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Washington-With the retirement of Justice Sandra Day O’Connor, the first woman to sit on the U.S. Supreme Court, the soon-to-unfold Senate confirmation process has “all the signs of World War III,” said one high court scholar. The reason is simple: O’Connor has been the most powerful swing vote on the court in modern times, even more so than the late Justice Lewis F. Powell Jr., who was known for holding that crucial position immediately before her. Although there has been much debate in recent years over who is more influential-O’Connor or Justice Anthony M. Kennedy, who also has cast the critical fifth vote in many cases-for many scholars, it is in shaping the pivotal rule in close cases that O’Connor tips the balance of influence. To those in the O’Connor camp, the justice has been the key player in five areas of the law: affirmative action, abortion rights, separation of church and state, habeas corpus and federalism. Stratospheric tension Some of those areas will be in play once again when the October 2005 term begins this fall. And that reality will force an already highly charged confirmation process into the stratosphere by late summer. The high court has agreed to review challenges involving assisted suicide, limits on the right to abortion and on abortion protests, the religious use of drugs and military recruiting at law schools and on college campuses. “The nomination battle for O’Connor’s replacement comes at a critical moment for civil liberties,” said Anthony M. Romero, executive director of the American Civil Liberties Union. Noting pending legal challenges and debates over the USA Patriot Act, the detention of citizen “enemy combatants” and access to counsel for those detained for national security reasons, Romero added, “The stakes could be as high as they were during the Bork nomination battle of the 1980s.” Appointed in 1981, O’Connor, 75, who announced her retirement on July 1, effective upon confirmation of her replacement, is the only current justice to have served as a lawmaker. She was an Arizona state senator and the majority leader of that body, serving from 1969 to 1974. In the view of many court watchers, those skills have served her well in tipping the balance on the court in close cases. In Planned Parenthood v. Casey, 505 U.S. 833 (1992), which preserved and weakened the landmark abortion ruling Roe v. Wade, 410 U.S. 113 (1973), the high court adopted a new standard-previously espoused by O’Connor-for judging the constitutionality of state abortion restrictions: Does the restriction “unduly burden” a woman’s right to have an abortion? In Adarand Constructors v. Pena, 515 U.S. 200 (1995), she led the 5-4 majority in requiring, for the first time, the application of strict scrutiny-the Constitution’s most searching review-to federal race-based programs and preferences. Also in the race area, she launched the high court’s modern voting rights revolution-retreat, some would say- with her majority opinion in Shaw v. Reno, 509 U.S. 630 (1993). That decision recognized an equal protection claim by white plaintiffs who claimed that a bizarrely shaped North Carolina congressional district was drawn to ensure the election of black candidates. She has rejected a near-insurmountable wall between church and state and an unquestioned willingness to permit considerable government accommodation of religion. In 1984, she set forth a standard for measuring a violation of the establishment clause: Does the government action “endorse” a religion or communicate disapproval of other religions. To the extent that the court has embraced any single doctrine in this unusually fractious area, said one civil liberties scholar, it is her endorsement test. In 1992, she led the high court in holding that Congress cannot commandeer the states’ legislative processes by compelling them to enact and enforce a federal regulatory program. New York v. U.S., 488 U.S. 1041. That standard led the justices in 1997 to strike down the section of the federal Brady law requiring local law enforcement officials to conduct background checks on gun buyers. Federalism concerns also have driven her to play the leading role, along with the chief justice, in severely restricting federal court review for state prisoners challenging their convictions and sentences. “Justice O’Connor has written many of the landmark opinions on federal habeas, including Teague v. Lane [489 U.S. 288 (1989)],” said Kent Scheidegger of the Criminal Justice Legal Foundation. What her standards shared was an ability to attract a majority. Although not necessarily loved by the justices to her right or left, or definitive in providing guidance to lower courts, court watchers said, they are standards that at least four other justices can live with. Some see that outcome as evidencing tactical skill; for critics, it is evidence of constitutional imprecision. “O’Connor is a fact-specific judge, inclined to balance competing constitutional perspectives and values rather than looking for hard and fast and universally applicable rules that give automatic answers,” said high court scholar Douglas Kmiec of Pepperdine University School of Law. “She is also a justice who in many of her opinions responded to the humanity of the parties before her.” That quality, he explained, was particularly noticeable in her dissent in the term just ended in Kelo v. City of New London, No. 04-108, in which the court extended the power of eminent domain to takings for economic purposes. O’Connor was clearly moved by the plight of the families who were losing homes that had been in those families for generations. O’Connor’s type of justice is hard to replace, he said, adding, “The burden on the president will be great to do so.” Rumored replacements include newly confirmed Judge Janice Rogers Brown and Judge John Roberts of the U.S. Circuit Court for the District of Columbia; judges Edith H. Jones and Edith Brown Clement of the 5th Circuit; Attorney General Alberto Gonzales; and Chief Judge J. Harvie Wilkinson and Judge J. Michael Luttig of the 4th Circuit.

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