Last night, while lecturing my class of aspiring paralegals on the judicial branch, we talked about Supreme Court vacancies. I pointed out that I had expected to have one earlier in the week, and that I saw every reason for there to be one by the end of the course (July 14), if not by the time they have their next test (July 5). I noted that it was very likely that we might be surprised by the announcement -- and pointed out that there have been rumblings that Justice O'Connor might be the retiree. Little did I know that it would be only a bi more than tweleve hours before that very scenario would come to pass.

Supreme Court Justice Sandra Day O'Connor (search), the first woman to serve on the nation's highest court, submitted a letter of retirement to President Bush on Friday, setting the stage for a contentious battle over her replacement.

O'Connor — who often provided the deciding, or swing, vote in Supreme Court decisions — will step down from the bench upon the appointment of her successor.

"It has been a great privilege indeed to have served as a member of the court for 24 terms," O'Connor wrote in the one-paragraph resignation letter. "I will leave it with enormous respect for the integrity of the court and its role under our constitutional structure."

She told the president and associates that she wanted to spend more time with her family. Her husband has been in failing health in recent years.

On one level, I am sorry to see her leave the bench. As a moderate/conservative justice, she has more often voted in ways I have liked than in ways I have disliked. When she has written opinions, they have been good with flashes of brilliance. My major complaint, though, is that I never felt like she was operating out of a sense of legal principle, in the manner of justices like Scalia and Thomas, or even Ruth Bader Ginsburg. I could never locate that nugget of core belief within her jurisprudence that separates a great justice (Story or Douglas, for example) from one who is merely good.

As to the question of who should replace Justice O'Connor, I have some thoughts. While there will be pressure to appoint a woman to replace her, I don't know that keeping hers reserved as a "woman's seat" is necessarily an overriding considerationg. I expect that we may see another minority -- perhaps Judge Garza of the Fifth Circuit -- placed on the court instead. If this is to remain a "woman's seat", look for the nomination of Judge Edith Brown Clement or Judge Edith Hollan Jones of the Fifth Circuit. I think the long filibuster of two highly qualified appellate judges, Janice Rogers Brown and Priscilla Owen, make them impossible nominees right now. Don't be surprised, though, if a US Senator is nominated, as they generally are easily confirmed by their colleagues. Definitely out, though, is Alberto Gonzales, as the GOP base is agaainst him.

I'm guessing a nomination will come in about a week -- and possibly two, if the Chief Justice decides to follow O'Connor's lead in departing the Court at this time.

Posted by: Greg at 06:47 AM | Comments (3) | Add Comment
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