The Shame of Sandra Day O'Connor

by Mary

Yesterday, Terry Gross interviewed Jeffrey Toobin about his new book, The Nine: Inside the Secret World of the Supreme Court. In one chapter of this book, Toobin revisited the 2000 Election decision and interviewed the justices and their law clerks to see how they viewed this decision. As Jeffrey said,

I think they all know that in the second paragraph of their obituaries will be how they voted in Bush v Gore. That defined them.

What he found was that Sandra Day O'Connor, more than anyone else was deeply affected by this decision. What I found listening to the program was myself saying how she should be deeply ashamed for her decision. It was a bad decision for the country. And it will color forever what people think about her. We knew the rest of the conservatives on that court could be partisan and petty, but she was supposed to be better than that. Here's the transcript for the discussion on O'Connor. [All mistakes in transcription are mine.] Tell me what you think.

Terry: You say that she had her mind made up about Bush v Gore. She thought that George W Bush should win the case as well as the election.

Toobin: She's a Republican and proudly so. She was the majority leader of the Arizona State Senate. She identifies with Republicans. She particularly liked the elder President Bush and his wife Barbara. Those were her kind of Republicans and on election night, she and her husband were unusually open about their hope that President Bush would win the election.

Once the case got into the Supreme Court, the complaints of the Democrats were exactly the kind of complaints that O'Connor hated. She thought that the case was about voter who had made mistakes, who were incompetent, who were complaining and making excuses -- just the kind of thing that O'Connor, the old ranch hand from Arizona, just didn't like to hear. So the combination of her predilection for the Bush family and the kind of complaints the Democrats were making really turned O'Connor off. And I believe that the Democrats never really had a chance to get her vote in this case.

Terry: But you think she later regretted her decision and that she became disillusioned with the Republican Party and the Presidency of George W Bush.

Toobin: See this is what I really learned in writing my book. This is what surprised me is the effect that this decision had on O'Connor.

Because the reaction to Bush v Gore was so extreme and so angry that it really challenged O'Connor's conception of herself as someone who was fair and non-partisan and someone who was a supreme court justice universally respected and she was really taken aback by that. You combine that reaction with what Bush's presidency turned out to be, something very different than what O'Connor thought it would be, a very conservative Presidency -- she did not like John Ashcroft who was President Bush's first attorney general. Justice O'Connor was not an evangelical Christian Right Republican, she's an old school Country Club Republican.

As the new President Bush became more and more conservative especially when it came to civil liberties after 9/11, O'Connor rebelled. In part because she was worried about her historical reputation in light of BvG and in part because she simply did not like the direction the Bush administration was going.

It was a true case of putting party over country. The Supreme Court decided they knew better than the voters and so they took that matter in their own hands.

Toobin later talked about how when she left the court to take care of her husband who had Alzheimer's, she was replaced by the one person that she had seriously berated for a truly paternalistic and frankly demeaning-to-women decision which had been appealed to the Supreme Court. Then to cap it all off, by the time she was replaced, her husband was too far gone for her to make a difference. Toobin called it a personal tragedy for O'Connor.

Well, golly gee. The tragedy is the partisan decision she made then. It's nice she figured out that he was such a bad President after she put him in office. Frankly, I don't think she will ever be able to make up for this one decision. It will go down as one of the worst Supreme Court decisions for all time.