My reaction to Justice Sandra Day O’Connor’s retirement was almost as positive as my reaction in 1981 was negative when the Reagan administration announced that they were going to appoint a woman to the Supreme Court.
It wouldn’t matter if all nine Justices of the Supreme Court were women, if these were the nine best people available. But to decide in advance that you were going to appoint a woman and then look only among women for a nominee was a dangerous gamble with a court that has become dangerous enough otherwise.
The recent outrageous Supreme Court decision making anyone’s home prey to any politician who wants to confiscate it, using the magic words "public purpose," shows a court full of itself and blind to the havoc it is leaving in its wake.
Although Justice O’Connor was one of the four who opposed this latest outrage, over the years she contributed more than her share to the uncertainties and confusions in the law resulting from such nebulous notions as "undue burden" and other "nuanced" policy-making that splits the baby instead of drawing a line.
The political temptation may be great to appoint a Hispanic Justice or another woman or some other nominee selected on the basis of group identity rather than individual qualifications. At this crucial juncture in the history of the Supreme Court, that would be needlessly repeating the mistake that brought Sandra Day O’Connor to the High Court in the first place.
The political path of least resistance would be to nominate someone who can get confirmed by the Senate without a long political battle that would polarize the country. Another little-known "stealth" nominee like David Souter might fill the bill but the track record of Justice Souter’s disgraceful disregard of the Constitution should be enough to warn against going down that road again.
Then there are the judicial candidates with a "conservative" label but who lack the toughness and integrity to stand up to all the pressures and temptations to go along with ideas that will win praise in the media and among the law school elites who favor liberal judicial activism.
Among the "conservatives" who succumbed and "grew" over time to the left is Justice Anthony Kennedy, once touted by some conservatives as "Bork without a beard" but who turned out to have neither the intellect nor the strength of Judge Robert Bork. One of his former colleagues on the 9th Circuit Court of Appeals warned my wife and me, early on, that Kennedy was not strong.
The first time I saw Justice Kennedy on television addressing the American Bar Association, and obviously trying to suck up to them, I was reminded of what his fellow judge had said of him.
Another Anthony Kennedy might fool enough conservatives and appease enough liberals to get confirmed without a big political fight but our children and our children’s children would end up paying the price in decisions as weak, vacillating — and dangerous — as those which Justice Kennedy has rendered.
President Bush has taken the long view on many issues that he could easily have avoided and saved himself political trouble, including Social Security and drilling for oil in Alaska. So there is hope that he will be prepared to spend some political capital in a tough Senate confirmation fight by nominating someone with both dedication to the Constitution and the strength of character to ignore the pressures and temptations to go along with fashionable "mainstream" judicial activism.
Whether Senate Republicans will have the fortitude and unity to make their majority mean something is another question. The McCain mutiny and sellout against the Republican attempt to stop Senate filibusters by Democrats is a sign that this may be the weak link in any attempt to restore the rule of law in our courts.
Another weak link are those people who think that the Senate should not "waste" so much time over judicial nominees but instead devote its efforts to other things that are considered to be the "real" issues of the day.
Recent Supreme Court decisions, of which the one destroying homeowners’ property rights was only the most outrageous, should be enough to make clear that the real issue is preserving the Constitution.
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