Nixon Gaffe Sparks Era of Judicial Advance

(WOMENSENEWS)–When Justices Harlan and Black announced their retirement from the U.S. Supreme Court in September of 1971, President Nixon–the first president to systematically use ideological and policy litmus tests for judges, rather treating them as largely patronage positions–promised to "appoint the best man for the job."

Liz Carpenter, Lady Bird Johnson’s press secretary from 1963 to 1969 and one of the founders of the then-new National Women’s Political Caucus, did not let that comment pass.

Carpenter, a vice president of Hill and Knowlton, a public relations firm, was well connected with women in the Washington Press Corps and telephoned Virginia Kerr.

Kerr, who later went on to clerk for U.S. Supreme Court Justice Potter Stewart, was setting up the National Women’s Political Caucus Policy Council staff and working on press and legislative testimony. Carpenter urged Kerr to have the Caucus issue a press release and later that day took it by hand to a restaurant dinner date with some serious newswomen: Eileen Shanahan of The New York Times, Helen Thomas of The Associated Press and Isabel Shelton of the Washington Star.

Knowing that Monday September 20 was likely to be a slow news day, the well-connected Carpenter’s agile marshaling of reporters and advocates produced stories in the morning papers and NBC, CBS and ABC.

In a recent e-mail, Kerr was still relishing the media campaign by the National Women’s Political Caucus. She says it turned the taken-for-granted male monopoly into a gaffe and put women "in the rhetorical field of consideration for future Supreme Court vacancies."

Women Lobbied Ford

Women’s groups later urged President Ford to appoint a woman to replace William O. Douglas and objected that all the president’s advisers on judges were men, most of whom had opposed passage of an Equal Rights Amendment.

It was not until the Carter Administration, however, that the women’s groups’ consolidated efforts paid off. When Carter took office in January 1977, four women served on the federal bench; at that point only eight had ever served.

The federal judiciary consists of district courts (at least one in each state), 13 courts of appeals (intermediate appellate courts) and the final court of appeal, the U.S. Supreme Court. When Carter left office, 44 women served; nearly 16 percent of his appointments were women.

One of the insiders who produced that dramatic policy change was Margaret McKenna, then only 32 years old and the first woman to hold the position of deputy White House counsel.

McKenna wrested exclusive control of judicial appointments from Attorney General Griffin Bell and the Justice Department, which continues to share that power with the White House Counsel’s office to this day.

She met with Carter’s newly-created nominating commissions for the circuit courts and charged them with including women and minority men on their lists.

She worked with outside women’s groups to push forward names, enlisting other women in the White House, including Sarah Weddington, special White House adviser to President Carter (and the lawyer who argued Roe v. Wade); Midge Costanza, presidential assistant for public liaison and the First Lady Rosalynn Carter.

McKenna Used Her Access

While Bell had the prestige of being a former judge and enjoyed a longstanding relationship with Carter, McKenna used her close proximity and access to the President–she was often the last person he spoke to before making a decision–to press for a diverse and representative bench.

She helped Carter connect the dots between his commitment to women in government–which he conceptualized narrowly as women’s participation in the executive branch–and his commitment to merit selection for judges.

Before Carter’s presidency, judgeships in district and circuit courts had been patronage appointments under the control of senators. While McKenna succeeded in persuading Carter to nominate women and minority men, she could not prevent the ABA Committee from giving them low ratings, nor secure their confirmation by the Senate.

Women’s groups held Carter accountable. Susan Ness, with the National Women’s Political Caucus, lamented the poor performance of the Carter Administration in its first two years in office in opinion pieces in The Washington Post and L.A. Times.

Her articles caught the attention of White House staff. The National Women’s Political Caucus’s Legal Support Caucus formed immediately to encourage women to apply for judgeships, to conduct training sessions about how to apply and to produce a list of well-qualified women.

The Legal Support Caucus lobbied White House officials and testified before Congress. They set up their own screening panels and generated names. In 1979, they helped to form the National Association of Women Judges and asked presidential candidates to commit to appointing a woman to the U.S. Supreme Court.

The ten-year-long campaign hit a high when President Reagan nominated Justice Sandra Day O’Connor in 1981. But he still left a poor record on other judicial appointments. Only about 8 percent of his appointments were women, half of Carter’s rate.

Sally J. Kenney is professor of public affairs and law director at the Center on Women and Public Policy Hubert H. Humphrey Institute of Public Affairs.