Sunday, July 03, 2005


Sandra Day O'Connor: Let's keep it real, shall we?

Part I of III

O'Connor as "Feminist Pioneer"

I can't bring myself to read this weekend's stories and profiles about Sandra Day O'Connor for fear of seeing more stuff like this from the usually witty and brilliant (but not here) Dahlia Lithwick, who finds it a "mystery" why O'Connor didn't have a better record on civil rights:
[O'Connor] is, after all, a feminist pioneer. The first woman on the United States Supreme Court, Justice O'Connor broke through glass ceilings the way women of my generation broke nails. She, more than any other woman in the legal profession, proved that we could be whatever we wanted.
I think I can unravel that "mystery" for you, Dahlia. (For a rejoinder arguing that O'Connor can be feminist without being liberal, see Althouse here.)

Before we start getting all weepy about O'Connor crossing the legal frontier in a feminist covered wagon, let's gather a few facts. Ronald Reagan nominated O'Connor in 1981 to fulfill a campaign promise to appoint the first woman to the Supreme Court, a promise stemming from an opportunistic bit of campaign strategy to counter Jimmy Carter's phenomenal record in appointing women judges to the federal judiciary from 1977-1980.

In 1981 – I'm guessing here, to be sure – Sandra Day O'Connor was perhaps the twentieth most qualified woman for the job of Supreme Court justice, but most if not all of those ahead of her were Democrats. To appoint a Republican, Reagan had to ignore the several impressive women judges on the federal judiciary and reach down to the intermediate appeals court of Arizona.

Had there been a Supreme Court vacancy during Carter's one term as president – or had he been re-elected in 1980 – Carter would very likely have nominated a woman for the first vacancy. It probably would have been none other than Ruth Bader Ginsburg. Some other possibilites: Patricia Wald, Amalya Kearse, Betty Fletcher and Mary Schroeder, all outstanding federal appellate judges, and Rose Bird, the first woman Chief Justice of the California Supreme Court. Any of this cohort of highly distinguished women lawyers in 1981 (O'Connor included) would have had any number of "first woman" distinctions on her resume, not to mention horrendous personal experiences of sex discrimination. And they would have been very liberal compared to O'Connor.

Lithwick's feelings about O'Connor as a "feminist pioneer" are typical of many younger women lawyers and women law students, who often identify Sandra Day O'Connor as the "justice [they] most admire." Yes, let's give Justice O'Connor many brownie points for being "the first woman." Clearly, she showed great fortitude in forging ahead in her legal career despite serious early setbacks due to sex discrimination. But her pioneering days were over certainly by 1974, when she was a bi-partisan appointment to the Arizona intermediate court of appeals, and perhaps earlier when she was established in the Arizona state senate. It's not like, once she was appointed to the U.S. Supreme Court, litigants were showing her disrespect, or the male justices were hazing her by saying "men only in the robing room." And how much of Justice O'Connor's career -- in contrast to Ginsburg's -- involved "pioneering" in the sense of blazing a trail for others? In these respects, I think Justice O'Connor as a "pioneer" is much closer to Clarence Thomas than to Thurgood Marshall.

In short, Justice O'Connor was basically appointed to the position of Great Role Model for Women in exactly the same "right place at the right time" way that she became a Supreme Court justice.

To go from projecting the mantle of "feminist pioneer" onto O'Connor, to projecting a hopeful expectation that she would be, or become, liberal is just a bit of foolishness. O'Connor was a died-in-the-wool, partisan Republican -- let Bush v. Gore be part of her epitaph. The Reagan Administration was probably the most successful in U.S. history in ideologically screening its judicial appointments (though the "w" Bush Administration may prove to be its equal) – as far as I know, not a single closet liberal got through at any level. Although clearly Justice O'Connor decided any number of cases in ways way that would not have pleased Reagan's henchpeople, make no mistake: she was a conservative jurist.


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