Ronald Reagan was elected Nov. 1980. In June 1981, Justice Potter Stewart retired from the US Supreme Court. Reagan had stated that it was time a woman was on the Supreme Court; so all eyes were focused on female candidates.
In 1981, women were, for the first time, coming into the practice of law in large numbers. The Supreme Court required a person with as much as 30 years of legal experience. Also, nominees were usually picked from the US District Courts of Appeal. But there were no qualified female judges on those courts. Female law graduates, 20 or more years ago, had difficulty finding positions in law firms and often settled for auxiliary positions. The pickings were slim and President Reagan had to reach well down the ladder of legal advancement to find a woman to nominate.
She was Sandra Day O’Connor, a state appeals court judge in Arizona. Reagan nominated her on July 7, 1981. The administration then circulated a memo, authored by Kenneth Starr, containing only information that she had provided, which was quickly found to be inaccurate and deceptive. It stated “she knows well the Arizona leader of the Right to Life movement and has never had any disputes or controversies with her.” That person was Dr. Carolyn Gerster, immediate past president of the National Right to Life Committee (NRLC), who took total exception to this, stating that they had been in direct adversary rolls when O’Connor had been in the Arizona House and Senate. Pro-lifers promptly informed the administration that, as a state representative, O’Connor had supported a bill in 1970 to legalize abortion. The memo also stated, “There is no record of,” and that O’Connor “has no recollection” of how she voted. However, the Arizona Republic, April 30, 1970, detailed that she had supported House Bill 20 in 1970. It would have removed all legal sanctions against abortion for the full nine months.
As a state senator, in 1973, she sponsored SB 1190 to promote “all medically accepted family planning methods,” which did not exclude abortion and “the consent of the parent of the minor is not necessary to authorize such services.”
As president of the NRLC, I publicly stated, “We are extremely disappointed with the nomination of Sandra Day O’Connor due to her consistent support of legal abortion. O’Connor’s appointment is a repudiation of the Republican platform pledge to appoint judges who respect the sanctity of innocent human life. This is not a matter of a single-issue litmus test. Rather certain minimum qualifications should apply to any candidate, such as a commitment to racial justice. Recognition of the right to life of the unborn child must be as a similar fundamental qualification.”
The NRLC officially informed the White House that Judge O’Connor was unacceptable, but on July 1, she was the only nominee interviewed by President Reagan. On July 2, Dr. Gerster, in a letter hand delivered to the White House, opposed her nomination. Letters and telegrams opposing her began pouring into the White House. Kenneth Starr had been asked by the President for an evaluation of her. He did not call Dr. Gerster. He checked only with Judge O’Connor and so reported. Immediately after the President nominated her, there commenced a flurry of articles, interviews and comments in the National Right to Life News including the following:
- “She states she is personally opposed to abortion. (So was Senator Kennedy) She says that she shares President Reagan’s views on abortion, when in fact she may well be diametrically opposed to his views. This amounts to a flat deception.”
- The Arizona Bar Association, in 1978, rated 8 judges’ first year on the appellate bench. It rated Sandra O’Connor at the bottom.
- An analysis of years of experience practicing law prior to nomination to the Supreme Court showed Blackman with 27, Brennan 18, Burger 22, Marshall 28, Powell 40, Rehnquist 17, Stevens 21, Stewart 13, White 24 and O’Connor 6.
Senate Judiciary hearings were held Sept. 9 – 11, and broadcast nationwide on C-Span. At no point was she pinned down to a direct yes or no answer on abortion. Senator Denton gave up, stating, “Your statements are totally vague.”
On the third day, Dr. Gerster and I testified for over two hours, on nationwide TV. We protested, questioned and probed. I stated: “Abortion, like slavery, is a fundamental issue. Those who do not recognize this should be disqualified from the federal bench.” Senator Metzenbaum responded, “We must distinguish between a single issue and a disqualifying issue.” I said, “I would suggest that the killing of one-and-half million unborn babies every year is a once-in-a-century disqualifying issue.”
Pressure from Reagan was intense. She was confirmed unanimously. Afterward I stated, “We continue to believe President Reagan made a grave mistake in choosing a nominee whose stands on abortion are so dubious, but the fact that she was the first woman nominated to the court made her confirmation inevitable.”
Epilogue:
On July 1, 2005, after 24 years, Justice O’Connor resigned from the Court. During Reagan’s terms, she basically voted pro-life. After his departure, she voted for abortion. In Casey in 1992, she reaffirmed the constitutionality of Roe v Wade. She later upheld the legality of killing babies during delivery (Partial-Birth Abortion).
President Reagan did an incredible amount of good in foreign affairs and the economy. He was personally pro-life, but his record was flawed by his biggest mistake, appointing Sandra Day O’Connor to the highest court in the land.
Evan Thomas’ new book on Sandra O’Connor has brought her name back into the news. O’Connor and Anthony Kennedy were two of Reagan’s most horrible mistakes. I do not know why Reagan and those around him were so careless in making these nominations to the Supreme Court especially when Reagan realized how important it was to change the Court.