Sunday, Apr 22, 2018
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David Shribman

O'Connor's departure, not Rehnquist's, is the one that matters

So much for the warm-up act. We're going straight to the main event.

The warm-up was going to be the resignation of William H. Rehnquist, the chief justice. All of the interest groups were going to mobilize for a fight that didn't matter in hopes of getting ready for the one that did. Then, Friday morning, Sandra Day O'Connor resigned and changed everything.

There will be no preliminaries. The cultural wars are about to break out into the open. The summer of reflection and relaxation is about to become a season of recrimination.

This is the difference. If Justice Rehnquist had resigned (and of course he still may in the near future), there would have been a pointless Washington mudfest that would have changed nothing, except of course that it would have created a grotesque spectacle and (let us not forget) enriched the treasuries of the extremist groups on both sides of every contentious issue.

It wouldn't have mattered because no matter how much the Democrats howled, the conservative President and conservative Senate were eventually going to confirm as Justice Rehnquist's replacement a conservative jurist - not a liberal, probably not a moderate, and almost certainly someone who opposes abortion rights. And the substitution of one conservative for another in the court's lineup would have changed nothing - or nothing that can be safely guessed by the pugilists on both sides whose predictive powers are no better than those of the people who are trying to figure out how long the United States will be in Iraq.

This is different. Justice O'Connor's support of abortion rights (and her moderate positions in several other areas) made her the margin of victory for the liberals - and, just as important, the margin of defeat for the right. Now President Bush gets a chance not only to put his own stamp on the high court, but also to shift the balance of power within it.

Justice Rehnquist's resignation would have thrown the nation into a pointless debate on the status of separation of church and state in the nation and prompted it to explore with no reason questions of judicial activism at a time of an activist Congress but a passive federal regulatory apparatus. It would have started an irrelevant conversation about whether the court was too liberal, or too conservative, or too rooted in the assumptions of the late 20th-century welfare state, and begun an inconsequential examination of whether the court was too eager to embrace the early 21st-century libertarian creed.

Pointless, irrelevant, and inconsequential? I can hear you shriek: You must be nuts. For Justice Rehnquist, that would have been a dress rehearsal. For Justice O'Connor it's not.

For President Bush, the selection of an associate justice to replace Justice O'Connor is, ironically, far more important than the selection of a new chief.

Because even if Mr. Bush had tried to elevate Justice Antonin Scalia or Justice Clarence Thomas - this was, and still is, liberals' great fear, in part because of the symbolic value such a selection would have in the culture wars - neither has any record of building alignments or coalitions. Justice Scalia is openly contemptuous, sometimes scathingly so, of his colleagues, and Justice Thomas is more of a loner than the man once (quite wrongly, it turns out) regarded as a near hermit, Justice David H. Souter.

Because the job of chief justice will almost certainly be a lot different in the years to come than it has been in past. Earl Warren was a strong chief justice whose political skills and vision reshaped the court, and American life, for more than a generation. Warren E. Burger and Justice Rehnquist were not - not because they weren't strong intellects and leaders, but because times have changed.

Because chief justices don't hurl thunderbolts from legal Olympuses any more, mostly because the culture recognizes no Mount Olympuses on the American landscape any more. Presidents are constricted more than they used to be (think of the War Powers Act) and so are Congresses. Then again, so are priests, ministers, rabbis, television sitcom fathers, and Ohio State football coaches. None of them have the power their predecessors did. (Dare we add newspaper editors?)

Moreover, neither Justice Burger nor Justice Rehnquist was a political operator in his years as chief. In the past third of a century, the consensus-building function of the chief justice has become a recessive trait, so much so that it will be very difficult to revive, even by an alpha male like Justice Scalia. Indeed, a lot of the time it was not the chief but one of the various associates who performed what few consensus tasks were achieved; in that role, former Justice William J. Brennan, Jr., excelled.

For all those reasons, the Rehnquist succession will be important but probably not significant.

The O'Connor succession will be both, and that's the one that really matters.

The O'Connor resignation is no longer the fire next time. Forget the 2006 midterm congressional election. Forget the 2008 presidential election. This is the most important political fight of our time.

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