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National NOW Times >> Summer 2002 >> Article

Viewpoint: Will Bush Turn Back 35 Years of Women's Progress?

by Kim Gandy, NOW President

"First they came for the communists..." began the famous warning from Pastor Martin Niemoller that no one stood up for the groups attacked by the Nazis, and by the time they came for him, "there was no one left to stand up." There is a lesson in those experiences for everyone who doesn't speak up for those losing their rights because the category doesn't immediately affect them — who will be left to stand up for you?

If you consider yourself informed and well-read on the issues of our day, read on and find out what you don't know about what is happening in our courts right now — you aren't likely to see it on TV or read it in your newspaper. It's not in their corporate interest to tell you that a whole host of issues, causes and groups are under concerted attack, the likes of which we have never seen before.

Bottom line: If we don't stop the nominations of dozens of right-wing appointees to lifetime appellate and district courts across the country (there are over 50 nominations pending) then it will be too late to change this course for at least another generation. Here's why:

George W. Bush and his partisans have an unprecedented focus on (and the means to accomplish) a complete domination of the entire federal judiciary, including the Supreme Court, by ideologues who are intent on a legal philosophy that would dramatically change the traditional separation of powers as well as the fundamental separation of church and state — under the guise of "limited government."

This legal philosophy, if you can call it that, is being successfully pressed by the Federalist Society, a previously little-known group with members at the heart of the Administration's judicial selection process and heavily represented by current nominees. The only real litmus test for these nominees is the Federalist Society's test, which ensures that they oppose every legal right we have fought for and cherish.

Federalist Society heroes and leaders you might recognize are Supreme Court Justices Antonin Scalia and Clarence Thomas, Attorney General John Ashcroft, Sen. Orrin Hatch, Solicitor General Ted Olson, Robert Bork, Ken Starr, Reagan Attorney General Edwin Meese, and James Bopp of the National Right to Life Committee.

Their goal is to fundamentally change the legal system. They are focused on using the courts to return us to a pre-Civil War era of unquestioned state's rights, to roll back legislation that has advanced civil rights, women's rights, reproductive rights, environmental protection, health and safety standards — and to prevent the enforcement of laws they cannot eliminate altogether. And they've already started.

Cases from the Supreme Court and the Courts of Appeals have already cut wide swaths through laws and regulations protecting our rights and our lives. Here are some of the strategies they are using:

1. Overturning all or part of federal laws outright. Since 1995 the Supreme Court has overturned several acts of Congress outright — including civil rights provisions of the Violence Against Women Act, and the entire Gun-Free School Zones Act. In every case, the Court simply announced that the Congress didn't have authority under the Constitution to make that particular law! A long list of environmental protections contained in several different statutes, including the Clean Air Act, Clean Water Act, and the Endangered Species Act, have been similarly struck down, undermining longstanding precedents.

2. Limiting the applicability of federal laws. Another way to decrease the impact of a particular law is to say that it doesn't cover certain groups of people. Since 1999, Supreme Court decisions have stripped 4.7 million state and local employees, from university professors to elementary school janitors, of their rights under the Fair Labor Standards Act, the Age Discrimination in Employment Act and the Americans with Disabilities Act. Because of these "states rights" decisions, millions of people have been robbed of basic workplace protections — and most of them don't even know it. And there are more cases in the pipeline — already several Courts of Appeals have ruled that state employees aren't covered by the Family & Medical Leave Act. The Equal Pay Act may be next.

3. Limiting the right of individuals to sue. The Supreme Court reversed years of settled cases in 2000 when it decided (5 to 4) that individuals cannot sue to enforce the 1964 Civil Rights Act's Title VI regulations prohibiting actions that have a disproportionately negative impact on racial and ethnic minorities (called disparate impact). Legal scholars expect this reasoning to be extended to many other civil rights provisions, and one court has already applied it to throw out a sex discrimination lawsuit under Title IX, the equal educational opportunity law. These restrictions will continue to increase unless we can change the conservative majority on courts across the country.

4. Preventing regulatory agencies from enforcing the laws. These ultra-conservative judges aren't just after Congress' authority. They've also taken aim at enforcement agencies like the Environmental Protection Agency, the U.S. Dept of Agriculture, the Federal Communications Commission, the Food and Drug Administration, the Federal Elections Commission and others. In a case last December, the Fifth Circuit Court of Appeals twisted the law to prevent the USDA from enforcing its regulations against a repeat-offender Texas beef processor — because their samples showing salmonella-tainted beef had been taken from the processor's final ready-for-market product, instead of at earlier stages!

5. Limiting access to federal courts. In several recent opinions, Justice Antonin Scalia has said that corporations being regulated have legal standing (i.e. are allowed) to challenge those regulations — but that citizens who are harmed by the corporations' actions (like environmental groups) have no standing to support enforcement (or seek enforcement) of those regulations.

This is judicial activism run amok, and Bush and his Federalist Society allies want to give us more of the same. After all, what could be better for them: when they can't get Congress to repeal laws they don't like, they can have the next best thing — right wing judges who will obligingly overturn, limit or prevent enforcement of those laws.

Right now conservative judges, many of whom share this philosophy, control 8 of the 13 Circuit Courts of Appeals. Bush started the term with 32 circuit court vacancies, many the result of the Republican-controlled Senate's refusal to confirm Clinton nominees — for example, they rejected 3 out of 4 of Clinton's nominees for the Fifth Circuit. Several have already been confirmed by the Senate, and only one, Charles Pickering, Sr., has been rejected (also for the Fifth Circuit).

If every one of Bush's remaining nominees is confirmed, conservatives will control 11 of to the 13 federal circuits. And Bush has several years to build up that number. And what is even more of a threat to women than having conservatives control the Courts of Appeals for the next generation? Giving them solid control of the Supreme Court, more dangerous and long-lasting than the conservative 5-4 split that is already costing us rights and opportunities.

Think about what it means to Roe v. Wade if George Bush puts a couple of arch-conservative judges on the Supreme Court? Two forty-somethings like Antonin Scalia and Clarence Thomas who will be on the bench another 35 years? We're not just talking about losing Roe for 4 years, or 8 or 12. We're talking about probably the next 35 years — virtually the entire reproductive life of my 9-year-old daughter. And much of her work life as well.

We're looking at a potential sea change in the way U.S. laws are enacted and enforced and interpreted — to the point that it threatens (and has already damaged) much of the progress we've made in the past 35 years in ending discrimination, preserving our fundamental rights, and protecting the environment, to name a few.

Make no mistake: George Bush wants to make the courts look like America but act like John Ashcroft. It's up to us to make sure that our daughters and nieces and the little girl next door don't grow up in a country where the judiciary system looks like Iran, the air looks like Tokyo, and their rights look like Saudi Arabia. And it's up to us to elect U.S. Senators who will stop him.

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