by Donald Kaul

You know that liberalism in this country is at low ebb when
liberals go around mourning the loss of Sandra Day O’Connor on the Supreme
Court.

Not that Justice O’Connor was so awful. She was the deciding
vote in cases that upheld a woman’s right to abortion, ruled prayer at high
school graduations unconstitutional, struck down Nebraska’s ban on “partial
birth abortions,” upheld the use of race as a “plus factor” in college
admissions and held that the display of the Ten Commandments on courthouse
walls was unconstitutional. All of these are more or less the liberal position.

But let’s get real. She was a conservative. During her
nearly 24 years on the Court she voted with Chief Justice William Rehnquist
about 70 percent of the time in cases that were not unanimously decided. In
decisions that made conservatives hearts go pitty-pat she was the key vote in
upholding the use of publicly-financed vouchers for religious school tuition,
rejecting a constitutional basis for gay rights, allowing the Boy Scouts of America
to exclude homosexuals, striking down the Gun-Free Schools Zones Act and
refusing to rule that the death penalty was racially discriminatory.

And, most egregiously, she sided with the conservative (and
Republican) majority on the Court in stopping the Florida
recount in 2000, thereby handing the election to George W. Bush. It was one of
the Court’s worst decisions in recent decades, not quite up there with Dred
Scott (the one that, in effect, made the Civil War inevitable) but close.

Moreover, it violated the principles that members of the
conservative Court majority had espoused for years: a strict, narrow reading of
the Constitution and a bias toward federal deference to state authority.

Instead of leaving the Florida recount to be fought out by
the state Supreme Court and legislature, as the federalist principles they held
in such high regard demanded, the Supremes moved in and gave the game to Mr.
Bush.

How bad was the decision? So bad that no one in the majority
had the nerve to sign it. It also contained the proviso that it should not be
considered a precedent for any subsequent case. That bad.

Still and all, it can be said of Ms. O’Connor that she was
truly a remarkable woman. She graduated third in her class at Stanford law
school (not chopped liver) but was unable to get a high profile clerkship or a
job with a prestigious law firm because, well, she was a woman.

So, she got married, raised a family, entered public life
and became the majority leader of the Arizona Senate, the first woman in the nation
to hold such a post. She was appointed to the state appeals court by a
Democrat, then to the Supreme Court by Ronald Reagan as our first woman
Justice.

Her main strength, and one that argues for diversity on the
court, was that she brought to the Court the unique perspective of someone who
had been discriminated against because of her gender, yet one whose eventual
rise owed a great deal to affirmative action. (No Justice before her, all men,
had come to the court carrying such modest judicial credentials.) Both sides of
that seemingly contradictory personal history are reflected in her decisions.

And now liberals are sorry to see her go because they know
her successor will be much, much worse.

The name of Attorney General Alberto Gonzalez has
been put forward as a candidate and already right wing groups are forming
torchlight parades to protest his consideration because he isn’t conservative
enough.

Meanwhile, Democrats are forming ranks for a bloody battle
but the best they can hope for is a nominee who is very conservative but not
crazy. Federal Appeals Court Judge Harvey Wilkinson III would fill that bill,
but don’t hold your breath. The radical right likes crazy.

Fasten your seat belts, folks. It’s going to be a bumpy
ride.

________

Donald Kaul recently retired as Washington
columnist for the “Des Moines Register.” He has covered the foolishness in our
nation’s capital for 29 years, winning a number of modestly coveted awards
along the way. His column can be found weekly at MinutemanMedia.Org.

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