WASHINGTON — For the last decade of her 24-year Supreme Court career, Justice Sandra Day O'Connor has been the most powerful American woman ever to hold public office — casting pivotal votes on such hotly contested matters as abortion, states' rights, the death penalty, government involvement with religion, and the rights of suspected terrorists.
The surprise announcement that O'Connor, the first female justice in Supreme Court history, will retire had Utahns singing the praises of the fiercely independent Arizona jurist — and partisans on both sides scrambling to establish battle lines in what is expected to be a fierce confirmation process for a replacement.
"Justice O'Connor has been one of the most influential justices in history," said Sen. Orrin Hatch, R-Utah, who is the second-ranking Republican on the Judiciary Committee that will debate her replacement to the high court. "She has been the pivotal fifth vote in so many important cases, on both sides of the equation. Justice O'Connor is highly respected, and deservedly so."
As a pragmatist on a bench filled with more predictable liberal and conservative purists, O'Connor wielded far more power than her official standing as one of nine justices because she often held the crucial swing vote, enabling her to pick which faction to shape into a majority on any given case.
"She was appointed to be a conservative, but then even more conservative justices got appointed, and the effect of this was to leave her right square in the middle of a Supreme Court whose composition has been unchanged for over 10 years now," said Richard Fallon a professor at Harvard Law School. "She made more important 5-to-4 decisions than any other justice over those 10 years."
Although O'Connor voted with conservatives more often than she did with liberals in those close decisions, her more liberal votes were often on cases representing the most incendiary issues of the day, from affirmative action to gay rights. Her power to decide the outcome was so sweeping that attorneys preparing to go before the court would craft their arguments with persuading her as their foremost goal.
"She is, in a sense, the most important person on the court," Hatch said. "She consistently swung between the left and right."
'Tests' and 'standards'
Eschewing bright-line rules, O'Connor wrote opinion after opinion calling for "balancing tests" and "standards" for resolving difficult cases based on the specific facts before her. The result, legal scholars say, was to keep the court on a moderate path. But it also created confusion by offering no definitive resolution to the underlying issues, which simmered on to generate litigation.
For example, she said there was a right to an abortion but states can still impose restrictions on abortion so long as the limits do not create an "undue burden." Confronted with two cases involving churches on public land, she said one was permissible because it had a "secular" purpose but another had to be taken down because it "endorsed" religion. And she said colleges may use race as a factor in admissions but cannot automatically award points to an applicant because of race.
"She's tried to come up with what she sees as pragmatic solutions," said Dennis Hutchison, associate law school dean at the University of Chicago. "But her real contribution has been as a mediating, steadying influence rather than as someone breaking broad, theoretical ground."
Some critics contended that O'Connor's style amounted to an "imperial judiciary" that did whatever it wanted behind a veneer of legal reasoning, rather than binding itself to core principles. Her pragmatist approach in particular infuriated conservatives, who saw her as betraying the philosophy of President Ronald Reagan, who in 1981 made her the first woman on the court.
But such attacks, including blistering dissents from her most conservative colleague, Antonin Scalia, made little difference to O'Connor. Instead, scholars say, the group whose good opinion she cultivated was that of society at large, as she appeared determined to maintain public respect for the institution of the Supreme Court by keeping it from too radical a course.
"She is one of the justices who has been most sensitive to the role of public opinion in relationship to judicial authority," said Barry Friedman, professor of law at New York University. "Her vote in (the 1992 abortion case) may well reflect her sensitivity about public opinion. The case was foisted on the court in an election year, and she . . . had to see the implications of overturning Roe."
Battle on the Hill?
Hatch, who has been directly involved in the Senate hearing process for eight of the nine justices, was somewhat surprised that O'Connor retired before Chief Justice William Rehnquist, whose poor health has fueled speculation for months that he will soon leave the bench.
And in many respects, O'Connor's retirement is more problematic for President Bush and the Senate Republican majority.
Hatch said Democrats would have grumbled but would likely support a "true-blue" conservative to replace Rehnquist, a conservative. In the end, though, the nomination would have gone through. But O'Connor is a moderate, and it may be more difficult to replace a moderate with a conservative.
Hatch predicted that Bush will nominate a conservative. "The president will not be buffaloed," Hatch said. "He will appoint a good conservative who is very qualified for the court." And that could present problems for Democrats.
In recent weeks, a tentative truce between majority Republicans and minority Democrats over a slate of Bush judicial nominees has held firm, thereby avoiding the so-called "nuclear option" whereby Republicans had threatened to change the Senate rules to eliminate Democratic filibusters.
Three of President Bush's most controversial nominees to the federal appellate bench have been approved, and others that were bogged down in the dispute have also been approved.
But a lifetime appointment to the Supreme Court could threaten the truce, a possibility that both sides were keenly aware of.
"The American people are tired of the confrontational partisanship that has characterized the judicial confirmation process in recent years," Hatch said. "When President Bush nominates someone to replace Justice O'Connor, the Senate must fulfill its constitutional responsibility to treat the nominee fairly with a full debate on the merits and then an up-or-down vote."
Choosing a replacement, said Senate Minority Leader Harry Reid, D-Nev., presents a "critical moment" for President Bush, who Reid said must recognize the constitutional role of the Senate in the confirmation of any nominee.
Reid said the president should engage in meaningful consultation with senators of both political parties, and that he should identify a candidate "whose views are within the broad constitutional mainstream."
"With this nomination, the president should choose to unite the country, not divide it," Reid said.
And that would be to nominate someone like O'Connor.
"Above all, Justice O'Connor has been a voice of reason and moderation on the court. It is vital that she be replaced by someone like her, someone who embodies the fundamental American values of freedom, equality and fairness," he said.
Sen. Edward Kennedy, D-Mass., whose early opposition to Robert Bork helped doom his nomination to the Supreme Court in 1987, threatened to do the same to a Bush candidate. "If the president abuses his power and nominates someone who threatens to roll back the rights and freedoms of the American people," Kennedy said, "then the American people will insist that we oppose that nominee, and we intend to do so."
'Rugged individualism'
Mostly, Friday's announcement brought praise for O'Connor.
"While (she) has been a key vote in favor of reinvigorating constitutional limits on federal power, her unpredictable style of judging — favoring narrow vague decisions over broad, clear ones — has short-changed the Rehnquist court's promise," said Mark Moller, editor of the conservative Cato Institute's Supreme Court Review.
By Friday afternoon, women's rights groups were calling on the president to nominate someone who shares O'Connor's views.
"The president can nominate a justice who will continue and enhance Justice O'Connor's commitment to equality and justice, or he can nominate someone who will roll back our cherished rights and freedoms," said Debra L. Ness, president of the National Partnership for Women and Families, adding that the choice could well define his presidency.
Eleanor Smeal, president of Feminist Majority, mixed no words. "Let there be no mistake about it, the feminist movement today is declaring a state of emergency to save the court for women's rights," she said.
Utahns in the nation's capital, while not agreeing with O'Connor on all her rulings, were not talking so much about abortion as they were quick to praise her Western values.
"She brought the rugged individualism of the West to the Supreme Court," said Rep. Chris Cannon, R-Utah. "Her legal acumen, as well as the values and lessons learned growing up on her family's 200,000 acre ranch, will echo in the court's decisions for generations. She broke down barriers and she advanced the fundamental concepts that continue to make our country great."
Rep. Jim Matheson, D-Utah, also praised her individualism, saying, "Her Western roots nurtured a self-reliant, independent and determined nature. Through her intellect and hard work, she created her own brand of pragmatic and centrist-oriented conservatism."
Rep. Rob Bishop, R-Utah, commended her service but said he was more looking forward to the president's nomination.
"I hope the Senate properly fulfills its role to give advice and consent but remembers that the Constitution gives the president the ultimate responsibility to choose," he said.
E-mail: spang@desnews.com
Contributing: Washington Post