That Sandra Day O'Connor, upon her retirement from the U.S. Supreme Court, is lauded as a "moderate" and an influential "swing vote" indicates not a principled jurist but one who was constitutionally confused.
Judges can be betrayed by emotion. Only those with the most disciplined temperament can discover the coherence in constitutional law.
Mrs. Justice O'Connor, an appointee of Ronald Reagan, who perhaps was too eager to find the first woman for the court, had not adhered to that essential virtue. This inadequacy was most vividly on display in the University of Michigan affirmative action cases.
O'Connor wrote the opinion upholding the abhorrent but somewhat subtle race preferences at the law school, but nearly apologized for what she had done, hoping that the need for preferences would pass away.
However, the undergraduate school gave "points" to minority applicants. O'Connor joined the conservative majority in striking down that system, drawing, for herself, a distinction without a difference. Points must have felt wrong.
It was thought the ailing Chief Justice William Rehnquist would retire before O'Connor. But President Bush now has the opportunity to nominate a jurist to ensure a strong conservative majority that does not "swing" with a type of breeze only O'Connor could discern.
