Nomination Watch

National Call-in Day Today! Urge Senators to Oppose Alito Nomination

Please join the National Women’s Law Center along with many of our coalition partners in making critical phone calls in opposition to the Alito nomination to the Supreme Court.  Some Senators have already begun making public statements about their position on the nomination, so it is important that we CALL NOW!  We need to let Senators know that we want them to do everything possible to defeat Alito’s confirmation.  This is about more than Alito's confirmation, it's about the future of the country.

Alito’s testimony last week made it abundantly clear: if confirmed, Alito will likely roll back important gains made in protecting and advancing civil rights, vote to overturn Roe v. Wade, condone the abuse of power by the president, go too far in allowing government intrusion in your personal life, and help curtail Congress’ ability to protect the health, safety, and welfare of the American people.  He will join the conservative Scalia/Thomas/Roberts wing of the Court.

Don't let your Senators get through another day without hearing from you.

supreme court samuel alito

Oh, the irony

When a young John Roberts started working at the Justice Department in 1981, he spent his first days on the job preparing Sandra Day O’Connor for her Supreme Court confirmation hearings.  Here’s Roberts’ reported description of the strategy O’Connor was to take at her hearings:

“The approach was to avoid giving specific responses to any direct questions on legal issues likely to come before the court, but demonstrating in the response a firm command of the subject area and awareness of the relevant precedents and arguments,” Roberts wrote.

This is, of course, eerily similar to the advice many conservatives are now giving Roberts as he prepares for his hearings to replace O’Connor.  While hope springs eternal, this certainly puts a damper on our optimism that Judge Roberts will be forthcoming with the Senate and with the American people about his views on important legal issues during his own hearings to replace Justice O’Connor.

john roberts supreme court

Should O’Connor’s Successor Be a Woman?

The short answer is:  Yes, but only if it is a nominee who will support and uphold critical legal rights and principles for women.

There is no doubt that women deserve to have more than token representation on the nation’s highest court.  It was a huge breakthrough when Sandra Day O’Connor was named as the first woman ever to serve on the Supreme Court in 1981, and another major step forward when Ruth Bader Ginsburg joined her on the Court in 1993.  In the 21st Century, with women now well established in the legal profession, and indeed on courts all across the country, even two out of nine on the highest court in the land falls short.  And it would certainly be a shame to lose ground after Justice O’Connor leaves.

That said, it would be even worse to lose the legal ground that Justice O’Connor’s rulings over the years helped women gain.  Her opinions and votes on the Court have made a tremendous impact on the law, to the benefit of women’s rights and opportunities.  See here for some examples from a previous post.  In many of these cases, Justice O’Connor cast the swing vote in 5-4 decisions upholding our rights -- and rights that are established by a one vote margin are hardly secure.  So Justice O’Connor’s successor will have the opportunity to reinforce – or perhaps to unravel – all that she helped accomplish for women.  That means it is critical that whoever takes Justice O’Connor’s seat must be someone who will protect women’s core rights, whether that person is a male or female.

In short, diversity on the Supreme Court is important, but it need not and must not come at the expense of women’s rights.  So the gender of the nominee will not be the only thing women will be watching for as President Bush makes his selection and the Senate begins the confirmation process to fill Justice O’Connor’s vacancy.

judicial nominations sandra day o'connor

Justice O’Connor’s Pivotal Role on Women’s Legal Rights

Justice Sandra Day O’Connor has often been described by Supreme Court analysts as America’s most powerful jurist – or even the most powerful woman in the country – because she has held the decisive, swing vote in so many important Supreme Court decisions.  Nowhere is this more true than in cases of critical importance to women.  If she were replaced by a Justice in the mold of Justice Scalia or Justice Thomas, the judges President Bush has described as his models, women’s rights in a number of areas are likely to be seriously weakened if not lost altogether.

Starting in her first Term on the Court, in 1982, Justice O’Connor wrote the opinion of the Court in Mississippi University for Women v. Hogan, in a 5-4 decision, holding that a state-supported university could not exclude men from admission to its nursing school based on gender stereotypes.  Her opinion made clear that she understood the dangers of laws and public policies that are based on archaic stereotypes and fixed notions concerning the roles and abilities of men and women.

Here is a sampling of other, more recent cases in which Justice O’Connor cast the decisive vote in 5-4 rulings on issues central to the lives of women:

• Jackson v. Birmingham Board of Education (2005) – Just this Term, O’Connor wrote the majority opinion in a 5-4 ruling that a claim may be brought under Title IX to challenge a school’s retaliation against an employee who complains of sex discrimination in violation of Title IX.  The Center represented the plaintiff in this case, the coach of a girls’ high school basketball team who was stripped of his coaching position when he complained about unequal treatment for the female athletes.
• Stenberg v. Carhart (2000) – O’Connor was in the majority in a 5-4 ruling striking down a Nebraska law that would have had the effect of banning abortion as early as the 12th week of pregnancy and that lacked any exception to protect a woman’s health.  It is important to note, as well, that O’Connor was one of the three Justices who signed the pivotal plurality decision in Casey v. Planned Parenthood (1992), in which the Court reaffirmed the essential holding of Roe v. Wade protecting a woman’s right to choose.
• Davis v. Monroe County Board of Education (1999) – O’Connor wrote the majority opinion in a 5-4 ruling holding that a claim may be brought under Title IX to challenge the sexual harassment by one student of another where the school authorities have failed to act.  The Center represented the plaintiff in the case.
• Grutter v. Bollinger (2003) – O’Connor wrote the majority opinion in a 5-4 ruling upholding the right of public universities to use affirmative action in their admissions policies to promote diversity.  The case is important not only for race-based affirmative action policies but for sex-based policies as well.
• Brentwood Academy v. Tennessee Secondary School Athletic Association  (2001) – O’Connor was in the majority in a 5-4 ruling that a state high school athletic association is engaged in state action and can therefore be sued under the Equal Protection clause of the Constitution.

In the next Term of the Court, starting in October, several cases will be decided that are of particular importance to women, such as:

• Ayotte v. Planned Parenthood of Northern New England – The Court will consider whether New Hampshire’s parental notification law for abortion is unconstitutional because it lacks an explicit exception to protect minors’ health or life.  The Court will also consider whether the undue burden standard established in Casey was properly applied to a facial challenge to an abortion statute.  A change in the standard of review could have a drastic impact on the review of other abortion restrictions.
• Scheidler v. National Organization for Women – the Court will consider issues relating to whether women’s groups and abortion clinics can sue anti-abortion protestors under the federal RICO law.

In addition, in the foreseeable future the Court will be likely to review the constitutionality of another the federal law like the one struck down in Stenberg, a law that has been held unconstitutional by three district courts and is now on appeal before the Second, Eighth and Ninth Circuits.

O'Connor Resigns from Supreme Court

Justice O'Connor just announced her resignation from the Supreme Court.  For words of wisdom about this historic occasion, we turn to Marcia Greenberger, NominationWatch Executive Editor and NWLC Co-President.  Here’s what she has to say: 

“During her 24-year tenure on the Court, Justice O’Connor has been a key swing vote in cases important to preserving women’s constitutional and legal rights, including the right to choose, protection from sexual harassment and keeping Title IX strong. Justice O’Connor’s independence and open mind are ideal qualities in a Supreme Court justice. President Bush’s nominee has the potential to shape the very existence of core legal rights that Americans have relied upon for decades. 

“A woman’s right to choose is at stake, and so are a whole range of laws that protect women’s constitutional rights to equal protection, as well as their rights in employment, education, and health, safety and welfare.

“President Bush has said Justices Scalia and Thomas are model justices. Both have repeatedly disagreed with Justice O’Connor’s legal opinions, and have records that are hostile to women’s fundamental rights. More justices like Scalia and Thomas would tilt the high court in such a way that it would no longer be a bastion of independence and protector of our liberties.

“We urge President Bush to engage in meaningful consultation with Senators from both parties and select a consensus nominee who appeals broadly to the American public. A strongly ideological judge would likely result in a bitter, protracted confirmation battle.  This need not occur. We urge the President to follow the Constitution faithfully.” 

Well put, Marcia.