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March 5 2019

Sandra Day O'Connor

by Charlotte Hays

With the sometimes cult-like focus on Justice Ruth Bader Ginsburg as a trail blazing woman jurist, the public might be forgiven for thinking Justice Ginsberg was the first woman to ascend to the high court.   

She wasn't. That historic honor belongs to retired Associate Supreme Court Justice Sandra Day O'Connor.  O'Connor, who turns 89 on March 26th, was appointed by a Republican president, Ronald Reagan, on August 19, 1981, more than a decade before President Clinton nominated Justice Ginsberg. O'Connor's story of making her way as a pioneering woman and proving herself in the public arena is just as impressive as RBG's now better-known -saga, though it has not received nearly the same attention since it doesn't fit as neatly in the progressive narrative.

O'Connor, who had served in the Arizona state legislature and on the state's Supreme Court by the time of her nomination, had written to President Nixon in 1971, urging him to appoint a woman to the Supreme Court. Her counsel went unheeded:  The next vacancy went to O'Connor's old friend and Stanford Law classmate, William Rehnquist.

Ronald Reagan promised during the campaign to name a woman to the Supreme Court. When Justice Potter Stewart quietly made it known to Reagan insiders that he wanted to retire, Reagan sought to make good on his commitment.

O'Connor's named surfaced. According to biographer Joan Biskupic, when William French Smith, Reagan's Attorney General, called O'Connor in Arizona to say that he wanted to talk to her about a possible job, she shot back, "It must be a secretarial position, is it not?"

The jest was rooted in O'Connor's history. O'Connor had received only one job offer upon graduating at the top of her class from Stanford Law in 1952: a legal-secretary position in Smith's Los Angeles law firm. Smith reportedly ignored the jest. Reagan was impressed with O'Connor.  She was confirmed unanimously by U.S. Senate (yes, Virginia, this used to happen).

When William French Smith, Reagan's Attorney General, called O'Connor in Arizona to say that he wanted to talk to her about a possible job, she shot back, "It must be a secretarial position, is it not?" The jest was rooted in O'Connor's history.

Part of the favorable impression O'Connor made on Smith (and Reagan, too, who was intrigued) stemmed from her being unabashedly the product of her western background. Smith would write that, upon meeting her, "it seemed to us that Sandra Day O'Connor, both in her looks and in her personality, had that same direct friendliness one associates with the wide open territory where she lived."

Sandra Day grew up on a vast cattle ranch named the Lazy B, which straddled the Arizona/New Mexico border. It had been established by her grandparents, Henry Clay Day from Vermont and Alice Edith Hilton, the daughter of an Episcopal rector. The Lazy B was so isolated that education for the Day children was problematical. 

At the age of six, Sandra was sent to El Paso to live with her maternal grandmother and attend the Radford School for Girls. Radford had been founded in 1910. The original building was on the Rio Grande, which allowed Radford girls, both Anglo and from prominent families from Mexico, to observe fighting in the Mexican Revolution. The school's website says that the campus was moved because it "was just a stray bullet away from the war."

Radford was an academically rigorous school, where Sandra excelled but spent her time pining for the Lazy B.  In a loving memoir simply entitled Lazy B penned by the Justice and her brother Alan Day many years later, Harry Day, O'Connor's father, is portrayed as almost the hero in a cowboy movie, Gary Cooper in "High Noon," perhaps. Harry Day was demanding and could be harsh. Sandra was the apple of his eye. She was not spoiled, however. That was not Harry Day's way.

Sandra, as an adult, frequently told the story of an incident when she was 15. Home for the summer, Sandra was assigned the task of delivering lunch to the cowboys, far out on the Lazy B, branding calves. She climbed into the truck and started across the dirt roads. Unfortunately, she was delayed by a flat tire. She knew how to change a tire but then discovered rusted lug nuts. She had to crack them loose before proceeding.

Needless to say, lunch was late. Sandra was proud of having gotten there, but her father regarded it as a failure. "You should have started earlier. You need to expect anything out here," was all he said to his deflated daughter.

Ada Day, Sandra's mother, on the other hand, instilled a sense of style, subscribing to Vogue and other cosmopolitan magazines that captured a way of life quite different from the way the family lived on the Lazy B. Ada served impressive meals, seemingly effortlessly, a talent her daughter carried on as she became a civic and political leader.

Sandra, as an adult, frequently told the story of an incident when she was 15. Sandra was assigned the task of delivering lunch to the cowboys, far out on the Lazy B, branding calves. A flat tire made her late. "You should have started earlier," was all Harry Day said to his deflated daughter

Upon graduating from high school, at the age of 16, Sandra set about realizing for herself one of Harry Day's unfulfilled dreams: going to Stanford University. Harry Day wanted to go enroll at the famous university but the unexpected death of his father meant that he had to take on running the Lazy B instead.

After Stanford undergraduate studies, Sandra Day entered the Law School as one of five women in the class. Some biographers have seen a romance between Sandra Day and William Rehnquist with whom she would serve on the Court. If so, the supposed romance did not survive Sandra's meeting another Stanford Law student, John J. O'Connor. They toiled on the law review together.  "Beware of proof reading over a glass of beer, it can result in unexpected alliances," she later joked. They were married in 1952 at the Lazy B ranch. Like Georgetown law professor Martin Ginsburg, another lawyer husband, John O'Connor would graciously allow his career to be overshadowed by that of his wife. In those days, women in Washington were more often than now billed as "wife of." The humorist Art Buchwald joked about how embarrassing it would be to be seated next to the Justice and turn to one of the nation's most famous jurists and forgetfully ask, "So what does your husband do?"

Sandra Day O'Connor career prospects might not have seemed as bright when she graduated from Stanford Law. Despite her high class ranking, job offers did not pour in (except the already-mentioned legal secretary position, just right for a lady with a law degree from a top school). She visited the office of a county attorney in California. He said he didn't have any jobs. O'Connor noticed that there was an empty desk next to the secretary's and wrote him that she would be willing to take that desk and work without a salary until such time as she proved herself and a job opened up. She was "hired."

In 1957, the O'Connors moved to Phoenix, closer to the Lazy B and a flourishing Sun Belt city. While John was hired by a prestigious law firm, Sandra, who gave birth to the first  of the couple's three sons a matter of days after being sworn into the Arizona bar, set up on her own, with one other lawyer. "We took everything we could get," O'Connor later said. In those days, there was no public defender, so O'Connor took criminal appointments, which required going to the court house and sitting around waiting to be appointed, for the standard fee of $25. The O'Connors were socially prominent in their community:  Sandra Day O'Connor may be the only Supreme Court Justice ever elected president of her local Junior League.

Although O'Connor is thought of as a moderate Republican, she cut her teeth in politics campaigning for conservative stalwart and Arizona native Senator Barry Goldwater's presidential bid in 1964. In 1969, O'Connor successfully pursued appointment to a vacant state senate seat. She subsequently won a full term, going on to become the first woman to be a state senate majority leader. Her first judiciary job came in 1975 when she won a seat on the Superior Court of Maricopa County. Four years later, she was appointed to the Arizona Supreme Court of Appeals, a job she held for four years before being named to the Supreme Court.

During the Arizona period, O'Connor took positions that would not endear her to more conservative Republicans. She supported the Equal Rights Amendment, writing to the two Arizona senators to vote for it, and supported putting the amendment to a vote in Arizona. (Supporters of the renewed attempt to pass the ERA are still looking at Arizona, which they say could be the 38th state to pass it and get it over the finish line.) Her voting record in Arizona indicated that she was pro-choice. Pro-life and conservative organizations protested O'Connor's nomination.

One thing conservatives can always be grateful to O'Connor for, however, is that she was committed to federalism. Perhaps because she had been a state legislator, she always appreciated the role of the states and protected their rights from undue federal incursions. Scalia may have directed some verbal barbs towards O'Connor from time to time, but on federalism they stood together.

Although appointed by a Republican president, it is fair to say that O'Connor's more ardent fan base today is not on the right. "She’s a hero for our time," says liberal luminary Walter Isaacson, blurbing a book out this month on O'Connor by former Newsweek Washington bureau chief Evan Thomas. Thomas' book, First, Sandra Day O'Connor, is billed as the "intimate, inspiring, and authoritative" look at O'Connor. She became the liberal's idea of a good conservative, with then Rep. Barbara Boxer urging President George W. Bush to appoint somebody in the O'Connor mold to fill her seat when she stepped down. (Chief Justice John Roberts was her replacement.)

"Over the course of her two decades on the court, the conservative justice became known as a somewhat unpredictable voter. She was known for being a majority builder whenever possible, but also for being a swing vote in the divisive cases," O'Connor's biography on Oyez notes. It seems to be forgotten that O'Connor often sided with her fellow conservative Justices, especially in her earlier days on the Court. But she issued many rulings that dismayed Republicans.

O'Connor joined Justice David Souter, another Republican appointee who generally disappointed Republicans,  and Justice Anthony Kennedy, who would become the swing vote in many cases after O'Connor stepped down, in writing the opinion in Planned Parenthood v. Casey. They upheld Roe v. Wade, the 1973 case that legalized abortion, but imposed some restrictions.

O'Connor also authored the majority opinion (joining liberal wing Justices David Souter, Ginsburg, and Stephen Breyer) upholding affirmative action in Grutter v. Bollinger, a landmark case. In that 2003 opinion, she predicted that in 25 years affirmative action would not be necessary. In the view of conservative critics, that was political or pragmatic, not constitutional, reasoning.

An exasperated Charles Krauthammer wrote, in a column summing up her quarter century on the Supreme Court, " She had not so much a judicial philosophy as a social philosophy. Unlike a principled conservative such as Antonin Scalia, or a principled liberal such as Ruth Bader Ginsburg, O'Connor had no stable ideas about constitutional interpretation. Her idea of jurisprudence was to decide whether legislation produced social 'systems' that either worked or did not."

It should be noted that O'Connor wrote one of the most famous documents ever to issue from the Supreme Court, the per curiam decision ending the Florida recount and making George W. Bush President. She has never backed off from this, though she has lamented the uncivil tone of American politics that some say started with the Florida recount.

One thing conservatives can always be grateful to O'Connor for, however, is that she was always committed to federalism. Perhaps because she had been a state legislator, she always appreciated the role of the states and protected their rights from undue federal incursions. Scalia may have directed some verbal barbs towards O'Connor from time to time, but on federalism they stood together. "State legislative and administrative bodies," she wrote in one opinion, "are not field offices for the national bureaucracy. Nor are they think tanks to which Congress may assign problems for extended study. Instead each state is a sovereign within its own domain, governing its citizens and providing for their general welfare." She voted to invalidate a small portion of the Violence Against Women Act on federalism grounds.

O'Connor stepped down in 2006, when she felt that her husband, who had been diagnosed with Alzheimer's, needed her. When John fell in love with a fellow patient at his care facility, O'Connor issued a supportive statement. John O'Connor died in 2009. The retired Justice wrote a letter last year saying that she was in the early stages of dementia.

It should be noted that O'Connor wrote one of the most famous documents ever to issue from the Supreme Court, the per curiam decision ending the Florida recount and making George W. Bush President. She has never backed off from this, though she has lamented the uncivil tone of American politics that some say started with the Florida recount. O'Connor has spoken out against the increased partisanship and tribalism in our politics that excludes more moderate people like her, who didn't fit entirely on one team or another.  She may not be a hero of the right or the left, but she is an impressive, decent woman who served her country who can inspire us all. 





Independent Women's Forum is an educational 501(c)(3) dedicated to developing and advancing policies that aren’t just well intended, but actually enhance people’s freedom, choices, and opportunities. IWF is the sister organization of the Independent Women’s Voice.​
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