Sisters in Law (42 page)

  
96 air force spouse case: O'Neill is an interesting bit player. When he clerked for William Rehnquist in 1974, he was a veteran of the war in Vietnam and had served time on a Swift Boat there. Decades later, he wrote a hotly controversial book about John Kerry,
Unfit for Command
, and in 2004 he was the mastermind of the Swift Boat Veterans for Truth, widely credited with destabilizing John Kerry's campaign for the presidency by attacking his version of his war record.

  
96
Kahn v. Shevin
: Lewis F. Powell, Jr. Archives, Washington and Lee University School of Law, 001, Wiesenfeld case file, Preliminary Memo.

  
98 “in view of
Kahn
”: Lewis F. Powell, Jr. Archives, Washington and Lee University School of Law, 001, Weinberger case file notes from conference.

  
98
Kahn
should carry the day: Linda Greenhouse,
Becoming Justice Blackmun: Harry Blackmun's Supreme Court Journey
(New York: Times Books, 2005), 217.

  
99 key to the outcome: Strebeigh,
Equal
, Wiesenfeld 75.

  
99 worried letter from Wiesenfeld: Ginsburg to Stephen Wiesenfeld, May 3, 1974.

  
99 tie for Wiesenfeld: Stephen Wiesenfeld, interview with the author, October 14, 2013.

100 “This accords with statutory intent”: Powell's notes on conference, Lewis F. Powell, Jr. Archives, Washington and Lee University School of Law, 001, Wiesenfeld case file.

100 “countervailing interest, protection”:
Weinberger v. Wiesenfeld
, 420 U.S. 636 (1975).

101 “mothers may make this choice”: Ibid., 655.

101 “child of a contributing worker”: Rehnquist concurrence in
Weinberger v. Wiesenfeld
, Ibid.

102 “not thrust upon them ‘willy-nilly'”: Ginsburg Archive, Library of Congress, Box 12, February–March 1973.

102 on this year's docket: Kurland letter, March 1975, from Ginsburg Archive, Library of Congress, Box 16.

102 told Stephen in a phone call: Stephen Wiesenfeld, interview with the author, October 14, 2013.

102 Wiesenfeld's phone rang again: Ibid.

102 Penny Clark remembers: Penny Clark, interview with the author, December 27, 2013.

103 began a lifelong correspondence: Ginsburg, letter to Stephen Wiesenfeld, May 1, 1975.

104 “[
Weinberger v.
]
Wiesenfeld
and
Frontiero
”: Notes on Conference, October 8, 1976, Lewis F. Powell, Jr. Archives, Washington and Lee University School of Law, Goldfarb case.

104 Stevens voted for Ginsburg: John Paul Stevens to William Brennan, October 21, 1976, Lewis F. Powell, Jr. Archives, Washington and Lee University School of Law, Goldfarb case.

104 [in Ginsburg's favor]: Notes on Conference, October 8, 1976, Lewis F. Powell, Jr. Archives, Washington and Lee University School of Law, Goldfarb case.

CHAPTER
8
: FINALE: BOYS AND GIRLS TOGETHER

105 “economic discrimination against women”: Clark Memorandum, October 1, 1974, Lewis F. Powell, Jr. Archives, Washington and Lee University School of Law.

105 held the Utah law unconstitutional:
Stanton v. Stanton
421 U.S. 7 (1975).

106 law was “ridiculous”: Brief for ACLU as Amicus Curiae,
Craig v. Boren
, 429 U.S. 190 (1976) (No. 75-628), 21.

106 thought the case was “silly”: notes on Preliminary Memo, January 9, 1976, Conference, Lewis F. Powell, Jr. Archives, Washington and Lee University School of Law,
Craig v. Boren
file.

106 oral argument at the high court: Fred Gilbert correspondence, Ginsburg Archive, Library of Congress, ACLU file, Box 2.

106 October 5, 1976: Ginsburg to Fred Gilbert, August 13, 1976, Ginsburg Archive, Library of Congress, ACLU File, Box 2. The story about Ginsburg's people arranging the order of argument with the Supreme Court clerk is in Amy Leigh Campbell,
Raising the Bar: Ruth Bader Ginsburg and the ACLU Women's Rights Project
(Bloomington, Ind.: Xlibris, 2004), 162 n. 521, citing bcc of August letter to Jill Hoffman.

107 “achievement of those objectives”:
Craig v. Boren,
429 U.S. 190 (1976),
http://www.law.cornell.edu/supremecourt/text/
429
/
190.

107 Baker noted in a memo: Baker memorandum to Powell, November 2, 1976, Lewis F. Powell, Jr. Archives, Washington and Lee University School of Law,
Craig v. Boren
file.

108 “never have achieved this success”: Ginsburg, letter to Stephen Wiesenfeld, March 2, 1977.

108 death penalty, Anthony Amsterdam: “The Law: Ten Teachers Who Shape the Future,”
Time
, March 14, 1977,
http://content.time.com/time/magazine/article/
0
,
91
71
,
947277
,
00
.html.

108 all-powerful
Harvard Law Review
: Ginsburg, letter to Stephen Wiesenfeld, November 8, 1978.

108 “a rare thing these days,” she thought: Ginsburg, letter to Stephen Wiesenfeld, May 31, 1979.

109 “romantic attachment to her”: Aryeh Neier, interview with the author, July 11, 2013.

109 So they were colleagues: Ginsburg, letter to Stephen Wiesenfeld, August 31, 1979.

109 women's expectations went way up: Nancy Scherer, “Diversifying the Federal Bench: Is Universal Legitimacy for the U.S. Justice System Possible?”
Northwestern University Law Review
105 (2011): 587; see also Scherer, “Why Has the Lower Court Appointment Process Become So Politicized and What We Can Do about It?”
Jurist
(online journal of the University of Pittsburgh Law School), 2004, http://www.jurist.law.pitt.edu/forum/symposium-jc/scherer .php.

109 not a hotbed of diversity: Sally Jane Kenney,
Gender and Justice: Why Women in the Judiciary Really Matter
(New York: Routledge, 2013), 72.

109 list of likely nominees: Ginsburg Archive, Library of Congress, Box 19, Folder Bio 1976.

110 letter-writing campaign: Ginsburg Archive, Library of Congress, Box 18, letters.

110 “complained of each others' snoring”: Ginsburg, letter to Stephen Wiesenfeld, May 31, 1979.

110 Lawrence Walsh: Jon O. Newman, “Probing and Allegations in the Confirmation of Federal Judges,”
Journal of Civil Rights and Economic Development
7 (1991): 15, http://scholarship.law.stjohns.edu/cgi/viewcontent.cgi?article =1520&context=jcred.

111 women lawyers in the country: Susan Ness, “A Sexist Selection Process Keeps Qualified Women off the Bench,”
Washington Post
, March 26, 1978; Susan Ness, “The Bench: Where Are All the Women?”
Los Angeles Times
, April 4, 1979; Susan Ness and Fredrica Wechsler, “Women Judges—Why So Few?”
Graduate Woman
, November/December 10–12, 1979, 46–49.

111 “expectations were unrealistic”: Ginsburg to Spann, Ginsburg Archive, Library of Congress, Box 16, December 1978.

111 deafened herself to ignore: American Trial Lawyers Association speech, Ginsburg Archive, Library of Congress, Box 13, 1977.

111 earlier in her campaign:
Duren v. Missouri
, 439 U.S. 357 (1979).

112 “explicit sex lines in the law”: Ginsburg, letter to Stephen Wiesenfeld, May 31, 1979.

112 standing in her office: Marilyn Haft, interview with the author, June 19, 2013.

113 “anyone changes his mind”: Sarah Weddington, interview with the author, December 5, 2012.

113 “U.S. Court of Appeals Here”: Laura Kiernan, “Feminist Picked for U.S. Court of Appeals Here,”
Washington Post
, December 16, 1979.

113 a long, anxious wait: Ginsburg, letter to Stephen Wiesenfeld, February 15, 1980.

113 even setting a hearing: Lynn Hecht Schafran, letter to the author, October 9, 2014.

113 “ground of my ‘militant feminism'”: Ginsburg to Lynn Hecht Schafran, Ginsburg Archive, Library of Congress, Box 19, Folder Century 1980.

113 law partner Ira Millstein: Ginsburg confirmation hearings, http://www.gpo.gov/fdsys/pkg/GPO-CHRG-GINSBURG/pdf/GPO-CHRG-GINSBURG-4-28-1.pdf.

113 cases involving his companies: Gardiner Harris, “M. D. Ginsburg, 78, Dies, Lawyer and Tax Expert,”
New York Times
, June 27, 2010.

CHAPTER
9
: SANDRA O'CONNOR RAISES ARIZONA

117 great time to add a woman: O'Connor papers, Arizona History and Archive, Box 1:1, letter to President Nixon, October 1, 1971.

117 school desegregation in
Brown
: William H. Rehnquist, “A Random Thought on the Segregation Cases,” 1952,
http://www.gpo.gov/fdsys/pkg/GPO-CHRG-REHNQUIST/pdf/GPO-CHRG-REHNQUIST-
4
-
16
-
6
.pdf.

118 told the city council: O'Connor papers, Arizona History and Archives, 3:9.

119 “how do you think I got here?”: “10 Things You Didn't Know about Antonin Scalia,”
US News and World Report
, October 2, 2007, http://www.usnews.com/news/national/articles/2007/10/02/10-things-you-didnt-know-about-justice-antonin-scalia.

120 Booze, Beefsteaks, and Blondes: David R. Berman,
Arizona Politics and Government
(Lincoln: University of Nebraska Press, 1998), 50.

120 useful economic growth: Ibid., 51–52.

120 redistricted to favor Republicans: Joan Biskupic,
Sandra Day O'Connor: How the First Woman on the Supreme Court Became Its Most Influential Justice
(New York: Harper Perennial, 2006), 37.

120 would do the same:
Arizona Republic
editorial, October 24, 1971, cited in Biskupic,
Sandra Day O'Connor
, 352.

120 better governors: Letter from O'Connor with calculation of election predictions, undated, Lewis F. Powell, Jr. Archives, Washington and Lee University School of Law; O'Connor, letter to Barry M. Goldwater, November 1, 1988, Personal and Political Papers of Senator Barry M. Goldwater, Arizona State University Libraries Arizona Collection; Jeffrey Toobin,
Too Close to Call: The Thirty-Six-Day Battle to Decide the
2000
Election
(New York: Random House, 2001), 248.

120 to contact their senators: O'Connor papers, Arizona History and Archives, 3:8.

121 “not come out”: O'Connor to William H. Rehnquist, October 29, 1971, O'Connor papers, Arizona History and Archives, 3:10.

121 “he was hanged”: William H. Rehnquist, “A Cat Looks at Five Kings,” O'Connor papers, Arizona History and Archives, 3:10. Rehnquist's admiration for
Judge Parker surfaced at some point years later when it could no longer do harm. William H. Rehnquist, “Isaac Parker, Bill Sykes and the Rule of Law,”
University of Arkansas Little Rock Law Journal
6 (1983): 485 (defending Parker against contemporary criticisms of his administration of justice).

121 “future of the Court”: O'Connor, letters to supporters, O'Connor papers, Arizona History and Archives, 3:10.

121 almost without exception voted no: The exception was
Weinberger v. Wiesenfeld
, where he voted for Baby Jason.

122 1972 election effort: Biskupic,
Sandra Day O'Connor
, 53.

122 identity groups within the campaign: O'Connor papers, Arizona History and Archives, 2:3.

122 boys in school, she said: Interview with Thomas Reed, head of regional Committee to Re-elect the President, reported in Biskupic,
Sandra Day O'Connor
, 56.

122 “I wanted enacted”: Phoenix Oral History Project, taped interview with Sandra Day O'Connor, 1980, Arizona Historical Society.

122 approach to welfare: Nancy Maveety,
Justice Sandra Day O'Connor, Strategist on the Supreme Court
(Lanham, Md.: Rowman and Littlefield, 1996), 15, citing Edward V. Heck and Paula C. Arledge, “Justice O'Connor and the First Amendment, 1981–84,”
Pepperdine Law Review
13 (1986): 993–1019, and Howard Kohn, “Front and Center: Sandra Day O'Connor,”
Los Angeles Times Magazine
, April 18, 1993.

123 ancient divisions survived: “Uniform Disposition of Community Property Rights at Death Act,” National Conference of Commissioners on Uniform State Laws, August 21–28, 1971,
http://www.uniformlaws.org/shared/docs/disposition%
20
of%
20
community%
20
property%
20
rights/udcprda%
201971
.pdf.

123 injury of a child: Schafran testimony at confirmation hearings,
http://www.gpo.gov/fdsys/pkg/GPO-CHRG-OCONNOR/pdf/GPO-CHRG-OCONNOR-
4
-
24
-
2
.pdf
and statutes cited at Schafran notes 2 and 3. The
Arizona Republic
specifically credits O'Connor with fighting efforts to water down the equalizing initiative, May 4, 1973,
http://www.newspapers.com/image/
8349961
/.

123 total personal income of the state: O'Connor papers, Arizona History and Archives, 5:1, 5:8.

123 “similar action in other states”: Personal and Political Papers of Senator Barry M. Goldwater, Arizona State University Libraries Arizona Collection, correspondence, O'Connor file.

123 Majority Leader Burton Barr: “Arizona's Expenditure and Tax Limitation Proposal: An Analysis of Proposition 106,” Arizona State University Papers in Public Administration, 1974, O'Connor papers, Arizona History and Archives, 5:2.

123 Trunk 'n Tusk Club: Ibid.

124 “Miller Time”: “Justice Sandra Day O'Connor Announces Retirement after 24 Years,”
Metropolitan News-Enterprise,
July 5, 2005, http://www.metnews.com/articles/2005/ocon070505.htm.