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The Brethren’s First Sister: Sandra Day O’Connor,

26 minute read
Ed Magnuson

A Supreme Court nominee—and a triumph for common sense

Ronald Reagan lived up to a campaign pledge last week, and the nation cheered. At a hastily arranged television appearance in the White House press room, the President referred to his promise as a candidate that he would name a woman to the Supreme Court, explaining: “That is not to say I would appoint a woman merely to do so. That would not be fair to women, nor to future generations of all Americans whose lives are so deeply affected by decisions of the court. Rather, I pledged to appoint a woman who meets the very high standards I demand of all court appointees.” So saying, he introduced his nominee to succeed retiring Associate Justice Potter Stewart as “a person for all seasons,” with “unique qualities of temperament, fairness, intellectual capacity.” She was Sandra Day O’Connor, 51, the first woman to serve as majority leader of a U.S. state legislature and, since 1979, a judge in the Arizona State Court of Appeals.

O’Connor’s name had been floated about in rumors ever since Stewart, 66, announced his intention to retire last month, but her nomination, which must be approved by the Senate in September, was a stunning break with tradition. In its 191-year history, 101 judges have served on the nation’s highest court, and all have been men. By giving the brethren their first sister, Reagan provided not only a breakthrough on the bench but a powerful push forward in the shamefully long and needlessly tortuous march of women toward full equality in American society.

To be sure, Reagan’s announcement that he intended to elevate O’Connor to the highest U.S. Government post ever held by a woman had its roots in partisan politics. Mainly because he had been portrayed by Jimmy Carter as a man who might blunder the nation into war, Reagan had lacked strong support among women in last year’s campaign. Moreover, his Administration’s record of appointing women to office is very poor: only one highly visible Cabinet-level post (Ambassador to the United Nations Jeane Kirkpatrick); only 45 women among the 450 highest positions.

There were also ironies aplenty in Reagan’s choice of O’Connor. As a true-blue conservative, he had been widely expected to select a rigidly doctrinaire jurist in order to stamp his own political ideology on the court. Instead, he picked a meticulous legal thinker whose devotion to precedent and legal process holds clear priority over her personal politics, which are Republican conservative.

Whether Reagan was playing shrewd politics, or merely following his own best instincts, almost did not matter. After naming O’Connor, the President suddenly found himself awash in praise from a wide range of political liberals, moderates and old-guard conservatives. At the same time, he was under harsh assault from the moral-issue zealots in the New Right who helped him reach the Oval Office. Although they had little chance of blocking the nomination, they charged that O’Connor was a closet supporter of the ERA and favored abortion.

Other than on the far right, reaction to the nomination ranged from warm to ecstatic. Feminists generally were pleased. Eleanor Smeal, president of the National Organization for Women, termed the choice “a major victory for women’s rights.” Patricia Ireland, a Miami attorney and a regional director of NOW, said she was “thrilled and excited” by the selection, adding: “Nine older men do not have the same perspective on issues like sex discrimination, reproductive rights or the issues that affect women’s rights directly.” Declared former Texas Congresswoman Barbara Jordan, a black lawyer: “I congratulate the President. The Supreme Court was the last bastion of the male: a stale dark room that needed to be cracked open. I don’t know the lady, but if she’s a good lawyer and believes in the Constitution, she’ll be all right.”

Liberal politicians joined the praise. House Speaker Tip O’Neill, who has been feuding with Reagan over his budget cuts and tax policies, termed the choice “the best thing he’s done since he was inaugurated.” Said Democratic Senator Edward Kennedy, who sits on the Judiciary Committee that will hold hearings on O’Connor’s nomination: “Every American can take pride in the President’s commitment to select such a woman for this critical office.”

Many conservative Republican Senators added their endorsement. Utah’s Orrin Hatch called it “a fine choice.” Reagan’s close friend, Nevada Senator Paul Laxalt, was enthusiastic, and Senate Majority Leader Howard Baker said he was “delighted by the nomination.” But South Carolina’s Strom Thurmond, chairman of the Judiciary Committee, was a bit more restrained. “I intend to support her,” he said, “unless something comes up.”

No one championed O’Connor more forcefully than her longtime Arizona friend, Senator Barry. Goldwater, whose early urging had helped her gain White House support. Noting the opposition to O’Connor from the far-right groups, Goldwater declared: “I don’t like getting kicked around by people who call themselves conservatives on a nonconservative matter. It is a question of who is best for the court. If there is going to be a fight in the Senate, you are going to find ‘Old Goldy’ fighting like hell.” Goldwater attacked directly a claim by the Rev. Jerry Falwell, head of the fundamentalist Moral Majority, that all “good Christians” should be concerned about the appointment. Scoffed Old Goldy: “Every good Christian ought to kick Falwell right in the ass.”

But the protests from the New Right were blistering. “We feel we’ve been betrayed,” charged Paul Brown, head of the antiabortion Life Amendment Political Action Committee. Brown claimed that Reagan had violated a Republican Party platform plank, which declared that only people who believe in “traditional family values and the sanctity of the innocent human life” should be made judges. “We took the G.O.P. platform to be the Bible,” he said. Carolyn Gerster, former president of the National Right to Life Committee and a physician from Scottsdale, Ariz., who knows O’Connor well, argued that the judge “is unqualified because she’s proabortion. We’re going to fight this one on the beaches.” Also leading the charge from the right were Howard Phillips, head of the Conservative Caucus, and Richard Viguerie, publisher of Conservative Digest. Declared Viguerie: “We’ve been challenged. The White House has said we’re a paper tiger. They’ve left us no choice but to fight.”

Despite the outcry, the rightists had no effective leader in the Senate who could influence the outcome of O’Connor’s confirmation hearings and floor vote. North Carolina Republican Jesse Helms was urged to take up the cause, but remained aloof last week. Trying to stamp out the brushfire, Reagan met with Helms to assure him that O’Connor’s legislative record was not clearly pro-ERA and pro-choice on abortion, as her opponents had charged. Reagan declared that “I am completely satisfied” with O’Connor’s attitude. In a 45-minute meeting with the President at the White House on July 1, O’Connor had told Reagan that she found abortion “personally repugnant,” and that she considered abortion “an appropriate subject for state regulation.”

Much of the furor was based on O’Connor’s votes in the Arizona senate. Far more important than her stand on abortion—an issue on which virtually no current woman jurist could fully satisfy the New Right—was whether she was qualified to serve on the Supreme Court. On that point, legal scholars acquainted with her past and lawyers who had worked with her in Arizona were in wide agreement: while she had much to learn about federal judicial issues, she was a brilliant lawyer with a capacity to learn quickly. Indeed, her legislative background gives her a working knowledge of the lawmaking process that none of the current Justices can match.

“She’s entirely competent, a nominee of potentially great distinction,” said Harvard Law Professor Laurence Tribe. Yale Law Professor Paul Gewirtz termed O’Connor “smart, fair, self-confident and altogether at home with technical legal issues.” Michigan Law’s Yale Kamisar, a judicial liberal, said of Reagan: “Give the devil his due; it was a pretty good appointment.”

In Arizona, lawyers described her as a painstakingly careful attorney and a judge who ran her courtroom with taut discipline and a clear disdain for lawyers who had not done their homework. “She handled her work with a certain meticulousness, an eye for legal detail,” recalled Phoenix Lawyer John Frank. Added John McGowan, another Phoenix attorney: “She’s a very conscientious, very careful lawyer.” Some defense lawyers, however, found O’Connor’s strict demeanor on the bench so intimidating that they dubbed her “the bitch queen.”

Those who have read her 125 decisions on the Arizona appeals court, which deal with such routine legal issues as workmen’s compensation, divorce settlements and tort actions, see her in the mold of judges who exercise “judicial restraint.” “She tends to be a literalist with acute respect for statutes,” said Frank O’Connor’s colleagues consider her decisions crisp and well written. “Mercifully brief and cogent,” said McGowan. “Clear, lucid and orderly,” said Frank. But one Supreme Court clerk finds her writing “perfectly ordinary—no different from any other 2,000 judges around the country.”

How did Reagan happen to pluck O’Connor out of the relative obscurity of a state court? For one thing, he had plenty of time to order a thorough search for prospects. Reagan learned of Stewart’s intention to resign on April 21, as he recuperated from the assassination attempt. When Attorney General William French Smith and Presidential Counsellor Edwin Meese gave Reagan the news, he promptly reminded them of his promise to appoint a woman.

O’Connor’s name had initially surfaced early at Justice as a possible choice to head the department’s civil division. The old-boy network of Stanford had brought her to Smith’s attention. Among those who recommended O’Connor, as the search for a new Justice intensified: Stanford Law Dean Charles Myers, former Stanford Professor William Baxter, who now heads the Justice Department’s antitrust division, and one of Stanford Law’s most eminent alumni, Justice William Rehnquist. He is clearly the court’s most consistent and activist conservative, so his advice that O’Connor was the best woman for the court carried clout. When Goldwater weighed in, too, O’Connor’s cause flourished.

At a White House meeting on June 23, Smith handed the President a list of roughly 25 candidates; about half of them were women. Some White House aides, in the words of a female Reagan admirer, “have a big problem in coping with professional women,” and were neither enthusiastic nor optimistic about finding a qualified woman judge. The President, however, again conveyed his “clear preference” for a woman. By then, speculation about his possible choice of a woman was spreading. The nomination of a doctrinaire male conservative, which might have been his inclination, would have brought sharp criticism. Beyond that, passing over a qualified female candidate now would put even more pressure on Reagan to find one for the next vacancy—and he would get much less credit by doing it later rather than earlier.

Another factor seemed significant: one member of the Supreme Court quietly passed word to the Justice Department that some of his aging colleagues were watching the selection carefully. If it was a reasonable choice, someone they could respect, they might decide there was little to fear from Reagan’s attitude toward the court and follow Stewart into retirement. Otherwise they might hang on as long as they were physically able. Two of the Justices, William Brennan, 75, and Thurgood Marshall, 73, are liberals Reagan might like to replace.

Regardless of the motives, Reagan’s men moved expeditiously to seek out a woman who met the President’s main criteria. She had to be both a political conservative, meaning that she had a record of support for the kinds of issues Reagan favors, and a judicial conservative, meaning that she had a strong sense of the court’s institutional limitations and would not read her own views into the law. The President even cautioned his search team that he did not want any single-issue litmus test, such as a prospect’s views on abortion or ERA, to exclude her automatically from further consideration. That, of course, is precisely what critics of the O’Connor nomination wished the President had done.

By late June the list of women candidates had dwindled to four: O’Connor; Michigan’s Cornelia Kennedy, 57, a Carter-appointed judge on the Sixth U.S. Circuit Court of Appeals; Mary Coleman, 66, chief justice of the Michigan Supreme Court; and Amalya L. Kearse. 44, a black who sits on New York’s Second Circuit Court of Appeals. At this point none of the men was still in serious contention.

Smith sent his chief counselor. Kenneth Starr, and Jonathan Rose, an Assistant Attorney General, to Phoenix on June 27 to interview O’Connor and Arizonans who knew her well. Reporting back, Starr and Rose cited her experience as a legislator, a state government lawyer, and a trial and appellate judge, which made her aware of the practicalities of each branch of government. Smith liked her judicial inclination to defer to the legislative and executive branches. She was also seen as tough on law-and-order and reluctant to rule against police on technicalities. “She really made it easy,” recalled one participant in the search. “She was the right age, had the right philosophy, the right combination of experience, the right political affiliation, the right backing. She just stood out among the women.”

O’Connor flew to Washington on June 29 for a breakfast the next morning with Smith in a secret hotel hideaway. That same day she met with Reagan’s senior staff, including the troika of Meese, James Baker and Michael Deaver. On July 1 she was invited to the Oval Office by Reagan. The 10 a.m. meeting was unannounced and, like countless other private presidential meetings, went unnoticed by reporters. She moved quickly to break any tension in the talks by reminding the President that they had met a decade ago, when he was Governor of California and she was in the Arizona senate. They had talked about the kinds of limitations on spending being considered in both states, she recalled. Quipped Reagan with a smile: “Yours passed, but mine didn’t.” Then Reagan and O’Connor settled into two wingback armchairs and chatted for 45 minutes. “She puts you at ease,” observed one admiring participant in the meeting. “She’s a real charmer.”

Like Reagan, Sandra O’Connor has spent many of her happiest days on a Western ranch, riding horses and even roping steers. Her parents, Harry and Ada Mae Day, operated a 260-sq.-mi. cattle spread straddling the New Mexico-Arizona border. Called the Lazy B, it had been in the Day family since 1881 —three decades before Arizona became a state. Her grandfather had traveled from Vermont to found it. Sandra, first of the Days’ three children, was born in an El Paso hospital because the remote area in which they lived had no medical facilities; their ranch house had neither electricity nor running water. Greenlee County also had no schools that met her parents’ standards, so Sandra spent much of her youth with a grandmother in El Paso, attending the private Radford School and later a public high school there.

“I was always homesick,” O’Connor told TIME last week. But she loved her summers on the ranch, where she had plenty of time to read. A dog-eared Book of Knowledge encyclopedia, copies of the National Geographic Magazine and her father’s assorted volumes from the Book-of-the-Month Club fed her curiosity. By the age often, she could drive both a truck and a tractor. “I didn’t do all the things boys did, but I fixed windmills and repaired fences.” Recalls her girlhood friend and cousin, Flournoy Manzo: “We played with dolls, but we knew what to do with screwdrivers and nails too. Living on a ranch made us very self-sufficient.”

Sandra finished high school at the age of 16 and did something her father had always longed to do: attend Stanford. He had been forced to give up his college plans and take over the family ranch when Sandra’s grandfather died. “I only applied to Stanford and no place else,” said Sandra. She rushed through her undergraduate work and law studies in just five years, graduating magna cum laude and joining the honorary Society of the Coif, which accepts only the best law students. She won a post on the Stanford Law Review, where she met her future husband John, who was one class behind her. She ranked in the top ten in her class scholastically. So too did Rehnquist, who had graduated six months earlier.

Degree in hand, O’Connor collided head-on with the legal profession’s prejudice against women: “I interviewed with law firms in Los Angeles and San Francisco, but none had ever hired a woman before as a lawyer, and they were not prepared to do so.” Among the firms to which she applied was Los Angeles’ Gibson, Dunn & Crutcher. One of its partners was William French Smith. The firm offered to hire her—as a legal secretary.

O’Connor took a job as a deputy county attorney in San Mateo, Calif., while John, whom she had married in 1952, finished law school. When he joined the Army’s Judge Advocate General’s Corps, the two lived in Frankfurt, West Germany, for three years, where she worked as a civilian lawyer for the Quartermaster Corps. They returned to the U.S., moving to Phoenix in 1957, when the first of their three sons was born. All the children attended a Jesuit-run high school in Phoenix (Sandra O’Connor is an Episcopalian, her husband a former Roman Catholic). Scott, 23, graduated from Stanford last year; Brian, 21, attends Colorado College; and Jay, 19, is a sophomore at Stanford. After a brief fling at running her own law firm in a Phoenix suburb, where she handled everything from leases to drunken driving cases, she spent five years as a full-time housewife. She was a typical joiner: president of the Junior League, adviser to the Salvation Army, auxiliary volunteer at a school for blacks and Hispanics, member of both town and country private clubs. “Finally,” she recalled, “I decided I needed a paid job so that my life would be more orderly.”

That was in 1965. She spent four years as an assistant attorney general in Arizona. Appointed by the Maricopa County Board of Supervisors to fill a vacancy as a state senator in 1969, she ran successfully for the senate in 1970 and 1972. Her 17 admiring Republican colleagues (all but two were men) elected her majority leader in 1972.

O’Connor’s devotion to detail soon became legendary. She once offered an amendment to a bill merely to insert a missing, but important, comma. As majority leader, she learned to use both tact and toughness to cajole colleagues into achieving consensus on divisive issues. When the usual flurry of eleventh-hour legislation delayed adjournment of the Arizona legislature in 1974, one committee chairman was furious at what he considered O’Connor’s failure to finish up the senate’s business. Said he to O’Connor: “If you were a man, I’d punch you in the mouth.” Snapped the lady right back: “If you were a man, you could.”

While critics focus on her ERA and abortion votes, O’Connor notes that her legislative achievements ranged from tax relief to flood-control funding to restoring the death penalty. “She worked interminable hours and read everything there was,” says Democratic State Senator Alfredo Gutierrez. “It was impossible to win a debate with her. We’d go on the floor with a few facts and let rhetoric do the rest. Not Sandy. She would overwhelm you with her knowledge.”

Although highly successful in the senate, O’Connor grew restless and decided to return to law. She ran and won a spot on the Maricopa County Superior Court bench in 1974. Explained her senate colleague Anne Lindeman: “At the end of her term she was at a crossroads. She had to choose between politics and the law. She was more comfortable with the law.” Said O’Connor about the law: “It is marvelous because it is always changing.”

As a trial judge, O’Connor was stern but fair. At least twice, colleagues recall, she advised defendants to get new attorneys because their lawyers had been unprepared. After a Scottsdale mother of two infants pleaded guilty to passing four bad checks totaling $3,500, she begged for mercy from O’Connor, claiming the children would become wards of the state. The father had abandoned the family. O’Connor calmly sentenced the middle-class woman to five to ten years in prison, saying, “You should have known better.” But when she got back to her chambers she broke into tears.

Judge O’Connor did not hesitate to order the death penalty for Mark Koch, then 23, who had been found guilty of murder for agreeing to knife another man in return for a $3,300 fee. The contract killing stemmed from a dispute over drugs. (Koch has since appealed the verdict and been granted a new trial.)

When state Republican leaders urged her to run against Democratic Governor Bruce Babbitt in 1978, she declined. Instead, she was retained as a judge in Maricopa County and, after only eleven months, was nominated to the Arizona Court of Appeals by Babbitt, who denies trying to sidetrack a potentially dangerous opponent. Says Babbitt: “I had to find the finest talent available to create confidence in our new merit system. Her intellectual ability and her judgment are astonishing.”

On the appeals court, O’Connor faced no landmark cases. But she did manage to cut the court’s case load by persuading her former colleagues in the senate to modify laws involving workmen’s compensation and unemployment insurance. Generally, she upheld trial judges, dismissing appeals from defendants who claimed they had been denied a speedy trial, refused transcripts, and other technicalities. In an article for the current issue of the William and Mary Law Review, she urged federal judges to give greater weight to the factual findings of state courts, contending that when a state judge moves up to the federal bench, “he or she does not become immediately better equipped intellectually to do the job.”

But if O’Connor’s own intellectual gifts are widely praised, the self-assured woman, who is of medium height and wears such sensible clothes as suits with silk blouses and matching ascots, is neither dull company nor dour. “She never forgets she’s a lady—and she’ll never let you forget,” says Attorney McGowan. Yet Stanford Vice President Joel P. Smith recalls her as “the best dancer I’ve ever danced with” when he knew her as a member of the Stanford Board of Trustees. She does a nifty two-step and enjoys country music. A superb cook specializing in Mexican dishes, she, along with her husband, is a popular partygiver and -goer. While the prosperous Phoenix lawyer regales guests with Irish jokes told in a brogue, she jumps in to lift stories along, without ever stepping on the punch lines.

She golfs weekly (her handicap is 18), plays an average game of tennis and, typically, works intensely at both.

It is that striving for perfection that most impresses acquaintances. When she and John helped complete their lavish home in suburban Paradise Valley, where houses cost $500,000 or more, one friend was amazed to find them both soaking adobe bricks in coat after coat of milk. “It’s an old technique,” O’Connor explained. “But I don’t know why you use skim and not homogenized milk.” Her father, who is 83, jokes about her diligence. “She’s so damned conscientious,” he says, “she wouldn’t even give me a legal opinion. As a judge she can’t, so she refers me to her husband.” Still, her mother sees a humility in Sandra, despite her accomplishments, explaining, “She isn’t the type who would try to high-hat anyone.” A friend recalls an example. When O’Connor was president of Heard Indian Museum, which holds an annual and overcrowded handcraft sale, her son Scott wanted one item badly but had broken his leg in a skiing accident. Instead of using her clout to bypass a long line of buyers, his mother spent several hours sitting on a camp stool to await her turn.

How will O’Connor’s appointment, assuming she is confirmed, affect the decisions of the high court? The security of lifetime tenure can liberate Justices to see themselves in a new perspective, unencumbered by the pressures of climbing toward the top. They are there. Justices have often confounded the Presidents who appointed them with unpredictable decisions. After Oliver Wendell Holmes ruled against Teddy Roosevelt in a key antitrust case, the President, who had appointed Holmes, fumed: “I could carve out of a banana a judge with more backbone than that.” Said Dwight Eisenhower about his selection of Earl Warren: “The worst damn fool mistake I ever made.” Harry Blackmun stunned Richard Nixon by writing the court’s majority opinion in Roe vs. Wade (1973), the decision that legalized abortion.

Based on what little they know about O’Connor, legal scholars expect her to fit in neatly with a court that is sharply split in philosophy, tends to analyze each case on strictly legal merits, and has pioneered only in selected areas of the law. A Justice Department official says approvingly of O’Connor: “She is not leaping out to overrule trial court judges or state lawyers or to craft novel theories. Her opinions are sensible and scholarly.”

O’Connor shares with Rehnquist more than a Stanford background; both are Republicans from Arizona who have Barry Goldwater’s favor. Nonetheless, legal scholars doubt that O’Connor will become a clone of the court’s leading conservative. They do not expect a pair of “Arizona twins” to develop and to hang together any more consistently than have the now-splintered “Minnesota twins,” Burger and Blackmun. Broadly speaking, the court now has two liberals, Brennan and Marshall, in a standoff facing two conservatives, Rehnquist and Burger. The decisions thus often depend on how the other so-called fluid five divide on a given case. And that rarely can be foreseen.

Blackmun, who has moved increasingly to the left, probably works harder than the other judges on his decisions, which often reflect his ad hoc, personal sense of right and wrong. The courtly Virginian, Lewis Powell, is regarded as the great balancer, in the middle on almost every case. John Paul Stevens, the most original thinker on the court, is an iconoclastic loner who likes to file separate opinions that challenge old assumptions even when his conclusions coincide with those of his brothers. Byron White, the best pure lawyer on the court, is unpredictably liberal and unpredictably conservative, but meticulously careful about facts and precedent.

O’Connor is generally expected to fit into that shifting middle, as her predecessor Stewart did; thus her appointment, at least initially, is likely to be less decisive a factor than if she had replaced one of the men on either the left or the right.

At the very least, some court observers hope that her consensus-building experience as a legislator, with its premium on dealing with personalities, as well as the fact that she is a woman, will dissolve some of the aloofness among the brethren. There is little personal rapport and togetherness on the current court —and the Justices tend to communicate with one another only in writing. The result is often a series of individual opinions based on conflicting rationales that confuse the impact of a majority decision. Powell has called the court “nine one-man law firms.” A touch of warmth and sociability could improve the court’s effectiveness, no matter what direction it takes.

Some experts see the current court as a transitional tribunal poised between the social activism of the distinctly liberal Warren court and whatever might lie ahead. Despite four appointments made by Richard Nixon and one by Gerald Ford, the Burger bench has retreated surprisingly little from the pioneering decisions on school integration, procedural rights for criminal defendants, and the “one man, one vote” principle of legislative apportionment. Moreover, the Burger court has broken some new ground. It was unanimous in restricting Nixon’s Watergate-era claims of Executive privilege. It has upheld affirmative action to correct past racial inequities in a moderate way. It has advanced women’s rights against discrimination in employment to a notable degree.

Former Deputy Solicitor General Frank Easterbrook, professor of law at the University of Chicago, cites some less familiar areas where the Justices put their stamp. “They have completely overhauled antitrust law, by unanimous votes in many cases,” he says.

“They have turned securities law upside down. They have greatly clarified the law of private rights of action—who can sue whom. They have done wonders at rationalizing the law on double jeopardy.”

Easterbrook, however, is less happy with court rulings on Fourth Amendment questions dealing with search and seizure:

“They’re all over the lot. They haven’t the foggiest notion of what they’re doing.”

In presenting Sandra O’Connor to the press, Reagan described his right to nominate Supreme Court Justices as the presidency’s “most awesome appointment” power. True enough, and chances are that he will have the opportunity to exercise that power again. Whether or not Reagan is able to shape “his” court is as problematical as it was for most of his predecessors. What is important is that he had the imagination and good sense to break down a useless discriminatory barrier by naming a woman to the nation’s Supreme Court—at last. America waits to see what place in legal history will be carved out by this daunting daughter of Arizona pioneers. —By EdMagnuson. Reported by Joseph J. Kane/Phoenix and Evan Thomas/Washington

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