Sisters in Law

by Linda Hirshman

  There are more women, and they vote in higher numbers. Once in a while the candidates’ insecurity in face of the electoral process yields social change. One such moment was 1980. Disabled by his party’s conservative turn, Reagan could only offer female voters a symbol. Urged on by his somewhat liberal campaign advisor Stuart Spencer, Reagan announced that if elected he would fill the next Supreme Court vacancy with a woman. Almost immediately after he took office, Justice Potter Stewart decided it was time to step down.

  Many men have claim to the role of godfather to the future Justice O’Connor. After Reagan won, her houseboat pal Warren Burger invited White House counsel Fred Fielding for lunch to tout her candidacy. O’Connor’s biographer Ann McFeatters asserts that her relationship with William Rehnquist was crucial in getting her on the list. Others cite the long and warm partnership with Barry Goldwater. As luck would have it just as her candidacy heated up, O’Connor did the honors at Goldwater’s nephew’s wedding. She delivered a paean to family values, which Goldwater later used to defend her against attacks from right-to-life activists in Arizona. But in all of this historical inquiry almost no one focuses on the obvious Godfather—Reagan himself. Before he died, Attorney General William French Smith, who was undoubtedly at the center of any Supreme Court nomination process, told an aide that in 1980 Reagan had given him a short list with O’Connor’s name written on it in Reagan’s own hand. Knowing now that Reagan had noticed her as early as 1974 for her tax-ceiling efforts in Arizona makes this explanation a lot more convincing. The White House decided to send a scouting party to O’Connor’s Edenic home in Paradise Valley.

  She might have been the only woman at the time who could have pulled it off. Despite Republican feminism’s promising beginning as a ladylike request for simple justice, by 1980 the feminist movement was pretty distant from the Republican Party and vice versa. Richard Nixon had vetoed the only serious effort to provide public funds for child care, Republicans provided most of the votes to cut off public Medicaid funding for abortions, and the convention that nominated Ronald Reagan also withdrew party support for the ERA.

  The kinds of women who broke the entry barriers to law school and were beginning to be discussed as judicial candidates looked a lot more like Ruth Bader Ginsburg than Sandra Day O’Connor. Even the women on most lists Smith gathered for Reagan were Democrats! They understood that being a better cook and a better lawyer was still no weapon against a world of discrimination and stereotyping, that the coercive power of the law was going to have to be brought to bear on women’s inequality, that publicly funded day care would be a huge help and abortion rights were foundational.

  Appellate Judge Sandra Day O’Connor thought women mostly just had to get a foot in the door, so she was a perfect candidate for the role of symbolic Republican appointment. If people only got to know her, she believed, they would recognize her extraordinary talents and her keen social skills. In the small western community that sparsely populated Arizona still was, volunteers as disciplined and talented as Sandra Day O’Connor were rare. That people might persist in sacrificing women’s talents in order to keep their universe all male did not seem to occur to her.

  When the vetting committee arrived at O’Connor’s house, she did the now-familiar bra and wedding ring routine; after discussing the ins and outs of federal/state relations with Kenneth Starr and the White House team, she fixed them a lovely lunch of salmon salad and iced tea. She had everything, Starr reported back: the right age, philosophy, and political support. Besides, replete with salmon salad, he said, “I liked her.” The fact that she’d never heard a federal case—indeed, her docket was heavily filled with the most banal workman’s compensation disputes, Mary Schroeder recalls—was of no consequence. Once Reagan met her, he felt the same way. Horses, ranching—their get-acquainted meeting produced a perfect union of two independent spirits from the sun-drenched West. No need to bring anyone else, he told his team. Shortly after meeting her and before the opposition could mobilize, Ronald Reagan acted to nominate her. If she could get through the confirmation process, the next Supreme Court justice would break the glass … portico and ascend to the highest court in the land. When Judge Ruth Bader Ginsburg of the D.C. Circuit Court of Appeals got the news on her car radio in Washington, she was glad to hear it, even though she had never heard of the nominee.

  O’Connor returned home from her interview with Reagan just in time for her husband’s firm’s Fourth of July party. “We didn’t think she would get it,” John O’Connor’s protegée and Sandra’s admirer Ruth McGregor says. But when, contrary to their speculation, her nomination was announced, John’s firm was all in. The Justice Department sent briefing notebooks, and McGregor and a handful of John O’Connor’s partners spent a weekend at the firm’s library going over the material to prepare her for her hearings.

  While she went through the process, she dealt with the stress in her own way. One Sunday morning that summer, John Driggs got a call. “John,” Sandra asked, “what are you doing today?”

  “Just going to church, why?”

  “May I come?”

  “Of course you can.”

  “John O’Connor was a Catholic,” Driggs confirms, “but neither of them was much of a churchgoer.” So, although she was not a Mormon, off she went to the Mormon services that Sunday in the middle of a stress-filled summer. Of course the Driggses were thrilled, called everyone in the family, and made sure the sermon and lesson were suitable for the exalted occasion. By chance, the sex-segregated ladies’ service meeting that day included a recipe from the renowned local cook Judge Sandra Day O’Connor. She was uncharacteristically fidgety, rooting around in her purse for something during the service. But she said nothing about the reason. And no one asked.

  Despite her initial nervousness, when O’Connor actually appeared in the Senate, her trademark combination of stunningly industrious preparation and western charisma swept the field. She had studied not only the answers to questions about the law but also the senators’ personal histories and interests. Bystanders observed the social intelligence that had drawn fellow legislators and judges to her home in Paradise Valley for Mexican dinners for decades past. The biographer Joan Biskupic tells the story of her visit to Edward Kennedy, not the most obvious supporter of a Reagan appointee. “Senator Kennedy,” she reportedly began, “how is your mother?” And Kennedy responded with an intimate anecdote about his mother’s loss of her short-term memory.

  As a female nominee, she was the beneficiary of enormous good feeling about landmarks and breakthroughs. Representatives of the whole female-lawyer industrial complex weighed in. Eleanor Smeal, representing the National Organization for Women, testified in favor of the nomination: “We do not contend that the National Organization for Women agrees with all of the legal and political views of Judge O’Connor. As a matter of fact, we know that our own State organization, Arizona NOW, did oppose Judge O’Connor in some of her positions in her career as a Senator. However, we do not think that total agreement is necessary and we believe that there has been overall a commitment and an understanding of discrimination.” Public opinion polls on her were through the roof.

  As a female in public life, she had left a paper trail of support for women’s issues that alert conservatives insistently raised. There was the little issue of her support for a bill to repeal Arizona’s criminal abortion law in 1970 and her advocacy of the Equal Rights Amendment. But at the moment of her confirmation hearings, she managed to present a blank slate. Partly, this turned out to be an accurate reflection of her commitments, or lack of commitments. Partly it was simply false: either she or her advocates in the White House put out the story that there was no recorded 1970 vote on repealing Arizona’s criminal abortion law, when there clearly was. She adopted the now-uniform stance of the successful Supreme Court nominee, decrying the reality of abortion—O’Connor said she now thought the procedure “abhorrent” and would of course never use it herself—and steadfastly refusing to opi
ne about what she would do with Roe v. Wade. When Senator Biden reminded her of her historic duty to be an advocate for women, he too was met with a steadfast silence.

  Confirmation was 99–0. Ms magazine published a warm and optimistic article by the NOW Legal Defense and Education Fund’s Lynn Hecht Schafran, perhaps the most authoritative spokesperson for women and the judiciary. No woman, feminists hoped, could have come of age with O’Connor’s obvious ambitions and interests in the 1950s and not be shaped by the experience of discrimination. If nothing else, her presence should curtail the Court’s inclination to treat women as thought experiments when ruling. Sometimes the justices’ obliviousness to women’s value did not affect their decisions; for example, Justice Brennan advocated the most robust attack on sex discrimination while discriminating in hiring. But at other times, the justices’ ignorance was more of a threat. Assuming women were all privileged Richmond matrons like his wife, Powell came perilously close to voting against Stephen Wiesenfeld in the Social Security case.

  The symbolic impact of the appointment was manifest at once. Sandra Day O’Connor’s swearing-in was the hottest ticket in town. “The pressures for attendance at the ceremony,” the administration-oriented Chief Justice Burger groused, “are far beyond our capacity. This has given rise to a good many problems.” The justices could have no more than their usual allotment of guests. People, including the unprecedented number of press, would be standing in the hall. Even the outdoor reception would be “wall-to-wall guests.” Two hundred of those prospective guests came from the new nominee, who asked every member of the sixty-something Arizona court system she had just left to attend her ascension. And so, when the first female justice descended the marble steps of the Supreme Court building on the arm of her self-appointed escort, Warren Burger, the crowd was thick with friends and family. Reflecting her usual uncanny understanding of social dynamics, while everyone else took pictures of her, she asked a friend to take a picture of the reporters taking the pictures.

  She understood and accepted that she was going to be a role model. As she famously said, “It was okay to be first. But I did not want to be the last.” Even her elevated brethren wanted to introduce her to the girls in their lives. In the years since Lewis Powell wrote his special opinion in Weinberger v. Wiesenfeld to assure the public that he knew women would mostly tend to the family, he had, of all things, acquired a lawyer for a daughter-in-law. One of his first acts as O’Connor’s new friend on the Court was to introduce “Mims” Powell, Esquire, to the FWOTSC. He arranged for his daughter-in-law to attend the swearing-in. And O’Connor never missed a beat. “Although Justice O’Connor shook hands with hundreds of people,” he reported in one of his family letters after the occasion, “she remembered Mims and complimented her.”

  A LITTLE HELP FROM A NEW FRIEND

  Sandra Day O’Connor hates mess. “Messy” is one of her harshest terms for anything—laws, politics—that displeases her. While she was still going through the confirmation process, her Arizona pal Mary-Audrey Weicker Mellor (Senator Lowell Weicker’s sister) wrote to her friend Lewis Powell. “I just could not wait to write you concerning my good friend Sandra O’Connor … she is so unasssuming and has such simplicity and dignity.” So, she continues, “I’m writing to you to ask if you might watch over Sandra.” The Powells found the O’Connors a place to live, through a friend who had an apartment in the Watergate.

  At work, when she arrived, “There were files just piled on the floor all around the chambers,” recalls her first clerk, Ruth McGregor. (MacGregor, in her late thirties, had taken a leave from her partnership at John O’Connor’s law firm to give the FWOTSC a hand. After all, she thought, how many chances like this come along in a lawyer’s life?) And with all their hard work to get O’Connor ready to attend her first meeting of the Court, which had the daunting task of addressing the cases that had piled up over the summer, they did not know that the Court took up matters in a different system the justices had devised. The newcomer’s precious briefing book was all out of order, so, at the lunch break, she rushed back to her chambers to try to get it reorganized for the second half of the meeting so she wouldn’t have to keep trying to find her place in her notes. Powell gave her his experienced secretary, Linda Blandford.

  Although media speculated that O’Connor would be pair-bonded with her old friend William Rehnquist, Lewis and Jo Powell turned out to be her natural cohorts. The two couples went together to visit Justice Powell’s pet Virginia project, Colonial Williamsburg, a re-creation of the original colonial town, complete with staff in hoop skirts and knee breeches. “It is,” Justice O’Connor wrote in the thank-you, “the most exciting living museum in the world … to make that visit in the company of Virginia’s most distinguished and kindest family … Virginia is at the core of our history as a nation. We have loved seeing it partly through your eyes.”

  Although the Lazy B Ranch was thousands of miles from Colonial Virginia, the correspondence reveals that the two families were strikingly similar. When the O’Connors went to their first Supreme Court dinner party at the Powells’ house they found themselves in the company of the retired Justice Potter Stewart (who, as one wag had it, “gave up his seat for a woman”); Ronald Reagan’s chief of staff, the Republican heavy-hitter Jim Baker, and his wife; and old friends of the Powells, Fitzgerald and Margaret Bemiss. Typical of Powell’s social circles, Bemiss, an old-school Virginia conservative Democrat, businessman, and bank director, was a conservationist and had also been involved with worthy causes such as figuring out how to get Virginia schools to comply with the desegregation orders in Brown. “What a special treat,” O’Connor wrote in her customary thank-you note to her hosts. “A delicious meal, good company and good conversation—an unbeatable combination.” When O’Connor reciprocated, she prepared her colleague in advance for the pillars of the WASP establishment who would join them at table: “Jean and Les Douglas [executive vice president at the investment firm Folger Nolan Fleming Douglas], Phyllis and Bill Draper (he is head of ex-im Bank), Sheila and Ebersole Gaines (he is deputy director of OPIC) [the overseas private investment corporation, steering private U.S. investment to developing countries], Daphne and Bob Murray of Houston Texas [where he was chairman of the executive committee of Pinemont Bank], and Gail and Harry Holes (he is president of the Pebble Beach Corp and Aspen Corp.).”

  They shared an unspoken assumption about the virtue of the country club elites. When O’Connor was nominated there was a mild flap about John O’Connor’s membership in clubs—the Phoenix Country Club, Paradise Valley Country Club—that would not have women as members. Arizona social power was concentrated in those clubs; other members included Senator Goldwater, the Pulliam heir Dan Quayle, U.S. Senator Paul Fannin, and most of the named partners in Phoenix law firms. Later, in 1990, Lincoln Ragsdale, a prominent African American Phoenix citizen, raised a fuss about the exclusionary racial behavior of the PVCC. Covering the flap, the Arizona papers tried and failed to reach Justice O’Connor, explaining that “Mrs. O’Connor” was in Montana and could not be reached for comment. Unlike Powell, who finally quit the whites-only clubs he belonged to in Richmond, including the Commonwealth Club and the Country Club of Virginia, the O’Connors never quit theirs.

  In 1983, shortly after Ruth went on the bench, the Ginsburgs resigned from their golf club, Woodmont Country Club in Rockville, Maryland. Moving to D.C. in 1980, they had joined Woodmont, which had a policy of waiving the steep $25,000 initiation fee for high-ranking Washington pols, such as judges of the court of appeals. Marty played golf there, and, in 1983, the Ginsburgs brought in Ruth’s colleague Judge Harry Edwards, an avid golfer and an African American. Out of a clear blue sky, when confronted with an African American member, the club rescinded the policy of waiving the fee. And the Ginsburgs left.

  O’Connor still golfs at the PVCC. Just after the election of 2000, she scored a hole in one.

  O’CONNOR BREAKS THE TIE

  As the new lady justice
settled in, feminists held their breath. They did not have long to wait. Only weeks after O’Connor took her seat, she was confronted with the ultimate test: a pathbreaking case of sex discrimination. The lower court had ordered the oldest women-only public college in America, the Mississippi University for Women, to admit men to its nursing school. Mississippi appealed.

  In a dramatic coincidence, O’Connor’s clerk, thirty-eight-year-old Ruth McGregor, who had lived through some of the inequities of lawyering while female, drew from the clerk pool the job of recommending whether the Court should hear Mississippi’s appeal to the Supreme Court. She recommended that they take it. The existing law on sex-segregated schools was “messy,” she wrote; the only Supreme Court decision on the subject issued from a reduced court of eight, which split 4–4, and the cultural consensus had not yet formed on whether women’s schools helped women or hurt them.

  When she sat down at the October conference, one month into her duties, O’Connor faced an ideologically riven tribunal. The three Republican-appointed conservative justices—her staunch advocate Chief Justice Burger, her law school pal William Rehnquist, and the unpredictable Harry Blackmun, along with the increasingly conservative Democratic appointee Byron White—enough to grant review—all wanted to take the case, likely with an eye to reversing and allowing Mississippi to segregate the sexes. The liberals remaining on the Court—William Brennan, Thurgood Marshall, and the increasingly liberal Ford appointee John Paul Stevens—wanted to deny review, affirming the lower court order to admit men. Her closest friend on the Court, Lewis Powell, also voted with the liberals not to review the case, which would leave the lower court order integrating the school in place, although his reasons were completely opaque.