Women of Color Alarmed by Chief Justice Nominee

(WOMENSENEWS)–Women of color listen up.

As we focus on our sisters facing tragedy and despair in the hurricane-torn South, we need to remember that another struggle is going on, one that will profoundly influence our ability to eliminate the kind of racial disparities that continue to plague our nation. We are talking about the two vacancies on the Supreme Court.

President Bush has nominated John Roberts, yet another white male conservative, to sit on the highest court in the land. Initially nominated to replace Sandra Day O’Connor, Roberts is now nominated to succeed William Rehnquist, who died over the weekend, as the chief justice on the Court.

Roberts’ confirmation hearings, which were set to begin yesterday, are now scheduled for next week. If confirmed, he would cast critical votes in cases that involve our fundamental rights, our freedom and our lives.

In addition, as chief justice, Roberts would have an augmented authority that could affect the outcome of cases. For example, Roberts would decide which justice would write the opinion when he agrees with the majority of justices in a case. Roberts would also preside over the Court’s internal deliberations on cases.

Before Bush named Roberts, the public discussion focused on the ethnic and gender identity of a potential Supreme Court nominee. There was widespread talk about whether the nominee would be a white woman or a Latino male, both of which should be on the Court.

But did anyone ever seriously mention a woman of color for the job?

Controversial ideologue Janice Rogers Brown was floated by some extreme conservatives, but she was never a real contender given that her nomination to the Court of Appeals set off a national fight over the filibuster–a time-honored means of challenging the majority party through extended debate–and almost shut-down the U.S. Senate.

Now, in the latest round of speculation about the two new faces on the Supreme Court, women of color are notably missing from the short list.

Will women of color have to wait until a representative of each ethnic group and a substantial number of white women are nominated and confirmed before securing our rightful place on the bench?

Narrowed Search

One obvious explanation for the lack of diverse candidates is that the search was narrowed to people of color who reflect the conservative values promoted by the Bush administration.

In the end, however, we would rather have someone who promises to uphold our fundamental rights than see ourselves reflected on the highest court. Unfortunately, with John Roberts, we get neither.

Roberts’ record on women’s fundamental rights is particularly disturbing.

He has held several high-ranking positions in the federal government, including deputy solicitor general and special assistant to the attorney general. In those positions, he failed miserably to protect–let alone advance–women’s reproductive rights and access to health care services.

For example, Roberts co-authored a Supreme Court brief in Rust vs. Sullivan that referred to Roe vs. Wade, the landmark case that legalized abortion. He opened with the argument that “Roe was wrongly decided and should be overruled.” The brief went on to support the “gag rule,” which prohibited doctors and clinic counselors who received federal funding for family planning services from providing women with the full range of information and options regarding their reproductive health.

Equally disturbing, Roberts co-authored an amicus or “friend of the court” brief
–which is filed by someone who is not a party to the case–in Bray vs. Alexandria Women’s Health Clinic in support of Operation Rescue, a notorious anti-choice group. In this case, clinics and pro-choice organizations sued Operation Rescue and six anti-choice extremists for conducting blockades in front of clinics.

In the amicus brief and during oral argument, Roberts argued to the Supreme Court that Operation Rescue’s “military-style tactics” used to block women from accessing reproductive-health clinics did not amount to discrimination against women and that a federal remedy under a particular civil rights statute should not be available.

Question of Consequences

The Bush administration and Roberts’ supporters would love for us to believe that the Rust and Bray cases have no real-life consequences for any of us in the future.

Yet, for women of color, those cases–as well as cases Roberts may soon be helping to decide–have consequences that disproportionately affect us.

The stakes go well beyond women’s rights and reproductive freedom.

Voting rights, civil rights, affirmative action and religious freedom are among the disputes the Supreme Court has resolved in recent years by razor-thin margins and that have important consequences for communities of color. The emerging record shows that John Roberts was often on the wrong side of these issues too.

For instance, in memos written to the attorney general in the early 1980s, he helped develop, support and argue the Reagan administration’s position on severely restricting the circumstances under which minority voters could bring a claim under the Voting Rights Act.

He likewise criticized the Supreme Court decision that struck down a Texas law permitting school districts to deny enrollment to children of undocumented immigrants. He also defended legislation that would have stripped the Supreme Court of its ability to hear cases related to busing and school prayer.

So, where are our voices and our brothers’ voices? Why are African American, Latino and Asian Pacific-American communities silent around this nomination and the Supreme Court?

The stakes are highest for us, yet we have failed to inspire and effectively mobilize ourselves and our communities. The Supreme Court will shape the legal landscape and our lives for generations to come. We must get involved. We must be heard. We must be accountable.

Courtney Chappell is a legislative staff attorney at the National Asian Pacific American Women’s Forum in Washington, D.C. Ederlina Co is a staff attorney at NARAL Pro-Choice America in Washington, D.C. Angela Hooton is associate director of policy and advocacy at the National Latina Institute for Reproductive Health in New York.