Sandra Day O’Connor, then and now
CNN’s Joan Biskupic recently profiled Justice Sandra Day O’Connor and the potentially shifting atmosphere of the Supreme Court:
She always insisted it was luck that led to her appointment as the first woman on the US Supreme Court. But Sandra Day O’Connor was ready for her luck. She demonstrated that 35 years ago this summer when Reagan administration lawyers flew to Arizona to interview her as one of several candidates for a court vacancy.
O’Connor appeared an unlikely contender. She was a judge on a mid-level state court and little known beyond Arizona. But earlier, as the first woman state senate majority leader in the country, she had proven herself a shrewd operator in the backrooms of legislative politics. And a serendipitous connection had landed her on the administration’s short list.
With the first-ever nomination by a major party of a woman for president, judicial pioneer O’Connor’s name has been in the air. Now retired for a decade, she lives quietly at age 86 back in her home state, no longer making public appearances or engaged in the civics education and other projects she took on after she left the bench. Yet her legacy endures. In the recently completed Supreme Court term, significant rulings on abortion rights and university affirmative action relied on precedents crafted by O’Connor.
The high court, still missing a successor to the late Justice Antonin Scalia, has entered a new era of uncertainty. But with Democratic nominee Hillary Clinton dominating in the polls, there is a chance a first woman president’s court appointments would protect those liberal-leaning precedents and extend the legacy of the first woman justice even longer.
Neither Ronald Reagan’s choice nor O’Connor’s influence might have been predicted at the outset. Her path 35 years ago demonstrates how a long-odds nominee gets skillfully positioned to enjoy the luck of presidential selection.
When Supreme Court Justice Potter Stewart sent word that he would be retiring in 1981, Attorney General William French Smith turned to a list of names he had been collecting, including one on a pink telephone message slip he kept on his desk. Many of the possible nominees were women because Reagan, a Republican, had vowed in the heat of his 1980 challenge to Democratic President Jimmy Carter that he would appoint the first woman justice if elected. For two centuries, only men had sat on America’s highest court.
According to Smith’s notes that I found in the Reagan presidential archive when writing a 2005 biography of O’Connor, Smith had scrawled only her last name on the telephone slip. His aides were initially uncertain just who O’Connor was.
The original source of the Smith note is not fully known (Smith lost track of it after the nomination and has since died), but Fred Fielding, White House counsel, told me then-Chief Justice Warren Burger had been touting her to top administration officials. Burger had met O’Connor in 1979 on a house boat vacation on Lake Powell in Utah with mutual friends. He was impressed and began involving her in extracurricular judicial projects on
the national scene.
O’Connor had graduated from Stanford law school in 1952, near the top of her class, but been rejected for positions at large law firms. Women were simply not considered up to the task: one firm offered her a job as a legal secretary. She turned to public service, navigating a county attorney’s office, the state legislature, then Arizona courts. Some posts came through political appointment; others required her to mount campaigns and win election.
Along the way, she became a Republican Party loyalist, befriending US Sen. Barry Goldwater and co-chairing President Richard Nixon’s 1972 re-election campaign in Arizona.
Reared on a desolate ranch with a demanding father, O’Connor was imbued with a rigorous work ethic and resilience. Smith later wrote that O’Connor, “both in her looks and in her personality, had that same direct friendliness one associates with the wide-open territory where she lived.” She also was a natural politician who could size up a room and valued the human touch.
After Smith’s team delved into her legislative and judicial record, the attorney general dispatched assistants Ken Starr and Jonathan Rose to Phoenix to interview her. Starr told me years later that he was surprised O’Connor, sitting on an intermediate state court, had drawn Smith’s interest.
“There was a certain oddity to her being in the mix at all,” he said. “Judge O’Connor was in Arizona, not on an impressive court, not in a key state. I was skeptical.”
But, he said, “she had clearly prepared for us.”
O’Connor had boned up on constitutional issues and was ready for their questions about her judicial philosophy. On a lunch break, O’Connor, who always understood the persuasive nature of a good meal, brought out a salmon mousse salad.
After hearing details of their daylong session, attorney general Smith arranged for O’Connor to fly to Washington to meet with him and key White House officials. Before the week was over, the 51-year-old O’Connor was in the Oval Office with Reagan. The former California governor responded immediately to a woman who could converse about horses and constitutional rulings.
On her courtesy calls with senators, she addressed their questions of legal substance and dropped in mentions to their individual backgrounds and legislative interests. She worked around the clock for her confirmation hearings. Leaving nothing to luck, she pored over piles of briefing books prepared by Department of Justice lawyers. One of those young attorneys helping prep her for questioning had just started on the job: John Roberts, who would eventually be appointed chief justice of the United States. O’Connor was approved by a Senate vote of 99-0 on September 21 and took the oath of office four days later.
Once on the court, she did not wait for her luck. As happened at the Arizona Capitol, she learned to count votes and broker consensus. Her moderate non-doctrinaire approach bridged her colleagues’ dueling ideologies. Over nearly 25 years on the bench, her legal reasoning set standards for abortion rights, religious disputes and death penalty appeals.
After she retired in January 2006, succeeded by the more conservative Samuel Alito, the court shifted to the right. Her opinions, including to uphold abortion rights and racial remedies, were scaled back. During a legal conference in 2009, O’Connor complained that some of her decisions were “being dismantled.”
When I asked how she felt about it, O’Connor, then 79, said, “What would you feel? I’d be a little bit disappointed. If you think you’ve been helpful, and then it’s dismantled, you think, ‘Oh dear.’ But life goes on.”
Her frustration may be short-lived.
The court since the February death of the conservative Scalia is shifting again. The majority’s June decision endorsing a University of Texas affirmative action plan bolstered an opinion written by O’Connor in a 2003 dispute from the University of Michigan. Similarly, the court’s invalidation of a tough Texas abortion regulation relied on and reinforced a milestone decision O’Connor wrote in 1992 with Justices Anthony Kennedy and David Souter.
Especially striking was how much Kennedy, who authored the opinion upholding the Texas race-conscious admissions policy, drew from O’Connor’s 2003 decision in the Michigan case. He had dissented back then, yet in June highlighted her emphasis on the way campus diversity prepares students for today’s increasingly diverse society.
For her part, O’Connor used to brush off questions about her influence.
“We try to persuade by the strength of the argument,” she told me. “Everyone has a very key vote.”
Hers has lasted.
See the article here.