Bush to fill high court spot quickly

Saturday, July 2, 2005

WASHINGTON -- When Sandra Day O'Connor graduated from Stanford Law School a half-century ago, women weren't always welcome in top legal jobs. The self-described "cowgirl from Arizona" eventually lassoed one, though -- first female justice on the Supreme Court.

On Friday, O'Connor retired, 24 years after Ronald Reagan secured her place in history. Along the way, she became the anchor of a shaky majority for abortion rights, an issue of such abiding controversy that it virtually guarantees a fierce confirmation fight for President Bush's pick to replace her.

O'Connor's decision to retire created the first vacancy at the high court in 11 years, and marked the departure of the justice who had become the majority maker in a stream of 5-4 cases covering abortion, affirmative action, the death penalty and more over a quarter-century.

Bush, under pressure from some conservatives to name an outright foe of abortion, said he would appoint a successor who "will faithfully interpret the Constitution and laws of our country." He said he would make his selection in time to have a full court in place before the new term opens in October.

"The nation also deserves a dignified process of confirmation in the United States Senate," he added.

Sen. Arlen Specter, R-Pa., chairman of the Judiciary Committee that will hold hearings on Bush's candidate, said he doubted there would be a filibuster.

Democrats said that was up to Bush. "Above all, Justice O'Connor has been a voice of reason and moderation on the court," said Senate Democratic Leader Harry Reid of Nevada. "It is vital that she be replaced by someone like her."

O'Connor, 75 and a breast cancer survivor, kept her retirement a surprise even from her son, and it was not until Friday morning that she dispatched her letter, hand-delivered to the president.

It seemed to catch Bush's team off guard. The president and his staff had long been anticipating a retirement letter from Chief Justice William Rehnquist, 80 and ailing with thyroid cancer.

The Rehnquist guessing game continued. "If we haven't heard from him by now, the chances are you won't hear from him for some time," predicted Specter. The last time there were two simultaneous vacancies at the court was 1971; Rehnquist was picked for one of them.

Whatever the chief justice's plans, the short list of contenders, exclusively male, may have to be expanded in view of O'Connor's retirement, according to one White House official. That officials spoke only on condition of anonymity because of the sensitivity of the discussions.

Speculation has included Attorney General Alberto R. Gonzales and J. Michael Luttig, John Roberts, Samuel A. Alito Jr., Michael McConnell, Emilio Garza and James Harvie Wilkinson III, all federal appeals court judges.

O'Connor's decision capped a pioneer's career. President Reagan broke nearly 200 years of tradition in 1981 when he named her -- a top-ranked graduate of Stanford law school -- as the first woman to wear the robes of a justice.

"As the first woman to be appointed to this court, Sandra Day O'Connor was thrust into the spotlight as no new justice has ever been," Justice Antonin Scalia said in a written statement issued by the court.

Aware by her own account of the historical burden, she evolved into a moderate conservative, but more importantly, the consistent center of a fractured court.

In her first term, she cast the deciding vote and wrote a 5-4 ruling that said a Mississippi all-women college must allow a male student to study nursing.

It was the first of many such cases.

She voted with the majority on three significant 5-4 cases in recent years: the disputed 2000 presidential election that went to Bush, a 2003 decision that upheld an affirmative action program at the University of Michigan law school and a ruling last year that said the war on terrorism did not give the government a blank check to hold terror suspects in legal limbo.

Nowhere was her legal thinking more carefully scrutinized than when it came to abortion, an issue that divides the court as it does the country.

O'Connor balked at letting states outlaw most abortions, refusing in 1989 to join four other justices who were ready to reverse the landmark 1973 decision that said women have a constitutional right to abortion.

In 1992, she helped forge a five-justice majority that reaffirmed the core holding of the 1973 ruling. Then, in 2000, she provided the fifth and decisive vote that struck down a Nebraska law that was aimed at banning a procedure critics call "partial-birth abortions."

In her opinion, she wrote that to be constitutional, a ban must include "an exception to preserve the life and health of the mother."

Last week, she sided with a 5-4 majority in a ruling that threw out the sentence of a death row inmate and warned state courts that shoddy legal defense representation wouldn't be tolerated.

She expressed her views tartly at times.

Last week, in a dissent to a 5-4 ruling that let local governments take personal property to build malls and other businesses, she wrote that the majority had unwisely handed more power to the powerful.

"The specter of condemnation hangs over all property," O'Connor wrote. "Nothing is to prevent the state from replacing ... any home with a shopping mall, or any farm with a factory."

Alone among the current justices, O'Connor ran for office. In 1975, she was elected judge of the Maricopa County Superior Court. She served until 1979, when she was appointed to the appellate bench in Arizona. Reagan named her to the high court two years later, and she won Senate confirmation unanimously.

In a one-sentence written statement on Friday, O'Connor cited her age and said she "needs to spend time" with her family.

Her official resignation letter was brief.

"It has been a great privilege indeed to have served as a member of the court for 24 terms," the 75-year-old justice wrote to Bush. "I will leave it with enormous respect for the integrity of the court and its role under our constitutional structure."

"For an old ranching girl, you turned out pretty good," Bush told her in a private call not long after receiving her letter, an aide said.

Then, in the Rose Garden outside the Oval Office, he praised her as "a discerning and conscientious judge and a public servant of complete integrity."

Lawmakers in both parties hastened to praise her, often taking note of her place in history. "She has been a wonderful role model for girls," said Sen. Kay Bailey Hutchison, R-Texas.

In a Senate that narrowly avoided a meltdown over judicial nominations earlier in the year, much of the speechmaking seemed framed by the coming confirmation struggle.

"America needs judges who are fair, independent, unbiased and committed to equal justice under the law," said Majority Leader Bill Frist, R-Tenn. "I look forward to working with my colleagues to ensure a fair confirmation process in the Senate that will ensure the Supreme Court is at full strength to start its next term in October.

Liberal Democrats said they understood Bush would name a conservative, and signaled a willingness to go along, up to a point.

Sen. Edward M. Kennedy, D-Mass., said he hoped Bush would name a replacement who was a "a conservative ... who is in the mainstream of judicial thinking."

The remark stirred echoes of Democratic filibusters against several of Bush's appeals court nominees whom Democrats had attacked for years as outside the mainstream.

Partisans on both sides have been preparing for a vacancy for months. Given her opinions on abortion, O'Connor's decision to step down raised the stakes for partisans on both sides of the issue.

Senate aides of both parties held strategy meetings during the day.

Republicans were instructed to say Bush's choice deserved an "up or down vote," and that no litmus test should be applied, whether on abortion or any other issue.

Bush pledged to consult with Senate leaders. He later talked with Frist, Specter and Sen. Pat Leahy, D-Vt., the senior Democrat on the Judiciary Committee.

Officials said they expected the Judiciary Committee to hold hearings three to six weeks after Bush submits a nomination, perhaps beginning in August when Congress is customarily gone.

Three to five days of testimony are likely, during which the panel would hear from the nominee as well as outside interest groups both for and against him or her.

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