Racing Right: Reflections on the O'Connor Resignation

Article excerpt

When Supreme Court Justice Sandra Day O'Connor was nominated to the court by former President Ronald Reagan, she showed up on the ideological radar as a conservative. In one of her early opinions, Croson v. Richmond, she rather derisively wrote about the legitimacy of minority business set-asides in an opinion I satirized as "show me your chains."

Writing about a modest set-aside plan that was developed in the cradle of the confederacy, O'Connor said that people had to "prove" specific past discrimination, and proposed a complicated mathematical formula to measure the extent of discrimination in particular industries. Essentially, she suggested that if the number of businesses in a certain industry doing business with a city were proportional, there might not be discrimination, ignoring the fact that historical discrimination may have impeded the process of business formation in the past, thus affecting the denominator, understating the numerator and also the amount of past discrimination. Yes, I know this is a cumbersome sentence, but work with me here.

What I'm saying is that O'Connor's inclination was to understand the extent of discrimination by looking only at the universe of businesses that existed, not the universe of businesses that might have existed.

In any case, cities rushed to change their rules because of Croson, and those who justifiably supported affirmative action and setasides counted O'Connor out in the fight for justice. That was a mistake. The quality that she is being touted for on the heels of her resignation is her "moderate conservatism," or her ability to see both sides of an argument and to try to find some common ground. It is amazing to consider that the same woman whose decision seriously challenged minority business set-aside programs was later touted as the savior of college affirmative-action programs.

O'Connor is not the only conservative that ended up sounding like she had good sense when you looked at her views in context. Two other Republican choices for the Supreme Court, Anthony Kennedy and David Souter, have offered a "moderate" balance that might not have been expected from their pre-Supreme Court records. Is there rarified air at the Supreme Court that encourages people to leave ideology and embrace good sense? Probably not. Actually, I think conservative moderates like Kennedy, Souter and O'Connor seem so reasonable these days because our country is racing to the right.

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