The Taking of the Presidency

Supremes' credibility isn't helped by report of O'Connor's craving Arizona

Now that Selection 2000 is mercifully behind us, it's time to enjoy the fallout of the appointment of George W. Bush as president.

The most eye-opening tidbit comes in the current issue of Newsweek -- given little play locally or elsewhere -- with a story that U.S. Supreme Court Justice Sandra Day O'Connor was aghast on Election Night when the networks first reported that Al Gore had won Florida.

Here's what the magazine reported:

"(O'Connor) let her guard drop for a moment when she heard the first critical returns shortly before 8 p.m. Sitting in her hostess's den, staring at a small black-and-white television set, she visibly started when CBS anchor Dan Rather called Florida for Al Gore.

"'This is terrible,' she exclaimed. She explained to another partygoer that Gore's reported victory in Florida meant that the election was 'over,' since Gore had already carried two other swing states, Michigan and Illinois.

"Moments later, with an air of obvious disgust, she rose to get a plate of food, leaving it to her husband to explain her somewhat uncharacteristic outburst. John O'Connor said his wife was upset because they wanted to retire to Arizona, and a Gore win meant they'd have to wait another four years.

"O'Connor, the former Republican majority leader of the Arizona State Senate and a 1981 Ronald Reagan appointee, did not want a Democrat to name her successor. Two witnesses described this extraordinary scene to Newsweek. Responding through a spokesman at the high court, O'Connor had no comment."

This is as close as it gets to National Enquirer material in the starched world of the U.S. Supreme Court. You can see why the justices guard their privacy like ballots in a Ryder truck: How can anyone now believe O'Connor was merely interpreting the law when she cast the decisive vote that transformed the court into a Selectoral College for Bush?

No doubt some on the right will castigate the Newsweek report as just another liberal-media dirty trick, conveniently ignoring that it was co-authored by one Michael Isikoff, a fellow who didn't seem so heinous when he broke the Monica Lewinsky scandal in the same magazine nearly three years ago. Indeed, a better kill-the-messenger angle sits on the other side of the political fence: Why did the mainstream press give virtually no legs to this stunning story?

After all, the undenied report would seem to cast an especially dark cloud on the court conservatives' pirouette on state's rights, more so than the Bush case's being argued by the law partner of Justice Antonin Scalia's son, more so than Justice Clarence Thomas' wife's having a substantial employment interest in a Republican victory. Could it have all come down to a lifelong party loyalist's craving Arizona in the dead of a cold winter?

O'Connor's apparent self-interest in a Bush victory -- expressed, as Newsweek notes, at a time when she couldn't have imagined being thrust into the historic case -- is much more understandable than the initial 5-4 decision that froze the Florida recount. Rather than hear Scalia's despicable illogic about a recount's doing "irreparable harm" to Bush's legitimacy if he might lose it (were he to then be appointed president anyway by the Supreme Court), O'Connor could have said something more refreshingly honest:

"The recount must be stopped immediately because if it continues, and Al Gore turns out to be the winner, this will do irreparable harm to my retirement plans," she might have stated. "I want the hell out of here, and I want Bush's kid to pick my replacement, OK?"

Maybe such an explanation wouldn't have had the firmest rooting in legal precedent, but neither does the conservative wing's sudden embrace of federal equal-protection guarantees after 47,243 consecutive cases in which it rejected them in the name of federalism and states' rights. Then again, this is one of the few equal-protection cases brought by a rich white guy.

Still, what's done is done, George W. Bush is president and all the talk about Democrats' "de-legitimizing" him should cease. He did finish a very strong second in the voting, and it wasn't he who appointed the five justices who clinched his victory (that would be his dad and his dad's former boss).

What matters is what lies ahead for the Supreme Court, and it's still not clear which justices, if any, will choose to leave the bench. One school of thought is that all the bitterness over the court's role (stoked further by the Newsweek revelation) will make it less likely for legacy-minded O'Connor and Chief Justice William Rehnquist to leave as soon as they would have left before.

Thickening the plot even more is the question of which side in the political wars would actually want O'Connor to resign. It is no small detail that she also cast another key deciding vote -- in upholding the landmark Roe vs. Wade decision assuring women's right to abortion -- and if one presumes that Bush would almost certainly go to a conservative (usually meaning pro-life) in replacing her, it might tip the balance on the court's most critical issue.

Perhaps Bush would find another justice who shares O'Connor's view on Roe, which is that she wouldn't have voted for it initially but believes justices should honor major court precedents. Maybe he wouldn't.

But, in any event, he'd never find a more interesting party guest.

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