Thursday, August 18, 2005

The nutjob that never was

With the release of the pre-screened John Roberts files of the Reagan Administration, the Salt Lake Tribune noticed a familiar name was in the running for what became O'Connor's seat: Dallin Oaks, a then-Utah Supreme Court Justice and soon thereafter a member of the Quorum of the Twelve Apostles for The Church of Jesus Christ of Latter-day Saints (which, like the U.S. Supreme Court, is a lifetime appointment).

"Bruce Fein, then an associate deputy attorney general, said people like Oaks and future nominee Robert Bork were researched, but they were second-tier prospects because of their gender." And remember how the GOP got all over Clinton for seeking out only women for certain appointments-- like AG, Supreme Court, etc.? Sound like another case of "you're OK if you're a Republican" or otherwise known as hypocrisy. "There weren't anybody but women considered virtually from the start," said Fein, "It wasn't any discredit to Dallin. Bork and [now-Justice Antonin] Scalia weren't in the running either because they weren't women." Bork, Scalia and Oaks in the same breath, you get the idea.

"All this prognostication that this would make Reagan a hero in the female community was absurd, and we ended up with a moderate, then a liberal" in O'Connor, whines Fein. "All those kind of wobbly, non-constitutional or extra-constitutional standards never would have seen the light of day, because she was a vital vote in those cases." I guess he is still bitter they let O'Connor get the nod over those "Constitution in Exile" folks who want to turn the clock back to 1937. O'Connor was a smart pick, there was no real way for Democrats to oppose her and she became the Defacto Chief Justice because of her political savviness. Any liberal progress in the O'Connor court has been lurching yet gradual. I have a hard time crediting or blaming her for launching a new era of Warren Court like liberalism. However, without her, Roe might have been overturned in 1992 with Casey and although she didn't author Lawrence v. Texas or Atkins v. Virginia, they wouldn't have happened without her. Padilla v. Bush also might not have happened.

I am doing a Lexis Nexis search (thanks law school) on his opinions pre-1984 and really focusing on the pre-1981 period, when he was under consideration. Then we can see why folks like Fein liked him.

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