O'Connor at age 73 would be an interim chief justice, capping off her career and giving President Bush credit for naming the first woman to the nation's highest judicial office. It is significant that the administration would leak this trial balloon to a senator after O'Connor was the major player as the Supreme Court upheld racial preferences and struck down sodomy laws. Expectations by conservatives have been lowered sufficiently that they are resigned to Gonzales as the first Bush nominee for the high court.
That means the Supreme Court will not improve from the standpoint of conservative legal scholars, who view the court as dysfunctional despite half a century of Republican appointments. They see last week's decisions as typically based on elitist opinion. Nobody more clearly represents this deterioration of the judicial process than Sandra Day O'Connor during nearly 22 years as a justice.
It is difficult to exaggerate the contempt that conservative legal scholars privately express toward O'Connor. The attitude seeped through in Justice Antonin Scalia's thundering dissents last week that abandoned fraternal amity in attacking his sister justice's judicial reasoning.
As for O'Connor's majority opinion asserting a "compelling state interest" in University of Michigan Law School admissions, Scalia said if "maintaining a 'prestige' law school" with special admission policies for blacks "is a compelling state interest, everything is." As for her concurring opinion striking down the Texas sodomy law, he asserts that O'Connor creates a jurisprudence under which "judges can validate laws by characterizing them as 'preserving the traditions of society' (good); or invalidate them by characterizing them as 'expressing moral disapproval' (bad)."