By Cynthia L. Cooper
Sunday, July 3, 2005
O'Connor's retirement has activist groups, the White House and Congress gearing up to replace one of the most influential justices in American history. Also, a Special Report on O'Connor's Legacy.
(WOMENSENEWS)-- The surprise announcement Friday by Justice Sandra Day O'Connor that she is stepping down from her seat on the U.S. Supreme Court set off a flurry of activity just before a long holiday weekend, as activist groups, the White House and Congress geared up to replace the woman who became one of the most influential justices in American history.
Justice O'Connor, a Republican, is frequently described as the "swing" justice, because she did not fully align herself with conservative justices or those who are more liberal. Thus, her vote was most often the deciding one.
President Bush issued a statement Friday that indicated perhaps he wished to avoid a heated battle over his nominee to the Supreme Court.
"I will continue to consult, as will my advisors, with members of the United States Senate," the statement said. "The nation deserves, and I will select, a Supreme Court Justice that Americans can be proud of. The nation also deserves a dignified process of confirmation in the United States Senate, characterized by fair treatment, a fair hearing and a fair vote."
Instead of writing opinions that made broad sweeping pronouncements, O'Connor tended to resolve only the controversy or conflict in the case at hand, according to Susan Low Bloch, who watches the court closely as an expert on court politics and constitutional law at Georgetown University School of Law.
Rumors had floated in Washington for several years that O'Connor longed to return to her ranch in Arizona. Professor Bloch said, "She has wanted to resign for a long time. But I thought she would wait." Bloch added, "As the first female on the court ever, she set a great example. She is very moderate and thoughtful."
-- [Click here to read Women's eNews Special Report on O'Connor's Legacy]
Her departure will be felt most acutely in the area of reproductive rights and specifically on the legality of abortion, where Justice O'Connor cast deciding votes in the two most important right-to-choose cases of the past 13 years.
"There's no question that reproductive rights hang in an ever-more precarious balance," said Louise Melling, director of the Reproductive Freedom Project of the American Civil Liberties Union in New York.
Court watchers had tensely awaited a possible resignation on the nine-member court, but many thought it would be Chief Justice William Rehnquist, who has been treated for cancer in the past year.
Instead it was O'Connor, the first woman on the nation's highest court, who sent a one-paragraph letter to The White House, announcing her intention to retire after 24 years of service.
"It has been a great privilege, indeed, to have served as a member of the court," wrote O'Connor, who is 75.
Justices to the Supreme Court have lifetime appointments, which can be ended only by death, resignation or impeachment for wrongdoing.
Some were more prepared than others. One week ago, the Planned Parenthood Federation of America amassed on the steps of the U.S. Supreme Court in Washington, D.C., with pink T-shirts and black robes to draw attention to the potential resignation of a justice and how a woman's right to choose could be at risk with a conservative replacement.
However, the Washington ultra-insider known for orchestrating Supreme Court appointments appeared to be caught off guard.
"It makes me nervous," said C. Boyden Gray, the former White House counsel who founded the Committee for Justice told the New York Times on Friday. He has formed one of the best-funded advocacy groups set to back whomever the president nominates. "I'm not sure we are prepared for an O'Connor vacancy," he said.
A centrist, O'Connor's departure could be a significant blow to women's rights. If she is replaced by a conservative anti-choice justice, the court may amass a new majority that is willing to turn back the clock on affirmative action, equal rights and, most significantly, women's rights to choose.
O'Connor was not on the court in 1973 when a 7-2 majority in Roe vs. Wade held that states could not make abortion a crime in all cases. But when the issue was reconsidered in 1992 in Planned Parenthood vs. Casey, she provided a decisive vote that preserved women's rights to choose, but permitted states to apply new restrictions.
"In Planned Parenthood v. Casey, Justice O'Connor's recognition of the grievous harms that women would face if forced to carry unwanted pregnancies to term led the court to reaffirm Roe vs. Wade as the law of the land," said Eve Gartner, a senior lawyer at Planned Parenthood Federation of America in New York.
The decision permitted states to restrict abortion with various regulations, so long as they did not create an excessive burden or endanger women's life or health. Some of those regulations include requirements that women read anti-abortion literature or make two appointments at a clinic with a 24-hour waiting period.
If justices who dislike abortion are in the majority, a case coming to the Supreme Court in the fall could make it even easier for states to add more restrictions and harder for pro-choice lawyers to challenge them. That case is on parental notification laws in New Hampshire.
"O'Connor has not been a strong protector of reproductive rights and she has mostly allowed states to restrict access. But she was not willing to go as far as the other justices. That middle ground is very important," said Sylvia Law, a constitutional scholar at New York University School of Law who specializes in reproductive rights.
Again, in 2000, Justice O'Connor's viewpoint was critical in preventing some state restrictions from profoundly undermining the right to choose. In Stenberg vs. Carhart, Justice O'Connor provided a single vote to block a law that would have prevented doctors from providing certain types of abortion services after the 12th week of a pregnancy in so-called partial-birth abortion bans passed by states.
Justice O'Connor said that women's health was paramount and the state had not taken adequate steps to protect it.
"She was part of a razor-thin majority," said Nancy Northup, president of Center for Reproductive Rights, a pro-choice advocacy group in New York that argued the case at the Supreme Court. Three cases at the federal appellate level involving similar laws passed by the U.S. Congress could potentially raise this issue before the high court again in 2006.
Another case scheduled to be heard by the court in the fall has to do with anti-abortion protestors at clinics. The court will consider whether the clinics can sue the protestors for harm under anti-racketeering laws.
Anti-choice groups and other conservatives called upon President Bush to name an ultra-conservative justice in the mold of Justice Antonin Scalia or Justice Clarence Thomas. President Bush has repeatedly cited them as his models. Both have voted against women's right to choose consistently and without exception.
"The president has the historic opportunity to keep the faith with the promise he has repeated numerous times, which is to name justices who are like Justices Antonin Scalia and Clarence Thomas," said Jan LaRue, chief counsel of the conservative Concerned Women of America in a press statement.
But O'Connor's moderation should be the model for the nominee, insist those who support women's right to choose.
"We hope the next nominee to the Supreme Court will share in the values that Justice O'Connor rigorously defended, like personal freedom and respect for women," said Jennifer Blei Stockman, national co-chair of the Republican Majority for Choice.
Senator Hillary Clinton (D-NY) said the president should consult with the Senate before making a nomination. Senator Lincoln Chafee (R-RI), urged a "moderate consensus candidate," said Stephen Hourihan, his spokesperson.
Justice O'Connor made her retirement effective upon the "nomination and confirmation of a new justice."
Under the U.S. Constitution, the president nominates a candidate with the "advice and consent" of the U.S. Senate. The Judiciary Committee of the U.S. Senate, currently headed by Senator Arlen Specter (R-PA), votes on confirmation, usually after confirmation hearings.
Specter said in a press conference on Friday that reproductive rights would be the focal point of Judiciary Committee hearings. "That's been very, very much on the minds of so many Americans," he said. He also called for gender balance on the court. Candidates who are approved by the Judiciary Committee are then voted on by the entire U.S. Senate.
The potential vote by the Senate has been the subject of intense political debate over the use of the "filibuster" by which 40 Senators can prevent a vote. The Republican majority in the Senate has threatened to wipe out the filibuster as an option, which would mean that a simple majority of 51 Senators could approve a justice. (If there is a tie, the vice-president may cast the deciding vote.)
If a consensus candidate is not presented, Bloch expects a contentious confirmation hearing.
"It will be bloody," she said.
Cynthia L. Cooper is an independent journalist in New York with a background as a lawyer; she writes frequently about reproductive health and justice. Allison Stevens, Women's eNews Washington bureau chief contributed to this story.
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