December 2, 2023 at 12:55 p.m. EST
Granted, the pickings for potential female justices, especially among Republicans, were slim. And as a young woman — on my way to law school that fall — I was glad to see a woman named to the court. But wasn’t there someone more credentialed than an unknown, relatively inexperienced judge from a middle-tier state court?
I’ve been wrong about many things since then, but rarely more spectacularly. I’ve covered 15 Supreme Court nominations — plus several that blew up along the way — and I can now safely say O’Connor wasn’t just the right woman for the job. She was the right justice for that moment, and one whose approach to the law — more infused with common sense than driven by ideology — is sorely missing in this one.
Let’s talk first about the woman thing. “Justice — At Last,” shouted the cover of Time magazine when O’Connor was nominated, and that celebration was woefully overdue. Sometimes, watching the current court, with its four female justices and a woman serving in the role sometimes described as the 10th justice, the solicitor general, I have to pinch myself at the transformation I’ve witnessed.
O’Connor endured a lonely 12-year stretch as the sole woman on the court before she was joined by Ruth Bader Ginsburg. “When there are nine,” Ginsburg liked to say when asked when there would be enough women on the high court. While that outcome is unlikely (indeed, unwise), it’s easier to imagine a majority-female court than the return of one with a token few women.
Yes, studies show female justices are interrupted more during oral argument. Yes, women are still significantly underrepresented among those arguing cases. But consider how times have changed since Chief Justice Warren Burger, walking O’Connor down the Supreme Court steps on the day she was sworn in, gushed, “You’ve never seen me with a better-looking justice.”
O’Connor smiled gamely, and her skill in navigating gender politics on the high court helped smooth the way for her successors. She managed to embrace some traditionally female roles — the cooker of Crock-Pot chili for her law clerks working weekends, the cajoler of her brethren into attending the justices’ weekly lunches — while unapologetically exercising unrivaled power as the court’s swing justice.
If O’Connor felt talked over by the male advocate at her first oral argument — “He is loud and harsh and says he wants to finish what he is saying,” O’Connor wrote in her journal afterward; “I feel ‘put down’” — it didn’t last long. Lawyers became accustomed to unsparing grilling by the justice whose vote they could not afford to lose. “Now, counsel,” O’Connor would interject, in her nasally Arizona twang, almost before they had launched into their argument, zeroing in on the weakest point of their case, and pressing them on the practical implications of their position.
Which brings us to O’Connor’s singular contribution during her 24 years on the court: She elevated common sense and moderation over reflexive adherence to ideology. O’Connor certainly had convictions — about the importance of federalism, for instance, or the separation of church and state — but her method was the antithesis of the wooden application of approaches such as the originalism that so dominates the current conservative majority.
O’Connor was a politician in the best sense of that word, using her experience as an Arizona state legislator both to craft consensus among her colleagues and to take the pulse of a nation whose buy-in, she understood, is essential to maintaining the court’s legitimacy.
Little wonder, then, that as Donald Trump’s advisers set out during the transition to name a replacement for the late Justice Antonin Scalia, incoming White House counsel Donald McGahn issued stern instructions to the vetting team: “There can never be another Sandra Day O’Connor.” No judges without significant paper trails, McGahn meant, as I reported in my book, “Supreme Ambition.” No politicians inclined to compromise. No mushy moderates. Only true believers.
Indeed, the conservative majority’s project in recent years has been nothing less than undoing the legacy of O’Connor and fellow GOP nominees Anthony M. Kennedy and David Souter — even as O’Connor, in her retirement, worked to bring civics education and a dedication to civility to a country desperately, and increasingly, in need of both.
Her legacy, on and off the bench, stands as a sharp rebuke to ideology and a testament to pragmatism. McGahn’s edict is precisely the opposite of what the court and the country needs: More O’Connors, please, not fewer. She was an inspiration to women, certainly, but also a model for all Americans, and for a court that has veered dangerously far from her example.