Associate Supreme Court Justice Sandra Day O'Connor has announced her retirement from that esteemed bench--sort of. She will continue to sit until her replacement has not only been nominated, but confirmed.
Justice O'Connor caught me, as she did nearly everyone else (including those in the White House if the news reports are correct), off guard. I fully expected ailing Chief Justice Rehnquist to resign soon, but not her.
The next several months will be fascinating. To begin, O'Connor, as the first female Supreme Court justice, probably cannot be replaced by an old white man. Dubya's going to have to find a nominee who can pass his litmus tests (otherwise he won't nominate that person) and yet not undo the Court's current gender and ethnic diversity. Most likely, Dubya will have to broaden it further. (Remember, everyone, the Court unofficially has a "Jewish" seat and a "black" seat and a "Catholic" seat and at least one "female" seat . . .) About the only way Dubya can nominate a man to replace O'Connor is if he gets yet another ethnic group into the mix. I thus suspect that he may push for current Atty. Gen. Alberto Gonzales to accept nomination even though Gonzales has already indicated he doesn't want it.
Back in 1981, when President Reagan appointed O'Connor, I felt (and still feel) that it was more important to women to have someone--male or female--of open judicial mind and temperment appointed than it was to have just any woman appointed. I was less than thrilled by her ascention to the nation's highest court. Nevertheless, she has proven to be reasonable and moderate in much of her judicial output. Indeed, in the vast majority of the Court's most provocative cases over the last 24 years, she was the crucial swing vote preserving key civil rights gains established in earlier Court decisions.
In other words, having a judicial conservative on the bench is not all bad when conservation means not overturning prior decisions willy-nilly. And most certainly by the standards of Dubya's favored potential nominees, O'Connor is downright moderate . . . hence, unacceptable.
Therefore, her resignation is much more troublesome than would have been CJ Rehnquist's. Dubya could nominate a replacement for him and it wouldn't change the Court's balance of power. Take away one neocon and add one neocon and you get one neocon. But take away one moderate and add one neocon, and you have trouble with a capital "T." O'Connor's replacement may be able to do tons of damage, especially if s/he does not care a whit about judicial restraint in its classic sense. Be afraid. Be very afraid.
Finally, with the Senate's filibuster rules and "nuclear option" powers still in play (ref. my earlier post about when is a compromise not really a compromise), the confirmation process for whomever Dubya nominates is guaranteed to turn brutal.
But this is where O'Connor was smart. She isn't giving up her seat until her replacement is confirmed. She might still be on the bench come October, 2005. I never thought I'd say this, but that is not a bad thing.
Buckle your seatbelts, boys. It's going to be a bumpy flight.
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