With a politician's eye, O'Connor led the way
WASHINGTON -- When Sandra Day O'Connor announced her retirement, tributes cited the fact that she had persuaded other justices to join her on the middle ground of some of the most divisive social issues, making her a rare bridge between warring factions.
Her ability to coax her fellow justices into endorsing her views exceeded her ability to craft the kind of legal doctrines that would ensure that those views endured after her retirement. But her leadership was greatly appreciated by the silent majority in America's culture wars: Her most impressive legacy can be seen in the polls indicating that most Americans want another justice like her.
They probably won't get one, and it's not because President Bush may be reluctant to appoint a centrist. It's because O'Connor's route to the bench, via a career in elected politics, no longer leads to the Supreme Court. And it was almost certainly O'Connor's tenure as a state senator and majority leader of the Arizona Senate that made her sensitive to the feelings of the country. Her political instincts led her to the middle ground on social issues and gave her the skills to get other justices to compromise.
But the notion of a politician joining the Supreme Court has fallen mysteriously out of favor. In recent decades, almost any other government appointment -- from state university president to ambassador and CIA director -- has become more likely to be filled by a politician. But the Supreme Court, once the most coveted landing place for politicians, has not.
Not surprisingly, politics may be playing a role in keeping politicians off the bench. Both parties are pursuing political agendas through the courts, with Democrats striving to preserve the right to privacy and Republicans seeking to erase it, giving states more power to block abortion, gay marriage, and the right to die. But the fact that both parties are so eager for particular outcomes seems to have made them more fastidious than ever about denying political motives in choosing justices.
Each side insists that it wants the purest legal mind, insulated from any corrupting influences. Democrats seek judges who will ''protect constitutional rights" -- meaning the right to privacy -- while Republicans seek those who ''interpret the law, rather than make it," meaning they will stop enforcing the right to privacy. Preserving each side's fantasy that it represents the true spirit of the law, divorced from politics, requires promoting judicial candidates with long careers on lower courts or in legal practice. Politicians need not apply.
That wasn't always the case. John Jay, the first chief justice, was a former elected president of the Continental Congress who went on to be elected governor of New York. The chief justice who asserted the right of the Supreme Court to review acts of Congress, John Marshall, was a former member of the Virginia House of Delegates and briefly a US congressman. Abraham Lincoln elevated the longtime senator and 19th-century power broker Salmon P. Chase to be chief justice.
Former president William Howard Taft also served as a chief justice. Taft's successor as chief, Charles Evans Hughes, had been the Republican presidential nominee in 1916. More recently, Chief Justice Earl Warren -- former governor of California and 1948 Republican vice presidential nominee -- led the court through its greatest period of activism.
None of these politician-justices, with the exception of Marshall, stands out as a great craftsman of the law. The most renowned jurists -- Oliver Wendell Holmes, Louis Brandeis, Benjamin Cardozo -- spent their lives in the law. But they all served on the court alongside politicians who helped cobble together court majorities. Holmes and Brandeis wrote some of their most admired opinions in dissent.
The most noted craftsman on the current court, Antonin Scalia, also frequently lays out his views in dissent, as though setting the groundwork for posterity. But his charm and his brilliance seem to elude his current colleagues: His written opinions spend more time attacking other justices' views than trying to win them over with his logic. Scalia's doctrines, like those of Holmes and Brandeis, will pass the test of time only if they are embraced by future court majorities and accepted by the country.
As O'Connor understands, the Supreme Court has a symbiotic relationship with public opinion: Each has an eye on the other. And someone has to figure out when to lead and when to follow. These types of concerns elude ideologues such as Scalia but are second nature to a former majority leader of the Arizona Senate. In the privacy of judicial conferences, O'Connor's perspicacity will probably be missed.
Peter S. Canellos is the Globe's Washington bureau chief. National Perspective is his weekly analysis of events in the capital and beyond. 
