The Lonely Centrist

A place for reasoned debate about the issues of the day.

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Monday, July 11, 2005

Let's pull the plug on Sandra Day worship

Yes, I want this to be a site for "reasoned debate." But that doesn't mean I have to tolerate foolishness. The Sandra Day O'Connor worship that has been bubbling over ever since she announced her impending retirement reached true heights of absurdity on Sunday, when Arlen Specter suggested she be talked into staying as Chief Justice if, as expected, Justice Rehnquist retires. There are some who speculate that Specter was of the mistaken belief that O'Connor is a Scottish name, but I think the truth is that he was just caught up in moment, like so many other normally sane people.

Let's cut to the chase. Were it not for the overall make-up of the Court, which has often left her the deciding vote, and thus made her inscrutible jurisprudence a source of endless scrutiny by lawyers and lower court judges desperately trying to figure out the law, O'Connor would be a very forgettable justice, a footnote remembered only for being the first of her gender to serve on the High Court.

Let's see, according to Justice O'Connor:
- you can have affirmative action, and you can't have affirmative action, but if you have it you might only be able to have it for another 25 years;
- You can display the 10 Commandments outside a courthouse, but not inside a courthouse, unless you remembered to display them in the courthouse a long time ago;
- You can have a Christmas creche on government property, so long as you have lots of Santa Clauses, too, although the precise number of Santas necessary remains in doubt;
- A legislative district that, when reduced to an 8 1/2" by 11" map, looks something like a Octopus violates the equal protection clause, but if it looks more like a giant squid, it's OK (actually, Justice O'Connor never really endorsed the octopus/squid standard, which is too bad, because it would have lended clarity to her jurisprudence in the area.)

Back in the 1980s, O'Connor was generally a sensible, moderately conservative justice. Still capable of periodic moments of brilliance, as in her Kelo dissent, over the last decade she has become, sad to say, a running gag among lawyers, law professors, and law students. Many years ago, a noted law professor, attempting to add some emphasis to his point that the law was often uncertain, claimed that legal principles no more controlled the outcome of cases than "what the judge had for breakfast." This may have illustrated an important point, but of course everyone knew it was hyperbole. O'Connor, however, seems determined to show that it is literally true.

President Bush can appoint a conservative; he can appoint a moderate; we know he won't, knowingly at least, appoint a liberal. But whomever he appoints, please, can we hope for someone who understands that his or her role is to decide legal cases in accordance with statutes, the common law, and where applicable, the Constitution, not to split the baby like some latter day, poor man's Henry Clay accidently stumbling onto the bench instead of into the Senate floor.

I probably shouldn't let this bother me - after all, some of the accolades are just people being nice to an elderly woman who will no longer hold power, and O'Connor, as noted, did have her moments that merit praise. Others are patently insincere, mainly Democrats hoping that by singing O'Connor's praises, they can influence President Bush to pick someone more like her than like Clarence Thomas. But there's a point at which you just have to say, "Enough already!"

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