July 8, 2005

As Justice O'Connor steps down, what does future hold?

by Bob Roehr

Washington, D.C.--Supreme Court Justice Sandra Day O�Connor announced on July 1 that she is retiring after 24 years on the high court. The news sent shudders of anxiety through much of the gay, lesbian, bisexual and transgender community as her successor may be less sympathetic to their concerns.

O�Connor has been a swing vote that has decided the outcome of many of the more contentious and closely divided decisions that the court has made over the last decade. In the 13 decisions this year where the court split 5-4, she was the only justice who was in the majority every time.

Her sense of jurisprudence, while conservative, has not been that of stark ideological lines but rather one that focused upon the facts of the case. It was tempered with the pragmatism of having once held elective office�the only current member of the court to have done so.

In cases most relevant to the gay community, she joined in the 6-3 majority on Romer v. Evans, the 1996 decision that struck down Colorado�s anti-gay Amendment 2. The court said it violated the equal protection clause of the Constitution by denying gays the right to seek protection through the legislative process.

O�Connor also voted with the 5-4 majority in Bowers v. Hardwick, the notorious 1986 decision that found no constitutionally protected right to engage in sodomy and thus a state could outlaw it. In 2003, she formed part of the 63 majority that reversed that ruling and struck down state sodomy laws in Lawrence v. Texas. However, she wrote a separate opinion on the case, citing equal protection grounds rather than the due process focus of the other five justices.

In decisions this year, she was on the losing side on the medical marijuana case Gonzales v. Raich; O�Connor would have left the matter to the states. In Kelso v. City of New London she opposed the use of eminent domain to seize a person�s home to facilitate building a mall.

Patrick Guerriero, executive director of Log Cabin Republicans, noted that the first woman to serve on the Supreme Court was appointed by Ronald Reagan. He praised O�Connor for her role in lifting state sodomy laws, �which confirmed that the principle of individual liberty extended to gay and lesbian families.�

�Justice O�Connor�s retirement is a clarion call to every American that our rights are in grave danger,� said Joe Solmonese, president of the Human Rights Campaign. �The loss of [her] moderate voice is a serious threat to gay, lesbian, bisexual and transgender rights, to women�s right and to protections for racial, ethnic and religious minorities.�

Matt Foreman, executive director of the National Gay and Lesbian Task Force, called O�Connor�s retiring �a sad day for the Supreme Court and for America.� He urged the president �to honor the advice and consent role the Constitution gives the Senate� through a meaningful interaction with that body.

What�s next

President George W. Bush will meet and consult with a bipartisan group of Senators on July 11 and a nominee is not expected until some time after that meeting.

One possible scenario floating around Washington is that the president might wait until late August to announce his decision, thus minimizing the opportunity for outside groups to conduct their media campaigns for and against the nominee.

Much speculation on nominees has centered upon a short list of conservative white male jurists, but that was in the context of Chief Justice William Rehnquist stepping down. The slate may well change with the vacancy created by O�Connor�s retirement. The strategy and tactics of replacing a �swing� justice differ from those of replacing a staunch conservative such as the chief justice.

While the Bush administration has not embraced the language of affirmative action, its high-level appointments have shown a great degree of gender, racial, and ethnic diversity. That makes it unlikely that the first woman on the court will be replaced by another white male. It increases the odds that another woman, or perhaps the first Hispanic will be nominated to serve on the court.

Social conservatives have demanded the nomination of a known hardliner to the bench. They are particularly dismayed that Alberto Gonzales may be on the short list of potential nominees and are trying to block that possibility. As the National Review wrote in an online editorial, �Conservatives would be appalled and demoralized by a Gonzales appointment.�

Gonzales, the current attorney general, was a former legal counsel to Bush as president and governor, and he served on the Texas Supreme Court. He is a close and trusted friend of the president.

Ideologues on both the right and left have amassed huge war chests to influence the selection of that nominee and the confirmation process by the Senate. They began spending it even before O�Connor�s announcement, anticipating the resignation of Rehnquist, 80, who has been treated for thyroid cancer and missed several weeks of the last session of the court.

The Washington Post editorialized against such activities on July 3. �This war is about money and fundraising as much as it is about jurisprudence and the judicial function. It elevates partisanship and political rhetoric over any serious discussion of law. In the long run . . . [it] threatens judicial independence and the integrity of American justice. A judicial nomination is not a political campaign and should not be treated as one.�

One factor that may end up having a profound impact on how this all plays out is contained in O�Connor�s short three-sentence letter of resignation. That resignation becomes effective �upon the nomination and confirmation of my successor.�

It may well be that O�Connor is still sitting when the court next convenes on the first Monday in October.

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