Now that the President has named a Supreme Court nominee, it’s time for the Senate to begin closely examining Judge Roberts’s record.
Every nominee must of course meet the necessary requirements of honesty, integrity, character, temperament, and intellect. But that is not enough. Just as the President considers judicial philosophy in the selection of nominees, especially to the Supreme Court, Senators should base their confirmation votes on the nominees’ positions and views on substantive areas of law. Before voting for confirmation, Senators have a responsibility, in exercising their Constitutional “advice and consent” role, to satisfy themselves that a nominee is committed to protecting the rights of ordinary American citizens and the progress that has been made on civil rights and individual liberties.
For women, the stakes include these issues:
- The Constitutional right to privacy, including the right to abortion, is not secure. Justice O’Connor provided the crucial fifth vote on the current Court to strike down severe restrictions on abortion, including restrictions that jeopardize a woman’s health.
- Several Justices do not accept the current equal protection standard requiring “heightened scrutiny” of government-based sex discrimination. Justice Scalia even dissented from the Court’s ruling that the exclusion of women from the state-run Virginia Military Institute, based on gender stereotypes about how women learn, violated the Constitution (Justice Thomas did not participate in that case).
- The ability of Congress to protect the health and safety of the American people is also on the line. In a series of recent cases decided 5-4, the Court has taken an unduly narrow view of the constitutional authority of Congress to pass legislation addressing violence against women, permitting state employees to sue for damages for disability or age discrimination, or keeping schools free from the dangers of firearms.
- Statutory protections such as Title IX and Title VII are at risk of being seriously weakened. For example, just this term, the Court ruled 5-4 that a claim may be brought under Title IX to challenge a school’s retaliation against an employee who complains of sex discrimination, and it ruled in 1999, also by a 5-4 vote, that Title IX covers student sexual harassment of a student by another student. Justice O’Connor cast the deciding vote and wrote the Court’s opinions in both cases.
- Affirmative action is at risk. In 2003, the Court upheld the affirmative action program of the University of Michigan Law School by a 5-4 vote. Justice O’Connor cast the deciding vote and wrote the majority opinion.
This means that no nominee should be confirmed to the Supreme Court unless he or she has a record demonstrating:
- a commitment to core Constitutional principles that protect and advance women’s legal rights, especially rights guaranteed under the Equal Protection Clause and the right to privacy; and
- a commitment to equal justice principles reflected in key statutory provisions that protect and advance women’s legal rights, such as rights to equal opportunity and treatment in education and employment secured by federal law.
A nominee who fails to demonstrate a commitment to rights and principles of fundamental importance to women should be considered unqualified to serve as a Supreme Court Justice.
From what we already know about Judge Roberts’s record, there are reasons to be seriously concerned about whether he will meet these criteria. Check back soon for more information on Judge Roberts.
