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The San Francisco Chronicle
Jul 02, 2005

by John Wildermuth, Chronicle Political Writer

Worries over successor mix with words of praise

Progressive groups, feminists and liberal activists praised retiring Justice Sandra Day O'Connor with surprising fervor Friday, their respect for the Arizona jurist heightened by concerns about whom President Bush may select to replace her.

Born to a ranching family in 1930, O'Connor's background as a volunteer in Barry Goldwater's 1964 presidential campaign, a Republican state senator and an appointee of President Ronald Reagan marked her as anything but a liberal. But her retirement eliminates one of the Supreme Court's few remaining centrists and opens the way for a divisive national battle for control of the high court.

"None of us in the advocacy community have been pleased with all her decisions," said Kate Michelman, president emeritus of NARAL Pro-Choice America. "But she has been pivotal in protecting the rights and liberties of Americans."

In the Supreme Court term that ended this week, O'Connor was in the majority in 17 of the 21 5-4 decisions that came down, said Charles Whitehead, a law professor at the University of Southern California who writes an annual review of Supreme Court cases.

"Justice O'Connor sits at the very middle of the court," he said. "The court will miss her common-sense and case-by-case approach."

Even the losing side of a Supreme Court case felt that it received a fair hearing from O'Connor in a court that has had an increasingly partisan division.

"She has been the fifth vote on many, many difficult issues," said David Bookbinder, senior attorney for the Sierra Club. "It's not uncommon for attorneys to write their briefs aimed directly at O'Connor or (Justice) Anthony Kennedy, since it's pretty clear where the other seven justices will stand."

Abortion rights supporters had the most immediate concerns because O'Connor had been a reliable, though nuanced, vote to preserve the right to an abortion. In June 2000, for example, she was part of a narrow majority that struck down a Nebraska law that banned late-term abortions. In 1992, O'Connor upheld the Roe vs. Wade decision, although she allowed some state restrictions on abortions.

"Since 1992, she has voted to protect a woman's reproductive health," said Nancy Northup, president of the Center for Reproductive Rights. "We're intensely concerned about who might replace her."

"O'Connor offered fairness and equity, whether the decision could be dubbed conservative or not," said Jamie Court of the Foundation for Taxpayer and Consumer Rights in Santa Monica. "When there was a case of a company overreaching, she was a swing vote to send the message that fairness was necessary in business."

Other interest groups are eager for Bush to appoint a justice who is more reliably conservative. Judicial Watch, which bills itself as a legal and ethical watchdog over the courts, called O'Connor's resignation "a chance for a return to a Supreme Court that is less activist on behalf of liberal values," while James Dobson of the group Focus on the Family said it was a chance "to change the court's direction" and appoint a justice "who will interpret the Constitution as it was written, not as the latest fads of legal theorists dictate."

For the Pacific Justice Institute in Sacramento, a change in the court could make a difference in some of the religious liberty cases it has brought, such as an eminent domain dispute between Visalia and a local church and the group's challenge to efforts to remove the words "under God" from the Pledge of Allegiance.

"The choice of a new justice shouldn't be so much a choice between a liberal or conservative ideology as it should be a choice of someone who respects the Constitution and the intent of the founders," said Brad Dacus, president of the organization.

While Bush isn't expected to announce O'Connor's replacement until next week, many groups already are preparing for a bruising confirmation battle.

"There are plenty of conservative Republican judges that would get through the Senate on a 99-0 vote," said the Sierra Club's Bookbinder. "Unfortunately, if we have the president's track record to go on, he'll be looking for a fight."

Any confirmation battle will involve plenty of Bay Area groups.

"We'll play a significant role, educating our community, including the state's 20 million minority members, about the effect a change on the court could have on questions of poverty, economic development, diversity and others," said Robert Gnaizda, chief counsel for the Greenlining Institute, a public policy and advocacy organization in Berkeley. "We know that O'Connor won't be replaced by another O'Connor."
E-mail John Wildermuth at

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