Sandra Day O’Connor – The Intelligent Collector Magazine

To borrow a phrase, Chief Justice Roberts looked like he came directly from central casting

A photograph of Chief Justice John G. Roberts Jr. and Associate Justice John Paul Stevens, taken following Roberts’ oath-taking and signed by both on the mat, went to auction in May 2017.

By Jim O’Neal

At noon on Sept. 12, 2005, I was glued to the TV to watch the start of the Senate Judiciary Committee. Chairman Arlen Specter gaveled the committee to order to consider the nomination of Judge John Glover Roberts Jr. as Chief Justice of the Supreme Court. Day one included Judge Roberts’ introduction of his family and friends in attendance, followed by four short speeches by prominent senators advocating for his confirmation. This abbreviated session was to accommodate the short attention spans of Roberts’ two young children. The meeting was adjourned for the day with the formal occasion to resume the following morning.

As an amateur connoisseur of great speeches and the courtroom drama that testimony in front of Congress can engender, I was impatient for the next day. I was not disappointed. Judge Roberts, dressed in a black suit and starched white shirt and tie (but without his customary gold cuff links) looked like he was out of central casting. He assumed his seat after the customary swearing-in ritual. However, what was strikingly different was the starkness. The table where he sat and made his opening statement was devoid of items. Not a single note, pen or even a glass of water. One man sitting all alone looking up at 18 senators (nearly half of them partisan enemies hoping to derail his career), while he looked totally relaxed, confident and alert.

Devoid of any speeches or even cue cards, he politely thanked several and transitioned to his Indiana roots, referring to “the limitless fields punctuated only by a silo or barn.” It evoked an image of Middle America that effortlessly transported the entire committee back to their own memories of growing up. It was a flawless finesse that allowed him to exclude any reference to his life in the exclusive Long Beach community on Lake Michigan or his selective education at La Lumiere, a college prep school where a jacket and tie were required for classes and the dining hall. He graduated No. 1 in his class in 1973 and was the school’s first Harvard-bound student. Naturally, he graduated from Harvard summa cum laude in 1976, and graduated magna cum laude from Harvard Law.

He would let others plump his resume, while he edited himself down to a plainspoken, modest Midwesterner. Janet Malcolm commented in The New Yorker: “Watching Roberts on television was like watching one of the radiantly wholesome heroes that Jimmy Stewart and Henry Fonda played. It was out of the question that such a man be denied a place on the Supreme Court.”

Roberts was aware of the value of including a vivid metaphor, quotable line or a phrase to memorialize the event and he picked a good one. “Judges are like umpires. Umpires don’t make the rules, they apply them. The role of a judge and an umpire is critical. They make sure everyone plays by the rules, but it is a limited role. Nobody ever went to a ballgame to see the umpire.” That is now a common definition often used when needed.

It was a twist of fate that John Roberts was being interviewed for Chief Justice. On July 19, 2005, President Bush had nominated him to fill the vacancy created by the retirement of Justice Sandra Day O’Connor. While this nomination was still pending, on Sept. 3 Chief Justice William H. Rehnquist died from thyroid cancer. During the process of selecting Justice O’Conner’s replacement, Bush had solicited the opinion of several young lawyers in the White House. One was Brett Kavanaugh, who had been nominated to the D.C. Circuit Court of Appeals. Kavanaugh told him that both Roberts and Samuel Alito would be solid choices, but the tiebreaker would be who was most capable of convincing their colleagues through persuasion and strategic thinking. On this basis, Roberts was clearly the best.

After the Hurricane Katrina disaster that August, President Bush had no appetite for controversy. Reports on Judge Roberts’ interviews in the Senate were going so well that he changed Roberts’ nomination to Chief Justice. That would delay the O’Conner replacement for several months and the court would have to operate with only eight members. This was fortunate, since a highly unqualified Harriet Miers, who worked for Bush in the White House, was the lead candidate to replace O’Conner … and with more time to consider her credentials, saner heads prevailed.

The next three days of hearings offered an exquisite buffet for addicts like me. It started with a round of 10 minutes per senator and it was mildly amusing when Senator Joe Biden’s pontificating took so long that he ran out of time before asking a single question. Judge Roberts displayed remarkable intellect – and a wry sense of humor – when discussing important Supreme Court cases. When Senator Lindsey Graham of South Carolina asked Roberts what he would like future historians to say about him, Roberts joked: “I’d like for them to start by saying, ‘He was confirmed!’”

Questions fell into a regular rhythm and Roberts answered them almost effortlessly. In addition to his education and experience, the “Murder Boards” – the phrase used for pre-hearing rehearsals – must have really fine-tuned every aspect of what was anticipated. Even today, prospective nominees study the tapes of his hearing as part of their preparation. I got the feeling he was being polite to a bunch of partisan senators (all lawyers) without acting too condescending.

Senator Chuck Schumer of New York became so frustrated at one point he said, “Why don’t we just concede John Roberts is the smartest guy in the room.” In another memorable exchange, Schumer complained, “You agree we should be finding out your philosophy, and method of legal reasoning, modesty, stability, but when we try to find out what modesty and stability mean, what your philosophy means, we don’t get any answers. It’s as if I asked you what kind of movies you like. Tell me two or three good movies and you say, ‘I like movies with good acting. I like movies with good directing. I like movies with good cinema photography.’ And I ask, no, give me an example of a good movie, you don’t name one. I say, give me an example of a bad movie, you won’t name one, and I ask you if you like Casablanca, and you respond by saying lots of people like Casablanca.”

Senator Specter started to cut Schumer when Roberts interrupted, “I’ll be very succinct. First, Doctor Zhivago, and North by Northwest.” Yes, there was laughter in the room.

Roberts made it out of the Judiciary Committee on a vote of 13-5 as Democrats found creative excuses to vote no. Then it was on to the full Senate, where he was confirmed 78-22. The 50-year-old Roberts became the youngest Chief Justice since 1801, when the venerable John Marshall (46) was selected.

The Chief Justice is mentioned only once in the Constitution, but not in Article 3, which establishes the judiciary. It is in Article 1, covering Congress, and it says the Chief Justice presides over the Senate during any impeachment of the president (Article 1 Section 3 Clause 6).

The framers vested the Senate with the “sole power to try impeachment” for several reasons. First, they believed senators would be better educated, more virtuous and more high-minded than members of the House. Secondly, it was to avoid the possible conflict of interest of a vice president presiding over the removal of the one official standing between him and the presidency. Of our 45 presidents and 17 Chief Justices, only Andrew Johnson and Bill Clinton have been impeached, with Samuel Chase and William Reinquist presiding over their trials. Both were acquitted.

Intelligent Collector blogger JIM O’NEAL is an avid collector and history buff. He is president and CEO of Frito-Lay International [retired] and earlier served as chair and CEO of PepsiCo Restaurants International [KFC Pizza Hut and Taco Bell].

Selecting a justice has always been a messy, partisan process

This photograph, circa 1968, autographed by Chief Justice Earl Warren and the eight associate justices, sold for $2,031 at a June 2010 Heritage auction.

By Jim O’Neal

The Senate Judiciary Committee began hearings this week to consider the nomination of Judge Brett Kavanaugh to the Supreme Court in their “advise and consent” role to the president of the United States. Once considered a formality in the justice system, it has devolved into a high-stakes political process and is a vivid example of how partisanship has divided governance, especially in the Senate.

Fifty years ago, President Nixon provided a preview of politics gone awry as he attempted to reshape the Supreme Court to fit his vision of a judiciary. His problems actually started during the final year of Lyndon Johnson’s presidency. On June 26, 1968, LBJ announced that Chief Justice Earl Warren intended to resign the seat he had held since 1953. He also said that he intended to nominate Associate Justice Abe Fortas as his successor.

For the next three months, the Senate engaged in an acrimonious debate over the Fortas nomination. Finally, Justice Fortas asked the president to withdraw his nomination to stop the bitter partisan wrangling. Chief Justice Warren, who had been a keen observer of the Senate’s squabbling, decided to end the controversy in a different way. He withdrew his resignation and in a moment of pique said, “Since they won’t take Abe, they will have me!” True to his promise, Warren served another full term until May 1969.

By then, there was another new president – Richard Nixon – and he picked Warren Burger to be Warren’s replacement. Burger was a 61-year-old judge on the U.S. Court of Appeals with impeccable Republican credentials, just as candidate Nixon had promised during the 1968 presidential election campaign. As expected, Burger’s confirmation was speedy and decisive … 74-3.

Jubilant over his first nomination confirmation to the court, Nixon had also received a surprise bonus earlier in 1969. In May, Justice Fortas had decided to resign his seat on the court. In addition to the bitter debate the prior year, the intense scrutiny of his record had uncovered a dubious relationship with Louis Wolfson, a Wall Street financier sent to prison for securities violations. To avoid another Senate imbroglio over some shady financial dealings, Fortas decided to resign. In stepping down, Fortas became the first Supreme Court justice to resign under threat of impeachment.

So President Nixon had a second opportunity to add a justice. After repeating his criteria for Supreme Court nominees, Nixon chose Judge Clement Haynsworth Jr. of the U.S. Court of Appeals, Fourth Circuit, to replace Fortas. Attorney General John Mitchell had encouraged the nomination since Haynsworth was a Harvard Law alumnus and a Southern jurist with conservative judicial views. He seemed like an ideal candidate since Nixon had a plan to gradually reshape the court.

However, to the president’s anger and embarrassment, Judiciary Committee hearings exposed clear evidence of financial and conflict-of-interest improprieties. There were no actual legal implications, but how could the Senate force Fortas to resign and then essentially just overlook basically the same issues now? Finally, the Judiciary Committee approved Haynsworth 10-7, but on Nov. 21, 1969, the full Senate rejected the nomination 55-45. A livid Nixon blamed anti-Southern, anti-conservative partisans for the defeat.

The president – perhaps in a vengeful mood – quickly countered by nominating Judge G. Harold Carswell of Florida, a little-known undistinguished ex-U.S. District Court judge with only six months experience on the Court of Appeals. The Senate was clearly now hoping to approve him until suspicious reporters discovered a statement in a speech he had made to the American Legion 20-plus years before in 1948: “I yield to no man as a fellow candidate or as a citizen in the firm, vigorous belief in the principles of White Supremacy and I shall always be so governed!”

Oops.

Even allowing for his youth and other small acts of racial bias, the worst was yet to come. It turned out that he was a lousy judge with a poor grasp of the law. His floor manager, U.S. Senator Roman Hruska, a Nebraska Republican, then made a fumbling inept attempt to convert Carswell’s mediocrity into an asset. “Even if he is mediocre, there are lots of mediocre judges, people and lawyers. They are entitled to a little representation aren’t they, and a little chance?” This astonishing assertion was then compounded when it was seconded by Senator Russell Long, a Democrat from Louisiana! When the confirmation vote was taken on April 9, 1970, Judge Carswell’s nomination was defeated 51-45.

A bitter President Nixon, with two nominees rejected in less than six months, continued to blame it on sectional prejudice and philosophical hypocrisy. So he turned to the North and selected Judge Harry Blackmun, a close friend of Chief Justice Burger who urged his nomination. Bingo … he was easily confirmed by a vote of 94-0. At long last, the vacant seat of Abe Fortas was filled.

There would be no further vacancies for 15 months, but in September 1971, justices Hugo Black and John Harlan announced they were terminally ill and compelled to resign from the court. Nixon was finally able to develop a strategy to replace these two distinguished jurors, but it was only after a complicated and convoluted process. It would ultimately take Nixon eight tries to fill four seats, and the process has only become more difficult.

Before Judge Kavanaugh is able to join the court, as is widely predicted, expect the opposing party to throw up every possible roadblock they have in their bag of tricks. This process is now strictly political and dependent on partisan voting advantages. The next big event will probably involve Justice Ruth Bader Ginsburg, a 25-year court member (1993) and only the second woman on the court after Sandra Day O’Connor. At age 85, you can be sure that Democrats are wishing her good health until they regain control of the Oval Office and the Senate. If not, stay tuned for the Battle of the Century!

JIM O’NEAL is an avid collector and history buff. He is president and CEO of Frito-Lay International [retired] and earlier served as chair and CEO of PepsiCo Restaurants International [KFC Pizza Hut and Taco Bell].

Usual Fireworks Expected with Latest Supreme Court Selection

This photograph, signed by Supreme Court Chief Justice William H. Taft and the eight associate justices, circa 1927, sold for $14,340 at a September 2011 Heritage auction.

By Jim O’Neal

It is that time again when the news will be filled with predictions of pestilence, war, famine and death (the Four Horsemen of the Apocalypse) as President Trump tees up his next candidate for the Supreme Court. One side will talk about the reversal of Roe v. Wade as an example of the terrible future that lies ahead. The other side will be quick to point out that this fear-mongering first started in 1981 when Sandra Day O’Connor (the first woman to serve on the court) was nominated by President Reagan and that nothing has happened in the intervening 37 years.

My prediction is that regardless of whoever is confirmed, there will be no evidence from the past on any opinions on “Roe” and he or she will have been groomed by the “Murder Boards” to answer that it is settled law. Murder Boards are groups of legal experts who will rehearse the nominee on how to answer every possible question the Senate Judiciary Committee might ask on any subject, not just Roe, in their role in giving advice and consent. It produces what former Vice President Joe Biden described as a “Kabuki dance” when he was in the Senate.

The questioning does produce great public theater, but it is a tradition that dates to 1925 when nominee Harlan Stone actually requested he be allowed to answer questions about rumors of improper ties to Wall Street. It worked and he was confirmed by a vote of 71-6 and would later serve as Chief Justice (1941-46). In 1955, John Marshall Harlan II was next when Southern Senators wanted to know his views on public school desegregation vis-à-vis Brown v. Board of Education. He was also successfully confirmed 71-11 and since then, every nominee to the court has been questioned by the Senate Judiciary Committee. The apparent record is the 30 hours of grilling Judge Robert Bork experienced in 1987, when he got “Borked” by trying to answer every single question honestly. Few make that mistake today.

Roe v. Wade was a 1973 case in which the issue was whether a state court could constitutionally make it a crime to perform an abortion, except to save the mother’s life. Abortion had a long, legal history dating to the 1820s when anti-abortion statues began to appear that resembled an 1803 law in Britain that made it illegal after “quickening” (start of fetal movements) using various rationales such as illegal sexual conduct, unsafe procedures and the state’s responsibilities in protecting prenatal life.

The criminalization accelerated from the 1860s and by 1900, abortion was a felony in every state. Despite this, the practice continued to grow and in 1921, Margaret Sanger founded the American Birth Control League. By the 1930s, licensed physicians performed an estimated 800,000 procedures each year. In 1967, Colorado became the first state to decriminalize abortion in cases of rape, incest or permanent disability of the woman. By 1972, 13 states had similar laws and in 1970, Hawaii was the first state to legalize abortion on the request of the woman. So the legal situation prior to Roe was that abortion was illegal in 30 states and legal in the other 20 under certain conditions.

“Jane Roe” was an unmarried pregnant woman who supposedly wished to terminate her pregnancy and instituted an action in the U.S. District Court for the Northern District of Texas. A three-judge panel found Texas criminal statues unconstitutionally vague and the right to choose to have children was protected by the 9th through the 14th Amendments. All parties appealed and on Jan. 22, 1973, the Supreme Court ruled the Texas statute was unconstitutional. The court declined to define when human life begins.

Jane Roe’s real name was Norma McCorvey and she became a pro-life advocate before she died and maintained she never had the abortion and that she was the victim of two young, ambitious lawyers looking for a plaintiff. Henry Wade was district attorney of Dallas from 1951 to 1987 and the longest serving DA in United States history. He was also involved in the prosecution of Jack Ruby for killing Lee Harvey Oswald. After he was convicted, Ruby appealed and the verdict was overturned, but he died of lung cancer and is constitutionally presumed innocent.

Stay tuned for the fireworks.

Reagan Made History with Appointment of O’Connor to Supreme Court

An Annie Leibovitz photograph of Ruth Bader Ginsburg (left) and Sandra Day O’Connor, dated 1997 and signed by the photographer, realized $1,750 at a February 2017 auction.

By Jim O’Neal

Ronald Wilson Reagan won two presidential elections, both by overwhelming margins. In 1980, he took 44 states with an electoral vote total of 489. Four years later, he crushed Walter Mondale, winning 49 states and 525 electoral votes (the all-time record).

The Reagan agenda included an attempt to alter the contemporary jurisprudential approach to the federal judiciary; he quickly made it known he would return to traditional criteria in selecting jurists. As a candidate, he made it crystal clear he was opposed to any type of racial or other quotas.

During the 1980 presidential campaign, candidate Reagan had promised “one of the first Supreme Court vacancies in my administration will be filled by the most qualified woman I can find, one who meets the high standards I will demand for all my appointments.” The opportunity to fulfill this pledge came within the first six months of his presidency.

On June 18, 1981, in what appeared to be a major surprise, Associate Justice Potter Stewart publicly announced his retirement from the Supreme Court, effective at the close of the 1980-81 term in July. However, members of the administration had actually known three months earlier and had informed the president (while he was still recovering from the assassination attempt). This gave the administration three months to search quietly for a nominee without outside pressure and feverish media speculation.

On June 25, Attorney General William French Smith gave the president a list of 25 names – approximately half of them women – clearly a new record in this regard. Among the women were Arizona Court of Appeals Judge Sandra Day O’Connor; Chief Justice of the Michigan Supreme Court Mary Coleman; and Judge Amalya L. Kearse of the U.S. Court of Appeals for the Second Circuit, a youthful black Carter appointee. On July 1, O’Connor and two other candidates met with the president and she quickly reminded him they had met 10 years before when he was governor of California and she was a member of the Arizona State Senate.

In addition to the successful interview, there was the Stanford connection: U.S. Supreme Court Justice William Rehnquist graduated from Stanford Law School in the same class as O’Connor. When Senator Barry Goldwater urged her selection, that was enough to clinch it.

The only strong dissent came from the New Right, including the Reverend Jerry Falwell of the Moral Majority, who encouraged all “good Christians” to express concern. Goldwater’s characteristically frank retort was “Every good Christian ought to kick Falwell right in the ass!”

On Sept. 15, 1981, the Senate Judicatory Committee approved Judge O’Connor 17-0 and six days later, the full Senate voted 99-0 to confirm (Senator Max Baucus of Montana – a strong supporter – was out of town for the vote).

So history had been made!

Intelligent Collector blogger JIM O’NEAL is an avid collector and history buff. He is president and CEO of Frito-Lay International [retired] and earlier served as chairman and CEO of PepsiCo Restaurants International [KFC Pizza Hut and Taco Bell].