Pubdate: Sat, 02 Jul 2005
Source: Rocky Mountain News (Denver, CO)
Copyright: 2005, Denver Publishing Co.
Contact:  http://www.rockymountainnews.com/
Details: http://www.mapinc.org/media/371
Cited: Gonzales v. Raich http://www.angeljustice.org
Bookmark: http://www.mapinc.org/topics/Raich (Gonzales v. Raich)

O'CONNOR'S EXIT GOOD FOR COURT

One Less Swing Voter

Supreme Court Justice Sandra Day O'Connor announced her retirement
Friday, setting the stage for what is likely to be high political
drama over the high court's future. But we won't be shedding any tears
at her departure.

When President Reagan nominated O'Connor in 1981, he described her as
"truly a person for all seasons, possessing qualities of temperament,
fairness, intellectual capacity and devotion to public good." After 24
terms on the bench, those accolades still hold true.

But the current court's recent decisions have all too often depended
on O'Connor's and Justice Anthony Kennedy's swing votes. Both lean
left on such controversial issues as church-state relations, racial
preferences and gay marriage. The result has been a court that has
failed to enunciate clear and principled positions. So the vacancy
allows President Bush to fulfill a promise he made to voters last year
to help craft a more intellectually coherent court.

When it comes to jurisprudence, O'Connor has been accused by some
conservatives of being "unreliable" for her 1992 vote to uphold the
Roe v. Wade decision legalizing abortion and other votes that curbed
the death penalty and upheld affirmative action. But to be fair, two
of her last decisions on the limits of government show her at her best.

In Raich v. Gonzales, the medical marijuana case, the court
essentially gave the federal government carte blanche to use the
Commerce Clause however it sees fit. In Kelo v. City of New London it
effectively ruled that that there are almost no limits on local
government power to expropriate private property. In both instances
O'Connor wrote stinging dissents.

Nevertheless, based on confusing split decisions in such cases as
Grutter v. Bollinger, it's easy to see why O'Connor has been accused
of succumbing to the influence of the political establishment. Writing
for the majority in Grutter, O'Connor allowed the court to badly
undermine the concept of equality before the law with its endorsement
of racial preferences at the University of Michigan's law school.

Likewise, she was the swing vote in the convoluted ruling that upheld
the McCain-Feingold campaign finance law, which in our view was a
direct assault by the court on the First Amendment right of free
speech. Unfortunately, part of her legacy now is an electoral process
held hostage to the deliberations of lawyers, judges and government
bureaucracies.

President Bush must nominate not only O'Connor's replacement but also
propose a replacement for Chief Justice William Rehnquist, whose
retirement is expected to come soon. Though the current court hardly
qualifies as "conservative" in the judicial sense, liberal groups were
out in force Friday warning the president of a fierce nomination
fight. "Most Americans want Supreme Court justices who are fair and
independent and are selected with the support of Senators from both
parties," said People For the American Way President Ralph G. Neas.

Yes. But as the last election showed, voters are also fed up with
judicial encroachments on their liberties. They also want a Supreme
Court that won't short-circuit the democratic process.
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MAP posted-by: Richard Lake