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News Tip: President Should Nominate Moderate to Replace O'Connor

President Bush "has it within his power to make this process much less destructive, painful and polarizing," says Neil Siegel

With today's announcement that Justice Sandra Day O'Connor plans to step down from the Supreme Court, President George W. Bush should nominate a replacement who, like O'Connor, is a moderate conservative and not an ideologue, a DukeUniversity legal expert says. 

"He has it within his power to make this process much less destructive, painful, and polarizing, depending on whom he selects," says Neil Siegel, an assistant professor of law and political science at Duke. "He has the right to nominate anyone he wants, but that doesn't mean ignoring the views of most Americans would be the right thing to do."

Siegel, who before joining the Duke faculty clerked for Supreme Court Justice Ruth Bader Ginsburg, says it is crucial for the media and the country to appreciate how much is at stake. 

"This isn't just significant, this is seismic -- akin to Judge Robert Bork's nomination in 1987 to replace Justice Lewis Powell. Like Justice O'Connor, Justice Powell was more of an old-school, centrist type of conservative, not the newer generation of strong ideological conservative.

"Justice O'Connor has cast deciding votes in a number of very significant areas of constitutional law, and I would expect a lot of revisiting once her successor is in place. In constitutional cases, the Supreme Court is not as concerned about maintaining fidelity to precedent as it is in cases involving the interpretation of federal laws. I think that many issues will be up for grabs - “ for example, Ten Commandments displays, abortion restrictions, campaign finance regulations, affirmative action, gender discrimination in various settings."

Siegel, who teaches classes on constitutional law, federal courts, and related areas, says O'Connor is widely admired by Americans, in part, because many of her decisions seem moderate and sensible to them.

"For instance, she voted for some affirmative action in higher education but not too much, some recognition of religion in the public square but not too much, some uses of the death penalty but with real constitutional constraints. It's much more important for the stability of the country to replace her with a moderate conservative than to elevate a woman or ethnic minority whose ideological commitments are significantly to the right of the political center of gravity of the country."