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Supreme Court Justice Sandra Day O’Connor is not moving quietly toward retirement. O’Connor’s speech Nov. 7 to the American Academy of Appellate Lawyers in Washington, D.C., was a rip-snorting defense of judicial independence that criticized � without naming them � former House Speaker Tom DeLay, R-Texas, Sen. John Cornyn, R-Texas, and even the late president Franklin Delano Roosevelt, whom she described as “the fellow on the dime.” Her speech was the talk of the academy’s meeting. The Court released the text of her speech on Nov. 21. O’Connor, 75, announced her retirement July 1, but said it would not take effect until her successor is confirmed. President Bush’s nominee to replace her, Samuel Alito Jr., goes before the Senate for confirmation hearings in January. “We have the power to make the President or Congress really, really angry,” O’Connor told the lawyers. “In fact, if we do not make them mad some of the time, we probably aren’t doing our jobs. Our effectiveness, therefore, relies on the knowledge that we won’t be subject to retaliation for our acts.” O’Connor went on to describe threats to judicial independence worldwide � including an episode in the mid-1990s in Russia in which presidential guards killed the chief justice’s pet cat. But threats exist closer to home, O’Connor said, and she described them specifically. She recalled the speech of “a prominent House leader” � DeLay � before a conservative conference in which he criticized court decisions that struck down school prayer and other rulings that invoke foreign law. DeLay spoke of “a judiciary run amok,” in the wake of the federal courts’ handling of the Terri Schiavo case; O’Connor described that case as a “flagrant display of judicial restraint.”
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Then, referring to a floor speech made by Cornyn on April 4, O’Connor said: “It doesn’t help when a high-profile senator, after noting that decisions he sees as activist cause him ‘great distress,’ suggests there may be ‘a cause-and-effect connection’ between such activism and the ‘recent episodes of courthouse violence in this country.’” Cornyn later softened his remarks. Not all of O’Connor’s targets were Republican. She also quoted extensively from Roosevelt’s criticisms of the Supreme Court leading up to his 1937 court-packing plan. Roosevelt accused the court of establishing itself as “a third house of Congress � a super-legislature.” Said O’Connor, “Now President Roosevelt was in many ways a great anf important president, but surely this was not his finest hour.” O’Connor also took on � again, without naming names � an op-ed piece written in the Washington Post in August by Robert Bauer, a D.C. partner with Perkins Coie. Bauer criticized the Court for being “imperious” and unaccountable to the public, and suggested cutting the Court’s budget until it allows cameras into federal courts. “When I hear a threat to cut judicial budgets, even when it is only about cameras, I get really worried,” said O’Connor. Bauer’s reaction? “I’m pleased she read the article.” He added, “There is nothing incompatible between judicial independence and some measure of accountability.” O’Connor ended her talk by charging the lawyers in the audience with the task of protecting judicial independence. There is no natural constituency for judicial independence,” she said, “except for a vibrant, responsible lawyer class. We can’t jusdt trust the courts to protect themselves.”


Tony Mauro can be contacted at [email protected].

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