Balkinization  

Wednesday, May 02, 2007

Ronald Reagan on Sandra Day O'Connor

JB

From Reagan's private diaries, as reported by the Washington Post:
Even momentous decisions got terse treatment. Writing on the day he nominated Sandra Day O'Connor to the Supreme Court, Reagan said: "Already the flack is starting & from my own supporters. Rite to Life people say she's pro-abortion. She declares abortion is personally repugnant to her. I think she'll make a good Justice."
This comports with much of what we already knew about the O'Connor nomination. For Reagan, it was less important that O'Connor had publicly opposed Roe v. Wade than that O'Connor was personally opposed to abortion, that she was a fellow Westerner, that she was likely to be very strong on federalism issues, and above all, that she was a woman who would help him fulfill his 1980 campaign promise to appoint the first female Supreme Court Justice.

Reagan probably wanted to overturn Roe v. Wade, but it was a goal that he was willing to trade off for other political and legal considerations. His larger purpose was to replace more liberal jurists with more conservative ones, and shift the general direction of the courts rightward. In this task he largely succeeded, but political considerations inevitably tempered his decisionmaking. As a result, although O'Connor was a more conservative Justice than Justice Stewart (whom she replaced), and although she shifted doctrine rightward during the 1980's and early 1990's (she was the fifth vote in Bowers and the key federalism decisions, and she wrote Croson) she also wrote opinions like Casey and Grutter, which essentially preserved liberal decisions like Roe and Bakke, respectively.

It would be very interesting to know whether, in retrospect, Reagan thought O'Connor was a good choice and what, if Reagan were alive today, he would say about her legacy.

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