The 75-year-old O'Connor, who in 1981 became the first female appointed to the court, was known for staking out a middle ground on an increasingly polarized court. She blocked the court’s conservative wing from overturning Roe v. Wade, voted on both sides on whether government institutions may publicly display nativity scenes, declared that the state may not use racial quotas in government contracts, yet allowed state universities to apply racial quotas in race-conscious university admissions policies. Often, O’Connor’s opinions were tied together not by any sort of clear, intelligible legal theory, but rather by a patchwork of pragmatism.
For example, in the Michigan affirmative action case, Justice O’Connor’s majority opinion defined a lawful affirmative action plan as one that evaluates applicants as “an individual and not in a way that makes race or ethnicity the defining feature of the application." O’Connor then cryptically added that "The court expects that 25 years from now, the use of racial preferences will no longer be necessary." Nothing in O’Connor’s obtuse 25 year plan tells us when race becomes a “defining feature.” This sort of vaguely worded analysis fails the court’s most basic purpose of providing the lower courts and the general public with guidance as to what constitutes lawful behavior.
Arguably, O’Connor’s ideological wavering also allowed the Court’s liberal wing to engage in outright cultural engineering. As Justice Scalia has angrily observed, the court’s majority opinions concerning the Texas sodomy law, affirmative action, and abortion reveal a deep strain of East coast elitism. With regard to the court’s recent decision to strike down a Texas sodomy law, the majority ruled that homosexuals have a fundamental liberty interest and privacy right to be intimate in their own bedrooms. In other words, certain sexual acts cannot be criminalized simply because a majority of citizens consider it to be immoral. Very good. But if you extend that argument to its logical outcome, then state laws against things like bigamy, adult incest, prostitution, and same sex marriage will all fall by the wayside. As Justice Scalia observed, “It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed.”
With O’Connor’s retirement—and the resignation of Justices Rehnquist and Stevens considered imminent—President Bush must consider potential replacements. New appointees to the court will be in a position to either permit or deny this assault on our traditional value system. Upon these nominations, the culture war turns.
Early frontrunners include Albert Gonzalez, the former Texas Supreme Court Judge who presently serves as General Counsel to President Bush. Gonzalez has wide appeal as an ideological moderate who also carries the possibility of endearing the Republicans to the Hispanic voting populace. Just one thing: Gonzalez is anything but a cultural conservative and therefore ill-suited to fight the culture war that is currently eroding family values and our traditional way of life.
A similar situation played itself out in 1980, when candidate Ronald Reagan indicated that he would fill impending Supreme Court vacancies with Justices who shared the party’s concern for eroding family values. The 1980 Republican platform put it succinctly: “We will work for the appointment of judges at all levels of the judiciary who respect traditional family values and the sanctity of innocent life.”
So who did Reagan end up nominating to the highest court in the land? Justice O’Connor, whose appeal as a moderate and a female led the administration to overlook her record as a pro choice advocate. Her resignation now allows President Bush to replace the court’s swing vote with an unwavering conservative, and to change the direction of the court. For these reasons, the administration must deny the temptation to appoint Gonzalez on the basis of his appeal as a centrist. The Texas Sodomy case makes it clear that conservatives are losing the culture war. Our values are being peeled back by a court that has no problem usurping the will of the people. With Justice O’Connor’s surprise resignation, the administration has a unique opportunity to appoint a Justice who will help restore those traditional values that are essential to our national life.