LOS ANGELES - The American Civil Liberties Union of Southern California today expressed great concern that the Bush administration will replace Justice Sandra Day O'Connor, who announced her retirement today after more than two decades on the court, with a nominee whose judicial philosophy is fundamentally opposed to the progress made in protecting individual rights over the past century.
"Justice O'Connor's legacy will be of a conscientious judge who, as a centrist and a conservative, at certain critical junctures, resisted extremist ideology on the Court that would have stripped the constitution of its sensitivity to such core values as protection against gender and racial discrimination and subordinated the rights of the individual to the power of the executive. We are gravely concerned that President Bush will use this opportunity to nominate someone whose judicial philosophy is hostile to civil liberties," said ACLU/SC Legal Director Mark Rosenbaum. O'Connor wrote the majority opinion in Rosenbaum's first case before the Supreme Court (Kolender v. Lawson), supporting the constitutional rights of a Los Angeles man repeatedly stopped by police.
As a matter of policy, the ACLU will only oppose nominees to the Supreme Court that are fundamentally hostile to civil liberties and will do so upon a vote of the board of directors. The national board of the ACLU has voted to oppose only two nominees in its history: Justice William Rehnquist and former solicitor general and law professor Robert Bork.
Although her record on the court is mixed on civil liberties, Justice O'Connor has provided the crucial fifth vote in a number of cases implicating core civil liberties. For instance, she wrote the opinion upholding equal opportunity programs and the importance of diversity in college admissions in Grutter v. Bollinger. She often was instrumental in resisting attempts to undo many of this nation's most cherished rights such as a woman's right to choose.
She also wrote the opinion in Hamdi v. Rumsfeld, in which the court ruled that an American citizen seized overseas as an "enemy combatant" must be allowed to challenge the factual basis of his or her detention before an independent arbiter. Affirming the rule of law even during times of national crisis, O'Connor wrote: "We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens."
Although the majority opinion in Hamdi is far from perfect, it remains a strong rebuke of the Bush administration, which had argued for absolute power to detain American citizens seized overseas in military custody without charge, trial or access to counsel.
And in Planned Parenthood v. Casey, she broke with Chief Justice Rehnquist and other opponents of a woman's right to choose as part of a 6-3 majority in affirming Roe v. Wade.
"O'Connor's resignation and the nomination of her successor could directly affect the outcome of some of the most divisive legal questions facing America today," said ACLU/SC Executive Director Ramona Ripston. "The rights of women, American detainees, death row inmates and all of us under the Patriot Act could be in jeopardy."