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Archive for Saturday, July 2, 2005

Justice O’Connor retiring from court

Lines already being drawn in battle over swing-voter’s seat

July 2, 2005

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Friday afternoon in Overland Park, a group of abortion-rights supporters gathered on Roe Avenue for a "Save Roe on Roe" rally.

Meanwhile, abortion foes accused the pro-choice crowd of going "completely overboard" and having a "panic-stricken attitude."

Already, the fallout was being felt in Kansas from the resignation of Supreme Court Justice Sandra Day O'Connor.

Observers here and across the country wonder who President George W. Bush will nominate to succeed her, what kind of political battle will ensue and whether the loss of O'Connor could lead to overturning the landmark Roe v. Wade abortion case.

"This is a situation where I think interest groups will be very attentive and engaged to look at the views of a successor," said Stephen McAllister, dean of Kansas University School of Law. "It's unfortunate that it becomes such a single-issue focus ... but abortion will be very important."

Counting justices

McAllister said one comfort for abortion-rights supporters was that there appeared to be a cushion on the court. A 6-3 majority, including O'Connor, is seen to support Roe v. Wade, the landmark 1973 ruling that the U.S. Constitution protects a woman's right to an abortion.

U.S. Supreme Court Justice Sandra Day O'Connor is shown before administering the oath of office to members of the Texas Supreme Court on Jan. 6, 2003, in Austin, Texas. O'Connor, the first woman on the Supreme Court and a swing vote on abortion, as well as other contentious issues, announced her retirement Friday.

U.S. Supreme Court Justice Sandra Day O'Connor is shown before administering the oath of office to members of the Texas Supreme Court on Jan. 6, 2003, in Austin, Texas. O'Connor, the first woman on the Supreme Court and a swing vote on abortion, as well as other contentious issues, announced her retirement Friday.

Losing O'Connor and replacing her with a Roe v. Wade opponent, McAllister said, would reduce the margin to 5-4 but wouldn't tip the balance.

And, he said, the anticipated retirement of Chief Justice William Rehnquist wouldn't change that equation. Rehnquist has long been an opponent of Roe v. Wade and is likely to be replaced by one, McAllister said.

O'Connor was seen as a powerful "swing vote" on the court. Though viewed overall as a conservative, she broke from the expected conservative position on high-profile issues, including abortion, affirmative action and the death penalty.

But overall, McAllister said, replacing her with a more reliably conservative justice wouldn't signal a dramatic shift on the court, given that O'Connor usually sided with Rehnquist.

"At some level, it's probably overblown, and I think there would have been a gearing up and a contentiousness even if it was the chief who was saying he was stepping down," he said.

Different interpretations

Mary Kay Culp, executive director of Kansans For Life, echoed that view.

"Nothing radical is going to happen as a result of this, I don't think," she said. "If our opponents are going to be screaming that this moves the country somehow toward an overturning of Roe v. Wade, that isn't technically true at this point."

Overturning Roe v. Wade wouldn't necessarily make abortion illegal, she said. Rather, it would push debate about the issue into state legislatures, where Culp said it belongs.

Peter Brownlie, president and CEO of Planned Parenthood of Kansas, called O'Connor a "reasonable and moderate voice" on the court, and said he feared that President Bush would try to replace her with a "hard-right" justice chosen in part because of his or her desire to overturn Roe v. Wade.

"We're calling on the president to appoint a fair-minded justice, to not employ a litmus test, but I'm not particularly hopeful he's going to make that kind of a decision," he said. "It is a serious issue, and all Americans - and particularly all women - ought to be deeply concerned."

Battle preparations

One interesting thing to note, McAllister said, was that O'Connor's resignation letter indicated she would stay until the confirmation of her successor. He said that appeared to leave open the option that, if the battle grew too heated, she could simply stay on the court.

Supreme Court Judge Sandra Day O'Connor, right, and Sen. Barry Goldwater, R-Ariz., talk prior to the start of her confirmation hearings before the Senate Judiciary Committee on Capitol Hill, Sept. 9, 1981. O'Connor, the first woman appointed to the Supreme Court, said Friday she is retiring.

Supreme Court Judge Sandra Day O'Connor, right, and Sen. Barry Goldwater, R-Ariz., talk prior to the start of her confirmation hearings before the Senate Judiciary Committee on Capitol Hill, Sept. 9, 1981. O'Connor, the first woman appointed to the Supreme Court, said Friday she is retiring.

"What she's doing, I think, makes it a little harder to sustain a filibuster with the notion that you're going to force the president to choose someone else," he said. "If it drags on a while, the court's still going to have nine members."

Kansas Republican Sen. Sam Brownback, a Senate Judiciary Committee member and vocal abortion foe, issued a statement saying he hoped the president would select "an individual who is faithful to the text of the Constitution."

One of abortion opponents' major arguments against the Roe v. Wade decision is, as Brownback put it in a speech last week, that the right to abortion has "no meaningful foundation in constitutional text, history or precedent."

Lawrence resident Sylvie Rueff, treasurer for the state and local chapters of the National Organization for Women, disagreed.

"I think a woman's right to decide about her own life, her own reproductive system, and her own future and the future of her family is an essential right," she said.

Tributes to justice

McAllister, a former law clerk at the Supreme Court, said he had contact with O'Connor but not extensively. He described her as an "elegant, imposing figure."

President Bush will nominate Sandra Day O'Connor's successor, who likely will face tough confirmation hearings.

President Bush will nominate Sandra Day O'Connor's successor, who likely will face tough confirmation hearings.

"She has a very strong gaze - she looks you directly in the eye - a firm handshake, somewhat formal, but very pleasant," he said.

Deanell Tacha, the Lawrence-based chief judge of the U.S. Court of Appeals for the 10th Circuit, said she had the chance to work with O'Connor through her involvement with the American Inns of Court, which promotes ethics and professionalism among attorneys and judges.

"She has been a very distinguished jurist, a really excellent representative of the American judiciary abroad," Tacha said. "She has been a spokeswoman for ethics and professionalism."

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