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O'Connor's Exit Good for Court

URL: http://www.mapinc.org/drugnews/v05/n1062/a06.html
Newshawk: Richard Lake
Pubdate: Sat, 02 Jul 2005
Source: Rocky Mountain News (Denver, CO)
Copyright: 2005, Denver Publishing Co.
Contact: letters@rockymountainnews.com
Website: http://www.rockymountainnews.com/
Details: http://www.mapinc.org/media/371
Cited: Gonzales v. Raich http://www.angeljustice.org
Bookmark: http://www.mapinc.org/topics/Raich (Gonzales v. Raich)

           

                                                                                                                                                                       

O'CONNOR'S EXIT GOOD FOR COURT

One Less Swing Voter

Supreme Court Justice Sandra Day O'Connor announced her retirement Friday, setting the stage for what is likely to be high political drama over the high court's future.  But we won't be shedding any tears at her departure.

When President Reagan nominated O'Connor in 1981, he described her as "truly a person for all seasons, possessing qualities of temperament, fairness, intellectual capacity and devotion to public good." After 24 terms on the bench, those accolades still hold true.

But the current court's recent decisions have all too often depended on O'Connor's and Justice Anthony Kennedy's swing votes.  Both lean left on such controversial issues as church-state relations, racial preferences and gay marriage.  The result has been a court that has failed to enunciate clear and principled positions.  So the vacancy allows President Bush to fulfill a promise he made to voters last year to help craft a more intellectually coherent court.

When it comes to jurisprudence, O'Connor has been accused by some conservatives of being "unreliable" for her 1992 vote to uphold the Roe v.  Wade decision legalizing abortion and other votes that curbed the death penalty and upheld affirmative action.  But to be fair, two of her last decisions on the limits of government show her at her best.

In Raich v.  Gonzales, the medical marijuana case, the court essentially gave the federal government carte blanche to use the Commerce Clause however it sees fit.  In Kelo v.  City of New London it effectively ruled that that there are almost no limits on local government power to expropriate private property.  In both instances O'Connor wrote stinging dissents.

Nevertheless, based on confusing split decisions in such cases as Grutter v.  Bollinger, it's easy to see why O'Connor has been accused of succumbing to the influence of the political establishment.  Writing for the majority in Grutter, O'Connor allowed the court to badly undermine the concept of equality before the law with its endorsement of racial preferences at the University of Michigan's law school.

Likewise, she was the swing vote in the convoluted ruling that upheld the McCain-Feingold campaign finance law, which in our view was a direct assault by the court on the First Amendment right of free speech.  Unfortunately, part of her legacy now is an electoral process held hostage to the deliberations of lawyers, judges and government bureaucracies.

President Bush must nominate not only O'Connor's replacement but also propose a replacement for Chief Justice William Rehnquist, whose retirement is expected to come soon.  Though the current court hardly qualifies as "conservative" in the judicial sense, liberal groups were out in force Friday warning the president of a fierce nomination fight.  "Most Americans want Supreme Court justices who are fair and independent and are selected with the support of Senators from both parties," said People For the American Way President Ralph G.  Neas.

Yes.  But as the last election showed, voters are also fed up with judicial encroachments on their liberties.  They also want a Supreme Court that won't short-circuit the democratic process.