O'Connor's Departure Comes as Surprise

The Bush admininstration may not rush to name a replacement for Justice Sandra Day O'Connor, who announced Friday she will retire from the Supreme Court. Many observers had expected Chief Justice William Rehnquist to bow out. He hasn't.

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SCOTT SIMON, host:

This is WEEKEND EDITION from NPR News. I'm Scott Simon.

The balance of power among the nine justices of the US Supreme Court affects every American equally under the law. Any change among those nine carries the weight of changing history. Begin the show today with a look at Justice Sandra Day O'Connor, her contributions to the court, her announcement yesterday that she will retire and those who may succeed her. NPR's legal affairs correspondent Nina Totenberg joins us.

Good morning, Nina.

NINA TOTENBERG reporting:

Morning, Scott.

SIMON: And certainly over the past 24 hours we've heard a great deal about how central Justice O'Connor's role was, has been on the court. Help us understand how one person can have that kind of impact.

TOTENBERG: Well, Sandra Day O'Connor embodies the centrism that's prevailed at the court by a hair for the last quarter century. In a very real sense, in the words of the R.E.M. song, this is the end of the world as we know it. You know, de Tocqueville once wrote that if you think about almost any subject of major public controversy in the United States, eventually it'll make its way to the Supreme Court. And similarly, in her 24 years on the court, Justice O'Connor has often been the deciding vote in cases involving abortion, affirmative action, race and gender discrimination, separation of church and state, gay rights. The list just goes on and on.

Conservatives have railed at her moderation, her refusal to overturn past rulings, and now President Bush has the chance of a generation to remake the court in much the way that Franklin Delano Roosevelt got the chance to remake the court in the 1930s.

SIMON: Well, let's talk for a moment about some of the names that are put forward and--about even what kind of values they might have for her successor.

TOTENBERG: Well, this announcement, I think, was a shock to--I know it was a shock to her colleagues on her court and to the White House. Nobody knew it was coming. My sources tell me that the White House was fully prepared for a retirement by the ailing chief justice, William Rehnquist, but not for O'Connor, so I expect that there's some regrouping going on.

SIMON: Nina, what names do you think are certain to be on any White House list?

TOTENBERG: Well, look, it's a lot harder politically to appoint a white male to replace the first woman named to the court, and President Bush is very committed to racial and gender diversity on the courts, though not ideological diversity. But that's why you're hearing the name of Attorney General Alberto Gonzales a lot again. He would be the first Latino appointed to the court. You're also hearing Emilio Garza, a lower court judge.

SIMON: And what about women candidates?

TOTENBERG: Well, if you look at some of the most respected conservative women on the federal bench, they were appointed by President Reagan and the first President Bush, and they are viewed as not conservative enough by many in the White House. The names you most frequently hear mentioned at the White House to replace Justice O'Connor are perhaps less well-known federal appeals court judges: Edith Clement of Louisiana, Alice Batchelder from Ohio; also two very controversial conservatives, Edith Jones of Texas and Janice Rogers Brown, who was just confirmed for an appeals court seat as part of the filibuster deal brokered last month. These last two would certainly provoke a real donnybrooks.

And remember that within the president's own two important bases, business and those favoring a change in the social agenda, the social agenda base--it doesn't necessarily want what the business community wants, so that's where they are. I mean, I think that that's why they're taking some time.

SIMON: And what about the chief justice? He's, I guess, 80 years old. He's been battling thyroid cancer. His retirement was expected.

TOTENBERG: Well, so far it looks as though he isn't going anywhere, but you don't know what will happen next week, and that may be why the White House is apparently going to wait for a week or more before announcing a successor for O'Connor.

SIMON: And a lot of Republicans say they want someone confirmed in time for the next term in the fall. Is that possible?

TOTENBERG: It's certainly possible and they're gonna try, but O'Connor took away some of their ammunition when she made her retirement effective upon the confirmation of a successor, meaning that the court is not short-handed.

SIMON: Nina, finally, remind us again what it meant for this country when President Reagan decided to break the gender barrier and appoint Sandra Day O'Connor to the court.

TOTENBERG: You know, Scott, it's probably hard for young women today to realize what a huge thing it was. As a woman covering the court back then, I was really amazed at what it meant to me. And Justice O'Connor, in an interview that I had with her recently, said it just opened the doors for women, that suddenly women began to be named to state courts, that young women began to be interested in the law. Today the majority of students at most major American law schools are women. In terms of gender, a profession that was really almost--an almost exclusively male club when O'Connor was appointed, that profession has been just transformed.

SIMON: Nina Totenberg, thanks very much.

TOTENBERG: Thank you, Scott.

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