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The Honolulu Advertiser
Posted on: Sunday, July 10, 2005

Bush should emulate Reagan on court pick

By Lou Cannon

With his appointment of Sandra Day O'Connor to the high court in 1981, President Reagan made good on a campaign promise to name a woman to "one of the first Supreme Court vacancies in my administration."

Ronald Reagan Presidential Library

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In setting out his domestic agenda, President Bush has made a point of following in the ideological footsteps of President Ronald Reagan.

But if Bush wants to emulate his role model with his first Supreme Court appointment, he should give greater weight to politics and intuition than ideology. That was, after all, how Reagan chose Sandra Day O'Connor for the court in the first place.

The seeds of O'Connor's appointment were planted in the 1980 presidential campaign. In mid-October, most surveys gave Reagan a narrow lead over President Jimmy Carter, but his political strategist, Stuart K. Spencer, worried about a trend in the campaign's private polls, which showed support slipping among women voters.

Spencer discussed this "gender gap" with the candidate and suggested different ways of addressing it. Out of this discussion came a Reagan proposal to name a woman to the Supreme Court.

Some true-blue conservatives on Reagan's staff were not thrilled. The first vacancy on the court might be the chief justice, they said. Would Reagan want a woman for that job? Reagan never really answered the question but mollified these critics by slightly watering down the proposal.

In Los Angeles on Oct. 14, he promised to name a woman to "one of the first Supreme Court vacancies in my administration." Spencer told me recently that he thought this hedge made the proposal less politically dramatic, but he had no doubt that Reagan meant to put a woman on the court.

With Americans held hostage in Iran and the economy in tatters, the proposal received little news media attention during a campaign that turned on other issues and Reagan's performance in a debate with Carter. Reagan won the debate and the election.

The court was back-burner news in February 1981 when Justice Potter Stewart sent word to the new administration through Vice President George H.W. Bush that he intended to retire after the court's term ended in June.

When Reagan met with his aides to discuss a potential replacement, he recalled his promise and said he wanted a female justice. One of the aides reminded Reagan of his "one of the first" formulation. Reagan observed that Carter had not had any Supreme Court vacancy to fill and said this one might be his only chance.

After this exchange, it was clear that Reagan considered his campaign promise unambiguous, and Attorney General William French Smith, who had once been Reagan's lawyer in Hollywood, got the message.

Although Smith had a list of 20 candidates, including eight men, he never sent it to Reagan. The attorney general narrowed the list to four women, one of them a moderately conservative Arizona appeals court judge named Sandra Day O'Connor.

Because others on the list had more imposing legal credentials, Judge O'Connor was no sure thing. But she had a friend in court — literally — in William Rehnquist, then an associate justice, whom she had briefly dated when they were both students at Stanford Law School, and the endorsement of her home-state senator, Barry Goldwater, then Mr. Conservative of the Republican Party. Smith liked her, too.

Most important, as Reagan later said, he was "charmed" by O'Connor. When he interviewed her in the White House, they spent much of the time discussing horses and O'Connor's childhood on an Arizona ranch. Reagan never interviewed anyone else.

The appointment of Sandra Day O'Connor involved more than personal chemistry. Reagan was no lawyer — indeed, he delighted in telling anti-lawyer jokes — but he was consistent in identifying the kind of people he wanted on the high court, or for that matter, any court.

As Reagan saw it, judges should interpret the law, not make it, a broad and relatively inclusive conservative rubric that in his eyes embraced everyone from Sandra Day O'Connor to Antonin Scalia to Robert Bork to Anthony Kennedy. Reagan didn't believe in litmus tests and didn't ask O'Connor how she would rule on specific issues.

As far as I can determine, Reagan never put such a question to any judicial nominee. His reluctance to do so did not stop Senate conservatives from questioning O'Connor about abortion, which she said she opposed.

While Reagan avoided a narrow judicial screening, he delighted in making a bold political statement. He liked the symbolism of being the first president to put a woman on the Supreme Court, and later, when he named Scalia, being the first to nominate an Italian-American justice. Today, Reagan might have been tempted to make a similar splash by naming a Latino.

Times have changed, of course. Abortion is more of a touchstone issue than in 1981, when many conservatives shared the libertarian views of the Old Right, epitomized by Goldwater and the mantra that government had "no business in the board room or the bedroom." Reagan himself had signed a permissive abortion-rights bill as governor of California in 1967, although he later disavowed the measure.

Abortion aside, politics was also less polarized a generation ago; the present continuous cycle of confrontational and mean-spirited confirmation hearings on Supreme Court justices did not begin until the Senate rejected Bork in 1987.

Reagan was angry at losing that confirmation battle, but he was unperturbed as O'Connor moved slightly leftward on the court, upheld abortion rights, and became the centrist she is today. In his memoir, "An American Life," Reagan said, "she turned out to be everything I hoped for."

So far, Bush seems to be steering a low-key, nonconfrontational course in his search for O'Connor's replacement. Let's hope he keeps trimming his ideological sails and doesn't shrink from practical politics in making his decision.

After all, our country and the court are arguably better off because Reagan insisted on keeping a promise he made during the heat of a presidential campaign.