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Toobin: O'Connor 'critical vote' on high court

CNN's Jeffrey Toobin



On the Scene
Supreme Court
George W. Bush
Sandra Day O'Connor

(CNN) -- Supreme Court Justice Sandra Day O'Connor announced Friday that she planned to retire once the Senate confirms her successor.

O'Connor, the first woman to serve on the high court, often was the deciding vote in key cases during her nearly 24-year tenure. CNN's Daryn Kagan discussed the development with senior legal analyst Jeffrey Toobin.

KAGAN: Justice O'Connor took us way past just having the title "dot, dot, dot, first woman to serve on the U.S. Supreme Court."

TOOBIN: We in the news business are sometimes accused of over-hyping events, but today is really an epic moment in American history. I mean, this was not only the first woman to serve on the Supreme Court. She was the 102nd individual and first woman to serve as a justice of the Supreme Court. But in case after case, decade after decade, Sandra Day O'Connor was the critical vote on this court.

Just for starters, two years ago, the affirmative action case out of the University of Michigan, you know, she was the person who wrote the opinion that said that the affirmative action policy at the University of Michigan Law School, not the undergraduate school, was constitutional. It was permissible to take race into consideration as one among many factors, though racial quotas were illegal.

Another -- just this week in the Ten Commandments case -- she was the key vote in striking down the Ten Commandments display at the Kentucky courthouses.

In Bush v. Gore in 2000, she was the fifth vote to end the recounts and give the presidency to President Bush.

She is one of six justices -- it's not five, it's six justices -- who voted to uphold Roe v. Wade in the [Planned Parenthood v. Casey] decision in 1992.

So, in case after case, she's been of enormous importance in this court.

KAGAN: In fact, it's been said that many of the written and oral arguments that are presented to the high court are almost written for and to her because those going before the court realize how significant of a vote and a voice and how much power [she wields].

TOOBIN: That is absolutely true. Many of the briefs are pitched directly to her. And this is, as you probably know, a very active bench. Eight of the nine justices, except Justice [Clarence] Thomas, ask a lot of questions in oral argument.

And Justice O'Connor almost always asks the first question. She usually has a question prepared. And people are often on the edges of their seats to see what kind of question she asks because she is not someone who's a real poker player in her questions. Her questions often indicate which way she's leaning.

And so, you know, she has been such a pivotal figure for so long that this resignation is in fact much more significant than if Chief Justice [William] Rehnquist had resigned ... notwithstanding his title. ...

KAGAN: I'm going to ask you to back that up.

TOOBIN: OK. Well, the chief justice, even though he has the title of the lead justice, he only has one vote like all the rest of them. And Chief Justice Rehnquist has been one of the three most conservative justices, [along] with Justice Thomas and Justice [Antonin] Scalia. You know, any replacement that President Bush would select would almost certainly replicate the chief justice's vote.

[With] Justice O'Connor, it's a different story. She has been a moderate. Not a liberal ... but a moderate. And I think the fact that President Bush, a conservative, will be replacing the moderate Justice O'Connor raises the stakes for the confirmation quite a bit.

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