Sandra Day O’Connor: The Story Behind Her Appointment and Decisive Abortion Vote
COMMENTARY: President Reagan’s close adviser, William Clark, regretted passing on the chance to sit on the U.S. Supreme Court, giving way to the first woman justice.
Sandra Day O’Connor, the first woman appointed to the U.S. Supreme Court, died Dec. 1 at age 93. For pro-life Catholics, her appointment by President Ronald Reagan was a grave mistake. Though O’Connor generally was considered a court “moderate,” she was a decisive swing vote in favor of preserving so-called “abortion rights,” including the outrageous January 1973 Roe v. Wade decision, a judicial abomination with no basis whatsoever in the U.S. Constitution.
Since the announcement of her death, I’ve received emails asking how Reagan, as a pro-life president, could have appointed O’Connor, given that he wanted pro-life justices on the high court. The answer is that Reagan thought he had a pro-lifer in O’Connor, just as he also thought he had a pro-lifer in Justice Anthony Kennedy, a still greater disappointment.
Kennedy wrote the majority decision in the 1992 Planned Parenthood v. Casey, which preserved and extended Roe, and on which he was joined by O’Connor. Kennedy also spearheaded the likewise constitutionally farcical Obergefell decision (2015), enshrining same-sex “marriage” as the law of the land. As with Roe on abortion, Obergefell magically read into the Constitution a “right” nowhere to be found in the document, and which, in one fell swoop, superseded marriage laws in all 50 states.
Yes, Reagan failed terribly on these two of his three Supreme Court picks. (For the record, one of Reagan’s three picks — Antonin Scalia — turned out to be a superb choice.)
All of which begs the question: How did Sandra Day O’Connor get by Reagan and his advisers on the abortion issue? Was she not vetted properly? Did no one ask her the hard questions about where she stood on protecting the unborn child’s right to life?
The answer was apparently, no, they didn’t.
Unfortunately, this is something that I learned from Reagan’s most important adviser, the late William P. Clark. I was Clark’s biographer, as well as close friend. He was like another grandfather to me. The devout Catholic would sometimes jokingly refer to me as his “confessor,” given that, toward the end of his life, he unloaded on me many things that had bothered his conscience through his years of public service. One of them was what had occurred with O’Connor. Here’s what happened:
On June 18, 1981, 66-year-old Justice Potter Stewart announced that he was retiring after 23 years on the bench. Bill Clark, who at that point was Reagan’s deputy secretary of state, was at the top of Reagan’s list to replace Stewart. Clark himself had been a judge, appointed to the California Supreme Court by Gov. Reagan after serving as his chief of staff in Sacramento. The day after Stewart’s announcement, both The Washington Post and The New York Times placed Bill Clark on a short list that had also included then-current Attorney General William French Smith.
I confirmed with Clark that Reagan had indeed asked him if he wanted to be considered for the vacancy.
“Well, it’s an honor to be considered,” Clark had told Reagan, “but I’ve served on the court now for 12 years at three levels. I’m truly enjoying the work I’m doing for you now. I’d rather stay where I am.”
Clark also reminded Reagan that he had come to Washington to serve for a few years before returning to his ranch. He did not want to spend the rest of his life inside the Beltway. The president replied, “That’s what I thought you’d say, Bill.” Reagan pulled a piece of paper from his coat pocket and crossed Bill Clark’s name off the list.
Really, the job was Clark’s to turn down. If he had told Reagan that he wanted the seat, Reagan would have nominated him. Clark was a staunch pro-lifer. In June 1967, mere months into his governorship, Reagan had signed the Therapeutic Abortion Act. In doing so, he and the state Legislature legalized abortion in California, but only after Reagan was convinced that steps had been taken to make a bad, inevitable law better. Clark guided Reagan in trying to make the law more amenable to protecting unborn life. Both ultimately were shocked at the unintended consequences of the law. It was so abused by women seeking abortions and their doctors that it effectively fully legalized abortion in California pre-Roe.
From there on, Reagan would try to be more vigilant.
By the time of the Stewart vacancy in June 1981, Clark had earned respect as a justice on the Supreme Court of the nation’s largest state. He certainly merited consideration for the new position.
One reporter who knew that was The Washington Post’s Lou Cannon, who had known Clark and Reagan since the 1960s, when he had been a reporter in Sacramento. He tracked down Clark, who told Cannon: “I’ve made it clear I don’t want to be considered for the high court.”
Cannon told Post readers that Reagan administration officials were “looking hard” for a woman to fill the vacancy. Citing an unnamed official, Cannon named only one woman as a prospect: 44-year-old White House aide Elizabeth Dole, wife of Republican Sen. Bob Dole.
It’s a shame that Dole didn’t get the call. She was a smart, stalwart pro-lifer, a courageous woman who was winsome and principled.
On July 7, Reagan made it clear that he was indeed nominating a woman. Her name was Sandra Day O’Connor.
Prior to the announcement, Clark had been asked by Reagan to personally interview O’Connor at a local hotel where she was staying as the Reagan team evaluated her. She and Clark spoke for an hour and a half. Clark reported back to Reagan that O’Connor struck him as “qualified, competent, capable.” Reagan asked Clark, “Well, Bill, what did you talk about with her?” Clark smiled, “Well, we talked about horses and dogs and cows and kids and life.” Reagan chuckled, “That’s what I figured.”
But Clark and O’Connor likely discussed more than that. Clark’s son Paul, an attorney who has succeeded his father at the family law office in California, told me this: “I also remember dad saying at the time he and O’Connor mostly talked ranching, but I’m confident they also touched on judicial philosophy. Dad was not far removed from the CA Supreme Court and his battle scars were still fresh. As you know, his battles with the leftist majority were about the Constitution, the law as it was written by the legislature, and how the court should not be legislating from the bench. And I think dad and William French Smith were on the same page in that regard.”
Paul Clark added, “As important as the abortion issue was to dad, I believe his criteria in evaluating O’Connor wasn’t whether she was pro-life, but whether her judicial philosophy aligned with adherence to the Constitution, the law as written by Congress, and how she would rule going forward. If Roe v. Wade came up at all in their conversation, I think it would be along the lines of how the majority opinion was so incorrect along jurisprudential lines.”
By and large a moderate, O’Connor proved not moderate on abortion, where she was a crucial swing vote in ensuring there would be no limits placed on America’s runaway policy of abortion on demand. This was painfully obvious in the 1992 case, Planned Parenthood v. Casey. There, O’Connor teamed up with Kennedy to ensure another 30 years of Roe.
When Clark read Kennedy’s absurd “mystery clause” in the Casey ruling, justifying abortion (and much more), he felt sick. He couldn’t believe it. In a fatuous, infamous statement utterly contrary to the thinking of the American Founders, not to mention Kennedy’s Catholic Church, its Catechism, biblical and natural law, and logic itself, Kennedy proclaimed this bold new definition of freedom: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
That meant that every individual could conceive his or her own definition of life, not to mention marriage, gender and, well, everything — even meaning.
Reading statements like that from Kennedy, Clark regretted passing on the chance to sit on the U.S. Supreme Court, giving way to O’Connor. That was especially true because of the influence Clark could have had not only through his own vote but possibly on the vote of Kennedy, as well. Clark had known Kennedy well. They regularly had lunch together when both were judges in San Francisco, Clark on the state Supreme Court and Kennedy on the federal court. Kennedy, a fellow Catholic with Irish roots, was known to be pro-life, a key reason why Reagan nominated him. But Clark came to see how easily Kennedy was influenced by those around him and the winds of the culture. He blew with the spirit of the age.
Had Clark served on the high court, the vote on Casey could have flipped from 5-4 against Casey to 5-4 in favor, and perhaps even 6-3 in favor if Clark so influenced Kennedy.
So, yes, Clark had deep regrets, but he also knew that his own life had limits. He sensed that his role in what he and Reagan referred to as the “Divine Plan” called for him to serve Reagan as national security adviser and fight and win the Cold War. The culture war was left to others, like Kennedy and O’Connor, who proceeded to fail the pro-life side.
The culture of death continued to win, at least until June 2022, with the Dobbs decision, when a heroic Justice Samuel Alito and fellow allies committed to life, such as Justices Neil Gorsuch, Amy Coney Barrett, Brett Kavanaugh and Clarence Thomas, at last rejected the constitutional abomination that was Roe v. Wade.
Those were justices of conviction. Sure, O’Connor made some good decisions in her days on the bench, but her rulings on abortion were certainly not among them. For many of us, she will be remembered less as the first woman on the high court than for her crucial swing vote for abortion — a vote that prolonged Roe and its millions of abortions for decades more.
(Editor's note: This story was updated Dec. 13.)