While the future course of lifetime nominees is not predictable, O'Connor's record is no surprise. Ronald Reagan was determined to name a woman as his first Supreme Court nominee, and the Justice Department recommended O'Connor (then an Arizona Court of Appeals judge). The White House was bombarded with documentary evidence of her social liberalism in the Arizona legislature. A young Justice Department lawyer named Kenneth W. Starr investigated, and wrote a two and one-half page memo clearing O'Connor. President Reagan told social conservatives: "She's alright."
Reagan and Starr were wrong. There is no doubt Lawrence Silberman, a senior judge on the U.S. Court of Appeals for the District of Columbia, had O'Connor in mind when he skewered the Supreme Court in a candid speech to the conservative Federalist Society last November. Pointing to the court's decisions on abortion, religion and (even before last Thursday) homosexual rights, Silberman declared: "I do not think it even can be seriously argued that any of these lines of decision had a shadow of true constitutional justification."
"How does the court get away with it?" Silberman asked. His answer: "It maintains its legitimacy so long as its activist opinions coincide with the views of a broad national consensus of elite opinion." He suggested that O'Connor's public remarks questioning the death penalty, patently improper for a sitting justice, "were designed to test the waters" of elitist opinion.
Sen. Edward M. Kennedy's brilliant campaign of selective filibusters against appellate court nominees appears to have succeeded in freezing Bush's Supreme Court nominations. It now seems certain former Texas Supreme Court Justice Gonzales, George W. Bush's longtime aide, will be the president's first associate justice. He is viewed by conservatives as an improvement on O'Connor, but not much better. While Democrats surely will not be lucky enough to get a John Paul Stevens (by Gerald Ford) or David Souter (by the first George Bush), they will be content with Alberto Gonzales.
It was Gonzales who watered down Solicitor General Theodore Olson's government argument in the racial preference cases, which gave O'Connor and Justice Anthony Kennedy a basis for catering to elite opinion. So, the Bush Court promises to remain dysfunctional.