REAGAN'S BIGGEST MISTAKE FINALLY RETIRES
July 6, 2005
The fundamental goal of the next Supreme Court justice should be to create a record that would not inspire Sen. Chuck Schumer to say, as he did of Justice O'Connor last week: "We hope the president chooses someone thoughtful, mainstream, pragmatic — someone just like Sandra Day O'Connor." That's our litmus test: We will accept only judicial nominees violently opposed by Chuck Schumer.
Showing what a tough job it is to be president, when Bush announced O'Connor's resignation, he called her "a discerning and conscientious judge and a public servant of complete integrity." I assume he was reading from the script originally drafted for Justice Rehnquist's anticipated resignation, but still, he said it.
Cleverly, Bush also made a big point of noting that Reagan appointed O'Connor, reminding people that whatever mistakes Bush may have made, at least he didn't appoint O'Connor.
It's hard to say which of O'Connor's decisions was the worst. It's like asking people to name their favorite Beatle or favorite (unaborted) child.
Of course, it was often hard to say what her decision was, period. In lieu of clear rules, or what we used to call "law," O'Connor preferred conjuring up five-part balancing tests that settled nothing. That woman could never make up her mind!
In a quarter-century on the highest court in the land, O'Connor will have left no discernible mark on the law, other than littering the U.S. Reports with a lot of long-winded versions of the legal proposition: "It depends."
Some say her worst opinion was Grutter v. Bollinger, which introduced a constitutional rule with a "DO NOT USE AFTER XXXX DATE." After delivering a four-part test for when universities are allowed to discriminate on the basis of race (a culturally biased test if ever there was one), O'Connor incomprehensibly added: "The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today."
So now constitutional rules come with expiration dates, bringing to mind the image of O'Connor proffering one of her written opinions to Justice Scalia and asking, "Does this smell bad to you?" Strangely enough, she failed to specify which month and day in the year 2028 that affirmative action would no longer be justifiable under the Constitution.
Others say her worst decisions came in the area of religion. In determining the constitutionality of religious displays on public property and government aid to religion, Justice O'Connor evidently decided she preferred her own words, "entanglement" and "endorsement," to the Constitution's word "establishment."
No one could ever understand O'Connor's special two-prong entanglement/endorsement test — including Justice O'Connor. Over the years, she struggled to resuscitate her own test by continually adding more tines to the prongs.
Among the tines to the "endorsement" prong is the "outsider" test, requiring that the government not make a nonbeliever feel like an "outsider." But wait! There are spikes on those tines!
O'Connor discovered a spike off the Feelings tine of the Endorsement prong, which requires the court's evaluation of the feelings of the nonbeliever to be based on a "reasonable observer" who embodies "a community ideal of social judgment, as well as rational judgment."
It's often said that O'Connor's problem is that she is not a judge, but a legislator. On the basis of her bright idea to replace 10 blindingly clear words in the Constitution ("Congress shall make no law respecting an establishment of religion") with a 40-page manual of flow charts and two-pronged, four-tined, six-spiked tests, she wouldn't have made much of legislator, either. O'Connor's real calling was as a schoolyard bully, maliciously making up rules willy-nilly as she went along.
Processing the religion cases through the meat grinder of her own multipart tests, O'Connor found it was unconstitutional for a Reform rabbi to give a nonsectarian prayer at a high school graduation. It was also unconstitutional for a courthouse in Kentucky to display a framed Ten Commandments along with other historical documents.
In the latter case, McCreary v. ACLU, O'Connor haughtily added this bit of advice to religious believers: Visionaries "held their faith 'with enough confidence to believe that what should be rendered to God does not need to be decided and collected by Caesar.'"
Religion may be able to get along without the government, but apparently sodomy and abortion cannot. Those, O'Connor found, were special rights protected by the Constitution.
O'Connor took sadistic glee in refusing to overturn Roe v. Wade in the face of the unending strife it has caused the nation. (And it hasn't been easy on 30 million aborted babies either.)
She co-authored the opinion in Planned Parenthood v. Casey which upheld Roe v. Wade, gloating: "(T)o overrule under fire in the absence of the most compelling reason ... would subvert the Court's legitimacy beyond any serious question." Yes, the court has really crowned itself in glory with those abortion decisions.
At least she would not overrule a precedent for something as trivial as a human life. Overruling a precedent would require a really, really compelling value like our right to sodomize one another.
Thus, in the recent sodomy case Lawrence v. Texas, which overruled an earlier case that had found no constitutional right to sodomy (risibly titled Bowers v. Hardwick), O'Connor specifically cited criticism of Bowers as a reason to overrule it. "(C)riticism of Bowers has been substantial and continuing," O'Connor explained in her concurrence. When "a case's foundations have sustained serious erosion, criticism from other sources is of greater significance."
Mercifully, O'Connor was concurring only in Lawrence, so there is no multipronged test for sodomy under the Constitution.
For all the blather about O'Connor's moderation and pragmatism and motherly instincts, Mommie Dearest signed on to the most monstrous opinion in the history of the court, Stenberg v. Carhart, which proclaimed a heretofore unnoticed constitutional right to puncture the skull of a half-delivered baby and suction its brains out — just as the framers so clearly intended.
In her 2003 memoir, Miss Pragmatic-Consensus wrote, "Humility is the most difficult virtue," which perhaps explains why she never attempted it.
Every human being on the globe has heard the lachrymose tale of O'Connor being offered the job of secretary after her graduation from Stanford Law School. Bushmen in Africa weep at the unfairness of it all — though not as bitterly as O'Connor does.
O'Connor spent the last quarter-century paying America back. With no offense intended to the nonbelievers who are "reasonable observers" embodying "a community ideal of social judgment, as well as rational judgment," thank God the punishment is finally over.
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