Losing a Moderate Voice on the Court

Robert Siegel talks with NPR's Nina Totenberg about the retirement of Supreme Court Justice Sandra Day O'Connor. The 75-year-old justice has been the moderate center of the court for years, voting sometimes with the conservative wing of the court, and sometimes with the liberal. Totenberg talks about what that record has meant to the court, and what the opportunity to replace O'Connor means for President Bush's impact on the institution.

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ROBERT SIEGEL, host:

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

Washington was poised all week for a retirement from the Supreme Court, but not the one that came today. Instead of the ailing chief justice, William Rehnquist, announcing his retirement, it was Justice Sandra Day O'Connor. O'Connor was the first woman to serve on the court, and a pivotal so-called swing justice. Her vote often determined the outcome of cases. I'm joined now by NPR legal affairs correspondent Nina Totenberg.

Nina, a shocker.

NINA TOTENBERG reporting:

You bet it was. There were lots of rumors, the occasional column by somebody who doesn't know much about the court. But nobody who covers the court and none of the justices I talked to or any of the court personnel believed those rumors. We were all wrong.

SIEGEL: Why did she retire?

TOTENBERG: Well, of course, we can't know for sure, but her husband's been very sick and spending a fair amount of time in chambers with her, and she may well have just concluded she needed to spend more quality time with him and go back to their roots in Arizona.

SIEGEL: Now some people say that there will be not just a furious confirmation battle over her successor, but a more furious one than over a successor to the chief justice. Why? What's the reasoning behind that?

TOTENBERG: Well, because Rehnquist is a conservative vote on the court for the most part, and replacing a conservative with a conservative doesn't change the net outcome. But O'Connor is a pivotal swing justice. She's cast deciding votes to uphold abortion rights, to preserve affirmative action programs at colleges and universities. She's cast deciding votes both ways on gay rights, church-state questions, states' rights. But anyway, Robert, you get my drift. So replacing her means in all likelihood that the balance of power on the court may well change now dramatically.

SIEGEL: So what do we know about the kind of person President Bush wants to appoint to the Supreme Court?

TOTENBERG: Well, when he was asked that question during the 2000 campaign, the names that he mentioned as his role models for Supreme Court justice--those names were Justices Antonin Scalia and Clarence Thomas, who just happen to be the court's two most conservative members.

SIEGEL: And who are the names under consideration who seem to fit the bill?

TOTENBERG: Well, you know, for this opening, as opposed to the post of chief justice, the names are a little bit different. The name mentioned most often at the moment is Alberto Gonzales, the attorney general, who would be the first Latino appointed to the court unless, of course, you count Benjamin Cardozo...

SIEGEL: Who was a Sephardic Jew.

TOTENBERG: ...who was a Sephardic Jew, named in 1932. And then there are a bunch of women who are now being mentioned: Edith Jones, who's a very controversial and conservative federal appeals court judge from Texas. She's an outspoken critic of Roe vs. Wade and an aggressive supporter of the death penalty. Edith Clement, a conservative federal appeals court judge from Louisiana. Deanell Tacha, who is a conservative, the chief judge of the 10th Circuit Court of Appeals; she's from Kansas. Janice Rogers Brown, a controversial African-American state court judge who was just confirmed to a federal appeals court here in Washington after a deal was struck in which the Democrats agreed to let her have an up-or-down vote and some others in exchange for preserving a filibuster. Alice Batchelder on the 6th Circuit Court of Appeals in Ohio.

SIEGEL: Now, Nina, you said that the other justices were surprised by today's announcement. Reporters who cover the court were surprised. Do we know if the White House was surprised?

TOTENBERG: Well, the White House says it got word for the first time of a retirement last night, but didn't know who it was, and that the O'Connor letter arrived this morning. The president then spoke to Justice O'Connor on the phone, and according to the White House, only then had his first meeting to discuss strategy for a Supreme Court O'Connor vacancy. Now has the president had conversations as opposed to strategy meetings, and have they been about perhaps the chief justiceship? Probably, but anyway, it's hard to imagine that he hasn't.

SIEGEL: Just last question. What about the chief justice?

TOTENBERG: Well, as far as we know, he's staying, but one has to remember, he's battling a particularly aggressive form of thyroid cancer, and next week is a new week, Robert.

SIEGEL: OK. NPR legal affairs correspondent Nina Totenberg. Thank you very much.

TOTENBERG: Thank you, Robert.

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