Rejecting "O'Connorism."

Edward Lazarus punctures the recently inflated reputation of Sandra Day O'Connor:

O'Connor reached [some conclusions liberals agree with] - as well as many conservative outcomes - using an approach to constitutional interpretation that should be as troubling to liberals as it is to her more conservative colleague, Antonin Scalia. Liberals link themselves to O'Connor's judicial legacy at the risk of losing the war of ideas before the next battle is even joined.

The rap against liberals is that they do not care about the text or history of the Constitution and do not have any principled method for interpreting the document. Instead, they simply enshrine their personal moral choices in the Constitution under the guise of interpretation....

Liberals have tried to paper over these flaws with nice-sounding rhetoric about the Constitution's grand promises of individual liberty and the "evolving standards" that infuse them with meaning....

O'Connor has been the master of self-referential, "I know it when I see it" standards for interpreting the Constitution. ... While her malleable tests may often minimize the reach of particular decisions, they maximize the power of an individual justice at the center of the court to define the Constitution according to subjective judgments about right and wrong instead of more objective and broadly applicable principles....

Liberals do have a principled constitutional vision to set against this conservative record. This vision embraces democratic principles of governance, a strong federal role in solving national problems, and a broad but not unfettered view of civil rights and civil liberties. This vision is grounded not in personal preference, but in the ideas actually expressed in the text of the Constitution as read in light of its history, subsequent experience and precedent. A Civil War was fought to elevate federal power over the rights of states and to secure equality, procedural fairness and the privileges and immunities of citizenship to every person in this country. The Constitution explicitly grants these guarantees and it is the warrant of judges to apply them against the perceived needs of our time.

Putting forth this vision in a convincing manner, however, will require liberals to liberate themselves from the intellectual shackles of Roe. If conservatives have proven anything over the last generation, it is that a clarity and integrity of ideology ultimately translates into political power. The upcoming hearings present an ideal chance for Democrats to start to heed that lesson - and O'Connorism should be no part of their plan.

Interesting. Lazurus must know the Democrats are only praising O'Connor and demanding that Bush replace her with someone like her to fend off a more conservative choice. I don't think they really have a problem visualizing a judge with a more stable, forceful liberal ideology capable of balancing the strong conservatives already on the Court.

But should we buy Lazarus's additional point: that this principled liberal Justice will not support abortion rights? As we think forward to a time when a liberal President will appoint a Supreme Court Justice, can we visualize his (or her) ideal being someone who would vote to overturn Roe? Roe has such a grip on the Democrats that it is virtually impossible to imagine. I have to think liberals have already built their mental defense against this proposition and will quickly say that support for abortion rights fits squarely into a principled judicial philosophy. But maybe Lazarus is right, and the liberal cause on the Court has been doomed by an overcommitment to Roe -- a fear of any lines of reasoning that would threaten it.