The Rehnquist forces thought the two U.S. senators from Arizona were sufficient for witness purposes and turned down O’Connor’s offer to testify. They did, however, use her heavily to defend against the charges that Rehnquist, in his role as Republican poll watcher, had harassed black voters by asking them to demonstrate their literacy. Apparently anxious that the charges not catch fire, Kleindienst sent O’Connor on research missions for exculpatory material. In November 1971, in the middle of the debate over his nomination, Rehnquist himself sent her a memo recalling a legal opinion from the Arizona attorney general forbidding poll watchers from demanding literacy. Could she find the opinion? It would bolster his defense that he didn’t do any such thing. His pal on the scene duly produced the opinion.
When her researches turned up damaging documents, such as a legal article filled with incendiary rhetoric that the nominee had written for a local rag, she recommended to Rehnquist that the article “not come out.” Rehnquist had called the highest court of the United States a “bleeding heart” in criminal procedure, and quoted with admiration an old Supreme Court opinion: “there should be no appeal permitted in a criminal case; if the jury said a man was to be hanged, he was hanged.” The article, O’Connor reassured him, had not come out so far. It emerged only after Rehnquist was long confirmed.
As the confirmation process wound down, Rehnquist wrote her and John a note of warm thanks for all their efforts. She wrote to each of the people who had helped campaign for his confirmation. The investiture, which they attended, was “an emotional moment” for her, “in view of the significance which it holds for the future of the Court,” which would now have a member who had opposed desegregation. His appointment was certainly significant in one arena: for the next nine years, as the ACLU’s Ginsburg appeared before the Supreme Court to establish the foundation of legal equality for women, Rehnquist almost without exception voted no.
KEEPING HOUSE AND KEEPING STATE HOUSE
A few months later, the regional office of the Committee to ReElect the President began pressing the Arizona campaign chair, Sam Mardian, to recruit a woman to help head up Nixon’s 1972 election effort. Even if the president wasn’t going to integrate the Court, the politicos at least felt that the reelection operation shouldn’t be 100 percent male. The energetic and resourceful O’Connor was a natural. In her efforts to help reelect President Nixon, she visited the local offices, organized events, encouraged the Young Republicans at Arizona State University, coordinated polling between local and national campaigns. One of her proud accomplishments was the establishment of identity groups within the campaign, such as blacks, Spanish-speakers, and the elderly. There were thirteen in all. Despite her concern with equalizing the Arizona laws applied to women, women did not appear on the political list of interest groups in the Republican campaign. After the election, her lively and competent campaign performance elicited the predictable inquiry about her availability to join the administration, but she declined. Her family was ensconced in Phoenix, John in practice, the boys in school, she said.
In the Arizona world where she elected to remain, the 1972 election returned the Republicans to power in the statehouse, and Senator O’Connor promptly unseated the Republican majority leader. For the next two years, she would be at the center of power in the local legislature. She was keenly aware that she “was in a position of power. I got the things I wanted enacted.” She describes her years in the legislature as a time of bipartisan cooperation for the good of the people, and her record does include advancing laws both liberal and conservative. She took the Republican line on gun control, the death penalty, and school busing, but she swung the other way on environmental issues and bilingual education. She even tried for a middle-of-the-road approach to welfare.
And she made real efforts on women’s equality. This was not as independent of party as it now looks. Although Justice Rehnquist’s record was a leading indicator, Republicans did not bail on women’s equality all at once. Only in 1980 did the party formally revoke support of the Equal Rights Amendment in its platform. Throughout the ’70s, nonpartisan “law reform” movements out of professional institutions such as the Commissioners on Uniform State Laws were recommending nondiscriminatory schemes in areas like family law, where ancient divisions survived. In 1973, O’Connor was able to lead a bipartisan effort to repeal the web of Arizona laws that discriminated against women. She was visibly behind the revision of Arizona’s community property law to allow women rights of management over marital property and to remove male-only language that sometimes carried a real sting, for instance, that only fathers could sue for the death or injury of a child.
Despite her mixed ideological record, her most robust initiative was a core conservative agenda item: putting a cap on taxes. She started, in 1973, by convening a meeting of prominent citizens. By the next year, she had submitted a proposal for a referendum to amend the state constitution to limit state expenditures to a fixed percentage of the total personal income of the state. O’Connor pulled out all the stops to get the measure passed. She wrote to the party icon Senator Barry Goldwater, asking him to contact recalcitrant House members, Republican and Democratic, to pass the measure out. “It is my belief that placing this measure on the ballot for November [1974] elections would be a boost to the Republican cause in November,” she implored Goldwater, and “passage of it in Arizona would pave the way for similar action in other states.” Two days later, Senator Goldwater, who usually avoided state legislative battles, responded by sending a telegram to Arizona House Majority Leader Burton Barr. O’Connor’s measure even came to the attention of Governor Ronald Reagan, who saluted her at a meeting of the Arizona Republican Party’s Trunk ’n’ Tusk Club. It was probably the first time Reagan had ever heard of her.
The tax limitation movement was of a piece with the revival of conservative politics in general. Analysts widely credit the passage of tax-cutting Proposition 13 in California in 1978 with giving a major boost to Ronald Reagan’s stature as a presidential contender. So in making her big legislative initiative out of an effort to limit taxes, O’Connor was aligning herself with the most conservative developments on the national scene. Barr, then majority leader of the Republican State House of Representatives, says of his relentlessly hardworking colleague, “With Sandra O’Connor, there ain’t no Miller Time.”
QUITTING AGAIN
But O’Connor would not be on the ballot with the measure she had worked so hard to pass. Several months before the election of 1974, Majority Leader O’Connor announced she would not run for reelection, once more turning her back on the career she had laboriously built. It wasn’t that her babysitter quit, which had preceded her previous retirement from the world of work. This time she quit, she says, because she thought people shouldn’t stay in the legislature too long. They get a big head. Or maybe she was just fed up. Just before she announced her resignation, she snapped at one of her colleagues, who had said, “If you were a man, I’d punch you in the mouth.” “If you were a man,” O’Connor uncharacteristically responded, “you could.” Years later when asked about her time in the mostly male Arizona statehouse, she sighed, “I was never one of the boys.” The tax limitation referendum failed to pass.
And once again she resigned without a plan for her future. But luck was with her this time. A month after she ended her stay in the legislature, a state judgeship became available. Under Arizona’s system of electing judges, first she had to win the Republican primary. It seems an odd comedown for the powerful legislative leader, but after a hard election battle she found herself in the basement of the courthouse presiding over ordinary criminal trials. By all accounts she very much enjoyed her obscure position, with its exposure to a range of human emotions and experiences. Despite their modest positions, the sixty or so members of the Arizona judiciary managed to make a good time for themselves. O’Connor reunited with Paul Rosenblatt, her old colleague from the AG’s office, now himself a state trial judge, at various judicial
conferences. There was always a big dinner, and Mary Fran Ogg, one of the judges’ wives, led long evenings of drink and song around the piano. Rosenblatt disagreed with Burton Barr’s quip about it never being Miller Time with his hardworking colleague in the legislature. Barr wouldn’t think that, Rosenblatt says, if he had seen O’Connor singing around the piano at “Ogg/judicial Miller Time.”
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Welcome Justice O’Connor
As O’Connor embraced and then retreated from real political power, other, similarly situated Republican women, who had also married “wealthily,” were making a flank attack on the world of politics, straddling the divide between women’s claims and the party’s increasing conservatism. The most brilliant success was Anne Armstrong, born into money even before she married the Texas rancher Tobin Armstrong. The Armstrongs had essentially revived the Republican Party in Texas, which had been a Democratic stronghold since the Civil War. The gonzo fund-raiser and organizer Armstrong did not run for office, but, rather, followed the traditional fund-raiser’s route to the Republican National Committee. She was the first female co-chair of the committee in history and then went on to become an advisor to Richard Nixon. This made her the go-to girl for female candidates for high office. In 1972, when the southwest regional campaign director wanted to recommend O’Connor for such a position, it was Armstrong he asked. One week before Nixon resigned in 1974, Armstrong suggested Patricia Lindh, wife of the oil executive Robert Lindh, to be White House special assistant for women.
In the palmy days of establishment Republican support for women’s causes like the ERA, Armstrong and Lindh moved smoothly into position under Nixon’s successor Gerald Ford. The women worked on women’s interest in matters such as credit discrimination and education. As the ERA faded from favor, it was the women candidates who commanded their attention. Unlike Ginsburg the litigator and O’Connor the legislator, when it came to women’s issues, Lindh described her undertaking as “nagging a lot.” On the rare occasions when the White House personnel office asked, she “inundated them with women.”
One woman on Pat Lindh’s list was the Maricopa County trial judge Sandra Day O’Connor. Lindh suggested Gerald Ford consider her to replace Supreme Court justice William O. Douglas in 1975. Proposing a lowly state trial judge for the Supreme Court is not as crazy as it sounds. There simply were almost no women on the bench at all in 1975, so Lindh’s list included low-ranking judges from the local D.C. trial court and a Florida state trial judge in a position like O’Connor’s. (That year also marks the first appearance of Ginsburg’s name on a list, predictably, from the National Women’s Political Caucus; she was certainly not an obvious contender for the attention of a Republican White House.) It all came to naught when Ford appointed the federal appeals court judge John Paul Stevens to take Douglas’s place.
As usual with her, O’Connor would rise along a much less traditional path than the women’s advocates in Washington could dream of. And once again, her connections played a role. To her everlasting good fortune, in 1979, her pal the teetotal Mormon—and former Phoenix mayor—John Driggs wanted to spice up his social life. “We go to all these other people’s cocktail parties and dinners,” John said to his wife, Gail, “and we can’t do the same.” Searching for a way to make a party special without violating the tenets of their religion with alcohol, John asked his wife, “Who do we know that’s important that might come in and give a speech and that would be our twist at the party?” “Well,” she said, “what about Mark Cannon?” Cannon, a distant relative, was the administrative assistant to the chief justice of the United States, Warren Burger.
Driggs immediately picked up the phone. “Hey, Mark,” he asked, “any chance that you’re going to be in Arizona?”
“Well, as a matter of fact, in August,” Cannon replied, “the chief and I are going to Flagstaff for a meeting.”
Flagstaff, three hours north of Phoenix, is a couple of hours south of the Grand Canyon area, including the gorgeous Lake Powell, created by a dam on the Colorado River. For years a favorite summer pastime of Arizonans was to rent houseboats and motor around the lake, swimming in its crystalline waters and admiring the stunning scenery. The Driggses had just gone to Lake Powell with a neighbor the year before and they were totally enamored with the experience. Without missing a beat, John Driggs asked Cannon whether the chief justice had ever been on Lake Powell. Cannon thought not. “What if,” Driggs inquired, “we tried to put a trip together after your conference?” A month later, the chief justice accepted the houseboat invitation. Driggs arranged to bring the Driggs kids, and the houseboat owner’s son offered to pilot them for a chance to meet the Big Chief.
Then Driggs had another problem: What to do to entertain the chief justice of the United States for three days? Gail and John Driggs weren’t even lawyers! They’d better expand the party, John decided. Reviewing the list of their acquaintances, John said, “Let’s just invite the O’Connors.” Even though Sandra was marooned in the humblest courtroom in Phoenix, John and Gail just felt totally comfortable with their good friends, and they knew the O’Connors were lively company. So John Driggs called his pal John O’Connor at his law firm and asked him if he’d like to help host Chief Justice Warren Burger of the Supreme Court after his conference in Flagstaff. “Would we ever!” John O’Connor replied.
A few months later, the chief justice walked onto the deck of a houseboat in northern Arizona. “Call me Chief,” he said in his trademark humble way. The little party swam, they explored the canyons, they ate the wonderful meals the Driggses and O’Connors had painstakingly planned. At the table, the chief justice took the opportunity to share with the assembled families his personal history, his interest in American history, and any other matters they cared to discuss. Indeed, if anyone asked Burger a question away from the assembled seven or eight passengers, he would always defer the answer until he had everyone’s full attention.
Several times the guests lingering over the table after dinner would notice that the chief—and Superior Court Judge Sandra Day O’Connor—had vanished. When John Driggs went looking he found the two of them sitting in a remote corner of the upper deck, chatting away like old friends. On several occasions, they spent until the wee hours of the morning talking. No one knows what they said. Gail Driggs speculates they were discussing stories from history.
“Wouldn’t it be great,” Gail said to her husband as they drove back to Phoenix after the vacation, “if someday Sandra went on the Court?”
“Don’t be silly,” he replied. “Never happen.”
Six months later, Governor Bruce Babbitt elevated O’Connor out of the basement and onto the intermediate state court, the Arizona Court of Appeals. The woman she replaced, Judge Mary Schroeder, the first woman partner in a major Phoenix law firm, had just been appointed to the Federal Court of Appeals for the Ninth Circuit by President Carter. Schroeder was the beneficiary of the same lobbying and organizing that put Ginsburg on the D.C. Circuit, and she was the Arizona Democrats’ candidate for the pathbreaking Supreme Court slot, should the opportunity arise. At the time, O’Connor’s appointment to replace her on the Arizona court just looked like insurance to Governor Babbitt, who was planning a run for reelection and did not want the popular female ex-legislator O’Connor as his Republican opponent. But he wasn’t the only one with his eye on the compelling Sandra Day O’Connor. When the Driggses reached O’Connor in the receiving line at her investiture ceremony as an appellate judge, she drew John Driggs aside. “Guess what!” she whispered. “The chief just invited me to go to London with an American delegation to a legal conference.”
Whatever the occasion, she always rose to the occasion. Bill Bryson, who went on to become a judge on the U.S. Court of Appeals for the Federal Circuit, was then a low-level employee in the Justice Department and, coincidentally, the boyfriend of Justice Powell’s former clerk Penny Clark. He was also one of the staffers to the delegation Burger assembled. When he returned from London he rep
orted to Penny that there was this amazing woman on this trip, who had added so much to the discussions with her perspective as a legislator. What a brilliant person, and most of all, unlike other notables on the trip, this stranger from Arizona was “kind and considerate to the staff who were making their trip comfortable and took note of the efforts the people who were organizing all of these things were making.”
FWOTSC HAS A THOUSAND FATHERS
By 1980 the bipartisan consensus on women—that the laws should not discriminate on grounds of sex and that qualified women should be allowed to compete for jobs at every level—had seriously unraveled. There was no more room for good-government Republicans to agree to disagree on matters such as the Equal Rights Amendment while well-heeled women such as Anne Armstrong and Pat Lindh “nagged” long-suffering men in the White House for a token appointment here and there. At its 1980 convention, the Republican Party, firmly in the hands of the conservative wing, and about to nominate Ronald Reagan, repudiated its support for the Equal Rights Amendment and allied itself publicly with the opponents of women’s abortion rights. Polling revealed that women were starting to peel off from the Grand Old Party. Four years later, the gender gap, wherein women disproportionately support the Democratic candidate and men the Republican, would emerge as a constant in American politics.
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