The XX Factor: Slate women blog about politics, etc...

Whither O'Connor?

I miss Sandra Day O’Connor.

I always forget how much I miss her until I see her talk, as I did yesterday, at a conference at the Law Library of Congress on the need for competent counsel. The conference was co-sponsored by the Constitution Project. The justice was in a wheelchair as a result of a hip injury—“a temporary deficiency” is all she would say.

O’Connor gets more and more O’Connorish each time I see her. And there is something so honest about her approach to her years at the court—as a great big work-in-progress with no certain answers and no definite solutions—after all the bombast and nastiness of last term. “It’s hard when the Supreme Court gets into a new area and tries to articulate a new principle,” she said, describing Strickland, the 1984 opinion she authored that set the standards to determine whether a lawyer had provided competent representation. Describing “so many questions today” that have caused the courts to re-examine the Strickland test, she said, again, that the issue is “very hard.”

She even went so far as to say she wished for a magic wand that would permit a few jurisdictions in the United States to experiment with the British system, in which both prosecution and defense lawyers are paid for from the same public purse. “One day a lawyer is a prosecutor for the state, and the next day he does defense work," she explained. The benefit? A new level of courtesy and understanding for having handled both sides and some much-needed parity in the quality of representation. “I’d sure like to see us take a look at that,” she says. “I don’t know. It’s a thought.”

 A magic wand? The need for courtesy? “It’s hard.” And that dismissive “it’s a thought.” The inevitable sense you get is that she was kind of winging it at the court, throwing solutions against that constitutional wall and hoping to solve some problems. I know it drove her critics (and me) crazy sometimes. But with the court sounding more and more like it’s comprised of the nine smartest-kids-on-the-debate-squad each year, it’s refreshing to hear someone confess that they were just trying to be fair. A particularly female approach to judging? I don’t know. It’s a thought.