Justice O’Connor Retires; Direction of Court Now Hangs in the Balance

WASHINGTON —  Justice Sandra Day O’Connor, the first woman to serve on the Supreme Court and its decisive voice on such critical issues as abortion, affirmative action and religion, announced Friday that she was retiring.

Her husband, John, is suffering from Alzheimer’s disease, her friends report, and O’Connor said in a brief statement that she needed to spend more time with him.

O’Connor, 75, often has been called the most powerful woman in America because of her influence on the high court, and her surprise departure gives President Bush a chance to reshape its direction.

It will mark the first vacancy on the court in 11 years.

Activists on the right and left were preparing for what could be an epic summerlong battle over her successor. The president’s staunchest supporters want to eliminate the right to abortion, which the departing justice has helped to maintain.

On Friday, Bush said he first wanted to praise the Arizona cowgirl who rose to become “one of the most admired Americans of our time.”

Justice O’Connor’s great intellect, wisdom and personal decency have won her the esteem of her colleagues and our country,” the president said shortly after speaking with O’Connor by phone.

Bush said he would be “deliberate and thorough” in picking her successor, and he pledged to consult with members of the Senate on his choice.

“The nation deserves, and I will select, a Supreme Court justice that Americans can be proud of,” Bush said. He said he hoped his nominee would undergo “a dignified process of confirmation” in the Senate.

Spokesman Scott McClellan said Bush did not plan to make a decision on O’Connor’s successor until late next week, after he returns from a trip to Denmark and Scotland.

Until Friday, the White House and much of Washington had been focused on who might succeed the ailing, 80-year-old chief justice, William H. Rehnquist, who was widely expected to step down.

When the court handed down its last opinions of the term Monday morning, O’Connor looked worried and saddened as a visibly weak Rehnquist, her former Stanford Law School classmate, rose from his seat. She reached out to steady him as they turned to walk back through the red velvet curtain.

But it turned out that was her last day on the bench -- and not necessarily his.

While Rehnquist has said nothing in public of his plans, the justices and court staff who have watched him closely would not be surprised if he retired too.

However, O’Connor’s announcement took the White House, other Supreme Court justices and even one of her sons by surprise. The president didn’t learn of it until Friday morning.

The first inkling of a court resignation -- not necessarily O’Connor’s -- came Thursday, when Pamela Talkin, the head marshal of the Supreme Court, telephoned White House counsel Harriet Miers to arrange for the delivery of a private document Friday morning, McClellan said. Miers informed Bush and Vice President Dick Cheney, who were having lunch.

When the two women spoke again Friday morning, Talkin told the president’s lawyer that she now had the authority to disclose that the document was in reference to O’Connor.

Miers alerted the president, who quickly conferred in his private dining room with Cheney, Bush’s top political advisor and Deputy Chief of Staff Karl Rove, and other top aides.

McClellan refused to characterize Bush’s reaction to O’Connor’s resignation, and would not confirm whether the president or anyone else at the White House was surprised that she and not Rehnquist had resigned.

A tireless worker, O’Connor once said the heavy workload of the high court had been her salvation in the late 1980s, when she was treated for breast cancer.

She travels with piles of court briefs in her suitcases, and most of her friends and colleagues expected she would stay in her job for as long as possible. In recent years, her husband has come with her to the court and spent his days in her chambers.

The couple recently sold their home in suburban Maryland and bought a condominium in Washington, but none of her friends seemed to see this as a sign of her impending retirement.

The White House counsel’s office, charged with finding candidates for an expected vacancy, had to switch gears Friday.

The list of leading contenders to succeed Rehnquist contained mostly white men with conservative judicial records. Judges J. Michael Luttig and J. Harvie Wilkinson III from Virginia and John G. Roberts Jr. from Washington topped the list, officials said.

But the departure of the court’s first woman rejiggers the political calculation, several lawyers said. Atty. Gen. Alberto R. Gonzales and Judge Edith Brown Clement, a Bush appointee to the U.S. appeals court in New Orleans, were now seen as serious contenders.

By this reasoning, the president would want to replace O’Connor with another woman or a minority.

“All presidents like to make historic appointments,” said Pepperdine law professor Douglas W. Kmiec, recalling President Reagan’s pride in appointing the first woman to the Supreme Court. “There is no question this Texas-born president has a great affinity for his Hispanic colleagues, as well as a great respect for his former White House counsel.”

But some conservatives said they would be troubled by the selection of a moderate such as Gonzales to replace O’Connor.

“The base will believe that is a repudiation of his campaign pledge” to select strict conservatives, said Chapman University law professor John C. Eastman.

Because of O’Connor’s role as a swing vote, the impending vacancy could set off a fierce fight, particularly if Bush chooses a staunch conservative to succeed her.

For the last two decades, O’Connor has decided the Supreme Court’s biggest cases. She has been neither a predictable conservative nor a true liberal. Rather, she set out to redefine the middle.

But the political battle over the next court nominee is likely to focus on abortion and religion.

O’Connor nearly single-handedly preserved the constitutional right to abortion, even though she was an early critic of the Roe vs. Wade ruling that legalized it. She believed the court made a mistake in the 1970s by taking on the issue, and she said states should have more authority to regulate abortion.

In 1989, however, she refused to go along with Rehnquist and three others in overturning Roe vs. Wade in a Missouri case. When the issue returned three years later, O’Connor fashioned a 5-4 majority to affirm the abortion right. States may regulate abortion providers to ensure the health and safety of their patients, but they may not put an “undue burden” on a woman’s decision whether or not to have an abortion, O’Connor said.

A year later, Justice Byron R. White, a firm opponent of abortion rights, retired; President Clinton replaced him with Ruth Bader Ginsburg, a women’s rights lawyer who favored legal abortion. Today, the basic right to abortion has a 6-3 majority in the Supreme Court.

In recent years, however, the court has split 5-4 on whether states can outlaw a midterm abortion procedure that critics call “partial-birth abortion.” Justice Anthony M. Kennedy, who joined O’Connor in the 1992 decision, believes states can regulate abortion by banning certain procedures, including this one.

Social conservatives saw Friday’s announcement as the long-waited chance for a dramatic realignment of the Supreme Court.

“The moment of truth has arrived,” said Richard Land of the Southern Baptist Convention. “Justice O’Connor’s retirement opens the door for the opportunity that tens of millions of Americans have been praying for for more than a decade. George Bush’s long-term legacy will in all probability hinge on whether he now keeps his promise to nominate only judges and justices who fit the Scalia-Thomas mold.” He referred to Justices Antonin Scalia and Clarence Thomas, conservatives who often clashed with O’Connor.

Civil rights advocates and abortion rights supporters said they hoped Bush would choose a successor in O’Connor’s mold.

“What we want is someone who is not rigid and ideologically predictable, someone who is open-minded,” said Theodore M. Shaw, president of the NAACP Legal Defense and Educational Fund.

The decision facing Bush recalls the one presented to Reagan in 1987.

That year, Justice Lewis F. Powell Jr. -- then the court’s swing vote -- retired, and Reagan chose Judge Robert H. Bork, a well-known conservative, to succeed him. Democrats controlled the Senate then, and after a contentious round of hearings, Bork was defeated on a 58-42 vote.

Reagan then chose Kennedy, a judge from Sacramento with a moderate-conservative record, and he won unanimous confirmation. That single switch -- Kennedy for Bork -- has tipped the balance away from conservatives in half a dozen key issues since then.

O’Connor also frustrated conservatives on affirmative action and religion cases.

She was a critic of race-based programs, and wrote a series of rulings that struck down such set-asides in government contracts, as well as electoral districts drawn along racial lines.

But O’Connor refused to close the door to affirmative action in colleges and universities. “In a society like our own, race unfortunately still matters,” she said in a 5-4 ruling that upheld the admissions policy at the University of Michigan Law School. Although schools may not use quotas or fixed percentages to admit more minorities, they may take race into account as a plus factor, she said.

She also fashioned a middle position on religion. She cast the fifth vote to uphold Ohio’s school voucher programs three years ago. With these grants, parents in Cleveland could use tax money to send their children to religious schools. This is not an “establishment of religion,” O’Connor said, but rather an education program that gives parents freedom of choice.

But she joined with her liberal colleagues to strike down school-sponsored prayers or religious displays on public property, including Monday’s Ten Commandments ruling. The government may not endorse religion, she said.

She wrote in Monday’s opinion on the importance of preserving religious freedom -- including freedom from government-sponsored religion.

“At a time when we see around the world the violent consequences of the assumption of religious authority by the government, Americans may count themselves fortunate: Our regard for constitutional boundaries has protected us from similar travails, while allowing private religious exercise to flourish,” she said.

But she also had her disputes with the court’s liberals.

Two weeks ago, she wrote a pungent dissent when the court upheld a city’s seizure of private homes to make way for business development. “The specter of condemnation hangs over all property. Nothing is to prevent the state from replacing a Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory,” she said.

O’Connor became a historic figure upon her arrival in 1981 to join what had been known as “the brethren.” At first, the focus was on her status as the first woman. But by the mid-1980s, she had emerged as a justice who brought a distinctive perspective -- not just as a woman, but as former state legislator and former state trial judge. She sought practical, middle-ground solutions to complicated problems.

By the 1990s, she was the single most important member of the Supreme Court.

She was widely praised Friday for having brought grace, wisdom and common sense to her job.

Justice Stephen G. Breyer, the court’s junior justice, said he admired her greatly. “The court, the law and my life have been immeasurably enriched by her dedicated service. She has taught us all,” he said in a statement.

Justice Kennedy wrote: “Any jurist would consider it a high honor to be a colleague of Justice O’Connor. Any person would consider it a privilege to be her friend.”

Her rise to prominence was an unlikely one. She grew up on a cattle ranch in the desert along the border of New Mexico and Arizona. Her childhood home on the Lazy B ranch had no electricity, and it was 25 miles to town.

Her closest companions as a girl, besides her family, were the horses and ranch hands. When her parents decided they needed to add a room to the house, they made bricks from mud, and constructed the room themselves.

She spent the school year in El Paso, living with her grandparents.

But she was able to attend Stanford University, first as an undergraduate and then as a law student. She placed third in the class of 1952, two spots behind a tall, lanky World War II veteran named William H. Rehnquist.

She also met John O’Connor, and after they married, they settled in Phoenix. She rose to be a state legislator and the first female majority leader of the Arizona Senate. She was a state appeals court judge when Reagan chose her for the Supreme Court.

Bush harked back to her childhood Friday, during what aides called an emotional conversation for both. “For an old ranch girl, you turned out pretty good,” the president told her.

Times staff writer Edwin Chen contributed to this report.

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(BEGIN TEXT OF INFOBOX)

Who’s who on the court

This was the longest-serving nine-justice lineup since 1823, when James Monroe was president.

William H. Rehnquist (appointed 1972)

80-year-old chief justice is leader of the court conservatives. Praised for fairness in running the court. Battling thyroid cancer and underwent tracheotomy in October. Confirmed by the Senate on 68-26 vote.

John Paul Stevens (appointed 1975)

85, liberal justice views himself as a problem-solver rather than a crusader. Treated for prostate cancer in 1992; has battled heart disease. Confirmed, 98 to 0.

Sandra Day O’Connor (appointed 1981)

75, first woman on the Supreme Court was near the center of its political spectrum. Treated for breast cancer in 1988. Resigned Friday. Confirmed, 99 to 0.

Antonin Scalia (appointed 1986)

69, a conservative known for his confrontational views and freewheeling style during oral arguments. Confirmed, 98 to 0.

Anthony M. Kennedy (1988)

68, a key swing vote who often joins the centrist coalition. A Sacramento native who practiced law there. Has a strong interest in court history. Confirmed, 97 to 0.

David H. Souter (appointed 1990)

65, has disappointed conservatives by emerging as a leader of the courtOs centrist coalition. Confirmed, 90 to 9.

Clarence Thomas (appointed 1991)

57, a staunch conservative, he supports a narrow reach for constitutional guarantees and a limited role for the Supreme Court. Confirmed, 52 to 48.

Ruth Bader Ginsburg (appointed 1993)

72, a stalwart of the court’s liberal wing. Has a keen eye for detail. Treated for colon cancer in 2000. Confirmed, 96 to 3.

Stephen G. Breyer (appointed 1994)

66, a consensus builder who dislikes dissenting opinions. He votes with conservatives on criminal law cases but is generally a moderate liberal. A native Californian. Confirmed, 87 to 9.

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Sources: Cornell University Legal Information Institute, www.supremecourthistory.org, U.S. Supreme Court, Times research, Associated Press. Graphics reporting by Cheryl Brownstein-Santiago