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Monday, August 3, 2009

Before there was Sotomayor, before even Ginsburg and O’Connor…there was Mildred Lillie

When she is confirmed this month, Sonia Sotomayor will be the third woman to occupy a seat on the highest court in the land. Sandra Day O’Connor, who was nominated by President Ronald Reagan in 1981, was the judicial “Jackie Robinson” who broke this gender barrier and Justice Ruth Bader Ginsburg, appointed by President Bill Clinton in 1993, became the second female Supreme Court justice. But ten years before O’Connor’s appointment, when President Richard Nixon was faced with replacing two eminent justices from the Warren court era – Hugo Black and John Harlan – Nixon’s eyes were on an obscure California appellate judge named Mildred Lillie. But for a controversial negative rating from the American Bar Association, Mildred Lillie could have been the first woman to sit on the United States Supreme Court.

In 1971, there were 8,750 judges throughout the land; only 300 were women. But with equal rights in the air, Nixon saw the political potential in nominating a woman to the high court. (Ironically, a little-known Arizona state legislator, Sandra Day O’Connor, picked up on the idea and wrote Nixon a letter endorsing the idea of a woman nominee but O’Connor was not among those being considered.) Nixon sent White House counsel John Dean, who later turned on the president in the Watergate affair, to meet Judge Lillie and he let it be leaked that he had submitted Mildred Lillie’s name to the American Bar Association for an approval rating as prelude to her nomination.

Dean was impressed by Lillie. A Democrat, she was a “strict constructionist” who had begun her judicial career in 1947 when she was appointed to the Los Angeles Municipal Court by then Republican governor and future United States Supreme Court Chief Justice, Earl Warren. To Dean, she seemed wise and experienced. But the ABA nonetheless rejected her as unqualified. According to Dean, who later wrote a book about Nixon’s judicial appointments, the panel found that while Lillie was “the most qualified woman in the country to be on the Court, she was not qualified enough. In effect, they were saying no woman was qualified.” Ironically, that news sat just fine with Nixon who remained uneasy at the idea of a woman justice. “While he publicly denounced the ABA as biased against women,” writes Joan Biskupic in her biography of O’Connor, “[he] secretly felt off the hook…The next day he told his political advisor Richard Moore that the bar group ‘had played right into our hands.’”

Dean kept up with Lillie and a few years before her death in 2002, she told him an ironic story. Apparently, during the vetting process and before the negative ABA rating, Lillie came to Washington to meet with Nixon’s Attorney General, John Mitchell. Lillie said that “a nice young man” was sent to greet her and her husband, Dean recounted a few years ago to Slate. The man carried Lillie’s suitcase up to Mitchell's office, got them lunch and helped her fill in some of the questionnaires. Only later did she learn that her DOJ “baggage handler” was none other than William Rehnquist, then working in DOJ’s Office of Legal Counsel, who eventually received the nomination for which Lillie was being considered, and, of course, went on to become the sixteenth chief justice of the United States Supreme Court.

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