Byline: Evan Thomas and Stuart Taylor Jr.
Justice Sandra Day O'Connor got her job through affirmative action. It was obvious to officials in the Reagan Justice Department, as they searched for a Supreme Court justice in the summer of 1981, that she lacked the usual qualifications for the high court. "No way," Emma Jordan, an assistant to the then Attorney General William French Smith, recalls thinking. "There were gaps in her background where she had clearly been at home having babies. She had never had a national position. Under awards, she had something like Phoenix Ad Woman of the Year." No matter. President Reagan wanted to appoint the first woman justice, so he named O'Connor.
Last week O'Connor in a sense returned the favor by playing the critical role in the most important affirmative-action case in decades. She cast the fifth and deciding vote and wrote the court's opinion in upholding the right of the University of Michigan Law School to use race as a factor in admissions. As a practical matter, her ruling in Grutter v. Bollinger gives a powerful judicial boost to affirmative action in education, a source of legal confusion and bitter debate in recent years. O'Connor, a moderate Republican, was hailed as a somewhat unlikely hero by liberal groups. She is seen as living proof that affirmative action works. There are now two female Supreme Court justices (the other is Ruth Bader Ginsburg, who did have the usual qualifications), and half the seats in America's law schools are filled by women. And one of the Bush administration's lead candidates to fill the next vacancy on the Supreme Court is a black jurist in California, Janice Rogers Brown.
O'Connor, however, is perhaps better understood when viewed through a different prism. She is not so much an avatar of the future, when divisive racial and gender distinctions may be history, but a creature of the past. Queenly but down to earth, a pragmatist, not an ideologue, she is the embodiment of the old progressive establishment in America. Like an earlier generation of nonpartisan statesmen (or, to their critics, elitists), she wishes to accommodate wrenching social change by quiet compromise and by avoiding the sort of hot-button rhetoric that is now a staple of TV and radio talk shows, not to mention some of her colleagues' opinions.
Moderate centrists are a dying breed in Washington; O'Connor's genteel approach is almost quaint in the current political climate. Indeed, were O'Connor or some other justice (four are older than 70) to step down, the political experts all predict a brutal confirmation battle between zealots on the left and right. O'Connor, by contrast, seeks consensus. She doesn't like to be part of polarizing decisions, says her brother, Alan Day. "She takes it hard and feels it hard," he told NEWSWEEK. On affirmative action, O'Connor searched for a middle way. The question is whether she resolved the issue--or fudged it, the way most Americans do.
O'Connor's model on the court has been the late Justice Lewis Powell. A courtly, gentle Virginian, Powell was a paternalist (he liked to quote Robert E. Lee on the virtue of duty) who was …