Not surprisingly, Justice O’Connor’s retirement announcement has sent the punditocracy into overdrive. No one could possibly read everything being published about her tenure, her jurisprudence, or her replacement – nor would anyone with any sanity want to (for you masochists out there, How Appealing has a huge collection of links). But here are three pieces that I think are worth reading and thinking about.
One of my co-clerks in Justice O’Connor’s chambers was Viet Dinh, who went on to serve as a high-ranking official in John Ashcroft’s Justice Department (where he was heavily involved in the drafting of the USA PATRIOT act) and now teaches law at Georgetown. He is, needless to say, a good deal more conservative than I am. And any former O’Connor clerk will tell you that part of why working for Justice O’Connor was such a rewarding experience is that she intentionally hired clerks with a wide range of viewpoints, which ensured that she would hear all points of view on every case. Anyway, Viet has published this excellent op-ed in the Washington Post which I think does a fine job of explaining why O’Connor commands such respect and loyalty among those who worked for her. None of us agreed with her all the time, but none of us would have preferred to clerk for anyone else.
Norman Ornstein, a scholar at the generally quite conservative American Enterprise Institute, writes here that in losing Justice O’Connor, the Court will lose the only current Justice who ever served as an elected official, and that that is a great loss to the Court. I think Ornstein is quite right about that. I don’t particularly like any of Ornstein’s suggested replacements, but I do think the Court has been well served to have a politician among its members. A lot of what the Court does demands an understanding of how the legislative branch of government works, and there is no substitute for actually having participated in the legislative process.
Finally, law prof Cass Sunstein has this brief and thoughtful summation of why O’Connor’s so-called "minimalist" approach to judging has served the Court, and the country, well.
