As I started writing a different post, the news came over the radio: a Supreme Court retirement. But not Rehnquist, which would have been bad enough, since any vacancy allows for one of the Top Neocon Suspects to be put through. But no, it's the worst. It's Sandra Day -- the swing vote.
God knows I've held enough against her -- not least her role in Bush v. Gore, when she's described by Vanity Fair as "overheard expressing her dismay [on Election Night] over Gore's apparent victory":
"This is terrible," she exclaimed. She explained to another partygoer that Gore's reported victory in Florida meant that the election was "over," since Gore had already carried two other swing states, Michigan and Illinois.
Moments later, with an air of obvious disgust, she rose to get a plate of food, leaving it to her husband to explain her somewhat uncharacteristic outburst. John O'Connor said his wife was upset because they wanted to retire to Arizona, and a Gore win meant they'd have to wait another four years. O'Connor, the former Republican majority leader of the Arizona State Senate and a 1981 Ronald Reagan appointee, did not want a Democrat to name her successor. Two witnesses described this extraordinary scene to Newsweek. Responding through a spokesman at the high court, O'Connor had no comment.
(Thanks to Digby for the extended quotation.) O'Connor was viewed as "emotionally fixated on stopping a recount" -- because she knew she would want to retire! Still, in the years since she said that she's been an important bulwark in stemming the damage from Bush v. Gore.
Her vote has been crucial in so many of the SCOTUS rulings we've counted on in this administration: protecting choice in Planned Parenthood v. Casey, decriminalizing private sex acts between consenting adults in Lawrence v, Texas, recognizing the basic civil rights of Guantanamo detainees in Rasul v. Bush. SCOTUSblog, which is worth checking every five minutes right about now, notes a few:
These are among the cases in which Justice O'Connor's has been the decisive vote or opinion, and in which a more conservative Justice might well vote to overrule the governing precedent. (Post in progress. Please suggest additional cases.)
Note: Because most Justices consider stare decisis a more serious obstacle in cases of statutory construction, those cases (e.g., the Davis and Jackson Title IX decisions) might be more secure, even if Justice O'Connor's replacement would not have agreed with her as a matter of first impression.
McCreary County v. ACLU (2005) -- Ten Commandments displays
Jackson v. Birmingham Board of Educ. (2005) -- Title IX Liability for Retaliation
Rompilla v. Beard (2005) -- standard of reasonable competence required on the part of defense counsel by the Sixth Amendment
Johanns v. Livestock Marketing (2005) -- assessments for government speech
Smith v. Massachusetts (2005) -- double jeopardy
Small v. United States (2005) - felon firearm possession ban doesn't cover foreign convictions
Tennessee v. Lane (2004) -- Congress's Section 5 power
McConnell v. FEC (2003) -- campaign finance
Grutter v. Bollinger (2003) -- affirmative action
Mitchell v. Helms -- direct aid to religious schools
Stenberg v. Carhart (2000) -- "partial-birth abortion" ban
Davis v. Monroe County Board of Educ. (1999) -- recognizing school district liability under Title IX for student-on-student sexual harrassment
Schenck v. Pro-Choice Network (1997) -- injunctions against abortion-clinic protestors
Morse v. Republican Party (1996)
Zadvydas v. Davis
Brentwood -- state action
Hunt v. Cromartie -- race-based redistricting
Rogers v. Tennessee -- "judicial" ex post facto
(UPDATE: For those with a subscription or willing to sit through a quick Absolut ad, Salon has a list with more detail, as well as an article that explores possible scenarios -- quoting Jonathan Turley, a constitutional law professor at George Washington University Law School, as saying "It's going to be a long, hot summer." And one reads with a grimace references Noah Goldberg's thoughtful piece on the front page of the Times Magazine, "God's Country?", which speaks explicitly of the "O'Connor compromise" on church-state issues.)
And as Nina Totenberg just said on NPR. at 75 she's been "at the top of her game intellectually." But her husband is desperately ill, and she's making the kind of decision women who are responsible for their families do.
Speculation about her replacement already includes Alberto Gonzales, about whom I feel I have written as much as I can stand (here's my final stand on the eve of his confirmation hearings), seen by some nervous folks as ethnically appropriate and adequately vague on abortion. The thought of someone who cut his teeth trampling the constitutional rights of Texas' death row, going on to solicit opinions that could provide legal cover for torture becoming a Justice makes me physically ill.
Though in checking referrers just now, after the first time I threw up my response, I found someone searching for "Supreme Court" and "Royce Lamberth." Now that's an intriguing prospect, given that Lamberth has been the judge demanding justice for the plaintiffs in Cobell v. Norton.
Bush just issued a quick list of vague concepts about a replacement and shot out a demand for "a fair vote." If there was a need for the mother of all filibusters, any set of "extraordinary circumstances," this is it.
The post I was going to write was about Maher Arar, who wants the U.S. officials who kidnapped him and shipped him to Syria to be subject to Canadian criminal charges. The extradition battle alone will dominate the headlines, or should.
Meanwhile, Arar's suit against Gonzales and John Ashcroft may ultimately come to the Supremes this year; so may the ultimate constitutional challenge to the so-called Defense of Marriage Act and various challenges to the Patriot Act.
SCOTUSBlog gives this useful list of upcoming cases:
No. 04-623, Oregon v. Ashcroft – assisted suicide
No. 04-1084, Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal – religious use of drugs
No. 04-1152, Rumsfeld v. FAIR – military recruiting on campus and gay rights
No. 04-1144, Ayotte v. Planned Parenthood – abortion parental consent
No. 04-1244, Scheidler v. NOW – abortion protests
Given that last, and O'Connor's outstanding role in Casey, NARAL has plunged into the fray, and MoveON has a new ad (quicktime link) that focuses on Schiavo (which seems odd to me). The games have begun, indeed -- or rather, La commedia riprendere.
I'll let Arar have the last word for now: his question applies to so many of the questions that the Senators looking at the new justice need to keep in mind.
"Are there any controls on these people?" he asked, referring to authorities. "Is this the way to fight
terrorism -- by abolishing due process, by abolishing justice?"