Touching, and Touche-ing

Sandra Day O'Connor is retiring, and if I'm the first person you've heard it from, you need to expand your reading list a bit. Everybody under the sun is blogging about this, and saying essentially the same thing--the fight will be brutal, Democrats are essentially irrelevant to the process, Conservatives are laying down their red lines, abortion will be the sticking point, and Bush has zero incentive to nominate anybody remotely sane. More interestingly, Legal Fiction pines for McConnell (that's not the interesting part), but does a flip and then a reflip on Gonzalez. Neither, I think, will happen, though O'Connor retiring first might give McConnell a new lease on life.

I can't hardly wait for this.

But lo! The administration has announced that Bush won't be naming his nominee for another week! So there's still plenty of time for folks to give O'Connor the respect she deserves, right?

Enter my favorite player in the farce that is to follow, The Family Research Council. Here was their oh-so-respectful statement on O'Connor's tenure on the Court:

Washington, D.C. - Family Research Council thanks Justice O'Connor, the first woman on the United States Supreme Court, for her nearly twenty-four years of public service.

"The Family Research Council often found itself on the opposite side of her most controversial decisions," said Tony Perkins, president of Family Research Council.

"This past week Justice O'Connor sided with judicial activists and ruled against the display of the Ten Commandments on public property in two cases before the high court that have offended the values of a great segment of the American public.

"I am confident that President Bush will name a replacement for Justice O'Connor who has the same judicial philosophy as Justices Antonin Scalia and Clarence Thomas, as he indicated he would in his reelection campaign.

"The public is primed for the fight it will take to confirm a nominee. FRC can motivate significant grassroots support for the President's nominees. We will wage an unprecedented effort for a fair and prompt up or down vote through the mobilization of 20,000 churches across the nation, weekly conference calls in targeted states, the strengthening of the FRC team and activation of grassroots through www.frc.org"

The distilled version: "Thank you, you were an evil activist, let's replace you with someone radically opposed to your judicial philosophy, and we're mobilizing the troops right now to do it!"

Or as John Cole put it regarding a similar statement by James Dobson,

It couldn't be clearer. The statement wasn't "We would like to thank Sandra Day O'Connor for her service and look forward to an opportunity to participate in the debate over her successor," it was "Don't let the door hit you in the ass and bring on the rapture."

How sweet.

Oh, and a brief aside while we're on the subject. O'Connor was a legal pragmatist, while folks like Scalia or Thomas are idealists. As Eugene Volokh put it:

Justice Scalia described his jurisprudence as "The Rule of Law as the Law of Rules."

Justice O'Connor, a pragmatist, saw the work of the law as making law work.

If you believe, as I do, that law should transcend politics, then that is a far more relevant distinction for judges than liberal/conservative. Replacing the Court's foremost pragmatist with a rigid ideologue would constitute a radical shift--even if it appears on the surface to be merely moderate conservative to conservative.

Speaking of, there is an interesting discussion going on about how Democrats should frame O'Connor's tenure. Contra our Republican friends, everyone seems to agree that it should be respectful. The split is between Kevin Drum and Greg Saunders. The former thinks that instead of calling O'Connor a "moderate", we should instead use phrases like "thoughtful conservative." Placing O'Connor as the "center" would shift the judicial playing field way off to the right, hurting Democrats in the long run. The latter thinks that calling O'Connor a "moderate" will serve as a contrast to whomever Bush choices to succeed her--the public is a lot less likely to stand for a conservative replacing a moderate compared to a conservative replacing a conservative.

I fall with Drum, but for different reasons. I think calling O'Connor a "thoughtful conservative" will play out in two ways in the minds of voters. First, as Drum says, it will remind them that she is not us--that is, O'Connor is not the mainstream (which would put Democrats on the left fringe). This is rather believable, after all, most people know that O'Connor was a "swing vote" and thus opposed Democrats at least a fair number of times. But calling her a "thoughtful" conservative shows that Democrats are not opposed to the principle of opposition. It says "yes, we recognize that there are smart, fair, and intelligent conservatives, and we would welcome Bush's nomination of one." In addition to making Bush's (undoubtedly more conservative) choice look extreme ("Why couldn't he nominate someone like O'Connor? She's a conservative, but not like that lunatic Owens/Rogers Brown/Alito!"), it has the added bonus of dovetailing nicely with the "GOP gone power-mad" theme Democrats have been pushing for 2006--Democrats are sensible and looking for consensus, Republicans think that opposing their policies constitutes treason. Hmm...not too far from the truth, actually (at least for some Republicans).

Mark in Mexico has a giant roundup, as does, of course, The Moderate Voice and Scared Monkeys.