WASHINGTON (BP)–Sandra Day O’Connor retired July 1 from the U.S. Supreme Court, providing President Bush with the opportunity to nominate his first justice for what could be a contentious confirmation battle.
O’Connor, 75, the first woman ever to serve on the high court, announced her retirement after 24 years of service in a three-sentence letter to the president. Her departure was not a total surprise, but it came after months of expectations of a retirement announcement from ailing Chief Justice William Rehnquist. The court’s term ended June 27, and Rehnquist has not announced any plans to step down.
O’Connor was often a swing vote who frequently departed from the court’s conservatives on issues such as abortion and public religious expression. For that reason, the confirmation process for her successor may prove even more divisive than one for a successor to Rehnquist, a conservative.
Bush commended O’Connor in a two-minute speech at the White House and declined to announce a nominee. The president said he would review possible nominees “who meet a high standard of legal ability, judgment and integrity and who will faithfully interpret the Constitution and laws of our country.” According to the Associated Press, the White House said a nominee would not be announced before Bush returns from Europe July 8.
Court watchers on both sides of the social issues that divide the country responded quickly to news of the first court vacancy in 11 years, with many describing it as a crucial interval.
“For President Bush, social conservatives and the senators they helped elect, the moment of truth has arrived,” said Richard Land, president of the Southern Baptist Ethics & Religious Liberty Commission.
O’Connor’s retirement “opens the door for the opportunity that tens of millions of Americans have been praying for,” he told Baptist Press. “That opportunity, of course, is to redress the imbalance in the Supreme Court and to make it a solidly original-intent court that will interpret the Constitution, not view it as an ‘evolving’ document to be rewritten according to the personal views of the justices with allusions to international law.
“George W. Bush’s long-term legacy as president will in all probability hinge on whether he now keeps his promise to nominate only judges and justices who fit the Scalia-Thomas, original-intent-jurist mold,” Land said.
Other social conservatives also referred to Bush’s stated preference for justices like Antonin Scalia and Clarence Thomas, who are considered the high court’s most conservative members and who espouse a judicial philosophy based on understanding the original intent of the Constitution.
James Dobson, founder of Focus on the Family, called it a “watershed moment — the resignation of a swing-vote justice on the Supreme Court and the opportunity to change the court’s direction.”
The president “must nominate someone whose judicial philosophy is crystal clear,” Dobson said in a written release. “And no one has been clearer about this than the president himself, who said during his [2004] campaign that he would appoint justices in the mold of Clarence Thomas or Antonin Scalia. We have full confidence that he will carry out that pledge.”
Ken Connor, chairman of the Center for a Just Society, said in a written statement, “With so many 5-4 decisions reshaping our nation, we need a nominee we can count on once their lifetime appointment begins. There are too many quality Supreme Court candidates worthy of a confirmation fight and worthy of a seat on the court for us to accept a nominee who is chosen only because he or she will easily win Senate confirmation.”
Abortion-rights advocates and other liberals called for a “consensus nominee” and warned Bush of the opposition a conservative choice would face.
Nancy Keenan, president of NARAL Pro-choice America, called it a “defining moment — President Bush has to pick between what mainstream America wants and what the radical right demands.”
“One thing is very clear — if the president makes this vacancy an opportunity to push his personal ideology, you can bet your last dollar he’s got a real fight on his hands,” Keenan said in a written release.
People for the American Way President Ralph Neas called O’Connor the “most important figure on the court in recent years. Her replacement will have a monumental impact on the lives and freedoms of Americans for decades to come.”
“Replacing Justice O’Connor with another Justice Scalia would be a disaster for civil rights, privacy and the rights of individuals to be protected against abuse by government or corporate power.”
Included in a lengthy list of potential Bush nominees mentioned by various sources are:
— Samuel Alito of the Third Circuit Court of Appeals;
— Emilio Garza of the Fifth Circuit Court of Appeals;
— Albert Gonzales, U.S. attorney general;
— Edith Jones, also of the Fifth Circuit Court of Appeals;
— Michael Luttig of the Fourth Circuit Court of Appeals;
— Michael McConnell of the 10th Circuit Court of Appeals.
Pro-life advocates would not embrace Gonzales like they apparently would other selections. As a member of the Texas Supreme Court, Gonzales voted against a parental notification law.
The confirmation process will take place against a background of divisiveness over federal appeals court nominees the last four years. Senate Democrats have filibustered several of Bush’s appellate nominees. Some finally received confirmation in May and June after seven members of each party reached an agreement. Some other nominees, however, still remain as targets for filibusters in an effort to prevent their confirmations.
O’Connor served as a deciding vote in the following 5-4 decisions on abortion:
— Planned Parenthood v. Casey, a 1992 ruling that upheld some Pennsylvania restrictions on abortion but reaffirmed the 1973 Roe v. Wade opinion legalizing abortion;
— Stenberg v. Carhart, a 2000 decision that struck down a Nebraska law banning partial-birth abortion;
She had a checkered record on church-state issues. She was part of a 5-4 majority that upheld college students’ religious rights in the 1995 Rosenberger v. University of Virginia decision, but she voted against public displays of the Ten Commandments in two 5-4 opinions announced only four days prior to her retirement.
She also was part of a 6-3 majority in Lawrence v. Texas, a 2003 opinion that invalidated a Texas anti-sodomy law.
O’Connor also had joined other justices, especially in this term, in advocating reliance upon laws from other countries.
One much-maligned opinion that will not be reversed by the confirmation of a conservative is Roe v. Wade. After changes to the court’s makeup since 1992, there is now a 6-3 majority in support of that opinion and its companion, Doe v. Bolton. Those rulings had the effect of legalizing abortion throughout all nine months of pregnancy for basically any reason.
In O’Connor’s letter to Bush, she told him her retirement would become effective when a successor is confirmed. In his speech, the president said he would select a nominee “in a timely manner” so a vote could take place before the high court begins its next term Oct. 3. Bush called for “fair treatment, a fair hearing and a fair vote” for his nominee.
O’Connor began her service as an associate justice in 1981 after being nominated by President Reagan. She was serving on the Arizona Appeals Court when Reagan selected her.
Rehnquist, 80, has been undergoing treatment for thyroid cancer since last fall.
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