I was a participant in the deliberative process that culminated in President Regan’s appointment to the U.S. Supreme Court in 1981 of Sandra Day O’Connor to replace retiring Justice Potter Stewart who had had his fill of the pretentious and intellectually shallow Chief Justice Warren Burger.
I was not an enthusiast. Atop the Department of Justice’s Supreme Court list were Robert Bork and Antonin Scalia. O’Connor could not hold a candle to either. She had written nothing intellectually pioneering or insightful. She was sitting on an intermediate state appellate court in Arizona. Her appointment was like catapulting from D League Baseball into the Major Leagues.
But O’Connor had one quality that Bork and Scalia lacked: she was a woman whose appointment might diminish the gender gap in the 1980 presidential election, i.e., 54 percent of male voters supported Reagan but only 46 percent of female voters. A Faustian bargain was struck. O’Connor over Bork or Scalia to enhance Reagan’s chances for reelection in 1984 notwithstanding the shortchanging of constitutional jurisprudence. I authored a memorandum enumerating the jurisprudential risk of an O’Connor appointment, but was instructed to destroy it for fear of embarrassing the nomination.
O’Connor’s appointment and apotheosis as the first woman appointee to the U.S. Supreme Court calls to mind Shakespeare’s Twelfth Night, “Some are born great, some achieve greatness, and some have greatness thrust upon ‘em.” O’Connor fit the latter category like a glove.
O’Conner served 25 years as a Justice. Her constitutional handiwork was mediocre but on a par with the vast majority of the Court’s 116 Justices who have served since its birth. She wrote nothing that is memorable. She fashioned no theories of constitutional interpretation like original meaning or textualism.
Her appointment is a reminder that nothing happens in the nation’s Capital without an ulterior political motive. Judicial appointments are no exception.