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Sandra Day O'Connor Retires From Position as Associate Justice of U.S. Supreme Court

Aired July 01, 2005 - 11:30   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

(BEGIN VIDEO CLIP)
GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES: America's proud of Justice O'Connor's distinguished service, and I'm proud to know her.

(END VIDEO CLIP)

DARYN KAGAN, CNN ANCHOR: That was President Bush in the Rose Garden. The White House just 15 minutes ago talking about the letter he received, and we have a copy here at CNN, from Justice Sandra Day O'Connor. He received it a couple of hours ago, informing him in three short sentences that she is retiring her position as associate justice of the U.S. Supreme Court, the first woman ever to hold that position. She has been there since 1981.

Our Dana Bash is at the White House. She has more new information for us on the resignation and the nomination process.

DANA BASH, CNN CORRESPONDENT: Hi, Daryn.

Well, there's just a couple of points that I think are interesting to bring up. First of all, as the president is weighing his decision as to who to nominate to fill up Justice O'Connor's spot, it's interesting to know who is actually helping him do that. He has a very small number of senior officials that have been working on this. It's not a secret that this is a White House known to keep secrets, but this has been a whole different level as to how they have been preparing, who they've been potentially talking to.

One figure is somebody that very few Americans know about, and that is Harriet Myers (ph). She is the president's counsel, and she is somebody who has known the president for quite sometime, and she is playing a pivotal role. Kind of noteworthy we are talking about the first female Supreme Court justice, and it's a woman who is really trying to help President Bush along, of course, with the president's political adviser Karl Rove, his chief of staff and also the vice president, of course.

One other thing to perhaps note in the realm of firsts, a lot of people have been talking about the potential for the president to nominate the first Hispanic justice. And many people look to perhaps Alberto Gonzalez, of course, the attorney general, the president's former counsel. Somebody who is very, very close to President Bush, in talking to some of the former associate counsels here at the Bush White House, who are assigned since day one to try to figure out who could potentially be a Supreme Court justice that President Bush could nominate, one said, sort of looked at me and said every once in a while they would think to themselves, why are we doing this? We sort of have an idea that perhaps it's our boss, Alberto Gonzalez, because President Bush is known to nominate people for various posts who he feels very comfortable with, he feels very close with.

However, that name has been leaked once again, if you will, or a trial balloon has gone out over the past couple of weeks as speculation has really ramped up. And conservatives have made it very clear that they would not find him somebody acceptable because of some cases that he ruled on back when he was a justice in the Texas supreme court, perhaps that they thought were too moderate on abortion and other issues. Unclear how the fact that it was Justice O'Connor, whom you have been talking about, as one of the more moderate swing voters retired and not justice -- Chief Justice Rehnquist. Unclear how much that plays into the president's decision. But certainly Alberto Gonzalez is somebody that has been talked about since day one of this administration. Very close to the president.

KAGAN: All right, Dana Bash at the White House. Dana, thank you.

President Bush being very clear today, saying that today was a day to reflect and respect Justice Day O'Connor, and that this was her day, and he wasn't going to announce a nominee. Yet he said he is going to act with speed. He does have the idea that this is something that needs to get going, to replace Sandra Day O'Connor on the U.S. Supreme Court.

Let's talk a little bit how the process is going to work once the person is named and nominated. And for that, let's go to the U.S. Supreme Court.

Joe, go ahead.

JOE JOHNS, CNN CORRESPONDENT: Hi, Daryn. How are you?

This is very much choreographed, at least the early stages of it. As you start out with a Supreme Court nominee, the issue at first, of course, is compending (ph) the record of the retiree who is outgoing, then you move into the process of figuring out who the new nominee is going to be. Very much choreographed. On the right and the left people have been preparing for this for months even years.

(BEGIN VIDEOTAPE)

JOHNS (voice-over): The battle over the Supreme Court is about to begin.

CHRIS MYERS, PROGRESS FOR AMERICA: We're not going to be caught unprepared.

JOHNS: Activists are huddled in their war room, plotting strategy, rallying the ground troops.

MYERS: It may be a good idea to go over this. And actually when you are done with it, we can e-mail it out to them so they'll have it in front of them.

JOHNS: In the video-editing base, television attack ads are waiting for someone to push the play button.

MYERS: The president nominated George Washington. Democrats attacked Washington for his environmental record of chopping down cherry trees.

JOHNS: Conservative activist Chris Myers and his group, Progress for America, are preparing to defend the president's nominee, whoever it is, against an expected onslaught from liberals. They have organizers in 21 states and an $18 million war chest.

MYERS: We do know that if there is a retirement, that it will be defined quickly. We know the kinds of patterns that the left exhibits, based upon the things they've done in the past.

UNIDENTIFIED MALE: All right!

JOHNS: On the left, Ralph Nees, a 30-year veteran of these wars, sometimes called the 101st senator for his civil rights advocacy.

RALPH NEES, PEOPLE FOR THE AMERICAN WAY: We're really well prepared whether it happens, whether it's one, two, or three possible vacancies.

JOHNS: Nees and his group, People for the American Way, fear the president will nominate someone who will take a wrecking ball to civil liberties. They've already sent out a million pieces of mail, with more to come once a nominee is named, and they're taking the fight to the Internet.

NEES: We have registered number of domain names, both with respect to the name of the campaign, and we want to make sure that we're ready to go from the very first moment.

JOHNS: The center of all this, 100 U.S. senators.

SEN. TED KENNEDY (D), MASSACHUSETTS: If the president submits an in-your-face nomination to flaunt his power, it takes time and effort and sweat and tears before the truth about the candidate is fully discovered.

UNIDENTIFIED MALE: And over the last four years this president's judicial nominees have been labeled cooks, Neanderthals, and even turkeys. Respected public servants and brilliant jurists have been called scary and despicable.

JOHNS: With the stakes this is high and the troops this ready, a fight is the one thing sure to happen.

Joe Johns, CNN, Washington.

(END VIDEOTAPE)

KAGAN: Let's get some more on the legacy of Sandra Day O'Connor and what might be next in the nomination, confirmation process. We have on the phone with us now former Attorney General Ed Meese, former attorney general under Ronald Reagan.

Mr. Meese, thank you for being with us.

ED MEESE, FMR. ATTY. GEN.: Thank you. It's good to be with you.

KAGAN: Take us back to the day back in 1981 when Sandra Day O'Connor was nominated to become the first woman on the U.S. Supreme Court.

MEESE: I remember that well. The president had then quite an extensive search under the guidance and leadership of my predecessor, William Prince Smith, who was the then the attorney general. He brought in a number of names to the president, all of whom the president found qualified. There are half a dozen or so, and he decided that Sandra Day O'Connor would be the one he liked to appoint.

KAGAN: Do you remember what it was about her, why he picked her?

MEESE: Well, there were several things. Number one, she had been a judge, a very high judge, in the state of Arizona. She also had a considerable legislative experience at the state level. And one of the things that he was very much interested in was having judges who would interpret the Constitution faithfully, including the federalism concept which is in the Constitution, in which it suffered considerably over the decade or so prior to his becoming president.

KAGAN: There is a history of presidents picking justices or nominating justices that they think would carry out what they are looking for. How do you think it played out for what President Reagan was looking for?

MEESE: I think it played out very well. And I think, for the most part, Justice O'Connor fulfilled what Ronald Reagan had in mind, and certainly was a distinguished member of the court. She did a lot to hold the court together on many issues, and I would say certainly was a very excellent justice and did a good job.

KAGAN: Looking back on a timeline note here, so it was July 7th, almost 24 years to the day that she was nominated to the Supreme Court by Ronald Reagan. Her confirmation came in September. So it was a few months. The confirmation process nothing like what I think we're looking at today.

MEESE: Unfortunately that's true. You know, extremists on the left have turned this confirmation process into a political circus in too many cases, such as with Judge Bork and with Justice Clarence Thomas, and so it has been a very unfortunate trend away from what confirmation processes were for literally centuries.

KAGAN: And what would you like to see in the next nominee?

MEESE: I'd like to see exactly what the president has promised us. Number one, the best person for the job, and a person who be faithful to the Constitution, and that was a person who will interpret the law and not make it up.

KAGAN: Ed Meese, former attorney general under Ronald Reagan, thanks for your thoughts today.

We continue to cover our story. Sandra Day O'Connor says she leaving the U.S. supreme court after 24 years of service. Who will be next as the nominee? And what will the process be like? We'll take a look at that as we go on a break right now.

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(BEGIN VIDEO CLIP)

SEN. BILL FRIST (R), TEXAS: 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 it's also a day to reflect on all that we have gained because of Justice O'Connor's service to our country.

(END VIDEO CLIP)

KAGAN: And that is Senate Majority Leader Bill Frist on the floor of the U.S. Senate. You can say that might be the battleground for what lies ahead in reshaping the U.S. Supreme Court. Sandra Day O'Connor sending a letter to President Bush today, saying that after 24 years of service it is time once they find and confirm her successor for her to go home to Arizona. We brought out our A team to talk about what's happening and what's next.

Let's introduce Ed Henry, Bill Schneider, Candy Crowley and John King.

Ed, I'm going to go to you, and refer to what we heard when I talked to John McCain in the last hour, the senator from Arizona referring to what has become to known as the gang of 14, these 14 senators on either side of the aisle and the power they wield in coming up with the next U.S. or at least confirming the next U.S. Supreme Court justice.

ED HENRY, CNN CORRESPONDENT: Absolutely. The gang of 14 basically forged a deal last month that prevented the so-called nuclear showdown over lower court nominees, and I can tell you that that gang of 14, Senator McCain, as well as Senator Ben Nelson, Democrat of Nebraska, who was the leader of that group, told me just a couple of days ago, they do not believe that there will be a filibuster of a high court nominee. They believe that those so called extraordinary circumstances that were mentioned in the deal will not come up, that they will be able to find a way to forge a relatively bipartisan consensus.

And also, just a few moments ago, Senator Arlen Specter, who will be the chairman of these confirmation hearings, spoke to reporters, and said he does not believe there will be a filibuster. He also said that despite the fact that Senator Specter has been ill in recent months, he says that he will be ready to go. He's fully prepared to launch these hearings whenever the president is ready. Senator Specter also revealing that he has spoken to Senate Majority Leader Bill Frist about this. They have some plans in place. They will move forward as soon as they have a signal from the White House.

Also Arlen Specter revealing that in fact he has not personally forwarded any names of potential Supreme Court nominees to the president. Senator Specter saying he wants to focus on the confirmation hearings, he wants to maintain a level of independence and not be on any side of any particular potential nominees. Also, interesting Senator Specter saying he believes that despite all of this speculation, he does not believe that Chief Justice William Rehnquist steps down. Senator Specter believes there will be only one nomination fight.

Now despite the optimism from Senator McCain and others, I can tell you, as you've heard from John King and others, the battle lines are already being drawn, and I can tell you very quickly, how Senator Frist got the news. It's interesting. It's Friday. That's usually very quiet in the Senate. It's about to be the 4th of July holiday. Everyone is heading out of town. Senator Frist was on the Senate floor delivering a relatively routine speech. I was just steps off the Senate floor and suddenly saw a young Frist aide racing down the hallway to get to the Senate floor with a big binder that had the speech that Senator Frist was going to deliver, hailing the service of Justice Sandra Day O'Connor. Immediately in that moment you could see things had changed dramatically, and we are headed for a major confrontation -- Daryn.

KAGAN: That we are. They were prepared, as are many people in Washington on both sides of the aisle.

Bill Schneider let's bring you in here. Let's expand the conversation past Sandra Day O'Connor, past who the next nominee might be. This is a time in American history when a lot of people want to open up the whole discussion of the role of the judiciary and the courts in American society.

WILLIAM SCHNEIDER, CNN SR. POLITICAL ANALYST: That's right, the judiciary has played -- as justice, well Judge Bork -- he never became a justice -- said to a lot of crucially decisive social issues, and paramount them is the abortion issue. We asked people just last week if the president has the opportunity to name a new justice to the Supreme Court, would you want him to name a justice who would uphold Roe V. Wade, the decision that legalized abortion, or a justice who would overturn Roe V. Wade.

What we see here is by better than two to one, Americans say they want a justice who would uphold the Roe v. Wade decision. Now, that is likely to be the center of any confirmation battle, principally because conservatives are pressuring the White House to name a judge who is not just the conservative, but one whose position opposed to Roe v. Wade is known. That's the so-called litmus test. They want to know this is a justice who will vote to overturn Roe v. Wade. And as you can see, that's a minority position. That is what would make this confirmation hearing enormously controversial.

KAGAN: Candy Crowley, to you. Taking the conversation even past Roe v. Wade, there are conservatives out there who don't like the role of the judiciary, as having the final role in so many issues. We just saw it happen in the Terri Schiavo case, how the courts were used.

CANDY CROWLEY, CNN CORRESPONDENT: We did. I mean, the fact of the matter is that the Supreme Court does more than a lot of people realize, reach in to the daily lives of Americans. We only see it when, in fact, something happens like the Terri Schiavo case, when in fact they chose not to interfere, which in and of itself says something.

But this is -- I think that there is a growing awareness, as Bill showed in those poll numbers, a growing awareness by Americans how these decisions affect their day-to-day lives. I have to tell you that the power of this nomination and what it will do to Washington will be incredible precisely for those reasons in how it affects day- to-day life, even cultural life in America. Since this nomination -- or since Sandra Day O'Connor announced that she will be resigning, in my incoming e-mail, I have gotten more than a hundred e-mails. Even disregarding those that are CNN internal e-mails, more than three quarters of them were from varying groups, saying we're about to spend $3 million on an ad talking about the supreme court nomination, we'll be spending this, or the president must believe this.

So this is a huge issue. There's a lot of pent-up energy since we haven't had a vacancy for 10 years. And it is I think pretty impossible to underestimate both the importance of this for Americans and as a political to and fro here in Washington.

KAGAN: As the smoke comes out of candy's blackberry, we'll be back to you on that. I want to bring John King in here. He's in New York City today.

John, give us some insight into President Bush and this political process, or actually the personal process of how he make this selection, and who he picks.

JOHN KING, CNN SR. WHITE HOUSE CORRESPONDENT: Well, I think you have an interesting question as to how the president will go here, because anyone who has worked closely with this president thinks his personal inclination would be to reward the loyalty of Alberto Gonzalez, his former counsel, close adviser, back to his days as governor. Now the attorney general of the United States.

Most think that would be the president's gut instinct, reward a friend he believes is a brilliant legal mind, who is a young man who he believes could have an impact on the court. But conservatives, of course, are lined up against him. They view him as the David Souter of the second Bush administration, if you will.

So will the president choose a more political course, which is to satisfy his base? Which is the course he has taken in most of the big fights, whether the issue be tax cuts, gay marriage, cultural issue, fiscal issues. This president has proven himself to be a conservative.

So I think you will have a bit tug of war, if you will, within the president, over how to make his decision going forward. Many, though, would tell you that he assumes, if not this year, next year or the year after, that Chief Justice Rehnquist will step down and he will have another vacancy. Many say give Alberto Gonzales a bit of time at the Justice Department, maybe to quiet that conservative criticism.

And just quickly to follow on Candy and Bill, we are talking about this in the context of a Supreme Court nomination that will be heard late this summer into the fall, heading into a congressional election year. It is the view of Karl Rove and the Bush White House that on cultural issues, perhaps abortion excepted, but on cultural issues like gay marriage, like the right to die, like other issues that will come up in the interest group war over this, Karl Rove believes the Democrats usually overplay their hands, especially out there in those red states where the congressional elections will be fought. So we will view this in the context of a judicial nomination, but it could very well have an impact on the 2006 congressional elections.

KAGAN: John King, Candy Crowley, Bill Schneider and Ed Henry, something tells me you shouldn't go too far from your post. We'll be back to you in just a moment as we continue our coverage of this historic day. Sandra Day O'Connor turning in the letter of resignation. First woman ever to serve on the U.S. Supreme Court. Says 24 years will be it for her. She is going home, we believe, to Arizona to be with her family.

Our coverage continues in just a moment right here on CNN.

(COMMERCIAL BREAK)

KAGAN: Once again, our breaking news here at CNN. Sandra Day O'Connor, the first woman to serve on the U.S. Supreme Court today, handing in her letter of resignation to President Bush. Three sentences. Basically she says she will say until her successor is nominated and confirmed.

Let's get some insight on the woman during a very key time in her service on the court. Richard Bierschbach was a former clerk to Sandra Day O'Connor during the 2000-2001 term. Hello, good morning, thanks for being here with us.

RICHARD BIERSCHBACH, FMR. CLERK FOR O'CONNOR: Thank you and good morning to you.

KAGAN: If I'm matching up my history correctly, that means that you were there serving with Justice O'Connor during the time the High Court had to decide on the Florida recount issue.

BIERSCHBACH: That's correct. This was the term of the Bush v. Gore case, as it's known.

KAGAN: And what was that like behind the scenes with Justice O'Connor?

BIERSCHBACH: Well, it was the way it almost always was, with any case, big or small, with the justice. She was gracious, you know, kind driven and intense, all at the same time. And this is really how she was as a boss, which made her great to work for for a number of reasons. We learned a lot as law clerks, and we also developed a very close relationship with her.

KAGAN: What was the perception before you came to work for her, and how did it change as you worked with her?

BIERSCHBACH: My perception was, really, one that was very vague. It's hard to get as close to a justice from the outside as you do on the inside, obviously. And I'd heard through the grapevine that she has a hard worker and a very focused person, and I found this to be true. I think what surprised me most, not in a negative way, but was just how kind and fun to be around she was. I had always imagined it would be hard to get close to a Supreme Court justice. And with her, she became very close to her clerks. In fact, she referred to them as her Supreme Court clerk family or her SOC family.

KAGAN: And as a legal -- from a legal mind, what did you learn? What did you take away for your legal career?

BIERSCHBACH: Well, I took away several things. The first big one was really the importance of looking into the pragmatic and kind of practical side of these decisions. And especially after this level, even the tiniest word in a footnote can make a big difference in a Supreme Court decision. And so Justice O'Connor's jurisprudence, as many people have remarked, is a very pragmatic and narrow one, and I learned to appreciate that.

And then I also took away really the importance of the give and take of debate among law clerks, back and forth between chambers. And the justice always wanted to hear everybody's views on every case. And I think she really appreciated this. And we did, as well.

KAGAN: And just finally getting back to that time when you were serving 2000 and 2001, the sense of the enormity of the importance of that decision, which was a 5-4 decision and what would happen with the Florida recount. Did you feel the weight of it? And was it felt in the offices and chambers of Justice O'Connor at the time?

BIERSCHBACH: We certainly felt the weight of it. Again, we felt the weight of every major case. And almost every case at the Supreme Court is major in one way or another. Now this case was special. It was intense, it was on a quick timeline, and so that made it seem even a little more stressful and even a little bit more weighty. But as with every case, you know, we did the best we could under the circumstances.

KAGAN: Richard Bierschbach. It sounds like that was a significant and wonderful experience for you, clerking for Sandra O'Connor.

BIERSCHBACH: Yes, it was fantastic. KAGAN: Thanks for coming into our New York bureau today.

BIERSCHBACH: Thank you.

KAGAN: Appreciate it.

We're going to continue our coverage. I know many of you expect at 12:00 noon Eastern that we switch over to CNN International. Today, our domestic audience, you're going to stay right here with us and we're going to continue our coverage not only of Sandra Day O'Connor and her decision to retire after 24 years on the High Court, but also what's happens next, who comes next and what will that confirmation process be like up on Capitol Hill? Our coverage continues in just a moment.

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