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Sandra's Day On Court Ends

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.

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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."

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.
By Andrew Cohen

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