Dallin, Sandra and the Supreme Court

Sandra Day O’Connor has retired from the Supreme Court and John Roberts will almost certainly replace her. History might have been different. As part of the Robert’s confirmation process, the National Archives have released a huge number of previously privileged memorandum compiled by the Department of Justice during the Reagan administration. One of those memos mentions the possible appointment of two Mormons to the spot on the Court ultimately occupied by Justice O’Connor.

During his presidential campaign in 1980, President Reagan promised that he would appoint the first woman to the United States Supreme Court. Upon coming into office, Reagan’s Attorney General, Ed Meese, began looking for potential nominees. Among the memos released is one from Hank Habicht, a Special Assistant to the Attorney General, to Kenneth Starr, then a Counselor to the Attorney General. In the memo Habicht describes the background research that he did on Justice O’Connor, including a semi-clandestine trip to Arizona to investigate her political past. Although the bulk of the memo is on O’Connor, Habicht mentions in passing that the DOJ had also considered “Dallin Oaks” as a potential nominee.

In 1981, Justice Potter Stewart retired. Steward had been one of the consist conservative dissenters from many of the Warren Court’s decisions, and he had been the most intelligent and articulate internal critic of many of the Court’s leftward lurches in the 1960s and 1970s. He was passed over by Nixon for the slot of Chief Justice, when Warren resigned. This sleight apparently embittered him, and he eventually became the chief confidential source for Bob Woodward’s 1979 expose of the Supreme Court The Brethren. (At the time of its publication, most people assumed that The Brethren was based on off-the-record interviews with clerks. After Stewart’s death in the mid-1980s, however, Woodward revealed in a Playboy article that his chief source had been Stewart, who actually contacted Woodward and arranged a secret meeting in suburban Washington, D.C. to share nasty stories about his colleagues. I swear that I only read Playboy for the articles.) Stewart had not been the swing vote on the Court — that honor went to Louis F. Powell — and O’Connor’s nomination ultimately sailed through. When Powell did retire in 1987, there was thermonuclear war in the U.S. Senate over the nomination first of Robert Bork and then of Douglas Ginsburg. Anthony Kennedy ultimately got the slot.

In 1981, Dallin Oaks was a justice on the Utah Supreme Court, which traditionally has not been a breeding ground for U.S. Supreme Court short-listers. However, by that time he had a very impressive resume. An honors graduate of the University of Chicago Law School, he had clerked for Chief Justice Earl Warren on the U.S. Supreme Court and had then gone on to practice law with the Chicago firm of Kirtland & Ellis. After a couple of years, he was contacted by Edward Levi, then Dean of the Univeristy of Chicago Law School, and was invited to become a professor. (How is that for sailing through the academic job market!) At Chicago he gained national prominence for conducting and publishing a very influential study attacking the Warren Court’s criminal procedure jurisprudence and purporting to show that it resulted in the release of otherwise guilty defendants without having any major impact on the behavior of law enforcement. From Chicago, Oaks became head of the American Bar Foundation, which was the research arm of the American Bar Association. In this way he came to know Louis F. Powell, a Virginia lawyer who was then president of the ABA. A short time later, Richard Nixon appointed Powell to the Supreme Court. After a stint as the head of the Public Broadcasting Corporation, Oaks — who hadn’t lived in Utah since before law school — was called to be President of BYU, where he served until the late 1970s. After a very brief stint as a professor at BYU Law School he was put on the Utah Supreme Court.

In 1981 there was no real chance that Oaks would have gotten the slot. However, the fact that he was seriously considered suggests that he would have been very competitive for the slot to which Antonin Scalia was appointed to a few years later. In the intervening time, however, Elder Oaks was called into the Quorum of the Twelve.

Interestingly, the Habicht memo also reveals that in 1981, Rex Lee’s name was also being considered as a potential nominee and that Lee — then Solicitor General — was involved (not surprisingly) in vetting potential nominees. A final fun bit of trivia from the memo. Lee was from Arizona, as was O’Connor. The memo is silent about the importance of this connection, but I suspect that it was not accidental. It does mention, however, that on his background trip to Arizona Habicht spoke about O’Connor with one of Lee’s old law partners: John Kyl, who is now the junior Senator from that state.

Here is the entire memo, if you would like to read it.