Sandra Day O’Connor will remain a unique individual in American history. Not only because she was the first woman on the SCOTUS, but because her judicial temperament was of her time and age.
She became an attorney at a time when higher education for women lagged far behind that for men. A time when the majority of educated women became teachers and nurses. Those who became attorneys, scientists and physicians were small in numbers and toiled in low level positions with limited opportunities for career advancement. Then along came the second wave of feminism - roughly corresponding to the publication of Friedan's "Feminine Mystique."
What we tend to forget is that in the dawn of this wave of feminism, it wasn’t an exclusively liberal movement. There were plenty of educated and politically conservative women who didn’t want to spend twenty years of their lives being pregnant. Thirty years engaged in child rearing and housekeeping. And the remainder working for 60% of what the equally qualified men earned. Contraception and equal opportunity bound together educated women across political divides and minimized the differences.
Early feminist theory postulated that our institutions would be transformed once they were no longer bastions of white males. Women and mothers would introduce a less aggressive, a more nurturing, more emotionally sensitive and more inclusive sensibility. That women offered unique, undervalued and underappreciated skills to the workplace. As such, the politics of feminism were of a higher order than that of traditional left-right, liberal-conservative, and getting women in institutional leadership roles was a primary objective.
The women who constructed those arguments were of O’Connor’s generation. The identified gender differences probably said more about their generation than they did about real differences. They were less true for women of the Baby Boom generation that followed them and much less so for the next ones. The differences between the judicial temperaments of Rhenquist and O’Connor is one of sexual politics. O’Connor’s was informed by the experiences of being a woman and mother and professional success that owed more to affirmative action than ruthless ambition.
O’Connor didn’t shy away from viewing cases through her heart. Kindness is one of her virtues. Another is a sense of fairness. She either wasn’t infected with racism as Rhenquist was or the Civil Rights movement was an adequate antidote. As a woman, her conservatism became one that respected tradition more than a hard lens through which Constitutional questions were approached. She did shy away from judicial activism and tended to make her decisions in the narrowest possible terms and frequently pleased nobody. She has been more consistent and true to her principles than the three conservative monkeys on the court. Yet, even she knows that her legacy will most likely be Bush v. Gore. Twenty-five years of respectable work squandered on a single partisan and cowardly vote.
She joined the court before rightwing evangelical Republicans sensed differences between themselves and conservatives like Goldwater, Nixon and Reagan. Before they had the political clout to demand nominees to their liking. Republican nominees who would sell their souls to the rightwing “Christians” if that’s what it took to get them a lifetime appointment. They’ve been busy vetting lower court judicial nominees ever since then and it is unlikely there is another O’Connor (very conservative and pro-choice) on the bench anywhere who is under the age of sixty-five. Tradition demands that her replacement be another woman, but as that criteria will only give us a white female version of Clarence Thomas, to hell with tradition. Better to take our chances with a white male, assuming that Senate Democrats have noticed Bush’s approval ratings and can find their spines. If not, it will be a new day and not a nice one.