O'Connor and Conservatives

Weekly Standard editor William Kristol and Andrew McBride, partner of the law firm Wiley Rein & Fielding, discuss Justice Sandra Day O'Connor's brand of conservatism, and who conservatives hope will follow her to the high court. McBride clerked for the retiring justice in the late 1980s.

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SCOTT SIMON, host:

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

Coming up, we remember a slain colleague in Iraq.

But first, the resignation of Justice Sandra Day O'Connor is seen as an opportunity for a Republican president to put a conservative stamp on the US Supreme Court. But not all conservatives share the same priorities in jurisprudence and not all conservatives will be happy no matter whom the president chooses. William Kristol, editor of The Weekly Standard, joins us now from Portugal.

Mr. Kristol, thanks for being with us again.

Mr. WILLIAM KRISTOL (Editor, The Weekly Standard): My pleasure.

SIMON: Streets in Lisbon abuzz with talk about this?

Mr. KRISTOL: Everyone. It's unbelievable, banner headlines in all the Portuguese papers.

SIMON: We're also joined by Andrew McBride, a former clerk for Justice O'Connor, who's now in private practice and is on the line from Virginia.

Mr. McBride, thank you for being with us.

Mr. ANDREW McBRIDE (Former Clerk for Justice O'Connor): Good to be with you this morning, Scott.

SIMON: And, Mr. Kristol, let's start with you. A couple weeks ago when most people were saying--or at least most so-called experts were saying--that Justice Rehnquist would retire, you said that Justice O'Connor would leave the bench first. Help us to understand this moment this presents.

Mr. KRISTOL: Well, I simply said it was speculation and I had a couple of indications that she was considering leaving, and guessed that she might go first and Rehnquist later. It's a very big moment, obviously, you know; O'Connor a swing vote on the court. The way I would put it is this way. Conservatives have had a lot of success the last 25 years in American politics and economic policy and in foreign policy, not much in constitutional jurisprudence. The defeat of Bob Bork in 1987 really was a decisive moment, and the court has continued to drift in a direction that most sort of originalists or conservative constitutionalists don't much like. This is the moment where if Bush chooses to and if he's able to, he could really reverse--begin to reverse that direction. So if you are--I don't know what the shorthand term is, but let's say a conservative constitutionalist, for want of a better one, this is an awfully big moment. Bush's choice is just an awfully big moment.

SIMON: Mr. McBride, you worked for Justice O'Connor. Did her judicial philosophy change over the years?

Mr. McBRIDE: I believe it did to a certain extent. I think the core of her judicial philosophy was a healthy respect for state rights and state and local governments. And she was the only justice after Brennan's resignation who had any experience in state or local government. She was a state legislator and she was a local prosecutor. So that was probably the central core that defined her jurisprudence. Within that, I think in the last three or four terms, she abandoned that principle on a number of occasions to vindicate other principles that were important to her, including, to some extent, protection of minorities and protection of women and children in the law.

SIMON: Now is that to you an indication that no matter who is appointed, you can't really predict how they're going to wind up voting, certainly not over the long term?

Mr. McBRIDE: Well, that's certainly true, and President Eisenhower would certainly say that as to his appointment of Justice Brennan, as would--as has, in fact, publicly the first President Bush as to his appointment of Justice Souter. I think there are few candidates out there--Judge Michael Luttig on the 4th Circuit--who have--for instance, who have defined themselves over a number of years in a way that their jurisprudential orientation is such that it is similar to Scalia or a Thomas, where it would be very unlikely. They would have to repudiate essentially their theory of law to drift too far from where the president is on judicial matters.

SIMON: Mm-hmm. Bill Kristol, of course, this has been mentioned constantly over the past 24 hours. Justice O'Connor was the first woman appointed to the court, and people have pointed out that it gets politically a little tricky to seem to take a step back from diversity of some kind or another. Yet I gather you've written that you don't think Alberto Gonzales will be nominated, might not even be under what you would consider serious consideration.

Mr. KRISTOL: Well, I think he was under very serious consideration and I'm sure he still is. I think President Bush likes him and would love the idea of putting the first Hispanic on the Supreme Court. I do think--and Andrew McBride has alluded to this--there's a bit of a myth that you don't know how a lot of judges are going to turn out, especially if they have substantial experience on the federal courts or on a state Supreme Court. I mean, if someone has 10 or 15 years of judging, unless they're just going to radically change, you know, one can predict mostly the core elements of their jurisprudence. And it doesn't mean you can predict it every case, obviously. Eisenhower was surprised by Earl Warren, because he had been a governor and hadn't been a judge, I think, primarily. So Gonzales would--Bush will be tempted to do Gonzales, but I believe he won't. I don't think Gonzales is--has much of a record of conservative--I mean, he doesn't have much of a judicial record at all. And I think conservatives are--would prefer someone with a proven record in the Scalia, Thomas, Rehnquist line, not, of course, dotting every I and crossing every T.

Now there are women, incidentally, and Hispanics who have that record: Judge Garza down in the 5th Circuit, if you want a Hispanic. There are women--Judge Clement--in the 5th Circuit, as well. Priscilla Owen and Janice Rogers Brown just confirmed for the appellate courts by the US Senate. There are state Supreme Court judges who I think have not been mentioned enough in the speculation. Andrew McBride called attention to Justice O'Connor's background, which was at the state legislative and I guess the state judicial level. There are state Supreme Court judges from several states appointed by Republican governors who have solid and I think pretty distinguished records of conservative jurisprudence. I wouldn't be surprised if the president thought, `Gee, maybe the appropriate successor to Sandra Day O'Connor would be a woman who serves on a state Supreme Court.'

SIMON: Well, but can you tell us, Mr. Kristol, then, Mr. McBride, please follow up in 30 seconds, what are some of the diversity of things that different conservatives care about? Because it's not just unanimity of opinion, is there?

Mr. KRISTOL: No, but, you know--and there are different strands of conservatism, but the truth is Scalia, Thomas and Rehnquist voted together in--What?--90 plus percent of the cases. So I wouldn't exaggerate the differences among conservatives.

SIMON: Mm-hmm. Mr. McBride, how do you feel about that?

Mr. McBRIDE: Well, I think Mr. Kristol is right. Although, I do think that Judge Gonzales--or now Attorney General Gonzales is a slightly stronger candidate than Mr. Kristol suggests. And that may be viewed as unfortunate by what I'll call movement conservatives. I think the president's statement that he will move swiftly and make a nomination by July 8th suggests that it's going to be someone who has been fairly seriously vetted fairly recently. And that would--certainly, Judge Gonzales, having gone through the process for attorney general two or three months ago, is somebody's essentially ready to go from an FBI perspective. And that I think at least favors him slightly if you want to do tea leave reading--try and do it as effectively as Mr. Kristol did in predicting the O'Connor resignation. I do think it has to be what's referred to in Washington as a plus candidate, meaning a minority or a woman. And I think there are--I would--certainly, my first pick would be Larry Thompson within that group, the former attorney general of the United States, who's now general counsel at Pepsi.

SIMON: All right. That...

Mr. McBRIDE: But there are any number of candidates, as Bill points out, both on the federal courts...

SIMON: Thank...

Mr. McBRIDE: ...of appeals.

SIMON: Thank you very much, gentlemen. And we'll talk about them a lot in the days ahead. Bill Kristol, editor of The Weekly Standard, Andrew McBride, a former clerk to Justice O'Connor, now partner at a law firm in Washington, DC.

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