Here Comes La Judge

By Jane O'Reilly

Heading toward the Supreme Court, with tea and sympathy

You are among friends,"said Republican Robert Dole of Kansas. Lest there was any doubt, the other 17 male members of the Senate Judiciary Committee hastened to reassure the woman sitting before them that perfect civility would mark what one called the " historic occasion." The courtliness displayed at last week's confirmation hearings was so eiffusive that it seemed surprising that the green baize tablecloth had not been changed to pink, the better to honor Arizona's Sandra Day O'Connor, 51, the first woman nominated to be a Justice of the Supreme Court.

For her part, O'Connor smiled, primly crossed her ankles and placated her inquisitors with platitudes: she was, she said, honored by the nomination, a firm advocate of judicial restraint and a strong believer in the family as "the hope of the world and the strength of our country." Introducing her husband of 29 years, John O'Connor, 51, a Phoenix lawyer who will follow her to Washington, and her three grown sons, Scott, Brian and Jay, she reassured those who might wonder if a woman can indeed have everything: "My nomination to the Supreme Court has brought my own very close family even closer together. " Through three days of hearings, O'Connor retained total control of the proceedings.

It is not often that presidential nominees to the nation's highest court are turned down by the Senate. Despite widespread approval of Reagan's choosing a woman for his first nominee, there was some organized opposition from far-right activists who felt that O'Connor's early support of the Equal Rights Amendment and her less-than-rigid voting record on abortion was a "berayal " of true-blue rightism. Taking no chances that the zealots might prevail, O'Connor was probably the most thoroughly prepared nominee in history. Justice Department officials say she spent much of the summer poring over large loose-leaf notebooks containing answers to potential questions, as well as transcripts of past confirmation hearings. After two days of mock hearings with Justice lawyers in Washington, the nominee relaxed a bit by whomping up a batch of tacos for her coaches in Attorney General William French Smith's private kitchen. Escorted to the hearings on the impeccably conservative arms of Arizona's Barry Goldwater and Judiciary Chairman Strom Thurmond of South Carolina, she had prepared answers to every conceivable question.

Not that the questions were all that tough. Klieg lights and cameras bring out the senatorial urge to hear the satisfying sound of one's own voice; the rambling inquiries directed at O'Connor often seemed designed less to elucidate her judicial philosophy and qualifications than to give the questioner an opportunity to state one of his own pet political positions. Gracefully, but firmly, her tightly folded hands the only sign of nervousness, she easily fielded the grounders and simply smiled as the line drives whistled past. Drawing careful distinctions between her personal views and any possible legal applications, she politely insisted that it would be unseemly and unethical to prejudge an issue that might come before the court by taking a prior public position. Asked to discuss her private meeting with President Reagan in July, she firmly refused: "I should not properly reveal the contents of that conversation. It was not his request; that is my perception of what is proper."

Despite all that well-reasoned evasiveness, a picture of O'Connor as she now is (predicting what donning Supreme Court robes will produce has historically proved a risky enterprise) emerged: cautious, meticulous, conservative. A former state legislator and state judge, she repeatedly stated her judicial philosophy: "I know well the difference between a legislator and a judge, and the role of the judge is to interpret the law, not make it. I do not believe it is the function of the judiciary to step in and change the law because times have changed or because social mores have changed."

O'Connor indicated support for the death penalty. Citing her own trial experience, she suggested that she would favor a "good faith" exception to the exclusionary rule, allowing the use of illegally obtained evidence in trials if police did not realize they were violating an individual's right against unreasonable search and seizure. She also apparently supports stricter bail laws, which would allow judges to weigh the "dangerousness" of the defendant before releasing him, but found little problem with the Miranda warning given to arrested suspects.

On school busing, O'Connor cited childhood experiences: she herself found the round trip of 75 miles to school from her parents' ranch "very disturbing" and observed: "Busing is often not very beneficial to the child." Pressed over and over again for a repudiation of the Supreme Court's 1973 Roe vs. Wade decision legalizing most abortions, she said: "For myself it is simply offensive." But, the nominee added, "I'm over the hill. I'm not going to be pregnant again. It's easy for me to say now." She admitted that "the subject is a valid one for legislative action," immediately adding, "subject to constitutional limitation or restraint." More than that, she apologized, it would be inappropriate to say. An aide to Republican John East of North Carolina grumbled, "You ask what ought to be, and she answers what is." But it was precisely by skillfully limiting her answers only to what the law is that O'Connor won compliments from many Senators on her fortitude and graciousness.

Between verbal triumphs in the hearing room, O'Connor was treated to entertainment appropriate to a new girl in town. Chairman Thurmond arranged a candlelit, flower-bedecked lunch of quail in the old Supreme Court chamber in the Capitol ("You think of everything," said O'Connor). After the hearings closed Thurmond's wife held a tea in the nominee's honor, jammed to the chandeliers with Washington women. Next week the White House expects its turn. Certain that the Senate will confirm the nomination Reagan's aides have scheduled a truly historic occasion, Justice O'Connor's swearing-in, for Sept. 24. --By Jane O'Reilly Reported by Evan Thomas/Washington

With reporting by Evan Thomas/Washington

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