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Feminist Majority "Supreme Court in Peril" Chat Series of 2003

MincbergELLIOT MINCBERG, Vice President and Legal Director, People For the American Way (PFAW)

Elliot M. Mincberg is Vice President and Legal Director of People For the American Way (PFAW), a national organization with more than 600,000 members and supporters that works to promote and protect civil rights, civil liberties, public education, and a fair and independent judiciary. Mincberg directs much of PFAWs work on judicial nominations, and has frequently spoken and written on the subject, including in the national media. He was formerly a partner at the Washington, DC law firm of Hogan and Hartson, where he specialized in education and other litigation. He received his law degree magna cum laude from Harvard University in 1977.

Moderator: Welcome.
Elliot M. Mincberg : Were now perhaps less than one week from the possible date of a Supreme Court vacancy, this makes it a very important time to talk about what is at stake on future nominations to the Supreme Court as well as the lower courts in protecting all of our rights. I look forward to answering all of your questions!
posted:6/20/2003 1:54:00 PM CST

Carrie: Is use of the filibuster to block nominees really so unprecedented as Republicans claim? With lifetime appointments to powerful appointments at stake, it seems like theres more at stake with nominations than with legislation!
Elliot M. Mincberg : Youre absolutely right; both Republican and Democrats have frequently used filibusters to try to block court appointments. Because court appointments are for life, that does mean that there is more at stake than with legislation.
posted:6/20/2003 2:00:00 PM CST

Beth: I know the Senate Republicans are trying to change the rules to stop filibustering on nominations. I also know that they dont have the votes to pass it (thank goodness!). But is there a legitimate constitutional issue here about separation of powers? Where does the President power to appoint stop and the Senates power to advise and consent begin?
Elliot M. Mincberg : The key constitutional point is that the President and Senate have a co-equal role on judicial appointments. Contrary to assertions by some on the right, the filibuster is clearly a constitutional mechanism for the Senate to use, as Senate Republicans used to say very frequently when President Clinton was doing the nominating.
posted:6/20/2003 2:02:00 PM CST

Athena: How do you feel about Alberto Gonzales a potential judge?
Elliot M. Mincberg : Gonzales was a judge on the Texas Supreme Court, but for only two years, so not very much is known about his judicial philosophy. There are serious and troubling concerns about Gonzales, based largely on his activities as White House Counsel.
posted:6/20/2003 2:05:00 PM CST

Jules: Dear Elliot,Im really interested in political organizing, creating long-term change, and empowering people. How do you suggest doing this particularly when talking about Supreme Court threats?
Elliot M. Mincberg : I think an important way to do that is to talk about whats at stake when it comes to future Supreme Court vacancies concerning just about every issue that progressives care about. If you look at our courting disaster report, there is information there about the terrible impact that one or two more justices like Thomas or Scalia would have on issues ranging from civil rights to the environment to privacy to the first amendment to gun control to many many more. Its also important to talk to people about the People’s role in this process since the Senate has a co-equal role with the President, its critical for people to understand that they have a power to influence this issue at the point where the Senate is making its decision. That clearly happend on the Bork nomination, and it can happen in the future as well.
posted:6/20/2003 2:07:00 PM CST

Brent: A lot of senators are reluctant to fillabuster a nominee based on the nominees position on one topic, like abortion. How do you form coalitions and prove to senators that nominees are often opposed by many groups at once, and someone who is against abortion is likely against civil rights, gay rights, etc.
Elliot M. Mincberg : We try to get together with organizations concerned with a broad range of issues immediately after someone is nominated, and sometimes even before. PFAW itself is concerend of course with mutiple issues as you suggest. We then make the case to Senators and others exactly as you suggest that these right-wing nominees are dangerous on a range of issues. In fact, I have yet to see a dangerous Bush nominee whos negative record is limited to only one issue.
posted:6/20/2003 2:12:00 PM CST

Pam: How does a filibuster work? Why is it being used instead of allowing a vote?
Elliot M. Mincberg : Under long standing Senate rules debate on a nomination or piece of legislation ends only when there are at least 60 Senators who are willing to end debate and proceed to a vote. (Most of the time Senators agree unanimously to proceed to votes on particular issues). A filibuster happens when 40 or more Senators will not agree to a vote, is used to help protect substantial minorities of Senators, particularly when they feel, as with the Estrada nomination, that there is an attempt to railroad them into a vote without all the information they should have about a nominee or piece of legislation.
posted:6/20/2003 2:14:00 PM CST

Trixie: What are some effective strategies for educating young people about the importance of federal courts in protecting our rights?
Elliot M. Mincberg : I think its important to organize speeches and presentations right where young people are, such as on college campuses. Its also important to make effective use of the internet and to reach out to periodicals and networks that young people are exposed to. Its also important to try to bring the issue home by talking about issues that young people are concerned about, whether its the environment, civil rights, etc.
posted:6/20/2003 2:18:00 PM CST

Nat: With a possible Supreme Court vacancy soon, are you coordinating your efforts with Senate Democrats to ensure that the next nominee is committed to protecting our basic rights and freedoms?
Elliot M. Mincberg : We are reaching out to other progressive groups, to Senate Democrats, and also to moderate Senate Republicans to try to help ensure that. We are pessimistic about what the administration will do when it comes to picking a nominee, but theres always hope.
posted:6/20/2003 2:21:00 PM CST

Tre: Do you believe there are judges who are too far to the left (i.e., an ultra left-wing judicial activist) or nominees who would be too far to the left (i.e., a liberal extremist with a radical reactionary vision) to serve on the courts? If so, what judges, past or present, do you believe fit this mold? Name some potential nominees (high-profile law professors, lawyers, etc.) who would also fit this mold.
Elliot M. Mincberg : In theory there could be but I cant think of a good example off the top of my head. Recent Democratic Presidents have named generally moderate nominees. The danger as in this administration has been nominees far to the right.
posted:6/20/2003 2:23:00 PM CST

Ren: Senator Schumer has offered a list of possible picks for the Supreme Court:

  • Senator Arlen Specter
  • Judge Ann Williams, Seventh Circuit Court of Appeals
  • Judge Edward Prado, Fifth Circuit Court of Appeals
  • Judge Michael Mukasey, Southern District of New York
  • Judge Stanley Marcus, Eleventh Circuit Court of Appeals

Do you agree with Senator Schumer that [a]ll of these individuals appear to be legally excellent, ideologically moderate, and several of them would add diversity to the Court. All of them have a history of bipartisan support, are within the mainstream, and have demonstrated a commitment to the rule of law? Would you oppose any of them?
Elliot M. Mincberg : As Senator Schumer himself made clear, he has not made any decision as wether he would support or oppose any of those nominees, and their complete records would need to be thoroughly examined before any such decision is made.
posted:6/20/2003 2:25:00 PM CST

Jeremy: Have conservative forces already succeeded in stacking the courts or are they pretty much balanced?
Elliot M. Mincberg : Right-wing forces have unfortunately stacked the courts in many areas. There remains some areas that are more in balance and where a few more right-wing nominees would be particularly dangerous. Even in those areas where right-wing judges predominate, it is important to try to prevent further damage.
posted:6/20/2003 2:27:00 PM CST

Sarah: Why are Bushs judicial nominees so dangerous? With Clintons nominations wont they be offset?
Elliot M. Mincberg : Many of Bushs nominations are particularly dangerous because, as Bush pledged, they are in the mold of Scalia and Thomas, the two most right-wing justices on the Supreme Court. Clintons nominations tended to be more moderate, and not nearly as far to the left as Bushs key nominees are to the right.
posted:6/20/2003 2:29:00 PM CST

Pauline: What issues are PFAW concerned with for Bushs judicial nominees? How are Bushs nominees on these issues?
Elliot M. Mincberg : Our basic concern is that people appointed to lifetime positions on the Federal judiciary have an overall committment to constitutional and civil rights and liberties, and to respecting the authority of Congress to protect peoples rights, the environment, and health and safety. Far from meetting that criterion, too many of Bushs nominees have a record that is opposed to those important principles. For more information on specific nominees go to our website at
posted:6/20/2003 2:31:00 PM CST

james m nordlund: If the roots of lack of compassion for the diseased, disadvantaged, children, etc. and the en vogue economic tool war, one being psycho-pathic greed, arent addressed in Western societies sociological programming of their populaces, wont the corporate structures convolutions devolutionary direction eventually determine more apathy and social pathos in global society; ergo, less funding for prevention, treatment, and research into
curing AIDS, defense of reproductive rights, and opposition to war as a
substitute for economic growth and foreign policy, in the long run?
Elliot M. Mincberg : It is certainly correct that there are many social problems beyond the concerns about judicial nominations. But sooner or later in our society, the federal courts are involved in critical decisions on most of these issues, and thats why we think judicial nominations are so important.
posted:6/20/2003 2:34:00 PM CST

Moderator: Thank you for joining us today. Please get involved in the battle to protect our independent judiciary. Your rights are at stake. For more information about judicial nominations and getting involved visit either the PFAW website at or the Feminist Majority’s Million4Roe campaign site at We hope you will join us again on Monday for our continuing June chat series, “Supreme Court in Peril.”
Elliot M. Mincberg : Thanks for all of your questions, please pay careful attention to the important Supreme Court decisions, and a possible Supreme Court vacancy or two this comming week. For more information, please go to
posted:6/20/2003 2:41:00 PM CST

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