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Supreme Court Justice Sandra Day O’Connor hated being called the Court’s swing vote. And she never thought being the Court’s first woman made much difference. “A wise old woman and a wise old man reach the same conclusion,” she was fond of repeating. But now that O’Connor has made the stunning announcement that she is retiring at age 75, both her status as a swing vote and as the Court’s first woman take on enormous importance in the titanic battle that is almost certain to follow President George W. Bush’s announcement of her replacement. A nomination could come as early as next week. Much more so than the retirement of any other justice, O’Connor’s departure puts hot-button issues — most notably affirmative action and abortion rights — in play, raising the already high stakes to a historic level. “Any seat is important, but this is the one that’s going to make the difference,” says Theodore Shaw, executive director of the NAACP Legal Defense Fund. “Her leaving will have the most profound effect on the Court.” Nancy Northup, president of the Center for Reproductive Rights, which supports abortion rights, says, “Justice O’Connor has been the critical vote in favor of protecting women’s reproductive choices.” President Bush’s nominee to replace her will have to publicly discuss his or her views on the issue, she adds. “Our biggest concern is with a stealth nominee.” O’Connor’s departure, the first on the Court in 11 years, will also put strong pressure on Bush to replace O’Connor with another woman or minority. President Ronald Reagan, who promised in his presidential campaign to name the first woman to the Court, appointed her in 1981, and she was often named in polls as the most powerful woman in America. “You can’t go down to one woman on this court in this day and age, unless it’s a Hispanic male. That would give Bush some cover,” says University of Connecticut professor David Yalof, author of a book on how presidents pick justices. CRITICAL ISSUES IN FLUX At the end of a week in which conventional wisdom had it that Chief Justice William Rehnquist would retire, the chief was silent and it was O’Connor who sent a letter to Bush on July 1, stating she would retire “effective upon the nomination and confirmation of my successor.” On July 1, Court officials said O’Connor was “out of reach” and would not respond to questions, unlike the late Justices Lewis Powell Jr., Thurgood Marshall, and Harry Blackmun, who all held press conferences after announcing they were leaving. Other sources indicated O’Connor was en route to a family gathering in Wisconsin. O’Connor told Court public information officer Kathy Arberg that both age and her husband’s health were factors. “She is 75 years old, and she needs to spend time now with her husband,” Arberg told reporters at the Court, conveying the gist of O’Connor’s message to her. O’Connor’s husband, John, a lawyer formerly affiliated with Fennemore Craig and with Bryan Cave, suffers from Alzheimer’s disease, and needs increasing levels of care. When President Reagan appointed her, little was known about O’Connor’s legal views. She had been an Arizona state legislator and elected judge, and had caught the attention of then-Chief Justice Warren Burger, who lobbied for her appointment. With that political leavening in her background, O’Connor soon became known for her pragmatic rather than ideological views. She became the master of what was often labeled as a “fretful concurrence,” declining to vote completely with one side or the other, but instead charting her own, middle-ground path. With the rest of the Court almost evenly divided for much of her tenure, O’Connor’s moderate approach put her in the driver’s seat in many cases. In the last 10 years, she was in the majority in 148 of the 193 rulings decided by 5-4 votes, according to a tally by the D.C. law firm Goldstein & Howe. On the issue of abortion, O’Connor generally supported the right of women to end their pregnancies, though over time she developed an “undue burden” test that would allow some government-imposed restrictions on abortions, but not others. In a 1989 abortion case, Justice Blackmun, author of the original Roe v. Wade decision declaring a woman’s legal right to an abortion, looked at his increasingly conservative colleagues and wrote, “A chill wind blows.” But in 1992, O’Connor helped rescue Roe by joining with Justices Anthony Kennedy and David Souter in a joint majority ruling in Planned Parenthood v. Casey. “An entire generation has come of age free to assume Roe‘s concept of liberty,” they wrote. But what has abortion-rights advocates worried now is that in 2000, Kennedy appeared to defect from the abortion-rights camp. In Stenberg v. Carhart, which struck down a state “partial-birth” abortion law by a 5-4 vote, Kennedy was in dissent and O’Connor, once again, was cast in the swing-vote position in the majority — the one vote keeping Roe from being overturned. O’Connor’s replacement will face the abortion issue soon. A New Hampshire abortion law is on the Court’s docket for the fall, and other cases — including a challenge to a federal “partial-birth” abortion law — are making their way through lower courts. O’Connor played a pivotal role as well in the 2003 affirmative action ruling in Grutter v. Bollinger. For years, she had grown increasingly skeptical of affirmative action programs because she felt they amounted to government treatment of individuals based on race. But when a challenge to the affirmative action programs at the University of Michigan went before the Court, she relented. Briefs from corporate America and from former military leaders appeared to persuade O’Connor that society had grown to rely on affirmative action programs as a necessary tool to bring needed diversity to major institutions. “Effective participation by members of all racial and ethnic groups in the civic life of our Nation is essential if the dream of one Nation, indivisible, is to be realized,” O’Connor wrote for a 5-4 majority. Her pivotal role in decisions with liberal outcomes often angered conservatives. “On all of the critical areas that Reagan campaigned on — affirmative action, abortion — she basically abandoned the president,” says conservative Court-watcher Bruce Fein. “Presidents should be wary of making appointments to win political constituencies. They end up losing on both ends.” RELIGION CASES: UNPREDICTABLE In last week’s rulings on whether it was constitutionally permissible to allow Ten Commandments displays on public property, O’Connor voted no in both cases, angering the religious right and capping a career in which she went back and forth on religious liberty issues. “Sometimes she voted with the hardcore secularists who banished religion from public life; sometimes she voted with the conservative wing to uphold the tradition of religion in public culture,” says Kevin Hasson, founder of the Becket Fund for Religious Liberty, which favors greater government accommodation of religious practices. “We have a living Constitution. Her name is Sandra Day O’Connor, and thank God she’s retiring.” On one issue, she generally pleased conservatives: She was part of the five-justice majority that voted to strengthen states’ rights in federalism disputes. Bush will be under pressure to nominate someone who sees that issue the same way. When cases involving racial redistricting repeatedly came before the Court in the 1990s, it was often O’Connor who played the role of art critic, deciding as the swing vote whether a particular congressional district that had been drawn to consolidate minority votes was too oddly shaped to be constitutional. It was not until Easley v. Cromartie in 2001 that she found a district designed with race in mind that she found acceptable. From the bench, O’Connor was known for asking the first question, often a bluntly worded plea for clarity or help with what troubled her most about the case. It was usually a good sign of what the entire Court was struggling with. “Her manner was sometimes off-putting, but it was often the best question you would get,” says Andrew Frey, a veteran high court advocate at Mayer Brown Rowe & Maw. “Even if she was not smiling at you, you knew she was paying attention.” O’Connor loved the life of the Court, and viewed the late Justice Powell as her mentor. Powell often boasted that he was the first justice to have ever danced with another justice, namely O’Connor. Justice Antonin Scalia often voiced frustration with O’Connor’s equivocation, but privately O’Connor would smile about it and shrug, “That’s Nino.” ‘I’M NOT RUTH’ O’Connor was relieved when, in 1993, the arrival of Justice Ruth Bader Ginsburg lifted the burden of being the only female justice on the Court. “It was a happy day, indeed, when she was confirmed to join our court,” O’Connor wrote in her 2003 book, The Majesty of the Law. Once Ginsburg joined the Court, O’Connor told National Public Radio, “we were fungible justices all of a sudden.” In fact, advocates before the Court sometimes confused the two women, addressing O’Connor as Ginsburg. O’Connor once sported a T-shirt that read “I’m Sandra, not Ruth.” O’Connor’s determination and work ethic carried her through her bout with breast cancer in 1988, never missing an oral argument. She recovered quickly. Her law clerks viewed her as a down-to-earth role model and an inspiring boss. On Saturdays when she and her clerks worked at the Court, O’Connor would cook up a casserole and serve it to her clerks. “I can’t imagine another justice cooking lunch for their law clerks,” says Bradley Joondeph, a 1999 clerk and now a law professor at Santa Clara University. Michelle Friedland, an associate at Munger, Tolles & Olsen and a 2001 clerk, says she and other O’Connor clerks were shocked at the retirement announcement July 1. “I really didn’t think she would retire. She loves the Court so much. There is a whole generation of women, not just female lawyers, for whom she is a role model.” Tony Mauro can be contacted at [email protected]. Legal Times reporter Lily Henning and Assistant Editor Bethany Broida contributed to this report.

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