Looking Past O'Connor at a New High Court

Robert Siegel talks about the O'Connor announcement with two members of the legal community: Douglas Kmiec, chair and professor of constitutional law at Pepperdine University, and Jeffrey Rosen, associate professor at George Washington University Law School and legal affairs editor at The New Republic.

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ROBERT SIEGEL, host:

From NPR News, this is ALL THINGS CONSIDERED. I'm Robert Siegel.

And we continue now with our coverage of the retirement of Supreme Court Justice Sandra Day O'Connor. With me in Washington in the studio is Jeffrey Rosen. He's associate professor at George Washington University Law School in Washington, DC, also legal affairs editor for The New Republic.

Welcome back.

Professor JEFFREY ROSEN (George Washington University School of Law): Good to be here.

SIEGEL: And joining us from Malibu, California, is Douglas Kmiec, who's professor of constitutional law at Pepperdine University.

Welcome back to the program again.

Professor DOUGLAS KMIEC (Pepperdine University): Robert, nice to be with you.

SIEGEL: From both of you--first, Jeffrey Rosen--an appraisal. How important a justice has just announced her retirement from the court?

Prof. ROSEN: Well, she was extraordinarily important. That rather unkind piece that Nina Totenberg quoted called her the most powerful woman in America, and it seems ungenerous to quibble right now, but no one would dispute her influence. She did indeed decide all of the great questions of American life. You had to go to Justice O'Connor to ask her opinion before you knew what to think about questions involving affirmative action, school prayer, abortion and all the questions she thought about.

Now I suppose how influential her jurisprudence was might be open to question. And critics--and I guess I'm one; Nina has outed me--might say that she, by being so pragmatic and taking each case as it comes, she didn't really leave a school or a jurisprudence for others to follow. And in that sense, her influence might be more limited. But her influence on American politics is unparalleled, no question about it.

SIEGEL: Not just you from the left, but Robert Bork--I heard her him saying on a cable television interview today, `She had no judicial philosophy.' Douglas Kmiec, what's your appraisal?

Prof. KMIEC: Well, I think that's the standard conservative criticism of Justice O'Connor, but I think it's wrong. I think Justice O'Connor did employ an effort to try and build a consensus on the court, to often try and see the competing constitutional values, and did give us a template of sorts--it's not the template that either strongly liberal or strongly conservative views would like--but did give us a template for deciding.

Let me just illustrate in the race area. Before we got to Justice O'Connor's thinking in a case from Richmond, Virginia, dealing with affirmative action and set-asides, we really didn't have a coherent way to approach that question. And it was Justice O'Connor who made it very plain that race is a suspect classification, that whether you're seeking to help or hurt, it doesn't matter; the court is going to look at it strictly. And she did then outline a number of considerations where race could narrowly play a role in public decision-making. Now it's not an absolute rule, it's not a mechanical formula, but it's a way of resolving a particular case as well as continuing a discussion. And for that, I think, she deserves great credit.

SIEGEL: You would agree with that, Jeffrey Rosen, that she had values, but then was pragmatic about how you applied those values?

Prof. ROSEN: She was pragmatic about how you applied the values. She was not a trimmer. She had a pillow in her office that I saw when I interviewed her that said, `Maybe in error, but never in doubt.' And she knew her mind. Critics wrongly assume that she was wishy-washy because she was moderate. Now on the plus side, which I'd like to stress, Justice O'Connor had a remarkable achievement which is that she represented the views of a majority of Americans on a whole range of issues more accurately than the United States Congress. When you look at the polls involving all of these great culture war issues right now, Republicans and Democrats in Congress are playing to their base and represent the views of numerical minorities, whereas O'Connor had this exquisite ability to limn the culture, to put her finger on the essence of what was in the air, and basically to express it.

SIEGEL: You mean, she could feel the center of American life somehow?

Prof. ROSEN: She channeled it. She was the avatar of it.

SIEGEL: Well then, let me ask Douglas Kmiec this question. Twenty-four years ago, Sandra Day O'Connor was the first Supreme Court nominee of Ronald Reagan, who was at the time certainly seen as the most conservative president who'd been elected in half a century in this country. And today we see her at the center of the Supreme Court of the United States. But what does this say about the judicial/political landscape of the United States?

Prof. KMIEC: Well, I think it says something about both the judicial/political landscape and Ronald Reagan. I think Ronald Reagan was a pragmatic conservative. I think Justice O'Connor is as well. But she's also someone who applies that practical insight with high regard for principle, and in appropriate cases, will not flex with respect to that principle.

Let me just give you two examples from the past term. This term, we had these remarkable cases where it was held that private property could be taken for private use. Justice O'Connor wrote the poignant and powerful dissent against that proposition. She said public use means public use, and while we have some exigent circumstances where we might allow condemnation authority for blighted property, we don't allow property to be taken from A to B. That was Ronald Reagan speaking. That was the Sandra O'Connor that Ronald Reagan saw, but so too was her attempt to try and address the sensitivities in the context of the Ten Commandments cases. Ronald Reagan would have a far easier time of saying that religion was prominent in our history and that displays of this nature would be unproblematic. Sandra O'Connor, however, acknowledged that principle and, at the same time, saw the difficulty and the sensitivity of a pluralistic society.

SIEGEL: I want to ask Jeffrey Rosen this question. We heard you in Nina Totenberg's report--you were recorded a while ago--saying that we all live in Sandra Day O'Connor's America. She's going to be off the court soon. Let's assume that whoever replaces her, being rather junior, won't instantly be the central figure on the Supreme Court--or perhaps here she will. Whose America will we be living in shortly, looking at the Supreme Court today?

Prof. ROSEN: I think at Anthony Kennedy's America, actually, because he, like Justice O'Connor, was in the majority more frequently than any other justice. He also was more willing to strike down federal or state laws than any other justice except for O'Connor. They were tied in terms of their willingness to use judicial power. All the other justices had a more restrained view of the role of courts in American life. And Justice Kennedy this term, in important cases, proved to be more liberal in ways that suggest that he might be taking Justice O'Connor's role. But it was Justice O'Connor's America almost by coincidence. It was merely because she was the center of a divided court and because her jurisprudence was willing to reconcile opposite sides that put her in this position of running the country. It's quite possible--you know, it's a tough job, but someone's got to do it, and it might as well be Justice O'Connor.

SIEGEL: Not to put too fine a point on it.

Prof. ROSEN: No, she was. She was. But it's quite possible that her successor, with a different judicial philosophy, which he or she is quite likely to have 'cause most of the names on the short list are not pragmatists in the O'Connor style...

SIEGEL: You mean they're more conservative than she is?

Prof. ROSEN: They are. Now we can distinguish between lots of different kinds of conservatives; strict constructionists are different than pragmatists; pragmatists are different than incrementalists; incrementalists different than people who defer to legislatures, which reminds us of the scope of the choices the president faces. But we may not see another Justice O'Connor in the immediate future.

SIEGEL: I suspect we have an entire summer to talk about those distinctions and those people on the short list, and especially when the list gets down to one. Jeffrey Rosen and Doug Kmiec, thanks a lot for talking with us.

Prof. ROSEN: Thanks, Robert.

Prof. KMIEC: Good to be with you.

SIEGEL: We've been talking with Douglas Kmiec of Pepperdine University in Los Angeles and Jeffrey Rosen of the George Washington University Law School in Washington, DC.

This is NPR, National Public Radio.

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