Sandra Day O'Connor: Worried about partisanship

Sandra Day O'Connor has been making her post-retirement victory lap--and a lump-throated, misty-eyed tour it has been. And in the time-honored tradition of "no tag-backs!"--a tradition even older than the Supreme Court itself--she is rediscovering her concern about the unwholesome effect of partisanship on the American judiciary.

At a recent scholarship luncheon in her honor, O'Connor took off on the theme. (Note: No transcript or recording of O'Connor's speech is available at the moment; this is a transcript of Nina Totenberg's NPR report, so it's unclear where O'Connor is being paraphrased and where she's being quoted--although listening to the three-minute story here gives a better sense of when Totenberg is probably quoting O'Connor--you can hear the "air quotes.")

The nation’s founders wrote repeatedly, [O'Connor] said, that without an independent judiciary to protect individual rights from the other branches of government those rights and privileges would amount to nothing. But, said O’Connor, as the founding fathers knew statutes and constitutions don’t protect judicial independence, people do.

And then she took aim at former House GOP leader Tom DeLay. She didn’t name him, but she quoted his attacks on the courts at a meeting of the conservative Christian group Justice Sunday last year when DeLay took out after the courts for rulings on abortions, prayer and the Terri Schiavo case. This, said O’Connor, was after the federal courts had applied Congress’ onetime only statute about Schiavo as it was written. Not, said O’Connor, as the congressman might have wished it were written. This response to this flagrant display of judicial restraint, said O’Connor, her voice dripping with sarcasm, was that the congressman blasted the courts.

It gets worse, she said, noting that death threats against judges are increasing. It doesn’t help, she said, when a high-profile senator suggests there may be a connection between violence against judges and decisions that the senator disagrees with. She didn’t name him, but it was Texas senator John Cornyn who made that statement, after a Georgia judge was murdered in the courtroom and the family of a federal judge in Illinois murdered in the judge’s home. O’Connor observed that there have been a lot of suggestions lately for so-called judicial reforms, recommendations for the massive impeachment of judges, stripping the courts of jurisdiction and cutting judicial budgets to punish offending judges. Any of these might be debatable, she said, as long as they are not retaliation for decisions that political leaders disagree with.

I, said O’Connor, am against judicial reforms driven by nakedly partisan reasoning. Pointing to the experiences of developing countries and former communist countries where interference with an independent judiciary has allowed dictatorship to flourish, O’Connor said we must be ever-vigilant against those who would strongarm the judiciary into adopting their preferred policies. It takes a lot of degeneration before a country falls into dictatorship, she said, but we should avoid these ends by avoiding these beginnings.

As philinmaine points out, this is pretty strong stuff--the "D-word" trumps even the "I-word" in the mainstream's oppositional lexicon. And I couldn't agree with her more--an independent and robust judiciary is the main line of defense against authoritarian rule of the kind to which our nation was founded in opposition.

Still, one can't help wishing she'd found her scruples about separating partisan politics from the judiciary a little bit sooner--say, about five years earlier:

Chief Justice William Rehnquist, 76 years old, and Justice Sandra Day O'Connor, 70, both lifelong Republicans, have at times privately talked about retiring and would prefer that a Republican appoint their successors. . . . Justice O'Connor, a cancer survivor, has privately let it be known that, after 20 years on the high court, she wants to retire to her home state of Arizona . . . . At an Election Night [2000] party at the Washington, D.C., home of Mary Ann Stoessel, widow of former Ambassador Walter Stoessel, the justice's husband, John O'Connor, mentioned to others her desire to step down, according to three witnesses. But Mr. O'Connor said his wife would be reluctant to retire if a Democrat were in the White House and would choose her replacement. Justice O'Connor declined to comment.

In a story published the following day, Christopher Hitchens, the United States correspondent for the Evening Standard of London, wrote that "O'Connor . . . has allegedly told her friends and family that she wishes to retire from the Court but won't do so if there is to be a Democratic president to nominate her replacement." Helen Thomas, a nationally syndicated columnist, wrote that "[t]he story going around [Washington] is that a very upset Justice Sandra Day O'Connor walked out of a dinner party on election night when she heard the first mistaken broadcast that Vice President A Gore had won. The ailing O'Connor apparently wants to retire, but not while a Democrat is in the White House and could pick her successor." Various parts of this story were repeated in a number of publications.

O'Connor voted with the conservative majority in Bush v, Gore, the 2000 decision ending the vote recount in Florida and effectively awarding the presidential election to George W. Bush, who nominated conservative justice Samuel Alito as her replacement.