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CNN Live Today
Sandra Day O'Connor Announces Retirement
Aired July 01, 2005 - 10:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
DARYN KAGAN, CNN ANCHOR: And we'll go ahead and get started by taking a look at what's happening "Now in the News."
U.S. military officials hope a missing reconnaissance team may be hunkering down in the mountains of Eastern Afghanistan. The special forces have not been heard from since Tuesday. They were battling insurgents when they called for backup. But the MH-47 helicopter that was carrying 16 U.S. service members was brought down by enemy fire. The 16 bodies have been recovered.
Insurgents hit a political target in Baghdad today. A car bomb exploded outside the offices of the Dawa Party headed by Prime Minister Ibrahim Jaafari. A guard was killed. The prime minister was not in the building.
Fire crews have reported -- they are reporting some progress in battling wildfires in Southwestern Utah. A group of fires totaling more than 10,000 acres is now halfway contained. No report of any homes in danger right now but there are concerns that the fires may harm the habitat of the endangered desert tortoise.
And are you heading out on the roads this holiday weekend? Well, be ready for delays. AAA is predicting this weekend will be the most traveled holiday weekend ever. The auto club says more than 40 million Americans will travel over the long weekend.
And now cnn.com is offering a whole new way to get the headlines. Log on to our Web site and click on "watch" to check out the most popular stories. Everything from politics and sports to entertainment. It's free at cnn.com.
Good morning. I'm Daryn Kagan. Thank you for at least beginning your holiday weekend with us.
We are going to start this hour with new developments to report in this week's fatal crash of a U.S. military helicopter in Afghanistan. Pentagon officials now confirm the ill-fated helicopter was coming to the aid of a U.S. special forces team, and a search for them is underway. Our Pentagon Correspondent Barbara Starr has been working this story. She joins us now with the latest.
BARBARA STARR, CNN CORRESPONDENT: Hello to you, Daryn.
Well, U.S. military officials are now confirming that since Tuesday, a small U.S. special forces military team on the ground in Afghanistan, in those mountains, has been missing unaccounted for at this hour. This was the team on the ground in a firefight on Tuesday when they called for backup. And those helicopters came in to give them support and get them out of this firefight area.
One of the helicopters crashed, as we know. Sixteen dead onboard that. But when rescue and recovery forces got to the site, the special forces team on the ground was gone. They have not been heard from since. Officials say at the site there was no sign that anybody had been killed or injured. There was no blood in the immediate area. But they do not know at this hour what exactly has happened to this small number of special forces military members.
There are, of course, several possibilities. What they are hoping for is that those commandos have basically gone to ground. They are very highly trained in evasion and escape from enemy forces. The hope is that they are basically hiding out somewhere up in those mountains until they can make their way to safety. But, still, since Tuesday, Daryn, no one has been able to locate them and they are looking for them very urgently.
KAGAN: I would imagine so. And we'll have you continuing to monitor that story from the Pentagon.
Barbara, thank you.
Let's get back to the helicopter story and another development there. The Pentagon says it has contacted the families of all 16 people who were killed in that crash. Their military bases span four states, Kentucky, Georgia, Virginia and California. Our Ted Rowlands is live at the Naval Amphibious Base on Coronado Island, just outside San Diego, with information about the eight Navy SEALs who were among the victims.
TED ROWLANDS, CNN CORRESPONDENT: Hello, Daryn.
We don't know much specifics in terms of the eight SEALs that were lost in the incident on Tuesday. Only that some of the SEALs trained and were based here in Coronado. Others were based in Virginia. And as people wake up here on the West Coast, they are finding out that they have lost some of their own.
Navy SEALs, of course, are among the world's most elite in terms of fighting forces. SEAL stands for sea, air and land. And every SEAL is trained not only on land and in the air, but also they go through rigorous amphibious training which sets them apart from other elite fighting forces around the country. SEALs make up less than 1 percent of all of the Navy personnel, but there is a significant amount of pride in the SEALs, in terms of the Navy.
They go through a legendary training process, which is highlighted by what is referred to as hell week. Five-and-a-half days with only four hours of sleep. According to the U.S. Navy Web site, hell week proves to those who make it that the human body can do 10 times the amount of work than the average human thinks he can do. Clearly, this is a unique group of individuals, a tight knit community here, and a community in Coronado that takes a lot of pride in the SEALs. Those that are lost will be mourned this holiday weekend. We are not hearing much and we have been told this morning that we may not hear much in terms of detail because this is an ongoing situation in Iraq -- in Afghanistan, rather. Whether that mean there is fear that more Navy SEALs may be involved in the missing group, the reconnaissance group, we just don't know. But we have been told the we may not get much more information until everything is resolved in terms of this operation.
KAGAN: Ted Rowlands from Coronado Island, California.
Now on to Iraq and the search for insurgents. This morning we have new video from Operation Sword, the joint U.S./Iraqi offensive in Iraq. There has been no fighting reported today, but the Marine Corps saying the forces have detained two people at the site of a weapons cache. So far at least 13 people have been taken in to custody during those sweeps.
As we've been seeing in offenses such as Operation Sword, the control of Iraq is sometimes won street by street. And nowhere is that turf battle more in evidence than Baghdad's once treacherous Haifa Street. CNN's Jennifer Eccleston went along with some troops who were on patrol and she has their story on the road to progress.
JENNIFER ECCLESTON: First Lieutenant Sala Abdul Kareem (ph) navigates Baghdad's Haifa Street and its maze of crossroads. At every turn, he and his men are greeted by children, more children and grateful residents.
UNIDENTIFIED WOMAN, (through translator): Thank God. Now with the help of the Iraqi army, the situation became more stable and safe. Before it was difficult to live in this area, but now you can see we live normally.
ECCLESTON: Kareem and his 25-member patrol are soldiers of Delta Company, the unit in charge of securing Haifa Street, once one of the most dangerous areas in Baghdad. For most of 2004, insurgents terrorized the neighborhood using it as a base to launch attacks not only on American patrols, but on the nearby green zone. Shops were closed and fear drove residents out or locked inside their homes.
Six months ago, this part of Haifa Street was an all-out war zone. It was so dangerous that the American forces who were fighting insurgents here, sometimes street by street, house by house, nicknamed Haifa Street grenade alley or purple heart boulevard.
The cost of taking back the street was high for Iraqi soldiers. Twenty-six killed in the battle for what they call little Fallujah. Delta Company's commander says several major joint U.S./Iraqi operations, along with constant patrolling, broke the back of the resistance, either capturing the fighters or driving them elsewhere.
UNKNOWN MALE, (through translator): God willing, God willing, there are no more terrorists in Haifa Street. And if there are terrorists, they fear to show up here, because this platoon has had an effective role in this section.
ECCLESTON: The U.S. Army's 3rd Infantry Division trained Delta Company and still provides a supporting role in neighborhood search incordent (ph) operations. Today, just a handful of soldiers join the foot patrol. They were welcomed by Haifa's residents but it's the Iraqis who are the true stars. This eight-year-old says he wants to be an Iraqi soldier. Why? Two protect my country. It's an example the U.S. military needs and wants to repeat across the country.
MAJOR TOM FREELUE, U.S. ARMY: The Iraqis have an ability that we, as U.S. forces, don't have. They speak the language. It's a lot easier to get intelligence. And once they clear the streets, they basically said, we own the streets and we're not going to let it go back to like it was before.
ECCLESTON: On Haifa's bullet-scarred walls, the graffiti speak of a neighborhood transformed. In buildings once owned by insurgents, gone are the scribblings of long live the resistance. Today, it's long live the Iraqi army.
ECCLESTON: They're one of the success stories where by Iraqi soldiers are directly responsible for securing a neighborhood and its people. It's a scenario that U.S. forces must replicate across this city, across the country, in order for American troops to go home.
KAGAN: Jennifer Eccleston, live from Baghdad.
Now we move on to Iran and its newly elected president facing questions about the 1979 takeover of the U.S. embassy. A sixth former U.S. hostage now says that Mahmoud Ahmadinejad was among the captors. Iranian officials denied those claims, as does the man who was the leader of the hostage-takers. The new president-elect was a member of the hard-line student group that plotted the takeover.
Here in the U.S., President Bush and other administration officials say they are taking the claim seriously and they are investigating. Part of that will include comparing photographs. CNN's Brian Todd tracked down a former FBI analyst who specialized in just such a task. And here is what he found.
BRIAN TODD, CNN CORRESPONDENT: One look at Mahmoud Ahmadinejad and some former hostages were sure. This man, Iran's president-elect, was among their captors a quarter century ago.
: As soon as I saw the face, it rang a lot of bells to me.
TODD: It may ring bells to Dan Sharer (ph), but what do experts say? We spoke to Peter Smerick, former FBI special agent, for a decade, one of the bureau's premiere photography experts. We showed Smerick several current still photos of Ahmadinejad, a picture of the president-elect when he was a student in 1979, and pictures of one hostage-taker who Ahmadinejad is being compared to.
The two pictures that we seem to be comparing most are this picture of a hostage-taker with a hostage from 1979, this picture from about the same time period of Mr. Ahmadinejad in his student days. What are the fundamental similarities and differences that you can tell me from those two photos?
PETER SMERICK, FORMER FBI PHOTO EXPERT: What I observe in the yearbook photograph is what appears to be a large space between the eyebrows, where in the photograph of the hostage holder, I see a very, very small space between the eyebrow hairs.
TODD: What about the nose comparison?
SMERICK: Now, the noses appear to be similar, but this might be considered more or less a class characteristic. In other words, there is nothing in these photographs that tell me it is a unique nose to one person.
TODD: Smerick also points out differences in the mustache and beard but says time, camera angle and shadows could account for that. So we showed him two pieces of videotape frozen next to each other. A recent image of Ahmadinejad on the left. On the right, a hostage- taker from 1979.
SMERICK: In this particular instance, the earlobe of the individual photograph is 1979 appears to be squared off at the base. Where the earlobe of the current president of Iran seems to be more rounded and like a peninsula coming down to a little bit of a point. The nose was of interest to me because in this image there appears to be a hook type of nose, where over here, even though the image is very, very poor, it appears to be more angular.
TODD: Bottom line, Smerick says, while there are facial similarities between Mahmoud Ahmadinejad and the 1979 hostage taker in these pictures, this is one case he would be nonconclusive. Meanwhile, Irani officials deny Ahmadinejad took part in the 1979 takeover and some hostages say he was not among their captors.
Brian Todd, CNN, Washington.
KAGAN: Still to come on CNN LIVE TODAY, suspects in the Aruba missing girl case make a rare appearance. The latest in the investigation and why one family believes it is being intentionally targeted. And are you headed out town for the holiday? We're going to tell you why there will be no celebrations at some airports, nor on the road.
And later, dancing and singing in 10 different cities around the world all at the same time. But will it make a difference to humankind and a difference to Africa. The latest on the Live 8 preparations coming up.
KAGAN: Let's check the fire situation in the west today. First to Utah where firefighters are gaining the upper hand in the Southwestern part of the state. Fires there have charred more than 10,000 acre but are now about 50 percent contained. Utah is one of a half dozen western states battling a wicked start to the summer. Twenty-two fires have scorched already nearly 1 million acres already.
Less go ahead and check in on weather across the country. Rob Marciano is here.
KAGAN: And wait until you see what happened to some pleasure boats sitting in a Vancouver harbor yesterday. Take a look at this. You heard the horn blaring. Ooh -- now the crunching. It's a disabled 457 foot ferryboat. It plowed through several boats before slamming into a marina. It was trying to dock in West Vancouver after it lost power. Unfortunately, for the 500 plus passengers onboard, they had to wait on board for hours until the ferry was tugged away from the smaller vessels and was docked. Amazingly, no one was hurt.
Aid to Africa. Some of the world's top musicians are gearing up to play Live 8. That's a massive, worldwide concert to help the world's poorest countries. We're going live in Philadelphia, site of the U.S. concert, just ahead.
Plus, Gerri Willis is here with her tips for preparing for retirement. It's closer than a lot of people might think.
GERRI WILLIS, CNN CORRESPONDENT: You bet.
Hey, Daryn, happy half birthday to those boomers turning 59 today. We have some retirement advice when CNN LIVE TODAY continues.
ANNOUNCER: This is CNN Breaking News.
KAGAN: And this breaking news comes to CNN right out of the U.S. Supreme Court. Sandra Day O'Connor, the first woman ever to serve on the high court, has turned in her letter of resignation, bringing her career on the high court to an end. Let's bring in our -- let's go to the White House first and our Suzanne Malveaux with more on this breaking news on Justice O'Connor.
SUZANNE MALVEAUX, CNN CORRESPONDENT: Well, Daryn, as a matter of fact, a close source inside of the Supreme Court told me this morning about 9:00 that Sandra Day O'Connor actually gave her letter of retirement to the fellow justices this morning about 9:15 or so. We have simply been waiting for the official word from the Supreme Court. We have just gotten that official word that Judge Sandra Day O'Connor is retiring.
Of course, a lot of speculation in Washington over this. Most people thinking that, perhaps, it would be the Chief Judge William Rehnquist who would be stepping down. That's still, of course, a possibility.
Now, the White House has been preparing for this moment for quite some time, since four years ago. It is a very small group of people who have been planning this. They have been fielding candidates, collecting resumes. The White House thinking here, of course, is the president wants to act as quickly as possible in submitting a name and getting a name there. As you know, there are multimillion dollar campaigns on both sides to try to figure out who is the best candidate to try to convince the Senate, of course, who will be the best candidate to replace her.
As you know, this is quite interesting because unlike Rehnquist, Sandra Day O'Connor has been the pivotal vote. He has been the swing vote for many a crucial important decisions regarding the Supreme Court. And who the White House chooses, who the president chooses, of course, is going to make a big difference when it comes to a lot of those decisions.
We are just being handed now, this is the letter from Sandra Day O'Connor to the president. I'll read it now. It says, 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. It has been a great privilege, indeed, to have served as a member of the court for 24 terms. I will leave it with enormous respect for the integrity of the court and its role under our constitutional structure. Sincerely, Sandra Day O'Connor.
That letter submitted to President Bush, announcing essentially that she is stepping down from the court. Again, this is a very big moment here, as you can imagine. A lot of people know that some of the key decisions on the court that she was that swing voter, that pivotal vote, that made the difference in a lot of crucial decisions. Whether it was affirmative action, whether it was Roe v. Wade, abortion rights, as well as many other cases, states rights, she was the one who made that critical decision. It is going to be very, very important who the president chooses and ultimately who the Senate decides it going to get that nomination.
Daryn, we expect that it is going to be a fierce battle.
KAGAN: And as you said, both sides have been ready to go for quite some time for any opening that might come up on the U.S. Supreme Court.
Suzanne Malveaux in Washington, D.C., thank you. We will be back to you.
I'd also like to welcome our viewers joining us from around the world on CNN International.
Once again, Sandra Day O'Connor, the first woman ever to serve on the U.S. Supreme Court, has said 24 terms on the high court is enough. She has lived a fascinating life. A woman who graduated third in her class at Stanford Law School and then, because of the time and the day, wasn't even able to get a job as an attorney in a law firm. She goes on to become the first woman to serve on the U.S. Supreme Court.
With more on Sandra Day O'Connor, on Justice O'Connor, on her legacy, and as Suzanne was all revved up, like much of Washington, ready to go, what and who comes next? Let's go to Joe Johns who's just outside the Supreme Court -- Joe.
JOE JOHNS, CNN CORRESPONDENT: Daryn, this is not that big a surprise, quite frankly. Partially because she was always the second person who was thought to be ready to retire from the court. Justice Rehnquist, of course, being the first. Haven't heard on him. Now, of course, the ball is in the court of the United States president and he will be the person who chooses the time to put forward a nomination, which is expected to be fiercely fought here on Capitol Hill. As Suzanne just pointed out, Justice O'Connor has always been that pivotal individual in some very tough cases.
So let's talk now about some of the people who have been named as possible successors to Sandra Day O'Connor on the United States Supreme Court. At the top of the list, at least for talks sake, has been Alberto Gonzales. He is, of course, the attorney general, and a lot of people have said he might be able to move quite seamlessly to the United States Supreme Court. The difficulty, of course, with him is that not all conservatives believe he is conservative enough to fit their taste. Believed to be more than a moderate.
Some of the others, of course, Michael Lutig, from the fifth circuit. Also Harvie Wilkinson as well on the fifth circuit. Samuel Alito and Emilio Garza out of Texas. Garza, of course, a Hispanic. Some have suggested the president might very much want to try to appoint a Hispanic to the United States Supreme Court.
Not that big a surprise. Again, Sandra Day O'Connor. Her husband has been ill. It has been long talked about that she might want to retire from the court and now, of course, she has.
KAGAN: All right. Joe Johns at the U.S. Supreme Court, thank you. Let's get more on the legacy of Sandra Day O'Connor. I know Washington is revved up to try to figure out who the successor is, but this was such a big and important career that this woman has had. I'd like to reflect on that for a little bit. And for that, let's bring in our senior legal analyst Jeffrey Toobin.
Jeff, Justice O'Connor took us way past just having the title "dot, dot, dot, first woman to serve on the U.S. Supreme Court."
JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: You know, Daryn, we in the news business are sometimes accused of overhyping 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.
You know, 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, the law school, was constitutional. It was permissible to take race into consideration as one among many factors, though racial quotas were illegal.
Another -- you know, 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 Casey decision in 1992.
So, you know, 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 has wielded.
TOOBIN: You know, 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 Thomas, you know, 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 seat to see what kind of question she asks, because, you know, 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 Rehnquist had resigned...
TOOBIN: ... notwithstanding his title. Absolutely.
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, with Justice Thomas and Justice Scalia. You know, any replacement that President Bush would select would almost certainly replicate the Chief Justice's vote.
Justice O'Connor, it's a different story. You know, she has been a moderate. Not a liberal, not a -- 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.
KAGAN: Well, and as we see in the past, presidents always -- don't do the best guessing game as to what somebody will be like once they're on the court. So that time will have to play out on that. But Jeff, I want to ask you about the women issue here. I thought it interesting when Joe Johns was putting up the list of possible successors. Not a single woman's name on that list. The fact that Ruth Bader Ginsburg is now also on the court, does that not matter anymore? She doesn't have to be replaced by a woman?
TOOBIN: I don't know. I think that's a -- that's going to be a political calculation that the White House has to make. With all due respect to our colleagues at CNN, I don't think that list was exhaustive...
TOOBIN: ... in terms of, you know, who the possible candidates. I would add the list of -- to that list, a woman, Edith Jones Clement (ph), who was a judge in the Fifth Circuit Court of Appeals. Very conservative, very strongly pro-death penalty judge, been on that court a long time. I am certain that she will get a longer look now that there is this modest surprise -- not a great surprise -- but the modest surprise of Justice O'Connor leaving before Chief Justice Rehnquist.
KAGAN: All right, Jeffrey Toobin, we will be back to you. Don't go far. Obviously, more news is going to break and develop and more thoughts coming an the morning goes on.
Let's bring in our John King. He is in New York City now. John, with your thoughts on your many years covering Washington and the White House, on this news about Sandra O'Connor?
JOHN KING, CNN WHITE HOUSE CORRESPONDENT: Well, Daryn, a quick funny anecdote first. Several years ago on vacation in Scottsdale, Arizona, Justice O'Connor approached me in a grocery store. I was shopping and she was shopping. She is known as someone who loves to cook gourmet meals. And she was talking about how much she loved her job, but also missed her home. So perhaps that's one of the reasons Justice O'Connor deciding to retire today.
I was about to make the point Jeff just made. Edith Brown Clement is on the White House list and is a favorite of many conservatives. She is someone who will be watched as the president now faces the political pressure, the first woman on the Supreme Court retiring.
The conservative groups, as Jeff just absolutely correctly noted, will be geared up even more now because there is a key right to the die case from Oregon the court will consider in the fall. There is an abortion case out of New Hampshire that the court will consider in the fall. Those who have looked at those 5-4 rulings and have been on either side of those fights, the winning or the losing side from their political and ideological perspective, will gear up, I think, even more intensely for this battle than they would have if the chief justice resigned.
Daryn, the organizations are talking about spending $20, $30, perhaps $50 million on advertising, and lobbying, other campaigns. This is an enormous challenge. Remember how tough the fight for Clarence Thomas was? Well, add in to that now all the ads we see on cable television and other television, all the grassroots political organizations. There will be a great deal of pressure on this president. And I know from our White House correspondents, in their reporting in recent days, this president's prepared to act quite quickly.
KAGAN: OK, John, don't go far. I'll be back to you in just a moment.
We are getting word in about 45 minutes from right now, President Bush will come out to the rose garden and make a statement about the future of the Supreme Court and the resignation letter that has been handed in by Sandra Day O'Connor.
Let's go back to the Supreme Court. Our Joe Johns standing outside that building this morning -- Joe.
JOHNS: Daryn, obviously, a very historic moment here at the United States Supreme Court. That letter from Justice O'Connor to the president of the United States, very simple. I'll read it to you once again. "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, indeed, to have served."
Back to you, Daryn.
KAGAN: All right, Joe, we're back to you in just a moment. Now to the White House. Let's get more information about President Bush's plans in about 45 minutes. Our Dana Bash is standing by with that -- Dana.
DANA BASH, CNN WHITE HOUSE CORRESPONDENT: Hi, Daryn.
Well, that's right. We -- as you just reported, the president will go into the Rose Garden at about 11:15. That is about 45 minutes from now. At this point, we do not know what he is going to say. However, I can tell you, Daryn, that White House officials, as this time has been approaching, have said that the president is prepared to move very quickly, when and if there is a vacancy and somebody that he can nominate to the Supreme Court.
This is the White House that has been preparing this -- preparing for this, I should say, Daryn -- for four plus years. From day one, the president has his legal team start looking at all of the various possibilities for a potential nominee. And in the last couple of weeks, we understand that senior officials have been actually interviewing potential candidates.
And I can just quickly tell you, Daryn, just a little bit of color as this whole thing unfolded over the past few minutes. This morning, when rumors were rampant that O'Connor would be stepping down -- certainly they heard that at the White House here -- my cell phone, some of my fellow reporters were sort of standing outside the Oval Office and were told and understood just by watching the activity, that there was a meeting in the Oval Office. The door that we normally can see through to see Oval Office was definitely closed. And then I saw the president's personal photographer run up the stairs full speed as if he wanted to certainly catch a moment in history, perhaps.
So that has been going on here as the White House certainly got this information as the president received this letter from Justice O'Connor, that he would be able to nominate his first Supreme Court nominee of his presidency.
KAGAN: It is definitely a moment in history, as are have been so many for this woman, Sandra Day O'Connor of the last 24 years, from the moment she was even nominated to become the first woman to serve on the U.S. Supreme Court. Dana, thank you.
Once again, just over a half hour away we are from that statement from President Bush, coming into the Rose Garden of the White House. And of course, you'll see that live here on CNN and CNN International.
Let's talk a little about the history that we're witnessing today, and the history that we've seen over the last quarter century. David Garrow is a Supreme Court historian and Pulitzer Prize-winning author. And he's joining me on the phone now from Columbus, Ohio. Good morning.
DAVID GARROW, SUPREME COURT HISTORIAN: Good morning.
KAGAN: Not a day that is a big surprise, and yet, it feels large, nonetheless?
GARROW: As Jeff Toobin correctly put it, this is much bigger news than if the chief justice had stepped down, because the question of who succeeds Justice O'Connor really presents an opportunity to change the court ideologically, that a Rehnquist retirement wouldn't have posed. Now, when Joe Johns read from Justice O'Connor's letter, it's very important to note that she does not leave the court. Her retirement does not become effective until a successor is confirmed.
KAGAN: And how unusual is that, David? For a justice to go that way?
GARROW: That is the standard language that justices use. So that the court remains at full strength right on through the summer. For example, if emergency death penalty motions come in. When Justice Harry Blackman stepped down in 1994, he announced his retirement in early April, but he didn't actually leave office as a justice until early August, when his successor Stephen Breyer was confirmed and sworn in.
KAGAN: Well, and as we're seeing, what's happening in the U.S. Senate, confirmation is no sure thing. We're seeing what we saw with the federal judge level. There's a lot that could happen here that could hold up a Supreme Court.
Stand by. Let's go -- here's Senate Majority Leader Frist talking about Sandra Day O'Connor on the floor of the U.S. Senate. Let's listen in.
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.
For nearly 23 years, Justice O'Connor lent America her brilliant mind and her fair and impartial judgment.
Sandra Day O'Connor, who turned 75 this year, was born in El Paso, Texas. The daughter of Harry and Ada Mae, she was raised on her family's cattle ranch in Southeastern Arizona.
Sandra Day O'Connor began her academic journey at Stanford University. Upon earning a bachelor's degree in economics and graduating magna cum laude, she stayed on at Stanford pursuing an education in law. And at Stanford she thrived.
She earned a coveted position on the law review's board of editors and completed law school in only two years. Not only did she graduate in record time, but she finished third in her class.
Coincidentally, she finished with a man who would later become her colleague on the highest court in the land: Chief Justice William H. Rehnquist.
It was during law school that Sandra Day O'Connor met her future husband, John J. O'Connor.
Seeking her first job as a young female attorney, Sandra Day O'Connor faced many challenges in a male-dominated law profession.
After having difficulty finding a job in the private sector, she began her legal career as deputy county attorney of San Mateo, California. When her husband was drafted into the JAG Corps in 1953, the young couple moved to Frankfurt, Germany, where she worked as a civilian attorney for the United States Army.
After two years in Europe, Sandra Day O'Connor returned to Maryvale, Arizona, where again she experienced difficulty finding employment in the legal world.
As a result, she decided to start her own legal practice.
After practicing law for two years, Sandra Day O'Connor took a break from her career to start a family. She and her husband raised three sons, Scott, Brian and Jay.
I must say as a father of three sons, this may be her greatest accomplishment, certainly one of the most challenging.
FRIST: In 1965, Sandra Day O'Connor transitioned from the private sector to the public, where she became Arizona's assistant attorney general. In this capacity, she served for four years before being appointed to fill an unexpired seat in the Arizona State Senate.
Her constituents agree it was a good match, as they elected her twice. In the Arizona Senate, she rose to the highest level, becoming majority leader and the first woman ever to hold such an office in the United States.
As majority leader of his body, I understand the challenges and rewards of being leader and admire Justice O'Connor for her tremendous achievement.
In 1975, Sandra Day O'Connor was elected judge of the Maricopa County Superior Court and served until 1979, when she was appointed to the appellate bench in Arizona. There she served until the late President Ronald Reagan appointed her associate justice to the Supreme Court.
On September 21, 1981, the Senate unanimously confirmed her nomination to the Supreme Court. And that day, Sandra Day O'Connor made history: She became the first female justice in the court's history.
This 51-year-old Arizona court of appeals judge shattered the 190-year-long tradition in the high court of addressing justices "Mr. Justice."
But as for her reaction to a nomination, Sandra Day O'Connor said, "I can only say that I will approach my work on the bench with care and effort and do the best job I possibly can do." Most would agree she has done just that. Since 1981, justice Sandra Day O'Connor has served with distinction on the United States Supreme Court. She has served as an example to all Americans, demonstrating that through persistence and hard work anything is possible.
In the face of obstacles, including being a woman in a male- dominated law profession, she never surrendered her determination, nor did she surrender the Southwestern pride and love of the outdoors when she moved to the city. Rather, she brought it with her.
Anyone who's entered the inner confines of Justice O'Connor's Supreme Court office is familiar with the sign that reads: "Cowgirl parking only. All others will be towed."
Fiercely proud her heritage, Justice O'Connor and her brother, H. Alan Day, authored a best-selling memoir entitled, "Lazy B: Growing Up on a Cattle Ranch in the American Southwest."
Having grown up in the south, in Nashville, Tennessee, I appreciate Justice O'Connor's pride in her roots. She's not forgotten -- not ever forgotten where she came from.
The values she learned through life on the range were values that left their brand mark. Indeed, hard work, self-reliance and survival are the core values that make Sandra Day O'Connor the successful woman she is today.
As she writes in her memoir, working along cowboys on the Lazy B, she learned a system of values that was, and I quote, "simple and unsophisticated and the product of necessity."
Throughout her tenure on the court, she's not wavered from her well-grounded views.
I've had the privilege of meeting Justice O'Connor on numerous occasions throughout my time in the United States Senate. Each time that I've had the opportunity to be with her and to interact with her, I've found her to be thoughtful and kind, compassionate and extraordinarily intelligent.
FRIST: To echo the words of Ronald Reagan on the day he appointed Sandra Day O'Connor, she is truly a person for all seasons, possessing those unique qualities of temperament, fairness, intellectual capacity and devotion to the public good which have characterized the 101 brethren who have preceded her.
Today, more than 23 years later, President Reagan's words still ring true. When she took the oath of office as the 102nd associate justice, she pledged to uphold the Constitution. And since this time, Justice O'Connor has proven her steadfast commitment to uphold that Constitution.
During her confirmation hearing, she emphasized that the court's role was to interpret the law and not to make public policy. Her record demonstrates that she has lived up to that commitment, respecting the rule of law and judiciously interpreting the Constitution.
Often cited as the swing vote on many important cases, Sandra Day O'Connor has taken exception to that characterization, stating that, "If my vote has not 100 percent predictable, that's because I try to look at each one as it comes to us."
Sandra Day O'Connor is an independent thinker and has made great contributions in many substantive areas in the law. On the bench, she has not allowed the pressures of popular opinion to sway her decisions. Rather, she has consistently decided each case before her based on the underlying facts.
Despite being the first woman to serve on the high court, Justice O'Connor has not used this position to influence decisions of the majority. She once said, "The power I exert on the court depends on the power of my arguments, not my gender."
Her wisdom, intellect, humility have earned her deep respect from her colleagues, even those with opposing judicial philosophies, for they see that she embodies all the ideals in a judge: fair, impartial and open-minded.
Through her experiences, Justice O'Connor has brought a unique perspective and understanding of checks and balances to the court. A true public servant, Sandra Day O'Connor has served our nation for almost four decades as an Arizona state senator, a majority leader, state court judge, assistant state attorney general and in the capacity for which she will long be remembered as an associate justice on the Supreme Court.
FRIST: Throughout her life, Justice O'Connor has displayed her civic loyalties through her participation in various community organizations, including the boards of the Smithsonian Institution, the Heard Museum and the Salvation Army.
She was recognized for her service in 1995 when she was inducted into the National Women's Hall of Fame.
Sandra Day O'Connor has accomplished more in a lifetime than many would imagine possible. Yet, throughout that breathtaking journey to the top, she never lost sight of those humble roots and never lost sight of the people she served.
As she told a reporter in a 1996 interview, she never expected or aspired to be a justice and still considers herself just a cowgirl from Arizona.
While the cowgirl from Arizona may never have dreamed of riding to the highest court in the land, America is fortunate that she did. A brilliant jurist, a bright legal mind and a compassionate woman, she has earned her place in history for more reasons than one.
I'm sure that Justice O'Connor is looking forward to spending time with her husband, John, and their family during their retirement. And Karen and I, our family wish her and her family much joy and happiness in this new chapter of their life. On behalf of the entire United States Senate and a grateful nation, I commend Justice Sandra Day O'Connor for a lifetime of distinguished service to our great nation.
As the Senate moves forward to confirm a new nominee for the high court, it's important that we remember her legacy.
America needs judges who are fair, independent, unbiased and committed to equal justice under the law.
I'm confident the president will select a qualified replacement justice who embodies these qualities, and I look forward to working with my colleagues to ensure a fair confirmation process in the Senate that will ensure the Supreme Court is at full strength to start its next term in October.
KAGAN: We've been listening in a little bit to the Senate Majority Leader Bill Frist. His thoughts looking on the life of Sandra Day O'Connor, once again welcoming our viewers joining us on CNN from around the world to look at this historical moment. Sandra Day O'Connor, the first woman ever to serve on the U.S. Supreme Court, today telling President Bush she is going to retire. She's going to stay on the court until he successor and replacement has been confirmed, which will be a whole other story, indeed. And, in fact, in a half hour we expect President Bush to come out to the rose garden of the White House and make a statement about Justice O'Connor and the plans for the next nominee.
Now with some reflections on the woman and her legacy, here now, CNN's Bruce Morton.
MARCI HAMILTON, FMR. O'CONNOR CLERK: Because her early life was very hard. Her parents died. Her grandmother died. She was shuttled back and forth between the ranch and relatives in Texas to go to school, and she just became very self-sufficient.
BRUCE MORTON, CNN CORRESPONDENT: She went to Stanford law school in the same class as William Rehnquist. He was first in the class, she third. But no law firm would hire her, so she eventually started her own with her husband and later became a powerful state lawmaker, then judge in Arizona. Ronald Reagan nominated her to be the first woman on the Supreme Court in 1981.
RONALD REAGAN, FMR. PRES. OF THE UNITED STATES: She is truly a person for all seasons, posing those unique qualities of temperament, fairness, intellectual capacity and devotion to the public good.
MORTON: Did the fact that she was a woman matter? She talked to Judy Woodruff in 2003.
JUSTICE SANDRA DAY O'CONNOR, SUPREME COURT JUSTICE: We all bring with us to the court or to any task we undertake, our own lifetime of experiences and background. My experiences might be different than some of my colleagues, but at the end of the day, we will all be able to agree on some sensible solution to the problem.
UNIDENTIFIED MALE: I don't think there's any decision that you can say she reached this result because she's a woman.
MORTON: One thing she did do because she was woman, opened a class of yoga and calisthenics for women, not just court employees, in the Supreme Court building.
O'CONNOR: I went to the YWCA and asked to find me an instructor who would be willing to come up here and start a class. So we did.
MORTON: She was tough, survived a 1988 bout with breast cancer with a dose of dry western wit.
O'CONNOR: The worst was public my visibility, frankly. There was constant media coverage. How does she look? When is she going to step down and give the president another vacancy on the court? You know, she looks pale to me. I don't give her six months.
MORTON: She had a reputation for being the swing vote, the deciding vote in lots of cases.
O'CONNOR: I think that's something the media has devised as a means of writing about the court, and I don't think that has a lot of validity.
MORTON: Some criticized her as a fence-sitter, waiting to see which way the wind would blow.
HAMILTON: Those would be the people who have never met her. Anybody who met her knows she makes up her own mind, and she's not at all concerned where anybody else is on the spectrum.
And now for a brief moment of silence.
MORTON: Legacy? She voted against a moment of silence in schools as encouraging religion, but for a city-sponsored nativity scene which she thought did not endorse religion. She held that states could place no undo burden on the right to an abortion. And as the first woman on the court, she made a statement.
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.
MORTON: She saw to that, she did indeed.
Bruce Morton, CNN, Washington.
MORTON: And of course, we're going to have many more thoughts on Sandra Day O'Connor as the morning goes on. We're about 25 minutes from President Bush making a statement at the White House.
For more on that, let's go to our Dana Bash -- Dana.
BASH: Hi, Daryn.
Well, as we were talking about before, certainly this White House has been very prepared, or been preparing to make an announcement, but we are told from two senior administration officials not to look for that announcement in the Rose Garden this morning when the president comes to talk to reporters, to talk to the nation. He will simply talk about the great service that Justice O'Connor has provided for this country, and really pay tribute to her. But we are told from the White House not to expect any nomination today from the president.
KAGAN: All right, we'll be listening in for that. Once again, the statement coming about 25 minutes, Dana? 11:15 a.m. Eastern?
BASH: 11:15 a.m. Eastern and, of course, just a recap. Obviously, I should tell you that, of course, we have been reading -- we've heard from the actual letter, the letter that Justice O'Connor wrote to President Bush. And that happened this morning. It was delivered to the White House this morning and President Bush was immediately huddled with his staff in the Oval Office, getting the news as they got the news.
And as I mentioned, we certainly saw a lot of activity as you can imagine. This is a White House that has been waiting for this for some time. But as C. Boyden Gray, who was the White House counselor to President Bush's father told me recently, there's nothing that focuses the mind and nothing that changes things, as well prepared as you think you might be, than to have an actual vacancy. So we'll see what happens there.
KAGAN: Now they actually have to do it. Dana Bash at the White House, thank you. We WILL be back to you and of course back to the White House in the next 20 or so minutes as President Bush speaks. Dana was referring to this resignation letter from Sandra Day O'Connor. Short and sweet, three sentences, basically saying it's been a great 24 years. And she leaves the court with enormous respect for the integrity of the court and its role under our constitutional structure.
Let's get some more insight on the woman and the justice and bring in Marci Hamilton. She is a former clerk for Justice O'Connor. She's joining us on the phone now from Hot Springs, Virginia. Marci, thanks for being with us. I understand you clerked for Justice O'Connor from 1989 to '90?
MARCI HAMILTON, FMR. CLERK FOR O'CONNOR: Yes. I had the privilege of doing so.
KAGAN: And what were the issues before the court at that time?
HAMILTON: Well, it was an era in which the court had just decided the Webster decision in which Justice O'Connor had refused to hold that Roe v. Wade should be overturned. And so there was quite a bit of heat and light in the courthouse when I got to the building in the summer of '89, but it turned out to be a very collegial term. And really the biggest decision of the term for us was Employment Division vs. Smith, which was major free exercise decision involving the use of peyote, actually.
KAGAN: Oh, and then how did that one turn out?
HAMILTON: Well, that turned out to be one of the most divisive first amendment decisions in our history. It resulted in major legislation in Congress, that was then held unconstitutional. And we've been back and forth. In the end, many years later, it looks like they did exactly the right thing with that decision, but it's taken a long time for the country to come to terms with it.
KAGAN: Marci, let me just ask you this one question. Your perceptions of Sandra Day O'Connor before you went to work for the woman and what you learned about her while working with her?
HAMILTON: Well, before I worked for her, I already had a lot of respect for her, because I was born in Texas, (INAUDIBLE) Southwestern, and that's just the kind women I like. I met her personally for the interview, and to tell you the truth, she was ill that day with impending appendicitis. Later, I was worried that I caused it. But she just is one of those people that is open. She is certain of her views and she has tremendous integrity. We're very fortunate she was the first female justice.
KAGAN: Marci Hamilton, former clerk for Sandra Day O'Connor. Thank you for sharing your thoughts on the phone from Hot Springs, Virginia, on this day.
Once again, a big day for the United States. The first woman ever to serve on the U.S. Supreme Court, Sandra Day O'Connor, turning in her letter of resignation to President Bush.
Let's bring in our John King, who's in New York City, and our senior legal analyst Jeffrey Toobin, also in New York today.
John, I want to go back to you. Dana Bush getting us that news just a few minutes ago saying the White House says there will be no announcement of a nominee today, perhaps out of respect for Justice O'Connor. But you know they've got to be ready to go?
KING: They are ready to go, Daryn. The question is, will the president change his mind at the last minute? Does he already have the pick or is he looking at a list of two or three and wants to circle the final pick once he knows who the resignation is? Will his choice be different now that it is Sandra Day O'Connor and not the Chief Justice William Rehnquist, who is stepping down?" Will there be pressure to name a woman?
There will be pressure from conservative groups, who, as Jeff noted earlier in our coverage so rightly, that this could shift the ideological balance of the court, now that it is Sandra O'Connor. So the White House will wait. And you are right, that is out of tribute to Justice O'Connor. It won't wait long, in part because the president wants to move quickly to get this confirmation, to get the nomination in the pipeline, the confirmation, and in part because the longer you wait, the more political pressure you face.
And Daryn, I'll add this last point. Obviously, Justice O'Connor has resigned today. The chief justice is in ill-health. He is a very proud and a very stubborn man. He has obviously decided not to retire, at least yet. But don't think for a minute that this president could not face a second resignation from the court, either before the next term or shortly thereafter, shortly after the next term begins.
KAGAN: I'm going to -- we'll get more from Jeff on that in just a moment, but a follow-up question for you, John, on the timeframe here and what lies ahead the second half of '05 in Washington and the schedule on Capitol Hill and trying to get a nominee through?
KING: Well, certainly the Senate is about to go home for the July 4th recess. The president will make his pick. The majority leader and even the Democrats will say they will consider this pick as soon as possible. The question then becomes, of course, how protracted of a process do we have? Does the president choose someone who Democrats, liberals, might not like but who understand is qualified for the court or will there be an all-out battle?
The history of this president is that he's not afraid to pick a fight. There are many urging him to take a more conciliatory route. But especially, again, because it is a swing vote on the court, Justice O'Connor stepping down, there will be enormous pressure on this president. If he needs any pressure.
This is a president who tends to stick to conservative tact, his conservative philosophy. Look for the -- we want to talk about Social Security, you want to talk about tax reform. When the Congress comes back from its summer recess, we will be talking about the Supreme Court, pretty much, period.
KAGAN: OK, and you'll be doing that. John, you stand by. Jeff, bringing you back in here, this idea of picking a nominee, getting them confirmed and putting them on the court, wanting it to be a certain political ideology, this is not an exact science?
TOOBIN: It's not an exact science. Although I sometimes think the unpredictability of Supreme Court nominees is somewhat overstated. It is true, there is a history of nominees coming back to surprise the presidents who appointed him. Probably the best known example, President Eisenhower, picked Warren -- picked Earl Warren and William Brennan, who both turned out to be two of the most liberal justices in history. You know, President Eisenhower was asked if he made any mistakes when he was president. He said, yes, two of them, and they're both on the Supreme Court. So those are famous unpredictable sort of unpredictable results.
But if you look at most Supreme Court justices, they actually turn out to be as they were advertised, especially in recent years. You know, Stephen Breyer and Ruth Bader Ginsburg, President Clinton's two nominees, have been, as predicted, moderate to liberal justices. Clarence Thomas was predicted to be a conservative, he has been a conservative. David Souter, the other appointee of the first President Bush, has been a surprise. He has turned out to be much more liberal and moderate than many people suspected. And he sticks very much in the conservative craw these days. I mean, just -- the conservative movement in this country remains very bitter about the fact that President Bush, the first President Bush, essentially wasted the Souter appointment.
And David Souter, his name is sort of fighting words to the conservatives, who want a president -- this President Bush, to pick a truly reliable conservative. Someone like Michael Luttig, who's on the Fourth Circuit. So I think the Souter example you're going to hear a lot about. But I think the unpredictably is somewhat overstated.
KAGAN: Picking up on one more point that John King was making about when Sandra Day O'Connor turns in her resignation, when we might or might not hear from Chief Justice Rehnquist. There is, Jeff, no etiquette necessarily here about when and how a justice resigns? They can kind of do it how and when they want to?
TOOBIN: That is so true. You know, some do it at the end of the term, as Justice O'Connor did, the week that the Supreme Court ended. You know, Justice Blackmun left in March, which was not particularly a time that anyone expected it. There is no protocol, there are no rules. I do think it is worth focusing on the fact, briefly, that Justice O'Connor did not announce her retirement. She remains a justice on the court for -- until her successor is confirmed.
So I think one argument Democrats are going to have, if they decide to fight this nominee, is, look, there's no crisis here. We can pick -- the Supreme Court is its full strength. There's no problem with 4-4 decisions, you know, paralyzing the judicial system. So the Democrats, I think, will focus on the fact that she did not retire yet and remains on active status.
And also, I mean, as someone who's seen her a lot recently, you know -- I can say Justice O'Connor is in fine shape. She's very alert, very healthy. And I think it's just -- so she's perfectly capable of serving for several more months. Whether she will have to is not known to me, that's for sure.
KAGAN: It's not. But we have plenty of people who will be covering it, along with you and John king. Stand by, gentlemen. Because we're going to continue our coverage now.
I want to welcome our viewers who are joining us as we get close to the top of the hour. A big day in U.S. history. Once again, we are getting word that Justice Sandra Day O'Connor, the first woman ever to serve on the U.S. Supreme Court, has handed in what will be her letter of resignation to President Bush.
As Jeff Toobin was pointing out, in this letter, which is only three sentences long, she says she will -- this resignation will become effective upon the nomination and confirmation of her successor. And as we've seen the nomination and confirmation situation working in Washington, that might take some time.
With more on this breaking news, let's go to our Joe Johns, who's outside the Supreme Court in Washington, D.C. -- Joe.
JOHNS: Daryn, a real dearth of extra judicial statements, if you will, coming out of the Supreme Court about the retirement of Sandra Day O'Connor. There has been just a tiny bit more.
Apparently, a Supreme Court staffer reading just a very short statement from Justice Sandra Day O'Connor today explaining her reasons for retiring saying, in part, "I am 75 years old. I need now to spend more time with my husband." And that's about it.
Of course, her husband, John O'Connor, suffering from the early stages of Alzheimer's, a factor in that decision. There had been talk that she would like to go back to Arizona, which is her home, and spend some time there.
Picking up briefly on what you said about Jeffrey Toobin there, liberals and Democrats are chomping at the bit and ready to go on this.
Back to you, Daryn.
KAGAN: All right. Joe Johns, thank you very much.
And once again, we expect in about 14 minutes to hear from President Bush himself. He'll be coming out to the Rose Garden of the White House to make a statement. We are learning from our Dana Bash he will not be announcing somebody who will be a nominee to replace Justice O'Connor at this time.
We have on the phone with us right now Senator John McCain, also of Arizona.
Senator, good morning.
SEN. JOHN MCCAIN (R), ARIZONA: Good morning, Daryn.
KAGAN: Your comments about your fellow Arizonan, a woman who has made much history, deciding today to step down from the U.S. Supreme Court?
MCCAIN: Well, as you know, she did make history. We're very proud of her not only as a citizen of the state of Arizona who grew up in a pioneering family there, but also because of her tremendous contributions she made as a member of the United States Supreme Court.
I'm sure you know she was the only graduate of her law school class at Stanford who was a female. And she blazed a trail in many respects. And our thoughts and prayers go out to her and her husband, John, as they grapple with this terrible disease that has afflicted so many wonderful Americans.
KAGAN: How much in touch are you with Justice O'Connor? Do you expect she is going to come back to the Phoenix area or Arizona in her retirement?
MCCAIN: I'm very confident she and John will return to Arizona. They have land there. They have -- they -- she loves it.
Every -- every time that the Supreme Court was out of session she would spend a great deal of time in Arizona. She had her early political career there, as you know. She was a state senator, as well as other things.
So I believe that they will be returning to Arizona. It's a very healthy climate, too, as you know.
KAGAN: Yes. Well, as anybody who has been lucky enough, as we have, to live in Arizona, it gets in your blood. That it does.
MCCAIN: That's right. It certainly does.
KAGAN: Let's talk about what is ahead, though, in your workplace. And that is what is some people think might be a bruising nomination and confirmation process.
MCCAIN: I don't know how bruising it will be. I will be looking at it, obviously, from the perspective of the gang of 14, as we are not so affectionately called. And as you know, we have committed that we would not -- the Democrats, the seven Democrats have committed they would not filibuster except under "extraordinary circumstances."
I'm confident that President Bush will appoint a Supreme Court justice who shares his philosophy, which is a conservative philosophy. But I don't think it would meet the bar of -- I don't believe it will meet the bar of a "extraordinary circumstance."
As you know, we unblocked the bottleneck that had been there for several years and have confirmed six judges. And I believe that we will be able to move forward with that with vigorous debate, vigorous discussion, but without filibuster.
KAGAN: Well, and let's talk a little bit about that, Senator, because there are conservative members of your party that have a problem, as you said, with this idea of the gang of 14 putting too much power in the hands of too many senators to decide a decision like this about who would be the next Supreme Court justice.
MCCAIN: Well, each of us are elected by the citizens of our state, and we are responsible to the citizens of our state. If any of my colleagues are not happy with any individual or group's behavior, they have the right to criticize. But our responsibilities are to the people who elect us to office.
Having said that, I believe that we need to move from extreme positions of confrontation and rhetoric and accusations that are totally unnecessary in the political process to one of where we can work together. I think you have seen a little bit better atmosphere around here once we pulled back from precipice of the "nuclear option," as it was appropriately called. KAGAN: So do you think actually then what we've seen the Senate go through in these recent weeks, recent months, with the confirmation of federal judges, that that actually was a good exercise for the Senate to go through because it got you to the place where it might not be necessary in confirming a Supreme Court justice?
MCCAIN: I think so. And I also believe that there is better communications. And I think that clearly every individual senator will exercise his or her judgment in addressing this issue.
I don't expect it to be a day at the beach. But I am guardedly confident that we will avoid a filibuster situation. And I think there's reason our past behavior, since we defused the nuclear option, that would indicate that's very likely.
KAGAN: Do you think it should be a woman who takes Sandra Day O'Connor's place?
MCCAIN: You know, that's hard to make a judgment. I think that that's the president's.
And one of the reasons why I will strongly support probably the president's nominee, because, one, I think it will be a reasonable conservative. And second, elections have consequences.
Americans were very aware that there would likely be vacancies on the United States Supreme Court when they went to vote last November. And elections have consequences. And I think that presidents then should exercise the -- the burden of proof should lie not with the president, but on the opponents.
KAGAN: There are also consequences to future elections that certain people might be participating in. We don't necessarily have to say who or what elections those might be. Do you think that will play into the confirmation process, Senator?
MCCAIN: No, I don't. I think this is such an important issue that most -- literally every -- 99 of my colleagues will do what they think is best for the future of the country. I have to believe that.
KAGAN: And finally, a question from a southwestern perspective. There have been so many fascinating political figures that have come out of Arizona.
MCCAIN: Something in the water, I think.
KAGAN: Yes, I think so. Or the sand of the desert, perhaps, or the cactus. How would you put Justice O'Connor in that history, in that historical perspective?
MCCAIN: I think Justice O'Connor ranks in the top rank. She made history throughout her life as far as blazing the trail for women in the legal profession, in education, in the legal profession and on the United States Supreme Court.
I know that my fellow citizens are extremely, extremely proud to have her. And, by the way, Chief Justice Rehnquist coming from Arizona, as well.
But she has earned a place in history. And I know that you have had the pleasure of meeting her. She is also a lovely person.
And again, our prayers go out to her husband, John, as he struggles with this terrible disease.
KAGAN: Senator John McCain on the phone. Senator, thank you for your thoughts on Justice O'Connor.
Once again, the news today, Justice Sandra Day O'Connor saying that upon the confirmation of her successor, she will leave the U.S. Supreme Court, leaving as the first woman ever to serve on the high court.
President Bush expected in the Rose Garden in just seven or eight minutes. Our Dana Bash standing by at the White House with more on that -- Dana.
BASH: Hi, Daryn.
Well, as we were reporting, the president is not expected to name anybody in this press conference in just a few minutes. Essentially, what the president wants to do is to pay tribute and spend this day allowing the White House, allowing the nation, essentially, to pay tribute to O'Connor, and as she put it, her 24 terms serving as a justice on the United States Supreme Court.
Now, as we have been talking about, President Bush is going to be able to nominate somebody for the first time in his presidency. And interesting to note, this is the first time, the longest there has been gone without a vacancy since 1823.
So certainly there is a lot of pressure on President Bush, because this is certainly something the conservatives have been waiting for, for quite a long time. And his aides have been preparing for this.
Just to give you a little bit of illustration of that, this past Friday some of his top associates, Karl Rove, his counsel, Harriet Myers, they had a very small group of people who have been preparing to back up and support whatever nominee President Bush puts forward in a massive campaign to go out.
They have clerks lined up, former clerks, former associates of anybody who is a potential nominee that the president could put forward. And the president has had associates. The White House has had associates talking to senators, perhaps like John McCain, Daryn, that you were talking to, some of the seven critical Republicans to see if some of the names that they've been talking about here at the White House would be OK with some of the moderate or perhaps swing votes among Republicans in the Senate.
But today, as I mentioned, is a day that the president wants to simply pay tribute to Justice O'Connor and will not nominate anybody. But that's certainly not stopping the speculation. KAGAN: All right. Our Dana Bash at the White House. We'll be back to you in about five minutes, or to the White House, as President Bush begins to speak.
In the few minutes we have before the president, let's get in some of our other top people. John King standing by in New York City today -- John.
KING: Well, Daryn, you just heard Dana Bash explain how the White House is prepared and has been building its political operation for this nomination. So has the other side, what we expect to be the other side of this debate. And already, you see liberal groups, People for the American Way, saying Sandra Day O'Connor should be replaced by somebody like her. A moderate voice, they called her.
Other pro-choice groups, Planned Parenthood of America, saying she should be replaced by someone who shares her views. She, of course, has been a swing vote on the abortion issue.
The Democratic leader of the Senate, Harry Reid, who will have a huge role in the confirmation process, just issuing a statement paying tribute to Justice O'Connor and saying that, "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 American values of freedom, equality and fairness."
So you see the polarization beginning to be drawn even before the president speaks, even before we have any idea who his nominee to replace Justice O'Connor will be. If you think Washington has been polarized over issues like Social Security, over political issues, even over those lower federal court appointments the president has raised in recent months, be prepared for Washington in a very fierce fight -- Daryn.
KAGAN: Yes. It was interesting to hear Senator McCain say that -- at least what he was just saying on the phone, that he thought that it was almost a good exercise that they had been through what they have on the federal judges, that perhaps they worked out some of that. But it would sound like perhaps you would expect something different -- John.
KING: Well, there are many contrarians. There are many contrarians who say if the president comes up with a pick from the federal bench that has been voted several times, previously confirmed by members of the Senate, the Democrats will be in a bit of a box, if you will, on record having supported this person, that perhaps they can say I disagree with you, but you are well qualified.
But given all the buildup for this, the interest groups are certainly ready to spend millions and tens of millions of dollars on this. So when we know the president's pick, we'll have a much better idea of the fight ahead. But they are prepared for it.
There are some contrarians. And Senator McCain is a hopeful among them, that perhaps this will not be as polarizing and as bitter as some have predicted.
KAGAN: It will be fascinating to watch. John King in New York City. Thank you.
Once again, we're about three minutes away, we expect, from President Bush coming into the Rose Garden, the White House, to talk about the resignation letter he received from Justice Sandra day O'Connor.
In the couple minutes we have, I would like to bring in my colleagues Candy Crowley and Bill Schneider, joining us from Washington, D.C., both of whom have covered and watched Sandra Day O'Connor probably since her nomination -- Bill.
WILLIAM SCHNEIDER, CNN SR. POLITICAL ANALYST: Yes, that's right. She was the first woman to be nominated. She is a swing vote, and that is what is crucial, as John said. This will change the balance on the court if the president nominates even a fairly -- a mainstream conservative.
Remember, we had bitter confirmation battles over Judge Bork, whom Ronald Reagan nominated and did not make it in 1987. And Clarence Thomas in 1991. Not just because their views were controversial, but also because they replaced moderate justices on the court.
Bork replaced Lewis Powell, Thomas replaced Thurgood Marshall, who was a liberal voice on the court. In other words, they changed the balance on the court.
When President Clinton nominated Ruth Bader Ginsburg and Stephen Breyer, they replaced moderate to fairly liberal justices, and there was no bitter battle over their confirmation. So here what we see is the invitation to a very strong, protracted fight if the president nominates someone who is controversial.
KAGAN: Candy, while we watch the picture from the Rose Garden and wait for President Bush to come out, I want to ask you about the woman issue. Do you remember what a big deal it was?
CANDY CROWLEY, CNN POLITICAL CORRESPONDENT: I remember what a huge issue it was.
CROWLEY: I was actually there when President Reagan nominated her. And it was -- I mean, there had been a lot of talk, and he, of course, campaigned saying, the first thing I'm going to do if there's a Supreme Court opening is nominate a woman.
So it wasn't a surprise. But it certainly was a very big moment. And it does make me wonder whether or not this does change the mix.
A, that it is not Chief Justice Rehnquist resigning at this point. B, that it is Sandra Day O'Connor, who they had their -- we had known that her husband was sick, that she, in fact, taken a teaching job out in Arizona. And that there were certain sign there that she might leave as well.
So it does occur to me that the female factor may weigh in this. And, also, I think what everyone has been talking about today has been the idea that maybe they could get someone that would in fact move through quickly.
As you see now, the president coming out. And going to talk a little bit about what we have just learned.
KAGAN: Let's go ahead and listen.
GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES: A short time ago, I had a warm conversation with Justice Sandra Day O'Connor, who has decided to retire from the Supreme Court of the United States. America's proud of Justice O'Connor's distinguished service, and I'm proud to know her.
Today she has the gratitude of her fellow citizens, and she and John and their family have our respect and good wishes.
Sandra Day O'Connor joined the nation's highest court in 1981 as the first woman ever appointed to that position. Throughout her tenure she has been a discerning and conscientious judge and a public servant of complete integrity. 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. I have directed my staff in cooperation with the Department of Justice to compile information and recommend for my review potential nominees who meet a high standard of legal ability, judgment and integrity, and who will faithfully interpret the Constitution and laws of our country.
As well, I will continue to consult, as will my adviser, with members of the United States Senate. The nation deserves and I will select a Supreme Court justice that Americans can be proud of.
The nation also deserves a dignified process of confirmation in the United States Senate, characterized by fair treatment, a fair hearing and a fair vote. I will choose a nominee in a timely manner so that the hearing and the vote can be completed before the new Supreme Court term begins.
Today, however, is a day to honor the contributions of a fine citizen and a great patriot.
Many years ago, Sandra Day O'Connor chose the path of public service. And she served with distinction as a legislator and a judge in Arizona before joining the Supreme Court.
When President Ronald Reagan appointed Justice O'Connor 24 years ago, Americans had high expectations of her. And she has surpassed those expectations in the performance of her duties. This great lady, born in El Paso, Texas, rose above the obstacles of an earlier time and became one of the most admired Americans of our time. She leaves an outstanding record of service to the United States. And our nation is deeply grateful.
KAGAN: A day of short statements. Sandra Day O'Connor's letter to President Bush was only three sentences long. And President Bush's statement today brief as well.
This is a day for Sandra Day O'Connor, to dedicate to her and her service to the country, as President Bush was marking, that this was the first woman to serve on the U.S. Supreme Court. She has handed in her letter of resignation. That will become official once the nomination and confirmation of her successor has taken place.
You heard President Bush allude to that. He said he's not going to name a name today, making this a day for Sandra Day O'Connor. Yet, what is ahead?
For that, let's talk with Candy Crowley, Jeffrey Toobin and our Bill Schneider.
Candy, I'm going to go back to you since we were with you before we were listening to President Bush. A lot of little hints in there of what President Bush is looking for as he goes forward, talking about he will be talking with the U.S. Senate, but he wants a fair and dignified process, definitely making an allusion to what's been taking place lately with the confirmation of federal judges.
CROWLEY: Sure, absolutely. And obviously what the White House really wants is a very smooth confirmation, which makes a lot of people believe that they will be looking within the appellate court system, as was alluded to earlier.
I think one of the things we were talking a little bit, Daryn, about legacy, prior to the president's statement, where Ronald Reagan had said when he campaigned, "I want to appoint the first woman Supreme Court nominee." This is also a president in the second term of his presidency when a lot is about legacy. And he has said that he is interested in finding a Latino to put on the Supreme Court.
That has always been something -- not that he has made a statement like Ronald Reagan, but that is something that they have been eyeing clearly. So it seems to me that there are a number of factors at play with the Sandra Day O'Connor resignation here, or soon to be resignation, which has the president looking at factors that he wouldn't be looking at were it a Chief Justice Rehnquist nomination -- or resignation.
KAGAN: Bill, let's go ahead and bring you in here. Another thing the president said just a few minutes ago, that he has directed his staff to come up with a list. You know that list has been put together for a long time. This is not a -- this is not a process that is starting, uh-oh, we have something to do right now. SCHNEIDER: Well, look, he's had four years as president. And every president prepares for Supreme Court nominations.
One term we're likely to hear a lot in the next few months as this battle, likely to be a battle, proceeds, and that's the term "litmus tests." That's an obscure term, it's a chemical term. It means, essentially, do you want to ask the nominee a question to which you get a simple answer, yes or no?
The question is, is the nominee that the president comes up with, whoever it is, is this someone who is committed to upholding or overturning the Row v. Wade decision that goes all the way back to 1973 that gave constitutional protection to abortion rights? That decision has been very closely upheld.
In fact, one of Sandra Day O'Connor's important legacies is she was one of the co-authors of the decision in 1992, the Pennsylvania decision that upheld Roe v. Wade while it also held that the courts could restrict and limit and regulate abortion rights. It said that right is protected by the Constitution.
One question is, will the nominee be willing to say whether he or she would vote to uphold or overturn Roe v. Wade? Is that a fair question? Should there be a litmus test? A lot of conservatives say they want to know that before they will go along with President Bush's nominee.
KAGAN: We'll be watching it.
Jeffrey Toobin, let's bring you in here and talk about not only the legacy of Sandra Day O'Connor, but as we go forward, whoever does step into that seat, steps into some really big shoes. And I'm not talking about her regular shoe size.
TOOBIN: Absolutely. You know, when -- I had the opportunity to walk around the Supreme Court occasionally with Justice O'Connor, and you can't see it from the outside of the Supreme Court, but inside the Supreme Court there are four big beautiful courtyards. And in those courtyards there are lampposts. And the lampposts, at the bottom of them, have turtles, like sculptured turtles that support -- that support the lampposts.
And she says, "Look at the turtles. That's what we're like here. We move slowly. We take baby steps. We don't move quickly here at the Supreme Court."
That's how she interpreted the job. That's not how all of the justices interpret the job. And I think that really is her legacy.
She is not someone who wanted to depart a lot from precedent. She was very critical of Roe v. Wade, especially early in her tenure as a justice of the Supreme Court. But in that 1992 decision that Bill Schneider just mentioned, the Casey decision out of Pennsylvania, in what was shocking to many of us who follow the court, she and Justice Souter and Justice Kennedy decided to uphold the core of Roe v. Wade. And I think that issue, abortion rights, towers over everything else in terms of its political importance as we look to the future and whatever nominee the president may come up with.
KAGAN: All right. Panelists, we'll be back to you in just a moment.
Interesting person to talk to on the phone right now. Robert Bork on the phone, somebody who got almost to the Supreme Court. The judge nominated in 1987, a nomination that did not work out in the way that Judge Bork, I think, you would have liked.
Your comments today on Sandra Day O'Connor and her legacy on the court, please.
JUDGE ROBERT BORK, FMR. SUPREME COURT NOMINEE: Well, she's a very nice person, but she is -- as a justice, she has been -- they call her the swing vote. That's true. But that means that she didn't have any reaffirmed judicial philosophy.
However, on the crucial cultural question, she has lined up with the liberal side on abortion, on affirmative action, homosexual normalization and so forth.
KAGAN: Excuse me. Judge Bork, do you think it's fair to say she didn't have an judicial philosophy? Perhaps that she didn't have the same judicial philosophy that you share. But she probably -- she possibly had a more moderate philosophy and was expressing that as a swing vote on the high court.
BORK: I think that referring to a moderate philosophy and a conservative philosophy and so forth is quite wrong. The question is, those judges who depart from the actual Constitution, and those who try to stick to the actual Constitution.
She departed from it frequently. So that I wouldn't call that moderate. I would call it unfortunate. But she is -- she is -- as a result, she often determined the outcome by swinging from one side to the other.
KAGAN: OK. Instead of looking back on Judge O'Connor, let's look forward.
Whatever nominee, whoever is picked, whoever President Bush picks, they use your nomination process as an example of what they don't want to happen. A lot of people -- a lot of conservatives do wish that you had been confirmed and serving on the high court. Instead, it's been Justice Kennedy, who has been more moderate than a lot of people think.
BORK: I wish you would stop using the word "moderate." But go ahead.
KAGAN: Well, no. What would you use? How would you compare what Justice Kennedy has done instead of perhaps what you have done if you had been on the court. BORK: I would call it activist.
KAGAN: OK. So you would like to see -- actually, you bring up a good point. This is a time in U.S. history that's not just talking about who is going to be the next person on the U.S. Supreme Court, but when the whole topic of what the judicial system and how it operates in this country is up for debate.
BORK: That's right, because it's really a cultural fight now. The Supreme Court has made itself into a political and a cultural institution rather than a legal institution, so that both sides see it in political terms.
KAGAN: President Bush's comment that he made just a few minutes ago, he said in whomever he picks he does expect and hope it will be somebody who honors the Constitution. I think that's something that you would like to hear. He also says that he and his staff will be talking with senators, trying to pick somebody who hopefully they will be able to get through confirmed.
What do you think about that?
BORK: Well, it depends on which senator he talks to and what he's -- and why he's talking to them. If he thinks that he ought to -- he ought to tailor his nomination to the desires of people who want activist judges, then I think that's a very bad idea.
The Constitution says that he -- the president shall nominate and, with the advice and consent of the Senate, appoint. So that the advice and consent function of the Senate applies to the confirmation and appointment, not to the nomination.
KAGAN: I would like to ask you a personal question, Justice Bork. As what you went through back in 1987, what kind of advice would you give to whomever is nominated as it goes forward?
BORK: I don't think I can give any very good advice. After all, as I once put it, it's like asking Custer how to deal with the Indians. I didn't do it very well.
But I -- you know, they're going to -- they're going to insist upon answers to questions, "How will you vote on this? How will you vote on that?" Which I think is a very unfortunate practice, but that's what they are doing now in the Senate.
KAGAN: So would you tell a nominee not to answer those questions?
BORK: Either to find a way not to answer it on the grounds that they shouldn't be answered, or to give straightforward answers, which will mean that he will line up a lot of opposition.
KAGAN: And one final question. Is it worth it to go through the process in order to have that honor of serving on the high court?
BORK: Well, yes, it's worth it to go through the process. It's unfortunate that the process is as corrupt as it is. But it's worth it. And if you lose, it's a character-building experience.
KAGAN: Well, you have...
BORK: It's like a losing football team.
KAGAN: You had the opportunity and the experience. Judge Bork, thank you for calling in today.
KAGAN: And thank you for your insight on experience that not a lot of people in the United States have had.
Judge Robert Bork nominated back in 1987, was not confirmed. Justice Anthony Kennedy got that space as a second nomination.
We will continue to follow the big news of the day. Sandra Day O'Connor handing in her letter of resignation to President Bush. Who will be next as the nominee? We'll continue to look at that after this break.
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