I want to get back to the marriage amendment when I have a little time later, but I can't resist commenting on retired Justice Sandra Day O'Connor's speech at Georgetown University.
Justice O'Connor is angry about people who get angry about judicial decisions. Our job, she says, will entail making people mad and they ought not to retaliate by, for example, limiting the courts' jurisdiction or cut their budget. Or engage in "attacks." Somehow all of this is supposed to be connected to death threats on judges.
In the weeks following O'Connor's announcement of her retirement, she was, as people who are on the way out typically are, celebrated as a great jurist. During the Roberts and Alito hearing, the Dems repeatedly called for a nominee in the mold of Justice O'Connor.
That is the last thing we need. Justice O'Connor is a bright lawyer, but her decisions were often confused by her desire to impose her own sense of perfect justice. That her sense of what that entailed was not as off the wall as that of, say, Justices Ginsburg and Stevens doesn't change the fact that she was so often asking the wrong question in the wrong way.
Her speech stands in strong contrast with that of Judge Sykes (someone please tell her I said that so I get more points for my clients by praising her on my obscure blog). There is a reason that people have gotten upset with the Court that remains lost on Justice O'Connor.
O'Connor was known for dreaming up complicated multi-part tests for resolving legal issues. They had two characteristics. One, they were virtually useless in predicting how the next case would be decided. Two, they essentially allowed justices following them to import their own policy views into the constitution. In the establishment clause area, lawyers joked that the test had become WWSD - what would Sandra do?
When you do that, as Justice Scalia observed in a passage that I quoted on Wednesday, you not only get people angry but you also undermine the notion that you are engaging, in so far as is possible, in the discernment of the law and not the imposition of your personal preferences.
You become another political player and political players are subject to political warfare. They don't receive, and are not entitled to, the deference that we might give to judges who are, as Scalia put it, "doing lawyers' work."