Charles Krauthammer

     That is what made O'Connor so unpredictable. Sure, she was headed for what she judged to be socially a stable settlement. But you could never know what empirical judgments she would make to get there. Would she decide that the long-term stability introduced by returning abortion to the elected branches of government would outweigh the short-term instability it would produce? You could not be sure. What you could be sure was that she would come up with some ad hoc constitutional principle to justify her empirical judgment.

     That compounded the problem. In the case of abortion, the result was the immortal proclamation that ``At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life'' -- a supremely infelicitous definition of the liberty clause that is not just comically cosmic but infinitely elastic.

     Such elasticity earned O'Connor the title of ``pragmatist,'' a coveted virtue in Washington. Today it is particularly prized by liberals who are happy with the judicial revolutions of the past half-century, and are delighted that an appointee of Ronald Reagan should have upheld them in pursuit of social stability.

     The problem with ad hoc pragmatism, however, is that it turns the Supreme Court not only into a super-legislature, but into a continuously sitting one. Does anyone have any idea exactly how many reindeer are required to make a town's Christmas creche display constitutionally kosher? Or exactly how much weight you are allowed to give racial preference in hiring? The only way to know is to sue and go back once again to the Supreme Court. ``The joke,'' writes professor Mark Tushnet in his book on the Rehnquist court, ``was that people could save a lot of time and effort in making laws and filing lawsuits if only O'Connor would answer her phone and let them know what she thought beforehand.''

     Democrats are demanding that O'Connor be the model for the next Supreme Court appointment. ``I urge the president and the Senate,'' says Sen. Barbara Boxer, ``to ensure that her replacement reflects Justice O'Connor's judicial philosophy -- mainstream, pro-choice, and independent.''

     But that's not a judicial philosophy. That's political positioning embedded in a social agenda. What we need is a nominee who has a judicial philosophy -- grounded in constitutional principles that provide legal guidelines that politicians and citizens can understand and live by. I happen to prefer conservative (``originalist'') to liberal constitutional principles. But either is preferable to none.


Charles Krauthammer

Charles Krauthammer is a 1987 Pulitzer Prize winner, 1984 National Magazine Award winner, and a columnist for The Washington Post since 1985.

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