U.S. losing a 'persuadable mind' on court

By LEONARD PITTS JR.

So now we say goodbye to Sandra Day O'Connor.

In the process, we say goodbye to the one justice on the Supreme Court who did not belong body and soul to either the liberal or conservative wings, who could not be considered in the pocket of either political extreme. In other words, she was willing to listen to the facts before making up her mind as opposed to the other way around. Imagine that.

As a result, her votes hacked off conservatives, vexed liberals and -- not coincidentally, -- gave encouragement to those of us who find those labels ... constraining.

In a 2004 profile, Washington Post reporter Charles Lane said all this in an elegant phrase that has been echoing in my head ever since. O'Connor, he wrote, is possessed of a ``persuadable mind.''

MINDS ARE MADE UP

I suspect the phrase made an impact upon me simply because one does not encounter persuadable minds that often these days -- not in courtrooms, not in Congress, not in the White House, not at the water cooler down the hall. Minds these days are made up like a drill sergeant's bed. They are impervious to inconvenient or contradictory information.

It's not that I have always agreed with Justice O'Connor's votes. Yes, I think she had it right when she sided with the majority this year in ruling that it's unconstitutional to put a framed copy of the Ten Commandments on a courthouse wall. Yet I think she could hardly have been more wrong than when she joined the majority in rejecting a 1987 challenge to the death penalty on grounds of racial discrimination.

A BODY OF VOTES

But again, the point isn't an individual vote. It is, rather, the sense one gets in her body of votes that there's a mind at work here. That her decisions were based not simply on ideology, but also on intellect.

O'Connor was named to the court by the conservative icon, Ronald Reagan. She herself is usually described as a moderate conservative, a term that has grown oxymoronic over the years. But even putting that aside, I question the word ''moderate,'' implying as it does a lack of passion or conviction.

I prefer to regard O'Connor as a conservative with an independent mind. And I'd argue that we could use a few more independent minds of whatever ideology.

NATION ABOVE PARTY

Maybe then, we could have less of the nasty shouting match that passes for political dialogue in this country. Maybe then there would be less emphasis on winning the argument and more on solving the problem. Maybe then, judgment would be less situational and people more willing to place nation above party.

And maybe then you would not get studies like the one done last year by Drew Westen, professor of psychology at Emory University. In asking people to respond to a fake scenario -- a soldier accused of brutality at Abu Ghraib -- he found that most, whether liberal or conservative, based their opinions not on the facts he presented them but on political ideology.

Something to consider as the noise machines of left and right gear up for Armageddon, otherwise known as the battle over O'Connor's replacement.

President Bush has asked interest groups to dial down their rhetoric and has promised a nominee of great intellect and integrity. Given the president's hard right politics and his stated admiration for ultraconservative jurists Antonin Scalia and Clarence Thomas, there is, let us say, room for skepticism.

BATTLES BOILING

So the battles of recent years -- red vs. blue vs. right vs. left vs. conservative vs. liberal -- come to a boil again. And as you brace for what's ahead, it's hard to escape a wistfulness for what's passing. Harder still to escape a sense that what we see in Sandra Day O'Connor's retirement is a microcosm of what we see in the nation at large.

A hello to rancor. And a farewell to the persuadable mind.