Retiring justice worries about loss of states' rights

SPOKANE — Justice Sandra Day O'Connor, whose retirement from the U.S. Supreme Court will likely lead to a tumultuous fight in Congress over her replacement, said yesterday there is so much "antipathy" among elected politicians toward federal judges that she worries about the future of an independent judiciary.

"I'm pretty old you know, and in all the years of my life, I don't think I've ever seen relations as strained as they are now between the judiciary and some members of Congress," O'Connor said. "It makes me very sad to see it."

O'Connor's remarks came during a round-table discussion at the annual 9th Circuit Judicial Conference, a gathering of judges and lawyers from Western states.

In her hourlong appearance, O'Connor also said she worries the federal government is encroaching too much on states' rights and stressed the importance of religious freedom. But she said the courts must "protect citizens from religious incursions by the state as well as the federal government."

In talking about her role in history as the first woman on the Supreme Court, O'Connor said the late President Reagan, who appointed her 24 years ago, deserves the most credit.

"Don't give the credit to me. I didn't make that decision; Ronald Reagan made that decision," O'Connor said. "That was just an incredible thing that he did."

O'Connor, 75, announced July 1 that she is retiring so she can spend more time with her ailing husband. The news came as a surprise in the nation's capital, especially since most people expected that Chief Justice William Rehnquist would be the next justice to step down. Rehnquist, who is battling cancer, has said he plans to stay on as long as his health permits.

President Bush this week nominated federal appeals-court Judge John Roberts Jr. to replace O'Connor.

O'Connor earlier this week praised Roberts as "a brilliant legal mind" and said he is "good in every way, except he's not a woman." O'Connor, who was confirmed unanimously, said Roberts shouldn't have trouble getting confirmed. But with some members of Congress complaining about "activist" judges, O'Connor said a lengthy confirmation process is inevitable.

She said there are efforts afoot to limit federal courts' jurisdiction "in areas that some members of Congress think that the federal courts should not be involved. And that's a new approach that is worrisome."

Courts must be independent to protect individuals from seeing their constitutional rights taken away by the legislative branch, she said. "That's a concept that we've tried to promote across the globe."

O'Connor noted that Ukraine's supreme court recently overturned that country's presidential election after finding rampant vote fraud.

"I thought that was a transforming moment in the success of our efforts to promote the rule of law and the role of an independent judiciary," she said. "And yet in our country today, we're seeing efforts to prevent that — a desire not to have an independent judiciary."

Though O'Connor was appointed by one of the nation's most popular conservative presidents, she has often riled religious conservatives. She cast the deciding vote in a ruling upholding Roe v. Wade, the landmark case legalizing abortion.

Earlier this year, she joined in a 5-4 ruling that said the display of the Ten Commandments in two Kentucky courthouses violated the constitutional mandate for separation of church and state.

O'Connor said yesterday that the lack of such separation has had "violent consequences" in so many other countries, "it's hard to see why we should give that up in the face of the success that we've had."

On states' rights, O'Connor said she has always viewed state governments as laboratories. "Let them try things and see how it works," she said, citing California's effort to legalize marijuana for medical purposes as a good example. She dissented on a Supreme Court ruling that said the federal government's outright marijuana ban trumped California's law.

When O'Connor attended law school, only 3 percent of law students nationwide were women, she said. Now it's more than 50 percent.

She said she was always a little reluctant about the role-model status of being the first woman on the Supreme Court. "I never expected to be that person and was pretty scared to take it on," O'Connor said, "because it's a very hard job and I didn't want to mess it up because it would make it harder for other women to follow."

But she said her appointment by Reagan in 1981 — after the court had gone nearly two centuries without a woman justice — opened doors for women around the world.

Marsha Pechman, a federal district-court judge in Seattle, said she counts herself as one of those women. "She made such a huge difference," said Pechman, who became a state court judge in 1988 before moving to the federal bench in 1999. "I got to ride the wave of her wake."

Ralph Thomas: 360-943-9882 or rthomas@seattletimes.com