She was the best of justices; she was the worst of justices . . . Sandra Day O'Connor is retiring from the Supreme Court, leaving behind a mixed record and a bitter battle to pick her replacement.
O'Connor was spectacular at times. Unlike a majority of the court, she clearly recognized that the Constitution creates a federal government with enumerated and thus limited powers. But too often she seemed to bend that same Constitution to fit the outcome she desired.
Sandra Day was in the majority on some excellent decisions, but sadly her best judgments were made in the minority. Two recent dissenting opinions were especially strong: Gonzales v. Raich and Kelo v. New London.
In Raich, the issue was the power of Congress to regulate marijuana that is legal under state law and does not involve interstate commerce. Though O'Connor made clear she opposed the California law, she sensibly found that without commerce, there was no Commerce Clause power to justify federal government intervention. She thus applied her constitutional principles and not her personal opinion.
In Kelo, she blistered the 5–4 big government majority that gave thumbs up to local governments seizing homes, businesses and churches — with compensation — even when only to give these properties to other private citizens likely to produce more tax revenue for the government doing the taking.
In 1995, O'Connor helped form the majority in U.S. v. Lopez, a landmark case because it was the first time in 60 years that the High Court had struck down an act of Congress under the Commerce Clause. But she joined Justice Kennedy's concurring opinion that only served to weaken the impact of the majority decision.
As Mark Moller, editor of the Cato Supreme Court Review, stated, "While Justice Sandra Day O'Connor has been a key vote in favor of reinvigorating constitutional limits on federal power, her unpredictable style of judging — favoring narrow, vague decisions over broad, clear ones — has short-changed the Rehnquist Court's promise, ensuring that on many key fronts the Constitution's most important guarantees remain under-enforced."
Oops! Where'd the Constitution Go?
Tragically, O'Connor has been in the majority on some of the court's worst recent decisions. Take just two: affirmative action and campaign finance regulation.
While in the case Gratz v. Bollinger, a 6 to 3 majority struck down the University of Michigan's policy of awarding extra points to minority applicants, her opinion in Grutter v. Bollinger, decided 5 to 4, allowed race to continue to be used by the University of Michigan law school. The slim difference being that law school personnel considered their racial preferences quietly, in the backroom, without a stated formula.
O'Connor's worst decision was upholding the McCain-Feingold Bipartisan Campaign Reform Act, in the case McConnell v. FEC. The decision permits incumbents in Congress near-total power to regulate and restrict the financing of political campaigns. For someone capable of reading the Constitution, it was appalling that she skipped over the First Amendment's outright prohibition of such congressional behavior.
Lastly, O'Connor joined other justices in increasingly paying homage to international law, most recently in striking down the death penalty for juveniles.
Many years ago, an inebriated John Riggins, former Washington Redskins running back, fell out of his seat at a gala event. When Justice O'Connor looked at him with distinct displeasure, he slurred, "Loosen up, Sandra, baby."
Sadly, her legacy may be that, in a judicial sense, she too often took that drunken advice.
Moderate for Moderate
Over the coming months, you will hear Sandra Day O'Connor called a moderate until you'll want to tear your hair out. The always unbiased left-wing media and the interest groups of big government will incessantly suggest that a new moderate must be found to replace her. Otherwise, hold on to your hats, the court will move to the right.
Hey, wait a second, we want the court to "move right"!
Not that I'm attached to the often silly vocabulary of left and right, but "right" in this case means a justice likely to be against governments stealing homes, against racial preferences, against the government takeover of political speech — in short, a believer that it is government that is limited by our Constitution, not our individual rights to things such as a free marketplace of ideas and products.
We could do much worse than another Sandra Day O'Connor, which is why she gets two cheers. But we must do much better.
Let's face some facts. Republican presidents aren't very good at picking Supreme Court judges. They've chosen seven of the nine current justices, and yet, we don't have a majority of justices in favor of the republican values of limited government, property rights, individual freedom, and free enterprise. Instead, a big government majority has controlled the court and so much of our lives for so long — a majority of liberals and so-called moderates openly at odds with our Constitution, even at odds with the very idea of constitutional limits on government.
The smug political left has grown accustomed to getting liberal, big government justices when Democrats are in the White House and "moderate" big government justices from Republican presidents.
The time to end this heads-they-win, tails-we-lose strategy is now.
The Right Choice
President Bush should pick a justice who is committed to making government small enough so that it can fit within the Constitution. We've had more than enough experience with the opposite approach, with men and women dedicated to stretching and tearing and shredding the Constitution to wrap it around an ever-expanding, out-of-control leviathan.
There are tons of people qualified to sit on the Court who are also respectful of the Constitution. Judge Alex Kozinski comes to mind. Legal theorist Richard Epstein deserves to be mentioned more often. And Judge Janice Rogers Brown has just proved herself able to pass through the advice-and-consent process; perhaps she should be rushed through again, while the taste of recent votes still lingers.
But, of course, we don't want to hear the whining from the liberal political establishment. So, if these nominees don't please Democrats in the Senate or the Washington interest groups, perhaps there is another way. Take a page from Lani Guinier and establish a form of weighted voting. So, rather than pick a brand new justice, simply let Clarence Thomas vote twice on every decision.