Sandra Day O’Connor came from a famously eclectic background, growing up on a Texas cattle ranch before becoming one of the first women to inhabit the rarefied precincts of Stanford Law School. Afterward, she made a career in electoral politics, rising to become the majority leader of the Arizona state Senate, cutting deals to pass legislation with the same cunning with which she roped cows.
In posterity, O’Connor will be remembered as the first woman on the U.S. Supreme Court. For now, however, it’s more relevant that she was the last electoral politician on the court.
In its history, the court has been divided almost evenly between justices whose primary experience was in electoral politics, law practice or academics, with many of the academic-minded justices having spent significant time as judges on federal courts. But over the years the profile of a judicial nominee shifted strongly in favor of scholarly judges. Today, potential Supreme Court justices tend to establish their judicial ambitions at a very early age, often in their 20s, attain lower-court appointments in their 30s or early 40s and thereby position themselves for appointment to the high court before they reach middle age.
This evolution has occurred for many reasons. Most of them trace more to the political exigencies of this era than the pursuit of justice.
When O’Connor was nominated by President Ronald Reagan, in 1981, the judicial confirmation process had yet to become the partisan vise it is today. Presidents sought to choose broadly acceptable nominees, with at least equal attention to the nominee’s attainments as to their judicial ideology.
Politicians, especially, tended to have fairly opaque judicial ideologies. O’Connor was a stalwart Republican, dating back to Barry Goldwater’s 1964 presidential campaign, but her judicial profile was less clear than her political leanings: She had spent five years as a county judge, rarely weighing in on national issues, and two years as an Arizona appeals-court judge. Thus, she was nominated mainly for what she had accomplished in life, and not to enact any judicial agenda.
By the standards of 1981, O’Connor’s experiences were highly useful for a high-court nominee. County courts are where the judicial rubber meets the road, where real-life disputes find their way into the legal system. O’Connor was charged with achieving a just result for prosecutors, defendants and civil plaintiffs in a wide array of cases. Her time on the campaign trail had also put her in contact with average people, helping her to better understand their expectations of the government and justice system.
Implicit in her role as Senate majority leader — for which she was the first woman in any state — was a certain amount of deal-making and compromise. This was not, of course, reflexive compromise, but rather the need to decide carefully when to draw a sharp line of principle and when to accept deals that achieve only some worthy aims. Presumably, a key consideration in any deal must be the greater good of the public.
But while politicians are, by the very nature of their work, attuned to the interest of the public, they also must take stances on politically divisive issues. And therein was the rub. As judicial nominations increasingly became proxy fights over abortion rights, having a record of either supporting or opposing such rights — while also weighing in on affirmative action, same-sex marriage or other social flashpoints — quickly became a liability. Eventually, it became an outright barrier to nomination.
In the 1990s and 2000s, elected politicians with strong legal credentials from Mario Cuomo to Orrin Hatch to Deval Patrick were often mentioned as potential high-court nominees but quickly dismissed because of their long records on various social issues. The huge volume of speeches and media interviews and campaign commercials simply served up too much fodder for critics. There was no way these public servants could survive the confirmation process.
In a rich irony, younger nominees with little experience outside of the classroom or federal bench turned out to have cleaner records — but more deeply ingrained views. It’s hard to argue that the people who supported them didn’t know this and want this; the charade of choosing nominees for their legal acumen when they were actually being elevated for their fidelity to a policy agenda fooled almost no one. Confirmation battles tended to turn on cat-and-mouse disputes over lines in judicial opinions or aspects of a nominee’s personal lives after which senators voted increasingly along party lines.
Some of the same nominees who, by dint of their slender record, could pose as neutral arbiters of the Constitution for the purposes of the confirmation process brought to their court work the haughty certitude of faculty-lounge debates. Whatever its outward attempts to portray civility, the court in its written opinions took on the character of a law-school debating society. Confident in their ideology and surrounded by like-minded figures, justices often voted a party line on divisive social issues but defended their stances as matters of high judicial principle. In their rock-ribbed views of the Constitution there was little room for interpretation, let alone compromise.
For many years, O’Connor was the main antidote to this tortured dynamic. She was widely advertised as the court’s swing justice. It fell to her, along with fellow justices David Souter and Anthony Kennedy, to craft a middle ground on abortion in the 1992 case of Planned Parenthood v. Casey. That opinion became a virtual fly paper for critics on the left and right. And yet now, in the wake of O’Connor’s death, many legal and political leaders are yearning for just such a compromise.
The historical assessment of politicians on the court is mixed. But so too are the assessments of legal practitioners and academic-minded judges. The logical conclusion is that each type of justice brings different skills to the table. Former California Gov. Earl Warren drew on the negotiating ability from a long career in politics to stitch together a 9-0 majority against school segregation in the landmark case of Brown v. Board of Education.
In my own research into Justice John Marshall Harlan, known for his dissenting opinions on racial segregation and economic rights that have been vindicated over time, political experience played a different role. Harlan’s dissents centered on his disagreement with his colleagues’ reading of the Constitution but unfailingly included passages assessing the impact of the court’s decisions on average people and the overall trajectory of the nation. Clearly, Harlan believed the court’s mission was not only to be faithful to the national charter but to rend a just result for all.
Like O’Connor, Harlan had an early career in elective politics alongside many other formative experiences. The sheer fullness of his life added to his wisdom and character. Some of the current justices can draw on instincts honed during other chapters of their careers, but many, arguably, cannot.
The vociferous tributes to O’Connor suggest that, at the very least, the effective ban on former politicians serving as high-court justices deprives the court of relevant experience. It remains to be seen whether, with the abortion debate entering a new chapter, future presidents and Senates will open themselves to a broader range of judicial candidates.
