Bloomberg News - Justice O'Connor's Retirement Will Touch Off Battle Over Her Successor

July 2, 2005
by Greg Stohr, Washington

July 2 (Bloomberg) -- Justice Sandra Day O'Connor's announcement that she will step down from the U.S. Supreme Court, after weeks of speculation that focused on Chief Justice William H. Rehnquist, surprised even her son.

"Today caught me a little off-guard,'' Phoenix businessman Scott O'Connor said in an interview.

Still, conservative and liberal interest groups didn't miss a beat in preparing for a contentious Senate fight to confirm the replacement for the first woman to serve on the court. President George W. Bush's appointee, his first to the court, will succeed a justice who held a pivotal vote on abortion rights, affirmative action and the role of religion in public life.

"This is a very polarized country when it comes to the issues which will come to the Supreme Court,'' said Pennsylvania Senator Arlen Specter, a Republican, who will preside over the confirmation hearings as Judiciary Committee chairman. Bush's nominee "could produce more controversy,'' he said.

O'Connor's departure, which she said would occur upon Senate confirmation of her successor, is the first since 1994 when Harry Blackmun left the high court and was replaced by Stephen Breyer. Not since the 1987 retirement of Lewis Powell has a vacancy created the potential to influence the outcome of decisions to this extent.

A Generation Ago

Eighteen years ago, the Democrats controlled the Senate and defeated President Ronald Reagan's choice of Robert Bork to succeed Powell. Reagan finally settled on Anthony Kennedy, who has voted on the court in favor of gay rights and death-penalty limits. With O'Connor gone, he will be the key swing vote in many cases involving social issues.

While O'Connor's son was caught unawares, the White House wasn't completely unprepared for her departure. After drawing up a list of possible replacements for Rehnquist, Bush's advisers began reviewing the opinions of several women on federal appeals courts after getting an inkling several weeks ago that O'Connor might retire, said a person familiar with the search.

Among the federal judges being considered are Karen Williams of the 4th U.S. Circuit Court of Appeals based in Richmond, Virginia, Edith Clement of the 5th Circuit in New Orleans and Susan Black of the Atlanta-based 11th Circuit, the person said.

The debate over O'Connor's replacement "will be a serious engagement,'' said Jay Sekulow, chief counsel to the American Center for Law and Justice in Washington, which has collected $2.5 million to help finance advertisements supporting Bush's nominee. At stake "is the direction of the court because O'Connor was such a pivotal vote.''

Among the Favorites

Appellate court judges John Roberts and J. Michael Luttig are among those being considered to succeed Rehnquist and probably remain high on the list, legal scholars and court observers say.

Rehnquist hasn't made any public statements about his plans.

O'Connor's retirement may boost the prospects of Attorney General Alberto Gonzales, who has angered some conservative Republicans because he voted to uphold a Texas law allowing teen- age girls to obtain abortions with court approval when they don't want to tell their parents.

"Gonzales has a special place on the list as people keep saying, 'There is Gonzales and there is everyone else,' clearly because he has a relationship with Bush,'' said Manuel Miranda, head of the Third Branch Conference, a Washington group that advocates for judicial conservatives.

Gonzales, who served as Bush's counsel when he was Texas governor, came to Washington to be the president's White House counsel.

Conservative Pressure

Bush will face pressure from conservative groups to name someone who fulfills his re-election promise to name judges who don't legislate from the bench. Yesterday, in what sounded like a warning to Democrats not to filibuster his nominee, Bush called for a "dignified'' and "fair'' debate on O'Connor's replacement.

A filibuster, or unlimited debate, is a tactic used to block Senate confirmation of judges. It requires 60 votes to overcome, and Republicans control the Senate 55-45.

The White House said Bush won't pick a replacement for O'Connor until he returns July 8 from the Group of Eight summit of industrial countries in Scotland.

Bush has pointed to Justices Antonin Scalia and Clarence Thomas, two of the Supreme Court's most conservative members, as models for future appointees.

"Justice O'Connor's resignation gives him the opportunity to fulfill this promise he has made to the American people, and I'm confident he will do just that,'' Wendy Long, legal counsel to the Judicial Confirmation Network in Alexandria, Virginia, said in a statement.

Facing Opposition

Nan Aron, director of the Alliance for Justice, a liberal Washington-based advocacy group that opposed many of Bush's lower- court nominees, said Bush could avoid a fight if he seeks a consensus candidate by consulting Democrats.

The president "will ignite a firestorm of opposition'' by nominating someone who "could take the court in a radical right direction jeopardizing much of the progress made in civil rights and women's rights,'' she said.

Senator John Warner, a Virginia Republican, said Bush's choice "gives him an opportunity to be a uniter not a divider.''

Senator Edward M. Kennedy, a Massachusetts Democrat, warned: "If the president abuses his power and nominates someone who threatens to roll back the rights and freedoms of the American people, then the American people will insist that we oppose that nominee, and we intend to do so.''

Activist Groups

Senator Jeff Sessions, an Alabama Republican whose own nomination to the federal bench was rejected by the Senate in the 1980s, said Democrats would be punished at the polls if they allow "hard-left activist groups'' to "poison'' the debate by distorting the views of Bush's nominee.

"I believe the American people share the president's concern about an activist judiciary, and those who block a good, solid judge, who understands his or her role, will have to pay a price for that,'' Sessions said in an interview.

In a letter to Bush released today by the court, O'Connor said, "It has been a great privilege, indeed, to have served as a member of the court for 24 years. I will leave it with enormous respect for the integrity of the court and its role under our constitutional structure.''

Supreme Court spokesman Kathy Arberg said O'Connor has said "she wants to spend more time with her husband,'' John O'Connor. The former trial lawyer is suffering from Alzheimer's disease.

"His health isn't great, and that may have been a factor in the decision Mom made,'' Scott O'Connor said.

The White House got the first solid indication of a vacancy two days ago when the Supreme Court's marshal told White House counsel Harriet Miers that the court would deliver something to the president's office yesterday, White House spokesman Scott McClellan said. Bush learned shortly after 9 a.m. yesterday that a letter from O'Connor was on its way to the White House, he said.