The Right Coast

January 16, 2004
Incisive commentary on Justice-Cowgirl O'Connor
By Tom Smith

Did you miss the Lehrer News Hour commentary the other day on Justice O'Connor? I should have been so lucky. It went something like this:

Jim Lehrer: We're here today to discuss how wonderful Justice O'Connor is. Let me begin by asking Doug Kmiec, Dean of Pepperdine Law School, this question. In what do you think her wonderfulness most consists?

Dean Kmiec: It's hard to say, Jim. She is wonderful in so many ways. I have argued before her before, and hope to do so again. I think if I had to say, however, it would be her profound wisdom, her sensitivity to the fact that every case has to be decided by a detailed attention to the facts, which, as you know, are different in every case. Indeed, there's just no telling what fact may turn out to be the decisive thing!

Jim Lehrer: Dean Sullivan of Stanford, wonderful attention to the facts?

Dean Sullivan: Well, that, and so much more. You know, she grew up on a ranch, in the West, with cows and everything. Six guns, Indians, purple sage, the whole bit, one would think. That gives her wonderfulness an extra dimension that you don't normally get inside the beltway.

[Professor Smith at home: Oh God. Oh no. Ack. ack. ack. Jeez, I just cleaned that rug . . . . Biscuit! Get away! That's not good for you, girl!]

Jim Lehrer: John Yoo, professor of law, is wonderful a wonderful enough word to describe the wonderfulness of Justice O'Connor?

John Yoo: Well, I'm not sure wonderful is the word I would choose. To be wonderful, I think a judge should follow the law, not just make it up so as to maximize one's personal influence and that of the court one happens to be on. When judges don't follow the law, it makes me nervous. I think people who make up laws should be elected.

Jim Lehrer: Just making it up as she goes along, Dean Kmiec?

Dean Kmeic: Oh, no! Oh no, no, no, no, no! You are neglecting Justice O'Connor's exquisite sensitiving to the facts . . . .

Dean Sullivan: That's right!

Dean Kmeic: Her sensitive sensitivity to the ebb and flow of the emerging growth of the penumbra emmanating from the aura of the meaning of the changing dimension of our popular understanding of the . . .

Dean Sullivan: legitimacy

Dean Kmeic: . . . Of the court, which she so wonderfully understands, in a very wise way.

Jim Lerher: Legitimacy, Professor Yoo? Wisdom?

Professor Yoo: I would just like her to follow the law, not just flop around in the middle so she can be important. It's not just about maximizing political power, you know.

Political Scientist: Yes it is. Of course it is. What are you talking about?

Professor Yoo: Look, let me put it this way. Does anybody seriously think that anyone will be reading O'Connor opinions 20 years from now, as we read today the opinions of a Holmes or a Hand or even a Brennan (though I admit this last one is a stretch)?

[Professor Smith at home: Read . . . O'Connor opinions ?! . . . ah ha ha hahahahahahahaha! Gulp. choke. choke. choke. Sheesh. That was my last Stone Pale Ale . . . Any one that reads an O'Connor opinion for less than $500 an hour is a masochist . . . risking brain damage . . . God, though, what about a Souter opinion? Death by a thousand cuts. Rather read . . . Or a Kennedy opinion . . . the horror, the horror. . . ]

Dean Sullivan: It's hard to tell what will be influential in 20 years . . . I suppose anything can happen . . .

Political Scientist: That's right. Anything!

Dean Kmiec: I think we should get back to the wonderfulness of Justice O'Connor. I just want to give her a big, fat kiss.

Dean Sullivan: Me too.

Political Scientist: Would someone bring me some coffee?

John Yoo: I'm sure she's a nice woman. I'm not saying she's stupid (though I'm not denying it either). I would just like it if she would act like a judge. That's what it is supposed to be, you know, a court . . .

Dean Kmeic: I wonder if I might play for you this little ballad I've written about Sandra Day? It goes to the tune of "Yippy Tie Yie Yay, Get Along Little Doggies" . . . It's called "The Sunshine Justice" . . .

Jim Lehrer: I'm afraid we're out
of time.

[Professor Smith at home: Come here, Biscuit. Would you like to be a Supreme Court Justice? Biscuit, you're such a smart girl . . . ]