The Public Policy / The O'Connor Nomination
Eastland, Terry
THE O'CONNOR NOMINATION liii P1'ilI(:I>()Li(.1' On July 7 President Reagan nominated 51-year-old Sandra Day O'Connor of the Arizona Court of Appeals to take Justice Potter Stewart's place on the...
...circumvention of public opinion as reflected in the legislative process...
...Barry Goldwater was right to say that no single issueincluding a person's views on abortion-should determine qualification for the Court...
...This chance meeting instructed me on the sheer breadth and pervasiveness of government regulations and their stultifying effects on the productivity of the small entrepreneur...
...An odder mix of company would be hard to imagine, and that a theme of common enthusiasm would emerge seemed unlikely...
...10.95...
...O'Connor flew to Washington the week following her appointment, in pan to assuage the fears of anti-abortion senators like Jesse Helms and John East of North Carolina...
...In it we find that she voted in favor of a "conscience clause" ensuring that physicians and other personnel who oppose abortion could refuse to participate in abortions and that she, in fact, introduced this particular piece of legislation...
...principles-such as that racial discrimination of any kind is forbidden...
...Was the purpose of the memo to make O'Connor's record as palatable as possible to the prolifers (and to a pro-life president...
...But I was wrong...
...Meanwhile, the portrayal of O'Connor as a judicial conservative, while soothing many conservatives and fulfilling Reagan's promise to appoint such a justice, revealed little about O'Connor's views on the Constitution...
...Djerassi is one of the scientific fathers of "The Pill,'' a discovery which has not only advanced the capability of people to lead self-determined lives, but which has also supplied an essential means (if not, alas, the incentive) for bringing the growth of world population into step with the inevitably low levels of economic growth obtainable under current political arrangements...
...The Supreme Court, as Lincoln once said, must decide the cases that are properly brought before it...
...The problem is that O'Connor's views on the Constitution and her understanding of judicial review are largely unknown...
...O'Connor's mission apparently succeeded: Once the Senate resumes business after Labor Day, she is expected to win confirmation by an overwhelming vote...
...Still, what Reagan has done in nominating Judge O'Connor is less interesting as evidence of political strategy-for here his adroitness is already acknowledged-than as an indication of the philosophy-or lack of it-behind the strategy...
...What is important is that document and what O'Connor believes about it...
...As Felix Frankfurter once wrote, Supreme Courts are not "representative bodies...
...This is precisely what Reagan has continually expressed a desire to see ended...
...in favor of "judicial restraint...
...By promising to appoint a woman, Reagan allowed gender to become the "overriding qualification" for the job, as Newsweek later called it...
...She finished in the top ten percent at the Stanford Law School and is intellectually quite capable, yet I sense she will probably he on this Court what her predecessor was-one of those justices in the "center," who are moved by others and move it nowhere themselves...
...and selective reliance on scientific opinion on such controversial questions as the beginning of human life...
...disregard for standing and states' rights...
...The toy manufacturer, in response to some pre-Christmas burbling about the virtues of toys for r William Havender is a research bio chemist at the University of California at Berkeley...
...Such a philosophy of jurisprudence will cause a jurist to refrain from making law, but it will also enable a jurist to know when not to defer to the judgments of others...
...with the Justice Department or, as it happened, in a 48-minute chat with the president...
...Reagan, apparently surprised by the pro-life opposition to O'Connor, was forced to remark rather lamely that O'Connor had assured him she was ''personally'' against abortion...
...The first of these, of course, concerned the nominee's gender, the second, his views on abortion, and finally, whether the nominee is judicially conservative, i.e...
...Yet this is the first question that should be asked of her, or of any Supreme Court appointee...
...For one thing, the "conscience clause'-' which she introduced passed unanimously (30-0), scarcely a courageous vote on her part...
...Finally, the Starr memo neglects to mention that O'Connor voted against a 1973 resolution (that had passed the Arizona House) calling upon Congress to pass a Human Life amendment...
...But worse still, the memo proved to be inaccurate, incomplete, and apparently misleading...
...The Court's "science" has become obsolete, but the Court's decision is still there, on the books, dividing the country as possibly no decision has since Dred Scott...
...The builder, when asked about the astonishing cost of California housing, couldn't refrain from describing the impact of no-growth zoning and building regulations on raw costs (an estimated 20 percent higher on the typical new home, according to a recent Rutgers University study...
...President Reagan, unfortunately, in the wake of his promises from Campaign '80, encouraged the public to focus on three other questions, two of them irrelevant, and the other not quite on the mark...
...She became a trial judge in Arizona in 1975, and went to the court of appeals in 1979...
...Few decisions handed down by the Burger and Warren Courts can rival Roe v. Wade in disdain for the Constitution...
...So it was with a sense of deja vu that I read an extraordinary contribution to this scholarship, The Politics of Contraception* by the justly honored Stanford University chemist, \oriun...
...But if there is a single case that should be a litmus test, that In the week following her appointment, Mr...
...One's views on abortion should have no bearing on how one comprehends the Constitution...
...What makes this development an enthralling chapter in intellectual history is the fact that it was not merely a serendipitous occurence, but the outcome of far-sighted, purposeful, and risky initiatives...
...I n all the discussion about Sandra O'Connor the matter of what she believes about the Constitution and how she would interpret it has received short shrift...
...The memo also says that O'Connor has no recollection of how she voted in 1970 on a bill that would have legalized abortion in Arizona-all this in a memo that was hardly necessary...
...Even so, given the chance to know more or less about a person's thoughts on jurisprudence, a president, obviously, should know more, not less...
...the Court in Roe also said abortions occurring in the second and third trimesters of pregnancies could be regulated by the states...
...affirmation of a right-in this case a right to privacy-nowhere found in the Constitution...
...Pasteur rightly observed: ''Chance visits the prepared mind...
...This is somewhat reassuring, but it pales beside what we don't know about O'Connor...
...Did you know, for instance, that sand-filled bean bags are banned because kids might eat the sand...
...It advocates deferral by the federal judiciary to the judgments of state courts on federal constitutional questions...
...They no more deserve a woman, because she is a woman, than a man, because he is a man, or a black because he is black, or a Hispanic because he is Hispanic...
...and we shall not have the justice we need if O'Connor turns out to be simply a deferring justice who neglects to speak, as Lincoln also said the Court must do, to "the better angels of our nature...
...Thus when it is said that O'Connor is a judicial conservative, we do not have the whole picture...
...Roe exemplifies all those things President Reagan presumably dislikes about the courts: judicial policymaking accomplished by dubious use of the due process clause...
...With the O'Connor appointment Reagan is said to have reached out to feminists and liberals, while putting some distance between himself and the New Right-an exercise that Time and many others in the Terry Ea-stland is editor of the Virginian-Pilot in Norfolk, Virginia...
...It also caused me to reflect on how much easier it would be to resist regulatory intrusiveness if chaps like these would strike alliances with one another, and if they were also acquainted with the wide body of anti-regulatory scholarship which has matured so vigorously in the last decade...
...Chalk up another victory for Ronald Reagan-or so goes the conventional wisdom...
...Thus, though we had been invited to the show for different reasons, it nominee...
...But there is a better argument for appointing someone who not only respects the decisions of other courts and the judgments of legislatures, but also believes that the Constitution does contain certain A s a cancer researcher at Berkeley, I was recently a guest on a local radio talk show, together with a builder of low-cost homes, a toy manufacturer, and a winemaker in tent on making California's finest Pinot Noir...
...Many conservatives approved the nomination because O'Connor, a Goldwater-plated Republican, was said to be a "judicial conservative...
...And those thoughts cannot be reliably disclosed in interviews turned out that each of us had in common some fearful encounter of the regulatory kind...
...A good argument can of course be made in support of a nominee who is intellectually disposed to defer to the judgments of lower courts and legislatures, state and federal, and to resist the temptation to make law-that is, a judicial conservative...
...C by William Havender Carl Djerassi...
...Equally shortsighted was the administration's preoccupation with the abortion question...
...media find heartening...
...Shortly before the appointment was made, Kenneth Starr of the Justice Department interviewed O'Connor about her legislative record on abortion, the interview forming the basis for the "Starr memo" to President Reagan...
...she did not have to rule on the federal civil rights laws, nor pronounce on other weightier matters...
...I was there to talk about saccharin, cancer, and the folly of the Food and Drug Administration's pending ban...
...If no one can say where O'Connor, about to go in flight, will come to rest, it is also true that no one can much say what kind of arrow we are watching being lifted to the bow...
...If the New York Times continues to indulge in editorials wondering about when there is "validly a woman's point of view in the law" and asking whether O'Connor "will speak up for women's interests if her male colleagues seem oblivious to them," it will have to be said that President Reagan asked for this kind of editorializing, if not also, alas, for a justice who believes in such notions as a "woman's point of view in the law...
...Most disappointing, however, was Starr's failure to raise the lone question regarding abortion that is relevant to O'Connor's understanding of the Constitution-namely, her views by Terry Eastland on Roe v. Wade, the 1973 decision which repealed the abortion statutes of the 50 states by barring them from legislating in any way on abortion performed in the first trimester...
...Feminists, liberals, and moderates immediately and enthusiastically applauded the nomination: After 191 years and 101 male justices a woman had finally been appointed...
...Alexander Bickel once said that appointing a justice is like shooting an arrow into the air and not knowing where it will come to rest...
...And it is the president who should more than anyone else encourage the public to attend to this question...
...There is no virtue in deferring to a lower court's judgment, or to Congress, if its reading of the Constitution is wrong...
...O'Connor, for her own part, also told reporters she was "personally'' against the prac 24 AMERICAN SPECTATOR tice-THE SEPTEMBER 1981 case is Roe v. Wade, and it remains to be seen whether O'Connor shares the dissenting views of Justices White and Rhenquist in that case...
...To suggest otherwise, as the pro-life lobby has, is to argue that Supreme Court justices should turn their personal preferences into law...
...The opening step was the revolutionary inspiration of a maverick chemist Russell Marker in the late thirties and early forties that animal hormones of the steroid family Ouch as the sex hormones and cortisone) :S REGULATORY PRACTICES THE AMERICAN SPI'(I Al OR SEPTEMBER 1981...
...This of course will still be far better than a ''mover" who moves in the wrong direction...
...O'Connor's remark that abortion is a suitable subject for legislation is no clue as to what she thinks...
...Her 29 written opinions mainly covered criminal convictions, workmen's and unemployment compensation cases, divorces, and bankruptcies...
...will still have many opportunities to leave a more clearly defined mark on the Supreme Court...
...They-we-deserve to have the best available minds exercising the power of judicial review...
...Yes, as George Will correctly noted, Reagan "dug about as deep as any president ever has into the state judiciary for a "children" of "any" age, chimed in with unkind words about the Consumer Product Safety Commission's pointless safety commands...
...It is interesting, then, to note the lengths to which the administration went to protect itself from criticism on what is, at best, a non-issue...
...In a pleasant coincidence for O'Connor, her one law review piece-she has written no books or articles for popular or intellectual journals-was published this past summer, in the William and Mary Law Review...
...And with five aging justices (they are 72 or older), Reagan, one hopes...
...The only nay-layers were on the New Right, mostly in the Right-to-Life camp...
...Moreover, newspaper accounts-so far unchallenged-show she voted for the 1970 bill to legalize abortion in Arizona...
...THE O'CONNOR NOMINATION liii P1'ilI(:I>()Li(.1' On July 7 President Reagan nominated 51-year-old Sandra Day O'Connor of the Arizona Court of Appeals to take Justice Potter Stewart's place on the Supreme Court...
...The far more reliable index of what a person thinks will be found in the individual's legal opinions or public writings, a large and useful deposit of which, in the case of O'Connor, we simply do not have...
...Their vigorous, angry dissent was inspired by O'Connor's record in the Arizona Senate, where, between 1969 and 1975, she cast several votes that could be read as favoring abortion...
...And the winemaker, in recounting his efforts to get his new and innovative winery off the ground, referred time and again to the regulatory hindrances placed in his way, ranging from the design of his wine labels and the monitoring of every last drop of taxable alcohol to the working conditions of his few employees and the variant (though always costly) licensing requirements of each state in which he wanted to market a few cases of his small, boutique output...
...It is said in apology for O'Connor's lack of a more substantial record that there have been previous court nominees about whom little was known, and that anyway how the nominee performs is often unrelated to what he thought before going to the Court...
Vol. 14 • September 1981 • No. 9
