Sisters in Law (16 page)

As she looked longingly across the bench, she had one more case to argue,
Duren v. Missouri
, a follow-up to the attack on eliminating women from juries, this time by allowing them to request an automatic exemption. She won handily (8–1) in light of the big jury cases from earlier in her campaign. On May 31, 1979, she wrote to Stephen Wiesenfeld that if the forces for women's equality won one last case,
Califano v. Westcott
, she would be “satisfied
that we have reached the end of the road, successfully, on explicit sex lines in the law.”
Westcott
, which was not her case, challenged the distinction in welfare law between families with unemployed fathers, who got welfare, and families with unemployed mothers, who did not. Not surprisingly, when confronted with such a raw distinction in the law, after all Ginsburg's spadework, the Court struck the welfare law down. In her own words, she was at “the end of the road.”

A LONG JOURNEY

Marty kept working the phones. One day toward the very end of Carter's one term, as more judgeships started opening up, Marilyn Haft, then counsel to Vice President Walter Mondale, looked up from her desk to see Martin Ginsburg, a friend of Haft's ex-husband, standing in her office. The new judges bill had produced a vacancy on the prestigious federal Court of Appeals for the D.C. Circuit, and, although the family would have to move away from New York, he was lobbying the people in the White House to consider Ruth for the next opening. Haft had been at the ACLU at the same time as Ruth, so she was all for it and did everything she could to make it happen.

Despite the existence of Citizens Commissions and Pipeline Projects, federal judgeships ultimately come down to a small group of informal White House decision makers. In December 1979, the presidential assistant Sarah Weddington, of
Roe v. Wade
fame, Attorney General Benjamin Civiletti, and the congressional liaison Frank Moore were looking at the lists of candidates. Weddington was lobbying hard for Ginsburg, whom she had known for almost a decade through their mutual interest in women's rights. Civiletti was unenthusiastic. Finally, in a bald exercise of log-rolling, Weddington traded her support for two of the attorney general's male candidates in exchange for his vote for Ginsburg. But Weddington was not so certain that Civiletti would stay true to the deal, so she went directly to Carter—her office was just above his in the White House—after the meeting. “I never leak,” she reminded him, “but
this time I need to leak this appointment before anyone changes his mind.” Then she called Ginsburg to tell her the news. Two days later,
The Washington Post
ran a scoop: “Feminist Picked for U.S. Court of Appeals Here.” “Informed sources,” the
Post
reports, revealed the selection.

Ruth Ginsburg was still very jumpy. Her nomination had been prematurely leaked, she groused, and she had a long, anxious wait. Carter's people took a long time to send her name to the Senate. Then the Senate Judiciary Committee took a really long time even setting a hearing. “People at the right end of the political spectrum” were going to “attempt to paint [her] as a wild-eyed radical,” she feared. Learning that a feminist colleague, Lynn Hecht Schafran from the NOW Legal Defense Fund, had talked about her campaign against men meeting to do their business at all-male clubs, the nominee wrote to caution her friend. “In the future be very careful about anything that might be attributed to me. Things are not going as well as they might,” she fretted, “and I must be super cautious about defusing charges against me on the ground of my ‘militant feminism.'” Time was slipping by, and a presidential election loomed in November.

Who should ride to the rescue but Martin Ginsburg's well-connected law partner Ira Millstein. Fortuitously, Millstein “had some prior dealings” with the ranking minority member of the Senate Judiciary Committee, the Republican Orrin Hatch. So the well-connected lawyer organized a little lunch for the conservative Mormon Utah senator and the head of the ACLU Women's Rights Project, who was hoping to ascend to the bench. Millstein urged the senator to hear her out and make up his own mind about her being an ideologue, biased and unsuited for broader judicial responsibilities. He says he doesn't remember what she said at lunch. But whatever she said to Senator Hatch that day, after the lunch the “opposition seemed to have melted away.” Nobody, as Nina Totenberg reminds us, performs as well under pressure as the small but steely Ruth Bader Ginsburg.

Martin Ginsburg sold all the stocks in his investment portfolio so Ruth would not have to recuse herself from cases involving his
companies, and the family moved to an apartment in the luxury Watergate condominium.

On June 30, 1980, Ruth Bader Ginsburg put on her judicial robes. Her days of imploring the courts were over. Now she would be doing the deciding.

© Bettmann/CORBIS

Sandra Day O'Connor with Chief Justice Warren Burger immediately before she was sworn in as the first female Supreme Court justice, September
25, 1981
.

WHAT COULD SHE HAVE BEEN THINKING

In 1971, just as people were beginning the push that would ultimately put her and Ruth Bader Ginsburg on the bench, State Senator Sandra Day O'Connor wrote to President Richard Nixon to suggest he use the vacancy that had just come up to place a female on the Supreme Court. Your other choices have been just wonderful, she begins flatteringly. Now it would be a great time to add a woman.

He did not. Instead, President Nixon's selection, O'Connor's Stanford classmate and Phoenix friend William Rehnquist, was the furthest thing from the candidate she had suggested. First and foremost, Rehnquist was at the cutting edge of the conservative legal campaign to roll back the civil rights movement at its racial foundation. This campaign had devastating implications for the women's movement, because the movement for women's legal equality had always rested on the foundation laid by the racial civil rights movement. That's what President Clinton meant when he called Ruth Bader Ginsburg the “Thurgood Marshall of the Women's Movement” at her nomination in 1993. Without the expansive interpretation of the Fourteenth Amendment that started with the racial movement, none of the other equality movements could have gotten off the ground.

During his confirmation battle, Rehnquist was found to be the author of a memorandum to Justice Jackson, for whom he had clerked in 1952, outlining why Jackson should vote against school desegregation in
Brown
. “I realize,” Rehnquist admitted, “that it is an unpopular and unhumanitarian position, for which I have
been excoriated by ‘liberal' colleagyes [
sic
], but I think Plessy v. Ferguson [the 1877 decision approving racial segregation in the South] was right and should be re-affirmed.” (Ignoring the advice, Jackson joined the unanimous decision ordering desegregation.) When Rehnquist, along with his law school friends Sandra and John O'Connor, settled in Phoenix after his clerkship, he continued his opposition to racial civil rights. As the city of Phoenix contemplated passing a civil rights ordinance in 1964, Rehnquist, then a lawyer in private practice, testified at the hearings. He had no client in the matter, he told the city council. But he wanted the legislators to know that a law forbidding merchants from discriminating on the grounds of race sacrificed shopkeepers' rights in order to protect the rights of racial minorities. In such cases, Rehnquist held, property rights mattered more than racial justice.

Despite Rehnquist's substantive opposition to every aspect of the women's legal movement, Sandra O'Connor flung herself into the campaign for his appointment. Her passionate advocacy of Rehnquist's confirmation for a seat she had proposed for a woman neatly presents the question of how serious a feminist she was.

At first glance, it might seem that she was just like the many conservative women activists who surfaced as the Republican Party definitively broke with the feminist movement in the '70s. The anti-ERA activist Phyllis Schlafly was an early example of the type. Outstanding women, they preached, would do just fine without any change in the law. They did not need the Equal Rights Amendment, which would hurt their more traditional sisters. Certainly they did not need anything like access to abortion, with all its moral hazard. O'Connor followed in the Schlafly mode when she busily volunteered her services, living off the income of her lawyer husband, to endear herself to the Republican establishment and then asked her party to appoint her to the overwhelmingly male legislature. She sounded a lot like Schlafly when she boasted that once any discriminatory all-male institution let her in the door, she never had another moment's difficulty. If O'Connor were a Phyllis Schlafly type, her advocacy of Rehnquist would not be puzzling at all.

But even as early in her career as 1971, her request that Nixon appoint a woman is somewhat at odds with conservative feminism. The long-standing practice of discrimination in the legal profession meant that, in 1971, there was no woman competitive with the male candidates for a Supreme Court appointment by any neutral standard, especially compared to someone with the credentials of a William Rehnquist. And, endearingly, O'Connor knew it. Later, long after President Reagan's political strategy motivated him to appoint her in 1981, she defended affirmative action to her conservative colleague Antonin Scalia. Interrupting his diatribe against it at conference in an affirmative action case, she asked, “Why, Nino, how do you think I got here?”

Moreover, immediately after she went to bat for Rehnquist she actively pursued women's equality through legal change on all fronts. Like Ginsburg, she recognized that women could use the law to pry open realms of life foreclosed to them by historical practices of exclusion. She did not just think they should volunteer for the Republican Party and then ask for favors. So her advocacy of a man whose efforts would undermine that progress remains a puzzle.

Another possible explanation is that despite her recognition of the value of law as an instrument for women's advancement, she might have decided that the conservative agenda she shared with her good friend—favoring the states over the federal government and business over government at any level—was more important than her concerns for women. Certainly, once she got to the Court, she voted with Rehnquist on federalism and regulatory issues almost all the time.

Or she may have felt that Rehnquist—by all accounts a great friend and a fair-minded individual in his private dealings—was suitable to serve on an important institution like the Court. His character and administrative capability made him “attractive” in her eyes, a highly personal evaluation she used throughout her life.

High-minded governance—merit selection of judges, civic education—was a consistent theme for her. When O'Connor came of political age in Arizona in the 1950s and '60s, decades of
one-party rule by the Democratic Party had produced a corrupt and factionalized pattern of governance by rulers fearful of economic change. If Arizona was the state of the three C's (Copper, Cotton, and Citrus), people used to say, lobbyists ran the Democratic legislature with the three B's—Booze, Beefsteaks, and Blondes. The newly arrived Republican migrants from places like Kansas quickly captured the language of political rectitude, portraying themselves as the energetic reform-minded proponents of useful economic growth. Just before Rehnquist was nominated, O'Connor played a lead role in getting the legislature redistricted to favor Republicans. (When Dems squawked, Gene Pulliam's
Arizona Republic
editorialized that any self-respecting political party would do the same.) There is no evidence that, despite her disagreement with the Republican Party on women's issues, she ever stopped thinking of the Republicans as the better governors.

She opened her drive for Rehnquist with an unsolicited letter to the chairman of the Senate Judiciary Committee offering to testify for her friend. Days after the nomination, she was making speeches on the floor of the Senate and to the socially powerful Phoenix Kiwanis about Rehnquist's merits. Her efforts were in keeping with her lifelong political strategy to know a lot of people and work the people you know. A relatively obscure state legislator, she had uncharacteristically easy access to the confirmation process. Rehnquist's and O'Connor's mutual friend the former Arizonan Richard Kleindienst, then an assistant attorney general, was responsible for Rehnquist's selection. She made a list of all the people she thought could help and gave them their “assignments,” mostly to contact the people
they
knew. Being a board member of a big Arizona bank, she recruited its president, Sherman Hazeltine, to work the bank presidents' network around the country to contact their senators. It was a great idea: bank presidents know a lot of senators, and she collected scores of letters from the local bankers to their representatives in Congress. She printed up the roster of Stanford classmates and pursued the ones she knew would be supportive and willing to reach their representatives. The O'Connors' household was soon covered with paperwork.

The Rehnquist forces thought the two U.S. senators from
Arizona were sufficient for witness purposes and turned down O'Connor's offer to testify. They did, however, use her heavily to defend against the charges that Rehnquist, in his role as Republican poll watcher, had harassed black voters by asking them to demonstrate their literacy. Apparently anxious that the charges not catch fire, Kleindienst sent O'Connor on research missions for exculpatory material. In November 1971, in the middle of the debate over his nomination, Rehnquist himself sent her a memo recalling a legal opinion from the Arizona attorney general forbidding poll watchers from demanding literacy. Could she find the opinion? It would bolster his defense that he didn't do any such thing. His pal on the scene duly produced the opinion.

When her researches turned up damaging documents, such as a legal article filled with incendiary rhetoric that the nominee had written for a local rag, she recommended to Rehnquist that the article “not come out.” Rehnquist had called the highest court of the United States a “bleeding heart” in criminal procedure, and quoted with admiration an old Supreme Court opinion: “there should be no appeal permitted in a criminal case; if the jury said a man was to be hanged, he was hanged.” The article, O'Connor reassured him, had not come out so far. It emerged only after Rehnquist was long confirmed.

As the confirmation process wound down, Rehnquist wrote her and John a note of warm thanks for all their efforts. She wrote to each of the people who had helped campaign for his confirmation. The investiture, which they attended, was “an emotional moment” for her, “in view of the significance which it holds for the future of the Court,” which would now have a member who had opposed desegregation. His appointment was certainly significant in one arena: for the next nine years, as the ACLU's Ginsburg appeared before the Supreme Court to establish the foundation of legal equality for women, Rehnquist almost without exception voted no.

KEEPING HOUSE AND KEEPING STATE HOUSE

A few months later, the regional office of the Committee to Re-Elect the President began pressing the Arizona campaign chair,
Sam Mardian, to recruit a woman to help head up Nixon's 1972 election effort. Even if the president wasn't going to integrate the Court, the politicos at least felt that the reelection operation shouldn't be 100 percent male. The energetic and resourceful O'Connor was a natural. In her efforts to help reelect President Nixon, she visited the local offices, organized events, encouraged the Young Republicans at Arizona State University, coordinated polling between local and national campaigns. One of her proud accomplishments was the establishment of identity groups within the campaign, such as blacks, Spanish-speakers, and the elderly. There were thirteen in all. Despite her concern with equalizing the Arizona laws applied to women, women did not appear on the political list of interest groups in the Republican campaign. After the election, her lively and competent campaign performance elicited the predictable inquiry about her availability to join the administration, but she declined. Her family was ensconced in Phoenix, John in practice, the boys in school, she said.

In the Arizona world where she elected to remain, the 1972 election returned the Republicans to power in the statehouse, and Senator O'Connor promptly unseated the Republican majority leader. For the next two years, she would be at the center of power in the local legislature. She was keenly aware that she “was in a position of power. I got the things I wanted enacted.” She describes her years in the legislature as a time of bipartisan cooperation for the good of the people, and her record does include advancing laws both liberal and conservative. She took the Republican line on gun control, the death penalty, and school busing, but she swung the other way on environmental issues and bilingual education. She even tried for a middle-of-the-road approach to welfare.

And she made real efforts on women's equality. This was not as independent of party as it now looks. Although Justice Rehnquist's record was a leading indicator, Republicans did not bail on women's equality all at once. Only in 1980 did the party formally revoke support of the Equal Rights Amendment in its platform. Throughout the '70s, nonpartisan “law reform” movements out of professional institutions such as the Commissioners on Uniform
State Laws were recommending nondiscriminatory schemes in areas like family law, where ancient divisions survived. In 1973, O'Connor was able to lead a bipartisan effort to repeal the web of Arizona laws that discriminated against women. She was visibly behind the revision of Arizona's community property law to allow women rights of management over marital property and to remove male-only language that sometimes carried a real sting, for instance, that only fathers could sue for the death or injury of a child.

Despite her mixed ideological record, her most robust initiative was a core conservative agenda item: putting a cap on taxes. She started, in 1973, by convening a meeting of prominent citizens. By the next year, she had submitted a proposal for a referendum to amend the state constitution to limit state expenditures to a fixed percentage of the total personal income of the state. O'Connor pulled out all the stops to get the measure passed. She wrote to the party icon Senator Barry Goldwater, asking him to contact recalcitrant House members, Republican and Democratic, to pass the measure out. “It is my belief that placing this measure on the ballot for November [1974] elections would be a boost to the Republican cause in November,” she implored Goldwater, and “passage of it in Arizona would pave the way for similar action in other states.” Two days later, Senator Goldwater, who usually avoided state legislative battles, responded by sending a telegram to Arizona House Majority Leader Burton Barr. O'Connor's measure even came to the attention of Governor Ronald Reagan, who saluted her at a meeting of the Arizona Republican Party's Trunk 'n' Tusk Club. It was probably the first time Reagan had ever heard of her.