SIDEBAR:
“Unemployed Cowgirl”
Lassoes Beacon Award

Penn President Amy Gutmann placed her among the “giants who not only make history as trailblazers, but also radiate eminence, integrity, and, yes, humor in their professional and personal lives, [and who] leave deep, indelible footprints on the sands of time.”  But “unemployed cowgirl” was the self-description offered by former Supreme Court Associate Justice Sandra Day O’Connor at the Trustees Council of Penn Women’s Spring Conference in April.

The conference was the culmination of a yearlong celebration of the 20th anniversary of TCPW [see main story], which outgoing chair Susanna E. Lachs CW’74 ASC’76 called the first organization of its kind in higher education.  O’Connor was on campus to receive the group’s “highest tribute,” the Beacon Award, given to “recognize an outstanding woman, man, or institution who/that has displayed leadership in furthering the advancement of women, through dedicated pursuit of and commitment to issues affecting women, with results that enhance the status of women,” said Lachs, who introduced Gutmann to present the award.  Previous winners have included U.S. District Court Judge (and Pennsylvania First Lady) Marjorie O. Rendell CW’69 and U.S. Senator (and former First Lady) Hillary Clinton—whose presidential campaign prospects, in the days before the Pennsylvania primary, O’Connor tartly refused to handicap.

From her childhood growing up on an Arizona ranch, Gutmann said, O’Connor broke through gender barriers in her academic, political, and, most notably, judicial careers.  After being nominated to be the first woman Supreme Court justice by President Ronald Reagan in July 1981, she proved herself “brilliantly adept both at forging consensus and at balancing the role of reason and law against concerns for the impact of rulings on individual lives.”

More than a symbol of the changing status of women or the deciding vote in a slew of landmark rulings, O’Connor “became the pivotal associate justice for staking out that middle ground that could bring this country together, where competing and often hotly divided schools of thought could reach reasonable agreement,” Gutmann said.  “As long as Justice O’Connor sat on the bench, you knew that the center would hold.” O’Connor, who lived up to her reputation for down-to-earth feistiness, called the introduction “a little over the top.”   She praised TCPW as a “great group,” and also suggested that someone from Penn speak to Stanford (her alma mater) some time with regard to hiring women presidents.

In her remarks, O’Connor explained that she decided to step down from the court in 2006 because her husband, who was suffering increasingly from Alzheimer’s disease, needed to be cared for near their home in Arizona—and she dismissed having any second thoughts about the move.  (Or doing any second guessing about cases; her former colleagues, she noted at one point, are “on their own.”)

Since leaving the court O’Connor has focused on the issue of judicial independence in her public appearances, and she devoted the bulk of her speech to the subject.  She sees the judiciary as being increasingly under attack, citing widespread complaints about so-called “activist judges trying to take control of our lives and do dreadful things,” she said.  “I was disturbed because it began to have terrible consequences, so I thought I’d spend a little time trying to remind Americans why the framers tried to establish an independent judiciary and why the states tried to do the same and what we ought to do about it.”

In our government’s system of checks and balances, the judiciary’s ability to declare statutes or executive acts unconstitutional is the main check it has on the other two branches, O’Connor said.  That gives the courts the power to “make presidents, governors, Congress, and legislatures really angry”; in fact, if that doesn’t happen occasionally, “we’re not doing our jobs,” she said.  “And judges’ effectiveness relies on the knowledge that they will not be subject to retaliation for doing their jobs.”

James Madison—who, as the Father of the Constitution, “deserves to be heard,” she said—called the judiciary an “impenetrable bulwark against every assumption of power in the legislative or executive.” That may be putting it a bit strongly, O’Connor said, but the U.S. system breaks down without judicial independence.  That emphatically does not mean decisions based on judges’ personal preferences, but ones arrived at fairly and impartially according to laws and the constitution without fear of retaliation—on the model, to use an analogy favored by the late Chief Justice William Rehnquist, she said, of a ref at a basketball game, who calls a foul against the home team.

An independent judiciary is “hard to create and easier than most imagine to damage or destroy,” O’Connor said.  In his 35 years on the bench in the early years of the Republic, Chief Justice John Marshall established the willingness (“by and large”) of the other branches to cede the power to interpret law to the judiciary, and to enforce its rulings.  (President Andrew Jackson, who defied a court ban on displacing the Cherokee Indians from their home in Georgia, was an exception.)

But more recently, there have been efforts to “strip courts of jurisdiction over certain types of cases, and proposals to impeach any judge who would dare cite a foreign judge for any purpose,” she said.  Furthermore, some states have attempted to deny judges and jurors immunity for official acts, and to retroactively terminate appellate court judges’ terms of office.  “There’s a lot going on.”

The health of the system depends on an educated citizenry, and today’s public schools are not meeting that need, O’Connor added, citing a study conducted by the National Constitution Center in which fewer teenagers could identify the three branches of government than could name the Three Stooges.  “Now I like Larry, and Moe, and Curly,” she said, “but the poll shows the absence of even the most basic knowledge of the structure of our national and state governments.”

Many school districts don’t require classes in civics, government, or American history, or spend limited time on them, O’Connor said, pointing to this as an unintended consequence of the No Child Left Behind Act—since these subjects aren’t tested under the law, they may get short shrift.  With continued immigration changing the makeup of the population, “we have to get busy on this,” O’Connor urged.

Education in civics must be required, and it has to be taught in interactive, innovative ways, she continued, not just presented through “pages in a book.”  Mock courts and personal engagement in student governments are good methods, and O’Connor also called on educators to “capitalize on the computer proficiency of young people.”  Along those lines, she announced that she was working with Arizona State University and Georgetown University to develop a interactive computer program called Our Courts designed for seventh, eighth, and ninth grades, in which users would decide “actual cases” involving the First and Second Amendments as well as other controversial areas of constitutional law.  “It’s a great way of teaching,” she said.

In a question and answer session following her speech, O’Connor emphasized the importance of personal relationships among the Court’s members and the need to be able to “disagree agreeably.”  She also expressed irritation at some unwelcome attention she received as the first woman justice—in particular the fact that her opinions, whether in support or dissent, were often reported separately.  This practice did not end, she added, until President Bill Clinton appointed Ruth Bader Ginsburg to the Court—which proved that “one is not enough.”

Responding to a question on the challenges facing women in terms of “having it all,” she said, with some heat: “Do it better—and try to do good.”

Before introducing O’Connor, Gutmann had paid tribute to the “intrepid group” that founded TCPW and such “truly enlightened men” as Penn trustees Leonard Lauder W’54 (who was instrumental in bringing O’Connor to campus) and Al Shoemaker W’60 Hon’95, who conceived the idea for what became TCPW as trustee chair during Sheldon Hackney Hon’93’s tenure as president.

Shoemaker—who said he and Hackney were looking for a mechanism to let the “cream [of Penn’s alumnae] rise to the top”—was honored as the group’s “Founding Father” at a luncheon that concluded the conference, which also recognized the “Founding Mothers” who made his idea a reality.

He was presented with a rare 1950s-era beer stein bearing images of the Quad, College Hall, and the Penn coat of arms, acquired by Penn-treasure hunter and TCPW member Susan Molofsky Todres CW’75 WG’77 [“Gazetteer,” Mar|Apr 2007].  In addition, the founding father was serenaded with a customized version of “Only You” by founding mothers Carol Blum Einiger CW’70, who was tapped by Shoemaker—her boss at the time—to be the group’s first chair, and Judith Roth Berkowitz CW’64, who succeeded her.

As the last event of TCPW’s year-long 20th anniversary celebration neared its finish, incoming chair Marjorie Gordon Schaye CW’75 joked, “We’re 21—we’re now legal.”—J.P.

July|Aug 08 Contents
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Founding parents: Al Shoemaker,
Carol Einiger, Judith Berkowitz.
Photography by Stuart Watson

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©2008 The Pennsylvania Gazette
Last modified 06/29/08