt to clog the administration of the law and deprive the agency of that flexibility and dispatch which are its salient virtues.”

    It seems that adherents maintain that the government has no right to regulate commerce unless Congress specifies every detail of the regulatory mechanism to be used. Who could believe this would be anything but another venue to cripple the federal government's ability to protect us from the predations of big business?

  • Bailie (unverified)
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    You heard it here first. Orin Hatch will be appointed along with Theodore Olsen for the two vacancies.

  • Brian Wagner (unverified)
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    Word is that the White House has already said they won't nominate people over 60, specifically Olsen. Of course, that could be untrue, but it is understandable if true--making your mark on the judiciary is easier when you know your appointees are unlikely to keel over for decades.

  • Jim (unverified)
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    Cornyn doesn't have a chance in hell after those wacky -- and disturbing -- comments he made about violence against judges a few months back.

  • anonymous pessimist (unverified)
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    It proves the deal on the nuclear option was a good tactical move by Democrats. The showdown on the Senate floor would have been an "absolute victory vs. absolute loss" situation for Democrats.

    Right. Instead of an absolute loss, the Senate Dems managed to block 5 out of 224 Bush judicial nominations, giving Bush the highest success rate in history. It shows how far the Democratic party has fallen that this actually counts as a "win" for our side, even a partial or tactical one.

    But after "moderates" were able to cut a deal that was "fair", employing the nuclear option seems "radical," and it is a "radical" move that would have to be taken under a much heavier spotlight.

    Sure. You know, given how responsive the Bush administration is to public perception and all.

    [begin rant] The Beltway wing of the Democratic Party is a joke. Expecting these guys to beat the Neo/Theo cons at anything is about as sensible as rooting for the Washington Generals to beat the Globetrotters.

    The Senate Dems, led by a pro-life Senator from a red state who could be knocked out of office any time the R's want to take him out (see Daschle for details), provide nothing more than token opposition on wedge issues and outright support on most economic issues (see Wyden/Cafta for details). The only group that matters less than them in DC are the House Dems.

    Prediction on the SC? After a "long and arduous fight" that will take significantly less time than most judicial nominations, the Senate will approve 2 really bad nominees (after Rehnquist retires), one of whom will be slightly less offensive than a third candidate who the Senate Dems will "block". At this point, the Senate Dems will declare victory; the religious right will be in an uproar; Roe vs. Wade will be toast; and the Supreme Court will become an even bigger whore for corporate interests at the expense of the public interest, justice, and the Constitution than it already is. [end rant]

  • Harold Cade (unverified)
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    If Rove has his way it will be Alberto Gonzales. Some object that there would be some erosion of Pres. Shrub's roots, but I can just hear Rove saying, "it's not like there's not a million more issues where we're going to make their day".
    It's one of the unfortunate realities of being a progressive in America, IMHO, that we have to appeal to a lot smarter people than the Reps. do.

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