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When President Ronald Reagan named Sandra Day O’Connor as the first woman on the Supreme Court, he knew he was making history. He just didn’t know how much. As the ideological center of the bench for at least the past 10 years, O’Connor basically governed on race, gender, abortion, and the separation of church and state. O’Connor never forgot her conservative roots, but she did nourish or dilute them (depending upon your perspective) with meticulous attention to the facts of each case and a sensitivity to the human claims beneath the legal dispute. As President George W. Bush seeks her replacement, we do her record no disservice to wish for a nominee with firm legal principles and an appreciation for how many intractable human questions must be resolved democratically, and not by the Court. The jurisprudence of O’Connor was complex but not always satisfying. Commendably, she attempted to separate what is local from what is national by placing some limits on Congress’ regulatory power and making the states less liable for damages from federal lawsuits. She permitted communities to provide vouchers to parents that could be used in religious schools, but drew the line at directly funding those schools. She joined Chief Justice William Rehnquist and Justices Antonin Scalia and Anthony Kennedy to make the Constitution more colorblind, but then too casually accepted the use of race by a public law school that pleaded diversity but had a record of racial balancing. This year, with an ailing chief, O’Connor often defended conservative principles more strongly and openly. She vigorously dissented from opinions favoring the feds over the states on clearly local matters, such as whether a woman with a brain tumor could use marijuana for pain relief under a doctor’s supervision. O’Connor thought the California initiative on medical marijuana was bad policy, but acting as a model of judicial restraint, she held — contrary to Scalia and Kennedy — that it was the state’s decision to make. And with poignant concern for the individual lives displaced by the bulldozer, she rose to the defense of everyone’s home against an overly broad conception of taking for public use . Then she reverted to her less commendable and more inscrutable side in the Ten Commandments cases, vainly trying to apply the perspective of some unknown, and unknowable, hypothetical observer, rather than the religion clauses as ratified. And, of course, many were let down by O’Connor’s unwillingness over the years to return to the people the authority to make their own democratic way on the subject of abortion. In fairness, her attempted reconciliation of the opposing sides did invite the dialogue to continue in a manner that Roe v. Wade (1974) had not. But unlike the biblical Solomon who avoided splitting the baby, O’Connor’s efforts almost always meant the baby died. WHAT NOW FOR THE COURT? At any moment in history, whoever is invited to serve on the high court matters. On the current, closely divided Court, the vote of the new justice will often determine the outcome of critical issues. For example, the Court has been flirting with international perspectives abolishing capital punishment (as in its ruling this term striking down the juvenile death penalty), and new death penalty cases are already on the docket. A free speech claim next term, already much discussed in legal circles, will likely shock the public. The American Association of Law Schools has long mandated that every law school in the country discriminate against military recruiters because of the military’s refusal to condone active homosexual practice in its ranks. The federal government, now trying to fight a difficult — and difficult-to-recruit-for — war, essentially said through passage of the Solomon Amendment, “Fine, if you treat the military less well than an ordinary law firm recruiter, you can’t have certain federal subsidies.” “Violation of free speech,” howled the elite law schools and when the U.S. Court of Appeals for the 3rd Circuit agreed, the battle was joined. In a largely overlooked but important case this year, O’Connor joined a Scalia opinion affirming the proposition that government does not censor or compel speech when it merely uses public funds to advance its own policy perspectives — in this case, a program advertising beef. The decision is a handy and relevant precedent in favor of allowing Congress to make it a condition of public funding of law schools that the schools not diss those in uniform. Will the new justice follow O’Connor’s view on this? And what will a newly composed Court do with Ayotte v. Planned Parenthood of Northern New England? This case seeks — at long last — to take advantage of the dialogue O’Connor invited in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), asking exactly when a law requiring parental notification of abortion becomes an “undue burden.” Not yet on the docket is same-sex marriage, an issue still thrashing about in lower courts. But it will come. And when it does, it will be a mega-case raising many issues at once, including whether it is the Court’s business to fashion new rights out of silences in the constitutional text. The president hopes a new justice will have the humility to answer “no” to such invitations to judicial legislation. We’ll see. From public reports, it is obvious the president has already assembled a list of potential nominees of such great quality that anyone named from it ought to be swiftly confirmed. This, of course, is not political reality. Too much money has already been raised, and partisans are waiting to spend it — either to uncharitably denigrate or to mindlessly deify whoever gets the nod. THE BEST CONTENDERS This is where a little civility could help. The president might narrow his own list to those contenders whose appointment would be faithful to his pledge to avoid a judicial activist without inviting a resumption of unproductive “nuclear” warfare. Here’s some suggestions in alphabetical order: • Judge Samuel Alito of the 3rd Circuit — because if one seeks the qualities of a judge (temperament, impartiality, integrity, and dedication), there are few better. He combines an intelligent, faithful reading of the law with an unpretentious and entirely self-effacing manner. • Sen. John Cornyn (R-Texas) — because it is worth taking seriously the idea of replacing the broader perspective of legislative experience that O’Connor, a former state senator, brought to the Court. What’s more, since Cornyn has labored so consistently and conscientiously to maintain the equity and rationality of the confirmation process, it would be only just to let him benefit from it. • Judge J. Harvie Wilkinson III of the 4th Circuit — because he is a person of unfailing kindness and gentlemanliness and a true scholar of the Constitution. For too long, the Court’s work has been a bewildering mass of divided and partial concurrences. Wilkinson has the gift of personality, without forsaking principle, that could net greater consensus and much-needed clarity. Those not on this list are not less worthy. They are merely less well suited to the particular needs of the occasion — to withstand the intensity of those who are unfortunately bent on obstruction by revival of the filibuster, notwithstanding the president’s call for “a dignified process of confirmation characterized by fair treatment, a fair hearing, and a fair vote.” Alberto Gonzales also is not on the list. Not because he is not conservative enough in the sense of judicial restraint (he is) or would not serve with distinction (he would). It is simply the wrong vacancy. The attorney general is a practical problem-solver who ably served Bush as counsel. He is still relatively new to the Department of Justice, however, and is much needed there to address the novel problems of the war on terror. Choosing among Alito, Cornyn, and Wilkinson would be difficult, but the only further guidance the president needs is to remember his own bearings and Judge Learned Hand’s admonition that “The spirit of liberty is the spirit which is not too sure that it is right.” Certainly, when she held our attention the best, Justice O’Connor did just that.
Douglas W. Kmiec is a professor of constitutional law at Pepperdine University. He served as assistant attorney general in the Justice Department’s Office of Legal Counsel during the Reagan and first Bush administrations.

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