O??¢â???¬â???¢Connor Positions Still Unclear

When the Senate Judiciary Committee opened three days of hearings last week on the appointments of Arizona Appeals Court Judge Sandra Day O’Connor as the first woman ever to serve on the U.S. Supreme Court, the occasion had all the trappings of high political drama. The scene inside Room 1202 of the Dirksen Senate Office Building was marked by the blinding TV lights, the packed press table, and the wall-to-wall spectators that suggeste4d these proceedings were not the run-of-the-mill congressional hearing. Meanwhile, score of would-be onlookers waited in the adjacent corridor, hoping to catch a glimpse of the action.

Unlike the better dramas, there seemed little doubt from the beginning about how this particular show was going to end. Indeed, so effusive was the praise given O’Connor at the outset of the proceedings by senators of virtually every political and ideological persuasion that some observers wondered why they bothered holding any hearings at all.

Conservative Republican Sen. Barry Goldwater—who together with this Arizona colleague, Democratic Sen. Dennis DeConcini, introduced Judge O’Connor to the committee—said he was delighted to “declare my unqualified endorsement of her nominations to the United States Supreme Court.”

Committee Chairman Strom Thurmond (R-S.C.) made laudatory reference s to her previous experience as a state senator and state court judge, while Sen. Bob Dole (R.-Kan.) declared simply: “You are among friends.”

Liberals were equally enthusiastic. Sen. Ted Kennedy (D.Mass.) began his opening statement with the observation that, from all he had “heard and read about her extensive experience and qualifications, it is clear that she has the promise to be an outstanding justice.”

Kennedy then proceeded to denounce O’Connor’s New Right critics, who have been concerned about her positions on abortion, the Equal Rights Amendment and other issues. “It is offensive,” he said, “to suggest that a potential justice of the Supreme Court must pass some presumed test of judicial philosophy. It is even more offensive to suggest that any potential justice must pass the litmus test of any single-issue interest group.

“The disturbing tactics of division, distortion and discrimination practiced by the extremists of the New Right have no place in these hearings, and no place in our nation’s democracy.”

Despite the general euphoria, there were few discordant notes, most of which grew out of doubts concerning Judge O’Connor’s views concerning abortion. When O’Connor was escorted to the opening day hearings by Atty. Gen. William French Smith, she went past right-to-life demonstrators parading outside the Dirksen building. They carried placards saying, “Vote No to Mrs. O.,” “O’Connor Not Acceptable” and “Stop Abortion.”

Inside the hearing room, Conservative Digest Editor John Lofton, who devoted a recent issue to a broad attack on the O’Connor appointment, was much in evidence taking notes. In addition, copied were distributed of The O’Connor Report, a special newsletter published by direct-mail fundraiser Richard Viguerie denouncing her past record on issues including abortion, the Equal Rights Amendment, women in combat, capital punishment and private-school aid.

In an attached covering letter, Viguerie termed the O’Connor nomination “reflective of a growing attitude of indifference that has permeated a number of the White House’s actions with respect to our objectives. Mrs. O’Connor’s public record is one of consistent and unequivocal support of abortion.” Other anti-O’Connor materials were distributed in the hearing room by the March for Life organization.

While conservative interested in O’Connor’s approach to a wide array of issues, ranging from forced busing to criminal law and capital punishment, the most pointed questioning dealt with abortion. Several senators, citing promises made by candidate Reagan and the Republican platform to appoint pro-life judges, made it clear that they remained skeptical about O’Connor’s credentials in this area. The most blunt line of questioning was pursued by Sen. Jeremiah Denton (R.-Ala.)

In a reference to a July 7, 1981, memo by senior Justice Department official Kenneth Starr which many believe distorted O’Connor’s past record, Denton told the Supreme Court nominee: “It appears from some analyses that there is a substantial difference between your record and the Justice Department’s official report of your record, and that may be reason for the concern in the minds of many regarding these differences on such issues as abortion, and women in combat, among others. I hope we can clear up that matter.”

The Alabama Republican was even more blunt in an early version of his opening remarks, which was later toned down. In that document, which was distributed to reporters covering the hearing, Denton noted that, if some of the misleading information in the Starr memorandum “is to be accepted at full value, then certain questions with respect to your credibility are apparent.”

Denton told O’Connor that he would base his vote squarely on her responses concerning her present position on the abortion issue. Senators Charles Grassley (R.-Iowa) and John East (R.-N.C.) also put major emphasis on her right-to-life issues.

In an effort to deflect such concern, Chairman Thurmond asked O’Connor during the opening minutes of her questioning for her thinking on abortion and an explanation of her four votes as a state senator in the early ‘70’s that have most distressed her opponents.

Striking a theme to which she would return repeatedly throughout her days of testimony, O’Connor said: “I am opposed to abortion as a matter of birth control or otherwise.” She added that the subject of abortion “is a valid one for legislative action, subject to any constitutional restraint or limitation.”

O’Connor acknowledged that she had supported a 1970 measure to repeal Arizona’s criminal abortion law, saying, “at the time I believed some change was appropriate.” She indicated, however, that after learning more about the issue in later years, she would not have voted again for a “simple repealer” of abortion restrictions.

To Thurmond’s other questions, she responded that she had opposed a 1974 memorial to Congress in favor of a human life amendment because she thought the subject deserved more study, and that she had opposed a measure forbidding abortions in some state hospitals, believing it to be inappropriately attached to a non-germane bill in violation of the state constitution. (This measure was later upheld by a state court.)

In a further attempt to bolster her “pro-family” image, O’Connor introduced her husband and three sons to a crowded assemblage. Bu the chief question on the minds of anti-abortion senators was where O’Connor stands regarding the controversial Roe v. Wade opinion that struck down anti-abortion statutes in all 50 states. As Sen. East pointed out, “most people personally oppose abortion as a form of birth control. The real division is between those who might wish to do something about it in the public arena and those who would do nothing about it.”

But O’Connor simply would not be pinned down on Roe v. Wade, arguing that it would be improper to “endorse or criticize specific Supreme Court decisions.” As a result, no one could be quite certain about the state of her current thinking on the right of Congress and the state legislatures to ban abortions.

Pro-life activists were not encouraged by her testimony, however. Particularly disturbing was her repeated assertion that abortion was a legislative matter subject to “constitutional restraints.”

Since there has never been any constitutional restraints on the right of legislatures  to outlaw abortion until Roe v. Wade was handed down, the inference was that O’Connor supports the controversial decision. For that reason, National Director Howard Phillips of the Conservative Caucus, who has been a leading foe of the O’Connor appointment, told Human Events the hearings had “confirmed the worst fears” of O’Connor’s pro-life opponents.

On a number of key issues, O’Connor seemed to hold views that most conservatives would welcome. But her frequent refusal to get specific—together with the failure of Judiciary Committee members to put her on the spot with tough questioning—left her true position even on these issues somewhat in doubt after two days of testimony.

While saying she opposed mandatory capital punishment, for instance, O’Connor maintained she does not support the death penalty under some circumstances. However, no lawmaker asked her to explain her observation back in 1973 that “Georgia has the highest homicide rate in the nation and the highest rate of execution”—a statement indicating that she opposed capital punishment at that time.

She reiterated over and over her view that “the proper role of the Judiciary is one of interpreting and applying the law, not making it.” But she never got specific. Did the upholding of racial quotas in employment, which was never intended by the Civil Rights Act, constitute an example of improper judicial activism? Judge O’Connor didn’t say.

How about women in combat? Not on the battlefield, she said, but it is all right to have women serving aboard combat ships.

What about forced busing? On this issue Judge O’Connor came about as close as anywhere to taking a hard-line conservative stance, calling busing “disruptive” and nothing that she had voted in the legislature in favor of a memorial to terminate federal forced busing. But even on busing she did not suggest how she might rule as a member of the High Court.

At the end of two full days of hearings, then—just as when the nomination was unveiled—the public remained mostly in the dark about where Judge O’Connor stands on key issues. The public will probably find out eventually, however—and possibly the hard way—since her confirmation is virtually assured.