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It began at the midpoint of 2005. Early on the morning of July 1, a sealed envelope was hand-delivered from the Supreme Court to the White House, and inside it was a resignation letter, not, as had been expected, from the ailing chief justice, William Rehnquist, but rather from Justice Sandra Day O’Connor. O’Connor’s letter launched a historic period of change for the high court, a roller coaster ride that has not yet come to a stop. By September, Rehnquist was dead, and three nominations later, the year ends with O’Connor still on the Court. So much for retirement. In between, O’Connor has been in the odd position of still being in office while her legacy is loudly praised and pilloried in past tense, as if she were already gone. Just as she was at the center of the Court’s jurisprudence for 24 years, O’Connor is still at the fulcrum of the debate over the shape the Court should take in the future. All three nominees — John Roberts Jr., Harriet Miers, and, now, Samuel Alito Jr. — have been measured against her. “This is an odd time for her,” says Cardozo School of Law professor Marci Hamilton, a former O’Connor clerk who stays in touch with her. “She had every expectation that she would be able to do different things by now.” O’Connor jokes about her lame-duck status, telling a West Point audience in October that she had expected to be trout fishing by then. “I did my best to retire,” she said. On Jan. 2, she will be grand marshal of the Rose Bowl Parade, an assignment she surely accepted thinking she’d be out of office by that date. Instead, O’Connor is still working hard at the Court, by all reports, preparing for conference, writing opinions, and staying actively engaged in oral argument — though her questioning seems a shade less intense than before. She has already issued two majority opinions for the Court, and lawyers are trying to guess how many she could still announce before she leaves, possibly in January if nominee Alito is confirmed. Some practitioners are even delaying their filings to get past her departure date, hoping for a more favorable vote from Alito than from O’Connor. O’Connor, 75, said she was retiring to assist her husband, John, who suffers from Alzheimer’s disease. But she has postponed that duty to fulfill the promise she made that she would sit until her replacement is confirmed. That seemed like a short-term obligation when Roberts was first named to replace her, but when Rehnquist died, President George W. Bush bumped Roberts up to the center seat. Then came the flameout of the Harriet Miers nomination, followed by the choice of Alito, a safer pick who faces stiff but probably surmountable opposition. His confirmation hearings begin Jan. 9.
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Meantime, O’Connor waits. “This has been the most unexpected series of events,” says Joan Biskupic, author of an acclaimed new biography, Sandra Day O’Connor: How the First Woman on the Supreme Court Became Its Most Influential Justice. “But if ever there is someone who makes do and marches forward, it’s Justice O’Connor.” In a sense, O’Connor has seen it before, notes Edward Lazarus, a former clerk to the late Justice Harry Blackmun who is now a partner at Akin Gump Strauss Hauer & Feld in Los Angeles. “She was quite close to Lewis Powell, and when he retired, it took many months to replace him,” he says. Lazarus is the author of Closed Chambers, a liberal critique of the Rehnquist Court. As appears to be the case with O’Connor, it took three nominations before Powell was replaced: Robert Bork, Douglas Ginsburg, and, finally, Anthony Kennedy, who was confirmed seven months after Powell left the bench, in June 1987. Kennedy, like Alito, was plucked from the ranks of solid if relatively unknown appeals court judges. The parallel is apt for another reason: The confirmation debate over their replacements intensified because both O’Connor and Powell were swing votes. But Powell, by and large, was allowed to exit quietly, with grace and little disparagement. RUSH TO JUDGMENT Not so for O’Connor, in part because she is still on the Court, but also because she was, so often, the deciding vote on a Court that, when push came to shove, went liberal on issues ranging from affirmative action to gay rights. She has watched her pragmatic centrism be attacked by conservatives as spineless pandering, while liberals elevate the Ronald Reagan appointee to saintly status. “I hope the president will select someone who meets the high standards that she set and that can bring the nation together, as she did,” Sen. Edward Kennedy (D-Mass.) said on the day O’Connor made her retirement announcement. “We hope the president chooses someone thoughtful, mainstream, pragmatic — someone just like Sandra Day O’Connor,” said Sen. Charles Schumer (D-N.Y.) on the same day. At the other end of the spectrum, the sentiments were different. Conservative Web sites quickly began selling memorabilia applauding O’Connor — and not for a job well done. “Sandra Retires/Thank God!!!” proclaimed one T-shirt. “Reagan’s biggest mistake finally retires,” exulted columnist Ann Coulter. For the religious right, it did not help that O’Connor’s valedictory votes on the Court were in opposition to Ten Commandments displays in Texas and Kentucky. Her approach to establishment clause cases infuriated many conservatives. Those votes, said Focus on the Family Chairman James Dobson in a statement, “have once again demonstrated the desperate need for justices who will interpret the Constitution as it was written, not as the latest fads of legal theorists dictate.” Dobson added, “President Bush must nominate someone whose judicial philosophy is crystal clear.” Suddenly, a justice whose Western cowboy roots gave her a don’t-look-back kind of decisiveness was being painted as a flip-flopper not to be emulated. These counterintuitive views of O’Connor from the right and the left have been years in the making, but they have been sharpened, even exaggerated, since she announced her retirement. “These nomination battles bring out the worst in everyone,” says Lazarus. Conservative strategist Bruce Fein, who was part of the Justice Department team that vetted O’Connor when she was nominated, in 1981, says he is not surprised that she is coming under such sharp attack during her long goodbye. “She was plucked out of obscurity, not because of her dazzling conservative philosophy but because she was the first woman,” says Fein. “She would have been criticized much earlier if not for that fact.” Especially in recent years, Fein says, O’Connor “moved essentially to the liberal side, where she was uncomfortable with anything other than a case-by-case, political kind of decision-making. She was brokering compromises like a House-Senate conference committee.” By the same token, O’Connor’s stock rose over the years among liberal and moderate groups. “There are moderate Republicans who say she’s the reason why they are still Republicans,” says Cardozo’s Hamilton. “For them she is it, and they are very upset she is going.” Adds Lazarus: “Really, since 1992, she has been embraced by the significant part of the left and center for whom abortion is an important priority.” That was when O’Connor joined Kennedy and Justice David Souter in a coalition that rescued Roe v. Wade, in the decision Planned Parenthood v. Casey. BOTH SIDES NOW O’Connor’s patina has also glowed more brightly for liberals in contrast to that of those who have been put up to succeed her. Roberts, while portrayed as a nonideological jurist like O’Connor, starts from a point farther to the right than she did. Miers, during her brief candidacy, offered few clues about what kind of justice she would be, but fairly or not, her loyalty to Bush branded her as someone who would do whatever the administration wanted. Alito, with 15 years to work out his conservative approach as a judge on the U.S. Court of Appeals for the 3rd Circuit, comes across as “more doctrinaire and theory-oriented” than O’Connor, Lazarus says. All three have left liberals fearful of the post-O’Connor era. O’Connor has always been exploited by both sides, says Biskupic, who covers the Court for USA Today. “From the start she was like a Rorschach blot — liberals and conservatives heard what they wanted to hear.” The sharp conservative criticism is to be expected, she adds. “An individual justice’s eyes are opened to the reality of things, and she was always open to what was happening on the ground.” As evidence, she cites O’Connor’s Grutter v. Bollinger majority opinion in favor of affirmative action and her recent softening on habeas corpus and death penalty issues. O’Connor may well be somewhat amused by the serial dramas over her successor. But over one point, says Biskupic, she is likely sad — that is, the fact that the next justice to occupy her chair will be a man, assuming Alito is confirmed. “All things being equal, she would have wanted a woman to replace her.” In her book, Biskupic recounts how, even in 1971 when O’Connor’s good friend Rehnquist was nominated to the Supreme Court, she joked in a speech that it was too bad he “doesn’t wear a skirt.” She echoed that sentiment when Roberts was nominated in July, praising the candidate but indicating she was disappointed that a woman was not named. O’Connor maintained silence during the Miers nomination. Will the debate over O’Connor damage how history will look at her, and does that bother her? After the civic textbooks recite her distinction as the nation’s first female justice, how will the sentence end? “She held the Court in balance at a very difficult time. That won’t change,” says Lazarus. Adds Biskupic, “She has always had an uncanny ability to move past public opinion and the slights of life; she never took it too seriously.” In a speech to the 9th Circuit judicial conference soon after she announced her retirement, O’Connor recited lines from a favorite poem, according to Biskupic’s book: Take a bucket, fill it with water, Put your hand in, up to the wrist Pull it out, and the hole that’s remaining Is a measure of how you’ll be missed. Still, says Biskupic, that does not mean O’Connor’s legacy is unimportant to her. “I wouldn’t be surprised if we see another book from her. She would like to write her own legacy.”


Tony Mauro can be contacted at [email protected].

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