The retirement of U.S. Supreme Court Associate Justice Sandra Day O’Connor sets the stage for what is almost certain to be the most closely watched — and may be the most contested — judicial confirmation process in the nation’s history. The reason is really quite simple. Both sides in the nation’s current culture war know that this is the moment of maximum opportunity. The forces who support and demand judges who will use the bench to legislate a liberal agenda on moral issues know that the nation at large would never support their worldview and ideological positions. Therefore, they have depended on a corps of dedicated judicial activists to push their agenda through the courts.
Conservatives, on the other hand, know that stopping this trend of judicial activism will require a different judicial philosophy than that represented by Justice O’Connor. Often referred to as the single most powerful office holder in the nation, Justice O’Connor frequently served as the crucial fifth vote in some of the court’s most controversial decisions.
This is hardly what was expected when President Ronald W. Reagan nominated her to the high court in 1981, replacing Justice Potter Stewart. Though Justice O’Connor never functioned as a predictably liberal member of the court, in the end she often served as the swing vote that gave the liberal wing just what it needed — one more vote.
This is how The New York Times described her role: “Since joining the court in 1981, replacing Justice Potter Stewart, Justice O’Connor has been at the very center of the court in almost every sense, and has held or helped define the balance of power on many of the issues of broadest concern to the nation, including affirmative action, the death penalty and religion. But it was her stance on abortion, and in particular her role in reaffirming Roe v. Wade, the landmark 1973 ruling that put the court on the side of abortion rights, that put her most squarely in the middle of culture wars that have increasingly dominated not just the courts but political discourse in general. Replacing her with an opponent of abortion rights would not by itself be enough to overturn Roe v. Wade; it would take a shift of two votes in the court’s current composition to do so. But it would change the balance of power on the court when it comes to lesser restrictions on abortion, such as bans on the procedure its opponents call partial-birth abortion, and it would move the court that much closer to overturning Roe, the long held goal of many social conservatives.”
Both sides are getting ready for a battle. The major media have been reporting on this event and its meaning all day, with news articles, analysis, and reports readily available. For documentation, see Justice O’Connor’s resignation letter to President Bush, President Bush’s comments in response to the letter.
R. Albert Mohler Jr.
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