Womenstake

Talking Points: A New York Times interview with Ruth Bader Ginsburg

2009-07-10T18:06:25-04:00

by Amy Rosenthal, Outreach Intern,
National Women's Law Center

This post is part of a series about the nomination of Judge Sotomayor for the Supreme Court.

As an observer of the Supreme Court, I have always been impressed with the achievements of Justice Ginsburg. But in concentrating on Justice Ginsburg’s past accomplishments, I often overlook her current battles, where she must not only rule fairly, but seek to educate others. In Stafford Unified School District #1 v. Redding, a case involving strip searching a thirteen-year-old girl, Ginsburg told USA Today that “I didn’t think that my colleagues, some of them, quite understood.” Justice Ginsburg, as a woman and as an advocate for women, seeks to fulfill an additional burden of shedding light on underlying gender issues that are not always apparent to others. In the Redding case, this required that Justices Ginsburg and Souter speak to the unique vulnerability of an adolescent girl.

On Tuesday, The New York Times published an illuminating interview with Justice Ruth Bader Ginsburg. She spoke about her confirmation process, her hopes for Sotomayor’s confirmation, and the importance of female Justices. Never afraid to confront issues, Justice Ginsburg spoke about the different standards for women and men, and how she, herself, was a product of affirmative action.

As anticipation builds for next week’s hearings on the nomination of Judge Sonia Sotomayor for the Court, reading this interview heightened my awareness of the great pride and sense of responsibility that Justice Ginsburg feels on the bench. Through her example, Justice Ginsburg inspires me, and others, to advance not only ourselves, but those who depend on us.

Women & Antidiscrimination Protections: Questions for Judge Sotomayor

2009-07-10T17:04:41-04:00

by Amy Matsui, Senior Counsel,
National Women's Law Center

This post is part of a series about the nomination of Judge Sotomayor for the Supreme Court.

The Senate Judiciary Committee hearings on the nomination of Judge Sonia Sotomayor for the Supreme Court are coming up next week, and we will be listening carefully to the questions that Senators on the Committee will be asking Judge Sotomayor. The hearings are an opportunity for Senators to ask Judge Sotomayor about many of the legal issues that come before the Supreme Court that impact women’s lives, including the right to privacy, equal protection under the law, anti-discrimination protections, health and safety regulations, and more.

Given the attention that focused on the Court’s decision this term in Ricci v. DeStefano, which dealt with employer’s ability to voluntarily address discrimination under Title VII (since Judge Sotomayor was on the panel whose decision the 5-4 majority of the Court reversed), we expect that Senators on the Committee will be asking Judge Sotomayor about antidiscrimination protections, like Title VII, at her hearings next week.

So let’s talk about those protections. Congress has passed a number of laws that protect against sex discrimination, including at work and at school. These include Title IX, the landmark law that bars sex discrimination in educational institutions and programs that receive federal funds, and Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of sex, race, national origin, or religion. Other laws protect against discrimination on the basis of age or disability in the workplace.

These laws have been critical in breaking down barriers for women and girls in many facets of life. They protect against sexual harassment (at work and at school), which can make learning and working environments unbearable for women and girls. In schools, these laws require that girls get the same opportunities to compete in athletics as the boys. They protect against pregnant girls getting kicked out of school, and against women being fired, or demoted, when they become pregnant. They protect against employers who refuse to cover contraceptive drugs or devices under their health insurance plan –- but cover Viagra. And they have helped increase the number of girls studying math, science, and engineering –- and the number of women becoming police officers, or firefighters, or plumbers or electricians.

Some of these protections have not been given the most robust of interpretations by the Supreme Court in recent years, to say the least, and Congress has been paying attention. Last year, the Senate Judiciary Committee held a number of hearings on Supreme Court decisions that affected women, including the Court’s 2007 decision in Ledbetter v. Goodyear Tire. And the Court’s decision in Ricci can only have piqued Congress’ attention further.

Judge Sotomayor’s approach to antidiscrimination protections is very important because the Court’s decisions in this area of the law will affect women and their families for generations to come. So it’s important to listen to the questions that Senators will likely be asking Judge Sotomayor about antidiscrimination protections next week.

A Supreme Court "Of the People, by the People, and for the People"

2009-07-10T15:17:39-04:00

by Neena Chaudhry, Senior Counsel,
National Women’s Law Center

This post is part of a series about the nomination of Judge Sotomayor for the Supreme Court.

As we approach the Supreme Court confirmation hearings for Judge Sonia Sotomayor, much has been made of the fact that, if confirmed, she would be the first Latina on the Court and only the third woman. Many have praised her choice as one that will contribute to diversity on the Court, while others have condemned the notion that her ethnicity and gender would have any influence upon her work as a judge. This is certainly a topic that Senator Sessions has already signaled that Judge Sotomayor will be questioned about closely during the hearings.

Yet who among us can honestly say that our life experiences—including gender, ethnicity, where and how we grew up, and what jobs we have held—don’t influence the lens through which we see the world? And more importantly, why would we expect, or even want, judges to be any different? Of course, we want judges to decide cases without any preconceived biases and to really listen to the facts and then make their decisions based on their interpretation of the law and precedent. But if having been a young woman in school affects your view of whether it is unconstitutional to strip search a 13-year-old girl to look for prescription strength ibuprofen, as Justice Ginsburg recently acknowledged, isn’t that a benefit rather than a loss? Justice Alito certainly seemed to think so when he stated the following at his confirmation hearing: “[W]hen a case comes before me involving, let’s say, someone who is an immigrant . . . I can’t help but think of my own ancestors, because it wasn’t that long ago when they were in that position. [...] And that goes down the line. When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account.”

At the very least, in terms of process and the legitimacy of the courts, it seems that people are likely to feel like they got a fairer shake if there is a chance that someone with similar experiences is deciding their cases, no matter what the outcome. Given the mix of people in our country and the range of problems that we bring before our courts, it seems only logical and fair to have a variety of judges to decide cases. And diversity encompasses much more than ethnicity and gender. Judge Sotomayor would add diversity to the Court in a multitude of ways, not the least of which is that she has had many years of prosecutorial and trial court experience.

Perhaps Judge Sotomayor’s own closing remarks from a much criticized speech sums it up best: “I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me requires.”

Women & Equal Protection: Questions for Judge Sotomayor

2009-07-10T11:33:09-04:00

by Amy Matsui, Senior Counsel,
National Women's Law Center

This post is part of a series about the nomination of Judge Sotomayor for the Supreme Court.

This is the moment judicial junkies spend years waiting for. As the Senate Judiciary Committee hearings begin on the nomination of Judge Sonia Sotomayor for the Supreme Court, we're eagerly anticipating hearing the questions almost as much as the answers. These hearings are an opportunity to hear high-level discussion about many of the legal issues that come before the Supreme Court that impact women’s lives, including the right to privacy, equal protection under the law, anti-discrimination protections, health and safety regulations, and more.

So let’s talk about Equal Protection. The Equal Protection Clause of the Fourteenth Amendment to the Constitution provides that "no state shall ... deny to any person within its jurisdiction the equal protection of the laws." Since 1973, the Supreme Court has held that a law or government policy that discriminates on the basis of sex cannot be upheld unless it can withstand heightened judicial scrutiny. That is, the government must offer an “exceedingly persuasive justification” for the law that is substantially related to the classification.

Before this standard was applied, no government-sponsored sex discrimination was found to be illegal, no matter how harmful and no matter how much it was based on outmoded stereotypes. But under the heightened scrutiny standard, the Court has struck down numerous laws that discriminate on the basis of sex, including a law that provided welfare benefits to children with unemployed fathers, but not those with unemployed mothers; a state statute that made a husband the “head and master” over property owned jointly with his wife; and state university policies that denied admission to women on the grounds that they were not “tough” enough to succeed at the school’s demanding curriculum.

But even though heightened scrutiny has been the law of the land for thirty-six years, Justices Scalia and Thomas take issue with it. Justice Scalia even dissented from the Court’s 1996 ruling that the exclusion of women from the state-run Virginia Military Institute, based on gender stereotypes about how women learn, was an Equal Protection violation. If their view prevails in future cases, it would make it easier to uphold sex-based classifications in the law even where they are based on harmful gender stereotypes. While Chief Justice Roberts and Justice Alito did not express opposition to heightened protection in their confirmation hearings, they have yet to rule on any constitutional cases involving the equal protection clause and sex discrimination.

In her seventeen years on the federal bench, Judge Sotomayor has never ruled directly on whether a law or government policy that differentiates between men and women violates the Equal Protection Clause. So Judge Sotomayor may be asked about her views on this constitutional principle.

Previous Supreme Court nominees have been asked about the Equal Protection standard. Stay tuned: Equal Protection may come up next week as well.

Farewell to Jocelyn Samuels, NWLC Vice President for Education and Employment

2009-07-10T10:23:36-04:00

by Melanie Ross Levin, Outreach Manager,
National Women’s Law Center

After serving as the Vice President for Education and Employment for close to eight years at the National Women's Law Center, Jocelyn Samuels is moving on to work for the U.S. Justice Department in the Civil Rights Division. We’re sad to see her go — but we’re very happy that in her new position, she will continue to advocate for educational opportunities for women and girls. Check out her good-bye video message.

Pregnant and Parenting Students: Know Your Rights

2009-07-10T10:18:35-04:00

by Melanie Ross Levin, Outreach Manager,
National Women’s Law Center

Title IX says that schools must give all students who might be, are or have been pregnant (whether the student is a parent or not) the same access to school programs and extracurricular activities that other students have in school. Check out our new video and resources explaining the rights of pregnant and parenting students in school.

And find out more about the rights of pregnant and parenting students.

Florida High School Athletic Association Accused of Title IX Violation

2009-07-10T09:00:00-04:00

by Kolbe Franklin, Program Associate,
National Womens Law Center

Claiming budget constraints, the Florida High School Athletic Association (FHSAA) recently approved a plan to reduce the number of varsity-level games for all sports except football. In response, Florida Parents for Athletic Equity, represented in part by Nancy Hogshead-Makar, a law professor and Title IX advocate, issued statements claiming the decision was in violation of Title IX. Under the FHSAA plan, virtually all girls would face cuts while a significant number of boys would be unaffected. The parents and students tried to work with FHSAA to make changes in time for the next school year, but FHSAA chose not to readdress the plan until next fall, leaving the parents and students no choice but to file a lawsuit to try to prevent the inequitable scheduling.

The Ninth Circuit Gets it Right . . . Finally!

2009-07-09T18:00:00-04:00

by Jen Swedish, Health Law Fellow,
National Women's Law Center

Yesterday, the Ninth Circuit Court of Appeals ruled that the State of Washington can fully enforce a rule passed by its pharmacy board that ensures patient access to medication. As we’ve reported before, back in 2007, two pharmacists and a pharmacy challenged the rule in court, because they objected to providing emergency contraception. A lower federal court decided in favor of the challengers, issuing a preliminary injunction that halted the rule as it applied to Plan B emergency contraception.

While the appeal was pending, Washington argued that it should be allowed to enforce the rule in its entirety, but the Ninth Circuit upheld the lower court’s preliminary injunction. This meant that until the Ninth Circuit could decide the merits of the case, Washington women who wanted EC were at risk of delay in accessing the time-sensitive medication because of a refusing pharmacist.

The Ninth Circuit finally decided the merits of the appeal yesterday and said that the lower court was wrong to issue the broad injunction. The pharmacy and pharmacists who brought the case claimed that requiring them to provide EC violated their right to free exercise of religion under the First Amendment. The Ninth Circuit held that the district court should not have applied heightened scrutiny to analyze the rule’s affect on religious freedom. According to the appellate court, the rule’s purpose was not to eliminate religious objections to the delivery of lawful medications, but rather to eliminate all objections that do not ensure patient health, safety, and access to medication. As such, the rule was a neutral law of general applicability, which must withstand only rational basis review to pass constitutional muster. Although the Ninth Circuit sent the case back to the lower court to apply the correct standard of review, it suggested that the rule would likely pass constitutional muster.

Finally, yesterday's Ninth Circuit decision assures Washington women access to EC at the pharmacy!

Witness List for Sotomayor Hearing Announced

2009-07-09T16:45:10-04:00

by Amy Matsui, Senior Counsel,
National Women's Law Center

The witness list for the confirmation hearing for Judge Sonia Sotomayor has been announced. Remember the hearing begins Monday, July 13, at 10 a.m. Check back here for updates throughout the week!

American Bar Association Witnesses

Kim Askew, Chair of Standing Committee
Mary Boies, Primary Reviewer

Majority Witnesses

Michael Bloomberg, Mayor, City of New York
Chuck Canterbury, National President, Fraternal Order of Police
David Cone, former Major League Baseball pitcher
JoAnne A. Epps, Dean, Temple University Beasley School of Law, on behalf of the National Association of Women Lawyers
Louis Freeh, former Director, Federal Bureau of Investigation
Michael J. Garcia, former U.S. Attorney, Southern District of New York
Wade Henderson, President and CEO of the Leadership Conference on Civil Rights
Patricia Hynes, President, New York City Bar Association
Dustin McDaniel, Attorney General, State of Arkansas
Robert Morgenthau, former District Attorney, New York County, New York
Ramona Romero, National President, Hispanic National Bar Association
Congressman Jose E. Serrano, New York 16th District
Theodore M. Shaw, Professor, Columbia Law School
Kate Stith, Lafayette S. Foster Professor of Law, Yale Law School
Congresswoman Nydia Velázquez, Chair of the Congressional Hispanic Caucus.

Minority Witnesses

Linda Chavez, President, Center for Equal Opportunity
Sandy Froman, Esq., Former President, National Rifle Association of America
Dr. Stephen Halbrook, Attorney
Tim Jeffries, Founder, P7 Enterprises
Peter Kirsanow, Commissioner, U.S. Commission on Civil Rights
David Kopel, Esq., Independence Institute
John McGinnis, Professor, Northwestern University School of Law
Neomi Rao, Professor, George Mason University School of Law
Frank Ricci, Director of Fire Services, ConnectiCOSH (Connecticut Council on Occupational Safety and Health)
David Rivkin, Esq., Partner, Baker Hostetler
Nick Rosenkranz, Professor, Georgetown University School of Law
Ilya Somin, Professor, George Mason University School of Law
Lieutenant Ben Vargas, New Haven Fire Department
Dr. Charmaine Yoest, Americans United for Life

Wal-Mart Endorses Employer Mandate Requirement

2009-07-09T15:57:48-04:00

by Katie Chanpong, Health Care Policy Intern,
National Women’s Law Center

Last week Wal-Mart sent a letter to President Obama announcing its support of a requirement for businesses to contribute to the cost of health coverage for their employees (sometimes called an “employer mandate”). A controversial step, the world’s largest private employer is breaking ranks with its traditional political allies—the U.S. Chamber of Commerce, the National Federation of Independent Business, and almost every other major business trade association in Washington—and joining forces with political adversaries—the Service Employees International Union (SEIU) and the Center for American Progress (CAP). “Not every business can make the same contributions,” wrote leaders from Wal-Mart, SEIU, and CAP, “but everyone must make some contribution.”

By advocating that employers, individuals, and the government all have an important role to play in providing and obtaining health coverage, these three major stakeholders are focusing America’s health care debate on a vision of shared responsibility. We here at the National Women’s Law Center agree that a shared responsibility policy—including a meaningful employer mandate—will be crucial to achieving long-lasting health care reform and insuring millions of Americans. For women, a robust employer mandate means continued support for the 61 million women who currently receive employer-sponsored health insurance, as well as help obtaining coverage for the nearly 10 million working women who are uninsured.

The state of our current health system is bleak. Skyrocketing health care costs make it more difficult for employers and families to afford coverage; hard-working people fall into medical bankruptcy and millions go without necessary medical treatment. But time and time again, history has shown us that if we all do our part, we can change the system. As the health care reform bills make their way through Congress in the coming weeks, we’ll be on the lookout for inclusion of a strong employer mandate as well as other important shared responsibility provisions. As noted by Wal-Mart, SEIU, and CAP, these pieces are critical to “make this bill a win / win for employers, individuals and America’s competitiveness.”