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WHAT’S AT STAKE FOR WOMEN WITH A ROBERTS CONFIRMATION TO THE SUPREME COURT?
AUDIO PRESS BRIEFING AUGUST 23, 2005

Full Transcript COMING SOON!

Highlights from Briefing:

On Judge Roberts and women’s rights:

“We cannot afford to have any Supreme Court justices confirmed, whether it’s Roberts or other future nominees, who will turn back the clock on women’s rights or any other civil liberties our country has worked so hard to forge. The Senate cannot ignore Roberts’ troubling record and what’s at stake for women’s rights as it deliberates this critical nomination. Just as John Roberts deserves a full hearing, so do the concerns of women.”
-- Linda Basch , President of the National Council for Research on Women

“In demanding that we apply a women’s lens to this nomination, we seek to protect therights of millions of American women….Effective contraception and abortion are centralto the overall economic well being of the nation and its families. However, access tocontraception is not guaranteed by an equal protection framework; its constitutional rootsare in a doctrine of privacy about which Judge Roberts has expressed serious reservation– on the record. His hostility was palpable as Deputy Solicitor General under President George H. Bush, and as an advisor in the Reagan Administration….We need a full and fair hearing on these matters. America’s women deserve no less.”
-Ellen Chesler, historian and author of A Woman of Valor: Margaret Sanger and the Birth Control Movement in America and Senior Fellow at the Open Society Institute

”Much of [Roberts’] writing that has been released over the last few weeks displays a perspective that in many respects is insensitive on women’s issues, and the Senate and the nation need to know if his views have significantly evolved. We need to know what, in terms of his current views, he thinks about early statements opposing the equal right amendment, opposing heightened scrutiny for gender issues and opposing the Department of Justice in intervening in a prison suit to assure that women offenders receive the same vocational training as men. All of these suggest a pattern and practice of insensitivity on women’s issues that, on a court which has only one woman representative, would be deeply disturbing. The point is not to pre-judge this nomination but to ensure that it receives the kind of probing scrutiny that half this nation’s population deserves.”
-Deborah Rhode, Professor of Law and Director of the Stanford Center on Ethics, Stanford University

”We have read that Roberts supports race and gender-blind policies. News reports have referenced writings of his that are skeptical of affirmative action programs. According to the Wall Street Journal/NBC news poll from July, a majority say that “appointing a judge who would uphold affirmative action laws and policies would be a step in the right direction,” and just 14 percent call that the wrong direction. Similarly, in a June Gallup Poll which asked people whether they favored or opposed affirmative action programs for women, 6 out of 10 favor them.

Americans want to protect Roe and do not want to abolish abortion. Sixty percent call Roe a good thing and only 35 percent call it a bad thing in a recent CBS poll. In a Pew Poll, 65 percent opposed overturning Roe and these views, in fact, are shared pretty equally among men and women. In my firm’s polling, and in polling that’s been done by many others across the country, there is a very small number, probably no more than 2 in 10 who, in fact, want to outlaw abortion altogether.

On a closely related issue, the commitment to privacy and its role in abortion and other decisions remains a very strongly held American value. The majority agrees that abortion is a private medical decision between a woman and her doctor, and that there’s no need for Congress to make abortion laws more restrictive even in light of the new things that we know about how a fetus develops. Even in this changing world, we see a public that’s clinging very strongly to privacy….The public at large appears not to want to move backward on these key issues impacting women.”
-Nancy Belden, Partner, Belden, Russonello and Stewart and Past President of the American Association for Public Opinion Research

“There’s been a lot of discussion about the documents that have been produced and [Roberts’] views on Title IX, which is the groundbreaking law that prohibits sex discrimination in federally funded education programs or activities. Under his analysis, Title IX would not have applied to an entire institution. Initially, he argued that it ought not to apply to an institution simply if the institution received student aid as opposed to direct federal aid. That position didn’t prevail and so then he argued that Title IX should be limited to a particular program as opposed to an entire institution. Again, that argument would have severely undercut the application of Title IX to a full range of programs in schools. That position that ultimately was endorsed by the Supreme Court in Grove City v. Bell and was ultimately overturned by the Civil Rights Restoration Act.

And on the issue of employment discrimination: One of the documents in the Roberts files is a memo from October of 1981. He is criticizing two letters sent to two Georgia counties that were settling an employment discrimination case. In the context of those letters, he argues that it’s not enough to have proof of discrimination to establish a violation of Title VII, which is the main federal employment discrimination law. More specifically, he argues that an employer could have a no African-Americans policy, a hiring policy and that standing alone would not run afoul of the law. Presumably, you could have a no women hiring policy and reach the same result. He argued that a violation would only occur if a person proved that he or she was more qualified than the person hired. What’s striking about his analysis, in addition to the fact that it’s just incorrect on the law, is that the memo never really mentions the actual law that he’s talking about, Title VII, a law that very clearly states that it’s legal to fail or refuse to hire somebody on a number of prohibited bases, including race and gender. That core fact is really ignored in his analysis. If it were applied today, it would be very hard for women or people of color to bring employment discrimination claims successfully, so that analysis is one concrete problem.”
-Jocelyn Frye, Director of Legal and Public Policy at the National Partnership for Women and Families

On public attitudes toward Supreme Court nomination hearings:  

“According to public opinion polling, people do believe that the appointment and the Court are important to them personally. The public recognizes, interestingly, that the Court appointment process is a political process. They don’t really perceive of it as something above the fray or impartial but, in fact, a political process. The public believes that a judge’s personal views should not be a factor in decisions on a court case, although they also believe that personal views usually are. It follows quite easily then that most Americans say that a nominee should have to explain his or her views as the process goes forward. In fact, in a July Gallup Poll, 61 percent said that the nominee should have to explain his or her views on the issues that the Senate might ask them about. A slight majority say that senators are justified in voting against a nominee if they disagree with his or her stance on issues.”
- Nancy Belden, Partner, Belden, Russonello and Stewart and Past President of the American Association for Public Opinion Research

“It’s very likely that the Administration is going to have further opportunities to make appointments to the Court. The Court exercises an enormous amount of influence over the daily lives and public policies of this nation, and it’s important to get these issues on the agenda. [It’s important] to have a full and open debate about what kinds of concerns and commitments we expect our judiciary to have. We also need to be concerned with the criteria for selection and the question of how sensitive are judges going to be to these issues once they’re actually on the bench. Certainly, putting someone through the confirmation process serves as a kind of wake-up call about the nation’s beliefs and fundamental values and their expectation that you’ll have a court that reflects those beliefs and values, and that remains within the mainstream of public opinion. To the extent that the hearings serve a kind of broader political issue quite apart from the ultimate result on this nomination, I think we need to make sure that women’s issues are front and center.”
-Deborah Rhode, Professor of Law and Director of the Stanford Center on Ethics, Stanford University

On gender diversity and the Supreme Court:

“The symbolic issues have largely dropped out of the debate. . . What does it say about this nation’s commitment to equal opportunity for women that we are now talking about a bench that will have only one woman member? Historically, of course, women as half the population have been subject to the laws requirement but largely excluded from its judicial interpretation and enforcement. That’s begun to change dramatically, of course and now, half of the new entrants to the legal profession are women. The profession, as a whole, is 30 percent. A fifth of all judges are now women and – but this administration was unable to find a single woman with sensitivity to women’s issues, is I think a point deeply disturbing and that ought not – to be totally neglected, especially, as we go forward and realize that this administration may very well have another appointment following this one.”
-Deborah Rhode, Professor of Law and Director of the Stanford Center on Ethics, Stanford University

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