The O'Connor Factor 

Republican justices regret appointing Bush

NEW YORK--"This is terrible," Sandra Day O'Connor said when she heard that Al Gore had won Florida on Election Night 2000. According to Newsweek, O'Connor, then 69, wanted to retire from the Supreme Court. But she wanted to leave under a Republican president so that her seat would go to a fellow Republican. According to court watchers, O'Connor was so eager to retire to her beloved Arizona that she overlooked the constitutional separation of powers by agreeing to hear Bush v. Gore, effectively appointing George W. Bush to the presidency.

Both O'Connor and Chief Justice William Rehnquist, 80, were expected to retire during the last three years. Yet now they'll remain in office at least through November 2004. She'll be 73 and he'll be 81. Why haven't they retired?

With the exception of hard-right zealots Antonin Scalia and Clarence Thomas, the high court's Republicans appear to be suffering from a major case of buyer's remorse. Six days after Bush's riot-torn inauguration in 2001, USA Today reported, "Sandra Day O'Connor has told people close to her that in her two decades on the court, she's never seen such anger over a case. O'Connor, more than any justice, has seemed disturbed by the public wrath directed at the court." By hearing and ruling upon Bush v. Gore, the Supremes hoped to bring closure to a seemingly endless recount crisis. Three years, two wars and thousands of lies later, however, the 2000 election is more controversial than ever. The electorate is at least as polarized as it was during the 1960s; many Democrats worry that this year's election will again by decided by judicial fiat. Fifty-one percent of Americans still say that Bush is an illegitimate pretender to the Oval Office.

Meanwhile, the White House has governed so far to the right of traditional conservative Republicanism that Justices O'Connor and Rehnquist have rebuked the Bushies on a variety of important cases coming before the bench.

Joining an 8-1 majority that skewered the administration's indefinite detention policy in the war on terror, O'Connor and Rehnquist ruled that the "enemy combatant" detainee Yaser Esam Hamdi, an American citizen captured as a Taliban P.O.W., deserved a "meaningful opportunity" to face charges against him in a court of law. In Locke v. Davey, both justices ruled against a Bush-led assault on the separation of church and state, writing that states don't have to grant college scholarships for private religious training.

O'Connor, a swing voter since her Reagan-era appointment, has sided with the court's liberal bloc more often than previously. She has cast votes ending the legal limbo of Bush's inmates at the Guantánamo concentration camp, favoring campaign finance reform and expanding the reach of the Americans with Disabilities Act to state courthouses. She also sided with the court's conservatives, but on relatively minor matters. For example, she voted to allow cops to arrest people who refuse to tell them their names and to seal Dick Cheney's energy taskforce records.

Not only have they clung to the bench into old age, O'Connor and Rehnquist are defying the Bushies.

It's logical to assume that they have joined a growing number of patriotic Republicans who fear that the Bush administration is too radical for America. Going to war for false or fictional reasons while supporting the terrorists who attacked us on 9/11, building a global network of gulags where thousands of people are denied their fundamental human rights and torture is sanctioned by top officials, using the war on terrorism as an excuse to spy on domestic political opponents, privatizing the military and attempting to turn fundamentalist Christianity into a state-funded religion are the acts of wild-eyed revolutionaries, not American conservatives.

O'Connor and Rehnquist read the papers. They know that there's a better than even chance that John Kerry will win. Both justices, having missed their chance to retire under Bush, are chancing getting replaced by Kerry instead. Their conclusion is obvious: the United States, and their legacies, would be better served by liberal Democrats than the brand of rightist extremists who would be appointed by George W. Bush.

This year, O'Connor may remark "this is terrible" again--if Bush wins.

UPDATE TO LAST WEEK'S COLUMN: Although last week's column made clear that I had not seen the movie Fahrenheit 9/11, I joined the Bob Dole of Film Criticism--Dole famously denigrated films he hadn't seen--by reacting to something I hadn't yet watched. (I've since viewed the film twice, liked it, and posted my few nits on my online Rallblog.) I don't regret what I wrote--I didn't get anything wrong--but I should have withheld comment until I'd scored tickets. I screwed up.

That said, Michael Moore should pick up my book Gas War before facing another question about the Trans-Afghanistan Pipeline project.

Ted Rall is the author of a new book, Generalissimo El Busho: Essays and Cartoons on the Bush Years. Ordering information is available at

Copyright 2004 Ted Rall

Distributed by Universal Press Syndicate/Ted Rall

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