O'Connor Steps Down from the Bench
ROBERT SIEGEL, host:
From NPR News, this is ALL THINGS CONSIDERED. I'm Robert Siegel.
The first woman to serve on the United States Supreme Court announced her retirement today. After 24 years as an associate justice, Sandra Day O'Connor is stepping down. She informed President Bush of her decision in a letter that was delivered to the White House this morning. A few hours later, the president had this praise for Justice O'Connor.
President GEORGE W. BUSH: Justice O'Connor's great intellect, wisdom and personal decency have won her the esteem of her colleagues and our country.
SIEGEL: In her letter, Sandra Day O'Connor said that she would continue to serve until her replacement is confirmed. And because of her role on the court, that is expected to be quite a political battle. NPR's Nina Totenberg reports.
NINA TOTENBERG reporting:
Justice Sandra Day O'Connor has been called the most powerful woman in America. Because of her position at the center of a Supreme Court that is so closely divided on so many major questions, she has in her 24-year tenure often cast the deciding vote in cases involving abortion, affirmative action, separation of church and state, states rights, gay rights and, of course, in the case that decided the 2000 election, Bush vs. Gore.
In the enemy combatant cases last term, she wrote the opinion declaring that a state of war is not a blank check for the president when it comes to the rights of the nation's citizens. That term, she also co-authored the court's 5-to-4 opinion upholding the McCain-Feingold campaign finance reform law. And two years ago, she authored the court's 5-to-4 opinion upholding the use of affirmative action in college admissions.
Because her vote has so often been determinative and unpredictable, her departure gives President Bush the opportunity to solidify conservative control of the court by replacing O'Connor with someone more conservative. Among those mentioned as possible replacements for O'Connor are Attorney General Alberto Gonzales, who would be the first Latino appointed to the court, and several female appeals court judges. But whoever the president chooses, there is likely to be a high-stakes confirmation confrontation with liberal and conservative groups spending millions on the battle.
O'Connor's retirement letter arrived at the White House this morning, and the president spoke to the justice by phone. The White House said that at 10:30, the president held his first meeting to discuss strategy for naming a replacement. And the White House said no decision would be announced until after the president returns from the G8 meeting at the end of next week.
Whoever is chosen will be replacing a pioneering woman from an extraordinary background. Raised in Arizona, Sandra Day O'Connor spent her early life riding horses and roping steers on the Lazy B, a 250-square-mile cattle ranch owned by her parents on the Arizona-New Mexico border. At age 10, she was sent away to school, and at age 16, she enrolled at Stanford, eventually graduating from law school third in her class.
On the job market, she soon learned nobody seemed to want to hire a woman lawyer. After every job door was closed in her face, a desperate O'Connor finally made an offer to the San Mateo County attorney, an offer that she hoped he would not be able to refuse.
Justice SANDRA DAY O'CONNOR (Supreme Court Justice): I wrote him a very long letter explaining all the reasons why I thought that I would be helpful to him in the office and offering to work for nothing if that was necessary.
TOTENBERG: In the beginning, it was. But she soon was put on salary, and when she and her husband John moved to Arizona, she continued practicing law, stopping only when a dearth of baby sitters forced a five-year hiatus on her to raise her three sons. Soon, she was a figure to be reckoned with in Arizona's political life. Elected to the state Senate, she quickly rose in Republican ranks to become the majority leader, then was appointed a state trial judge and then a state appellate court judge.
By then, it was 1981, and with the retirement of Justice Potter Stewart, President Reagan had a Supreme Court vacancy to fill. Stewart's imminent retirement was known only to a few inside the administration. And there was initially something of a battle over whether the president should fulfill his campaign promise to appoint a woman. Kenneth Starr, then an assistant to Attorney General William French Smith, recalls that staff aides examined Mr. Reagan's campaign words carefully, noting that he'd not made an ironclad pledge, and some administration insiders urged the president to use this first appointment to name Robert Bork or some other conservative luminary to the high court. But that was not to be, says Starr.
Mr. KENNETH STARR (Independent Counsel): President Reagan was not a word parser, and he felt that he had made a moral commitment to appoint a qualified woman to the Supreme Court, that it was long overdue, etc. And that's what our marching orders were.
TOTENBERG: But back then, the list of qualified women with any conservative credentials at all was a short one. Starr believes that O'Connor's name was first suggested by then Justice William Rehnquist, a fellow Arizonan and classmate of O'Connor's at Stanford. She soon won the nod from President Reagan.
(Soundbite of presidential announcement)
President RONALD REAGAN: So today, I'm pleased to announce that upon completion of all the necessary checks by the Federal Bureau of Investigation, I will send to the Senate the nomination of Judge Sandra Day O'Connor of Arizona Court of Appeals for confirmation as an associate justice of the United States Supreme Court. She is truly a person for all seasons.
TOTENBERG: In Arizona, Judge O'Connor met the press.
(Soundbite of press conference)
Justice O'CONNOR: This is a momentous day in my life and the life of my family. And I'm extremely happy and honored to have been nominated by President Reagan for a position on the United States Supreme Court.
TOTENBERG: O'Connor has acknowledged that her appointment was, quote, "an affirmative act," that she was not among the most qualified judges or scholars back then. But she won quick confirmation, her only opposition coming from right-to-life groups suspicious that she would not vote to overrule Roe vs. Wade. Those fears would eventually be realized, but it would take many years.
Once on the court, O'Connor's main concern, she later said, was whether she could do the job. `If I stumbled badly,' she said, `it would make life much more difficult for women.' As it turned out, of course, O'Connor's appointment gave a huge boost to women in the law.
Justice O'CONNOR: The minute I was confirmed and on the court, states across the country started putting more women on than had ever been the case, on their supreme courts. And it made a difference in the acceptance of young women as lawyers. It opened doors for them.
TOTENBERG: In the years that followed, O'Connor's impact on the law would be enormous. On the court, she became part of a conservative states-rights majority, voting to strike down key portions of the Brady gun-control law and the Violence Against Women Act. And she wrote the court's opinion declaring that the federal age discrimination law was unconstitutional insofar as it applied to state employees seeking damages for discrimination.
(Soundbite of ruling)
Justice O'CONNOR: We conclude that in stripping the states of their sovereign immunity, Congress exceeded its constitutional authority.
TOTENBERG: On the subject of racial discrimination and affirmative action, O'Connor has been the key vote. She's written many of the court's most important decisions in this area. In the '80s and '90s, she wrote landmark court decisions limiting the use of affirmative action for minority contractors. And she wrote the court's 1993 decision invalidating the use of race as the predominant factor in drawing majority black congressional districts.
In contrast, in 2003, O'Connor wrote the court's opinion declaring that colleges and universities are justified in using race as a factor in college and graduate-school admissions.
(Soundbite of ruling)
Justice O'CONNOR: Such diversity promotes learning and better prepares students for an increasingly heterogeneous work force, for responsible citizenship, and for the legal profession.
TOTENBERG: In each of the race cases, O'Connor has followed a well-trodden path for her: Decide the case before you, make as few broad and sweeping rules as possible, and leave the door open for future change in a different set of circumstances. She's adopted a similar approach in religion cases. She's rejected the approach of conservatives who would like to permit any state action that doesn't actually favor one religion over another, but she's also rejected the liberal approach of erecting a high wall of separation between church and state.
In no area, though, has O'Connor been more careful and successful at carving out a middle ground than on questions involving abortion. When she joined the court, a woman's right to an abortion was spelled out in Roe vs. Wade as a relatively absolute right to privacy. But less than two years after joining the court, O'Connor dissented from a major extension of Roe, saying that in her view, a state could regulate abortions unless those regulations imposed an undue burden on a woman's right to choose. Six years later, her separate concurring opinion in an abortion case allowed more state restrictions but made it clear that she had deprived the court's four conservatives of a fifth vote to overrule Roe vs. Wade.
In 1992, the issue was back before the court again. And this time, O'Connor, joined by Justices Souter and Kennedy, joined forces to sustain what they called the core holding of Roe--a woman's right to an abortion--but using O'Connor's undue burden test.
(Soundbite of ruling)
Justice O'CONNOR: Some of us as individuals find abortion offensive to our most basic principles of morality. But that can't control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code. We reaffirm the constitutionally protected liberty of the woman to decide to have an abortion before the fetus attains viability, and to obtain it without undue interference from the state.
TOTENBERG: Eight years later, she provided the fifth and deciding vote, this time invalidating a so-called partial-birth abortion law. The statute, she said, provided no exception to preserve the health of the mother and thus imposed an undue burden.
O'Connor's critics accuse her of judicial imperialism. As George Washington Law School Professor Jeffrey Rosen wrote, `She views the court in general and herself in particular as the proper forum to decide every political and constitutional question in the land, and she refuses to defer to competing interpretations by Congress or even state legislatures when they clash with her own.
Professor JEFFREY ROSEN (George Washington University Law School): We're all living in Sandra Day O'Connor's America. Take almost any of the most divisive questions of American life, and Justice O'Connor either has decided it or is about to decide it on our behalf.
TOTENBERG: In judicial decision-making, say her critics, O'Connor slices the salami so thin that there's almost nothing there, no rule to guide anything except that particular case. One of her former law clerks, Peter Huber, scoffs at such criticism.
Mr. PETER HUBER (Former Law Clerk of Sandra Day O'Connor): She would say salami is supposed to be sliced fine, all right. Facts are supposed to matter. And if you slice crudely, you're at grave risk of slicing badly as well.
TOTENBERG: When she was appointed to the Supreme Court, Sandra Day O'Connor knew she would be a role model for women. She persevered even through a bout with breast cancer. For a year, she wore a wig, looked drained and wan, but never missed a day in court. She's presided over a period in American law when women moved from being anomalies in the courtroom to the majority of graduates in many major American law schools. And she departs from the court having left a profound mark on its history. Nina Totenberg, NPR News, Washington.
SIEGEL: You can hear Nina Totenberg's 2003 interview with Sandra Day O'Connor at our Web site, npr.org.