Jewish World Review July 4, 2005 / 27 Sivan,
My reaction to Justice Sandra Day O'Connor's retirement was
almost as positive as my reaction in 1981 was negative when the Reagan
administration announced that they were going to appoint a woman to the
It wouldn't matter if all nine Justices of the Supreme Court
were women, if these were the nine best people available. But to decide in
advance that you were going to appoint a woman and then look only among
women for a nominee was a dangerous gamble with a court that has become
dangerous enough otherwise.
The recent outrageous Supreme Court decision making anyone's
home prey to any politician who wants to confiscate it, using the magic
words "public purpose," shows a court full of itself and blind to the havoc
it is leaving in its wake.
Although Justice O'Connor was one of the four who opposed this
latest outrage, over the years she contributed more than her share to the
uncertainties and confusions in the law resulting from such nebulous notions
as "undue burden" and other "nuanced" policy-making that splits the baby
instead of drawing a line.
The political temptation may be great to appoint a Hispanic
Justice or another woman or some other nominee selected on the basis of
group identity rather than individual qualifications. At this crucial
juncture in the history of the Supreme Court, that would be needlessly
repeating the mistake that brought Sandra Day O'Connor to the High Court in
the first place.
The political path of least resistance would be to nominate
someone who can get confirmed by the Senate without a long political battle
that would polarize the country. Another little-known "stealth" nominee like
David Souter might fill the bill but the track record of Justice Souter's
disgraceful disregard of the Constitution should be enough to warn against
going down that road again.
Then there are the judicial candidates with a "conservative"
label but who lack the toughness and integrity to stand up to all the
pressures and temptations to go along with ideas that will win praise in the
media and among the law school elites who favor liberal judicial activism.
Among the "conservatives" who succumbed and "grew" over time to
the left is Justice Anthony Kennedy, once touted by some conservatives as
"Bork without a beard" but who turned out to have neither the intellect nor
the strength of Judge Robert Bork. One of his former colleagues on the 9th
Circuit Court of Appeals warned my wife and me, early on, that Kennedy was
The first time I saw Justice Kennedy on television addressing
the American Bar Association, and obviously trying to suck up to them, I was
reminded of what his fellow judge had said of him.
Another Anthony Kennedy might fool enough conservatives and
appease enough liberals to get confirmed without a big political fight but
our children and our children's children would end up paying the price in
decisions as weak, vacillating and dangerous as those which Justice
Kennedy has rendered.
Whether Senate Republicans will have the fortitude and unity to
make their majority mean something is another question. The McCain mutiny
and sellout against the Republican attempt to stop Senate filibusters by
Democrats is a sign that this may be the weak link in any attempt to restore
the rule of law in our courts.
Another weak link are those people who think that the Senate
should not "waste" so much time over judicial nominees but instead devote
its efforts to other things that are considered to be the "real" issues of
Recent Supreme Court decisions, of which the one destroying
homeowners' property rights was only the most outrageous, should be enough
to make clear that the real issue is preserving the
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