It is not surprising that Sandra Day O’Connor emerged as the crucial swing vote in the modern Supreme Court, or that her retirement presents President George W. Bush with a most unwelcome headache. Justice O’Connor’s appointment in 1981 emerged from the same dilemma that bedevils Republicans today. Then, as now, Republicans were torn between the pragmatic consensus politics necessary to govern effectively and the conservative dream of transforming America.

From the start of Ronald Reagan’s administration, ideologues and pragmatists clashed. Conservatives wanted Reagan to use his popularity to advance a revolutionary agenda that would actually shrink government, not just slow its rate of growth and that would undo some of the “damage” caused by the 1960s rebellion in law, culture, bureaucracy, economics and politics. The pragmatists preferred a broad-based, red, white, and blue appeal to the great, elusive American center they considered the key to maintaining popularity and power.

As early as February 1981, conservatives condemned Reagan’s predilection for, in Howard Phillips’s words, “consensus politics” over “confrontational politics.” The columnist Patrick Buchanan acknowledged the Reagan cabinet appointees’ “competence,” but asked: “where is the dash, color and controversy – the customary concomitants of a Reagan campaign?” In a cabinet of mostly moderate millionaires, the only fire-and-brimstone conservative was James Watt, an Interior Secretary hostile to environmentalists.

A year later, forty-five participants at the Conservative Political Conference would mark the Reagan administration’s first anniversary by signing an eight page statement complaining of numerous administration “deficiencies” threatening to squander “the opportunity for constructive change presented by the last election.” The biggest complaint focused on presidential personnel, where “credentials” counted more than “loyalty to the values of the Reagan revolution,” resulting in a status quo administration succumbing to “well-organized pressure groups.” The conservatives found the administration still addicted to government spending, too conciliatory and Kissingeresque on foreign policy, and betraying “the social agenda.” Back in March 1981 angry conservatives deemed these “issues of primary importance” after Republican Senate majority leader Howard Baker dismissed them as “collateral issues.” John Hinckley’s attempt to assassinate Reagan later that month, and Reagan’s push for economic reform, distracted the naysayers, temporarily. But by July, when Associate Justice Potter Stewart announced his retirement, many conservatives were seething.

And yet, given how much liberals dreaded Reagan’s first court appointee, conservatives allowed themselves to hope. Reagan, after all, had built his career bashing the Warren Court. Reagan wanted to solve the integrated problems of drugs, crime and permissiveness by restocking the federal judiciary. The foolish, out-of-touch, hopelessly liberal judge was a recurring stock character in Ronald Reagan’s after-dinner, Reader’s Digest-style anecdotes. In Reagan’s demonology “liberal judges” threatened common sense and the social order. Reagan loved recalling a California case involving two narcotics officers with a valid search warrant. They were about to leave a drug pusher’s home empty-handed when one officer approached a sleeping baby, “removed its diapers,” and found the heroin. Reagan would pause, crooking his neck and shaking his head ever so slightly, his wonder checking his outrage, as he added: “The case was thrown out of the court because the baby hadn’t given its permission to be searched.”

President Reagan, however, did not govern as radically as candidate Reagan preached. Reagan’s appointment of Sandra Day O’Connor infuriated conservatives, who doubted her commitment to eradicating abortion and blasted her support for the Equal Rights Amendment. Michael K. Deaver, the image-oriented deputy chief of staff, and a principal White House pragmatist, said the president liked O’Connor’s “kind of moderate approach'' because ''she had not been an activist'' regarding the ERA issue or abortion. Delighting in the man-bites-dog political twist, the Washington Post headline proclaimed: “REAGAN CHOICE FOR COURT DECRIED BY CONSERVATIVES BUT ACCLAIMED BY LIBERALS.”

Conservatives resented the dismissal of social issues as mere moral questions or private concerns. They winced as the White House treated “matters of belief” such as “supply-side economics,” as if they were true, and “matters of fact” … like “the human nature of the human fetus – as though they were matters of mystic belief.” The Reagan “mission” was “to found the political order anew: to bring the American people to the point of judgment, once again, about the moral understandings that finally bind them to one another and establish the terms of principle on which this political community shall live.” Conservatives wanted a crusader not a caretaker.

Reagan often bristled when attacked from his right. Although an affable man who broke bread with critics easily, he often deflected criticism – especially from conservatives – by blaming one particular misanthrope. In this case, Reagan attributed the O’Connor fuss to “one person in Arizona,” Dr. Carolyn Gerster of the National Right to Life Committee, whom he labelled “vindictive.” “I still believe that an unborn child is a human being,” he insisted, although he preferred making such statements in writing or in person but off-camera.

The mixed messages were sincere and strategic. With his high tolerance for paradox, Reagan believed he remained true to conservatism while playing to the center. More cynical aides did not mind some flak from the right. It boosted Reagan’s popularity with moderates and enhanced his effectiveness. Lyn Nofziger told another political operative, Lee Atwater, that “the net effect” of the conservative attacks “might be positive for Reagan.”

Despite his pure ideological pedigree, Reagan abhorred divisive issues and messy, emotional debates. Reagan had mainstreamed conservatism by making it more upbeat. American conservatives were traditionally cranky – sometimes cranky and fanatic, like the John Birchers; sometimes cranky and hysterical, like Senator Joseph McCarthy; sometimes cranky and austere, like Senator Robert Taft; and sometimes cranky and elitist, like William F. Buckley. On the other hand, Reagan’s conservatism spoke to the American id not the American superego. His conservatism was one of growth not restraint; of self-indulgence not self-sacrifice; of prosperity not propriety. This message resonated with America’s increasingly consumption-oriented and hedonistic leisure culture, enhancing Reagan’s appeal – and impact.

In appointing O’Connor, Reagan fulfilled a campaign vow to appoint a woman to the bench, mischievously confused liberals by striking a blow for gender equality, and avoided the kind of divisive ideological fight he ended up losing over Robert Bork six years later. The man who delighting in complaining about idiotic judges did nothing to solve that problem on the Supreme Court level with this appointment. Yet, by appointing the more moderate Justice O’Connor for the highly publicized Supreme Court spot, and ending up with a swing voter who perpetuated much of the Warren Court status quo, Reagan may have advanced his judicial revolution nevertheless. By dodging a bruising Supreme Court battle until the twilight of his presidency, Reagan was able to appoint dozens of young conservatives to lower courts under the proverbial radar – and transform the American judiciary overall.

President Bush now has to indulge in a similar juggling act. Bush may learn, as Reagan did, that sometimes the seemingly moderate choice may allow for more radical results. A shrewd leader knows better than to judge reality by the headlines and a legal agenda only by the Supreme Court line-up.

Thomas W Hagedorn - 7/5/2005

"...Torquemadas (SCOTUS) that Scalia, Thomas and Bush would like it to be..."? I won't lunge out at that little offering of red meat, but I will say that this is going to be ONE HELL OF A FIGHT. The Supreme Court does not reflect the Presidential electoral success that the Republicans have had since 1968. A lot of conservatives, myself included, are tired of winning elections only to see our efforts frustrated by bad Republican Supreme Court nominations.

If Bill Clinton can nominate an obvious champion of abortion rights like Ruth Bader Ginsburg, then George W. can nominate a clear conservative for the high court, of only to balance off Ginsburg. (She was one of the early participants in the ACLU's women's reproductive rights group). Can you imagine the squeals if Bush nominated someone who had been very active in Pro-Life litigation?

Michael Green - 7/4/2005

To me, one of the most interesting points about the whole debate is that Sandra Day O'Connor is labeled a centrist. She was not a centrist when she was appointed. Whether the country has shifted is obvious; how the court has shifted is even more obvious. When he was appointed, John Paul Stevens was a centrist and is now considered liberal. Has he changed or has the country changed? I tend to think the latter, and the same may be said of O'Connor.

I would question Mr. Troy's comment that the court appointment presents George W. Bush with an "unwelcome" headache. I suspect that he welcomes it because, despite the usual praise to be expected upon a retirement, he clearly considered O'Connor too liberal for his taste. He would very much like to appoint a fellow right-winger (and I say that as a liberal who would want a Democratic president to try to appoint a liberal, and would expect a conservative president to try to appoint a conservative).

Now to a point worth considering: WHY did O'Connor become a "centrist," if you accept the modern definition. I suspect part of it was being surrounded by Antonin Scalia and Clarence Thomas, neither of whom is a conservative; they are radicals, determined to change how the Constitution is interpreted. William Rehnquist once fit that description but saw, I think, that leading the court from the minority is difficult, and he would be well advised to be more pragmatic. Therefore, the real risk for Bush is this: appointing a Scalia or Thomas type might drive Kennedy further toward the middle, where he has been spending a lot more time lately. And thus the court could remain moderately conservative, rather than becoming the group of Torquemadas that Scalia, Thomas and Bush would like it to be.

Jay Corleone - 7/3/2005

Professor Troy,
My opinion of Ronald Reagan and his use of the presidency as a "bully pulpit" (pardon the cliche)and tool for bringing about traditional conservative values (less government programs, less non-military spending, etc.) has always been more rhertoric and persuasion. Reagan sought to persuadfe and encourage people not to rely upon the government for entities rather than attempt to implement any long lasting and permanent changes to government enttielments and bureaucracy. He was a pragmatist in that he was aware that his conservative idelology would not be something that the political focres of Washington (even state and loal government) would be willing or have thew power in tiself to alter. Rather, the message he offered ot people was one of self-reliance, and not seekign the government for the solution of problems which he felt were not and should not have been part of any governmetn entity.
Looking at his writings and speeches, it would be safe to say that Reagan was not the extreme right-winger he is portayed as being. Relative to the current president, Reagan would be regarded as "right of center" or a mdoer. It does have to be remembered that Reagan was from Hollywood.