Why This Progressive Will Miss Sandra Day O’Connor

On Friday, July 1, I was preparing to debate issues related to Bush’s judicial nominees with an employee of a well-known conservative “think tank” The audience was a group of 400 high school students in Washington, DC for a week.

My opponent’s think tank connection had a scoop–at 9 am his “office” had learned that Justice Sandra Day O’Connor would be submitting her resignation to the White House an hour later. I knew what my opening statement was going to be about. We each had an opening 4 minutes to talk about anything we wanted to. I told my opponent–let’s call him Mr. Republican–that he could go first.

After announcing the O’Connor resignation, he waved the Constitution (note to Mr. Republican: You are no Harry Byrd!). and said how happy “we” were that O’Connor was leaving–by “we” it was unclear if he meant his think tank or all Bush supporters. He said it was time to put an end to the runaway judges who were acting contrary to the Constitution. O’Connor was the worst kind of activist, he said.

I was a little shocked that he attacked her so. So I jumped in and said why I, who disagreed often with O’Connor’s decision, felt that the Cour–and Americans–had lost an honorable public servant and a critical member of the Supreme Court.

O’Connor, I said, always considered how her decision would affect the people whose case was before her to be judged. That is why her opinions often appear straining at gnats to achieve some logic. Sometime, the logic was missing. But a sense of injustice and a desire to do justice generally shown through. In an abortion case dealing with parental notification, for instance, she worried about a girl having to approach an abusive father who might be even more abusing when he finds out his teenager daughter is pregnant. As for a young mother was arrested (yes, arrested, and taken into custody) for violating a seat belt law in Texas, she expressed outrage. They arrested a mother, who had a car full of kids, and who was pregnant, and took her to jail, in the pouring rain? That can’t be right, she argued. And her outrage carried the day. There are many such cases. Of course, there are many cases where she turned a blind eye to justice for the people, and ruled for big business. But no one showed quite the care she did when she did.

What I said to the young people on Friday was, maybe because of her temperament, her age, her upbringing, or her experiences–or all of the above–she never seemed to lose touch with everyday life. She worried about how her decisions would play out in the lives of people.

“That’s just the problem,” Mr. Republican Party-Line blurted out. Judges aren’t supposed to care about people. They are only supposed to care about the law. That is why “we” are so glad that “she” is gone. Waving the Constitution again, he warned, that the Constitution required that O’Connor, and her fellow jurists, decide the law “as the framers meant it at the time” (ah, an Originalist, in the fold of Scalia, I thought), not what a judge thinks it ought to mean today. He went on to whine about how his public high school had students “bussed” in to create “diversity,” and how he could not pray in school. And how he was going back to his home state and running for office, to make his country the way he–and Bush–want it to be.

I had little time to rebut this one, but I got in how the law was a social institution, created by people. How the Declaration of Independence, which we celebrate today, speaks of a government being of the people, by the people, and for the people. What is the law if not a tool of the people? A servant of the people? What kind of judge does not care for people? There is an answer to that rhetorical question. Most of George Bush’s judges don’t get a damn about people. Except, perhaps rich people.

I think I won that round and 400 impressionable minds came away with a more honest view of O’Connor than they would have gotten if Mr. Bush mouthpiece had been left to his own devices.

What I did not have time to talk about was another reason why Justice O’Connor will be missed: She was a lady, in a time when there are few ladies in this world. She had a sense of decorum about the law, the Court, and her place in it. Unlike some of her colleagues on the bench, who have raised ad hominem attacks to an art form, she never denigrated fellow justices.

She was proud of her ability to listen to all sides of an argument before deciding –a novel concept for a judge, and one not on Bush’s list of qualifications. Indeed, listening to all sides is likely a disqualifier for a Bush nominee. She said she was always read to be “persuaded” She did not call her fellow brethren/sister names if they did not agree with her.

She was a model of judicial temperament–firm, stern, but affording litigants a fair hearing and, according to accounts of her law clerk, fair and full deliberations. She worked hard, long hours. She worked through breast cancer. She donned a wig and came to work, never missing a day of oral arguments, never missing out on an opinion. Like Chief Justice Rehnquist, she put those of us to whine about a cold to shame.

If you read the opinions of most of the judges on Bush’s short list, you will find, I bet, lots of meanness, pettiness, doctrinaire ideologues, and lack of compassion. You will find plenty like Clarence Thomas who, in a case a few years back, said, in dissent, that a state prisoner could tie up a prisoner to a hitching post in the boiling hot sun and deny him water or shade. Yea, that kind of justice is what the Republicans want. They would have one of these in Janice Rogers Brown or Michael Luttig. Luttig is famous for saying that there are absolutely no limits on presidential power in the” war on terror” Janice Rogers Brown is so out there, so mean-spirited, that she could be the female Scalia. Sharp, stinging opinions often insult her opponents.

Maybe a Democrat justice would be the same today. Maybe the age of civility of temperament, and compassion for one’s sister and brother is an old-fashioned virtue that can’t be found in the 50-somethings Bush wants on the bench. Black, white, Hispanic, male, female–I bet there is not one on the list that gives a whit for people, or believes that justice should be tempered with mercy–and common sense.

Hardliners all, Bush’s judicial nominees, many of whom are already on the appellate bench, will soon, through their opinions, usher in an age of conservative, hard-line judicial activism that will take away established rights, subordinate the interests of people to that of the government and business, and leave us longing for the Rehnquist court. (Not that the people haven’t lost a lot of rounds in the past 25 years, but those losses will pale in comparison to what we can expect when Bush puts two, maybe three, hard right ideologues on the bench. How about instead of one Thomas and one Scalia, we get two of each?)

And longing, notably, for Sandra Day O’Connor. A plain-spoken woman who understood that her rulings affected real people with real problems. And that those people were who she was there to serve.She served us well–Republicans and Democrats, conservative and liberals. On one of the Sunday talk shows yesterday, some Republican assailed her for trying to decide a case so as to insure social stability within the confines of stare decisis. We don’t need to overturn, Roe v. Wade, she argued. We have been down that road before. It is the law of the land. What’s wrong with that, asked the host? What’s wrong with it, said the Republican, is that is not her job. Her job is to decide the constitutional issues in the wary the framers meant it, there is not right to privacy in the Constitution, blah blah blah, and Roe v. Wade must be overturned in order to bring the law back in line with the Constitution.

But the Republicans have disowned her, or at least distanced themselves from her, so wise Democrats are doing the right thing to urge that Bush nominate someone like Sandra Day O’Connor. And when they say “like,” they mean a pragmatic consensus-builder who was concerned about how her decisions would affect litigants and society.

Republicans, rest easy. Bush is not interested in putting someone on the bench who shares O’Connor’s personal and judicial temperament. This is the age of the “nuclear” option, of “shock and awe,” of “slash and burn” The Bush administration believes it is its divine right to remove all sense of humanity from the courts of this land. Administration spokespersons say Bush owes it to his constituents to put the kind of person on the high court he said he would”someone like Thomas and Scalia.

That’s the last thing we need. But that is what we will get. And if Rehnquist resigns or dies in office. We will get another justice devoted to the Bush world view. Anyone except a rich white man better start turning back the clocks now. Because you are going to have to turn them way back, and forget the past 50 years of Supreme Court decisions. Bit by bit, the rights and freedoms we hold dear will be chipped away by a gang of 9 that will be increasingly turning deaf ear to all but what Republicans hold dear–money and power. Power and money.

So, Hail to the Chief. And goodbye, Justice O’Connor. You were, as you hope to be remembered, a great role model for women (and men), mothers (and grandmothers), and all citizens. Your devotion to your work, your work ethic, your temperament is a relic of a better time. Most of all you were, as you said you want to be remembered, a good judge.

ELAINE CASSEL practices law in Virginia and the District of Columbia, teaches law and psychology, and follows the Bush regime’s dismantling of the Constitution at Civil Liberties Watch. Her new book The War on Civil Liberties: How Bush and Ashcroft Have Dismantled the Bill of Rights, is published by Lawrence Hill. She can be reached at: ecassel1@cox.net