Supreme Court:  Democrats Hope For Not Crazy

You know that liberalism in this country is at low ebb when liberals go around mourning the loss of Sandra Day O’Connor on the Supreme Court.

Not that Justice O’Connor was so awful. She was the deciding vote in cases that upheld a woman’s right to abortion, ruled prayer at high school graduations unconstitutional, struck down Nebraska’s ban on “partial birth abortions,” upheld the use of race as a “plus factor” in college admissions and held that the display of the Ten Commandments on courthouse walls was unconstitutional. All of these are more or less the liberal position.

But let’s get real. She was a conservative. During her nearly 24 years on the Court she voted with Chief Justice William Rehnquist about 70 percent of the time in cases that were not unanimously decided. In decisions that made conservatives hearts go pitty-pat she was the key vote in upholding the use of publicly-financed vouchers for religious school tuition, rejecting a constitutional basis for gay rights, allowing the Boy Scouts of America to exclude homosexuals, striking down the Gun-Free Schools Zones Act and refusing to rule that the death penalty was racially discriminatory.

And, most egregiously, she sided with the conservative (and Republican) majority on the Court in stopping the Florida recount in 2000, thereby handing the election to George W. Bush. It was one of the Court’s worst decisions in recent decades, not quite up there with Dred Scott (the one that, in effect, made the Civil War inevitable) but close.

Moreover, it violated the principles that members of the conservative Court majority had espoused for years: a strict, narrow reading of the Constitution and a bias toward federal deference to state authority.

Instead of leaving the Florida recount to be fought out by the state Supreme Court and legislature, as the federalist principles they held in such high regard demanded, the Supremes moved in and gave the game to Mr. Bush.

How bad was the decision? So bad that no one in the majority had the nerve to sign it. It also contained the proviso that it should not be considered a precedent for any subsequent case. That bad.

Still and all, it can be said of Ms. O’Connor that she was truly a remarkable woman. She graduated third in her class at Stanford law school (not chopped liver) but was unable to get a high profile clerkship or a job with a prestigious law firm because, well, she was a woman.

So, she got married, raised a family, entered public life and became the majority leader of the Arizona Senate, the first woman in the nation to hold such a post. She was appointed to the state appeals court by a Democrat, then to the Supreme Court by Ronald Reagan as our first woman Justice.

Her main strength, and one that argues for diversity on the court, was that she brought to the Court the unique perspective of someone who had been discriminated against because of her gender, yet one whose eventual rise owed a great deal to affirmative action. (No Justice before her, all men, had come to the court carrying such modest judicial credentials.) Both sides of that seemingly contradictory personal history are reflected in her decisions.

And now liberals are sorry to see her go because they know her successor will be much, much worse.

The name of Attorney General Alberto Gonzalez has been put forward as a candidate and already right wing groups are forming torchlight parades to protest his consideration because he isn’t conservative enough.

Meanwhile, Democrats are forming ranks for a bloody battle but the best they can hope for is a nominee who is very conservative but not crazy. Federal Appeals Court Judge Harvey Wilkinson III would fill that bill, but don’t hold your breath. The radical right likes crazy.

Fasten your seat belts, folks. It’s going to be a bumpy ride.

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Donald Kaul recently retired as Washington columnist for the “Des Moines Register.” He has covered the foolishness in our nation’s capital for 29 years, winning a number of modestly coveted awards along the way. His column can be found weekly at MinutemanMedia.Org.

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