This Time, It’s Sex Discrimination: New Claims of Bias on Judicial Nominees

Senate Republicans unhappy with the progress of certain extremist federal judicial nominees now have a new claim to make: that Democrats opposing the nominations of Janice Rogers Brown, Carolyn Kuhl, and Priscilla Owen are engaging in sex discrimination by refusing to allow these nominations to move forward. While this technique to date has not been successful when applied to other nominees, such as Miguel Estrada (national origin discrimination) and Bill Pryor (religious discrimination), this is not stopping the Republican leadership from planning a 30-hour debate this week on the Senate floor, where it is expected that the debate will focus on the female nominees named above, in an effort to move their nominations forward in the Senate, after narrow approval among party lines by the Senate Judiciary Committee.

On Thursday, November 6, the nominee battle proceeded on two separate fronts. Janice Rogers Brown’s nomination to the DC Circuit Court of Appeals was under consideration in the Senate Judiciary Committee, while Bill Pryor’s nomination was the subject of a cloture vote, in an effort to break the log-jam his nomination has faced thus far in the full Senate. As expected, Brown’s nomination was approved on a 10-9 party line vote, and now moves to the full Senate. (See The Recorder article.) Some of the harshest criticism directed at Brown came from home-state senator Dianne Feinstein, who charged that she had “never seen a nominee who in their public utterances and while sitting on a court state[d] such extreme views — views that are starkly out of mainstream American thought.” Sen. Dick Durbin similarly decried Brown’s nomination, saying that “Justice Brown’s speeches do more than stir the pot. They knock it off the stove.” Black leaders similarly objected to the nomination of Brown, who is African-American, as an effort to play the race card. (See Atlanta Journal-Constitution article.)

Said Julian Bond, national NAACP board chairman,

One could almost believe these nominations are put forward in the contemptuous hope they will be rejected, allowing right-thinking senators to be condemned as anti-black, anti-Latino, anti-woman and anti-Catholic. They seem to think Americans are too stupid to see this crass act for what it is: playing the race card, the ethnicity card, the gender card, the religious card — playing a cheap political game with justice.

On the same day on the floor in the Senate, Republican Senators attempted to end a filibuster which has prevented the confirmation of Bill Pryor’s nomination to the 11th Circuit Court of Appeals. In a vote of 51-43, Republicans were 9 votes short of the 60 votes needed need to close debate and end the filibuster. Democrats claimed the vote was just for show, since the Republicans had not been able to get new votes in support of Pryor’s nomination since a previous cloture vote. (In fact, this time there were fewer votes in support of Pryor than before, since two previous GOP backers were absent during Thursday’s vote.) (See Montgomery Advertiser article.) While the outcome of this vote was expected, it nonetheless highlights the continuing rift between the parties on judicial nominees, and may very well represent an end to any hope Pryor and his supporters may have of moving his nomination forward.

Whether you agree with Julian Bond or not, it does appear the next charge that Republicans intend to make against Democrats who have been stalling judicial nominees is that they are anti-woman, for preventing the confirmation of Brown, Kuhl and Owen, after previously playing the Hispanic card with Miguel Estrada’s nomination and the religious card with Bill Pryor’s nomination. On Thursday, the Republican leadership announced that it will begin a 30-hour discussion of judicial nominees, called the “Justice for Judges Marathon,” starting on Wednesday evening (November 13) and continuing through Friday morning (November 15). (See Washington Post article.) While Republicans bring in cots and food, and Sen. John McCain suggests that the chamber be divided into “snoring” and “non-snoring” sections, Democrats deride the event as a publicity stunt which is taking away from necessary debate on other key issues.

According to a New York Times editorial, Republicans are expected to focus the debate on the three female nominees, Brown, Owen and Kuhl. The editorial notes,

Republicans will no doubt charge Democrats with sexism, as they have made accusations of anti-Hispanic and anti-Catholic bias in other cases. But much of the opposition to these nominees, including from Democratic women in the Senate, is based on their stands on issues of concern to women, including abortion rights, privacy and workplace discrimination.

While it is not clear what difference, if any, this debate will make, either in the outcome of any particular stalled nomination or each party’s stance on nominees generally, it is important for your Senators to hear how you feel about this debate and these nominees.

Demand Fair Judges: Vote NO on Janice Rogers Brown

Demand Fair Judges: Vote NO on Carolyn Kuhl

Demand Fair Judges: Vote NO on Priscilla Owen

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Madeline Messa

Madeline Messa is a 3L at Syracuse University College of Law. She graduated from Penn State with a degree in journalism. With her legal research and writing for Workplace Fairness, she strives to equip people with the information they need to be their own best advocate.