WASHINGTON — Justice Sandra Day O'Connor — the first woman to serve on the U.S. Supreme Court — announced on Friday that she is retiring, setting up what is sure to be a tumultuous fight over confirming her successor.
After months in which speculation about the Supreme Court focused on the likelihood of Chief Justice William H. Rehnquist stepping down, the retirement of O'Connor, 75, caught much of Washington, including the White House and her own colleagues on the court, off guard.
Even so, the armies of ideological activists from both sides who had massed in anticipation of a battle over replacing the chief justice, a reliable conservative, quickly pivoted to what they agreed was an even greater struggle for control of a seat that could alter the court's balance on an array of polarizing topics.
O'Connor's decision creates the first vacancy on the court in 11 years, ending the longest period without a change in the lineup of justices since the 1820s, and it provides President Bush with his first opportunity to name a Supreme Court justice.
The White House spokesman, Scott McClellan, said the president would not make a selection until after returning from a summit meeting next week in Scotland. Sen. Arlen Specter, R-Pa., the chairman of the Senate Judiciary Committee, said he had been invited to the White House to talk about the vacancy on July 11.
Also invited to the meeting, Specter said, are Sen. Bill Frist of Tennessee, the Republican majority leader, Sen. Harry Reid of Nevada, the Democratic minority leader, and Sen. Patrick Leahy of Vermont, the senior Democrat on the judiciary committee.
Among the names most frequently mentioned as potential nominees are Judges J. Harvie Wilkinson III and J. Michael Luttig of the U.S. Court of Appeals for the 4th Circuit in Richmond, Va.; Judge John Roberts, who sits on the appeals court based in Washington; and Judge Michael McConnell of the 10th Circuit who sits in Salt Lake City.
Should Bush want to choose a woman to replace O'Connor, the candidates are likely to include Judge Edith Brown Clement and Judge Edith H. Jones, both of the 5th Circuit based in New Orleans. Among other potential candidates are two Hispanics, Attorney General Alberto Gonzales and Emilio M. Garza, a federal appellate judge in Texas.
It is still not clear whether Rehnquist, who is battling thyroid cancer, will step down this summer, expanding the confirmation battle to two fronts.
In an appearance in the Rose Garden Friday morning a little more than two hours after getting word of O'Connor's resignation, Bush said he would be "deliberate and thorough" in selecting a nominee to replace her. He said his intention was to make a nomination in time for the new justice to be in place for the start of the court's next term in October. O'Connor said she would stay on the bench until her successor arrived.
Balance of power
With memories still fresh among many conservatives of the Democrats success in blocking the nomination in 1987 of Robert Bork to the court, and with Capitol Hill still embittered over last month's confrontation over the use of filibusters in judicial nominations, Bush effectively put the Democratic leadership on notice not to go to extreme lengths to reject his choice or turn the confirmation proceedings into a partisan free-for-all.
"The nation deserves, and I will select, a Supreme Court justice that Americans can be proud of," Bush said. "The nation also deserves a dignified process of confirmation in the United States Senate, characterized by fair treatment, a fair hearing and a fair vote."
Specter indicated that he would most likely hold confirmation hearings in September, though he did not rule out August, when Congress is scheduled to be in recess. Some conservatives have expressed concern about delaying confirmation hearings for too long, out of worry that it would give liberal groups more time to gather ammunition for an attack.
Since joining the court in 1981, replacing Justice Potter Stewart, O'Connor has been at the very center of the court in almost every sense, and has held or helped define the balance of power on many of the issues of broadest concern to the nation, including affirmative action, the death penalty and religion.
But it was her stance on abortion, and in particular her role in reaffirming Roe v. Wade, the landmark 1973 ruling that put the court on the side of abortion rights, that placed her most squarely in the middle of the culture wars that have increasingly dominated not just the courts but political discourse in general.
Replacing her with an opponent of abortion rights would not by itself be enough to overturn Roe v. Wade; it would take a shift of two votes in the court's current composition to do so. But it would change the balance of power on the court when it comes to lesser restrictions on abortion, like bans on the abortion procedure that its opponents call partial birth abortion. It would also move the court that much closer to overturning Roe, the long held goal of many social conservatives.
'A great privilege'
O'Connor did not specify her reasons for stepping down beyond a brief statement relayed by a spokeswoman for the Supreme Court in which the judge referred to being 75 and to wishing to spend more time with her husband. Her husband, John, is said to have Alzheimer's disease.
In her resignation letter to Bush, she said she would leave the court as soon as her successor was named and confirmed.
"It has been a great privilege, indeed, to have served as a member of the court for 24 terms," she said in the three-sentence letter. "I will leave it with enormous respect for the integrity of the court and its role under our constitutional structure."
The first inkling the White House had of her decision came around midday on Thursday when Pamela Talkin, the head marshal of the Supreme Court, called Harriet E. Miers, the White House counsel, to make arrangements to hand-deliver a letter on Friday morning. Ticklin did not say which justice the letter was from, according to an account provided by McClellan, the White House spokesman.
Miers then informed Bush and Vice President Cheney, who were having lunch in the president's private dining room just off the Oval Office.
On Friday morning just before 9 a.m., Talkin called back to say the letter was from O'Connor. Miers then told Bush by telephone. Bush relayed the news to his inner circle, including Cheney, Karl Rove, the president's senior adviser and deputy chief of staff, and Dan Bartlett, his longtime communications adviser.
After the White House formally received the justice's resignation letter in a manila envelope, Bush held a five-minute phone conversation with her starting at 10:18 a.m., telling her, "For an old ranching girl, you turned out pretty good," a reference to her roots in El Paso, Texas.
Potential nominees
Bush later called a staff meeting to discuss the process of settling on a replacement, McClellan said. McClellan said Bush had not yet "given any serious consideration to any nominee because he has not reviewed any material relating to potential nominees in any serious way."
McClellan said Bush would start reading through material about potential nominees over the weekend, which he will spend at Camp David, and during his trip next week to Denmark and Scotland.
A senior administration official, who spoke on the condition of anonymity in order to describe internal deliberations, said Bush would be reviewing "more than half a dozen" potential candidates and that the list would include people with a broad array of backgrounds.
The official suggested that the list might include one or more women. The list, the official said, had been assembled by a group including Cheney; Rove; Bartlett; Miers; Gonzales; Andrew H. Card Jr., the White House chief of staff; and I. Lewis Libby, Cheney's chief of staff.
The official said the list given to Bush might have been somewhat different if it had been Rehnquist who had stepped down, because a chief justice nominee would have benefited from managerial qualifications that are less relevant for an associate justice. But overall, the official said, the candidate pools to replace the justices were quite similar.
But even allies of the White House said that Bush faces a tricky task in nominating a replacement for O'Connor.
"This is clearly a different jigsaw puzzle than what they were expecting," said Kenneth M. Duberstein, who was White House chief of staff under President Ronald Reagan and managed the Supreme Court nominations of Clarence Thomas and David Souter for the first President Bush.
"Everyone was expecting a conservative replacing Rehnquist," he said. "Now you have the question of a woman or a minority for the swing vote on the Supreme Court. That's a sensitivity the White House will really have to grapple with."
Bush placed calls on Friday afternoon to Specter and Leahy. Bush had spoken earlier with Frist, who is turning to a close ally of Bush, Ed Gillespie, the former chairman of the Republican National Committee, to help manage the nomination fight in the Senate, Republicans said.
McClellan said the president had attempted but failed to reach Sen. Harry Reid of Nevada, the Democratic leader.
On Capitol Hill, many senators, including Reid, had already scattered for the long holiday weekend. As word of the retirement buzzed through Congress, members of both parties moved quickly to stake out their positions in a rapid-fire sequence of floor speeches and press conferences.
Republicans immediately sought to pre-empt the prospect of a Democratic filibuster, the procedural tactic that had been employed against 10 of Bush's federal appeals court candidates. They said the nominee's fate should be decided by a simple Senate majority, not the 60-vote threshold the filibuster requires.
"The person either goes on the Supreme Court or they don't go on the Supreme Court by 51 votes," said Sen. Sam Brownback, R-Kan. "That's what it should be."
Democrats urged the president to make good on his promise to consult with members of both parties in the Senate in choosing his nominee, a dialogue they said could avert a bitter fight over the court vacancy.
"I sincerely hope that the president will be true to tradition and true to the best interests of the nation and he'll consult meaningfully with both Democratic and Republican senators before making such a momentous decision," said Sen. Charles E. Schumer of New York, a Democratic member of the Judiciary Committee, who raced back to Washington from New York after the announcement.
Sen. John Warner of Virginia, a senior Republican who was instrumental in crafting a compromise in May that averted a Senate showdown over judicial filibusters, urged Bush to choose a nominee that could attract broad bipartisan support.
"This nomination of the first Supreme Court justice by this distinguished president gives him an opportunity to be a uniter, not a divider," Warner said.