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Charles Cutter

Judging Sandra Day O'Connor
By Charles Cutter (www.cuttersway.com)
Jul 7, 2005 - 6:29:00 PM

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When we look into the face of the individual who replaces Sandra Day O’Connor on the United States Supreme Court, we’ll be looking into the face of the future. The goal of Bush & Co. is to forge their ultra-conservative imprint on America for decades to come. With this opportunity - coupled with the expected retirement of ailing Chief Justice Rehnquist - it’s easy to see how the Bush values of unlimited executive privilege, theocratic social restrictions and eroded civil liberties can easily become the law of the land for generations of Americans.

Perhaps irretrievably so.

A quick review of the political landscape shows how far to the right this country has drifted in the past twenty-five years: The Reagan-nominated O’Connor is now being embraced by many liberals as a fair-minded centrist, while many conservatives are damning a potential O’Connor replacement - Attorney General Alberto "Torture Memo" Gonzales - as being too liberal on social issues.

The Gonzales case is too ridiculous to take seriously. But it’s worth taking a closer look at the revisionist history regarding Sandra Day O’Connor.

Senator Barbara Boxer (D-CA) suggested that Mr. Bush should "use Justice O’Connor as a role model…She was a leader on the court for moderation and consensus building." Kim Gandy, president of the National Organization for Women, describes O’Connor as "a justice who has often made the difference in the preservation of essential rights." In the view of the America Civil Liberties Union, "Justice O’Connor fully earned her reputation as a centrist; she was a conscientious jurist and, in a number of key cases, stood up for individual rights and against a radically conservative vision of the Constitution." The ACLU went on to praise O’Connor’s "fair and impartial perspective."

Granted, Justice O’Connor has been on the right side of a number of judicial decisions regarding such issues as abortion rights and the environment. In McCreary County v. ACLU of Kentucky (2005), she was a vital part of the 5-4 vote upholding government neutrality regarding religion. Regarding this case, she wrote: "When the government associates one set of religious beliefs with the state and identifies nonadherents as outsiders, it encroaches upon the individual’s decision about whether and how to worship…"

In the case of American-born detainee Yaser Hamdi, Ms. O’Connor rebuked the Bush administration’s grab for unlimited power: "[A] state of war is not a blank check for the president when it comes to the rights of the nation’s citizens."

Still, the decision that should haunt any assessment of Justice O’Connor’s "fair and impartial perspective" is her part in the 5-4 vote in Bush v. Gore (2000), ending the Florida recount and hand-delivering the presidency to George W. Bush. Reportedly, it was Justices O’Connor and Kennedy who penned the provision that the Bush v. Gore decision did not constitute a precedent for future cases: "Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities."

From Jeffrey Toobin’s Too Close to Call (2001): "The Supreme Court was announcing in advance that the case of Bush v. Gore existed to serve only the Republican candidate for president in 2000. For those who would see cynical motives in the work of the majority - who thought they were acting more from political than principled motives - this sentence looked like a confession. O’Connor, Kennedy, and the others, it appeared, limited themselves to ‘the present circumstances’ because that was what was necessary to assure their candidate’s victory."

The results of her action in this case are incalculable, but let’s hit the high points - a bankrupted American economy and an illegal war costing thousands of lives. Justice O’Connor might have made history as the first female member of the Supreme Court; but - if history is fair - judgment of her will be burdened by every destructive action undertaken by the Bush administration.

It’s a monster she helped to create.


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