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Article published July 02, 2005
First woman on top court steps down
Justice O'Connor cast swing vote on key issues
Sandra Day O'Connor served 24 years on the Supreme Court.
( ASSOCIATED PRESS )

WASHINGTON - Supreme Court Justice Sandra Day O'Connor, 75, the first woman on the nation's top court, surprised President Bush, her colleagues, and millions of Americans by saying yesterday that she will retire from the bench as soon as her successor is confirmed.

During her 24-year tenure on the court Justice O'Connor became one of the most well-known women in America. She had a reputation as a centrist and a swing vote, meaning in close decisions, she often broke the tie for the 5-4 rulings that have marked the court in recent years.

She became regarded not as a legal theoretician but as a pragmatist, searching for practical, workable solutions in nearly every aspect of human life.

In various decisions, she upheld the right of a woman to have an abortion without government putting "undue burdens" on her, cast doubt on the justice of the death penalty, voted against permitting a moment of silence in schools, made a decision in the legal case over the state of Florida's 2000 presidential election that put George Bush in the White House, and last month sided with the minority when she said state and local governments should not take private property to enhance their tax base.

In a letter to the President, Justice O'Connor said, "This is to inform you of my decision to retire from my position as an associate justice of the Supreme Court of the United States, effective upon the nomination and confirmation of my successor.

"It has been a great privilege indeed to have served as a member of the court for 24 terms. I will leave it with enormous respect for the integrity of the court and its role under our constitutional structure."

Mr. Bush did not learn of her resignation until 9 a.m. yesterday. After what he called a "warm conversation" with her on the telephone, Mr. Bush went before television cameras in the Rose Garden to praise her as a "discerning and conscientious judge and a public servant of complete integrity."

When former President Ronald Reagan chose the obscure jurist from Arizona for the court in 1981, he made her the first woman justice on the Supreme Court after 101 male justices.

With liberals and conservatives braced for a battle over the person Mr. Bush chooses to replace Justice O'Connor, the President promised to consult with members of the Senate. He said he would select someone who would make America proud and who would meet "a high standard of legal ability, judgment, and integrity, and who will faithfully interpret the Constitution and laws of our country."

Unlike Mr. Reagan, who vowed during the 1980 presidential campaign to name a woman to the court, Mr. Bush has said little about the type of person he might nominate, except that he has mentioned he would like to name the first Hispanic.

His former general counsel and good friend, Alberto Gonzales, is now U.S. attorney general. But if Mr. Gonzalez is nominated to the court, he would run into opposition from liberals over his advice on the treatment of prisoners from the war on terror and from conservatives because they think he might be a moderate on abortion.

Nearly everyone, however, agrees that anyone Mr. Bush nominates is likely to disagree with many of Justice O'Connor's recent decisions.

In the last five years, she voted that the partial birth abortion ban was illegal because it had no exception for the life of the mother, upheld the McCain-Feingold campaign-finance reform law, permitted some affirmative action at the University of Michigan, and ruled against new installations of the Ten Commandments in government buildings.

Scott Moss, assistant professor of law at Marquette University, said that on all those 5-4 decisions, Mr. Bush could be expected to nominate someone who would vote the opposite from Justice O'Connor.

Mr. Moss calls Justice O'Connor a "center-right conservative," the fifth-most conservative on the court, thus often giving her a powerful deciding vote on the split court.

Because of Justice O'Connor's love for Arizona, where she grew up with cowhands on her parents' ranch, the Lazy B, and her need to care for her husband John, in the early stages of Alzheimer's disease, some have long thought she was ready to retire. Her sons - Scott, Brian and Jay, and her grandchildren - live in Arizona, and she loves playing golf there. She has kept her sprawling home in Paradise Valley, outside of Scottsdale, in addition to a Georgian-style brick home in Washington.

When Chief Justice William Rehnquist, 80, developed throat cancer last autumn, causing him to miss 11 oral arguments and leaving him increasingly frail, many thought he would be the first to depart from the current court, which has not had a new member in 11 years. A departure by him in the short term could still leave Mr. Bush with the opportunity to appoint both a Hispanic and another woman.

Sen. Arlen Specter (R., Pa.), chairman of the Senate Judiciary Committee, will be in charge of confirmation hearings for the next justice. He also presided over the contentious hearings of Clarence Thomas, the youngest member of the court and a controversial conservative.

"The Judiciary Committee is prepared to proceed at any time, given a reasonable period of time for preparation," Mr. Specter said yesterday. "I've been through nine of these confirmation hearings; [Vermont] Senator [Patrick] Leahy (the senior Democrat on the committee) has been through 10 of them; so we know what to do."

One of the Senate's leading Democrats, Sen. Edward Kennedy (D., Mass.) said he hopes Mr. Bush will consult with the Senate and nominate a moderate, as he described Justice O'Connor.

Mr. Kennedy said it is Mr. Bush's job to make the nomination, but the Senate will take its responsibility seriously to decide if that person is the right one.

The major issue at such hearings is certain to be abortion rights, possibly the most politically divisive issue in the country. Groups both for and against abortion rights began preparing yesterday for battle.

Nancy Northup, president of the Center for Reproductive Rights, said pressing for the nominee to declare whether he or she supports the 1973 Roe vs. Wade decision that said the Constitution protects the right to an abortion will be her most important agenda.

Tony Perkins, head of the Family Research Council, which strongly opposes abortion rights, said his group often disagreed with Justice O'Connor and will mobilize 20,000 churches to demand that Mr. Bush name another Antonin Scalia or Clarence Thomas, two of the court's most conservative judges.

Asked if he would vote for someone who does not support Roe vs. Wade, Mr. Kennedy said he would look at the nominee's support for a variety of civil liberties but would not make abortion a litmus test.

"I will reserve judgment," Mr. Kennedy said.

Mr. Bush strongly opposes abortion but has said that he is not certain the country is ready to have Roe vs. Wade overturned.

Not everyone praised Justice O'Connor yesterday.

Robert Bork, a conservative whose nomination to the court by Mr. Reagan was shot down by the Senate in 1987, said he hopes Mr. Bush will nominate a less activist judge.

Interviewed on CNN, he said of Justice O'Connor that "she didn't have a firm judicial philosophy" and she "lined up with the liberal side" on social issues. There are judges who depart from the actual Constitution and those who stick with it, he said, "She departed from the actual constitution. I wouldn't call that moderate. I call it unfortunate."

A former law clerk of Justice O'Connor, Nelson Lund, now a law professor at George Mason University, said that while she did not have as theoretical an approach to the law as Mr. Bork, she was "extraordinarily influential during her time on the court."

Her legacy will depend on other possible retirements and what the court does in the future, he said.

Throughout her tenure on the court, Justice O'Connor has been considered a trailblazer admired by young and old as much for her discipline and hard work as for her judicial opinions.

Her name is consistently on lists of most admired American women. When she had a bout with breast cancer in 1988, she missed no oral arguments. Mr. Lund said that he never worked harder in his life than when he was her law clerk in 1987-1988 but also that it was the most rewarding professional experience of his life.

When there were rumors in the early 1990s that she was thinking of retiring, she batted them down.

She was irritated that others might be trying to push her out and was determined to go when she was ready, when she thought it best for the country. She decided not to retire in the 2004 presidential election year, partly because she was not ready and partly because she feared the debate over her successor might be too political during an election year.

She has written two books, The Majesty of the Law, a serious look at current legal issues, and the autobiographical Lazy B: Growing up on a Cattle Ranch in the American Southwest, with her brother Alan Day. In 1999. her granddaughter Courtney, then 9, helped write a book, Meet My Grandmother … She's a Supreme Court Justice.

When Justice O'Connor was undergoing Senate confirmation, she was asked what she would like her epitaph to be.

"Ah," she said. "The tombstone question. I hope it says, 'Here lies a good judge.'"

Contact Ann McFeatters at:
amcfeatters@nationalpress.com
or 202-662-7071.


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