National NOW Times >> Summer/Fall 2005 >> Article

Save the Court: Supreme Court Vacancies Create Double Jeopardy for Women

By Rebecca Trinite, Development Associate

The fight for the future of the Supreme Court has begun in earnest. As expected, George W. Bush will have the opportunity to nominate at least two justices to the Court during his presidency, including the chief justice.

"These two vacancies create double jeopardy for women and girls," said NOW President Kim Gandy. "We are now in the fight of our lives."

Justice Sandra Day O'Connor's July 1 resignation from the High Court set off a burst of activity, as NOW declared a state of emergency for women's rights, and thousands of activists responded with urgent messages to their senators. Eighteen days later, when Bush announced his nomination of John G. Roberts, Jr. as her replacement, NOW hit the ground running with an opposition rally the next day, immediate action kits and analyses of Roberts' record on women's rights.

Roberts' swift nomination to replace Chief Justice William Rehnquist spurred NOW leaders and activists to protest once again.

NOW was one of the first organizations to come out strongly against Roberts, noting his negative record on women's and civil rights issues and especially his hostile view of the Roe v. Wade decision. The threat of Roberts filling Rehnquist's seat—where he would be responsible for making key appointments throughout the judicial system and deciding which justices would write opinions—is a risk to women everywhere.

"If Roberts is confirmed as Chief Justice, Bush will have established right-wing leadership of the Court for another 30 to 35 years—a lifetime legacy of the Bush presidency that women and girls will have a lifetime to regret," said Gandy. "George Bush could have chosen a moderate conservative who would be a voice of reason on the Court. Instead he chose, characteristically, to pick a fight. We intend to give him one."

The mainstream media has widely characterized Roberts as a moderate, but a quick review of his record shows he is anything but. During his career, Roberts argued to restrict Title IX, the equal education law for women and girls, and to limit the protections of the Americans with Disabilities Act. He objected strenuously to federal affirmative action programs; disparaged the landmark Violence Against Women Act; and opposed efforts to strengthen the Voting Rights Act.

Roberts' record on women's rights is particularly horrifying. As the Principal Deputy Solicitor General in the Reagan administration, Roberts co-authored a brief arguing, "Roe was wrongly decided and should be overruled." and "[t]he Court's conclusion in Roe that there is a fundamental right to an abortion. . . . finds no support in the text, structure, or history of the Constitution." He also filed an amicus curiae brief in NOW's case against Operation Rescue and other violent blockaders, voluntarily entering the case and arguing on the side of individuals who were carrying out their goal of closing abortion clinics by any means.

Roberts also criticized the idea of equal pay for work of equal value as "pernicious" and "anti-capitalist" and he repeatedly questioned the very existence of women's concerns, as in references to the "purported gender gap" and "perceived problems of gender discrimination."

When asked whether a government lawyer could be nominated for an award that recognized women who changed their lives after age 30, he commented: "Some might question whether encouraging homemakers to become lawyers contributes to the common good, but I suppose that is for the judges to decide."

The company that Roberts keeps is also illuminating. For example, although the White House denied that he had been a member, it was proved that Roberts was a steering committee member of the D.C. Chapter of the Federalist Society, an ultra-conservative organization committed to returning to a pre-Civil War era of unquestioned states' rights and rolling back legislation that has advanced women's rights, civil rights, environmental protections and health and safety standards. His nomination has been greeted with enthusiasm by right-wing groups such as the Family Research Council, the Christian Coalition of America and Operation Rescue.

NOW formally requested to testify at Roberts' confirmation hearing: "After a thorough examination of the available record of the nominee, NOW has concluded that his confirmation represents a danger to many of the rights for which we have worked so hard," Gandy said. "Through our testimony, we hope to apprise the committee of the basis of our strong opposition to this nominee."

Despite reports from the media that Roberts' confirmation is a done deal, Senate democrats have taken notice of the concerns raised by NOW and other progressive organizations. Sen. Dianne Feinstein (D-Calif.) the sole female member of the Senate Judiciary Committee, said that she feels a "special obligation" to represent women and that she will question Roberts closely on his views regarding abortion.

Across the country, NOW members and chapters have been educating their communities about the danger of a Roberts confirmation, and the importance of having justices on the Supreme Court who are committed to justice for all. Activists have been making calls and sending messages to their senators, visiting their senators at home during the recess, and holding demonstrations and vigils at senators' home offices.

Roberts' confirmation hearings began on Sept. 12 and were expected to continue for five to seven days. NOW activists scheduled two protests each day on Capitol Hill, outside the hearings — a reminder of Gandy's pledge that NOW will not waver in its opposition to this nomination. NOW supporters also traveled to Washington, D.C., to lobby their senators during the hearings and to help create a visible front in this important battle.

If we succeed in defeating Roberts, we will hold the next nominee to the same standards. And there is still O'Connor's seat to be filled. NOW remains determined to fight any nominee who is not clearly committed to protecting our fundamental rights and liberties.