First Lady of the Court

Bio Offers Timely Look at O’Connor

Posted October 31, 2005 at 2:39pm

On paper, Harriet Miers and Sandra Day O’Connor exhibit striking similarities. Both hail from the Southwest, experienced discrimination early on in their legal careers, held elective office and were dubbed trailblazers by their respective presidential benefactors.

But while last week Miers exited stage left, becoming the first woman ever nominated to the Supreme Court to withdraw her nomination (before her Senate hearing even began), O’Connor, whose tenure on the court has now been extended yet a second time, went on to dramatically shape the tenor and consensus of the court after her 1981 confirmation.

Or so argues veteran Supreme Court reporter Joan Biskupic in her recently released biography, “Sandra Day O’Connor: How the First Woman on the Supreme Court Became Its Most Influential Justice,” which traces O’Connor’s rise from Arizona ranch girl to Stanford law student to can-do wife and working mother to politician and, ultimately, to inaugural associate justice in heels.

The book focuses on O’Connor’s involvement in the behind-the-scenes maneuvering of the nation’s highest court and her attendant shift to the center on many of the lightning rod cultural issues of the day.

Anthony “Kennedy is also a key swing vote, but [in many cases] it’s her legal rationale that’s the law of land,” says Biskupic, explaining why O’Connor deserves the “most influential” designation.

Biskupic’s tome also provides a valuable window into O’Connor’s operating style.

In addition to possessing some judicial experience and the distinction of being the first female state Senate Majority Leader in the United States, says Biskupic, O’Connor arrived on the national scene with one major advantage over Miers: an agenda.

“She was an advocate for herself,” Biskupic says in a phone interview last week from an airport in California. “She moved through things at her own initiative rather than hooking herself to someone else’s wagon.”

For a while O’Connor, too, faced skepticism from key Congressional conservatives as to her own conservative bona fides, she “turned all the courtesy calls to her advantage,” says Biskupic, even convincing the formidable right-wing Southern Sen. Jesse Helms (R-N.C.) to back her, despite her ambivalent record on abortion, and winning confirmation by a 99-0 vote. (Only the absence of Montana Democratic Sen. Max Baucus from the roll call that day kept her from receiving unanimous support.)

Biskupic’s book, which initially was set for publication in early 2006, was accelerated for release after O’Connor’s surprise retirement announcement in July, and suffers slightly from needless repetitions (for instance, that O’Connor was the inaugural justice to experience child birth hardly deserves more than one mention) — a flaw which a more careful editing could have avoided.

Still, despite the vicissitudes the Supreme Court has experienced since the book went to print earlier this fall — first the nomination of Miers to replace O’Connor, then her withdrawal and Bush’s subsequent nomination of 3rd Circuit Appeals Court Judge Samuel Alito — O’Connor is currently in the same place she was when Biskupic’s book concludes with the funeral of Chief Justice William Rehnquist and John Roberts’ nomination as chief justice of the United States.

“She returns to the court to do work that’s hers, and believe it or not that’s where she is now,” says Biskupic, who serves as USA Today’s legal affairs correspondent.

Throughout her career, O’Connor has proved adept at combining trailblazing with traditionalism and vice versa — studying for the Arizona bar while pregnant with her first child; turning her brief stint (about five years) as a full-time housewife into a platform to immerse herself in Republican Party work, handle cases from home for the Federal Bankruptcy Court and climb the ranks of the Phoenix Junior League; and, when Ken Starr, then a young Justice Department attorney, was dispatched to interview her prior to her Supreme Court nomination (and while she was recovering from a hysterectomy), serving him and another aide homemade salmon mousse salad in between questions on constitutional law.

O’Connor had no problem projecting “some of the ’50s gracious woman,” notes Biskupic, quickly adding that that didn’t stop the future justice from carrying on with her many professional projects, from working to promote the Supreme Court nomination of her former Stanford Law School classmate, Rehnquist, to taking part in Anglo-American legal exchanges with her future colleague, Chief Justice Warren Burger.

In one of life’s great ironies, Attorney General William French Smith, the person to inform her she was being considered for a “federal position” in June 1981, was an alumnus of Gibson, Dunn and Crutcher (as was Starr), the same law firm that offered O’Connor a secretarial position in 1952 though she had graduated near the top of her law school class. She reportedly quipped at the time: “It must be a secretarial position, is it not?”

It definitely was not.

Rather, President Ronald Reagan needed to make good on a campaign promise to appoint a woman to the court and was considering O’Connor to replace retiring Justice Potter Stewart. In O’Connor, then an Arizona appeals court judge, Reagan believed he had found a kindred spirit, it seems, though some evangelical and anti-abortion rights leaders were far from convinced, and some liberal publications decried her lack of experience.

Despite conservative worries, however, O’Connor’s initial terms were hardly revolutionary. Time magazine even dubbed her the staunchly conservative Rehnquist’s “Arizona twin.”

It was a moniker that wouldn’t hold for long, however.

On few issues, perhaps, is this more clear than abortion. When conservative justices were in the minority, O’Connor’s dissents on abortion cases in 1983 and 1986 came down in favor of a more skeptical approach to Roe v. Wade, which established the constitutional right to an abortion. But by 1989’s Webster v. Reproductive Health Services, while voting to uphold the restrictions at issue in the case, she pointedly declined to join with Rehnquist and reject the overall Roe v. Wade framework.

“In ’83 and ’86 she voted in dissent favoring state restrictions because at those points it didn’t matter, but in ’89 two things have happened. Roe has been around longer and there have been more changes on the court. [Antonin] Scalia came on and Rehnquist is chief justice … and the court is under more pressure from George H.W. Bush and the Right to Life movement to try to overturn Roe,” Biskupic says. “That pressure actually made her moderate more.” And that ruling, though it upheld, among other things, a variety of limitations on the use of public funds for abortions, serves as the “first signal that she might not want to reverse Roe,” Biskupic says.

Ultimately, aside from O’Connor’s status as the first female to join the “brethren,” Biskupic believes that O’Connor’s future judicial legacy will rest on a handful of key questions: Namely, will “the undue burden” test governing the constitutionality of state regulations on abortion established in 1992’s Planned Parenthood of Southeastern Pennsylvania v. Casey remain the law of the land? And will O’Connor’s middle-way opinion in the University of Michigan affirmative action cases, broadly upholding the need for affirmative action while striking specific quotas, such as the automatic point advantage received by minorities at the undergraduate level, prevail?

“Abortion rights, affirmative action, the division between church and state, they could start walking away from this,” Biskupic says. But she added: “One way or another, they will have to reconcile in the future with what Sandra Day O’Connor did in the past.”

Joan Biskupic will discuss and sign “Sandra Day O’Connor: How the First Woman on the Supreme Court Became Its Most Influential Justice” at 7:30 p.m. Wednesday at Barnes & Noble-Georgetown, 3040 M St. NW.