RIP Sandra Day O'Connor - Legal Ethics Roundup Bonus Content No. 7 (12.2.23)
Remembering the first female Supreme Court justice through previously unpublished materials from the Reagan archives
Welcome to your seventh installment of Bonus Content from the Legal Ethics Roundup. In addition to the (FREE!) weekly roundup every Monday morning, I regularly post bonus content for paid subscribers. However, for this bonus post, which is a tribute to an icon who opened professional life to generations of women, I removed the paywall. Please share it widely with others.
In this installment, we remember the life of Sandra Day O’Connor, our nation’s first woman to sit on the United States Supreme Court. Born on March 26, 1930, she passed away yesterday on December 1, 2023. She served on the Court from 1981 to 2006.
There will be many articles written to honor her life over the coming days, so I want to offer a perspective you won’t find anywhere else.
Let’s look back at the papers in President Ronald Reagan’s archives from the time when he considered her appointment. I discovered this material while conducting research for my book Shortlisted: Women in the Shadows of the Supreme Court. Most of what follows is previously unpublished, what was left on the “cutting room floor” when completing the Shortlisted manuscript.
Before I take you on a tour of images from the Reagan archives, let’s begin with a bit of history about O’Connor you might not know. As we wrote in Shortlisted:
Long before O’Connor’s confirmation to the Court, she clipped newspaper articles speculating about the possibility of a woman holding a seat. Did she imagine it might be her? She even wrote to President Richard Nixon and “urged him to put a woman on the Court.” Instead, he gave the spot to her law school boyfriend—and near fiancé— William Rehnquist. O’Connor graduated from Stanford Law School the same year as Justice Rehnquist in 1952. Both called Arizona home and once reunited on the Court they were often referred to as the ‘Arizona Twins.’ Clearly as qualified as Rehnquist for the Court, her appointment came a decade after his. Like other women of her time graduating at the top of their law school class, O’Connor struggled to find an employer wiling to hire a woman lawyer. She declined a secretarial position and found her first legal work only by agreeing to work for free as a deputy county attorney in the San Mateo County Attorney’s Office.
O’Connor spent only six years on the bench before Reagan plucked her off his shortlist, first as an elected judge on the Maricopa Superior Court from 1975-1979 and then on the Arizona Court of Appeals for just two years. Prior to her judicial service, she spent time in legislative branch of government, serving in the Arizona State Senate beginning in 1969 when she was appointed to fill a vacancy. She then ran for re-election for two additional terms and was the nation’s first female majority leader in a state legislature. When she graduated law school, O’Connor got a job working for county counsel in San Mateo while her husband John was finishing his degree. After that, he went into the army and the couple subsequently moved to Germany for a time; there, she worked as a civilian lawyer. After returning to the U.S. and moving to Arizona, she stayed home with her children for a time, and then spent several years in private practice and as an Assistant Attorney General. After the birth of her children she reduced her law practice to part-time for four years, allowing her to devote time to their care as well as other civic activities. The attorney general noted that she was the only person who would do a full-time job for half-time pay.
When Justice Potter Stewart announced his retirement from the Court on June 18, 1981, letters and telegrams started pouring in with recommendations for President Reagan to consider as his nominee. Many were eager to see Reagan deliver on his campaign promise to put a woman on the Court. (For more on that, see my op-ed in The Hill.) Reagan’s archives are packed with files of correspondence filled with recommendations. One of the first letters came from the National Women’s Political Caucus.
The not-so-short shortlist of potential nominees found in Fred Fielding’s files begins with a paragraph on judicial selection criteria and then lists more than a dozen names. (Fielding was Reagan’s White House Counsel.)
Interestingly, the memorandum contains handwritten notes in the margins about the candidates, reflecting those presumably knocked out due to age, like Susie Sharp, the first female justice on the North Carolina Supreme Court and the first female elected chief justice on any state high court. O’Connor at 51 got a checkmark, which apparently was a positive sign. (Robert Bork also got a checkmark; his own nomination would later implode, creating a new word for when a nominee is publicly vilified—being “borked.”)
Reagan announced his nominee on July 7, 1981.
I was 8 years old, and I remember the excitement and intrigue I felt when I saw O’Connor’s image on the cover of Time Magazine that July.
Every member of the US House of Representatives signed a letter supporting her nomination, which displays vividly the enthusiasm of the moment. (Pat Schroeder, the first female representative from Colorado, even included a smiley face in her signature! You’ll find it on the first page, middle column, second from the bottom.)
The public response was mixed, with strong opinions both favorable and against the announcement. Here are a few examples of the hundreds of telegrams and letters I uncovered in my research.
It fell to staffer Anne Higgins to tally up the messages of support and opposition, as seen in the memorandum below. (Fortunately Reagan did not follow the majority from that informal poll!)
But the newspaper opinion pages were widely favorable. Several op-eds were collected by Reagan’s staff and preserved in his files.
President Reagan sent the official nomination to the Senate on August 19, 1981.
Confirmation hearings were held in September, the first ever to be televised. You can watch video clips here.
On September 21, the Senate voted unanimously 99-0 in favor of O’Connor. She was sworn in by Chief Justice Warren Burger on September 25.
As for her time on the Supreme Court, I will leave that to other commentators and reporters to recount. Here are a few wonderful tributes published soon after the news of her death broke:
From NYT reporter Linda Greenhouse: Sandra Day O’Connor, First Woman on the Supreme Court, Is Dead at 93
From NYT reporter Adam Liptak: Justice O’Connor’s Judicial Legacy Was Undermined by Court’s Rightward Shift
From The 19th reporters Candice Norwood and Terri Rupar: Sandra Day O’Connor, first woman Supreme Court justice, dies at 93
From NPR reporter Nina Totenberg: The personal Sandra Day O'Connor: A backstage force and front stage star
O’Connor announced her retirement in a letter to President George Bush on July 1, 2005.
Again, from Shortlisted:
O’Connor left the Court in 2006 so that she would have the time to care for her husband who was suffering from Alzheimer’s disease. In her retirement, she also dedicated much of her time and passion to civic education. O’Connor was routinely asked about any regrets she had from her time on the Court. She sidestepped making any conclusory remarks on this subject until an interview with the Chicago Tribune in which she spoke about casting the deciding vote in Bush v. Gore, the case that stopped the recounting of ballots in Florida that effectively gave the presidency to George W. Bush in 2000. O’Connor suggested in that interview that the Court should not have taken on that case after all, due to the damage it caused to the country. She also expressed regret for retiring early, as her husband’s health faded rapidly and he passed away in 2009.
On October 23, 2018, O’Connor announced, in letter released to the public from her family, that she was withdrawing from public life due to her own diagnosis of dementia.
The passing of Justice Sandra Day O’Connor marks a defining milestone in our nation’s history at a time where women’s rights are increasingly under threat. She said, about being the first woman on the Supreme Court, she did not want to be the last. Thanks to her extraordinary example and legacy as the first, countless women have been selected for positions of leadership and power not just in the legal profession but across all sectors.
One last note before I close this post. There is a high school in San Antonio named after Sandra Day O’Connor. I’ve often wondered whether attending the school bearing the name of the nation’s first female Supreme Court justice inspires the graduates’ career paths. (Some of those students also attend Wallace B. Jefferson Middle School, named after my husband who was the first African American justice and chief justice on the Supreme Court of Texas. Wallace successfully argued two cases before Justice O’Connor before he became a justice himself, and she authored the majority opinions in both.) One thing I know for sure is that we must keep teaching future generations about her legacy and we have an obligation to make sure the judiciary continues to progress toward more fully reflecting the public it serves.
“I wanted, since I was the first, not to be the last. And I wanted to do the job well, so it would provide encouragement for women to serve in the future.” — Sandra Day O’Connor
I'll be back Monday with another Legal Ethics Roundup. Be sure to subscribe so you won’t miss it. Until then, thank you for reading and reflecting upon the memory of Sandra Day O’Connor.