The dysfunctional court

Robert Novak

6/30/2003 12:00:00 AM - Robert Novak
WASHINGTON -- Amid swirling speculation about reshaping the Supreme Court, a well-connected senior Republican senator told colleagues he has been informed what likely will happen: Chief Justice William Rehnquist would retire and be replaced by Justice Sandra Day O'Connor, with that vacancy filled by White House Counsel Alberto Gonzales. Improbable though it seems, this scenario deepened conservative gloom following the high court's landmark decisions last week.

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)."

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.