[Editor’s Note: This column first appeared in the pages of Human Events on July 18, 1981.]
President Reagan’s choice of Arizona Appeals Court Judge Sandra Day O’Connor to fill the vacancy on the Supreme Court has astonished and dismayed a great number of conservatives, many of whom keep wondering how in the world he arrived at this particular selection for this most critical of judicial positions.
From a wide variety of viewpoints it seems wrong-headed. The president undoubtedly feels good about fulfilling his campaign pledge to name a woman at an early opportunity to the High Court and thus “dish the liberals,” as his political advisors keep gloating about, but did it have to be this woman? is what conservatives keep asking themselves.
Her current views on abortion and the Equal Rights Amendment are clearly suspect because of her previous legislative record in the Arizona state senate, but so are her views on a wide range of other important matters, including quotas, aid to private schools and criminal law. In her 18 months on the Appeals Court, she has not ruled on the major kinds of issues she will have to face as a Supreme Court Justice. “We’re buying a pig in a poke,” said one conservative critic. “The Administration is asking us to accept her on faith, but why should this be the case for such a crucial appointment? Surely they could have done better.”
And take a look at O’Connor’s cheering section. Democratic Senators Teddy Kennedy (Mass.), Howard Metzenbaum (Ohio) and Alan Cranston (Calif.), three champion musketeers of the liberal-left, couldn’t have been more enthusiastic about her nomination. Rep. Morris Udall (D.-Ariz.), who may, if possible, tilt even further to port, waxed joyous. “I’m really quite pleased,” said Udall, “…If we’re going to have Reagan appointees to the Court, you couldn’t do much better.” Americans for Democratic Action spokesman Stina Santiestevan said she was “thrilled” at the choice, while Arizona’s ACLU Chairman Alice Bendheim thinks she’s going to work out just fine. Speaker Tip O’Neill believes this is the best thing that the President has done since he’s been in office.
Eleanor Smeal, the head of the extremist National Organization for Women, was equally delighted, as was Iris Mitgang, chairperson of the National Women’s Political Caucus.
What these and other feminist groups like them are fighting for, of course, is not just the placement of women in important positions in society, but women who favor ERA, abortion-on-demand, women in combat and all other “rights” associated with the extreme feminist cause. And Judge O’Connor, it transpires, as actively backed many of their fights, and has failed to repudiate many of her past actions, so far as we can tell.
And what about her conservative supporters? Save for Sen. Barry Goldwater, who has all but tuned out relevant conservative politics for many years now, there aren’t many rushing to her defense in any substantive way. Goldwater, who savaged Ronald Reagan in 1976 when he was running against Gerald Ford, says O’Connor is a great conservative, and that “I think that every good Christian ought to kick Jerry Falwell right in the ass” for opposing her—as if a minister had no right to address the subject of abortion or oppose for public office those who favor a surgical process that great numbers of respected doctors and theologians believes results in the actual taking of human life. “This abortion issue has gotten to be the biggest humbug issue in the United States,” said Goldwater, adding: “Abortion is not a conservative issue.”
But lots of conservative politicians other than the Arizonan are depressed, disappointed or wary about the O’Connor nomination, and not just because of her record on feminist issues. Sen. Strom Thurmond (R.-S.C.), chairman of the Judiciary Committee, has agreed to support the selection, as will most of the Senate, but privately, according to well-placed sources, Thurmond has been critical of the choice.
Sen. Jesse Helms (R.-N.C.) suggested that the President may have been mislead about O’Connor’s background “either by his own people or the lady herself,” since a memorandum to the attorney general from counselor Kenneth Starr glosses over her pro-abortion and pro-ERA stands.
Sen. John East (R.-N.C.) has expressed a certain concern about the appointment, as has Sen. Roger Jepsen (R.-Iowa), who told us: “The President has consistently stated his strong support for the rights of the unborn, both in his active involvement in drafting the Republican platform and his most recent support for the Hyde language in the continuing appropriations resolution. Therefore, I am puzzled by the nomination of a person who apparently does not reflect that commitment.” And while the politicians have hedged their opposition, virtually all of the right-to-life groups that so vigorously worked for the President’s election have flatly opposed the O’Connor pick.
The President has assured us that Mrs. O’Connor is personally opposed to abortion, that she finds it “abhorrent,” but that hardly tells us where she will line up judicially on the subject, since even most of the ardent pro-abortion advocates insist they are “personally” opposed to abortion as well.
But her views on abortion, others will insist (even many conservatives, we acknowledge), should not be the “litmus” test as to whether she should be selected. But surely, if keeping promises is the goal of the Reagan Administration, a nominee’s views on abortion should be as seriously weighted as the nominee’s gender, since the Republican Party platform bluntly says: “We will work for the appointment of judges at all levels of the judiciary who respect traditionally family values and the sanctity of human life,” and the President strongly defended that section of the platform in his Sept. 21, 1980, debate with John Anderson. And who has a better right to have their wishes embraced by the Administration—the Gloria Steinem crew or the right-to-life forces who tirelessly worked for Ronald Reagan?
But abortion and ERA are not the only areas which concern conservatives. The judicial record is hardly reassuring.
Her 29 published opinions on the Appeals Court don’t deal with some of the major issues that conservatives feel strongly about, such as the death penalty, bussing, the constitutional rights of criminal defendants, labor law, deregulation, tuition tax credits, etc. As a state court judge, she has ruled on cases dealing mostly with such state legal issues as the liability of municipalities for negligence and the standards to be applied in awarding disability payments.
“Thus,” as a critique in the New York Times put it, “it appears far too early to determine whether the ideologically divided Court will become more conservative or more liberal if Judge O’Connor fills the vacancy created by the retirement of Justice Potter Stewart.”
Indeed, virtually all accounts describe her as “pragmatic” and “non-ideological,” and she herself, in her Phoenix news conference following her selection, did not even have the courage—or conviction—to describe her judicial philosophy. “Would you put a label on yourself—moderate or constructionist?” she was asked. “No, I can’t do that,” said the philosophically unanchored Mrs. O’Connor.
Though obviously bright and energetic, the 51 year-old O’Connor, especially when she served in the Arizona senate in the early 1970s, was not considered a conservative. She appeared “trendy,” promoting bilingual education, abortion, ERA and no-fault divorce. She was also absolutely dead-set against any state aid to parochial schools. Legal experts in the state believe she is fundamentally sound in the criminal law field—and will be better than Potter Stewart when it comes to such matters as the “exclusionary rule”—but even here the record is not totally clear. Though she supposedly favors capital punishment, for instance, she argued against the imposition of the mandatory death penalty in such a way as to suggest she was opposed to capital punishment at any time.
Not all is bad about Mrs. O’Connor. She does have a fairly decent record so far as meting out punishment to convicted criminals is concerned. She recently wrote an article for the William and Mary Law Review, which argued against usurpation of state court powers by the federal courts. And she is good friends with the Supreme Court’s most conservative member, William Rehnquist (they were in the same class at Stanford Law School; he was No. 1, she was No. 3), with Rehnquist having given her a hearty recommendation.
But, still, this is pretty thin gruel. President Reagan, for all his and is aides’ assurances, is asking conservatives to rally behind a highly uncertain trumpet. Mrs. O’Connor, of course, may turn out to be just what the doctor ordered. President Reagan, we concede, hasn’t yet been a bad judge of character, as the metamorphoses of Richard Schweiker and Terrel Bell attest. Yet Schweiker and bell and other Cabinet appointments can be fired if they don’t follow presidential orders. But once Mrs. O’Connor slips on that black robe, she cannot be budged from the bench.
Hence, if nothing else, the Judiciary members, especially the conservatives, owe it to their constituencies to thoroughly scrutinize Mrs. O’Connor’s record and philosophy, assuming she’ll finally admit she has a philosophy. What is so difficult to comprehend, however, is why the Administration, in making this weightiest of all appointments, selected a nominee of such murky ideological moorings.
Under a Reagan presidency we expected to see a major transformation in the High Court, a sea-change shift to the right. But that kind of alteration is not likely to come about with O’Connor-type appointments.
Conservatives—no, the country—have a right to expect better.