Practical Voice for Partisan Times

E. J. Dionne Jr editorializes in WaPo Barely an hour after Justice Sandra Day O'Connor had announced her resignation from the Supreme Court yesterday, the goal of all liberals and moderates was clear: To replace the retiring justice, President Bush should name someone just like her. From Democratic quarters, you could almost hear the orchestrated shouts of "We love Sandra." It's odd that O'Connor, in an instant, became a liberal hero. In many ways, she is the most profoundly conservative justice on the court. Cass Sunstein, a law professor at the University of Chicago, noted that she is a particular kind of conservative, an implicit follower of the philosopher Edmund Burke, "someone who likes tradition, respects incremental change, doesn't like revolution."

But what she did not understand is that changes in the law should come from the Legislature. The Legislature makes laws; the Judiciary should only apply the law made by the legislature, and then only as long as it agrees with the Constitution.

But the Burkean disposition is not what animates the political movement that now flies under the colors of conservatism. The judicial right is seeking anything but continuity. It wants a revolution of its own -- or perhaps a counterrevolution. And unlike O'Connor, who liked her decisions very particular, the new conservatives love sweeping abstractions. To them, a case-by-case approach is as unprincipled as it is unexciting.... The danger for moderates and liberals is not the end of liberal judicial activism -- those days are over -- but the onset of a new era of conservative judicial activism. You'll never know it in the commotion of the coming months, but the O'Connor succession fight is not primarily over Roe. The real battle is over whether new conservative judges will roll back the ability of elected officials to legislate in areas such as affirmative action, environmental regulation, campaign finance, and disability and labor rights.

It depends on which elected officals you are talking about. If you are talking about the Executive Branch (President, Governors, and Executive Branch agencies) their job is to enforce the law. If you are talking about Judicial branch (in states, where Judges are elected), their job is to apply the law and determine whether it is constitutional. If you are talking about the Legislative Branch (federal and state) then they are the ones to make law, whether in areas such as affirmative action, environmental regulation, campaign finance, and disability and labor rights, or other areas, and it the Judicial Branch determines their laws are unconstitutional, they are the ones to initiate changes to the constitution (which for states, usually requires the changes to be approved by the people, and for changes to the constitution requires approval by state legislatures)

That's why, to liberals, O'Connor now looks so good. She was sometimes wrong from their point of view, but she was not always wrong and she was not predictable. She was not a pioneer looking for some lost Constitution and she was not trying to make history by starting a new era of one sort or another. When she used the phrase "grand unified theory," it was to criticize it.

Hugh Hewitt blogged The fundamental dishonesty of the coming campaign from the left over the new nominee to the Supreme Court is demonstrated in E.J. Dionne's column in this morning's Washington Post.

Jack Cluth blogged It’s interesting that Liberals are suddenly hailing Sandra Day O’Connor for being such a brave defender of the Cause. O’Connor, over the course of her 24 years on the Supreme Court, has shown herself to be ANYTHING but a Liberal. She has fairly been described as someone who likes tradition, respects incremental change, doesn’t like revolution- not exactly the recipe for a bleeding heart Liberal. Of course, perhaps the biggest reason that Liberals are saddened over O’Connor’s resignation is that they fear who might come behind her. Given that George W. Bush will be making the selection, the fear that the Supreme Court will be saddled with a clone of Antonin Scalia is nothing to ignore. There is the very real possibility that Bush will put forth a solidly Right-wing, Social Conservative ideologue, which will only serve to further fuel the cultural war taking place in this country.

And which has resulted in the Dems losing the White House, the House of Representatives, and the Senate.

O’Connor, whose reasonableness and practicality was enough to anger both the Left and the Right, seemed to understand that it’s about the law, stupid.

It is about the law, and who makes the law. It is the job of the Legislature to make law. It is the job of the Judiciary to apply the law. Judges that want to make law should resign from the bench and run for the Legislature.

will probably be too much to expect O’Connor’s replacement, as well as activists on both sides, to keep that in mind. Of course, given the long-lasting impact that O’Connor’s replacement may well have on American law and society, this battle (and it can only fairly be described as nothing less) may well be one of the most important we face in our lifetime. George W. Bush has the opportunity to define himself and his Presidency with this choice. Is he the President of all Americans, or merely those far-Right Social Conservative White Christians who donate to Republican causes? Guess where I’m putting my money??

I am hoping it will be to please those that support him and what he is doing. Let me see, how much support is he getting from the left or the so called moderates?