Sandra Day O’Connor, J’accuse!

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She knows what she did. White House photo by Paul Morse
She knows what she did. White House photo by Paul Morse
She knows what she did.
White House photo by Paul Morse

Immensely powerful public figures should be held responsible for their malfeasance for longer than a news cycle. If Sandra Day O’Connor had wanted to be able to maintain a sage, statesperson-like reputation, she should have checked herself before voting with the majority on that horror show of a case, Bush v. Gore.

Former Supreme Court Justice O’Connor has a new book out-Out of Order-and is making the rounds: This week she’s been on The Rachel Maddow Show and The Daily Show, probably others. She’s full of stories and details of life at the Court, folksy charm and coy discretion. Jon Stewart was adoring; Maddow pushed O’Connor a little bit, but also was basically adoring. Adoration is not the appropriate reaction.

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In Parade last September, Justice O’Connor said, “I think Bush v. Gore may have been a turning point [in the decline of Supreme Court approval ratings]. It was seen by the public as political.” She did not, though, acknowledge that it was seen by the public as political because it was outrageously political. O’Connor, of course, sided with the Republican-let’s not pretend otherwise-majority in the 5-4 ruling that blocked the recount of Florida’s ballots, ultimately handing the presidency illegitimately to George W. Bush. And we all know how that turned out.

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Here is Maddow asking O’Connor about a previously unpublished photo that appears in her new book. It shows O’Connor (and her husband), Antonin Scalia and then-Chief Justice William Rehnquist looking pensive in a room inside the Capitol, waiting for Bush’s inauguration in 2001. Maddow sees in the picture a mood of rueful discomfort with the Justices’ own role in the events leading up to the ceremony that is about to begin. She fruitlessly tries to get O’Connor to cop to this mood. O’Connor says that they were just bored of waiting. She doesn’t remember feeling anything special about that case compared to any other “important” decision.

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Reportedly, on election night 2000, O’Connor and her husband had expressed dismay when it seemed like Al Gore was going to win-the Justice wanted to retire, but not if a Democratic president would be choosing her replacement. A month later, she was one of the five people who secured Gore’s loss. So, Bush v. Gore was not only a superlatively terrible legal decision, O’Connor’s failure to recuse herself was also a glaring ethical transgression.

There were many fine moments in O’Connor’s career. It’s legitimately remarkable that she was the first woman to serve on the Supreme Court. She barely did, but OK, did uphold abortion rights against many challenges and to the chagrin of her Republican colleagues. Since retiring from the Court, she has done good work advocating civics education for American school children, who know very little about their own government.

So, clearly, O’Connor was never the worst offender among the Justices (and, yes, I do have them ranked according to offensiveness; Scalia wins), but her partisanship-especially, but not only, in December 2000-belies her above-it-all grace this week.

Partisan shenanigans, of course, are ubiquitous, but they’re especially infuriating from Supreme Court Justices. These judges claim the status of impartial Olympians. Not that many of them actually try very hard, but they do, by pretending to the romantic fantasy of the Platonic ideal of justice, wrap themselves in a gauze of dispassionate wisdom. Bush v. Gore was a jarringly cynical exploitation of that popular fantasy.

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Rehnquist (far left) celebrates with O'Connor after her confirmation in 1981. Stanford Law School photo / via
Rehnquist (far left) celebrates with O’Connor after her confirmation in 1981.
Stanford Law School photo / via

Despite her reputation as a moderate, O’Connor’s rulings, including Bush v. Gore, very often aligned with those of Rehnquist, whom she had known since they were both at Stanford Law School in the 1950s. This is not to her credit.

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A short digression on Chief Justice Rehnquist: I rarely agree with, much less recommend, anything by Alan Dershowitz, but there is an article he wrote in 2005 that should be required reading for, well, everyone, but certainly for anyone with an interest in the Supreme Court. It’s an obituary of Rehnquist that paints the Chief Justice as a malignant anti-Semite and bigot and an all-around sociopath. O’Connor was friends with Rehnquist during the years he was “goose-stepping and heil-Hitlering with brown-shirted friends in front of a dormitory that housed [Stanford’s] few Jewish students. He also was infamous for telling racist and anti-Semitic jokes.”

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What a peach of a colleague for O’Connor constantly to join in judgment! This was shocking news to me when I first read Dershowitz’s obit, but, given that Rehnquist was first appointed Associate Justice by Nixon and promoted to Chief Justice by Reagan (who also appointed O’Connor)-neither of these presidents was known for open-heartedness when it came to minority matters-I shouldn’t have been surprised. O’Connor herself, at least in her votes on the Court, had a dismal record on minority rights. But, I guess, if she wasn’t burning crosses on lawns, she’s a step up from Rehnquist.

Talking to Stewart on Tuesday (video here), O’Connor explained how important so many Supreme Court decisions are, and how important it is for the Justices to get the decisions right. Stewart asked if there were any of her own decisions she’d like to take back, and, after pausing for a beat, O’Connor said, “Well, if I did, I wouldn’t say.” This got a big laugh. O’Connor also declined to comment on current cases before the Court or on the literary skills of any sitting Justices because she respects the court as an institution and wouldn’t want to do any damage to its reputation. Too late, Justice O’Connor.