Friday, July 01, 2005

Oh, Sandy.... Why...Yi...Yi...Yiiiiii?

Sandy can't you see
I'm in misery
We made a start
Now we're apart
There's nothin' left for me
Love Has Flown
All alone
I sit... and wonder
Why - yi-yi-yi?
Oh why... you left me
Oh Sandy
Although I normally don't comment much on SCOTUS goings on (as you may have noticed by my lack of commentary on Kelo, the Ten Commandment Cases, and Grokster),1 I must admit, the resignation of Sandra Day O'Connor from the Supreme Court makes me sad.

First, no matter your feelings about her, she deserves her status as an iconic figure in American history. She's the first women to sit on the Supreme Court. On many controversial issues, she provided the much discussed "Swing Vote" that decided the issue, and for pretty much all of them, she made her decision with a good balance of legal, moral, and practical justification. When she was nominated by Reagan, the President said that she possessed "qualities of temperament, fairness, intellectual capacity and devotion to public good." When asked during her confirmation how she would like to be remembered, O'Connor replied "Ah, the tombstone question. I hope it says, 'Here lies a good judge.'"

Second, to me, O'Connor is one of the prime examples of what a judge should be. Yes, she didn't write her opinions with the sweeping prose you got from the likes of John Marshall and Oliver Wendell Holmes... but so what? She wasn't the poet laureate, she was a Justice of the Supreme Court of the United States. Yes, she didn't write with the "passion" of Scalia2. Yes, she wasn't as predictable as the Right Wing had hoped when the Reagan administration nominated her3. But, she clearly had as good of a legal mind as any of the justices (better than most in my opinion), and if it was hard to tell how she would come out... GOOD! A judge shouldn't be predictable, because every case if different, and a judge shouldn't make up his or her mind until the case has been heard. As the article said, "In court, O'Connor's demeanor is serious, studied, her questions spare and pointed..." While not flashy, O'Connor was a good judge.

Third, O'Connor was a wonderful voice of moderation on what has been a fairly divided court. Call her the fulcrum of the teeter-tooter between Scalia, Thomas, and Rehnquist on one side and Stevens, Ginsburg, Breyer, and Souter on the other (plus wherever the heck Kennedy decided to fall that day). I am convinced the Court avoided many rash decisions because her pragmatic approach cast the deciding vote. I am very concerned that the Bushies will not respect this type of moderation, but rather will try to pack on whatever ultra-conservative nut they can to swing the court into Anti-Roe land and please the Bible Belt. This is really what frightens me. I guess we'll have to see, and hope that if he does, the Senate wises up and says "No."

1This is mostly because I do not claim to be, nor do I wish to be, any kind of Constitutional expert. I did my year of time in the Con Law prison, and until the bar exam, I'm done with it.
2Of course by passion, I mean... well, the meanness and snarliness that drips from the pages of a Scalia opinion.
3Gasp! How dare she write an opinion that goes against our beliefs!


At 11:30 AM, Blogger capt yossarian said...

I'm inclined to agree with you on points 1 and 2, but "a wonderful voice of moderation"? I think not, though she certainly tried to portray herself as such.

At 10:55 PM, Blogger stephen said... weren't kidding about that not commenting on SCOTUS bit, were you. I think the first case you mentioned was actually Kelo, not Pelo. Anyway, congrats on making the law review.

At 9:20 PM, Anonymous Anonymous said...

Take a look at your first footnote from the Homeland Security post, and just repeat "but I can't really comment on what I don't know about" whenever you feel the need to post on SCOTUS. Your liberal rhetoric betrays your ignorance. Judicial and political conservatism are not necessary linked, and even overturning Roe would just put the issue in the hands of the public and of legislators who are politically accountable. In doing so, the Court would remove such a politically charged issue from a Court that ideally should be left out of issues that are so open to political lobbying. Since 7 of the current Justices were appointed by republican presidents, I think a better case can be made that republicans nominate individuals who are more likely to consider both sides of an issue and develop their own judicial philosophies. Plus, when you insult Scalia's intelligence, you sound like about as smart as Howard Dean at a DNC rally. Scalia's dissents will be remembered hundreds of years from now for their brilliance, wit, and foresight. I'm sure in hundreds of years, your first law review note will be remembered for wasting a tree.


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