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
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
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
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.