|FEATURES | summer 2005
How to frame the debate on federal judicial appointments
With Supreme Court vacancies looming and the U.S. Senate threatening (at press time) a “nuclear option” to eliminate judicial filibusters, feminists have good reason to worry about extremist judges being appointed to federal benches. The views of those appointed may well determine such critical issues as a woman’s right to contraceptives and abortion, enforcement of numerous civil rights laws, including Title IX, and protection of other privacy rights.
We can take action and let our voices be heard through messages to legislators, letters to the editor of local newspapers, op-ed pieces, speeches and in everyday conversation with family and friends. Opinion polls and other research suggest that the talking points below are the most persuasive arguments for framing — and winning — the debate on judicial nominations:
These are lifetime appointments that deserve careful scrutiny.
Federal judges and Supreme Court justices serve until they die or retire, and they cannot be dismissed except through impeachment. Appointments to the courts are thus very different from other powerful administration positions, such as Cabinet posts, in which appointees serve at the president’s pleasure.
If a federal judge takes the bench in her or his 40s — as many Bush appointees have — they could remain there for decades (the average tenure for a federal judge is about 25 years). Justice Clarence Thomas is a case in point: He was first appointed a federal judge in 1990, in his early 40s, then named a Supreme Court justice in 1991. At age 57, he’s already served 15 years on federal courts — but could easily serve another 20 or even 30 years on the Supreme Court. To repeat: The key word is lifetime.
The U.S. Senate has a responsibility to determine if a federal judicial nominee is qualified to serve.
As Article II of our Constitution states: “[The president of the United States ] shall nominate, and by and with the Advice and Consent of the Senate [our italics], shall appoint … Judges of the supreme Court.”
In other words, senators have both an equal role and an important responsibility in determining whether a nominee is well-qualified and able to serve our country’s best interests. Moreover, Americans overwhelmingly believe that U.S. senators should take the time necessary to carefully review a possible Supreme Court justice’s qualifications and judicial philosophy, and not just rubber-stamp the president’s nomination.
Also, nearly three-quarters of voters believe a senator should vote against a nominee who refuses to answer questions on important constitutional issues— including those related to women’s rights. And the belief that the Senate should fulfill its proper advise-andconsent role on federal judicial nominees crosses party lines: Republicans (68 percent), Independents (75 percent) and Democrats (81 percent) all want the Senate to make an independent judgment, not just confirm whomever President Bush nominates.
Privacy and women’s rights are critical issues when considering a Supreme Court nominee.
When asked on a scale from 1 to 5 what is most important when considering a nominee to the Supreme Court, voters ranked privacy as No. 1 (4.14). Next in importance were individual rights (4.12) and women’s rights (4.08). And remember, as author Ellen Chesler points out in this issue, the right to privacy is the basis for major court decisions, in cases such as Griswold v. Connecticut and Roe v. Wade, which have ensured women’s access to contraceptives and abortion.
Americans do not want these important protections, rights and freedoms to be reversed, but until women have full equality under the Constitution — as Rep. Carolyn Maloney points out in her commentary about the latest push for the ERA on Page 23 — our rights hang perilously on the decisions of the Supreme Court.
Americans support the Senate filibuster rules.
A filibuster means that 60 senators must vote to end debate on a federal judicial nomination. Since people understand the seriousness of such appointments, especially to the Supreme Court, they want our system to maintain checks and balances — especially when both houses of Congress and the White House are controlled by one party.
Indeed, the judicial filibuster has been used by conservatives, too, as in 1968 when Sen. Strom Thurmond successfully prevented Justice Abe Fortas from being confirmed as chief justice and Judge Homer Thornberry from being confirmed as an associate justice. Bottom line: Americans believe that requiring support by 60 senators (rather than a simple majority of 51) will help ensure a more moderate Court — one that reflects the views of mainstream America .
- Polling information from Peter D. Hart Research Associates, January 2005, and The Mellman Group, April 2005.
Kathy Bonk is executive director of the Communications Consortium Media Center in Washington, D.C.