[Editor’s Note: This column first appeared in the pages of Human Events on July 25, 1981.]
Judge Sandra Day O’Connor, despite her two days of politicking in the Nation’s Capitol last week, is not likely to be approved for the High Court by the Senate without a small bit of bloodletting from the anti-abortion forces. Despite her swing through Capitol Hill, she kept her abortion views to herself, and irritated a number of senators when she refused to appear before the Senate Steering Committee, a group of conservative lawmakers captained by Sen. Jesse Helms (R-N.C.)
When she turned down the Helms invitation, the Helms group heard, instead, Dr. Carolyn Gerster, the right-to-life leader in Arizona who recently wrote a letter to Atty. Gen. William French Smith sharply criticizing the O’Connor selection.
Sen. Barry Goldwater (R-Ariz.) has been insisting that abortion shouldn’t even be considered an issue when it comes to making a High Court choice, but Dr. Gerster and others stress that the GOP platform – by specifically urging that appointment of jurists who respect “innocent human life” – has forced the issue up front.
There is, furthermore, another underlying theme involved: the strong belief by abortion foes that the Administration has deliberately misled people or “covered up” the truth about the O’Connor pick.
In her remarks before the Helms group in a letter to Atty. Gen. William French Smith, for example, Dr. Gerster made these points:
“I was not contacted by the Justice Department for verification,” she said, and the statement “has been understandably misunderstood by members of the legislature and media to imply that Judge O’Connor and I share similar beliefs on the abortion issue.” While Judge O’Connor “is a dedicated, highly intelligent person,” said Dr. Gerster, “we were in an adversary position during 1973 and 1974 due to Sen. O’Connor’s position on abortion-related legislation while she served as Senate majority leader.”
While the Justice Department memo makes it seem as if Judge O’Connor were not pro-abortion, Dr. Gerster says that, with possibly one exception, she took a pro-abortion stance from 1970 through 1974.
In 1970, for example, she supported H.B. 20, which proposed to remove all restrictions from abortions done by physicians. And while the Starr memo says, “There is no record of how Sen. O’Connor voted and that she indicated that she has no recollection of how she voted,” Dr. Gerster informed Atty. Gen. Smith: “An article by Howard E. Boice Jr., appearing in the Arizona Republic on April 30, 1970, records the vote of all nine members of the Senate Judiciary Committee. Sen. O’Connor is recorded as casting one of the six vote for the bill, as she did in the Senate Rules Committee where the bill later failed to pass . . . .”
But Dr. Gerster says it certainly was regarded as an abortion measure by several state senators as well as by the Republic. And “Contrary to the memo, hearings were held and the bill certainly was regarded as controversial.”
The Justice Department memo says Mrs. O’Connor explains this away on the ground that the Arizona Constitution” forbade enactment of legislation treating unrelated subject matters . . . .” But Dr. Gerster suggests that this vote appears to be part of a total pattern of votes cast on the abortion issue.
The memorial would have petitioned the U.S. Congress to pass a Human Life Amendment to the Constitution restoring legal protection to the unborn child except where the mother’s life was in jeopardy.”
And where was Mrs. O’Connor in all this? “H.B. 2002 passed the Senate Judiciary by a 4-to –2 vote,” says Dr. Gerster; “Sandra O’Connor is reported in the April 23, 1974, Phoenix Gazette as voting against it even after amended to include rape and incest in addition to life of the mother.”
On May 15, 1974, says Dr. Gerster, “H.R. 2002 failed to pass the majority caucus by one vote. At least on senator on the caucus is willing to testify that Sen. O’Connor voted against the memorial.”
Hence, beyond her stand on abortion is her credibility. Has she been deliberately deceiving the Administration on the issue? Did she, in order to avoid the wrath of the anti-abortion forces, fudge her own record? For many senators not attuned to the prose and cons of the abortion issue, the credibility factor may weight far more heavily in their minds. How Mrs. O’Connor deals with what could be a very nettlesome problem may determine how easily she gets through her confirmation hearings.