Ms. Magazine

spring 2003
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this is what a feminist looks like

Features
The Feminist To-Do List by Gloria Steinem
Ms. Poll Feminist Tide Sweeps In as the 21st Century Begins by Lorraine Dusky
Affirmative Action on Trial by Teresa Stern
Women on Death Row by Claudia Dreifus
In the Thick of Life at 70 by Jessica Chornesky

Special Action Alert
Women Take Action Worldwide
Listing: Coalitions and Groups
National Council of Women's Organizations Statement on War with Iraq
NCWO Partial Members List
Why Peace is (More Than Ever) a Feminist Issue
by Grace Paley

Writing of War and Its Consequences
Ghosts of Home by Patricia Sarrafian Ward
Tales from an Ordinary Iranian Girlhood by Marjane Satrapi
Snow in Summer: LA, CA, 1963 by Helen Zelon

News
Pat Summitt's 800th Victory
Augusta Golf Club's Red Face
National Map of Priest Abuse
Women Warriors
Lesbians with Strollers
Kopp Trial
Trouble in Herat, Afghanistan
Reproductive Rights in Poland
Health Clinics in Guatemala
Congolese Women for Peace
Global Good News Round-Up
The Opposite of a Nuclear Bomb

Departments
Lower Breast Cancer Risks by Liz Galst
The Making of an Activist by Gloria Feldt
Nature Conservancy Gains by Rachel Rabkin
Harvard Stumbles on Rape Rules by Lorraine Dusky
The Bush Overhaul of Federal Courts by Stephanie B. Goldberg
My Friend Yeshi by Alice Walker

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The work of Chicago-based writer Stephanie B. Goldberg has appeared in Business Week, the New York Times, the Chicago Tribune and many other publications. She is a former senior editor of the ABA Journal and writes for a number of ABA magazines.


For a Woman to Get that Federal Court Nomination, Does She Have to be Scalia in a Skirt?
by Stephanie Goldberg

President Bush changes the way federal judges are chosen, looking to ideology as a major factor in their selection.

Texas Supreme Court Justice Priscilla Owen has friends in high places-- White House Counsel Alberto R. Gonzales, once her colleague on the state's highest court, and Bush advisor Karl Rove, who was intimately involved in her campaign when she first ran for election in 1994. Perhaps that explains why President Bush recently renominated the ultraconservative to the U.S. Court of Appeals for the Fifth Circuit after the Senate Judiciary Committee defeated her nomination last September.

In the old Senate, the Democrats had the clout to stop a nomination like Owen's in its tracks. That's much less likely to happen now, with Republicans controlling the Senate, albeit by a slim majority, 51-49. With the GOP holding sway over both the legislative and executive branches, Bush is now positioned to make good on his campaign promise to appoint conservative judges in the mold of Supreme Court Justices Antonin Scalia and Clarence Thomas. To that end, he seems to be rewriting the rules of picking judges-- even making what ranking Democrat Senator Patrick Leahy called the "unprecedented" move of sending back rejected candidates like Owen and Charles Pickering of Mississippi for reconsideration.

To be fair, each administration tries to put its stamp on the judiciary, and politics weigh heavily in the consideration of any nominee. Clinton's appointments greatly increased diversity on the bench- -close to half the people he named were minorities or women-- but, centrist that he was, he had no interest in packing the court with ideologues, nor in the battles it would take to get a Republican-dominated Senate to confirm them.

By contrast, the Republicans, beginning with Reagan, have hewed to a long-range plan to put far-right jurists on the bench, and Owen certainly fills the bill. "It's dismaying," says legal ethicist and Stanford law professor Deborah L. Rhode. "Her distinctive qualification from this administration's point of view appears to be her strong ideological bias."

Traditionally, objections such as Rhode's are seen as playing politics or beside the point-- why shouldn't the party in power be able to place whoever it wants on the bench? At least, that's what the Republicans argue. But Rhode disagrees. "These are lifetime appointments whose influence will be felt long after this administration is gone. We have a right to expect mainstream candidates who represent all of us, not just a particular constituency."

Actually, the demand for centrism goes to the very heart of judicial temperament, says Sheldon Goldman, author of Picking FederaI Judges (Yale University Press, 1997) and a professor of political science at University of Massachusetts at Amherst. "Judges are supposed to be neutral arbiters of the law. If they want to be advocates, they shouldn't be judges," he says.

By that standard, Owen is manifestly unfit for office. A formidable opponent of abortion rights, she has never allowed a minor seeking an abortion to obtain a judicial bypass of the parental consent requirement. Indeed, she has tried to toughen the standards so greatly that even Gonzales, while on the Texas Supreme Court with her, reproached her in an opinion for "unconscionable" judicial activism. Her record in age discrimination cases is equally hard-line: If she had her way, it would be impossible to bring an age discrimination claim unless that was the only plausible reason for dismissal. "That means if someone came to work five minutes late, he doesn't have a case," says Houston employment lawyer Margaret A. Harris.

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Magazine Exclusive

With but one exception, the women whom George W. Bush has nominated to the US Court of Appeals are all judges--a sensible enough qualification. On the other hand, the men include quite a few legal practitioners and professors who have no judicial experience. Why the difference? Read Sexual Politics of the Bench in this month's issue, on stands now.

 

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