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Published: Sunday, 8/28/2005

Supreme Court appointment battle may hinge on women's issue


WASHINGTON - With Senate hearings on President Bush's nomination of John Roberts, Jr., to be the next Supreme Court justice 10 days away, his stand on women's rights has become central in the growing debate over whether he should be confirmed.

After examining about 66,000 pages of documents involving Judge Roberts, who is now a federal appellate judge, while he was a deputy general counsel in the White House, a number of women's rights groups have begun to express concerns that Judge Roberts would not have their best interests at heart on such issues as reproductive rights, pay equity and anti-discrimination laws.

Kim Gandy, president of the National Organization for Women, said after reviewing Judge Roberts' memos opposing new legal efforts on behalf of women's rights, "That is a Neanderthal position."

Such public expressions of dismay over some of Judge Roberts' past statements, legal opinions and memos have prompted conservative groups to mount a counter campaign by women on Judge Roberts' behalf.

After NARAL Pro Choice America announced its staunch opposition to Judge Roberts' confirmation and The National Council for Research on Women said it is hearing more doubts about him from women around the country, a conservative public relations group, Creative Response Concepts, began publicizing an ad hoc group called Women for Roberts.

Kathryn Jean Lopez, editor of National Review Online, which has a conservative point of view, said the group was formed in response to attacks against Judge Roberts from liberal special interest groups.

At a press conference she said that women's issues are America's issues and that the Supreme Court affects women in many other ways besides ruling on reproductive rights. She said it was "disgraceful" that NARAL sponsored an ad suggesting Judge Roberts did not favor protecting women at clinics that perform abortions from violent protesters. What Judge Roberts did was say that blockading abortion clinics was a free expression of views. NARAL pulled the ad.

Linda Basch is president of The National Council for Research on Women, which has not taken a position on Judge Roberts but wants more information. She said, "Just as John Roberts deserves a fair hearing (before the Senate Judiciary Committee, beginning Sept. 6), so do the concerns of women. We cannot afford to have any justice confirmed who will turn back the clock on women's gains."

Judge Roberts would replace Justice Sandra Day O'Connor, considered the swing vote on a variety of issues such as keeping abortion legal and prohibiting discrimination against women and minorities. Her resignation leaves only one woman - Ruth Bader Ginsburg - on the nine-member court. Women's rights groups say they are nervous that Judge Roberts' past writings, even though they date back to when he was a young lawyer in his 20s working in the Reagan White House, show a pattern of lack of sympathy for issues important to women.

They argue that Judge Roberts' writings indicate he would vote to reverse many of the court's recent five-to-four decisions that have reaffirmed affirmative action remedies at the University of Michigan and forbidden states to place "undue burdens" on a woman's right to have an abortion. On both issues Justice O'Connor was the deciding vote. In the fall court term that begins Oct. 3, the court will consider whether teenagers whose health is at risk from being pregnant can be denied abortions until they get parental consent. And more cases involving affirmative action are coming up through the pipeline.

Women's groups uncertain about Judge Roberts say they are worried about a number of his past positions:

  • While a deputy solicitor general, Judge Roberts wrote a legal brief saying that Roe vs. Wade, the 1973 Supreme Court decision legalizing abortion should be reversed. He said there is no constitutional right to privacy.

  • He said that in his legal opinion regulations subjecting education institutions whose students got federal aid to federal anti-discrimination laws were illegal. The Supreme Court disagreed with him.

  • Judge Roberts said there should be no legislative effort to address a "purported" gender gap when women were paid an average of 59 cents for every dollar men made. He said the concept of equal pay for work of equal value was fraudulent.

  • He said the Justice Department should not intervene in a lawsuit over female prisoners being denied equal job training. He said the Constitution does not give special help to women facing government-sponsored discrimination.

  • He said a girl sexually harassed by a teacher could not sue for damages. The Supreme Court said she could.

  • Employers legally could bar women who could become pregnant from certain jobs. The Supreme Court disagreed.

  • He said doctors in family planning clinics could be prevented from discussing the option of abortion.

    His confirmation hearings will probe whether he still would argue those positions. Some conservatives argue that he should not answer questions on issues that may come up before the high court. Many liberals say they have a right to know his personal beliefs and also want more documents from when he was in the solicitor general's office released to the public. The White House has so far said no.

    Ms. Basch said, "This is lifetime appointment. It will affect a generation of laws and a generation of women and men. Judge Roberts' statements on Roe vs. Wade have rightfully sounded an alarm around the country, as well as his opinions on Title IX, violence against women and the right to privacy."

    Nancy Belden, a partner in polling firm of Belden Russonello & Stewart and past president of the American Association for Public Opinion Research, said the polls show that the American public "understands this is a political process." She added, "Although the public believes a judge's personal views should not be factor in court classes, it follows easily that most Americans say the nominee should have to explain his or her views."

    She said that while many Americans have conflicted views on abortion, no more than two out of ten want it outlawed completely.

    Deborah Rhode, a law professor at Stanford Law School, said the issue is not just Roberts but also the Bush administration's standards for another nomination for the court if there is a second resignation. She said that when 30 percent of all lawyers are women and 20 percent of judges are women, it is "deeply disturbing that this administration could not find one woman to name." And, she said, it is "deeply disturbing" that the man that Mr. Bush picked display "an ignorant and insensitive perspective about women.

    She said that the documents about Judge Roberts made public so far show that he "lacks concern about issues important to women . We need to know if his thinking has evolved."

    Jocelyn Frye, director of legal and public policy for the National Partnership for Woman and Families, said she is worried that Judge Roberts' writings and opinions indicate he would not fight economic discrimination against women in the workplace. She interprets what Judge Roberts has written as saying that he approves of legal remedies against discrimination in hiring only if the rejected applicant can prove she was more qualified. She said that would make it almost impossible to get legal redress for discrimination.

    Linda Chavez, a former official in the Reagan White House and a strong supporter of Judge Roberts, said that because Justice Ginsburg, who is considered one of the four moderate-to-liberal justices, refused 30 times to answer questions about her personal beliefs, including abortion, during her confirmation hearings, Judge Roberts should not be held to a different standard.

    But Ms. Basch argued that Justice Ginsburg did answer questions on reproductive rights at her hearing. "And she had a paper trail." Ms. Rhode agreed, saying, "She said that a right to privacy is central to a woman's life and dignity."

    No senator, so far, has said he or she will vote against Roberts. But Sen. Dianne Feinstein (D., Calif.) said that as the only woman on the 18-member judiciary committee, she has a "special role and a special obligation" in looking at Roberts' views on women's rights, especially on abortion.

    She said whether Judge Roberts is confirmed is a "big, big deal" because he would have the power to undo many of Justice O'Connor's votes. In a speech in California a few days ago, she said, "I happen to feel that it would be very difficult for me to vote yes on a nominee I thought would overturn Roe vs. Wade. What I need to find out is what his views are."

    Some think that if Ms. Feinstein decides to vote against Judge Roberts, she could persuade enough Democrats on the committee to vote against him, meaning his nomination would go to the floor of the Senate without the endorsement of the committee. That could lead to a filibuster or a delay. Mr. Bush wants Judge Roberts on the high court by Oct. 3.

    Connie Mackey, vice president of government relations at the conservative Family Research Council, retorted that Ms. Feinstein does not represent all women. She said "mainstream" women want a "fair, timely, up or down vote" on Judge Roberts.

    Contact Ann McFeatters at: amcfeatters@nationalpress.com or 202-662-7071.

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