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Courts | A surprise retirement by the first woman to sit on the country's highest bench spells showdown for judicial conservatives and liberal activists

Issue: "Africa: The new frontier," July 16, 2005

Justice Sandra Day O'Connor's surprise decision to retire from the Supreme Court not only shocked legal experts who expected Chief Justice William Rehnquist to leave first, it snapped activists on both sides of the nation's cultural divide into action.

On the left, People for the American Way blasted 400,000 e-mails to supporters, urging them to contact U.S. senators and demand a moderate replacement.

On the right, the conservative Family Research Council hired three new lobbyists to work over senators during the confirmation battle. Progress for America blitzed cyberspace, sending an e-mail ad that reached 8.7 million inboxes, decrying the smear tactics Democrats plan to use against the eventual nominee. The ad was sent just 45 minutes following Mrs. O'Connor's announcement.

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Nan Aron, head of the liberal Alliance for Justice, told The Washington Post, "It's hard to overstate the stakes now with Justice O'Connor's resignation." Ms. Aron should know: She helped to spearhead a campaign to prevent Bush nominee Charles Pickering from taking a federal bench (see "Pickled Pickering," May 14).

And she's right. Mrs. O'Connor's departure from the Supreme Court gives President George W. Bush a sooner-than-expected opportunity to counter the leftward drift of the court for decades. Of course, altering the makeup of one branch of the government won't be easy, and Senate Democrats vow they'll stand in the breech. But while Senate liberals rattle their sabers, conservative interests are trying to make it clear that this is exactly the moment for which they elected Mr. Bush.

This was not the first vacancy many figured President Bush would fill. With Chief Justice Rehnquist's health deteriorating, most expected he would be the first to step down. Some even speculated it would be Justice O'Connor who would have been elevated into the Chief Justice role. If Mr. Rehnquist had been the first to leave, President Bush could have argued that replacing him with a steadfast conservative would not change the court dynamic at all. Chief Justice Rehnquist was one of two dissenters in the Roe v. Wade decision.

But it's Justice O'Connor, who was appointed by Ronald Reagan in 1981, who is stepping down. Some conservatives were quick to praise Justice O'Connor for her defenses of federalism, particularly in a recent decision giving local government the right to strip property owners of land if a commercial interest can produce a greater good. Justice O'Connor dissented vigorously in what Heritage Foundation legal expert Todd Gaziano called "a noble parting shot, which could well form the basis of a future opinion overturning that wrong-headed decision." She also sided with President Bush in ending the Florida recount during the 2000 election saga.

But the former Western ranch girl has been criticized by scores of conservatives for her support of Roe v. Wade and moderate positions on other social issues. "The Family Research Council often found itself on the opposite side of her most controversial decisions," FRC president Tony Perkins said.

Mark W. Smith, a legal expert and author of the New York Times bestseller The Official Handbook of the Vast Right Wing Conspiracy, says Justice O'Connor's departure gives the Republican president a unique opportunity to change the court's direction. Nominating and confirming a true conservative would give the court four committed conservatives, four committed liberals, and one left-leaning moderate in Justice Anthony Kennedy.

But he warns that Republican presidents have historically been very poor at choosing justices to strictly interpret the Constitution. After all, seven of the nine justices were Republican nominees. It was President Gerald Ford who nominated noted liberal Justice John Paul Stevens to the court. Mr. Bush's father, George H.W. Bush, put left-leaning David Souter on the bench.

"The history shows conservatives have got to do a better job in picking judges," Mr. Smith said. "If you pick anybody that you have any doubts about-a Souter, a Stevens, anybody-then there's a serious risk that they will evolve to the left," Mr. Smith said. "The time has come to stop making mistakes."


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