January 22, 2003, marked the 30th anniversary of the Supreme Court’s decision in Roe v. Wade. In Washington, women’s organizations took the occasion to argue that a woman’s “right to choose” is an important right that must be protected. Ironically, at the same time that these groups were organizing rallies and gatherings to protect a woman’s “right to choose,” these very same groups were actively opposing the judicial nomination of a woman who has exercised her right to choose not to fall in line with the political agenda of certain liberal women’s groups.
Most people recognize that certain “women’s organizations” do not actually support all women; they only support those women who agree with their political agenda. Thus, as a woman and an attorney in my late-20s who does not completely support the agenda of women’s groups, I have long been aware that if I ever try to enter public life, I should not expect any support from “the sisterhood.” Yet not until the nomination of Justice Priscilla Owen did I realize that not only would the sisterhood not support me, it would actively oppose me and stand as an obstacle in my path of professional success. I am not alone; these groups would also try to impede the success of any other women who does not totally agree with them. Even more surprisingly, facts suggest that this unique “sisterhood” works harder to oppose talented women jurists such as Justice Owen than it does to oppose conservative male jurists.
No one disputes that Judge Owen is eminently qualified to be a federal appellate judge. She was elected twice by the people of Texas to her position on the Texas supreme court. She was unanimously given the American Bar Association’s highest rating, “well qualified.” She graduated cum laude from Baylor Law School at a time when few women went to law school. She received the highest grade in the state on the Texas bar exam when she took it. Even Senator Schumer, who ultimately voted against Justice Owen’s nomination, stated at her hearing, “anyone who has listened to even ten minutes of [Justice Owen’s confirmation hearing] has no doubt about the excellence in terms of the quality of [her] legal knowledge and [her] intelligence.”
The opposition to Justice Owen essentially comes down to this: She has not stated that she personally believes the political agenda of women’s groups. A statement released by NOW shortly after Justice Owen was renominated labeled her a “staunch opponent of women’s reproductive rights.” Based on NOW’s statement, one might think that Justice Owen has stated that she disagrees with Roe v. Wade, or would not follow it if she were confirmed to the Fifth Circuit Court of Appeals. Yet at her hearing in front of the Senate Judiciary Committee hearing last July, Justice Owen said exactly the opposite. She repeatedly explained that whatever her personal beliefs are, she is committed to applying controlling legal precedent, including precedent from the United States Supreme Court on the issue of abortion.
This was not enough for the Democratic senators on the Judiciary Committee. Senator Maria Cantwell said that she was “trying to understand” Justice Owen’s “personal beliefs” on the right to privacy. Senator Schumer asked Justice Owen speculate about how she would have decided Griswold v. Connecticut, the landmark Supreme Court case recognizing the constitutional right to privacy, if she had been on the Supreme Court in 1965. Interestingly, neither the women’s groups nor the Senate Judiciary Committee waged a similar full-scale attack when Michael McConnell, a former law professor who has criticized Roe v. Wade, was confirmed as a judge on the Tenth Circuit Court of Appeals. They simply let him go “right on by.”
The message to young women of my generation who have witnessed these confirmation hearings is clear: Women who do not subscribe to the political views of these few “women’s organizations” will have stones cast in their path if they are nominated to the federal judiciary. One of the old mottos of the women’s rights movement was “sisterhood is powerful.” Yet for young women my age, the new message is that “the sisterhood” is powerful — and will block women jurists who try to disagree with them. Today women make up 50 percent of law-school students. Therefore, logically one would expect that over time, women will eventually come to comprise 50 percent of the federal judiciary. Yet if liberal women’s groups are successful in blocking those women who disagree with them, there will be fewer women to select as judges, and 20 years from now, women will still be a minority in the federal bench. The irony will be there the under representation of women will have been caused by “select” women themselves.
This is an unfortunate message to women of my generation. It is a message that the Senate could easily combat. The confirmation of Justice Owen would send a counter message to young women, one which tells them that if they are bright and hardworking they can aspire to any position — even the federal bench — regardless of whether “the sisterhood” endorses them.
— Rochelle Tedesco is a lawyer in the Washington, D.C. office of Shook, Hardy & Bacon.