Sandra's Day On Court Ends

Sandra Day O'Connor is sworn in as an Associate Justice by Chief Justice Warren Burger at the Supreme Court in Washington, D.C., Sept. 25, 1981. Holding two family bibles, at center, is husband John J. O'Connor. O'Connor, the first woman appointed to the Supreme Court and a key swing vote on issues such as abortion and the death penalty, said Friday July 1, 2005 she is retiring.(
America Online
Attorney Andrew Cohen analyzes legal issues for CBS News and

The first woman to serve as a Justice of the United States Supreme Court should have been the first woman to serve as the Chief Justice of the United States. Sandra Day O'Connor would have been a brilliant choice for that symbolic position for many legal and political reasons and for one reason that may be the most important of all.

At a time when the Court specifically and the federal judiciary in general could use a jolt of public respect and support, O'Connor would have taken the reins as Lady Justice, one of the most well-known and culturally in-tune major-league judges in recent history. A grandmother who looks like one, and a judge whose hardscrabble upbringing and political background has helped humanize her legal philosophy, O'Connor actually is what most people think a judge ought to be. She is restrained, fair and not so bolted to any single jurisprudential concept that she loses sight of what is just.

For these reasons, and many more, an O'Connor nomination for Chief Justice would have been embraced by a fractious Senate. Even the most addled on the left and right would have voted for her. She would have made President Bush appear sensitive to the charge that he has governed to the right of his mandate. She would have kept in place the Court's fragile ideological balance that is oscillates between moderate and right. And she would have burnished her image as one of the most important women in the history of the country.

But such a fairy tale is not to be. O'Connor's long-speculated departure from the High Court won't even leave that precious institution in neutral. She was the pivotal "swing" vote on many of the most contentious issues of the day, from affirmative action to abortion rights, from campaign-finance reform to federal disability access law, from gay rights to the death penalty. With that moderate-right seat now empty, and with the Court's collectively ideology hanging in the balance, O'Connor leaves a vacuum that easily and quickly could create a vortex of political and legal infighting that would make the Robert Bork judicial nomination in the Eighties seem like an episode of Barney the dinosaur.

Because O'Connor sidled between the Court's conservative and liberal wings her departure is far more significant than the departure of Chief Justice William H. Rehnquist would have been. Had the Chief Justice retired, his vote on the Court would simply have been substituted by Mr. Bush with another vote from the "original intent" wing of the Republican judicial party. Or, perhaps, the Chief Justice would have been replaced by someone to his right, a clone of the President's heroes on the Court -- Justices Clarence Thomas and Antonin Scalia. But even then the Court's balance would have been altered only in those few cases where the Chief Justice did not vote with his legal soul mates. It just wouldn't have changed the Court's balance much.

But O'Connor's absence does impact the Court's future and the country's legal destiny and everyone knows it. That's why the political heavens are surely going to fall in her wake. The constitutional rule that precludes states from criminalizing certain types of abortion procedures now is in jeopardy. Many federal laws that she supported, including the Americans with Disabilities Act, now may come under successful assault. Affirmative action? It's precarious position is even more fragile today. Even in the area of death penalty law, O'Connor's written remarks in recent court rulings and her public comments suggested that she was growing increasingly concerned about substantive, inherent problems in what a former Justice once aptly called the government's "machinery of death."