elusive justice A gracious _ and elusive _ justice
Chicago Tribune, editorial, July 2

It is always a wistful moment when a pioneer rides off into the sunset, and so it is with Sandra Day O'Connor, the first woman to sit on the U.S. Supreme Court. "For an old ranching girl, you turned out pretty good," President Bush told O'Connor in a phone conversation Friday as she announced her retirement from the high court after 24 years.

For some, the 75-year-old O'Connor, who roped steers growing up in the Arizona scrubland on her father's Lazy B cattle ranch, leaves a legacy of independence and pragmatism that transcends the groundbreaking symbolism of her 1981 appointment by Ronald Reagan.

But she could also be maddeningly elusive. She would have been an effective moderate Republican in Congress _ she served in the Arizona legislature. She knew how to reach consensus. But it was often difficult to find a legal philosophy guiding her decisions on the court. She frustrated many on the right who wanted her to fit into the strict constructionist mold of Justices Antonin Scalia and Clarence Thomas.

How would a case come out? "It will be 4 to 4, and the outcome will depend on what Sandra Day O'Connor had for breakfast." No one seems to remember who said that first, but it was the safest prediction for the outcome of a decision during her tenure.

She was the only justice in recent years to have held elective office, and the experience of having to compromise to get things done helped mold her independent streak.

On a court increasingly polarized along ideological lines, she often staked out the middle ground. She was the swing vote in a large number of 5-4 decisions, usually a conservative advocate of state's rights, but one who sometimes sided with liberals on sensitive matters, from reinforcing the Americans With Disabilities Act to allowing legislative boundaries to be drawn to protect the voting rights of minorities.

That rendered her the wild card on the court _ but it also magnified her power. O'Connor was on the majority end of the 5-4 decision to effectively hand the disputed 2000 presidential election to Bush. In 1992, she was the tiebreaker in a decision that upheld the right to an abortion. In 1989, she authored a decision that struck down a minority set-aside program for construction projects, but in 2003 backed the right of universities in some circumstances to use affirmative action programs.

As Douglas Laycock, a professor of constitutional law at the University of Texas, said, O'Connor's opinions often turned on narrow facts at a time when others on the court stressed grand principles. In the 1980s, she voted on opposite sides in two cases involving the propriety of nativity scenes on public property. She thought one OK because it also included candy canes and Santa Clauses, but the other violated the separation of church and state because it lacked any such secular garnishments.

O'Connor has acknowledged the pressure of being the first woman on the court. "I've always said it's fine to be the first, but you don't want to be the last," she told the Tribune in 2003. "I was acutely aware of the negative consequences if I arrived here and did a poor job."

She served as a poised, gracious and ethical member of the court.

But, though Bush may have flattered an old ranching girl as she rode off, chances are he will look for a more philosophically consistent justice to succeed her.  ¶ 7/02/2005 11:48:00 PM