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GU Law Faculty Share Views on O'Connor's Legacy

Supreme Court Justice Sandra Day O'Connor's July 1 announcement that she'd be retiring from the high court after more than two decades of service has sparked a flurry of chatter regarding her legacy and speculation over who might fill her seat.

A week after her announcement, faculty members from Georgetown's Law Center assembled for a panel discussion about her decision-making approach and her affect as the "swing vote" in many noteworthy cases.

"She's been referred to as the most powerful woman in America, the most powerful person in America. But at the least -- because of the role she found herself in -- she certainly was the most powerful judge in America for many, many years," said Steven Goldblatt, professor of law and a director of the Law Center's Supreme Court Institute, which sponsored the event.

Two of the panelists, professors Viet Dinh and Jane Stromseth, served as law clerks for O'Connor during her tenure. They remarked on her dedication to the court and the manner in which she evaluated cases.

"Above all we saw her fair-mindedness," Stromseth said. "Justice O'Connor welcomed hearing opposing viewpoints and she valued law clerks with diverse perspectives." Stromseth said the justice was "a demanding boss, but also a warm, supportive boss," who often made lunch for the clerks and took interest in their families, particularly their children, whom she referred to as her "grand-clerks."

While Stromseth and Dinh saw O'Connor's personal side, most Americans knew of her only through her opinions on cases restricting reproductive rights and affirmative action, for example.

Such decisions brought criticism from many conservatives, who thought O'Connor should have voted to outright ban abortion and affirmative action.

But that kind of sweeping action wasn't O'Connor's style, said Professor Nina Pillard, who has argued several civil rights cases before the court. Instead, the justice was a "strong voice … in favor of restrictions on a woman’s right to choose," Pillard said. "She slowed the pace of Constitutional change. She spoke for deliberation for incrementalism, for case-by-case decision-making."

Martin Lederman, a visiting professor of law, noted that O'Connor based her decision-making on specific facts and details of the case in question, and wrote her opinions narrowly, so they often had little impact on situations beyond the case at hand.

This case-by-case decision-making led some critics to find inconsistencies in her opinions. "I understand you're supposed to be nice to someone when they retire," said Professor Michael Seidman, who served as a law clerk for former Justice Thurgood Marshall. "But her current cannonization is a little hard to take. … Justice O'Connor is a person of very limited abilities, with even more limited vision. She has no discernable theory about what she’s doing and no discernable principle under which she decided cases other than an unfailing instinct for finding legal rules embedded in our Constitution that somehow always supported the electoral prospects of the Republican Party."

Dinh later struck back at the critics, saying that perhaps it's just a sign of the ideological explosiveness of the times that "an honest, common-law judge could be criticized as unprincipled [or] inconsistent."

"[Her's] is not a juris prudence that is devoid of philosophy or of principle," Dinh said, "but rather it is a principle that carries forth from a very proud American intellectual history starting in the late 19th century continuing into the early 20th century -- that of pragmatism."


Source: Blue & Gray (July 25, 2005)


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'She's been referred to as the most powerful woman in America, the most powerful person in America. But at the least -- because of the role she found herself in -- she certainly was the most powerful judge in America for many, many years.' -- Steven Goldblatt, professor of law

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