Courting O'Connor

While O'Connor was a precinct captain for Goldwater, and the two were friends until he died at age 89 in 1998, she was not cut from the same ideological cloth as Rehnquist. Her first job upon returning to the workforce was as an assistant state attorney general, focused in large part on improving conditions at the state's mental hospital. After being appointed to the state Senate in 1969 and elected in her own right a year later, she was chosen by the Republican caucus as the first woman in U.S. history to be majority leader of a state Senate. Republicans enjoyed only a one-seat majority, and O'Connor is generally remembered as a consensus-builder. Her signature issue was merit selection of judges.

In 1974, with crime on the rise in Phoenix, she ran for state trial judge -- notwithstanding her own qualms about judicial elections. She campaigned as a "citizen, a wife, and a mother," who would "help replace fear in our streets with strength in our courtrooms." Once elected, she sentenced a mother of two small children to five years in prison for passing thousands of dollars worth of bad checks -- then went back to her chambers and wept, according to a 1990 biography by her former law clerk Peter Huber. She also threw out the conviction and death sentence of a murderer because of prosecutorial misconduct, and suppressed crucial prosecution evidence in another murder case because police had gathered it unconstitutionally.

It is a measure of her reputation as a middle-of-the-roader that she was elevated to the state's intermediate court of appeals in 1979 by a Democratic governor, Bruce Babbitt. Many people also see the appointment as a measure of her potential political appeal in Arizona. At the time, Republicans, including Goldwater, were urging O'Connor to run for governor against Babbitt. Babbitt, now a Washington lawyer and still a friend of O'Connor's , denies the widely held view that he was co-opting a potential rival when he put her on the appeals court. "She wasn't on a political track," he says.

When the Reagan team delved into O'Connor's record, she shaped up as a traditional country-club Republican rather than a New Right conservative. As a member of the state legislature, she had voted against busing for school integration and opposed gun control. After the Supreme Court overturned state death penalty laws in 1972, O'Connor was one of the leaders of an effort to write a new one for Arizona, telling Rudy Gerber, then a young staff lawyer, "Give us a death penalty we can live with." But she had also supported bilingual education, opposed state aid to private religious schools and strongly advocated the proposed federal Equal Rights Amendment.

Most troubling for the right was her record on abortion. In 1970, the Phoenix Gazette reported that O'Connor voted in a Senate committee to repeal the state's prohibition on abortion. But the votes were not officially recorded, and she later said she had no recollection of how she voted on the bill, which died in another committee. In 1974, as majority leader, she voted against a ban on state funds for abortions for poor women, and opposed a bill prohibiting abortions at the University of Arizona hospital. At the same time, she voted to give hospital personnel the right to refuse to participate in abortions.

Conservatives warned the Reagan White House that O'Connor was soft on abortion, but with Smith's strong support and back-channel endorsements from then-Chief Justice Warren E. Burger and Rehnquist, O'Connor was able to finesse the issue. She insisted, according to a memorandum written by then-Justice Department official Kenneth W. Starr, that "she had never been a leader or outspoken advocate on behalf of either pro-life or abortion rights organizations," according to David Alistair Yalof's book on Supreme Court nominees, Pursuit of Justices. That statement, together with her personal assurance to Reagan that she found abortion "personally abhorrent," sealed the deal. In fact, much of her face-to-face meeting with Reagan was taken up by a discussion of horseback riding and mending fences on the Lazy B, according to former Reagan adviser and attorney general Edwin Meese.

"Reagan was satisfied she was conservative in the judicial sense," Meese recalls. "He didn't ask about abortion . . . Some say it was a mistake not to press her about abortion, but that was just not Ronald Reagan's style." To this day, though, some Reaganites consider her appointment a gamble gone wrong. "She has not exactly lived up to what we would have wanted her to be," says former Reagan political aide Lyn Nofziger.

O'CONNOR'S SWEARING-IN MADE HISTORY and was treated accordingly by the media. Yet, for all the attention that was lavished upon her at the time, it was by no means foreseeable that she would rise to the controlling position she occupies now. Her experience as an appellate judge was limited to 18 months on an intermediate court in a sparsely populated state, and she had never set foot in the Supreme Court, much less argued a case there herself. As at Stanford, O'Connor felt unready. "I didn't think that my experience on Arizona's courts, as nice as it had been, had prepared me" for the Supreme Court," she told an Arizona public television station.

Initially, O'Connor floundered. That first week, she and a hastily assembled group of law clerks sat on the floor of her new chambers, surrounded by a mountain of legal petitions, trying to figure out in what order to address them. Their first guess, to sort the cases by the docket number indicating when they were filed, turned out to be wrong.

O'Connor survived by throwing herself into the work and finding mentors, particularly Justice Lewis F. Powell Jr. He helped the O'Connors find an apartment and agreed to let his own secretary, who did know the paper flow, go to work for O'Connor. Powell, a courtly Virginian and Nixon appointee, also offered O'Connor a model of centrism. It was Powell who, three years before O'Connor's arrival, had split the difference in the bitterly disputed Bakke affirmative action case, suggesting that racial quotas in university admissions were unconstitutional but that using race as a "plus factor" to help qualified minorities was not.

Once settled, O'Connor developed a style of working on cases that sounds like a judicial version of Harry Rathbun's Sunday evening seminar. Every other Saturday morning, she assembles her four law clerks in her chambers to discuss the cases coming up for argument. The clerk assigned to a particular case makes a presentation, and the justice raises questions, joined sometimes by the other clerks. O'Connor usually makes lunch, often drawing on her repertoire of Southwestern recipes. "She likes to hear people's points of view," says Stuart Banner, a professor of law at UCLA who clerked for O'Connor in the 1991-1992 court term. "I never felt I had to agree with her to conform to her view."

Optimistic and energetic are two of the most common words friends use to describe O'Connor, who survived a bout with breast cancer in 1988 without missing a day on the court. She exercises in the court's gym with female law clerks at 7:15 a.m. O'Connor can be lighthearted about her rustic origins, accepting induction into the National Cowgirl Hall of Fame in 2002, and alluding to that honor by posting a mock traffic sign in her chambers that reads "Cowgirl Parking Only."

Still, she does not suffer fools gladly. Reflecting both a lawyer's exactitude and, perhaps, Harry Day's high standards, she can be withering to those who, in her opinion, are not doing their best. An O'Connor pet peeve is the sloppy wording of both state and federal statutes; once, as a state legislator, O'Connor actually introduced an amendment to remove a comma from a bill.

The rancher's daughter who watched her father's cowboys rope steers despite broken ribs has repeatedly voted to interpret narrowly the sometimes ambiguous terms of the Americans With Disabilities Act, limiting workers' rights to claim its protections against job discrimination. During oral arguments in Bush v. Gore, in which she voted with Justices Kennedy, Rehnquist, Scalia and Thomas to stop the Florida election recounts, O'Connor evinced little sympathy for Florida voters who couldn't follow directions on how to punch the chads out of their ballot cards. In her view, their votes shouldn't count if they didn't punch the ballot correctly. "Why isn't the standard the one that voters are instructed to follow, for goodness sakes?" she demanded. "I mean, it couldn't be clearer."

As those remarks and her willingness to tackle the core issue in the pledge case demonstrate, O'Connor's willingness to split the difference on some issues is not to be confused with indecision. Another token of her Western origins in her chambers is a Papago Indian weaving, "The Man in the Maze." "It's my favorite," she told a Washington audience in March, "because that's what life is after all. We're like the man walking in the maze . . . You have to go this path or that, and you don't know what it's going to lead to, but you don't worry about it. You make the best choice you can and do the best job you can."

O'CONNOR HAS GENERALLY SUPPORTED CONSERVATIVE POSITIONS on crime, economic regulation and, especially, the sovereignty of states in relationship to Washington. Among the laws O'Connor has voted to strike down as impinging upon the authority of the states: a statute that would have made it a federal crime to carry a firearm within 1,000 yards of a school; a provision of the Americans With Disabilities Act permitting disabled state government employees to sue their bosses for discrimination; and a provision of the Violence Against Women Act that gave victims the right to sue their attackers in federal court.

Even on states' rights, however, O'Connor has her limits. Last year, she voted to uphold the right to sue state employers for violating the Family and Medical Leave Act. This year, she joined the court's liberals in a 5 to 4 ruling that allows states to be sued under the disabilities act if they fail to make their courthouses accessible to the handicapped.

And on two of the social issues the conservative movement probably cares about most -- abortion and race -- O'Connor first raised, then dashed, the right's hopes.