A few days ago a few bloggists jokingly spoke of the decision of "O'Connor" to retire, hiding the fact it was some Baltimore prosecutor named "Sandra O'Connor." Joke on them: the real deal chose to retire. And why not on the usual blockbuster day for announcements, the Friday before the holiday?
The reports generally were surprised and expecting a big battle. The activists didn't have a chance to fight over a real juicy nominee (or a nominee at all) for over a decade, so there is a lot of pent up passions. Many also had some good things to say about Justice O'Connor, the bane of formalists everywhere. And, she deserves some respect: her record was somewhat mixed (a conservative after all), but her case by case approach is a healthy example of self-restraint. And, neither side quite gets what they want, but overall the results were pretty centrist.
But, let me comment on the uncomfortable fact that she was also the deciding vote in Bush v. Gore. Reports leaked out that she was tiffed when it looked like Gore won the presidency. And, she was tiffed that the Florida Supreme Court basically ignored the Supreme Court's non-decision in the first round of the litigation, which had the net effect of basically running out the clock. No problem: though Justice Kennedy probably wrote the opinion (it has his strict equal protection flavor), she helped her choice become President. And, the person who would eventually appoint her successor.
Replacing CJ Rehnquist would have not been as trivial of a matter as some suggested, but clearly Justice O'Connor is this generation's Lewis Powell -- who she deeply respected. In such areas as religion (symbols/funding), speech (campaign finance), abortion (where does "partial abortion" go now?), criminal justice (though she went both ways in various 5-4 type decisions), and more ... swing vote. Also, as Slate notes, her vote is more than one of nine. It quite often is THE vote, bending the Court in her general direction. And, she was sure enough of herself (and her incrementalism) to establish herself. Not only the first woman justice for sure.
El hyprocrito wants a fair confirmation process. Yeah, don't we all. Some want the Democrats to hang Republicans by their own petard: no more cover for them, appoint a conservative nut or lose your base. This might help the Democrats in upcoming elections, though any regaining of power would likely take some time. And, meanwhile, Bush appoints a couple more justices. Kennedy was confirmed in 1988 and will remain important for years in all likelihood. These are the stakes folks.
So, at least a threat of a filibuster is important because this is not just about electoral politics, but the make-up of the Supreme Court. And, for all the talk of filibusters, nearly all of Bush's nominations for the lower courts were confirmed. So, where is the cover for moderates? Who really is being blocked? Hopefully, EH will realize there are plenty of reasonable conservatives out there, and limit the damage. I actually have a bit of hope of that.
But, time will tell.