A little more than 37 years after Ronald Reagan's first appointment to the Supreme Court was announced, his last appointee will retire. For the first time in nearly four decades, there will not be a Reagan appointee on the court. To some, that is regrettable. To others, it may be something to celebrate. Either way, it is worth noting that Reagan's first appointee -- Sandra Day O'Connor -- and his last appointee -- Anthony Kennedy -- were perhaps the two most important and influential justices in the last three decades.
Reagan announced his intention to nominate O'Connor to be an associate justice of the United States Supreme Court in 1981. She would, upon confirmation, be the first woman in history to serve on the nation's highest court.
Today, the idea of women serving on the Supreme Court is taken for granted. Many in this country do not know of a time when there wasn't a woman on the court. Since Justice O'Connor, there have been four women nominated and three confirmed to the court. The idea of an all-male bench is dead. As well it should be.
Nominating O'Connor fulfilled a pledge Reagan made in his campaign for the presidency. His promise was not made to win votes; rather, it was based on his deeply held belief that it was discriminatory to exclude women from seats on the nation's highest court and that there had to be women jurists who were as qualified -- if not more so -- than the more than 100 men who had sat on the court. Simply put, Reagan believed it was time. But it was not lost on his handlers that such a promise helped blunt criticism of Reagan being somewhat less than a strong supporter of equal opportunities for women, something he would repeatedly disprove as president.
So when Associate Justice Potter Stewart informed the President he was stepping down, Reagan told his team he wanted qualified women to be among the candidates presented for his consideration. In O'Connor he found a distinguished, respected and wise jurist every bit as worthy of sitting on the nation's highest court as any man. The rest, as they say, is history. She would become the decisive vote in many of the court's cases -- siding with the more liberal justices on cases that dealt with civil and voting rights.
In his last appointment to the court, Reagan chose a smart and very well regarded jurist, who, while generally conservative, made decisions which surprised, delighted and disappointed people. Justice Kennedy at times would side with the more liberal justices and be the deciding vote on cases that affected LGBTQ and women's rights. In other words, he did the job exactly as he should have.
But Kennedy was not the first person Reagan nominated to replace Associate Justice Lewis Powell in 1987. His first nominee, federal judge Robert Bork, while a favorite of conservatives, was so strongly opposed by moderates and liberals that the fight over confirmation turned into an unseemly political brawl. It was so bad that at one point, Nancy Reagan described it to me as "a circus."
The Senate rejected the nomination. Next up was another federal judge, Douglas Ginsburg, a conservative, though a bit more moderate than Bork. He did not make it either. Ginsburg ended up asking that his nomination be withdrawn after it was revealed that he had smoked marijuana while teaching law at Harvard.
Enter Kennedy, another conservative federal judge, who Reagan knew from their years together in Sacramento. Validating the "third time's a charm" philosophy, after a thorough vetting and hearings, Kennedy was unanimously confirmed by the Senate and took his place on the high court bench.
In selecting Kennedy's replacement, President Donald Trump has a unique opportunity to not only move the court in a certain political direction, he has a rare -- and I would argue, much needed -- opportunity to do something that will help calm things down in the country and maybe even bring some unity.
When running for president, Trump published a list of people, which included women, he would likely appoint to the court should a vacancy or vacancies occur. In that regard, he was like Reagan who promised in his 1980 campaign that one of his first appointments to the court would be a woman, though he did not give any names.
In a rare, but welcome dose of presidential transparency about the selection process, President Trump has told us not only the exact date -- July 9 -- on which he will announce his choice, but that he is considering five candidates, two of whom are women. While the odds are less than 50/50, there is still a solid 40% chance for those hoping for another female jurist.
Trump drew up his list after seeking input from conservative organizations and leaders, something important to his base. But as Reagan learned with Bork, a candidate strongly favored by a narrow segment of the political spectrum does not always lead to smooth sailing on Capitol Hill.
Trump may ultimately choose another white male. With all due self-respect, that would be a waste of an extraordinary opportunity for this President to not only make history (appointing the fifth female justice would indeed be historic), but to force detractors to take a second look at him, and dare I say -- maybe even to expand his base? It's no secret that Trump's standing with women could use some improvement, and nominating a female to the high court would be one way of demonstrating that he gets it and he cares.
With the exception of George H. W. Bush, who nominated the second African-American in history, every president since Reagan has nominated a woman (or women) to the Supreme Court. Trump should do the same.
When he first announced his intention to nominate O'Connor to be the first woman to serve on the Supreme Court, Reagan could not have had any idea of what that would mean in the long term. But he knew that America needed a change and O'Connor's appointment helped to usher it in.
Today, America, while in the midst of political chaos and social unrest, is still in need of change. And Trump has the opportunity to make sure that it happens.
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