ACLU Concerned O'Connor Replacement Will Roll Back Vital Civil Liberties Protections

July 1, 2005 12:00 am

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WASHINGTON – The American Civil Liberties Union today expressed great concern that the Bush administration will replace Justice Sandra Day O’Connor, who announced her retirement today after more than two decades on the court, with a nominee whose judicial philosophy is fundamentally opposed to the progress made in protecting individual rights over the past century.

Sandra Day O’Connor

> Grutter v. Bollinger
> Hamdi v. Rumsfeld
> Planned Parenthood v. Casey (off-site link)

> Cases in Which O’Connor Cast the Decisive Vote
> Other notable rulings

“Justice O’Connor fully earned her reputation as a centrist; she was a conscientious jurist and, in a number of key cases, stood up for individual rights and against a radically conservative vision of the Constitution,” said Steven Shapiro, ACLU Legal Director. “We are gravely concerned that President Bush will use this opportunity to nominate someone whose judicial philosophy is hostile to civil liberties.”

The ACLU is preparing to hold a board meeting in the coming weeks to decide whether to oppose the Bush administration’s nominee. As a matter of policy, the ACLU will only oppose nominees to the Supreme Court that are fundamentally hostile to civil liberties and will do so upon a vote of the board of directors. The national board of the ACLU has voted to oppose only two nominees in its history: Justice William Rehnquist and former solicitor general and law professor Robert Bork.

Although her record on the court is mixed on civil liberties, Justice O’Connor has provided the crucial fifth vote in a number of cases implicating core civil liberties. For instance, she wrote the opinion upholding equal opportunity programs and the importance of diversity in college admissions in Grutter v. Bollinger.

She also wrote the opinion in Hamdi v. Rumsfeld, in which the court ruled that an American citizen seized overseas as an “enemy combatant” must be allowed to challenge the factual basis of his or her detention before an independent arbiter. Affirming the rule of law even during times of national crisis, O’Connor wrote: “We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.”

Although the majority opinion in Hamdi is far from perfect, it remains a strong rebuke of the Bush administration, which had argued for absolute power to detain American citizens seized overseas in military custody without charge, trial or access to counsel.

And in Planned Parenthood v. Casey, she broke with Chief Justice Rehnquist and other opponents of a woman’s right to choose by joining the majority in reaffirming Roe v. Wade.

Looking forward, the ACLU noted that O’Connor’s replacement could directly affect the outcome of some of the most divisive legal questions facing America today history. The nominee could, for instance, reverse the court’s growing discomfort with the death penalty; grant the president greater authority to detain Americans without charge, trial or access to counsel in the name of national security; and uphold troubling parts of the Patriot Act.

“The nomination battle for O’Connor’s replacement comes at a critical moment for civil liberties,” said ACLU Executive Director Anthony D. Romero. “The stakes could be as high as they were during the Bork nomination battle of the 1980’s.”

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