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Justice O'Connor Resigns

Aired July 1, 2005 - 12:00   ET


DARYN KAGAN, CNN ANCHOR: I'm Daryn Kagan at CNN Center in Atlanta. We continue our coverage now of Justice Sandra Day O'Connor's decision to retire from the U.S. Supreme Court. The first woman appointed to the high Court says she will step down once her successor has been confirmed. Much more on this historic development throughout the hour.
First, though, let's check some of the other stories "Now in the News."

The Red Cross says one of its staffers in Haiti was kidnapped and killed this week. Joel Cauvin, a 10-year veteran with the relief organization, was taken from his home on Wednesday night. His body was found Thursday morning. The Red Cross says it's concerned over the growing insecurity in the country.

In California, a Greyhound bus has crashed and rolled on to its side on Interstate 5. It's about five miles -- 40 miles north of Sacramento. Four of the 40 people on board were taken to the hospital. All southbound lanes are closed.

The Pentagon says it has identified the 16 people killed in this week's crash of a U.S. military helicopter in Afghanistan. Half of the victims were Navy SEALs assigned to bases in Norfolk, Virginia, and San Diego. Seven soldiers were based at Georgia's Hunter Army Field, and one soldier was from Fort Campbell, Kentucky. Their families have all been notified.

The White House welcomes the prime minister of Kuwait. At the top of the agenda today, Iraq and women's rights. Later this afternoon, the Kuwaiti prime minister will sit down with Secretary of State Condoleezza Rice.

And once again, getting back to our top story, our breaking news and developing story coming out of the U.S. Supreme Court. Sandra Day O'Connor, the first woman to serve on the U.S. Supreme Court, has announced that she will resign.

Our Suzanne Malveaux is at the White House with reaction -- Suzanne.

SUZANNE MALVEAUX, CNN WHITE HOUSE CORRESPONDENT: Well, Daryn, here in Washington, the battle over the next Supreme Court justice is officially under way with today's announcements that the first woman on the court, Sandra Day Connor, is resigning.

Within the past hour, President Bush praised Justice O'Connor's distinguished service on the high court since 1981. And he promised to nominate her successor in a timely manner.


GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES: Justice O'Connor's great intellect, wisdom and personal decency have won her the esteem of her colleagues and our country. Under the Constitution, I am responsible for nominating a successor to Justice O'Connor. I take this responsibility seriously. I will be deliberate and thorough in this process.


MALVEAUX: Now, in a statement, Justice O'Connor said her resignation would be effective upon the confirmation of her successor, calling her 24 years on the court a great privilege. The 75-year-old associate justice is known as a moderate and a swing vote on the court. Her replacement could tilt the ideological balance of the high court, making the stakes even higher for senators on both sides of the aisle.

Politicians and interest groups have been gearing up for this moment for months. But today, most are paying tribute to O'Connor.


SEN. BILL FRIST (R-TN), MAJORITY LEADER: Mr. President, I rise to pay tribute to a truly distinguished American, United States Supreme Court Justice Sandra Day O'Connor, who announced her retirement earlier this morning. The current group of nine justices, including Justice O'Connor, represented the longest-serving Supreme Court justice since the 1820s. Today marks a great loss for America, but is also a day to reflect on all that we have gained because of Justice O'Connor's service to our country.


MALVEAUX: Now, we are waiting to hear from top Democrats. And as the day wears on, of course, we expect more and more positioning for what is likely to be a long, hot summer battle over O'Connor's successor.

Now, Daryn, of course, earlier today, as well, I had actually gotten a tip this morning from someone inside of the Supreme Court, saying that she had actually offered her resignation letter to her fellow justices about 9:15 in the morning. It was just after that, of course, about an hour later, that we got the official word.

And as you know, since then, the e-mails, the phone lines, of course everybody, the buzz, tremendous buzz here in Washington. This is, of course, going to be a story that develops throughout the day and throughout the weeks ahead -- Daryn.

KAGAN: And there was this kinetic energy all built up in Washington D.C., perhaps expecting this coming from the chief justice, William Rehnquist. Instead, this announcement coming from Sandra Day Connor. Suzanne, we'll be back to you. Thank you.

Now let's go to the Supreme Court and our Joe Johns, who is standing by there -- Joe.


Just a little bit of color from our CNN Supreme Court producer, Bill Myers (ph), who talked to a source inside the court, indicating to him, of course, that Justice O'Connor had been thinking about doing this for some time, that her husband had expressed some interest in going back to their home in Arizona.

She sat down apparently this week with her three adult sons and really went through it, did not want to interrupt the proceedings of the court in the last days of the session when all of those cases were coming through the system. It wasn't until late yesterday, apparently, until all this came together.

That letter that came out today, a historic letter to the president of the United States. saying, "This is to inform you of my decision to retire from my position as an associate justice of the Supreme Court of the United States effective upon the nomination and confirmation of my successor." "A great privilege," she says, "to have served."

So this letter will be one of those letters that goes down, of course, in the history of the United States Supreme Court, the first woman Supreme Court justice to serve -- Daryn.

KAGAN: You know, looking at the timeline here, Joe, almost 24 years to the day that she was nominated. She was nominated on July 7, 1981. Joe, thank you.

Well, going back to the dates here, it has been 11 years since we've seen a U.S. Supreme Court justice resign. And the chase go on and the search go on for a nominee.

Our Ed Henry is on Capitol Hill with what whoever is nominated, what they will face in the confirmation battle.

Good morning.

ED HENRY, CNN CONGRESSIONAL CORRESPONDENT: That's right, Daryn. Good afternoon.

The bottom line here is that senators in both parties have been bracing for months, even years, for the possibility of a Supreme Court vacancy. As you've noted over and over, that has not come for quite some time. But that's why this morning, when the rumors were coming out, a lot of people believing they were just rumors.

So a lot of senators have gotten on planes, have headed home for the 4th of July recess. They're expected to be out all next week. A lot of those plans are changing quickly. Senate Democratic Leader Harry Reid was on a plane heading out to Nevada. He is still going out there. We are expecting he may have some comments this afternoon at a press conference.

For now, he has put out a prepared statement saying that he expects the president to follow the Constitution, the advise and consent provisions, and make sure that he reaches out, reaches across the aisle to Democrats and tries to find a consensus choice. That's where the battle lines will be drawn.

Democrats obviously hoping that they will be a key part of this process. Republicans saying, though, that obviously Republicans run this Senate, and they will be in charge.

And while a lot of lawmakers are out of town, Senate Judiciary Chairman Arlen Specter is, in fact, here. He told reporters a short while ago he met this morning already with the Senate majority leader, Bill Frist. They already have a sort of tentative timetable that they would not reveal to reporters for how quickly they will move. But the bottom line is, Arlen Specter said that they will wait for the White House, take their cues from the president.

Whenever the president is ready to come up with his choice to replace Sandra Day O'Connor, Senate Republicans will move quickly to have hearings here in the Senate, get those confirmation hearings under way.

I also have been speaking to a lot of top Senate Republican aides who say they are in the process of scrambling to have meetings this afternoon. Now, a lot of them, again, were headed out for the July 4th recess. They're now having meetings, trying to decide whether to cancel various plans, to make sure they have these plans in place.

And finally, as you've been mentioning as well, we have a new dimension, a new angle here, which is the so-called gang of 14 moderates, seven Democrats, seven Republicans who may actually be sort of a shadow Judiciary Committee. Normally it's Arlen Specter and that Judiciary Committee that will be in charge. But instead, those 14 moderates will play a pivotal role in this.

Senator Ben Nelson, Democrat of Nebraska, put out a statement a short while ago saying that while the Judiciary Committee will be meeting after the 4th of July recess, the gang of 14 is now planning as well to start holding meetings about this Supreme Court vacancy.

So you are going to see almost a dual track, where while the Judiciary Committee will be holding the hearings, those 14 moderates are going to have a lot of power in this process -- Daryn.

KAGAN: Holiday? What holiday?

HENRY: That's right.

KAGAN: Not for you or for the senators. Thank you, Ed.

Let's go ahead and brang back in Candy Crowley and Bill Schneider. They've been looking at the news of the day with us throughout the morning, and now, as we head into the afternoon, at least on the East Coast, where this news is breaking.

Candy, back to you. I don't want to skip over what is such a significant part of Sandra Day O'Connor, besides her legacy, and that is her symbolism. Take us back again, Candy, to 1981, and even before that, when Ronald Reagan came out and said, "I will nominate a woman if I have an opportunity to nominate a Supreme Court justice."

It doesn't seem like today you will ever hear a president say I will nominate anything and make a commitment to that.

CANDY CROWLEY, CNN SR. POLITICAL CORRESPONDENT: Not as firm a commitment as that. We certainly do believe that the president would very much -- this president would very much like to nominate the first Latino Supreme Court justice.

You know, it's interesting, because every time there's a first, it's something that not only you remember if you are around, but it paves the way for others. I remember when Ruth Bader Ginsburg was nominated it was, like, no bid deal, because, of course, she was the second woman.

When Ronald Reagan campaigned on "I will nominate a woman," obviously the politics there are that the Republican Party up to that point had had -- was basically heavily on the male side, and they were trying to attract women voters. But the time had come.

When he did go ahead and fulfill that campaign promise, I remember being in a -- I know this is going to sound crazy -- in a cave, where we were looking at stalactites and stalagmites.

KAGAN: Expect that of you, Candy. And so just on that note I'll take your word for it.

CROWLEY: Exactly. It was -- I want to say the Mammoth Cave someplace down South. Maybe Kentucky.

And Ronald Reagan was there. And I happened to be in the pool at the time. And he was so -- we asked him questions about this. He was up, and we were down sort of shouting up through the cave about it.

And he was so proud of this nomination. It was very clear that he had made a mark in history. And although presidents, you think, well, of course, presidents make marks in history, some of them, you know, are always going to be their comma, their first woman appointed by, comma.

So this was a very big moment not just for women, but for Ronald Reagan as well.

KAGAN: Bill Schneider, let's bring you in here. And we were listening to President Bush early this morning. He said he's instructed his staff to come up with a list of possible nominees.

We all know that this list has been around for a long time. The White House not the only one that's ready, but both sides, conservatives and liberals, ready to go into a battle here.

What will you be watching as the nomination process goes forward?

WILLIAM SCHNEIDER, CNN SR. POLITICAL ANALYST: Well, the politics of this gets very intricate. You know, we are hearing that both sides are assuming that they have to define this nominee, who could be someone relatively unknown, within the first few hours, because this is likely to be someone the public has no clear image of. And that becomes crucial.

Let me give you a story of about how sensitive the politics of this is.

Back in 1987, when Ronald Reagan nominated Judge Bork, the Democrats were the majority in the Senate, and the swing voters were southern Democrats. Southern Democrats survive by getting votes from African-American voters.

And a number of southern Democratic voters called me during those confirmation hearings and asked me, "How do black voters feel about Judge Bork?" Well, Judge Bork had been defined very early on by a lot of his critics as someone who would roll back progress on civil rights.

Black voters tended to oppose his confirmation, and southern Democrats ended up voting against him. And he did not succeed.

In 1991, when Clarence Thomas was nominated, pretty much the same thing happened. He was defined quickly. Of course there were other issues brought up. And I got calls from southern Democratic senators asking me, "How do African-American voters feel about Clarence Thomas?"

Well, you remember he talked about the confirmation process as a "high-tech lynching," his words. And there were racial overtones. And we found that African-American voters were sympathetic to Clarence Thomas at that time.

Many are not anymore. But they were sympathetic at that time. And a lot of those southern Democrats, those crucial swing voters, voted to confirm him, and he succeeded.

Well, now the swing votes are moderate Republicans, because the Republicans are the majority. They are going to be very, very sensitive this time to the views of women, and on the abortion issue. So, these kinds of sensitivities become crucial in the confirmation process.

KAGAN: Bill Schneider, Candy Crowley, thank you.

We've heard from a number of Republicans this morning: President Bush, Senator John McCain, also from Senate Majority Leader Bill Frist. We expect to hear from two key Democrats coming up. Harry Reid, the Senate minority leader, and Senator Ted Kennedy will be holding a news conference on Sandra Day Connor and who the next Supreme Court nominee just might be. We'll take that to you -- oh, we'll take you there in a few minute when they begin to speak after this.


KAGAN: We continue to follow our developing story, what will now be the search for a nominee to be the next U.S. Supreme Court justice.

Sandra Day O'Connor earlier today handing in her letter of resignation to President Bush. We have heard from President Bush about an hour ago. Any minute now, we expect to hear from two leading Democratic leaders in the U.S. Senate, Harry Reid, the Senate minority leader, also Senator Ted Kennedy. When they begin to speak, we will go live to Washington, D.C.

While we wait for that news conference to begin, let's bring in our Jeffrey Toobin who has been looking at the news and digesting it with us as the morning goes on.

Jeff, your thoughts?

JEFFREY TOOBIN, CNN SR. LEGAL ANALYST: Well, many of us who follow the court had been expecting Chief Justice Rehnquist to retire. He may still retire. There's no limit on how many people can retire. He's obviously been ailing.

Even though he's the chief justice, I think what's important to remember today is that in terms of the actual decisions the court makes, this resignation by Justice O'Connor is more significant than if the chief justice were to leave, because she has been so much the swing vote on so many important issues.

Chief Justice Rehnquist has been a committed conservative since he joined the court in 1972. He voted against the original Roe v. Wade decision. He's voted against it at every opportunity since.

Justice Connor in 1992 was one of the six justices who voted to keep the core meaning of Roe v. Wade. And whether it's affirmative action, whether it's Bush v. Gore, whether it's the Ten Commandments decision this week, he -- she has been the key vote on this vote. And the fact that she's no longer there and will be replaced by someone else will just have a profound impact on the results that come out of the court in the years to come.

KAGAN: Jeff, I'm going to keep you standing by.

While we're waiting for the Democrats to speak in Washington, I want to go quickly to the White House. Our White House Correspondent Dana Bash has some new information for us -- Dana.


Well, I just came out of a quick briefing from the White House press secretary, talking about a number of things, including how the president found out. But I think the headline from this briefing is that President Bush is not going to make any decision, will not announce his nominee until he is back from a trip to Europe which starts on Tuesday, and he is going to return on Friday.

So he's not going to return until a week from today. And the White House says that Mr. Bush is going to spend some time, a lot of time on the flight heading over to Europe, looking through the portfolios, looking through all of the information that his staff has gathered for quite some time on potential nominees.

The White House says that President Bush himself has not interviewed any potential nominee at this time. They are being a little bit skittish about talking about whether his staff has. We understand from some outside sources that we believe that some of his senior staff has potentially interviewed some candidates.

One other thing I can tell you is just a quick tick-tock on how President Bush found out he would have to make this decision. And it is quite dramatic.

It was actually yesterday, Daryn, that there was a call that came to the White House to Harriet Miers, the president's chief counsel., from a marshal at the court, simply saying that the court would have a letter from one of the justices to deliver to the White House, and would that be possible to do tomorrow, meaning today.

That call came into Harriet Miers shortly before noon. And then we are told that she went into where the president and vice president actually were having their weekly lunch and informed them of that.

So the president knew since yesterday at about noon that there was a letter coming, but they didn't know who it was from. And, in fact, it wasn't until this morning, we are told, that the marshal called back and told Harriet Miers that there was actually a letter from Justice O'Connor. Again, not saying that it was a retirement, but that was certainly implied and understood.

So it wasn't until this morning, shortly after 9:00 a.m., that the president understood that it was going to be Justice O'Connor that was going to be retiring.

At that point, he -- the president met with the vice president, Karl Rove, Dan Bartlett, his counselor, briefly in the ding room off of the side of the Oval Office, told them the news and gave them the information.

And then, Daryn, at 10:18 this morning, there was a call arranged between President Bush and Justice Connor. It lasted about five minutes. It was described as an emotional call when the president told Justice O'Connor that "You are a great American, I wish I could hug you," he said to her on the phone.

And, of course, as we've been reporting, Justice O'Connor comes from Texas, from El Paso. And the president said, "For an old ranching girl, you turned out pretty good."

So that was -- were some of the highlights of the phone call between President Bush and Justice O'Connor at 10:18 this morning. Then at 10:30, I can tell you that President Bush had his first meeting with the very small group of top advisers that are going to help him make this decision. As we've been reporting, this is a process that has been in place. This is a very prepared White House.

So they simply talked. Again, it was the president, the vice president, Scooter Libby, who is the vice president's chief of staff. The attorney general was here. Karl Rove was here, again, Dan Bartlett.

The chief of staff, Andy Card, was on the phone. He is up in Maine for the July 4th weekend. And they all just sort of talked about the process going forward again, which is very much in place already.

And then the president at 11:00 a.m. did make a phone call to the Senate majority leader, Bill Frist. Again, they spoke for five minutes, talked about the fact that he will be consulting, not only with Bill Frist, but according to Scott McClellan, he said he will continue to consult with the Democratic leader, Harry Reid.

According to the president's spokesman, the two men did speak about the process going forward in general. Harry Reid was here earlier in the week for a breakfast with President Bush. And the president's spokesman said they talked about it then.

President Bush then promised Senator Frist that he would not only talk to Harry Reid, but also, the Republican judiciary chairman and the ranking Democrat. That is a very key point that the White House is trying to put out right now, that he will be consulting not only with Republicans, but with Democrats in the days to come.

So, President Bush, this certainly was a dramatic way that President Bush learned about this, first getting the word from the court that there would be an announcement. Not knowing who it was until this morning. And President Bush not making a decision, Daryn, we are told until he returns from a trip to Europe, at least, and that is a week from today.

KAGAN: Really interesting information. Also interesting to hear the behind-the-scenes take on that, Dana. Dana Bash at the White House. What President Bush had to say to Sandra Day O'Connor. Thank you to that.

You heard Dana reporting that President Bush says he will be consulting with Democrats, the top Democrats, perhaps like Senate Minority Leader Harry Reid. We expect at least Senator Ted Kennedy to be coming to the microphone there in Washington, D.C.

Haven't heard from any key Democrats live today. But we do expect that to change in the last -- in the next few minutes. And when that happens, we will show that to you live, just as we've been showing you the Republicans.

Right now, a break. Our coverage continues after this.


KAGAN: Live now to Washington, D.C. Senator Ted Kennedy and other Democrats talking about Sandra Day O'Connor and the next nominee to the U.S. Supreme Court.

Let's listen.


SEN. EDWARD KENNEDY (D), MASSACHUSETTS: ... a wise judge who served the nation and the Constitution well.

Justice O'Connor was a mainstream conservative and was confirmed unanimously by the Senate. I hope the president will select someone who meets the high standards that she set and that can bring the nation together as she did.

Today, President Bush is faced with a decision that affects each and every American, and has the potential to impact every facet of constitutional law and the freedoms this country was founded upon. I urge President Bush to consult with the United States Senate on his nominee to the nation's highest court and to nominate someone who's record is consistent with the ideals and freedoms of the United States.

Last month, 14 senators, bipartisan, reached the landmark bipartisan compromise in the nuclear option debate, made a pledge to one another and a plea to the president that the advice must not be given short shrift, and that serious consultation within the Senate in the nomination process is the key to a successful confirmation process. If the president abuses his power, and nominates someone who threatens to roll back the rights and freedoms of the American people, then the American people will insist that we oppose that nominee. And we intend to do so.

Senator Dodd.

SENATOR DANIEL AKAKA (D), HAWAII: I'm delighted to join my Democratic colleagues here to pay tribute to a great justice of our nation. Justice Sandra Day O'Connor has been an inspirational figure for all Americans.

As the first woman to serve on the United States Supreme Court, she blazed the trail for many to follow. As a westerner, she brought to the court a love of the land and appreciation for individual rights. And as a former state legislator she had a practical sense of how to balance the will of the majority and the rights of the minority in our society.

Above all, Justice O'Connor has been a voice of reason and moderation on the court. It is vital that she be replaced by someone like her, someone who embodies the fundamental values of freedom, equality and fairness.

We want to wish her well in her new life that she has chosen. And look forward to one that will replace her and embody that spirit. SENATOR CHRISTOPHER DODD (D), CONNECTICUT: Let me just briefly add my voice to that of Senator Kennedy and Senator Akaka, as well, in thanking Sandra Day O'Connor for her remarkable years of service.

(INAUDIBLE) Ronald Reagan for choosing a woman of her caliber. And as Senator Akaka said and Senator Kennedy has said, this is a conservative, but very rooted in pragmatic decisions, always seeking a reasonable conclusion to the matters before the court. And we've been well served in this country by Sandra Day O'Connor. And my hope would be at this hour that as the president considers nominees, he would keep Sandra Day Connor in mind.

The kind of service she has provided on the court, the sensible decisions that she's helped craft over the last quarter of a century, America's a better place today because Sandra Day O'Connor's been on that court. She's been a deciding voice on many controversial issues. I haven't always agreed with her decisions, but I've always admired the reasonableness with which she arrived at those decisions.

So today we wish her and her family the very best. We hope the president will consult, as Senator Kennedy has said, with the leadership of the Senate, with Arlen Specter, with Pat Leahy, other members of the Senate Judiciary Committee to fulfill that advise and consent clause of the Constitution so that all America will be well served by the person who will replace this remarkable woman who served our nation so well.

QUESTION: A couple of questions. First of all, do you think the White House should keep this a symbolically female seat on the court? That is to say, it is the position of the White House -- should be to nominate a woman for Sandra Day O'Connor's position?

Number two: In the consultative process, where do you draw the line between offering advice and suggesting, perhaps, a veto, preemptively to anyone the president might suggest?

KENNEDY: Well, let me take the first part of the question, first.

I would think all Americans want the Supreme Court to reflect our country and our nation and our society, and I think the Supreme Court should.

I think what the real challenge will be is to have someone who will be a conservative, but will be in the mainstream of judicial thinking.

We have, as has been pointed out many times before, approved 96 percent of President Bush's nominees. Some have been -- others we have been challenged (inaudible). But there's a record of 96 percent approval because they have been in the mainstream of conservative judicial thinking.

And I think that is what the sense of -- that was what Sandra Day O'Connor represented. And I think that is what the American people are expecting. On the issues of consulting with the leadership, I would expect that they would consult with the leadership, with the Republican leadership of their own party, and with the leadership of the opposition party, the Democratic Party, with Senator Reid and the ranking member of the Judiciary Committee, Senator Leahy.

This isn't a question -- the president has the responsibility under the Constitution to make the recommendations. But it's very clear in reading the debates at the Constitutional Convention that our founding fathers understood that this was going to be a shared responsibility -- a shared responsibility; that the president had the nomination, but that he could not achieve the position on the courts unless the Senate of the United States approved.

The founding fathers wanted it a shared responsibility, and therefore, in the nation's interest -- in the nation's interest -- in the Supreme Court's interest, it's best if we have a process, as we have had in the past, with Sandra Day O'Connor, the kind of consultation.

Each president has different ways and different means of doing it. Consultation could mean a number of different things to a number of different presidents. But it's not like other issues -- people know it when they are being consulted and they know it when they are being told.

QUESTION: Senator, if the nominee does not pledge to uphold Roe v. Wade, would you lead a filibuster against the nominee?

KENNEDY: Let me just say that I, for one, I will not vote for someone unless they demonstrate before the Judiciary Committee a core commitment to the fundamental constitutional values of the Constitution. And they include a variety of different rights, including privacy.

But I don't set up a litmus test for any particular nominees. I have voted for judges which have been pro-life. But I'm going to reserve any kind of judgment. And during the course of the hearings, we'll have an opportunity to determine whether there is a core commitment to the constitutional values which this Constitution guarantees. And there's a series of those.

On each and every occasion as a member of the Judiciary Committee, I've always given the nominees the questions that I'm going to ask. This shouldn't be a game. We're interested -- the American people are interested in the positions of these nominees. And I think that's what the American people want.

The Judiciary Committee serves as a means and a way for the American people to be informed about these nominees. So that committee has special responsibilities.

But I think for most of us on our side always have felt that we'd give the nominee the questions.

But they'll have to demonstrate, at least as far as this senator's concerned, or I couldn't support them, that they're committed to these core values.

QUESTION: Senator, you referenced the so-called Gang of 14 agreement. You weren't one of the signers of that. So I'm interested in your take on this. Extraordinary circumstances: If the balance of the court is in question here on an issue like abortion or on another fundamental issue, name your issue, does that, in your opinion, constitute an extraordinary circumstance?

KENNEDY: I think -- maybe others can speak. Let me say that I would hope that people that would be interested and concerned about this issue would just read the statements and comments that have been made by some of the 14 members on the floor of the United States Senate.

And also, they have shared their communications with the president. They have tried to be constructive, tried to be positive, tried to be forthcoming and also indicated that part of the agreement of the 14 was to expect that there would be some willingness to share, not with them necessarily, individually, but institutionally. And I think they -- that agreement was very clear on it. And I believe that a number of the Senates have spoken about that very clearly.

With regards to particular nominees, how they are going to do, I reserve all options until we have a chance to go to the...

KAGAN: We've been listening into some leading Senate Democrats on this historic day, the day when Sandra Day O'Connor, the first woman to serve on the U.S. Supreme Court, announced her resignation. That will become effective once her successor has been nominated and confirmed. And we heard some key clues as to what that confirmation process might be like as it goes forward as we listened into the Senate Democrats. But, in general, they had kind words for a Republican, something you don't hear too often on Capitol Hill. And senators like Ted Kennedy saying they hope President Bush would nominate somebody like Sandra Day O'Connor.

We have our A team up with us, looking at what lies ahead. Let's do the introductions. We have Ed Henry on Capitol Hill, Bill Schneider, Jeffrey Toobin, and Candy Crowley.

Ed, to you first. It looks like Americans are going to get a civics lesson ahead. We haven't seen this, a Supreme Court nomination process, in 11 years here in the U.S.

HENRY: You are absolutely right. And the kind words also important to point out. I think what Democrats are trying to do is kill him with kindness. We saw a window on their strategy right away. We are going to hear words like mainstream, moderate over and over again, as they relentlessly praise Sandra Day O'Connor, and say that she has this terrific legacy, in their words, that should be followed. What they're trying to do is box President Bush in right away. They want to move quickly and say that this seat on the court has been moderate and mainstream and needs to stay that way. Democrats realize they have virtually no power in Washington right now. About all they have is potentially the power of the filibuster, and even that is up for grabs when it comes to judicial nominations. So they want to try to get to the American people right away, say this is a moderate mainstream seat. Why are they doing that? A lot of the speculation had been that it would be Chief Justice William Rehnquist who had stepped down first. That obviously has not happened. That's a conservative seat on the Supreme Court. While every seat obviously counts on the Supreme Court, the battle wouldn't have been quite as fierce, just because Democrats know that he had already been, and has been and will continue to vote in a very conservative way. The O'Connor seat has been such a pivotal swing vote, on abortion, on everything across the board, affirmative action, you name it, and Democrats know that all the marbles will be on this fight. They are going to try to box President Bush in, and say that he has to name someone just as moderate, just as mainstream as Justice O'Connor -- Daryn.

KAGAN: Well, as we know, President Bush not a man who likes to be boxed in on anything.

Bill Schneider, let's go to you, because we heard Ted Kennedy was asked a question on an issue you brought up today. He asked flat out, if there was a nominee who would not support Roe versus Wade, would you black the nomination, and the Senator didn't give a direct answer. He talked about what his own personal vote would be, and about issues of privacy, but you brought this up earlier in the morning, Bill, about how Roe versus Wade will be a key issue as this nomination process goes forward.

SCHNEIDER: You're right, nobody wants to talk about litmus test. Remember I said that phrase would come up. It already has. He was asked if President Bush nominates someone who is committed to overturning Roe versus Wade -- that is a woman's right to abortion under the Constitution -- would that be enough for him to say, this is an extraordinary circumstance, the Senate should, the Democrats should filibuster the nominee. He wouldn't say that.

He said, well, I don't want to impose a litmus test. He said there are a variety of concerns. He mentioned the right to privacy, which of course is at the core of Roe versus Wade. Conservatives arguing that there is no right to privacy in the Constitution, that in 1973 the Supreme Court invented the right to privacy, but it is a popular decision. As we saw earlier, nearly two-thirds of Americans says that the new justice should not be committed to overturning Roe versus Wade.

So one of the issue is simply, will there be a litmus test? Will there be a yes-or-no question that could doom a nominee, or at least invite a filibuster? And the question is most likely to come on the abortion issue.

KAGAN: Bill, thank you.

Candy Crowley, let's go ahead and bring you in it. As we move this discussion forward, look at the backdrop of what this nomination process will take place, and that is the elections that are coming up in the next year. CROWLEY: The '06 elections, when the control of Congress will be at stake. What's interesting here is that in general the courts do not tend to move the majority of voters.

However, they do -- who is on the court, nominations to the court, particularly the Supreme Court, is, in fact, of great interest to the core of both parties. That is the conservative wing of the Republican Party, the more liberal wing of the Democratic party. This is a huge issue to the voters who tend to come out in nonresidential election years. So, obviously, the fight itself is -- will be looked at in -- through a political prism, as well as the nomination. The president himself, of course, is not running, but a third of the Senate and all of the House is, so his party is up there. So there are always political implications to everything. But when it comes to the supreme court, and courts in general, it's an issue that is of great concern to those who tend to be the ones who vote most often.

KAGAN: Jeffrey Toobin, let's bring you in here. And again, as we set the table as this nomination process goes forward, what are the issues before the Supreme Court in the next term, that the next nominee, the next justice might be a part of?

TOOBIN: Well, we don't know all of them yet, because they haven't filled their schedule, but three of the most contentious issues, and they are big issues, there will be Oregon's assisted- suicide rule, which will be a struggle between the federal government's right to regulate an act like that. Or can states pass a law that conflicts with the federal government's view? There's a case out of New Hampshire that concerns parental notification on abortion. It is not a case that calls on the court to revisit Roe v. Wade, but it is certainly relates to the always inflammatory subject of abortion.

And finally, there's another case about Congress attempting to -- it's a little more complicated. But it's a case where a lot of universities have thrown off recruiters from the military because they don't like the military's "don't ask/don't tell" policy. Congress, in response, said, well, if you throw off military recruiters, we're going to cut off all federal aid to your university. Universities are testing that case in the Supreme Court. So those are the first three issues, but there are a lot more issues that always come on the table, abortion, gay rights. Affirmative action; they'll all be back in one form or another.

KAGAN: Jeffrey Toobin, thank you. The Senate has its gang of 14; we have our gang of four. I'm put them up against anybody. Ed Henry, Candy Crowley, Jeff Toobin and Bill Schneider. Thank you. You guys aren't going far. We're continuing your coverage and discussion of who might be the next person to serve on the U.S. Supreme Court, on this day where Sandra Day O'Connor says 24 terms has been enough. Our coverage continues after this.


(BEGIN VIDEO CLIP) SEN. TED KENNEDY (D), MASSACHUSETTS: I join the nation in extending my best wishes to Justice O'Connor, and thank her for her long and dedicated service to our nation. She was a careful, and thoughtful and highly respected member of the court, a wise judge who served the nation and the Constitution well.

Justice O'Connor was a mainstream conservative, and was confirmed unanimously by the Senate. I hope the president will select someone who meets the high standards that she set, and that can bring the nation together, as she did.


KAGAN: That was Senator Ted Kennedy. If you've been with us for the last hour or so. You saw those comments live here on CNN. We've been hearing from a number of Democrats and Republicans in light of this historic news that Sandra Day O'Connor after 24 terms as the first woman ever to serve on the U.S. Supreme Court has handed her letter of resignation to President Bush.

Washington is gearing up for the nominee selection and confirmation process that will take place. And will be very interesting. But before we take that step, it's so interesting to look at the life and journey of Sandra Day O'Connor, a woman who graduated third in her law school class at Stanford University back in the early '50s, and yet couldn't get a job as an attorney coming out of law school because no California firm would hire a woman at that time. And look what she went on to do and become.

Our longtime CNN anchor Judy Woodruff had the opportunity to sit down with Sandra Day O'Connor for an extended discussion. They had that talk back in may of 2003. Let's look back.


JUSTICE SANDRA DAY O'CONNOR, SUPREME COURT JUSTICE: The framers of the constitution did a pretty amazing job all things considered, especially when they added the Bill of Rights.

WOODRUFF: You write several chapters about the role of women in the legal system...


WOODRUFF: ... the women as judges and women in American life. Clearly, that has to be of interest to you as the first woman named to the Supreme Court.

O'CONNOR: Well, it is, because it wasn't too many years before I was born that women in this country got the right to vote in the 1920s, for heaven's sakes. It isn't that long ago. And things move very slowly for women in terms of having an equal opportunity in the workplace and so on.

And in my lifetime, I have seen unbelievable changes in the opportunities for women. It's been so interesting to see. And I think that my participation in a number of interesting jobs was really the result of the changes in law and in public attitudes about the role of women as I happened along.

WOODRUFF: At one point in the book -- and I think I have the quote here -- you say there's simply no empirical evidence that gender differences lead to discernible differences in rendering judgment.

O'CONNOR: In results.

WOODRUFF: And yet, it's clear to you that it's important that we have women in law and have women on the court.

O'CONNOR: Let me tell you one reason why I think it's important, and that is for the public generally to see and respect the fact that in positions of power and authority that women are well represented. That it is not an all-male governance, as it once was.

Citizens can have more confidence, I think, in seeing government that has representatives of both sexes and...


KAGAN: Fascinating to get to hear from Justice O'Connor herself. Once again, that was Judy Woodruff's interview with Justice O'Connor back in May of 2003. Judy's going to join our coverage later today. She's going to be on "INSIDE POLITICS," 3:30 Eastern, 12:30 Pacific.

Meanwhile, we encourage you to stay with CNN for the latest reaction to the retirement of Justice Sandra Day O'Connor and for extensive coverage online. You can go You'll find an interesting profile of Justice O'Connor, including highlights of life and career. You can also find out what's ahead in the confirmation process for the next justice. And there's also a gallery of people who have been mentioned publicly as possible candidates for the High Court. That's at Our coverage continues after this.


KAGAN: Let's get back to our continuing coverage of the U.S. Supreme Court. Sandra Day O'Connor giving a letter today to President Bush saying she will resign once her successor has been nominated and confirmed.

And so the search and the fight over the next nominee now begins. Let's bring back Candy Crowley and Bill Schneider in the discussion of why this is so important to Americans, why so many people will pay attention.

Candy, the issues the Supreme Court looks at, even though it might be so far away to a lot of people where they live in America, affects things in their daily lives.

CROWLEY: You know, it's interesting, because I was just thinking, you know, we -- this whole day, obviously from the minute we knew this was going to happen, up to now and throughout tonight, we'll be talking about this. And I very often, as I'm sure you do, talk to people back home, which in my case, is in the Midwest, who say, oh, yes, right, that happened. And I'm sure, they'll be asking me, so what is the big deal here?

And I looked at the last month of Supreme court rulings. We had a ruling on medicinal marijuana that said that, in fact, the federal government could prosecute those who used marijuana for medicinal purposes, even if the state said that it was lawful. We had a ruling on eminent domain, the circumstances under which the government could take one's home. And there was ruling on the Ten Commandments, when and where the government could have a display of the Ten Commandments.

KAGAN: And then, Bill Schneider, you know, the two words of litmus test. There's a number of tests right there. Is it possible for senators to get to the next justice without asking them, what do you think about this, this, and this?

SCHNEIDER: Well, that's going to be very tough. That's what confirmation is all about. It's a test. The senators want to get their views as precisely as possible, and the nominee wants to give himself or herself as much as flexibility as possible. It's interesting, as Ed Henry pointed, that they're -- the Democrats are looking at Sandra Day O'Connor, who is a Republican. She was the Republican majority leader in the Arizona state Senate in the early '70s. They look on her as a model, and they're going to take any nominee that the president puts up, put that nominee next to Sandra Day O'Connor and they're going to say, is this another Sandra Day O'Connor? Does this nomination measure up to her standards?

I remember in 1987 when President Reagan nominated Robert Bork. Kennedy, Senator Kennedy, came out and gave a very famous speech called "Robert Bork's America," in which he talked about the possibility if Robert Bork were on the Supreme Court, that the country could return to segregated lunch counters, that women would be forced to seek back-alley abortions. He spelled out that he regarded as the dire consequences if Bork were confirmed, which he was not.

KAGAN: And on that, Bill -- I'm sorry. They're telling me to get in there and jump in. Our time together has been so fascinating. Our thanks to you, Bill, and Candy, as well.

A big, important historic day. Sandra Day O'Connor making it official. She will resign from the U.S. Supreme Court. A fascinating journey, and it's been an interesting one to watch along with you there at home. I'm Daryn Kagan. Kyra Phillips will take over in just a couple of minutes, right here at the top of the hour. And I'll see you on Monday morning. Thank you.



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