O’Connor’s Retirement Means First Supreme Court Vacancy in Eleven Years
By Dave Andrusko
Washington (July 5)—When Associate Supreme Court Justice Sandra Day O’Connor, a 24-year veteran of the High Court, unexpectedly announced her retirement, her impending departure touched off a media frenzy of speculation. Her announcement came as NRL News was about to go to press, so NRLC cannot comment on her replacement in this edition. (Be sure, however, to check www.nrlc.org.)
In the immediate aftermath, pro-abortion organizations bragged about their ability to raise money to fight President Bush’s nominee. For example, NARAL said in a July 2 press release that it has “surpassed its fundraised [sic] goals in the hours following Justice O’Connor’s announcement. Pro-choice Americans from all over the country have made financial contributions, because they understand the importance of a mainstream nominee who recognizes the impact his or her decisions will have on the average American.”
As explained on page five of this edition, President Bush’s nominee “must survive the minefield of Senate confirmation. Senators Boxer, Leahy, Schumer, Clinton, Kennedy, and others will stand in the way. In some ways the coming fight to confirm a true constructionist who respects the words and real meaning of the Constitution will be every bit as bitter as the fight to confirm Robert Bork in 1987.”
National Right to Life’s grassroots effort needs your help. Please read the alert, contribute as much as you can, and pass the message along to your pro-life family, friends, and colleagues.
O’Connor, 75, assumed her seat September 25, 1981. Regarded with deep suspicion at the time by pro-lifers, O’Connor would play an increasingly pivotal role in helping to protect the widely criticized Roe v. Wade decision.
After initially making conciliatory-sounding remarks in the 1983 Akron case, by the time of the 1992 Planned Parenthood v. Casey decision, O’Connor was firmly in the pro-Roe camp.
“Liberty finds no refuge in a jurisprudence of doubt,” she wrote, along with Justices Anthony Kennedy and David Souter. “Yet, 19 years after our holding that the Constitution protects a woman’s right to terminate her pregnancy in its early stages, Roe v. Wade (1973), that definition of liberty is still questioned. We are led to conclude this: the essential holding of Roe v. Wade should be retained and once again reaffirmed.”
(In Casey, O’Connor, Kennedy, and Souter converted the underpinnings for a “right” to abortion from Roe’s “right to privacy” to a “liberty” interest under the 14th Amendment’s Due Process clause. The trio went on to outline what would trigger their wrath: a law that imposes an “undue burden” on a woman seeking an abortion. This phrase remains as maddeningly imprecise today as when it was articulated in 1992.
O’Connor’s unabashed embrace of abortion was made complete when she proved to be the deciding vote in the 2000 Carhart decision. On a 5–4 vote, the Court overturned Nebraska’s ban on the grisly partial-birth abortion technique.
At a press conference held shortly after O’Connor announced her retirement, President George W. Bush said he would be “deliberate and thorough” in choosing a successor. He added, “I have directed my staff, in cooperation with the Department of Justice, to compile information and recommend for my review potential nominees who meet a high standard of legal ability, judgment and integrity and who will faithfully interpret the Constitution and laws of our country.
The position of pro-abortion Democrats was outlined by Sen. Ted Kennedy (D-Mass.). At the same time he denied having a “litmus test,” Kennedy issued an unmistakable warning to Mr. Bush: “If the president abuses his power and nominates someone who threatens to roll back the rights and freedoms of the American people, then the American people will insist that we oppose that nominee, and we intend to do so.”
According to various news accounts, the short list of the leading candidates to replace Justice O’Connor includes (in alphabetical order):
Samuel Alito is a member of the Philadelphia-based 3rd U.S. Circuit Court of Appeals.
Emilio Garza sits on the New Orleans-based 5th U.S. Circuit Court of Appeals.
Alberto Gonzales is the United States Attorney General.
Edith Hollan Jones serves on the New Orleans-based 5th Circuit U.S. Court of Appeals.
J. Michael Luttig serves on the 4th U.S. Circuit Court of Appeals in Richmond, Virginia.
Michael McConnell is a judge on the Denver-based 10th U.S. Circuit Court of Appeals.
John Roberts is a member of the U.S. Court of Appeals for the District of Columbia.
J. Harvie Wilkinson III, like Luttig, serves on the 4th Circuit.
As NRL News goes to press, Chief Justice William Rehnquist has not indicated he is retiring, as had been widely speculated.