Saturday, July 02, 2005

My nominee. To replace Justice O'Connor Mary Ann Glendon, for reasons stated here.

Friday, July 01, 2005

Sandy Baby. Sandra Day O'Connor was a brilliant choice by President Reagan -- a surprise -- never as popular with the conservatives as Antonin Scalia, but far better than Anthony Kennedy. I had the pleasure of meeting her on two occasions -- she was always pleasant and gracious. Despite what John Riggens said, she had no need to "loosen up."

My favorite opinion was her concurring opinion in Johnson v. Transportation Agency. In this case, the liberal bloc essentially upheld quotas in hiring no matter what and the conservative bloc would strike them down. Justice O'Connor noted that the Santa Clara transportation agency had not ever hired a woman for the skilled position. Moreover, the woman (Diane Joyce) who had been selected scored a 73 on the qualifying test whereas the man who sued seeking the job scored a 75. The qualifying grade was a70 or above. This was not merely a case where O'Connor split the difference -- she looked to the record. It wasn't just a matter of sex (which the liberal block saw) or test scores (the conservative block) -- it was a consideration of all factors, including experience, background, education, and, yes, the fact that the County had failed to ever hire any women for that position.

She was a judge of common sense. Unfortunately, she didn't always apply it. My least favorite opinion was when she joined with Kennedy and Souter in Planned Parenthood v. Casey where she wrote this accursed phrase:
At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

She was at her best in the 1983 Akron case, a dissent:
The Roe framework, then, is clearly on a collision course with itself. As the medical risks of various abortion procedures decrease, the point at which the State may regulate for reasons of maternal health is moved further forward to actual childbirth. As medical science becomes better able to provide for the separate existence of the fetus, the point of viability is moved further back toward conception. Moreover, it is clear that the trimester approach violates the fundamental aspiration of judicial decisionmaking through the application of neutral principles "sufficiently absolute to give them roots throughout the community and continuity over significant periods of time . . . ." A. Cox, The Role of the Supreme Court in American Government 114 (1976). The Roe framework is inherently tied to the state of medical technology that exists whenever particular litigation ensues. Although legislatures are better suited to make the necessary factual judgments in this area, the Court's framework forces legislatures, as a matter of constitutional law, to speculate about what constitutes "accepted medical practice" at any given time. Without the necessary expertise or ability, courts must then pretend to act as science review boards and examine those legislative judgments.
It's too bad she lost her nerve...

Monday, June 27, 2005

Travelogue. I'm in Austin today -- we've spent the weekend in Bandera, TX at the Dixie Dude Ranch for a family reunion. Naturally, with the 10 commandments decisions coming out today, I'm heading for the state capitol building to see this controversial display. A good discussion blog here.


Here's a picture of us with the monument (My middle daughter, Sarah is next to me, then my son, Joe, our baby, Emilie and our oldest, Joy):