Former Rep. Barney Frank writes a stinging letter to the New York Times, arguing that Justice O’Connor only has herself to blame for the Court’s opinion in Citizens United. Why? She retired too early. Barney calls this “resignation remorse.”
To the Editor:
Adam Liptak’s appropriately tough review of Sandra Day O’Connor’s“Out of Order” (March 31) is actually too easy on the former justice on one count. He notes her chagrin that the Supreme Court, in his words, has “been busy disassembling her work,” and quotes her as saying, after the Citizens United charter for unrestrained corporate political spending, “I step away for a couple of years and there’s no telling what’s going to happen.”
But these reversals of her jurisprudence were entirely predictable results of her decision to time her resignation so that George W. Bush could replace her. After the 2000 election she said that because there was a Republican president, she could retire. Had O’Connor retired during the Clinton presidency, her successor would almost certainly have supported her decisions on campaign funding, abortion and affirmative action.
What she is expressing is an example of “resignation remorse,” and she should not be surprised by what she enabled.
I would generally say that such an editorial about a Justice is inappropriate, but O’Connor opened the door. After the 2000 election, she in fact told people that she intended to retire during a Republic administration. Foolish. Justice Ginsburg no doubt has similar thoughts, though she hasn’t been as crass to say she wants to retire during a Democratic presidency–she uses the much more pleasant ruse that she wants to match Justice Brandeis!
Then again, O’Connor has also said that the Republican party (she knew) has no bearing to today’s Republican party. Though, she should’ve known what George W. Bush thought–she ruled against him enough times.
In a way, Frank’s letters is the post-hoc version of what I have seen elsewhere–efforts to shame a Justice to retiring early so a Democratic president can appoint them. Think of their legacy, the pundits say. We saw this with RBG last term and this term. Frank is doing it in reverse. By retiring too late, O’Connor soiled her own legacy. She should’ve stepped down during Clinton’s presidency! As should’ve Stevens, no?
No doubt, this is a hint to Justice Ginsburg, lest she stick around till 2017.
And what about Justice Stevens! What is he complaining about on his rehabilitation tour? He waited through eight painful year of GW Bush, and even gave his buddy David a one-year head start to retire first. Any remorse is his own. Why didn’t he retire before 2000. He had been on the Court a long time. Surely a younger, more vigorous replacement could have guided the Court in a more progressive direction.
Update: A few people have pointed out that Justice O’Connor retired in order to take care of her husband. That is absolutely true. However, O’Connor confided in people during the 2000 election that she would retire during a Republican presidency. Whether O’Connor stepped down in 2005 to care for her husband, or in 2007, when Bush was on his way out, wouldn’t change Frank’s frank criticism (I can’t believe I am defending Barney Frank! First time for everything).
Update 2: Here is the original Newsweek article I was referring to:
Supreme Court Justice Sandra Day O’Connor and her husband, John, a Washington lawyer, have long been comfortable on the cocktail and charity-ball circuit. So at an election-night party on Nov. 7, surrounded for the most part by friends and familiar acquaintances, she let her guard drop for a moment when she heard the first critical returns shortly before 8 p.m. Sitting in her hostess’s den, staring at a small black-and-white television set, she visibly started when CBS anchor Dan Rather called Florida for Al Gore. “This is terrible,” she exclaimed. She explained to another partygoer that Gore’s reported victory in Florida meant that the election was “over,” since Gore had already carried two other swing states, Michigan and Illinois.
Moments later, with an air of obvious disgust, she rose to get a plate of food, leaving it to her husband to explain her somewhat uncharacteristic outburst. John O’Connor said his wife was upset because they wanted to retire to Arizona, and a Gore win meant they’d have to wait another four years. O’Connor, the former Republican majority leader of the Arizona State Senate and a 1981 Ronald Reagan appointee, did not want a Democrat to name her successor. Two witnesses described this extraordinary scene to NEWSWEEK. Responding through a spokesman at the high court, O’Connor had no comment.