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Excerpt: O'Connor led the court on abortion

  • Story Highlights
  • Sandra Day O'Connor was Supreme Court's guiding voice on abortion in 1990s
  • A Goldwater Republican, she was embraced by conservatives
  • Vetting process for court didn't catch her moderate stance on abortion rights
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By Jeffrey Toobin
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All this week is running excerpts from CNN Senior Legal Analyst Jeffrey Toobin's new book "The Nine: Inside the Secret World of the Supreme Court" published by Random House.

When it came to abortion rights, even at the start of the 1990s, the Rehnquist Court was in fact the O'Connor Court.

Author Jeffrey Toobin is CNN's senior legal analyst.

After blazing through Stanford Law School and graduating in 1952, Sandra Day O'Connor did not receive a single job offer as a lawyer. (The major Los Angeles law firm of Gibson, Dunn & Crutcher said she could come to work as a legal secretary.)

But O'Connor ignored the slights, as became her custom, and concentrated instead on building a life with her new husband, John. He graduated from Stanford Law a year after she did, and following his Army stint in Germany, they settled in the booming but still very small city of Phoenix, Arizona.

The next years passed in a blur, which was the pace of life O'Connor preferred. She had three boys in six years. She worked first at a small law firm, then as an assistant attorney general. She volunteered for local hospitals and the Salvation Army and worked her way up the hierarchy at the Junior League. She and John, who became a successful lawyer himself, hosted lively barbecues for dozens of people (often including Bill and Nan Rehnquist) at their adobe home in Paradise Valley.

Once, according to her biographer Joan Biskupic, the O'Connors staged a campy dedication party for a bridge they had built over their backyard pool. Men wore top hats and tails, with white shorts and sneakers, and women sported gowns and pith helmets. Boiled beef, potatoes, and English muffins were served, and bagpipes provided accompaniment.

Much later, in her chambers at the Supreme Court, O'Connor would demand that her law clerks replicate her own headlong style of living. Marriage, children, career, exercise, culture, politics, volunteer work -- she had done it all and everyone else should, too.

Female clerks were required to join in her three-mornings-a-week exercise class at the court gym. (Late in her tenure, she added salsa dancing to the workouts.) Male clerks planning weddings were ordered to get in shape. (One stuffed an ice cream cone in his desk drawer so she wouldn't see it.) Clerks dozing from exhaustion would be instructed to join her at special private showings at the National Gallery.

An annual clerks' picnic by the cherry blossoms in the Tidal Basin would (and often did) take place even in the rain. For O'Connor, even holidays were occasions for exertion. For Halloween, she demanded that her clerks decorate a pumpkin with a newsy theme. After 9/11, there was "Osama Bin Pumpkin"; a year later, a Martha Stewart pumpkin -- wearing prison garb.

The formative political event of O'Connor's years in Phoenix took place in 1969, when her local state senator moved to Washington to take a job in the Nixon administration. Though she had been an assistant attorney general for only four years -- and women politicians were still a novelty -- she persuaded the governor, Jack Williams, to appoint her to fill the seat.

O'Connor took to legislative work immediately, building coalitions, making deals, pushing bills through the process. The job suited her personality. She got along with people and liked to get things done. O'Connor came of age when Barry Goldwater dominated the Arizona Republican Party -- and she supported him for president in 1964 -- but her work in politics never had a particularly ideological edge. Fittingly, one of the first bills she sponsored was to repeal a 1913 law that prohibited women from working more than eight hours a day. To O'Connor, this was paternalism, not protection.

O'Connor took the same pragmatic approach to the subject of abortion, displaying the kind of artful political tacking on the issue that she would show on the court. She had taken office when a drive was on to change abortion laws in the state legislatures, and Arizona was no exception. At the time she became a senator, Arizona law prohibited abortions except to save a woman's life, and the following year, 1970, a liberalization bill came before a committee where O'Connor served.

On April 29, 1970, according to local newspapers, she voted to end criminal prohibitions on abortions in Arizona. The measure passed the committee but never came up for a vote of the full Senate. While she supported that pro-choice measure, she also backed a restriction on abortion rights, in the form of a law that would have allowed only licensed physicians to perform abortions. Shortly after O'Connor became majority leader of the Senate, Roe v. Wade made these initial rounds of legislative approaches moot; abortion would be legal regardless of what the state legislatures did. In Arizona at least, since the right to choose abortion was now protected by the U.S. Constitution, the issue faded from the state's immediate political agenda.

In a curious postscript, O'Connor's record on abortion rights was a focus of the vetting process when President Reagan was considering naming her to the court in 1981. O'Connor told the vetter, a young Justice Department aide named Kenneth Starr, that she had never cast a vote on the abortion liberalization measure. Starr took her word for it, and no one else thought to check the Phoenix papers for a record of her vote. (The scrutiny of Supreme Court nominees became much closer in later years.)

The omission allowed O'Connor to assure the Reagan team that she "personally" opposed abortion at the same time as she left a studied ambiguity about how she felt about the legal status of abortion rights. In truth, it seemed, O'Connor never gave abortion rights a great deal of attention as a legislator. To the extent she thought about abortion, she tried to steer a middle course between extremes on the issue -- an approach that would remain her touchstone in the infinitely higher-stakes setting of the Supreme Court. E-mail to a friend E-mail to a friend

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