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National NOW Times >> Spring 2003 >> Article

Saving the Courts Crucial to Women's Rights

by Linda Berg, Political Director

Sen. Chuck Schumer, D-N.Y., has been one of the leaders in the filibuster of judicial nominee Miguel Estrada.
Sen. Chuck Schumer, D-N.Y., has been one of the leaders in the filibuster of judicial nominee Miguel Estrada.

George W. Bush is using his presidential power to imprint a reactionary political agenda on the U.S. judicial system. The 2002 elections further emboldened the administration to accelerate packing the courts with conservative ideologues. Having already proclaimed that his model jurists are right-wing Supreme Court Justices Antonin Scalia and Clarence Thomas, Bush is following the plan that his father and Ronald Reagan began in the 1980s—filling the courts of appeal with Scalia/Thomas clones so they'll be ready to appoint to a Supreme Court vacancy.

Working in lock-step with the Republican-controlled Senate, Bush intends to ram through a parade of jurists who are hostile to women's rights and civil rights. He is setting the stage for the systematic dismantling of our rights. Here's why the composition of the courts is so important:

The 13 federal appellate courts hear and decide almost 30,000 cases a year. They are the courts of last resort for most cases and their decisions are equally as binding in their circuits as the Supreme Court. The Supreme Court only weighs in on a small fraction of those cases (fewer than 100), primarily when two circuits interpret the law differently.

At the current rate, by 2004, all 13 federal circuit courts of appeal could be controlled by Republican-appointed judges. With no ideological balance among the circuits, and consequently no conflict among them, few cases will make it to the Supreme Court and the circuit court judgements will be the law of the land. And the cases that do make it through will face a majority right-wing court, if Bush has anything to say about it.

As we enter the longest period between Supreme Court vacancies in 178 years, our political enemies have groomed a stable of right-wing judicial ideologues to follow in the footsteps of Scalia and Thomas. In response, the National Organization for Women is launching a two-pronged strategy to protect reproductive rights and civil rights by saving the federal courts.

First, we will meet any attempt by Bush to add one more Supreme Court justice hostile to women's reproductive and civil rights with a wall of NOW-led grassroots opposition. Second, since the Supreme Court becomes irrelevant if the circuit courts fall into conservative alignment, we are pressing the Senate for a full examination of all judges nominated to those high courts and urging opposition to each and every nominee who proves to be an enemy of women's rights.

Alarmingly, all stars are aligned for our political opponents. They control the presidency and both houses of Congress. The Supreme Court is ideologically split 4-4-1 and a number of judges suffer from ill health or advanced age. Only one swing vote prevents full implementation of the right's extremist agenda. The right to abortion—already hanging by a thread—is most obviously imperiled. Most Supreme Court scholars believe that this president will have the opportunity to appoint at least one, but more probably two, Supreme Court justices for lifetime appointments within the next two years. Generations of progress could be reversed at lightning speed.

Leading the parade of right-wing nominees is Miguel Estrada, nominated to the 2nd most influential court in the nation, the U.S. Court of Appeals for the District of Columbia. That circuit hears appeals regarding federal agencies like the FCC, FDA and EEOC. Estrada, rumored also to be in line for the next Supreme Court vacancy, refused to answer Judiciary Committee questions regarding his views on issues such as abortion rights, lesbian and gay rights, affirmative action, employment discrimination and the environment.

In order to avoid a vote that could confirm Estrada, Senate Democrats have been filibustering with surprising determination.

But Estrada is just the tip of the iceberg, and while the Senate focuses on stopping his nomination, many other enemies of women's rights are waiting in the wings. By the time you read this article, chances are that many of the nominees in the adjacent box will be ensconced on the federal bench for the rest of their lives.

Every NOW member should be alert to this right-wing court-packing scheme. We must work to ensure that the Senate Judiciary committee members oppose the nominations of all judges whose records show them to be opponents of women's and civil rights. Only if we continue to pressure the Senators of both parties, can we stop the ominous takeover of the federal judiciary by those determined to undermine our legal achievements.

Will these nominees win a lifetime on the federal bench?
A future Supreme Court seat?

  • Carolyn Kuhl (9th Circuit) has repeatedly argued that Roe v. Wade be reversed, and dismissed an invasion of privacy claim by a breast cancer patient whose doctor allowed a salesman in the room during her examination.

  • Jeffrey Sutton (6th Circuit) has worked diligently as an attorney to severely limit federal protections against discrimination based on disability, race, age, sex and religion.

  • Terrence Boyle (4th Circuit) ruled twice (as a state judge) that congressional redistricting in North Carolina was unconstitutional because it favored minority voters. Both rulings were subsequently reversed.

  • Deborah Cook (6th Circuit) was endorsed by Ohio Right to Life for the Ohio state court ; Cook's opinions on appeal have been criticized as "confused," "lack(ing in) statutory support," "pure fantasy," and "entirely without merit."

  • Priscilla Owen (5th Circuit) passed the Senate Judiciary Committee after two tries and her vote is now before the full Senate; Owen's narrow view of the parental notification laws of Texas was described by then Texas Supreme Court Justice and now White House Counsel Alberto Gonzales as an "unconscionable act of judicial activism."

  • Charles Pickering (5th Circuit) has advocated for the rights of a cross-burner, earning him one Senate objection already.

  • Timothy Tymkovich (10th Circuit) has argued in the Supreme Court against laws protecting lesbians and gays from discrimination, and he opposes medicaid funding for abortion in cases of rape and incest.

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