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Will Sandra Day O'Connor's replacement unite or divide?



Published: Fri, July 1, 2005 @ 12:00 a.m.



In 1999, then-Gov. George W. Bush told an interviewer that he "showed the people of Texas that I'm a uniter, not a divider. I refuse to play the politics of putting people into groups and pitting one group against another."

Throughout his first campaign for the presidency, Bush described himself as a uniter, not a divider, but scant evidence of a commitment to preserve that title can be found in his governance as president.

The announcement by Justice Sandra Day O'Connor that she intends to retire from her seat on the Supreme Court of the United States gives President Bush an opportunity to redefine himself as a leader of all Americans.

In that same 1999 interview with David Horowitz for the Internet magazine, Solon.com, Bush said, "I started my campaign in the minority communities the day I got elected the first time, when I said, 'Many of you did not vote for me -- I'm still your governor, and I will be your governor.'"

Change in attitude

Less than six years later, after his re-election as president in a race that could have been swung by any moderate-sized state, Bush took a more divisive view of victory, announcing that he had amassed political capital and he was going to spend it.

Some of that capital has already been spent, and we would suggest that the president should not bet his last dime that he can squeeze an ideologue into the shoes of a clearly conservative justice who remained open to sound arguments on either side of an issue.

The president says he'll pick a successor "who will faithfully interpret the Constitution and laws of our country," an essentially meaningless phrase. No president has ever nominated a justice with the expectation that he or she would wrongly interpret the Constitution.

Regardless of what the president does or who he nominates, this will be the most contentious advise and consent process in the nation's history. Much of the debate will be driven by money, with both conservatives and liberals pledging to spend tens of millions of dollars to push their Supreme Court agendas.

The George Bush of 1999 did not sound like a man who would be drawn into such a fight, especially not on what will be one of the most contentious issues -- a woman's right to choose an abortion. Here's what candidate Bush said about abortion: "My goal is for every unborn child to be protected in law, and welcomed in the world. But I recognize that we don't live in a perfect world, and I also recognize that good people can disagree on this issue. What America should focus on is banning partial-birth abortions and passing parental notification laws. That's where we can find common ground."

If Bush nominates to the Supreme Court a judge who, for instance, wrote a dissenting appeals court opinion arguing that a woman should have to tell her husband before she could have an abortion (and, yes, one of the possible candidates did that), the president will be abandoning any possible common ground.

Place in history

History will record Justice O'Connor as the first woman named to the court, but she distinguished herself far more by her conduct on the court. She was a pivotal justice, arguably the most open-minded of the justices. While her critics will claim that she sided too often with liberals on the court, the numbers also show that she often joined Chief Justice William Rehnquist in 5-4 votes. They were law school classmates -- he was first and she third in their graduating class at Stanford -- and they remained close, even in legal philosophy.

Still, her judicial and intellectual independence set her apart during much of her 24 years on the court.

President Bush would do well to seek a worthy replacement. To the extent that he does, he will show himself to be a uniter. If he chooses someone who appeals to his most conservative backers, they will run up against a wall of opposition in the Senate. The president then will predictably claim that his opponents are being obstructionists, but honest observers will know that it was he who chose to be a divider.




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