The Right Coast

July 03, 2005
The Apotheosis of Sandra Day O'Connor
By Gail Heriot

Well, the curious deification of Sandra Day O'Connor appears to be underway by the Left. Quoth the Washington Post:

"The liberal People for the American Way moved to claim O'Connor's mantle with a new television commercial that flashes her image and demands that Bush pick someone in her pragmatic tradition who 'protects our fundamental rights and freedoms' or risk dividing the country."

In many ways, she's a unlikely icon for liberals or civil libertarians. This, for example, is the same Sandra Day O'Connor who voted in the minority in the flag burning cases--Texas v. Johnson and United States v. Eichman. Scalia and Kennedy helped form the so-called "liberal" majority in that case along with Brennan, Marshall, and Blackmun.

And then there was Bush v. Gore. Oh well.

Legal conservatives like to complain about O'Connor. But it is important not to lose sight of the fact that O'Connor usually lined up with Rehnquist, Scalia, Kennedy, and Thomas, even in the 5-4 decisions. She provided a crucial vote in Lopez and Morrison--the two 5-4 decisions that acknowledged for the first time in decades that the interstate commerce clause does not authorize Congress to do anything it wants to do. The school choice case--Zelman v. Simmons-Harris--is another example of a 5-4 decision in which she joined Rehnquist, Scalia, Kennedy and Thomas. Along with Rehnquist, Scalia, and Thomas, she was part of the minority in the juvenile death penalty case--Roper v. Simmons. And her dissent in Kelo v. City of New London (joined by Rehnquist, Scalia and Thomas) was postively eloquent.

But People for the American Way evidently like her for her decisions in cases like Grutter v. Bollinger, Plannned Parenthood v. Casey and Stenhart v. Carhart, especially the latter two cases, both of which concern abortion.

What I find interesting is a comparison of O'Connor's retirement with Byron White's. White, who dissented in Roe v. Wade, had originally been appointed by John Kennedy and perhaps felt obligated to retire while a Democrat sat in the White House. He left n 1993, early in the Clinton administration. At the time, no one argued that Clinton was obligated to appoint a candidate who would continue in White's somewhat conservative tradition. And Clinton surely did not do so. He appointed Ruth Bader Ginsburg--a movement liberal who had served for many years as the ACLU's General Counsel. This is approximately equivalent to appointing the former general counsel of the National Right to Life Coalition to the Supreme Court. Or the former general counsel of the National Rifle Association. Nobody batted an eye. Somehow the members of the Senate got it in their heads that a President ought to be given substantial discretion in these matters. Go figure.