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Up from Sandra Day O'Connor?

By W. James Antle III
web posted July 4, 2005

Sandra Day O'ConnorMoments after Justice Sandra Day O'Connor's retirement hit the newswires, my inbox was overflowing. Spam promising anatomical enhancement and free Viagra was promptly displaced by missives bearing subjects like "Justice for the Next Justice," "Replace O'Connor with Strong Constitutionalist" and "Supreme Court Fight is ON!" I even received a satirical e-mail about Democrats blocking the nomination of George Washington due to his "environmental record of chopping down cherry trees."

With the first Supreme Court vacancy in over a decade, both the professional activists of the Beltway right and red-state grassroots conservatives are spoiling for a fight. It's not just constitutionalists and conservative legal theorists. Social conservatives, the largest single constituency on the right, understand as never before that their agenda depends on the composition of the federal judiciary.

Same-sex marriage, religion in the public square and especially abortion are all issues where President Bush and congressional Republicans can only tinker at the margins. But, through a combination of judicial usurpation and the acquiescence of the elected branches, the Supreme Court wields the power to shape national policy on each of them.

Yet it would be a mistake for these conservatives to place too much faith in Republican judicial nominees, to treat the upcoming confirmation battle as a mere red-team versus blue-team political event. Republican presidents appointed seven of the nine justices currently sitting on the Supreme Court.

That would be the Supreme Court that, just in the last term, preferred an expansive reading of the interstate commerce clause – empowering Congress to regulate activities that are neither interstate nor commerce – to the clear doctrine of enumerated powers. And that obliterated private property rights. And that continued its campaign of tortured readings of the establishment clause.

Each of these rulings was made possible by the votes of Republican appointees. John Paul Stevens, nominated by Gerald Ford, and David Souter, picked by the elder George Bush, are as reliable members of the Court's liberal bloc as the two justices selected by Bill Clinton.

Chief among these unreliable Republican appointees was O'Connor. Certainly, she was no Stevens or Souter. A pillar of liberal rulings on abortion and racial preferences, she nevertheless was often sound in federalism and property-rights cases, as her recent dissents in Raich and Kelo attest.

But O'Connor, elevated to the Court by no less a conservative than Ronald Reagan, was no consistent originalist. Her style of judging could be indistinguishable from policymaking. As the justice most often in the majority, O'Connor played a greater role than any of her Republican-appointed colleagues in preventing the Rehnquist Court from breaking more decisively with the last half-century's prevailing liberal jurisprudence.

That's why the Court William Rehnquist has presided over upheld the essence of Roe v. Wade in its 1992 Planned Parenthood v. Casey decision and then expanded the abortion license into a right to partial-birth abortion in 2000's Stenberg v. Carhart, with the chief justice dissenting both times. It's also why so many of the Warren and Burger Courts' constitutional innovations continue to stand.

Historically, O'Connor is no anomaly. Richard Nixon nominated Harry Blackmum, who gave us Roe v. Wade. Dwight Eisenhower gave us Earl Warren and William Brennan. The record shows Republican presidents don't always guarantee conservative justices.

President Bush, however, has repeatedly vowed to pick justices in the mold Antonin Scalia and Clarence Thomas, the two justices most admired on the right. Those who vote Republican in large part because of their concerns about the Court's composition appear to be unwilling to settle for anything less. The New York Times reports that conservative organizations are warning the White House not to choose Attorney General Alberto Gonzales, a position shared by many in the grassroots.

If a principled originalist is nominated, Democratic senators must not succeed in their efforts to block them. Some of the most disappointing Republican appointees to the Court have been compromise candidates selected after more conservative nominees have been withdrawn. Remember that the original "Borking" yielded Anthony Kennedy.

O'Connor's retirement presents a significant opportunity to shift the balance of the Supreme Court rightward. For conservatives, there should be few higher priorities – and no excuses.

W. James Antle III is an assistant editor of The American Conservative and a senior editor for Enter Stage Right. The views expressed above represent his alone.


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