Thursday, July 7, 2011

Shattering the Supreme Court's Glass Ceiling

Seeing a woman on the Supreme Court raises no eyebrows today.

One–third of the justices are female, and two of them were appointed by the current president. In fact, it wouldn't be surprising if Democrats are perceived as far more likely to appoint a woman to the Supreme Court than Republicans. The three women who sit on the bench today all were nominated by Democrats.

But 30 years ago today, Republican Ronald Reagan made history by appointing Sandra Day O'Connor to replace Potter Stewart on the Supreme Court.

It was historic because O'Connor was the first woman to be designated to join what had been called "The Brethren" for a couple of centuries, and it was the fulfillment of one of Reagan's campaign promises.

Since it had been a campaign pledge, the nomination probably didn't surprise many in Reagan's inner circle. But my recollection of that day is that nearly everyone else was surprised.

"My nomination was a great surprise to the nation," O'Connor later recalled, "but an even greater surprise to me."

Her gender may have played no role, but some of Reagan's supporters in Congress insisted they could not support O'Connor, many because they were not sure she would vote to overturn Roe v. Wade if given the chance.

(Now, you may think there are litmus tests in the appointments that are made in American politics today — and there are. But much more of an effort is made today to conceal that fact.

(The early 1980s was a period when people were defiant about it, almost proud of it. By and large, the attitude could be summarized this way — Yeah, we're applying litmus tests. Wanna make something of it?)

Some openly suggested O'Connor would support the Roe v. Wade ruling — and if you know anything about politics in America in the 1980s, it should be that the Republican Party had embraced conservative Christians, and a person's position on abortion was the litmus test for being a true Republican. (Those who were found to be lacking were treated as derisively as today's so–called RINOs.)

Yet, when the Senate voted on O'Connor's nomination in September, she was confirmed by a 99–0 vote.

(Around the time of her confirmation, O'Connor was quoted by the Washington Post as saying something that would, no doubt, be welcomed by a certain segment of the modern population: "I do not believe it is the function of the judiciary to step in and change the law because the times have changed. I do well understand the difference between legislating and judging. As a judge, it is not my function to develop public policy."

It is, as I say, nothing special to see a woman nominated for the Supreme Court now. Three other women have been nominated since that day 30 yeas ago. All three were confirmed, and all three sit on the bench today.

And, in the peculiar logic of American politics, when those seats are open again, due to retirement or death, I suspect they will be regarded as belonging to women, in much the same way that open seats have been considered liberal or conservative, depending upon who last held them, and only a like–minded jurist would be an acceptable replacement.

It is the same sort of thinking, for that matter, that made Thurgood Marshall's seat the black seat on the court when he retired — but race trumped ideology when his replacement had to be selected.

(It was always odd, I thought, that George H.W. Bush chose to replace Marshall with Clarence Thomas, who shared the same skin color but little else with the man he succeeded.)

For the most part, I guess, O'Connor lived up to the hopes of conservatives. When the Supreme Court was called upon to break the electoral deadlock in Florida in 2000, for example, she voted with the Republican appointees, allowing George W. Bush to prevail over Vice President Al Gore.

But, overall, her voting record seemed to move more to the center as her Supreme Court career continued. I often wondered if Reagan ever imagined in 1981 the votes she might cast or the decisions she might influence in the quarter of a century that she sat on the bench.

The night before he announced her nomination, Reagan wrote in his diary that he thought she would make "a good justice."

She's only been retired for five years.

It will take awhile for history to render its verdict.

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