Replace Justice O'Connor, But Which One?

Special to FreeRepublic ^ | 8 July 2005 | John Armor (Congressman Billybob)

[Congressman Billybob]

Two Sandra Day O'Connors have served as Associate Justice of the US Supreme Court. It makes a world of difference which one President Bush chooses to replace. First, we look at the late O'Connor, the one who is retiring.

The L.A. Times asserted this week that O'Connor “alone was in the majority of every one of the court’s 13 5-4 decisions this last term.” There are two tiny problems with this assertion. There were 24 such decisions this Term. And, Justices Souter and Scalia were in the majority in them more often than Justice O’Connor. See SCOTUSBlog for the facts.

Never mind this latest proof that the Times, like much of the MSM, uses a dart board for fact-checking. It remains that almost all MSM sources call Justice O'Connor a "moderate" and a "swing vote," as if this were a good thing.

Questions arise. A "moderate" between what and what? A "swing vote" between what and what? The 2004 Term of the Court, just ended, provides some answers. One of the worst decisions of this Term (and the competition for that title is fierce) is Kelo, the New London home-taking case. In that, a bare majority of five Justices decided that the Fifth Amendment did not mean what it says, that private property can only be taken by the government for a "public use." It could be taken for any purpose, including handing it over to a new owner who will build a bigger building and pay more taxes.

Four Justices dissented from that decision, reviewing the history of the Constitution and establishing that those who wrote and ratified the Fifth Amendment in the Bill of Rights meant no such thing. The main dissent was written by Justice O'Connor, which was the last public appearance of the early O’Connor.

Contrast that case with McCreary County v. ACLU (2005). In this one, it was again a bare majority of five Justices who voted to savage the Constitution and install their personal views as the law. This was the bad one of a pair of Ten Commandment display cases which drew a baseless distinction between Kentucky (not permitted) and Texas (permitted). In McCreary, Justice O'Connor voted against the Constitution, and ignored the dissent which pointed out that inconvenient fact. This was one of the increasingly common appearances of the late O’Connor.

Justice O'Connor is now a moderate on the subject of obeying the Constitution. Sometimes she obeys it, sometimes not. She is a swing vote between Justices who take their oath of office to the Constitution seriously, and those who think the Constitution belongs to them personally, rather than to the sovereign people. Such decisions also violate Article V, taking the amendment power away from the people.

The early O’Connor, the one who was experienced in the real world and a brilliant scholar of the law, had nothing to do with cases like that. She respected and obeyed the Constitution.

So, that is the President's choice, to replace the late O’Connor (a dreadful outcome for the Constitution) or the early one (a guaranteed fight from Senate Democrats who don't think Justices should be bound to the Constitution).

It was however, interesting to see Senator Dodd (D, Conn.) name O'Connor as the kind of Justice Bush should appoint. He cited the fact that when President Reagan appointed her, she was confirmed by a vote of 99-0. Howard Dean, Chairman of the DNC, also praised O'Connor on the same basis. Apparently, none of the Democrats citing O'Connor as an example, did their homework. Justice Scalia was confirmed 98-0. They don't praise Scalia; they fear him. Plus, the O'Connor who was confirmed was the old one -- the constitutional one.

In fairy tales, the plot always progresses from disaster to success. The Ugly Duckling becomes a swan. But in real life, the opposite is too often true. When she took her oath of office, Justice O'Connor was a swan from Stanford Law, serene and confident on the lake of the Constitution. As she leaves office, she has become an ugly duckling, not knowing who she is or what she stands for, seduced by the power and prestige of Washington into producing decisions that are rootless, unprincipled and dangerous.

Looked at honestly, that is the choice the President now has. And looked at honestly, a good selection by the President will guarantee a last-ditch fight (which will fail) by the Democrats in the Senate. In my opinion, Miguel Estrada would make an excellent replacement for the early O’Connor.

About the Author: John Armor is a First Amendment attorney and author who lives in the Blue Ridge Mountains of North Carolina. John_Armor@aya.yale.edu

[Congressman Billybob]

This is ready early, and therefore published early, since the subject is obviously of prime interest to Freepers. Enjoy.

John / Billybob

[rhema]

Ping

[rhema]

Interesting article on today's Human Events website:

FLASHBACK: July 18, 1981 O’Connor an Enigma: High Court Nominee Disturbs Conservatives

[vaudine]

Heck! Let's replace BOTH Sandra Day O'Connors with, say--Janice Rogers Brown and john Bolton--after all they do not have to be sitting justices to be nominated.

vaudine

[lilylangtree]

Replace O'Connor with Judge Roy of the 10 Commandments fame.

[conservatism_IS_compassion]

a good selection by the President will guarantee a last-ditch fight (which will fail) by the Democrats in the Senate.

From your lips to God's ears.

[conservatism_IS_compassion]

Is there a majority in the Senate to replace O'Connor at all? O'Connor has resigned effective when her replacement is confirmed in the Senate. The question is, is there a majority which will accept anyone other than O'Connor when O'Connor will still be on the bench so long as no replacement is confirmed?

Given that Bush cannot name a recess appointment, the obstructionist has nothing to lose by obstruction. There is no difficulty in naming 5 Republicans who are not to be trusted to fight for a good SCOTUS; beyond the McVain 7 there is Arlen Spector. It would seem likely that O'Connor will still be on the bench this time next year.

[Aetius]

It just goes to show how truly awful GOP Presidents can be at picking judges. Ford picked Stevens. Reagan picked O'Connor and Kennedy. Bush the Elder picked Souter.

The Democrats, however, never screw up and accidentally pick a good judge. They are perfect in their ability to pick awful ones, though it should be noted that only two of the current nine were picked by a Democrat.

Surely there must have been a genuinely conservative woman Reagan could have picked.

[Donna Lee Nardo]

My vote is for Ted Olsen.

[deport]

My vote is for Ted Olsen.

---

Why......

[ClaireSolt]

For someone who deplores moral equivalence and ambivalance about the law, I will be happy to see us move away from all of these 5-4 decisions. I wonder how much the split on the court is a cause or symptom of the split in the country.

[Unicorn]

Good one.

[hosepipe]

[ Surely there must have been a genuinely conservative woman Reagan could have picked. ]

O'Connor was, is, and will remain a ding-bat..
Democrat love republican ding-bats and will allowed them to be voted in every time.. as witness to the current Supreme Court.. To wit: If a democrats demurs or allows a republican Supreme in, they ARE a ding-bat.. If they are fought tooth and nail.. then they are qualified to be a Supreme..

Its an easy call really.. Reagan did not have a republican congress.. Bush does, but then Bush himself is a ding-bat.. and can relate to ding-bats.. Bolton was just a poke in the eye to democrats.. it matters little WHO is a U.N. rep. for the U.S... since the U.N is irrelevant... The Supreme however is important.. so, expect a ding-bat to be nominated.. or a latino Globalist..

[conservatism_IS_compassion]

O’Sullivan’s First Law states that "All organizations that are not actually right-wing will over time become left-wing." And although O'Sullivan himself gives only some examples as a lame "proof," his law is demonstrably true. My proof follows:

1. Journalism is negative (if it bleeds, it leads)
2. Journalism is superficial (because of deadline pressure)
3. Journalism is arrogant (in claiming the virtue of objectivity, and also in its belief that "you never get into an argument with someone who buys ink by the truckload").
4. Journalism is cowardly (in that each journalist fears all the others - taking the "you never get into an argument with someone who buys ink by the truckload" warning to heart when journalism in general needs to be opposed by a courageous voice.
5. It follows that journalism is cynical and bullying.

6. It follows that any organization or individual such as a SCOTUS justice - which lacks courage and principle will be pulled to conformity with the left wing by the flattery and derision of journalism - and be praised as "moderate' and "mainstream" (and, before they ran the word into the ground, "liberal"). And anyone/any organization which is courageous and principled will be labeled "right wing" - or, perhaps, "out of the mainstream."

The behavior of judges who are not staunch conservatives going into SCOTUS is explained quite well by O'Sullivan's Law. And how many SCOTUS nominees have been confirmed by a majority-Republican Senate?

Thomas Sowell had no love for O'Connor, from the moment of her nomination - but then, why should he? On the very day of her nomination, the Wall Street Journal published a letter to the editor which advocated the nomination of an economist to the supreme court, since they were making decisions which economics could best predict the results of. I was convinced the letter was right, and that the perfect choice would be Thomas Sowell. Then I looked at the source of the letter - and it was by Thomas Sowell!!

[Clintonfatigued]

The best possible choice IMHO would be Federal Judge Edith Brown Clements (please read my vanity posting on the matter).

[wotan]

Replace O'Connor with Judge Roy of the 10 Commandments fame.

Nope, Moore for President!

He'd be only one judge of 12 on the supreme court, but as President he could simply refuse to enforce unconstitutional decisions.

[Donna Lee Nardo]

Because we can't have John Ashcroft!

[Donna Lee Nardo]

I agree. I had not considered Justice Moore. I would support him, too. A man of God and of the law.

[deport]

Because we can't have John Ashcroft!

---

You prefer Ashcroft?

Why can't we have him?

[davidosborne]

MY CHOICE FOR SCOTUS......

ASHCROFT, John David, a Senator from Missouri; born in Chicago, Ill., on May 9, 1942; attended the public schools in Springfield, Missouri; graduated from Yale University 1964; received J.D. degree from University of Chicago School of Law 1967; admitted to the bar in Springfield 1967; taught business law at Southwest Missouri State University; state auditor of Missouri 1973-1975; attorney general of Missouri 1976-1985; Governor of Missouri 1985-1993; elected as a Republican to the United States Senate in 1994 and served from January 3, 1995 to January 3, 2001; unsuccessful candidate for reelection in 2000; attorney general of the United States, 2001-.