The mainstream media's praise of Sandra Day O'Connor isn't really about O'Connor.
It's about settling scores with conservatives.
The mainstream media spent last week bashing Henry Kissinger, a brilliant man who fought unapologetically for America’s interests as he (mostly correctly) perceived them. Meanwhile, the mainstream media spent the latter part of the week lionizing Sandra Day O’Connor, who was an important Supreme Court Justice but not an outstanding one, in my opinion.
This Washington Post editorial is called (in the paper edition) “Justice O’Connor, a trailblazer whose path is being erased.” It praises O’Connor for being a “centrist,” and complains (as O’Connor reportedly did late in her life) that her centrist legacy is being “undone.”
I can understand why O’Connor is complaining. What judge would want to see part of her jurisprudence overturned?
But the Post’s complaint is hypocritical. Does anyone believe the Post would be squawking if cases in which O’Connor provided the deciding vote, but that went the conservatives’ way, were swept aside by a left-liberal court? I don’t.
The Post mentions only two cases: Grutter, in which O’Connor, writing for the majority, upheld racial preferences in a law school admissions case, and Casey, in which O’Connor cast the vote that saved Roe v. Wade for years.
It’s interesting to see the Post complaining that Grutter has been “undone.” O’Connor’s opinion predicted that the need for race-based preferences to assure “diversity” would probably expire within 25 years. We don’t know whether, if that didn’t happen (and it hasn’t), she wanted preferences upheld indefinitely.
Some of the praise for O’Connor points out that she was the rare Justice in modern times who had experience in a legislature. Passing a law with a sunset provision is something a wise legislator might do. Hinting at an expiration date for a Supreme Court decision seems like another matter.
Anyway, splitting the baby, as O’Connor tended to do in controversial cases, isn’t the way to build a lasting jurisprudential legacy. Compromises designed to win the votes of fellow Justices or to kick the can down the road tend not to endure for as long as more principled rulings.
As for Casey, this isn’t the place to debate the Court’s abortion jurisprudence. It' seems ironic, though, that given O’Connor’s background as a state legislator, she would be the deciding vote upholding severe restrictions on what states can legislate in this area.
The Post approvingly quotes this statement from a 2003 O’Connor essay: “Rare indeed is the legal victory — in court or legislature — that is not the careful byproduct of an emerging social consensus.” Roe v. Wade was not such a legal victory.
Neither, in my view, was Casey. And social consensus is better reflected in legislative outcomes and voter referenda than in court cases where unelected judges discover new constitutional rights and then reaffirm them.
Today, Evan Thomas has an op-ed in the Post claiming that “the keys to O’Connor’s power were civility and self-restraint.” No. The key to her power was that, for a time, she found herself with four Justices to the right of her and four to the left. Assuming (as I do) that O’Connor was calling them as she saw them, that position and the power it brought were happenstance.
Ruth Marcus also has a glowing op-ed piece about O’Connor in today’s Post. It may be that Marcus wrote the editorial I discussed above. In any case, her op-ed is marred by the same hypocrisy.
Marcus praises O’Connor for her “pragmaticism” which “stands as a sharp rebuke to ideology.” Marcus adds that non-ideological judging is “sorely missing from the current Supreme Court.”
She may be right. Certainly, ideology (as Marcus understands the term) plays a big role in the judging of the three liberals on the current Court. To my knowledge, Marcus has never criticized any of them for it.
Marcus complains that Don McGahn, who helped Donald Trump pick Supreme Court nominees, instructed staff that “there can never be another Sandra Day O’Connor.” Marcus interprets this directive to mean “no judges without significant paper trails.”
What’s wrong with that? Given the immense power of the Court and the life-tenure of its Justices, it seems more than reasonable that we should have a clear understanding of how a nominee decides cases and views the Constitution. A significant paper trail is by far the best why to arrive at that understanding.
Here’s my question, though. When was the last time a Democratic president nominated a centrist like O’Connor? The other centrists Marcus mentions — Lewis Powell, Anthony Kennedy, and David Souter (actually a liberal) — all were nominated by Republican presidents. So were John Paul Stevens and Harry Blackmun. So was O’Connor herself.
I’d say the last time a Democrat nominated a centrist was in 1962, when John Kennedy nominated Byron White. There’s a case, I acknowledge, that Homer Thornberry, nominated for the high court by Lyndon Johnson but never confirmed, was a centrist. That nomination occurred in 1968.
Has Marcus ever criticized Democratic presidents for not nominating Justices like Sandra Day O’Connor? Has the Post? I don’t think so.
In sum, the mainstream media’s celebration of Justice O’Connor seems largely insincere — an attempt by the left to use her death to score points against conservative Justices and Republican presidents who (sometimes) nominate them. In that sense, the mainstream commentary on O’Connor is similar to the commentary on Kissinger. Both are about settling scores, not honestly assessing these two public figures.
O'Connor was pretty good on the death penalty. In Roper v. Simmons, an Anthony Kennedy special, she wrote the dissent from the holding that there can be no capital punishment for a person who commits his murder before he's 18. She started her dissent (joined by Rehnquist, Scalia and Thomas) by noting, "The Court's decision today establishes a categorical rule forbidding the execution of any offender for any crime committed before his 18th birthday, no matter how deliberate, wanton, or cruel the offense. Neither the objective evidence of contemporary societal values, nor the Court's moral proportionality analysis, nor the two in tandem suffice to justify this ruling. "
I'm just guessing that the Lefties at the Post swept O'Connor's views in that case under the rug.
What passes for jurisprudence these days is basically literary criticism that has a palpable impact on the real world. She was not regarded as an unusually distinguished jurist.
As for being a swell individual: Since her passing, I've heard one story of a judicial encounter with her here in Arizona, and one personal one. They reflect rather poorly on her.
But I still want her to Rest in Peace.