O'Connor's Seat

Reaction among Senate Democrats to President George W. Bush's nomination of Judge Samuel Alito to the United States Supreme Court has been typically nave and uninformed.

One sentiment in particular is striking. Senators pleading and demanding that the President nominate who they want instead of who he wants all say the same thing in different ways: Only a 'moderate' and someone who will 'unite' the nation 'for the good of the Court'... 'in the mold of Sandra Day O'Connor' will be acceptable.

Pompous windbags like Charles Schumer and Joseph Biden think quite highly of themselves indeed, but it is still a tad shocking when they begin to imply that the history of the United States Senate and the Supreme Court began to be written when they took their seats in the Senate, and not a day sooner. It would behoove them to realize that there have been peoplewho have occupied the now—solemn 'O'Connor Seat' before 1981.

Justice O'Connor succeeded Potter Stewart on the Court. Justice Stewart was nominated by President Dwight Eisenhower in 1959 and confirmed by the Senate. As an aside, all 17 votes against Justice Stewart were made by members of one party who objected to the nomination based on the assertion that the new Justice would not overturn Brown v. Board of Education. You get three guesses as to which party the 'Gang of 17' belonged, and the first two don't count.

Perhaps Democrats might have a better argument about 'O'Connor's Seat' being a 'swing vote' if they took the time to have one of their flunkies do some research. Justice Stewart was not a reliable vote for either liberal or conservative bloc. However, Democrats will probably wish to steer clear of Justice Stewart's more famous opinions, such as his upholding the constitutionality of the death penalty despite his personal objections. In 1965 he dissented from the Court in Griswold v. Connecticut and wrote that while the state law banning contraceptives was 'uncommonly silly' it was not unconstitutional.

Most embarrassing for the Democrats on the Judiciary Committee who might want to argue that Stewart's...err...O'Connor's seat is a 'swing' vote and can be nothing else would be for someone to cite Justice Stewart's dissenting opinion in Abington School District v. Schempp in 1962. Justice Stewart wrote that the Establishment Clause and the Free Exercise Clause of the First Amendment sometimes came into 'irreconcilable conflict' and that 'separation of church and state' was an elusive goal (and not part of the Constitution) because 'religion and government must necessarily interact in countless ways.'

Justice Stewart preceded Harold Burton on the Court, a strict constructionist who was appointed by President Harry S. Truman in 1945. Justice Burton supported laws discouraging Communist activity within the United States, the desegregation of public schools and public transportation. While some might point to Justice Burton's concurrence preventing the President from seizing steel mills in the face of a labor strike as a liberal position, Justice Burton could find nothing in the Constitution that gave the President the authority to make such a move.

Other predecessors of Justice O'Connor include Owen Roberts, who upheld New Deal programs such as the National Labor Relations Act, the Social Security Act, the Fair Labor Standards Act and the Agriculture Adjustment Act. Roberts sided on many cases with those who expanded the interpretation of the Commerce Clause, giving the federal government broad authority to tax, spend and regulate. Justice Edward Sanford, who preceded Justice Roberts, also supported government regulation of business and federal control of grain exchanges and stockyards — yet he voted to uphold what is now known as redlining, silent agreements among property owners not to sell to non—whites.

Justices such as John Marshall Harlan have also occupied 'O'Connor's Seat' from where he dissented in Plessy v. Furgeson by writing 'Our Constitution is color blind and neither knows nor tolerates classes among citizens.' Justice Harlan would be anathema to Justice Souter, for he frequently defended the rights of private property during his term. Justice David Davis also had the honor of sitting in 'O'Connor's Seat' and wrote the Court's opinion in Ex prate Milligan, in which he went against his friend and political ally, Abraham Lincoln, whom Davis argued overstepped his Constitutional bounds. Justice Davis did, however, rule that citizens of the South could be treated as wartime belligerents and that loyalty oaths could be used in the determination of granting political rights once the Civil War had concluded.

One of the early holders of Justice O'Connor's seat was a man named John Archibald Campbell. Justice Campbell voted with the majority in Dred Scott v. Sandford, which overturned the Missouri Compromise and classified slaves not as citizens, but legally protected property. Although he felt the issue of slavery was a state and not a federal question, the decision and his part in it remains for history to judge. The first holder of the 'O'Connor Seat' was Justice John McKinley, also an ardent advocate of states' rights.

As history bears out, 'O'Connor's Seat' has been held by a broad range of jurists with varying outlooks on the Constitution. It seems patently obvious to everyone except the braying jackals in the Senate Democratic Caucus that there is no 'mold' of any one Justice and no such 'O'Connor Seat' at the Supreme Court. Rather, Sandra Day O'Connor occupied (and temporarily still occupies) one of nine seats on the Court for a quarter century. That Court exists and continues, not because of the self—proclaimed high priests of moderation and fairness in the Judiciary Committee hearing room, but because the sovereign power of this nation has willed it so through ratification of the Constitution and the continuous election of the executives who nominate the Court's members.

The People twice elected President Bush, in part not on a promise to continue the jurisprudence of any individual Justice, but to nominate Justices who will interpret the Constitution as it is written. This is what has been done with the nomination of Judge Alito. Now Sen. Schumer, Sen. Biden, Sen. Kennedy, Sen. Durbin and Sen. Leahy will attempt to prove that Judge Alito is not qualified for the Court, merely because he might not mimic the Justice whom he happens to be nominated to replace. They will fail because this is not now, nor has it ever been, the standard that nominees to the Court are held.

(Research and quotations regarding former Justices in this piece come from Macmillan Profiles: Justices of the United States Supreme Court, 2001, a volume edited by the author.)

Matt May can be reached at matthewtmay@yahoo.com; his website is http://mattymay.blogspot.com

Reaction among Senate Democrats to President George W. Bush's nomination of Judge Samuel Alito to the United States Supreme Court has been typically nave and uninformed.

One sentiment in particular is striking. Senators pleading and demanding that the President nominate who they want instead of who he wants all say the same thing in different ways: Only a 'moderate' and someone who will 'unite' the nation 'for the good of the Court'... 'in the mold of Sandra Day O'Connor' will be acceptable.

Pompous windbags like Charles Schumer and Joseph Biden think quite highly of themselves indeed, but it is still a tad shocking when they begin to imply that the history of the United States Senate and the Supreme Court began to be written when they took their seats in the Senate, and not a day sooner. It would behoove them to realize that there have been peoplewho have occupied the now—solemn 'O'Connor Seat' before 1981.

Justice O'Connor succeeded Potter Stewart on the Court. Justice Stewart was nominated by President Dwight Eisenhower in 1959 and confirmed by the Senate. As an aside, all 17 votes against Justice Stewart were made by members of one party who objected to the nomination based on the assertion that the new Justice would not overturn Brown v. Board of Education. You get three guesses as to which party the 'Gang of 17' belonged, and the first two don't count.

Perhaps Democrats might have a better argument about 'O'Connor's Seat' being a 'swing vote' if they took the time to have one of their flunkies do some research. Justice Stewart was not a reliable vote for either liberal or conservative bloc. However, Democrats will probably wish to steer clear of Justice Stewart's more famous opinions, such as his upholding the constitutionality of the death penalty despite his personal objections. In 1965 he dissented from the Court in Griswold v. Connecticut and wrote that while the state law banning contraceptives was 'uncommonly silly' it was not unconstitutional.

Most embarrassing for the Democrats on the Judiciary Committee who might want to argue that Stewart's...err...O'Connor's seat is a 'swing' vote and can be nothing else would be for someone to cite Justice Stewart's dissenting opinion in Abington School District v. Schempp in 1962. Justice Stewart wrote that the Establishment Clause and the Free Exercise Clause of the First Amendment sometimes came into 'irreconcilable conflict' and that 'separation of church and state' was an elusive goal (and not part of the Constitution) because 'religion and government must necessarily interact in countless ways.'

Justice Stewart preceded Harold Burton on the Court, a strict constructionist who was appointed by President Harry S. Truman in 1945. Justice Burton supported laws discouraging Communist activity within the United States, the desegregation of public schools and public transportation. While some might point to Justice Burton's concurrence preventing the President from seizing steel mills in the face of a labor strike as a liberal position, Justice Burton could find nothing in the Constitution that gave the President the authority to make such a move.

Other predecessors of Justice O'Connor include Owen Roberts, who upheld New Deal programs such as the National Labor Relations Act, the Social Security Act, the Fair Labor Standards Act and the Agriculture Adjustment Act. Roberts sided on many cases with those who expanded the interpretation of the Commerce Clause, giving the federal government broad authority to tax, spend and regulate. Justice Edward Sanford, who preceded Justice Roberts, also supported government regulation of business and federal control of grain exchanges and stockyards — yet he voted to uphold what is now known as redlining, silent agreements among property owners not to sell to non—whites.

Justices such as John Marshall Harlan have also occupied 'O'Connor's Seat' from where he dissented in Plessy v. Furgeson by writing 'Our Constitution is color blind and neither knows nor tolerates classes among citizens.' Justice Harlan would be anathema to Justice Souter, for he frequently defended the rights of private property during his term. Justice David Davis also had the honor of sitting in 'O'Connor's Seat' and wrote the Court's opinion in Ex prate Milligan, in which he went against his friend and political ally, Abraham Lincoln, whom Davis argued overstepped his Constitutional bounds. Justice Davis did, however, rule that citizens of the South could be treated as wartime belligerents and that loyalty oaths could be used in the determination of granting political rights once the Civil War had concluded.

One of the early holders of Justice O'Connor's seat was a man named John Archibald Campbell. Justice Campbell voted with the majority in Dred Scott v. Sandford, which overturned the Missouri Compromise and classified slaves not as citizens, but legally protected property. Although he felt the issue of slavery was a state and not a federal question, the decision and his part in it remains for history to judge. The first holder of the 'O'Connor Seat' was Justice John McKinley, also an ardent advocate of states' rights.

As history bears out, 'O'Connor's Seat' has been held by a broad range of jurists with varying outlooks on the Constitution. It seems patently obvious to everyone except the braying jackals in the Senate Democratic Caucus that there is no 'mold' of any one Justice and no such 'O'Connor Seat' at the Supreme Court. Rather, Sandra Day O'Connor occupied (and temporarily still occupies) one of nine seats on the Court for a quarter century. That Court exists and continues, not because of the self—proclaimed high priests of moderation and fairness in the Judiciary Committee hearing room, but because the sovereign power of this nation has willed it so through ratification of the Constitution and the continuous election of the executives who nominate the Court's members.

The People twice elected President Bush, in part not on a promise to continue the jurisprudence of any individual Justice, but to nominate Justices who will interpret the Constitution as it is written. This is what has been done with the nomination of Judge Alito. Now Sen. Schumer, Sen. Biden, Sen. Kennedy, Sen. Durbin and Sen. Leahy will attempt to prove that Judge Alito is not qualified for the Court, merely because he might not mimic the Justice whom he happens to be nominated to replace. They will fail because this is not now, nor has it ever been, the standard that nominees to the Court are held.

(Research and quotations regarding former Justices in this piece come from Macmillan Profiles: Justices of the United States Supreme Court, 2001, a volume edited by the author.)

Matt May can be reached at matthewtmay@yahoo.com; his website is http://mattymay.blogspot.com