Sisters in Law (17 page)

The tax limitation movement was of a piece with the revival of conservative politics in general. Analysts widely credit the passage of tax-cutting Proposition 13 in California in 1978 with giving a major boost to Ronald Reagan's stature as a presidential contender. So in making her big legislative initiative out of an effort to limit taxes, O'Connor was aligning herself with the most conservative developments on the national scene. Barr, then majority leader of
the Republican State House of Representatives, says of his relentlessly hardworking colleague, “With Sandra O'Connor, there ain't no Miller Time.”

QUITTING AGAIN

But O'Connor would not be on the ballot with the measure she had worked so hard to pass. Several months before the election of 1974, Majority Leader O'Connor announced she would not run for reelection, once more turning her back on the career she had laboriously built. It wasn't that her babysitter quit, which had preceded her previous retirement from the world of work. This time she quit, she says, because she thought people shouldn't stay in the legislature too long. They get a big head. Or maybe she was just fed up. Just before she announced her resignation, she snapped at one of her colleagues, who had said, “If you were a man, I'd punch you in the mouth.” “If you were a man,” O'Connor uncharacteristically responded, “you could.” Years later when asked about her time in the mostly male Arizona statehouse, she sighed, “I was never one of the boys.” The tax limitation referendum failed to pass.

And once again she resigned without a plan for her future. But luck was with her this time. A month after she ended her stay in the legislature, a state judgeship became available. Under Arizona's system of electing judges, first she had to win the Republican primary. It seems an odd comedown for the powerful legislative leader, but after a hard election battle she found herself in the basement of the courthouse presiding over ordinary criminal trials. By all accounts she very much enjoyed her obscure position, with its exposure to a range of human emotions and experiences. Despite their modest positions, the sixty or so members of the Arizona judiciary managed to make a good time for themselves. O'Connor reunited with Paul Rosenblatt, her old colleague from the AG's office, now himself a state trial judge, at various judicial conferences. There was always a big dinner, and Mary Fran Ogg, one of the judges' wives, led long evenings of drink and song
around the piano. Rosenblatt disagreed with Burton Barr's quip about it never being Miller Time with his hardworking colleague in the legislature. Barr wouldn't think that, Rosenblatt says, if he had seen O'Connor singing around the piano at “Ogg/judicial Miller Time.”

As O'Connor embraced and then retreated from real political power, other, similarly situated Republican women, who had also married “wealthily,” were making a flank attack on the world of politics, straddling the divide between women's claims and the party's increasing conservatism. The most brilliant success was Anne Armstrong, born into money even before she married the Texas rancher Tobin Armstrong. The Armstrongs had essentially revived the Republican Party in Texas, which had been a Democratic stronghold since the Civil War. The gonzo fund-raiser and organizer Armstrong did not run for office, but, rather, followed the traditional fund-raiser's route to the Republican National Committee. She was the first female co-chair of the committee in history and then went on to become an advisor to Richard Nixon. This made her the go-to girl for female candidates for high office. In 1972, when the southwest regional campaign director wanted to recommend O'Connor for such a position, it was Armstrong he asked. One week before Nixon resigned in 1974, Armstrong suggested Patricia Lindh, wife of the oil executive Robert Lindh, to be White House special assistant for women.

In the palmy days of establishment Republican support for women's causes like the ERA, Armstrong and Lindh moved smoothly into position under Nixon's successor Gerald Ford. The women worked on women's interest in matters such as credit discrimination and education. As the ERA faded from favor, it was the women candidates who commanded their attention. Unlike Ginsburg the litigator and O'Connor the legislator, when it came
to women's issues, Lindh described her undertaking as “nagging a lot.” On the rare occasions when the White House personnel office asked, she “inundated them with women.”

One woman on Pat Lindh's list was the Maricopa County trial judge Sandra Day O'Connor. Lindh suggested Gerald Ford consider her to replace Supreme Court justice William O. Douglas in 1975. Proposing a lowly state trial judge for the Supreme Court is not as crazy as it sounds. There simply were almost no women on the bench at all in 1975, so Lindh's list included low-ranking judges from the local D.C. trial court and a Florida state trial judge in a position like O'Connor's. (That year also marks the first appearance of Ginsburg's name on a list, predictably, from the National Women's Political Caucus; she was certainly not an obvious contender for the attention of a Republican White House.) It all came to naught when Ford appointed the federal appeals court judge John Paul Stevens to take Douglas's place.

As usual with her, O'Connor would rise along a much less traditional path than the women's advocates in Washington could dream of. And once again, her connections played a role. To her everlasting good fortune, in 1979, her pal the teetotal Mormon—and former Phoenix mayor—John Driggs wanted to spice up his social life. “We go to all these other people's cocktail parties and dinners,” John said to his wife, Gail, “and we can't do the same.” Searching for a way to make a party special without violating the tenets of their religion with alcohol, John asked his wife, “Who do we know that's important that might come in and give a speech and that would be our twist at the party?” “Well,” she said, “what about Mark Cannon?” Cannon, a distant relative, was the administrative assistant to the chief justice of the United States, Warren Burger.

Driggs immediately picked up the phone. “Hey, Mark,” he asked, “any chance that you're going to be in Arizona?”

“Well, as a matter of fact, in August,” Cannon replied, “the chief and I are going to Flagstaff for a meeting.”

Flagstaff, three hours north of Phoenix, is a couple of hours south of the Grand Canyon area, including the gorgeous Lake
Powell, created by a dam on the Colorado River. For years a favorite summer pastime of Arizonans was to rent houseboats and motor around the lake, swimming in its crystalline waters and admiring the stunning scenery. The Driggses had just gone to Lake Powell with a neighbor the year before and they were totally enamored with the experience. Without missing a beat, John Driggs asked Cannon whether the chief justice had ever been on Lake Powell. Cannon thought not. “What if,” Driggs inquired, “we tried to put a trip together after your conference?” A month later, the chief justice accepted the houseboat invitation. Driggs arranged to bring the Driggs kids, and the houseboat owner's son offered to pilot them for a chance to meet the Big Chief.

Then Driggs had another problem: What to do to entertain the chief justice of the United States for three days? Gail and John Driggs weren't even lawyers! They'd better expand the party, John decided. Reviewing the list of their acquaintances, John said, “Let's just invite the O'Connors.” Even though Sandra was marooned in the humblest courtroom in Phoenix, John and Gail just felt totally comfortable with their good friends, and they knew the O'Connors were lively company. So John Driggs called his pal John O'Connor at his law firm and asked him if he'd like to help host Chief Justice Warren Burger of the Supreme Court after his conference in Flagstaff. “Would we ever!” John O'Connor replied.

A few months later, the chief justice walked onto the deck of a houseboat in northern Arizona. “Call me Chief,” he said in his trademark humble way. The little party swam, they explored the canyons, they ate the wonderful meals the Driggses and O'Connors had painstakingly planned. At the table, the chief justice took the opportunity to share with the assembled families his personal history, his interest in American history, and any other matters they cared to discuss. Indeed, if anyone asked Burger a question away from the assembled seven or eight passengers, he would always defer the answer until he had everyone's full attention.

Several times the guests lingering over the table after dinner would notice that the chief—and Superior Court Judge Sandra Day O'Connor—had vanished. When John Driggs went looking
he found the two of them sitting in a remote corner of the upper deck, chatting away like old friends. On several occasions, they spent until the wee hours of the morning talking. No one knows what they said. Gail Driggs speculates they were discussing stories from history.

“Wouldn't it be great,” Gail said to her husband as they drove back to Phoenix after the vacation, “if someday Sandra went on the Court?”

“Don't be silly,” he replied. “Never happen.”

Six months later, Governor Bruce Babbitt elevated O'Connor out of the basement and onto the intermediate state court, the Arizona Court of Appeals. The woman she replaced, Judge Mary Schroeder, the first woman partner in a major Phoenix law firm, had just been appointed to the Federal Court of Appeals for the Ninth Circuit by President Carter. Schroeder was the beneficiary of the same lobbying and organizing that put Ginsburg on the D.C. Circuit, and she was the Arizona Democrats' candidate for the pathbreaking Supreme Court slot, should the opportunity arise. At the time, O'Connor's appointment to replace her on the Arizona court just looked like insurance to Governor Babbitt, who was planning a run for reelection and did not want the popular female ex-legislator O'Connor as his Republican opponent. But he wasn't the only one with his eye on the compelling Sandra Day O'Connor. When the Driggses reached O'Connor in the receiving line at her investiture ceremony as an appellate judge, she drew John Driggs aside. “Guess what!” she whispered. “The chief just invited me to go to London with an American delegation to a legal conference.”

Whatever the occasion, she always rose to the occasion. Bill Bryson, who went on to become a judge on the U.S. Court of Appeals for the Federal Circuit, was then a low-level employee in the Justice Department and, coincidentally, the boyfriend of Justice Powell's former clerk Penny Clark. He was also one of the staffers to the delegation Burger assembled. When he returned from London he reported to Penny that there was this amazing woman on this trip, who had added so much to the discussions with her
perspective as a legislator. What a brilliant person, and most of all, unlike other notables on the trip, this stranger from Arizona was “kind and considerate to the staff who were making their trip comfortable and took note of the efforts the people who were organizing all of these things were making.”

FWOTSC
HAS A THOUSAND FATHERS

By 1980 the bipartisan consensus on women—that the laws should not discriminate on grounds of sex and that qualified women should be allowed to compete for jobs at every level—had seriously unraveled. There was no more room for good-government Republicans to agree to disagree on matters such as the Equal Rights Amendment while well-heeled women such as Anne Armstrong and Pat Lindh “nagged” long-suffering men in the White House for a token appointment here and there. At its 1980 convention, the Republican Party, firmly in the hands of the conservative wing, and about to nominate Ronald Reagan, repudiated its support for the Equal Rights Amendment and allied itself publicly with the opponents of women's abortion rights. Polling revealed that women were starting to peel off from the Grand Old Party. Four years later, the gender gap, wherein women disproportionately support the Democratic candidate and men the Republican, would emerge as a constant in American politics.

There are more women, and they vote in higher numbers. Once in a while the candidates' insecurity in face of the electoral process yields social change. One such moment was 1980. Disabled by his party's conservative turn, Reagan could only offer female voters a symbol. Urged on by his somewhat liberal campaign advisor Stuart Spencer, Reagan announced that if elected he would fill the next Supreme Court vacancy with a woman. Almost immediately after he took office, Justice Potter Stewart decided it was time to step down.

Many men have claim to the role of godfather to the future Justice O'Connor. After Reagan won, her houseboat pal Warren Burger invited White House counsel Fred Fielding for lunch to
tout her candidacy. O'Connor's biographer Ann McFeatters asserts that her relationship with William Rehnquist was crucial in getting her on the list. Others cite the long and warm partnership with Barry Goldwater. As luck would have it just as her candidacy heated up, O'Connor did the honors at Goldwater's nephew's wedding. She delivered a paean to family values, which Goldwater later used to defend her against attacks from right-to-life activists in Arizona. But in all of this historical inquiry almost no one focuses on the obvious Godfather—Reagan himself. Before he died, Attorney General William French Smith, who was undoubtedly at the center of any Supreme Court nomination process, told an aide that in 1980 Reagan had given him a short list with O'Connor's name written on it in Reagan's own hand. Knowing now that Reagan had noticed her as early as 1974 for her tax-ceiling efforts in Arizona makes this explanation a lot more convincing. The White House decided to send a scouting party to O'Connor's Edenic home in Paradise Valley.

She might have been the only woman at the time who could have pulled it off. Despite Republican feminism's promising beginning as a ladylike request for simple justice, by 1980 the feminist movement was pretty distant from the Republican Party and vice versa. Richard Nixon had vetoed the only serious effort to provide public funds for child care, Republicans provided most of the votes to cut off public Medicaid funding for abortions, and the convention that nominated Ronald Reagan also withdrew party support for the ERA.

The kinds of women who broke the entry barriers to law school and were beginning to be discussed as judicial candidates looked a lot more like Ruth Bader Ginsburg than Sandra Day O'Connor. Even the women on most lists Smith gathered for Reagan were Democrats! They understood that being a better cook
and
a better lawyer was still no weapon against a world of discrimination and stereotyping, that the coercive power of the law was going to have to be brought to bear on women's inequality, that publicly funded day care would be a huge help and abortion rights were foundational.

Appellate Judge Sandra Day O'Connor thought women mostly just had to get a foot in the door, so she was a perfect candidate for the role of symbolic Republican appointment. If people only got to know her, she believed, they would recognize her extraordinary talents and her keen social skills. In the small western community that sparsely populated Arizona still was, volunteers as disciplined and talented as Sandra Day O'Connor were rare. That people might persist in sacrificing women's talents in order to keep their universe all male did not seem to occur to her.

When the vetting committee arrived at O'Connor's house, she did the now-familiar bra and wedding ring routine; after discussing the ins and outs of federal/state relations with Kenneth Starr and the White House team, she fixed them a lovely lunch of salmon salad and iced tea. She had everything, Starr reported back: the right age, philosophy, and political support. Besides, replete with salmon salad, he said, “I liked her.” The fact that she'd never heard a federal case—indeed, her docket was heavily filled with the most banal workman's compensation disputes, Mary Schroeder recalls—was of no consequence. Once Reagan met her, he felt the same way. Horses, ranching—their get-acquainted meeting produced a perfect union of two independent spirits from the sun-drenched West. No need to bring anyone else, he told his team. Shortly after meeting her and before the opposition could mobilize, Ronald Reagan acted to nominate her. If she could get through the confirmation process, the next Supreme Court justice would break the glass . . . portico and ascend to the highest court in the land. When Judge Ruth Bader Ginsburg of the D.C. Circuit Court of Appeals got the news on her car radio in Washington, she was glad to hear it, even though she had never heard of the nominee.

O'Connor returned home from her interview with Reagan just in time for her husband's firm's Fourth of July party. “We didn't think she would get it,” John O'Connor's protegée and Sandra's admirer Ruth McGregor says. But when, contrary to their speculation, her nomination was announced, John's firm was all in. The Justice Department sent briefing notebooks, and McGregor
and a handful of John O'Connor's partners spent a weekend at the firm's library going over the material to prepare her for her hearings.