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Tuesday, July 12, 2005

O'Connor: Too Little Too Late

Like Clinton's attempt to salvage his presidential legacy by brokering a Middle East peace (that failed), Justice O'Connor ended her tenure as Justice by trying to provide timeless words that belied her jurisprudential record. While Justice O'Connor's late attempt to salvage her reputation provides important quotes about federalism and the Constitution that I feel should be followed in all SCOTUS decisions, professor Henry Mark Holzer provides a historical recap of O'Connor's failure to uphold the Constitution. He reflects on a number of cases where her "swing" vote provided a majority in decisions that upheld unconstitutional statutes or lower court rulings through "narrow, vague decisions".

In "The Con of Another O'Connor", Holzer considers her tenure one of "lost promise".

He uses 4 "paradigmatic cases" as examples of her jurisprudence where she pursued lightly evidenced policy results against constitutional prohibitions on the following subjects: Affirmative Action; Abortion; Sex Offenders and Police Officers.

O'Connor's Kelo dissent "proves the case against her", says Holzer. He writes she was capable of:

interpreting the Constitution consistent with its original intent, instead of drifting off on some ill-defined judicial odyssey of her own making.

No matter what the Left’s spin doctors claim, O’Connor was inconsistent in the extreme when it came to her alleged conservative judicial philosophy. A true conservative jurist would not uphold racist affirmative action schemes. A true conservative jurist would not legitimize abortion or immunize sex offenders. A true conservative jurist would never handcuff and victimize the police or treat terrorists like mere criminals, thereby giving them the benefit of due process.

If President Bush intends to keep the promise he made to the people who elected him twice, he must live up to what he told them in his 2000 debate with Al Gore: that he would appoint judges “who will strictly interpret the Constitution and will not use the bench to write social policy.”


The people through their elected officials analyze and enact laws on policies that benefit the public...what Jefferson called "life, liberty and happiness". The SCOTUS reviews such laws when there is a controversy to decide if such laws fit within the structure of the Constitution. The SCOTUS cannot introduce policy considerations for their decision. That has already been done by a more qualified body, the people of the U.S.

O'Connor and "activist" judges have usurped this structure. The American people have paid dearly for such hubris.

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