pageok
pageok
pageok
Stuntz on Powell and O'Connor:
Lawprof Bill Stuntz has a fascinating piece at The New Republic on judicial uses of power, his experience clerking for swing vote Justice Lewis Powell, and what it suggests to him about the tenure of Sandra Day O'Connor. An excerpt:
  I clerked for Powell his next-to-last year on the Court, and I remember listening to him talk about his early days as a justice. He was terrified. He thought he didn't know enough, wasn't smart enough, wasn't nearly wise enough to do the job. It shows in his early opinions, where he regularly writes of the need to defer to other institutions, and ultimately to the voters. I don't know Justice O'Connor, so I can't swear that she felt in 1981 the way Powell felt in 1972. But I bet she did. As with Powell, you can see it in her opinions in the early 1980s: the tentativeness, the discomfort with hurling judicial thunderbolts.
  But that sensibility didn't last, for either of them. Before long, Powell was deciding national policy on affirmative action, abortion, and the death penalty--and loving it. O'Connor's has been the decisive voice on all those subjects, plus federalism and much of the law of criminal procedure. In Bush v. Gore, she came close to deciding a presidential election, as bold an exercise of judicial power as anything in the last half-century. For all the talk about O'Connor's lawyerly virtues--people said the same thing about Powell--Bush v. Gore shows that (as my Harvard Law School colleague Heather Gerken likes to say) she is more politician than lawyer. So was Powell.
Thanks to How Appealing for the link.
William Patry (mail) (www):
I think Bill Stuntz provides some interesting insights into his experience with Powell and those of being a swing vote. But I think he overstates things by extrapolating to Justice O'Connor that "she came close to deciding a presidential election, as bold an exercise of judicial power as anything in the last half-century," and that "she is more politician than lawyer."

I was and remain horrified by Bush v. Gore, but to Justice O'Connor the case came to the Court; she did not reach out for it (I disagree with this too, but I believe I am accurate in stating her belief). And, as importantly, she was only one vote. As for being a swing vote generally, it is, no doubt a heady experience, but it is unfair to equate that with being a politican. Politicians can and do hold out for unrelated goodies (log rolling), can introduce legislation with no purpose other than to extract favors (especially if you are chair of the relevant committee), and in the Senate one can place holds on important legislation or nominations until your wishes are accommodated. I worked in our federal legislative branch for eight years, and did my fair share of getting votes and punishing those who opposed our inititiatives.

It is a false analogy and cheapens the role of the Court and in particular Justice O'Connor's role on that Court to equate being an important vote to being a politician.
7.5.2005 1:57pm
Craig Oren (mail):
Any good justice is a good politician. After all, you have to count to five. That means you do your best to accommodate your colleagues rather than always insist on principle. Judging, like politics, is the art of the possible. (A really good chief justice tries to be able to count to nine to build public confidence in the Court's decision-making abilities.) That's true not only in persuading your colleagues but in coming to a position that will persuade the nation. So it's a compliment rather than a disgrace to call Justice O'Connor a politician.
7.5.2005 4:46pm
A Blogger:
But Craig, O'Connor is usually the Fifth vote. She doesn't do persuading. You have to do persuading if you have a world view you are trying to pursue through the Courts and need O'Connor's vote, but if you're O'Connor (or Powell before her) you just, well, vote.
7.5.2005 4:54pm
Robert Schwartz (mail):
"I clerked for Powell ... and I remember listening to him talk about his early days as a justice. He was terrified. He thought he didn't know enough, wasn't smart enough, wasn't nearly wise enough to do the job. It shows in his early opinions, where he regularly writes of the need to defer to other institutions, and ultimately to the voters. ... But that sensibility didn't last, for either of them. Before long, Powell was deciding national policy on affirmative action, abortion, and the death penalty--and loving it."

As good an argument for term limits as I can make.
7.5.2005 5:34pm
Craig Oren (mail):
I'm not sure you're right in saying that O'Connor is usually the fifth vote. I thought the analyses this weekend indicated that she is not particularly likely to be the fifth. Even if she is, it seems to me unlikely that she just sits there waiting for someone to ask her to be the fifth vote, and then signs on to an opinion without trying to influence it.
7.5.2005 5:34pm
William Patry (mail) (www):
Its quite flip to dismiss O'Connor as just the Fifth Vote. While there has been a tremendous amount of publicity about that role in the press, I was trying to suggest in my objection to the politician label that real politicians become the equivalent of a Fifth Vote usually as a deliberate strategy to achieve other objectives. DeConcini played that angle very well with Clinton in the early 1990 budget wars. That is not how O'Connor came to be the Fifth Vote. And even as the Fifth Vote, it is inaccurate to say she just voted and didn't persuade. For example, in the Sony Betamax case, she was the Fifth Vote who switched from Blackmun to give Stevens his majority. But she switched only after repeated attempts to persuade Blackmun to make changes and after Brennan too had failed to get Blackmun to make those changes.

But more to the point, I beleive she prided herself most on her ability to forge consensus, particularly 9-0 decisions. For example, in the 1989 and 1990 cases, respecitvely of Bonito Boats and Feist Telephone Service, she wrote for a 9-0 Court in setting out important parameters for intellectual property. She worked hardest in seeking agreement, not in being the macher.
7.5.2005 5:42pm
big dirigible (mail) (www):
Stuntz's struck me as a strange article. It's about Powell, which is ancient history. O'Connor seems to be tacked on there to make it mildly topical.

O'Connor's career and its impact on the court is the more pressing concern right now, rather than Powell's. But the author perhaps knows more about Powell than O'Connor, so he writes an article about Powell but pretends it's about O'Connor. Which leads to few useful insights. There's more useful information, and informed speculation, in the comments section here than in the cited article.
7.5.2005 6:24pm
A Blogger:
"Its quite flip to dismiss O'Connor as just the Fifth Vote."

I don't think that's right. SOC has voted in approximately 2,000 merits cases in her time on the court. In a good number of those cases, and in an usual number of the close ones, she was in the position of being lobbied for her critical vote, not in the position of lobbying others. The fact that this did not occur in three IP cases doesn't seem to say much.
7.5.2005 7:19pm
William Patry (mail) (www):
I was giving the 3 IP cases merely as an illustration of what she strove for. (Park N Fly is another, by the way). I don't think she strove to be the 5th vote. That would infer she had a position, and held back so she could be lobbied; I don't think there is any evidence of that. I gave Sony as evidence, real evidence, not speculation, that even in a case where she ended up being the 5th vote (and she was one of six until Brennan jumped ship a day before) that she did try to work things out, and quite constructively. What would probably be most helpful is figuring out, in those 2,000 cases, which her vote was in play. Her vote being important in close cases could, and I think probably is, a result of the make-up of the Court, not a result of her make-up and that's the real point of my objection.
7.5.2005 8:18pm