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

National Women's Law Center (NWLC), Vice President and Director of Employment Opportunities

Judith Appelbaum is Vice President and Director of Employment Opportunities at the National Women’s Law Center, a non-profit organization that has been working since 1972 to advance and protect women’s legal rights. The Center focuses on major policy areas of importance to women and their families in the areas of Employment, Family Economic Security, Education, and Health and Reproductive Rights, with special attention given to the concerns of low-income women. Ms. Appelbaum, an attorney, participates in litigation, advocacy, and public education activities in several of these areas, with a particular emphasis on employment-related issues such as sex discrimination in the workplace, affirmative action, contraceptive insurance coverage, and child care policy as well as judicial selection. She writes and speaks frequently on each of these topics.

Moderator: Welcome.
Judy Appelbaum: Hello. I am Judy Appelbaum, Vice President and Director of Employment Opportunities at the National Womens Law Center (NWLC), a non-profit organization working to advance and protect womens legal rights. Today I am here to talk about the importance of choosing federal judges, particularly for the Supreme Court, who will protect womens rights.
posted:6/11/2003 1:58:00 PM CST

Beth: Its really hard to find information about how people get confirmed to the Supreme Court! What really happens? And what does advise and consent really mean with such a narrow margin in the Senate?
Judy Appelbaum: Under the Constitution, the President has the power to nominate federal judges, including for the Supreme Court, but only with the advice and consent of the Senate. So no Presidential nominee can take a position on a federal court unless and until the Senate has voted in favor of his or her confirmation. What happens? Once there is an opening, the President submits the name of his nominee to the Senate. The Senate Judiciary Committee then examines the nominees record and holds a public hearing at which the nominee must answer questions from the Senators on the committee. Then the Committee votes whether to approve the nomination or not. If a majority of the Committee votes yes, the nomination goes to the full Senate for a vote.
For very controversial nominees, there can be a filibuster -- which requires 60 votes to end, rather than a majority of 51 -- and with the Senate so closely divided between the parties, the Presidents party may not have the 60 votes needed to end the filibuster.
posted:6/11/2003 2:01:00 PM CST

Elizabeth Cohn, PhD: Were recent Democratic presidents as ideological as the Bush Administration has been on judicial nominations?
Judy Appelbaum: No, they werent. Most of President Clintons nominees for the courts were moderates. Clintons nominees to the Supreme Court, for example -- Ruth Bader Ginsburg and Stephen Breyer -- had broad bipartisan support and did not trigger much opposition. And after the Republicans took over control of the Senate in 1995, Clinton Administration officials said that they would not nominate anyone to the courts who was not likely to have at least 60 votes in favor (enough to end a filibuster) -- which means they could not be far on the left or otherwise particularly ideological. But President Bush has sent quite a few hard-right ideologues to the Senate for confirmation to the federal courts.
posted:6/11/2003 2:06:00 PM CST

Sarah: Which womens rights to you think are the most in jeopardy in the lower courts and in the Supreme Court?
Judy Appelbaum: Certainly the right to reproductive freedom is high on the list. Theres a nominee for the 11th Circuit Court of Appeals who is having his hearing before the Senate Judiciary Committee today, William Pryor, who called Roe v. Wade the worst abomination of constitutional law in our history. If he is confirmed to this federal appellate court, he could rule on whether burdensome abortion restrictions are or are not constitutional. Its not hard to guess what his predisposition will be. And the vast majority of lower court rulings are never reviewed by the Supreme Court, so they have a big impact on the lives of the people in that courts jurisdiction. As for the Supreme Court: if the Court were to shift such that it gained one more anti-choice Justice, the Court could easily take away or severely restrict womens access to abortion services. One new Justice could also lead to rulings under the Equal Protection Clause of the Constitution, and interpretations of federal statutes, that cut back on the gains we have made in ending sex discrimination in our society.
posted:6/11/2003 2:11:00 PM CST

George: Where have Bushs nominees so far stood on various womens rights?
Judy Appelbaum: Quite a few of them have had terrible records on womens rights. If you go to NWLCs web site (, under the heading Judges, Courts and Womens Rights, you can find reports we have done on the records of several of these nominees on womens rights issues. Look, for example, at the record of Priscilla Owen, whose nomination to the Fifth Circuit is being blocked by a Senate filibuster --she is a Texas Supreme Court judge who is so anti-choice that in one case she construed the state law on minors access to abortion so narrowly as to create hurdles not found in the words of the statute, which led one of the other judges on her court (who is now President Bushs legal counsel in the White House) to call her opinion an unconscionable act of judicial activism. Or look at Carolyn Kuhl, a state judge in Calif nominated to the Ninth Circuit Court of Appeals -- she has a bad record on the right to choose, sexual harassment, sex discrimination in education, and other areas important to women. Those are just two examples.
posted:6/11/2003 2:18:00 PM CST

Ramona: Hi, Judy,
What is the easiest way to find out who has been nominated for the lower courts, so we can send our feedback to our representatives in Congress?
Judy Appelbaum: I think you can get the names of nominees from the website of the Senate Judiciary Committee, but that may not contain much background info on their records. For background info on their records, contact any of the groups participating in these chats -- Feminist Majority, National Womens Law Center, People for the American Way, Alliance for Justice, etc. And do send your feedback to your members of Congress, especially your Senators!
posted:6/11/2003 2:25:00 PM CST

Jane: Why do nominations to the lower federal courts matter?
Judy Appelbaum: This is an important question, because most people pay little attention to the lower federal courts, but they matter a lot! The vast majority of cases in the federal system never reach the Supreme Court (which decides only about 100 cases a year, compared with tens of thousands in the lower courts), so the lower courts are the final decisionmakers most of the time. And in many areas, the Supreme Courts decisions leave wide latitude for lower court judges to interpret and shape the law. For example, in the Planned Parenthood v. Casey decision in 1992, the Supreme Court -- while stopping short of overruling Roe v. Wade -- ruled that states may impose restrictions on abortion so long as they do not impose an undue burden on a woman who seeks to terminate her pregnancy. The Supreme Court gave little guidance on when a burden is undue, and some lower court judges have decided that even substantial obstacles placed in a womans path were constitutional.
posted:6/11/2003 2:28:00 PM CST

Ramona: Hi, Judy,
Can you talk a little about the ban on so-called partial-birth abortion that just passed through the House and Senate. It sounds like Bush is primed and ready to sign it into law, but Ive heard that the Supreme Court might claim its unconstitutional, based on a recent similar state ruling. Do you see this happening, or is it pretty much a done deal?
Judy Appelbaum: Youre right that this bill passed both the House and the Senate, and that the president will soon sign it into law. A few years ago, the Supreme Court struck down a similar law passed by Nebraska, in a case called Stenberg v. Carhart, so if the federal law comes before the Court and IF the Court has the same composition as it did when it ruled on the Nebraska law, it seems likely that the federal law will be struck down. But thats a big If -- the Stenberg decision was 5-4. If one of the five were to be replaced by a new Justice hostile to the right to choose, all bets are off.
posted:6/11/2003 2:34:00 PM CST

vicky: The other day, DemocracyNow (Pacifica Radio) featured a piece on Estrada. A guest from the Cato Institute argued that, contrary to charges by the Dems, Estrada answered many of the questions (during his hearing) clearly and honestly. Certainly for pro-choice advocates, we want judicial nominees to affirmatively support Roe v. Wade and other rulings that favor reproductive rights, women’s rights, civil rights, human rights, etc. But if the role of a judge is to interpret the law, why isn’t it acceptable for him to respond vaguely, saying he would have to review case details in depth before taking a more definitive position on the Supreme Court ruling?
Judy Appelbaum: It is appropriate for a nominee to avoid saying how he or she would rule in a specific case. But it is also appropriate for Senators to ask questions that elicit information about a nominees judicial philosophy and general views on important areas of law. Estrada was more evasive than most. That, combined with the fact that he is reported to be extremely ideological and that he has little public record, led many Senators to conclude that he had not satisfied them that he deserved to be confirmed. Remember, there is no right or entitlement to a powerful, lifetime seat on a federal court -- it is the nominees burden to persuade the Senate that he deserves to be confirmed. Estrada hasnt carried that burden.
posted:6/11/2003 2:39:00 PM CST

Jennie Goldstein: What advice do you have for getting people involved? My friends at college are all bright, but apathetic, and its quite hard to convince them that voting is important, much less actuall activism.
Judy Appelbaum: It is very disturbing to hear this, though Ive heard it before. One day these young people may wake up and realize that important rights and legal protections they have taken for granted are gone or severely curtailed -- like the right to control their own reproductive lives, or the right to a school or workplace free of sexual harassment, or equal opportunities to participate in intercollegiate athletics (yes, even Title IX is under attack these days). All of us who do know and care about these threats need to do a better job of educating others -- pass along email alerts you receive, bring people to campus forums with you, speak out any way you can.
posted:6/11/2003 2:44:00 PM CST

Cheryl: Do you have suggestions for how lawyers, or others who understand the importance of courts and judges, can educate more people to care about court appointments?
Judy Appelbaum: It is very important for lawyers and others who get the importance of this to help educate others. How about holding public forums in your communities, under the auspices of local bar associations or womens bar associations or other groups, with speakers who can explain these issues? You could bring in speakers from groups like mine, who are eager to educate the public.
posted:6/11/2003 2:49:00 PM CST

Pauline: What womens rights cases are expected to come before the Supreme Court in the near future? How could a change in the makeup of the Supreme Court affect them, if at all?
Judy Appelbaum: There are certain to be many more cases challenging abortion restrictions enacted at the federal and state levels -- Congress and state legislatures seem to be churning out these measures with record speed. One more anti-choice vote on the Supreme Court could make all the difference in how these cases come out (see discusssion above about the Stenberg decision). In addition, there will be more cases involving Congresss authority to enact civil rights laws and important protections of our health and safety. The Court is narrowly split on these federalism issues as well, so a shift in the Court could spell serious trouble.
posted:6/11/2003 2:53:00 PM CST

Jennie Goldstein: I was reading a newsletter from the Independant Womens Forum, and they claim that the wage gap is a myth, this figure fails to adjust for such crucial factors in determining wages as occupation, position, age, experience, education, consecutive years in the workforce
Is it actually a myth?
Judy Appelbaum: The wage gap is definitely not a myth, but I think thats beyond the scope of this chat! Go to NWLCs web site under Employment issues, and theres a section on equal pay that you might find helpful.
posted:6/11/2003 2:57:00 PM CST

Moderator: Thanks for participating.
Judy Appelbaum: Thank you for joining me today. It is important that you now take what you have learned and work to protect our rights on the courts. For more information about judicial nominations and getting involved, visit either the National Womens Law Centers website at or the Feminist Majoritys Million4Roe campaign site at We hope you will join us again for our continuing June chat series, Supreme Court in Peril.
posted:6/11/2003 2:59:00 PM CST

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