Sandra's Day On Court Ends

Andrew Cohen Laments The Loss Of The Court's 'Swing' Vote

(CBS) 
So Mr. Bush now has a choice to make. Will he satisfy the right-wing of his party and nominate a candidate for O'Connor's spot that is far more conservative than she? Or will he be content to select some of the many fine moderate-right voices in the law, men and women who are more in the O'Connor mold and not then as likely to generate a big fight on Capitol Hill? The calculus at the White House is this: the more conservative the pick, the more the battle stirs in the Senate; the less conservative the pick, the more the President's core constituents bang their drums. There are plenty of candidates of both stripes to choose from and surely no candidate ever will or can satisfy everyone.

Indeed, O'Connor was hated by some on the left for the same reasons that she is despised by some on the right. She was more of a centrist, after all, like her old friend Justice Lewis F. Powell, Jr., who was on the Court when O'Connor arrived in Washington, and like the courtly David H. Souter is today. But the reason no one sings odes to Souter --he is probably even more despised by the right than is O'Connor even though he was appointed by the first Mr. Bush -- is because centrists, whether they are legal or political, are these days a hunted and diminishing breed. That's a shame, of course, because what both the country and the Court desperately need right now are precisely what they both are most unlikely to get: moderation. O'Connor had it. Her successor almost certainly won't.

Even O'Connor's pre-law life story bespeaks a level of real-life experience that more judges ought to have. She grew up on a ranch -- the Lazy B Ranch in Arizona, in case you are keeping track -- and mended fences, rode pickup trucks and fired a rifle. She went to Stanford Law School, but despite finishing near the top of the class, she had trouble getting a job because she is a woman. She was a state senator and a staunch supporter of Republican candidates and causes. But after she got to the Supreme Court thanks to President Ronald Reagan, and after initially being pigeon-holed as Chief Justice William H. Rehnquist's ideological twin, she eschewed the party line in all cases. She became, please forgive me, her own man.

The O'Connor who announced her retirement today is very different than the O'Connor who shook hands with President Reagan nearly a quarter of a century ago. But I am very different than I was in 1981 and I bet you are, too. She has changed her positions from time to time over the years on some major issues that have come before the court. But so what? Who among us haven't altered our world views based upon our own experiences and what we see of the world? "...All life is an experiment," Justice Oliver Wendell Holmes famous wrote in 1919, and his words aptly describe O'Connor's journey to the pinnacle of American legal power.

Because of her centrist role on the Court, she alone is probably more responsible for the laws and rules that govern more Americans than any other living citizen. Her life and her law are living proof that the world, legal or otherwise, does not include many absolute certainties. She leaves a Court that will likely be fractured for years to come, as fractured as the country whose laws it is supposed to interpret. She will be missed, and remembered fondly, and mourned even while she is alive -- and that's a legacy you don't always get to have when you return to the real world from a long stint in Washington.