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Archive for Tuesday, September 20, 2005

O’Connor may still offer tie-breaking votes

September 20, 2005

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— Her legacy not yet sealed, Justice Sandra Day O'Connor is getting an unexpected final chance to select fights for the Supreme Court to take on and to influence colleagues in abortion, capital punishment and assisted suicide cases.

O'Connor's delayed retirement leaves in place - at least for a couple of months - a power broker, popular and respected among the other justices.

Her trademark pragmatic questions will shape court argument sessions that begin in two weeks. Behind-the-scenes, she will help put together the court's 2006 agenda, which could include a challenge to the Bush administration's planned military tribunals for terror suspects.

"I don't believe she's a lame duck," said Artemus Ward, a political science professor at Northern Illinois University. "She'll exercise her authority and be counted."

O'Connor and her colleagues had thought the term would begin Oct. 3 without her.

At President Bush's request, she postponed her departure following the death this month of her longtime friend and former law school classmate, Chief Justice William H. Rehnquist.

Her temporary status still may lead to some 4-4 votes, delaying decisions in those cases.

"It will be a little weird for the other justices," said Geoffrey Stone, a law professor at the University of Chicago. "They've psychologically put her off the court."

The 75-year-old is expected to sit on the bench for the opening week, which includes arguments on assisted suicide and the rights of disabled school children. She appears prepared to stay awhile, rehiring a previous law clerk so she will have four young attorneys to help with the load.

She's still leaving, but it is not known when Bush will reveal his choice of a successor, or how long the confirmation will take. The president plans to meet Wednesday with Senate leaders to discuss the seat.

Appeals court Judge John Roberts, Bush's nominee for chief justice, is expected to be voted on Thursday in the Senate Judiciary Committee, and the full Senate should take up the nomination next week.

Roberts will not be confirmed in time, however, to take part in a private meeting next Monday, when nearly 2,000 appeals are to be discussed. As the court member second in seniority, O'Connor will speak second as justices decide which of those cases to review. Action on contested cases may be delayed until the court has its full complement of nine members.

After oral arguments in individual cases, O'Connor still will get to present her side and vote during conferences, private meetings open only to the justices.

Cases in which O'Connor would be the tie-breaking vote could be held up by opposing justices. Or, to avoid that situation, O'Connor might decline to break deadlocks. Cases with a 4-4 outcome would require a new argument session so the new justice could participate.

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