Musing on a Belated Visit with California Justice Mildred Lillie

Although four decades have passed, I still shudder at the shameless gender discrimination that confronted California Superior Court Justice Mildred Lillie when her name was sent to the judicial evaluation committee of the American Bar Association (ABA) to pass on her qualifications to sit on the U.S. Supreme Court. President Nixon would never have sent her name if she was not clearly qualified. In October, 1971, Justice Lillie was the first woman to ever to be seriously considered by a president for the Supreme Court, but the all-male ABA evaluation committee mugged her on her way to being nominated, baselessly impugning her qualifications and effectively delaying for another decade the placement of a woman on the nation’s most important court. When President Ronald Reagan later nominated Sandra Day O’Connor he wisely did not ask the ABA for its advice before sending her nomination to the Senate, and Mrs. O’Connor had the support of Associate Justice William Rehnquist, a Stanford Law classmate and long-time Arizona friend. (During her confirmation hearings the ABA was still only lukewarm to having a woman on the High Court, testifying that O’Connor’s experience “has not been as extensive or challenging as that of some other persons [read: men] who might be available for appointment.”)

President Richard Nixon had made his decision on Mildred Lillie reluctantly, and the ABA’s action embarrassed him and forced him to abandon a notion he had struggled to embrace. It embarrassed me too, for I had vetted Justice Lillie for the White House, assuring all that she was not only qualified, but the president would “do himself proud naming her.” It had never occurred to me that this ABA panel—twelve eminent attorneys drawn from each of the federal circuits throughout the country to privately advise the Attorney General of the United States of the suitability of potential nominees for the federal bench—was composed of eleven chauvinists (one man remained neutral), men who were misogynist to the bone.

After I recounted this wretched incident in The Rehnquist Choice (2001), I learned that at least two, and probably more, members of this ABA panel had received word directly from Chief Justice Warren Burger that he did not want a woman on his Court. Before passing that information to the ABA panel, Burger had threatened President Richard Nixon with resigning if he sent a woman to the High Court. Nixon had rebuffed the Chief Justice, however, telling him to send his resignation if he was not happy with any of Nixon’s selections. Unable to stop the president, Burger had used his considerable influence with the bar to block the first woman from joining his bench, which is not to say that they would not have acted as they did without being encouraged by Burger. This entire episode was despicable.

In the summer of 2002 I spoke with Justice Lillie on the telephone, after one of her law clerks sought me out to tell me how much Justice Lillie had enjoyed my book, and suggested I give her a call. When we spoke I shared the additional information I had learned about her nomination since publishing my book. It was the first time we had talked since October 14, 1971, my thirty-third birthday, thirty years earlier. She was still on the bench as the Presiding Justice of Division Seven of the California Court of Appeals. At 87 years of age she was very sharp, her voice strong, and her sense of humor conspicuous. She was intrigued by my information. She shared a bit of what the episode had been like for her, and invited me to come down to her court for lunch so we could talk about it all. We set a date, but her office soon called to reschedule when she unexpectedly was hospitalized. We never finished our conversation because she passed away on October 27, 2002.

But we did have a belated visit of sorts. I recently found Justice Lillie’s oral history online, and reading it did provide a bit of a reunion. Reading her lengthy oral account (actually it is rather short given her 55 years on the bench), which was recorded in 1989 and 1990, and publicly released in 2010, I was struck by the fact she never mentioned her experience in being considered for the U.S. Supreme Court. But based on our last telephone conversation, I have the impression she did not regret being a Nixon appointee, given the way his presidency ended. Also she said she had dined out for three decades on stories about the experience: A favorite that still made her chuckle was that “the lanky and pleasant young man at the Justice Department who had carried her suitcase was now Chief Justice of the United States,” Bill Rehnquist.

In an introduction to the transcript of Justice Lillie’s oral history, one of her colleagues, Justice Earl Johnson, Jr., noted her many “firsts” as a woman at the bar, along with a string of honors recognizing her remarkable public service and her above-the-norm contributions to California jurisprudence. He also reported that she had learned from my book in 2001 why she was not “to be the first woman on the U.S. Supreme Court,” and how Chief Justice Burger and the ABA committee had feared “the disruptive effect a woman justice would have on the collegiality and deliberations of the Supreme Court.” Justice Johnson noted it would take a revolution in the legal profession to change this thinking, which began in the 1970s. To which I would add it is still just getting started.

I was pleased to discover that many of her obituaries in 2002 appropriately addressed the 1971 comment by the ABA evaluation committee calling her “unqualified” for the High Court by describing this calumny as a “scurrilous characterization” based on “blatant sexism.” Justice Lillie’s five decades on the bench, with 44 years on appellate courts (including an occasional case when she had been designated to sit on the California Supreme Court), resulted in thousands of learned written opinions notable for their intelligence, clarity and logic, further putting the lie to the ABA committee’s smear to keep her off the U.S. Supreme Court.

Needless to say we now have three woman on the High Court, but we need at least two more – a clear majority. After all, women are a majority of the American population, and it will take several centuries with women in control of the High Court to balance the many centuries of precedents of “man-made law,” and someday creating a jurisprudence truly and fully reflective of the thinking of both men and women.