Sandra Day O'Connor Offers Career's Insights on the Law, Court

Article excerpt

Byline: Bruce Fein, SPECIAL TO THE WASHINGTON TIMES

To mimic Malvolio's reading in "Twelfth Night," some women are born great, some achieve greatness, and some have greatness thrust upon 'em. Associate Justice Sandra Day O'Connor, the Supreme Court's maiden female appointee in 1981, fits the third obelisk of luster, as do the overwhelming majority of males who have vaulted to the High Court. Her reflections on the law and women in society are corroborative. No pithy or penetrating wisdom of an Oliver Wendell Holmes, Louis Brandeis, or Benjamin Cardozo leap forth that will guide constitutional thinking for the ages.

The author's pedestrian chronicling of her appointment and service, our constitutional history and landmarks, women and the law, the legal profession and the courts, and the rule of law is unrewarding. Emblematic is the following: "Today American women are confronted by 'the juggle.' While many women are able to balance a profession and home admirably, it is nonetheless true that time spent at home is time that cannot be billed to clients or spent making contacts at social or professional organizations."

Justice O'Connor sermonizes that an unelected judiciary enjoying life tenure with the power to thwart overreaching by the legislature or executive is indispensable to freedom. Yet more than a score of States of the United States elect judges or expose incumbents to retention and still sport free societies. In Great Britain, parliamentary supremacy is celebrated over judicial supremacy without shipwrecking freedom and the rule of law. The DNA of freedom is more complex and elusive than Justice O'Connor insinuates.

On the other hand, she performs yeoman's service discrediting the feminist gospel that gender affects judicial reasoning or decisions. She places a dunce cap on sociological-psychological blather about gender-biased justice: "As we judges put our hands upon the clay, some say that differences emerge in the ways in which women and men resolve some issues. Scholars have undertaken studies of the methods and decision making of women judges in comparison with their male counterparts.

"To my surprise, one author has surmised that my opinions differ in a peculiarly feminine way from those of my colleagues. She concluded that my opinions reveal that I have been less willing to permit violations of the right to full membership in the community, that I view the shaping of values of the community through governmental processes as an important function of the community, and that I employ a contextual approach and tend to reject so-called bright-line rules. I would guess that my colleagues on the Court would be as surprised as I am by these conclusions.

" . . .There simply is no empirical evidence that gender differences lead to discernable differences in rendering judgments.

" . . . I would echo the answer of another woman judge, Justice Jeanne Coyne, formerly of the Minnesota Supreme Court, who says that 'a wise old man and a wise old woman reach the same conclusion.'"

Justice O'Connor is substantiated in her gender-neutral judging experience and perceptions by Associate Justice Ruth Bader Ginsburg, her more liberal colleague appointed by President William Jefferson Clinton. The second female Justice recounts: "[I]n the law, I have found no natural superiority or deficiency in either sex. I was a law teacher until I became a judge. In class or in grading papers over seventeen years, and now in reading briefs and listening to arguments in court for fourteen years, I have detected no reliable indicator of distinctly male or surely female thinking - or even penmanship."

Both justices encountered demeaning gender discrimination in the salad days of their professional careers before climbing to the apex of the law. Justice O'Connor recalls: "I graduated near the top of my class from one of the better law schools [Stanford] in the country. …