the new republic Ǡ march 6, 2006 33

was able to attain what he could not at- the prison house of the author’s self to had been recorded. If Starr had taken tain elsewhere: the exercise of mastery, achieve universal sweep, in this case such a step he would have discovered in which the beautifully articulated for- probing human dreams and delusions that the proposed legislation was front- mal elements of the story lock together about justice and law and pondering an page news and the subject of consider- in an absorbing narrative whole. Like idea of writing as a painful revelation able controversy in Arizona eleven the best of his fiction, it moves beyond that collapses into murderous chaos. ½ years earlier—and that O’Connor had voted for the measure to decriminalize abortion.” Instead of undertaking his own in- David J. Garrow dependent inquiry, Biskupic observes, “Starr had taken O’Connor’s word for everything.” In so doing, he had The Unlikely Center smoothed her way to a nomination that almost certainly would have been denied her had those old news clippings been discovered. But in those days Supreme Sandra Day O’Connor: at all,” since O’Connor was a “judicial Court nominees, even potentially piv- How the First Woman on unknown,” but Reagan was intrigued by otal ones, were not investigated with the the Supreme Court O’Connor’s upbringing on an Arizona rigor that journalists would deploy to- Became Its Most cattle ranch. ward, or against, Harriet Miers and Sam- Influential Justice Starr flew to Phoenix to interview uel Alito twenty-four years later. By Joan Biskupic O’Connor, and then Smith called to in- (HarperCollins, 419 pp., $26.95) vite her to Washington. On July 1, Rea- Connor’s status as the gan and Smith, with presidential advis- first female nominee to the David Hackett Souter: ers Michael Deaver and James Baker, high court certainly did not Traditional Republican met with O’Connor for forty-five min- ’protect her from harsh on the Rehnquist Court utes. Reagan had won the presidency Ocriticism. The Nation lambasted O’Con- By Tinsley E. Yarbrough as a fervent right-to-life supporter, and nor as “barely qualified” and complained (Oxford University Press, O’Connor was asked directly for her that Reagan had chosen her “almost en- 311 pp., $29.95) views. “She told Reagan she was per- tirely because of her sex and not on the sonally against abortion,” Joan Biskupic basis of individual merit.” The Nation’s enneth W. Starr was reports in her superbly thorough and editors further declared that “O’Con- a gullible and slipshod perceptive biography.“She said she con- nor’s record is not even close to Supreme investigator. No, not in sidered the procedure ‘abhorrent.’ ” Court quality. She was not an exceptional his all-too-thorough probe When O’Connor’s name was leaked lawyer or legal scholar, nor is she an out- of Bill Clinton’s dalliance to reporters as a possible nominee, anti- standing judge.” In front of the Senate Ju- Kwith a White House intern, but seven- abortion activists objected, citing con- diciary Committee, however, O’Connor teen years earlier, when he was the cerns about O’Connor’s position as an acquitted herself flawlessly. Fred Bar- Reagan administration’s point man in Arizona state senator in 1970 on a bill bash of The Washington Post described the background vetting of a Supreme that would have decriminalized abor- O’Connor as “the very essence of com- Court nominee. tion. The measure never came to a floor posure and self-confidence: even-voiced During the presidential campaign in vote, but O’Connor had served on the and even-tempered.” She also reprised 1980, Ronald Reagan had declared that committee that considered it. “There is the denunciations of abortion that she if elected, “one of the first Supreme no record of how Senator O’Connor had offered Reagan. She attested to “my Court vacancies in my administration voted, and she indicated that she has no own abhorrence of abortion as a rem- will be filled by the most qualified wom- recollection of how she voted,” Starr edy” and added that it “is simply offen- an I can find.” A year earlier, Sandra wrote in a memo to Smith. Reagan and sive to me. It is something that is repug- Day O’Connor, then an Arizona Superi- his advisers discounted the abortion op- nant to me.” or Court judge, had met Chief Justice ponents’ complaints, and on July 7 the Biskupic observes that O’Connor’s Warren E. Burger, an inveterate political president announced O’Connor’s selec- three days of testimony “revealed little,” schmoozer, on a vacation outing. Soon tion. Journalists asked if he had person- but she rightly notes that confirmation thereafter, Governor Bruce Babbitt, a ally confirmed O’Connor’s right-to-life hearings, then as now, are “rituals de- Democrat, promoted O’Connor to Ari- sentiments, and Reagan answered “yes.” signed to appease rather than to ex- zona’s intermediate appeals court.When He was “completely satisfied.” pose.” No controversy over O’Connor’s the retirement of Justice Potter Stewart But Starr had committed a huge er- abortion record developed, and the Sen- in June 1981 presented President Rea- ror. On April 29, 1970, O’Connor had gan with his first high court vacancy,At- voted to repeal Arizona’s anti-abortion David J. Garrow, a senior fellow at torney General William French Smith al- law, and two prominent Phoenix news- Homerton College, Cambridge, is the ready had O’Connor’s name on his papers publicly reported her vote.When author of Liberty and Sexuality: private short list. Starr, then Smith’s top asked by Biskupic to explain his over- The Right to Privacy and the Making aide, later acknowledged that “there was sight, “Starr said he had no reason to of ROE v. WADE (University of Califor- a certain oddity to her being in the mix check local newspapers to see if her vote nia Press). 34 march 6, 2006 Ǡ the new republic ate unanimously approved her nomina- school, college, or bar association was Scalia’s first year was also Powell’s last. tion by a vote of ninety-nine to zero. too obscure or too distant for O’Connor “Your announcement leaves me devas- if a speaking invitation was extended. tated,” O’Connor wrote to Powell upon he Supreme Court bench O’Connor’s talks rarely offered signifi- learning of his retirement. He was “ir- that O’Connor joined in cant substance or notable stimulation, replaceable,” O’Connor told him, for September 1981 was a frac- and Biskupic does not explain what mo- “no one on the Court has been kinder tious and relatively leader- tivated her to travel hither and yon with than you. There is no one with whom I Tless group. Chief Justice Warren Burger a frequency that far outstripped any of have felt as free to discuss our cases and had lost his colleagues’ respect. William her colleagues. O’Connor’s ubiquity did how to resolve them.” J. Brennan Jr. could usually muster not endear her to everyone: when the In Biskupic’s account, O’Connor’s Thurgood Marshall and Harry A. Black- New York Women’s Bar Association an- increasing influence came largely at the mun on behalf of liberal rulings, but nounced an award to O’Connor in 1984, expense of Brennan. Brennan turned securing a majority required winning sixty lawyers and law professors signed eighty in 1986, and with the old lib- over the iconoclastic John Paul Stevens a protest letter calling it “incomprehen- eral “relying more on his clerks,” lead- and either the dour Byron R. White sible and extremely disturbing” that a ership of the Court began “slipping from or the genteel Lewis F. Powell. The women’s group would honor “token ap- Brennan’s grasp into O’Connor’s,” Bis- youngest justice, William H. Rehnquist, pointees who undermine our goals.” kupic writes. “O’Connor managed the possessed a conservative vision but resolution of cases in a way that increas- rarely prevailed in significant cases. nside the Court in the mid- ingly caught Brennan off guard,” and Biskupic offers excellent and original 1980s, O’Connor’s influence in- “in negotiations with other justices, she portrayals of the justices’ relations with creased as Powell weakened with often accentuated her state legislative one another. During O’Connor’s earli- age. Biskupic portrays Powell as and state court experience. Her message est years, “she collaborated with Powell, Ia “gentlemanly peacemaker” who was was that she knew the practical effects fell into an adversary role with Brennan, “the bridge between the ideological of rulings.” and was a regular target for Blackmun’s poles” that Brennan and Rehnquist rep- cutting remarks.” Powell became O’Con- resented. When a long hospital stay iskupic does an impressive nor’s “closest colleague,” and they in- kept Powell away from the Court in ear- job of emphasizing how O’Con- creasingly teamed up on difficult cases. ly 1985, “his absence exacerbated ten- nor’s six years as an Arizona Brennan’s and O’Connor’s substantive sions that had been rising” for months. state senator sharpened the legal views “differed sharply. But they Biskupic quotes at length from a mem- Bskills that allowed her to become an were even more at odds personally,” orable letter that Rehnquist wrote to influential justice. O’Connor served a Biskupic writes, Brennan’s reputation the absent Powell, recounting with re- stint as senate majority leader prior to as a judicial charmer notwithstanding. markable frankness the foibles of their becoming a judge, and Biskupic repeat- O’Connor’s gender influenced their re- colleagues in the justices’ private con- edly invokes O’Connor’s legislative ex- lationship, just as it also affected Black- ference. “I sometimes wish that nei- perience as the lens through which her mun’s behavior toward her. ther the Chief nor Bill Brennan would judicial success must be understood. Biskupic unearths a long-forgotten write out all their remarks beforehand Still, the O’Connor who sat on the U.S. article from 1982 by Stephen Wermiel, and deliver them verbatim from the Supreme Court from 1989 until early a careful and insightful journalist who written page,” Rehnquist wrote. Bren- 2006 repeatedly seemed far more mod- covered the Court for The Wall Street nan “sounds like someone reading aloud erate, and far less conservative, than Journal. “The frequency with which Jus- a rather long and uninteresting recipe. the younger jurist who throughout the tice Blackmun has made comments, Then of course Harry Blackmun can early and mid-1980s sounded eager to always off the record, about Justice usually find two or three sinister aspects overturn Roe v. Wade and eliminate affir- O’Connor, surely suggests some hard of every case which ‘disturb’ him, al- mative action. feelings,” Wermiel wrote. “Some Court though they have nothing to do with the That move toward the center cli- watchers suggest that Mr. Blackmun merits of the question. And John Ste- maxed soon after O’Connor experi- may resent the favorable publicity and vens, today, as always, felt very strongly enced the first great personal crisis of her attention focused on Mrs. O’Connor’s about every case.” life, a diagnosis of breast cancer in 1988. arrival last fall. But the justices scoff at Powell’s decline and departure co- Immediate surgery was necessary, and suggestions of feuds.” Biskupic more incided with O’Connor’s own blos- “she was very scared,” her son Jay told than confirms Wermiel’s reporting, de- soming. Biskupic records that by 1985 Biskupic. “I had never seen her like tailing how Blackmun “often mimicked O’Connor “was making a turn from this.” When her “life-threatening expe- O’Connor to his law clerks.” In sharp being a reliable conservative vote to rience with cancer” was past, O’Connor contrast, O’Connor’s clerks understood becoming a more centrist justice,” and exhibited the “increased determination” that she “did not abide the demeaning her evolution became even more pro- of “an emboldened survivor,” Biskupic of other justices in casual conversation nounced just a few years later. In 1986 writes. “Her confrontations with fellow or writing, as was sometimes allowed in Burger retired, and Rehnquist became justices were overt and had a new clar- other chambers.” chief justice after surviving a bruising ity,” as Webster v. Reproductive Health Outside the Court, O’Connor adopt- Senate confirmation battle. Antonin Services, a 1989 abortion case, starkly re- ed “a pace of extra-curricular activi- Scalia won unanimous approval to take vealed. First in a 1983 case, and again in ties that would, over the years, become Rehnquist’s seat, but he “immediate- a 1986 one, O’Connor had harshly criti- part of her national persona.” No law ly alienated Powell,” Biskupic reports. cized Roe v. Wade, but in Biskupic’s view the new republic Ǡ march 6, 2006 35 she “was never ready to sign an opinion O’Connor, then Kennedy, and finally when O’Connor learned in the early undermining the core of Roe.” Souter. 1990s that Brennan was quietly allow- In Webster, O’Connor surprised most This trio’s decisive importance was ing selected writers to read his old case observers by refusing to join Rehnquist, highlighted in 1992 by the astonish- files, including ones that post-dated her White, Scalia, and Anthony Kennedy, ing decision in Planned Parenthood v. arrival on the Court, she bluntly up- who had replaced Powell, as the crucial Casey, a case almost everyone had ex- braided him. Several years later, when fifth vote against Roe. Six years earlier pected would result in Roe v. Wade’s Marshall’s papers were opened to re- she not only had claimed that Roe’s demise. Instead, a five-justice majority searchers following his death, O’Con- trimester-based analysis of abortion was re-affirmed abortion’s constitutionally nor took the lead in protesting their “on a collision course with itself,” but protected status. (Casey is once again access. But O’Connor and others ab- also had declared that “potential life is a familiar case owing to then–Judge sorbed an even worse affront in 2004, no less potential in the first weeks of Samuel Alito’s sole dissent in favor of when Blackmun’s copious files became pregnancy than it is at viability or after- Pennsylvania’s spousal-notice require- publicly available five years after his ward.” Those sounded like the words of ment when the case was before the U.S. death. As Biskupic understatedly re- the nominee who had assured Ronald Court of Appeals for the Third Cir- ports, multiple “justices revealed pri- Reagan that abortion was “abhorrent”; cuit.) When Casey reached the Supreme vately that they felt Blackmun had be- but in Webster, “with her vote now Court, Souter and O’Connor recruited trayed the institution.” the decisive one,” O’Connor “retreated” Kennedy, who had endorsed an explic- Souter’s status as the conservatives’ from her earlier criticisms of Roe and itly anti-Roe opinion just three years bête noire hinges on a controversy that declined to reconsider its constitution- earlier in Webster, as a surprise fifth vote dates back to his nomination as Bren- al validity. to uphold the core of Roe. nan’s successor in 1990. At the time, Biskupic calls Webster “a turning At that time, Kennedy was far more many observers wrongly viewed Sou- point in [O’Connor’s] acceptance of extensively excoriated by anti-Roe par- ter’s selection as the handiwork of the right to abortion,” and in retrospect tisans than either O’Connor or Souter. White House Chief of Staff John Sunu- Webster also marked a breaking point Yet as the years have passed, Souter’s nu, a former New Hampshire gover- between the consistent conservatism supposed apostasy has come to loom nor who had promoted Souter from the that O’Connor demonstrated during her larger to conservative right-to-lifers trial bench to the state Supreme Court early years on the Court and the far than have O’Connor’s or Kennedy’s in 1983. But as anyone knowledgeable more socially conscious moderation votes. O’Connor’s drawn-out retire- about New Hampshire Republican poli- that dominated much of her jurispru- ment from the Court has elicited count- dence in the years after 1989. From less hosannas for her deliberate and Kennedy’s arrival in early 1988, through consensus-affirming positions on a host the departures of Brennan in 1990, Mar- of hot-button issues. In decided contrast, shall in 1991, and then White and Black- the utterly private Souter, who totally mun in 1993 and 1994, the Supreme shies away from the public-speaking op- Court saw more than half its member- portunities that repeatedly draw both ship turn over in just six years. Those O’Connor and Kennedy into the public changes left O’Connor as the third most eye, has become the favorite whipping senior justice, after Rehnquist and Ste- boy for right-wingers angry that the vens, and they also solidified her role at Court has not reversed course on a host the ideological center of a Court that of socially controversial issues. otherwise could split evenly in many high-visibility cases. insley Yarbrough’s biog- raphy of Souter is vastly dif- he new justices who ar- ferent from Biskupic’s life of rived in the early 1990s— his colleague. While O’Con- David Souter and Clarence Tnor’s family members and all her fellow Thomas as nominees of Presi- justices except Souter gave interviews Tdent George H. W. Bush, and then Ruth to Biskupic, Yarbrough was shut out of Bader Ginsburg and Stephen Breyer Souter’s personal circle, with the ex- as nominees of Bill Clinton—added one ception of just a few New Hampshire vote to the Court’s conservative wing acquaintances. “He declined to be in- and three votes to what passed for the terviewed for this book, as did his law left. None of the newcomers was a clerks,” Yarbrough writes. “Cooperation crusading judicial progressive in the tra- in such a project, he told one of his dition of Brennan, Marshall, and even- friends, might offend certain of his tually Blackmun, but the conservative colleagues on the Court.” Ironically, the trio of Rehnquist, Scalia, and Thomas colleague Souter most likely had in found its ability to shift the Court right- mind was O’Connor, who was always ward hugely constrained by the three especially leery about scholars’ obtain- Republican nominees who were evolv- ing private information about the jus- ing in somewhat unexpected ways—first tices’ work habits. As Biskupic recounts, 36 march 6, 2006 Ǡ the new republic tics recognized, Souter was actually the ing precedents. He was in no sense an you an element of sociability”—though protégé of Senator Warren Rudman, ideologue. some of their colleagues might ques- a decidedly moderate Republican, who tion just how much—“and I think he had energetically recommended him to fter winning overwhelm- gave you the share otherwise reserved President Bush. Years earlier, as New ing Senate confirmation by for me.” Hampshire’s attorney general, Rudman a vote of ninety to nine, had named Souter his deputy. He then Souter found the learning arbrough endorses today’s arranged Souter’s appointment as his curveA of a new justice to be steep in- consensus view that in his fif- own successor and later to a series of deed. He admitted during his first year teen years as a justice Souter judgeships, culminating with Souter’s that he was simply “trying to keep from has accumulated “an increas- confirmation to a seat on the U.S. Court being inundated by the flow of things Yingly liberal voting record,” so that he of Appeals for the First Circuit earlier to be done,” and the following summer now is, “in most issue areas, one of the in 1990. he immediately retreated home to New most liberal justices” on the Court. Sim- For anyone willing to acknowledge Hampshire. In a letter declining a speak- ilar comments are numerous indeed; the facts, Yarbrough’s account of Sou- ing invitation that Blackmun had prof- Emily Bazelon recently declared in The ter’s nomination sets the record straight. fered, Souter confessed that “I have Washington Post that “Souter has simply Bush himself told reporters at the time wanted as much as possible to be alone shifted to the left as the country has that “there was almost a certain recusal to come to terms in my own heart with shifted to the right.” But almost no one on the part of Governor Sununu” during what has been happening to me.” He who is closely acquainted with Sou- the selection process, and soon there- added that “I have also felt a need to ter will accept such facile characteriza- after Senator Rudman firmly warned engage in some reading and thinking tions. As a close friend of his recently that “it would be a mistake to associate about matters that will be coming be- told the Concord Monitor,“I don’t think this nomination in any way with John fore the Court.” anyone who knows David thinks he’s Sununu. John Sununu did not know Blackmun’s now-public papers pro- changed one bit since being on the David Souter at the time that he ap- vide that revealing gem, and others. A Court.” And Warren Rudman, Souter’s pointed him to the New Hampshire year later, after Casey had preserved political sponsor and still a good friend, Supreme Court, other than casually.” Roe’s essence, Souter reiterated to made the same point to Legal Times: Indeed, Sununu appointed Souter as Blackmun that “for the time being I’d “Anyone who ever listened to his tes- payment of a political debt to Rudman, like to leave the summer months whol- timony would know that he was a judge and Sununu’s famous claim that Sou- ly free for the kind of self-education I in the model of Harlan or Frankfurter. ter’s Supreme Court nomination repre- have worked at in July and Septem- He certainly wasn’t in the mold of a real sented a “home run” for conservatives ber for the past two years.” In a letter conservative.” (Rudman may be guilty was a bit of right-wing braggadocio that to Blackmun in 1994, Souter self- of a certain ideological presentism in be- he has never managed to live down. deprecatingly cited “the more frighten- lieving that Harlan was not a “real con- In 1990 reporters had a difficult time ing gaps of legal learning that the servative,” whereas Scalia and Thomas getting a clear read on Souter’s judicial Court’s business so clearly exposed” as presumably are.) record in New Hampshire. Nina Toten- a reason for his summer isolation. “I But Charles Douglas, a conservative berg of National Public Radio com- need some period of the year when I former state Supreme Court justice who plained that Souter’s two-hundred-plus can make a close approach to solitude. served with Souter and whose libertar- written opinions on New Hampshire’s I spend each July decompressing and ian streak Souter rarely if ever shared, high court involved only “the most ar- seeing people throughout the month; has protested to the Concord paper that cane and uninteresting state issues.” In when August comes it is time to with- Souter “was a conservative judge, very 1977, a local newspaper had quoted draw as best I can.” definitely a conservative judge on the Souter as remarking that “I don’t think These letters to Blackmun will like- court here. So it was surprising to see unlimited abortions ought to be al- ly remain the best on-the-record por- him change positions when he got to lowed,” but in 1990 few commentators trait of the private Souter for many reading The Washington Post every day.” highlighted an opinion from 1984 in years to come. Yarbrough recounts one Souter does not read The Washington which Souter had applied a state-law of Souter’s New Hampshire friends Post daily or even weekly, but Doug- precedent with which he personally quoting the justice as saying that he las’s sourness is more than mirrored by disagreed. “The consequences of what has “the world’s best job in the world’s John Sununu. Five years ago Sununu I believe was an unsound conclusion worst city,” and Souter’s strong pref- acknowledged feeling “a lot of disap- in that case are not serious enough to erence for spending as few days as pos- pointment in where David Souter has outweigh the value of stare decisis,” he sible in Washington has long been ended up on the Court,” and more re- wrote then. In 1990, Souter told one known. Yet Souter acknowledged not cently Sununu broadened his complaint. journalist that he viewed himself as be- only a deep longing for New Hampshire, “Souter is absolutely different from what ing “closer to the center than some but but also a strong distaste for the public Souter and Souter supporters represent- still on the right side,” but anyone who appearances that have been O’Connor’s ed he was, not only during the vetting watched carefully his confirmation hear- special forte for more than two dec- process but during his whole career,” ing testimony to the Senate Judiciary ades now. “In a perfect world, I would he told Legal Times. “Everybody is dis- Committee should have had no doubts never give another speech, address, appointed, and with all due respect to that Souter was a judicial traditionalist talk, lecture or whatever as long as I those who were not, they were part of with an especially high regard for exist- live,” Souter told Blackmun. “God gave the deception.” the new republic Ǡ march 6, 2006 37

ccusing Souter and Rud- ist jurisprudence firmly grounded in a lier accounts of how Scalia’s repeated man, and perhaps others, of deep commitment to precedent” is ex- aspersions about O’Connor’s opinions practicing “deception” in actly what his confirmation testimony “got under O’Connor’s skin.” Scalia ad- 1990 is sheer bitterness: if any pointed toward. mitted to Biskupic that he had thrown deceptionA occurred, it was practiced by “an occasional barb” at O’Connor, but Sununu on himself. But self-deception arbrough correctly opines John Stevens commented more frankly: may also apply to Souter too, if a that given Souter’s deep pref- “Everybody on the Court from time to little-noted speech he gave three years erence for New Hampshire time has thought he was unwise to take ago is to be taken at face value. Sou- over the nation’s capital, “he such an extreme position, both in tone ter likes flying no more than he enjoys Ymay have little difficulty deciding to and in position. She probably feels the public speaking, so when he traveled leave Washington sooner rather than same way.” to Stanford Law School to speak at a later.” O’Connor’s own retirement an- tribute to the late Gerald Gunther, it nouncement took everyone by complete uch tensions notwithstand- was a highly unusual gesture. In 1994, surprise, including her fellow justices. ing, the final decade of the Rehn- Gunther published a definitive biogra- “I heard it on the radio” on the way to quist Court was a far happier phy of Learned Hand, a federal judge in work, Scalia told Biskupic. Chief Jus- time than either the Burger years New York who became a famous advo- tice Rehnquist, who died two months Sor the late 1980s and early 1990s. “Now, cate of judicial restraint during a judi- later, had told O’Connor that he would you have a group of people who really cial career that stretched from 1909 until not be stepping down, thus clearing the enjoy each other’s company,” Clarence his death in 1961. In 1958, a series of path for O’Connor’s own departure. As Thomas told Biskupic. On oral argument lectures that Hand delivered on the Bill Biskupic tactfully but straightforwardly days, Thomas recounted, all of the jus- of Rights appeared in book form, and in reports, O’Connor’s decision to retire tices finally began to eat lunch together 1976 Souter cited that small volume as a was based largely upon her husband’s “because of Justice O’Connor’s insis- life-changing experience: “I read it and increasingly serious struggle with Alz- tence.” O’Connor may not be leaving be- reread it, and from that came my fatal heimer’s disease. His mental decline had hind any constitutional landmarks, but commitment to the law. And with that begun in the late 1990s with odd bouts there is no doubt that her impact on the commitment a philosophy of constitu- of forgetfulness, and Biskupic suggests Court reached far beyond simply being tional constriction on the law.” that indiscreet comments that John The First Woman. Yarbrough correctly emphasizes that O’Connor made at an election night Looking back at the full story of both “Souter’s record on the U.S. Supreme party in November 2000 about his wife’s O’Connor’s and Souter’s ascendancies Court is hardly consistent with Hand’s desire to retire only during a Republi- to the Court, the lesson is crystal clear jurisprudence”—which makes Souter’s can presidency reflected the disease’s that supporters’ beliefs about how a tribute to Gunther, and to Hand, very impact. Biskupic relates that O’Connor nominee will vote, even on an issue puzzling. “If I had the power, I would herself privately disputes stories that where a president himself boldly asks a see to it that no judge in America entered she was rooting for George Bush over nominee for her personal commitment, office without reading Gerry’s life of Al Gore that night, but Biskupic’s inter- can be dashed when that individual as- Hand,” Souter declared. “It gives good views with other justices shed no addi- cends the bench. Neither Sandra Day counsel to judges of all times and places, tional light on O’Connor’s subsequent O’Connor nor David Souter sought to and particularly to appellate judges like behavior in Bush v. Gore. deceive anyone at the time of their se- me, in the place where I am sitting at this Yet her colleagues’ comments to Bis- lections, but illusions may abound in a very time.” kupic do attest to O’Connor’s impact highly politicized confirmation process, Souter acknowledged that Hand on the Court. Biskupic rightly says that and on the bench as well. Just as most viewed the exercise of judicial power O’Connor cannot “be measured in terms supporters of O’Connor failed to foresee “with a diffidence near to fear some- of a large constitutional vision,” and she her judicial trajectory, and many who times,” but he contended that “Hand’s acknowledges that O’Connor’s procliv- voted for Souter likewise misunderstood necessities are every judge’s common ity for narrow, fact-specific decisions the man before them, so those who cast obligations: suspicion of easy cases, could produce results that “sowed confu- votes for and against Samuel Alito skepticism about clear-edged categories, sion.” As Stephen Breyer, with whom should have done so with the under- modesty in the face of precedent.” O’Connor developed a bond, told Bis- standing that predictions about future Souter said that to “just decide the cases kupic, “If there are great unknowns out judicial behavior are often wrong. This is as they come along” is all a judge should there, she does not believe you should go the bad news and the good news. ½ aspire to do—but of course Souter, further than you have to go.” like every justice, does betray at least Biskupic refrains from either endors- some clear agendas. In Souter’s case, as ing or contesting Jeffrey Rosen’s cate- Yarbrough emphasizes, his strongest gorization of O’Connor as a “judicial Daily Brief commitment is as “the Court’s most ar- politician” who over time became “even TNR newsletters: dent defender of precedents requiring more astute than Congress at reflecting, Politics or Books & Arts church-state separation.” Yet in practice with exquisite precision, the views of Free! Only at TNR.com Souter has never shown any of Hand’s the median American voter.” Biskupic exceptional hesitation to strike down likewise hangs back from Rosen’s char- dubious government practices, and his acterization of Antonin Scalia as “an v “moderately liberal, strongly national- intellectual bully,” but she confirms ear-