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ShareFeminist Majority "Supreme Court in Peril" Chat Series of 2003
JUDITH APPELBAUM
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 (www.nwlc.org), 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 www.nwlc.org/display.cfm?section=jcwr
or the Feminist Majoritys Million4Roe campaign site at http://www.million4roe.com.
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
