In 1977 she won a month’s residency at the Rockefeller Foundation’s famed Bellagio Center, in a castle perched high above Lake Como, Italy. She was supposed to write an article about the impact of her litigation on constitutional equality. “Heavenly,” she wrote to Stephen Wiesenfeld. Looking out over the towering pine trees and manicured lawns from the antiques-filled magisterial rooms, “It is,” she told her ACLU boss Aryeh Neier in a postcard he never expected to see, “a place not to work on a law review article but to write poetry to your lover.” But Ginsburg was always more than a “mind in a vat” to the men who understood her. “She was an attractive woman,” Neier remembers fondly. “I could very well imagine a romantic attachment to her.”
While Ruth was hanging out with the movers and shakers on the op-ed page of The New York Times and dreaming among the murmuring pines, people, including her devoted husband, were mobilizing to move her up to the next career plateau. Marty, whose tax prowess made him emminently employable, left his law firm to take up a job teaching tax at Columbia. So they were colleagues. He was also portable.
Once Jimmy Carter, a Democrat, was elected in 1976, he was committed to integrating the federal judiciary with racial minorities and women. And women’s expectations went way up. The path was tortuous. First the Carter White House had to wrench the job of finding nominees from the members of the white and male United States Senate. Carter achieved this early in his term, creating citizens’ nominating committees to suggest names for the all-important courts of appeals. Then the women’s advocates on staff at the White House had to wrench access to the Carter committees from the clueless Justice Department, which would normally have had responsibility for justice-related matters such as nominees to the federal courts. The department, led by Attorney General Griffin Bell, whose longtime law firm, King & Spalding, was later successfully charged with illegal sex discrimination, was not a hotbed of diversity. And then, the newly enlightened White House had to fight off the American Bar Association, which still demanded fifteen years of legal experience to be labeled qualified to be a judge. That rolled the clock back to women who graduated law school before 1962, a group who could essentially be counted on one hand.
From the moment of Carter’s election, Ginsburg’s name started appearing in articles on the list of likely nominees. By 1978, Congress had voted to create dozens of new federal judgeships, and it looked like the logjam for female and minority appointees was about to be broken. Surely, of the handful of arguably qualified women to start integrating the federal bench, Ruth should have been on everybody’s list. Marty Ginsburg, until 1979 a very influential tax lawyer at the powerhouse New York law firm Weil, Gotshal & Manges, began a letter-writing campaign. His well-connected partner Ira Millstein wrote in support of Ruth to a close Carter connection at Griffin Bell’s law firm. Unknown to her, a throwback to her original interest in foreign law brought her useful attention. She was chosen to be part of an eleven-person delegation from the American Bar Association to China, which she described as “a country of many millions without any lawyers.” Such trips were invaluable for the networking that is essential to ascending a high federal bench. Blessedly, she reports, as the lone woman she had her own room. “My colleagues were required to double, and constantly complained of each others’ snoring.” Regardless of the banality of the conversation, her companion on that China trip, Chesterfield Smith, an immediate past president of the ABA, wrote to his successor, the chairman of Carter’s Citizens’ Commission for Appointments to the Second Circuit, Lawrence Walsh. “Without reservation,” Smith told Walsh, he was “confident that Ruth Bader Ginsburg would make a perfectly splendid appellate judge.”
Judge Patrick Higginbotham, the prodigiously talented, youngest sitting federal judge, got one of his pals to write directly to Michael Egan, the guy at Justice responsible for vetting the appointments. Marty used every occasion, including the not obvious occasion of the meeting of the American Law Institute Federal Income Tax Project, to buttonhole well-connected acquaintances. Not satisfied with his surrogates, Marty Ginsburg wrote to Associate Attorney General Michael Egan himself. If Egan needed a reference for Ruth, her husband wrote, his exceedingly well-connected friends would be “happy to supply it.” And in case the Justice Department did not have a full-enough file on her, Marty was sending Egan some newspaper and magazine articles.
Despite its origin in Carter’s desire for more diversity, the Second Circuit commission produced an all-male list of potential nominees. When Carter filled all the vacancies on the Second Circuit with men, women’s groups, which had organized robustly to penetrate the judicial selection process, were very unhappy. And vociferous. Susan Ness, the well-connected Washington insider running the process for the National Women’s Political Caucus, went public with her criticisms of the old boys’ networks set up by Senators Javits and Moynihan of New York. Javits’s panel, all men! Moynihan’s panel, one woman, not a lawyer! And that from New York, which had the highest concentration of women lawyers in the country. Ness specifically called the Carter administration on the failure to appoint Ginsburg, who, as usual, was more circumspect, letting her aggressive feminist shock troops do the work. “A federal appellate judgeship is not in the cards for me, it seems,” she wrote to her chum William Spann, president of the ABA, in 1979, “—a disappointment, although in retrospect I suppose my expectations were unrealistic.”
By now Ginsburg, in her mid-forties, was a little fried. In a 1977 speech to the American Trial Lawyers Association, she advised future Supreme Court advocates to “feed the Court” what it needs, in the form of “chunks” of text in the brief “they can lift verbatim” into their opinions. “Dress conservatively,” she cautioned, and “prepare for their lack of manners”! Nor did brilliance excuse the rudeness: “No justice ever asked better or harder questions than my colleagues at Columbia did in the moot court” rehearsals they held beforehand; indeed, she told her audience, the justices make terribly annoying and mistaken statements from the bench. She shared with her colleagues a few of the worst examples, especially the reflexive sexist wisecracks that she deafened herself to ignore. The impolitic tone of the speech reflects her desire to be done with the work of persuading her intellectual inferiors to do the right thing.
As she looked longingly across the bench, she had one more case to argue, Duren v. Missouri, a follow-up to the attack on eliminating women from juries, this time by allowing them to request an automatic exemption. She won handily (8–1) in light of the big jury cases from earlier in her campaign. On May 31, 1979, she wrote to Stephen Wiesenfeld that if the forces for women’s equality won one last case, Califano v. Westcott, she would be “satisfied that we have reached the end of the road, successfully, on explicit sex lines in the law.” Westcott, which was not her case, challenged the distinction in welfare law between families with unemployed fathers, who got welfare, and families with unemployed mothers, who did not. Not surprisingly, when confronted with such a raw distinction in the law, after all Ginsburg’s spadework, the Court struck the welfare law down. In her own words, she was at “the end of the road.”
A LONG JOURNEY
Marty kept working the phones. One day toward the very end of Carter’s one term, as more judgeships started opening up, Marilyn Haft, then counsel to Vice President Walter Mondale, looked up from her desk to see Martin Ginsburg, a friend of Haft’s ex-husband, standing in her office. The new judges bill had produced a vacancy on the prestigious federal Court of Appeals for the D.C. Circuit, and, although the family would have to move away from New York, he was lobbying the people in the White House to consider Ruth for the next opening. Haft had been at the ACLU at the same time as Ruth, so she was all for it and did everything she could to make it happen.
Despite the existence of Citizens Commissions and Pipeline Projects, federal judgeships ultimately come down to a small group of informal White House decision makers. In December 1979, the presidential assistant Sarah Weddington, of Roe v. Wade fame, Attor
ney General Benjamin Civiletti, and the congressional liaison Frank Moore were looking at the lists of candidates. Weddington was lobbying hard for Ginsburg, whom she had known for almost a decade through their mutual interest in women’s rights. Civiletti was unenthusiastic. Finally, in a bald exercise of log-rolling, Weddington traded her support for two of the attorney general’s male candidates in exchange for his vote for Ginsburg. But Weddington was not so certain that Civiletti would stay true to the deal, so she went directly to Carter—her office was just above his in the White House—after the meeting. “I never leak,” she reminded him, “but this time I need to leak this appointment before anyone changes his mind.” Then she called Ginsburg to tell her the news. Two days later, The Washington Post ran a scoop: “Feminist Picked for U.S. Court of Appeals Here.” “Informed sources,” the Post reports, revealed the selection.
Ruth Ginsburg was still very jumpy. Her nomination had been prematurely leaked, she groused, and she had a long, anxious wait. Carter’s people took a long time to send her name to the Senate. Then the Senate Judiciary Committee took a really long time even setting a hearing. “People at the right end of the political spectrum” were going to “attempt to paint [her] as a wild-eyed radical,” she feared. Learning that a feminist colleague, Lynn Hecht Schafran from the NOW Legal Defense Fund, had talked about her campaign against men meeting to do their business at all-male clubs, the nominee wrote to caution her friend. “In the future be very careful about anything that might be attributed to me. Things are not going as well as they might,” she fretted, “and I must be super cautious about defusing charges against me on the ground of my ‘militant feminism.’” Time was slipping by, and a presidential election loomed in November.
Who should ride to the rescue but Martin Ginsburg’s well-connected law partner Ira Millstein. Fortuitously, Millstein “had some prior dealings” with the ranking minority member of the Senate Judiciary Committee, the Republican Orrin Hatch. So the well-connected lawyer organized a little lunch for the conservative Mormon Utah senator and the head of the ACLU Women’s Rights Project, who was hoping to ascend to the bench. Millstein urged the senator to hear her out and make up his own mind about her being an ideologue, biased and unsuited for broader judicial responsibilities. He says he doesn’t remember what she said at lunch. But whatever she said to Senator Hatch that day, after the lunch the “opposition seemed to have melted away.” Nobody, as Nina Totenberg reminds us, performs as well under pressure as the small but steely Ruth Bader Ginsburg.
Martin Ginsburg sold all the stocks in his investment portfolio so Ruth would not have to recuse herself from cases involving his companies, and the family moved to an apartment in the luxury Watergate condominium.
On June 30, 1980, Ruth Bader Ginsburg put on her judicial robes. Her days of imploring the courts were over. Now she would be doing the deciding.
Part III
FWOTSC
© Bettmann/CORBIS
Sandra Day O’Connor with Chief Justice Warren Burger immediately before she was sworn in as the first female Supreme Court justice, September 25, 1981.
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Sandra O’Connor Raises Arizona
WHAT COULD SHE HAVE BEEN THINKING
In 1971, just as people were beginning the push that would ultimately put her and Ruth Bader Ginsburg on the bench, State Senator Sandra Day O’Connor wrote to President Richard Nixon to suggest he use the vacancy that had just come up to place a female on the Supreme Court. Your other choices have been just wonderful, she begins flatteringly. Now it would be a great time to add a woman.
He did not. Instead, President Nixon’s selection, O’Connor’s Stanford classmate and Phoenix friend William Rehnquist, was the furthest thing from the candidate she had suggested. First and foremost, Rehnquist was at the cutting edge of the conservative legal campaign to roll back the civil rights movement at its racial foundation. This campaign had devastating implications for the women’s movement, because the movement for women’s legal equality had always rested on the foundation laid by the racial civil rights movement. That’s what President Clinton meant when he called Ruth Bader Ginsburg the “Thurgood Marshall of the Women’s Movement” at her nomination in 1993. Without the expansive interpretation of the Fourteenth Amendment that started with the racial movement, none of the other equality movements could have gotten off the ground.
During his confirmation battle, Rehnquist was found to be the author of a memorandum to Justice Jackson, for whom he had clerked in 1952, outlining why Jackson should vote against school desegregation in Brown. “I realize,” Rehnquist admitted, “that it is an unpopular and unhumanitarian position, for which I have been excoriated by ‘liberal’ colleagyes [sic], but I think Plessy v. Ferguson [the 1877 decision approving racial segregation in the South] was right and should be reaffirmed.” (Ignoring the advice, Jackson joined the unanimous decision ordering desegregation.) When Rehnquist, along with his law school friends Sandra and John O’Connor, settled in Phoenix after his clerkship, he continued his opposition to racial civil rights. As the city of Phoenix contemplated passing a civil rights ordinance in 1964, Rehnquist, then a lawyer in private practice, testified at the hearings. He had no client in the matter, he told the city council. But he wanted the legislators to know that a law forbidding merchants from discriminating on the grounds of race sacrificed shopkeepers’ rights in order to protect the rights of racial minorities. In such cases, Rehnquist held, property rights mattered more than racial justice.
Despite Rehnquist’s substantive opposition to every aspect of the women’s legal movement, Sandra O’Connor flung herself into the campaign for his appointment. Her passionate advocacy of Rehnquist’s confirmation for a seat she had proposed for a woman neatly presents the question of how serious a feminist she was.
At first glance, it might seem that she was just like the many conservative women activists who surfaced as the Republican Party definitively broke with the feminist movement in the ’70s. The anti-ERA activist Phyllis Schlafly was an early example of the type. Outstanding women, they preached, would do just fine without any change in the law. They did not need the Equal Rights Amendment, which would hurt their more traditional sisters. Certainly they did not need anything like access to abortion, with all its moral hazard. O’Connor followed in the Schlafly mode when she busily volunteered her services, living off the income of her lawyer husband, to endear herself to the Republican establishment and then asked her party to appoint her to the overwhelmingly male legislature. She sounded a lot like Schlafly when she boasted that once any discriminatory all-male institution let her in the door, she never had another moment’s difficulty. If O’Connor were a Phyllis Schlafly type, her advocacy of Rehnquist would not be puzzling at all.
But even as early in her career as 1971, her request that Nixon appoint a woman is somewhat at odds with conservative feminism. The long-standing practice of discrimination in the legal profession meant that, in 1971, there was no woman competitive with the male candidates for a Supreme Court appointment by any neutral standard, especially compared to someone with the credentials of a William Rehnquist. And, endearingly, O’Connor knew it. Later, long after President Reagan’s political strategy motivated him to appoint her in 1981, she defended affirmative action to her conservative colleague Antonin Scalia. Interrupting his diatribe against it at conference in an affirmative action case, she asked, “Why, Nino, how do you think I got here?”
Moreover, immediately after she went to bat for Rehnquist she actively pursued women’s equality through legal change on all fronts. Like Ginsburg, she recognized that women could use the law to pry open realms of life foreclosed to them by historical practices of exclusion. She did not just think they should volunteer for the Republican Party and then ask for favors. So her advocacy of a man whose efforts would undermine that progress remains a puzzle.
Another possible explanation is that despite her recognition of the value of law as an instrument for women’s advancement, sh
e might have decided that the conservative agenda she shared with her good friend—favoring the states over the federal government and business over government at any level—was more important than her concerns for women. Certainly, once she got to the Court, she voted with Rehnquist on federalism and regulatory issues almost all the time.
Or she may have felt that Rehnquist—by all accounts a great friend and a fair-minded individual in his private dealings—was suitable to serve on an important institution like the Court. His character and administrative capability made him “attractive” in her eyes, a highly personal evaluation she used throughout her life.
High-minded governance—merit selection of judges, civic education—was a consistent theme for her. When O’Connor came of political age in Arizona in the 1950s and ’60s, decades of one-party rule by the Democratic Party had produced a corrupt and factionalized pattern of governance by rulers fearful of economic change. If Arizona was the state of the three C’s (Copper, Cotton, and Citrus), people used to say, lobbyists ran the Democratic legislature with the three B’s—Booze, Beefsteaks, and Blondes. The newly arrived Republican migrants from places like Kansas quickly captured the language of political rectitude, portraying themselves as the energetic reform-minded proponents of useful economic growth. Just before Rehnquist was nominated, O’Connor played a lead role in getting the legislature redistricted to favor Republicans. (When Dems squawked, Gene Pulliam’s Arizona Republic editorialized that any self-respecting political party would do the same.) There is no evidence that, despite her disagreement with the Republican Party on women’s issues, she ever stopped thinking of the Republicans as the better governors.
She opened her drive for Rehnquist with an unsolicited letter to the chairman of the Senate Judiciary Committee offering to testify for her friend. Days after the nomination, she was making speeches on the floor of the Senate and to the socially powerful Phoenix Kiwanis about Rehnquist’s merits. Her efforts were in keeping with her lifelong political strategy to know a lot of people and work the people you know. A relatively obscure state legislator, she had uncharacteristically easy access to the confirmation process. Rehnquist’s and O’Connor’s mutual friend the former Arizonan Richard Kleindienst, then an assistant attorney general, was responsible for Rehnquist’s selection. She made a list of all the people she thought could help and gave them their “assignments,” mostly to contact the people they knew. Being a board member of a big Arizona bank, she recruited its president, Sherman Hazeltine, to work the bank presidents’ network around the country to contact their senators. It was a great idea: bank presidents know a lot of senators, and she collected scores of letters from the local bankers to their representatives in Congress. She printed up the roster of Stanford classmates and pursued the ones she knew would be supportive and willing to reach their representatives. The O’Connors’ household was soon covered with paperwork.
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