Saturday, September 22, 2007

In a review of Jeffrey Toobin's new book on the Supreme Court, David Margolick throws on his Columbo raincoat and deduces that one of the key sources for the book must have been Sandra Day O'Connor. Which is interesting, in part because O'Connor famously supplied one of the votes that shut down the Florida recount and appointed little Georgie Bush president, restoring the line of succession to the family business, whereas Toobin wrote Too Close to Call, probably the definitive (and deeply angry) book on the butterfly ballot wars. (Unfortunately for him, his book, like the newspaper-funded recount that decided in Gore's favor, was released just in time to be overshadowed by 9/11, just when nobody wanted to hear that Little Lord Fauntleroy hadn't been rightly elected.) Margolick. who sums up O'Connor's role in the case as "ignoble", writes:

"A lifelong Republican — in her memos to Rehnquist, she routinely referred to her party as “we” and “us” — O’Connor played tennis with Barbara Bush, watched approvingly while George W. Bush rose as a “compassionate conservative,” looked “stricken” to fellow partygoers on election night 2000 when Al Gore appeared to have won. She determined early on in the litigation to stop the Florida recount, and in the five-to-four decision that followed, her vote was decisive. But her reasoning, as Toobin notes, was more visceral than legal — she hated untidiness, blamed Florida voters for being too stupid to follow instructions and thought Americans wanted the matter settled. She was wrong on both the facts and the law. It was an egregious performance, one that historians will skewer. Or maybe not, given who usually writes these histories... "

Unfortunately, life is not a Rocky movie, and sometimes going with your gut (or even listening to your heart) can result in greater "untidiness" than simply maintaining intellectual honesty, something that hardly anybody seemed interested in doing in 2000. After Junior was properly installed, O'Connor became notorious for holding forth to anyone who would listen about her reasons (i.e., her rationalizations) for what she had done, and those little lectures began to take on a slightly hysterical caste as it became clearer and clearer just what she had done.

"She was appalled... by former Attorney General John Ashcroft whom she considered extreme, polarizing, moralistic and — to use her favorite word — “unattractive.” She was appalled by how the Bush administration pandered to the religious right in the Terri Schiavo case. She was appalled by the nomination of Harriet Miers. And she’s been appalled, too, by Bush’s stances on affirmative action, the war on terror and the war in Iraq. And how did she feel when Bush brushed off the report of the Iraq Study Group, to which she belonged? She was appalled. And she was really, really appalled that the lower-court judge whose dissent in one crucial case she deemed “repugnant” — he’d have upheld a Pennsylvania law requiring wives to notify husbands before getting abortions — was the very man Bush picked to replace her: Samuel Alito."

"A person is welcome to her opinions," writes Margolick, "but given O’Connor’s crucial role in putting Bush in office, such constant off-the-record carping is really a bit much...All this spinning makes one appreciate Thomas and Scalia; whatever one thinks of them or their jurisprudence, they speak their pieces in public — for attribution." True, true. But it's still at least mildly heart-warming to hear that someone who had a key role in the anti-democratic debacle of the new millennium is capable of self-knowledge and regret. Even if O'Connor's forked tongue makes Thomas and Scalia look like straight shooters, she's enough of a fully diagnosed human being that she need not join Ralph Nader in fleeing desperately across the rooftops when the blade runners appear.

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