Biden and Roberts were with O’Connor from the beginning of her Supreme Court journey. Now they’ll eulogize her
The late Justice Sandra Day O’Connor will be eulogized Tuesday under the vaulted ceiling and vast stained-glass windows of the Washington National Cathedral by Chief Justice John Roberts and President Joe Biden – two men who first met O’Connor in 1981 when she was nominated to the Supreme Court.
Roberts, then 26, had just joined the Ronald Reagan administration when he was enlisted to help O’Connor prepare for her Senate Judiciary Committee hearing. Biden, then 38, was the committee’s top Democrat.
O’Connor, the child of a pioneering ranch family and a former Arizona state senator and judge, aced that hearing and became the first woman on America’s highest court. She also became, by the end of her quarter-century tenure, the most influential sitting justice on social policy issues, such as abortion rights, and the division of power between the states and Washington.
When O’Connor announced her retirement in July 2005, Roberts, then a federal appellate judge, was initially selected to fill her seat as an associate justice. But before his Senate hearing could be held, then-Chief Justice William Rehnquist died and President George W. Bush switched Roberts to that vacancy.
As two national leaders address the congregation and a televised audience at Tuesday’s memorial, they will manifest their personal experience with the woman who made history.
In 1981, Biden voiced some wariness regarding the Reagan nominee but was quickly won over.
“Don’t wall yourself off,” Biden said during a Judiciary Committee hearing, knowing she was all but confirmed. “Your male brethren have not done it. Don’t you do it. You are a singular asset, and you are looked at by many of us not merely because you are a bright, competent lawyer but also because you are a woman. That is something that should be advertised by you. You have an obligation, it seems to me, to women in this country to speak out on those issues that you are allowed to under the canons of ethics. Don’t let us intimidate you into not doing it.”
Spectators spontaneously applauded, prompting the committee chairman to admonish there was no clapping allowed.
Roberts’ role
O’Connor and Roberts were separated in age by 25 years and the product of vastly different life experiences. But they were each launched in their way during the Reagan years.
Reagan had vowed to appoint the first woman on the Supreme Court as an appeal to female voters during his 1980 presidential run. From the court’s establishment in 1789, no woman had ever served.
Shortly after taking office, Reagan was able to make good on the promise, as Justice Potter Stewart revealed he would retire. The opening came at a time when women, especially Republican women, were not well represented in the federal judiciary or state top courts.
O’Connor, serving on a state intermediate court, had distinctive political and legal credentials. And the former state senator was a natural networker. She had been co-chairman of Richard Nixon’s 1972 reelection campaign in Arizona. She was a friend of Sen. Barry Goldwater of Arizona. And she had developed a bond with then-Chief Justice Warren Burger after they had vacationed together on Lake Powell in Utah with mutual friends.
Ken Starr, then an assistant to Attorney General William French Smith, was part of the Reagan team that visited O’Connor in Arizona. He later recalled that he was surprised she was even on the administration’s short list of candidates, but once the interviews began said he was impressed by her answers to constitutional law questions.
O’Connor could be persuasive on many fronts, and Starr said that when his team took a break for lunch, she served them a salmon mousse salad she had fixed earlier.
(As justices have already observed in memorial tributes, O’Connor believed dining and otherwise socializing together could smooth relations for hard decisions, particularly among the nine.)
When O’Connor met with Reagan in the Oval Office on July 1, 1981, the two Westerners talked about ranching and horses, not law and cases. He interviewed no other candidates, and six days later, on July 7, made his selection public.
That was just as Roberts was finishing a Supreme Court clerkship with Rehnquist, then an associate justice. Roberts was eager to join the Reagan administration, saying later that when he heard Reagan’s inaugural address, “I felt he was speaking directly to me,” and that he heard “a call to action.”
Rehnquist contacted Starr on Roberts’ behalf, and Roberts began working in the Department of Justice that August as the department was preparing O’Connor for her hearings. Roberts read the confirmation transcripts of past Supreme Court nominees and helped craft potential responses for O’Connor.
Roberts later wrote a memo to Starr (who became a national figure as a US appellate judge, independent counsel investigating President Bill Clinton and Baylor University president and chancellor) about how the nominee could navigate difficult questions.
“The approach was to avoid giving specific responses to any direct questions on legal issues likely to come before the court,” Roberts wrote, “but demonstrating in the response a firm command of the subject area and awareness of the relevant precedents and arguments.”
O’Connor was skilled and smooth on her own, delivering a “tour de force,” as Pennsylvania Republican Sen. Arlen Specter deemed it. She finessed questions about abortion rights – a recurring sticking point – saying that such policy should be up to elected lawmakers. O’Connor, it turned out, helped save abortion rights with a major 1992 ruling. (The current Supreme Court reversed that decision and the landmark Roe v. Wade of 1973 last year.)
The Senate confirmed O’Connor unanimously.
When she died on December 1, Biden in his statement recalled his time on the committee and “the hope surrounding her historic nomination.”
Reflecting on the centrist-conservative record she built, the liberal Democrat said, “I did not agree with all of her opinions, but I admired her decency and unwavering devotion to the facts, to our country, to active citizenship and the common good.”
Biden also observed in his December 1 statement that O’Connor was “unrelenting in her interrogations of attorneys before the Court.”
One of those attorneys was Roberts, who after several years in the Reagan and then George H.W. Bush administrations became a stellar appellate advocate with 39 arguments at the high court.
O’Connor appreciated Roberts’ preparation and clarity at the lectern yet was less enthusiastic when he joined the high court and helped move the law to the right. She complained at a 2009 legal conference that her opinions were being “dismantled.”
Her eventual successor in 2006, Justice Samuel Alito, along with the three appointees of former President Donald Trump, have pushed the court even further to the far right in American law. Personal relations among the nine have also deteriorated.
Roberts, leading an intensely ideological court without O’Connor’s deft touch, paid tribute to her social and substantive talents shortly after her death.
“Lunch together for the justices was in her view mandatory to promote collegiality,” he said. “With irresistible force of will and constant motion, she yoked the justices together – and pressed forward.”
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