The National Women's Law Center, a nonprofit organization that has been working since 1972 to advance women's legal rights, has taken the unprecedented step of opposing a nomination to the U.S. Supreme Court -- that of Judge Robert Bork.
A long analysis of Bork's opinions, writings and statements has led the center to conclude that his confirmation would pose a grave threat to women's roles in the work place, their health and reproductive rights, their status as citizens entitled to equal treatment by the government, and their rights as parents. At a news conference called to release the 39-page analysis, coauthor Marcia D. Greenberger, the law center's managing attorney, put it this way:
"In Judge Bork's opinions and writings is clear and undeniable evidence that in the most basic respects, Bork challenges the legal rights women have gained in the 20th century. His extremist views, combined with an activist approach to the judiciary, make his appointment to the highest court in the land a particular threat to women."
The center's analysis effectively demolishes the notion that Bork is a judicial moderate by citing instance after instance in which he has gone out of his way to advance his own views. He has, for example, supported overturning Supreme Court decisions affecting women's rights, such as the Roe v. Wade decision legalizing abortion, and attacked the constitutional right of a noncustodial father to see his children (this more than a month after the majority of the U.S. Court of Appeals, of which he is a member, had issued its ruling). He overturned the so-called "squeal" rule in which the Reagan administration tried to force federal grantees to notify parents of minors receiving contraceptives, then advised the administration on how it could issue the rule legally.
Bork has developed a narrow view of how the Constitution should be interpreted that has gained currency in conservative legal circles as the doctrine of original intent. Stripped of legal niceties, it suggests that the Constitution should be interpreted as its framers would have interpreted it -- an impractical notion requiring 18th century values and systems to dictate the laws of a society 200 years into the future.
What this boils down to for women is a legal framework in which they are excluded from the Constitution -- not even protected by it through a series of rulings from the Supreme Court.
The center's analysis says: "By explicitly limiting constitutional interpretation to reflect the values of the 18th and 19th centuries when the Constitution and the Civil War amendments were drafted -- values that clearly did not address women's legal rights -- Judge Bork has precluded the application of the two constitutional rights, equal protection and privacy, that have formed the cornerstone of legal protections for women under the Constitution. Because the framers of the 14th Amendment were not concerned with sex-based discrimination, under Judge Bork's analysis there can be no place for women in the equal protection clause. And, in Judge Bork's view, because it was not explicitly articulated by the framers, there is no right to privacy at all."
Thus, Bork has maintained that the courts are not the proper places to adjudicate sex-discrimination cases -- they belong in the political arena -- and that the equal protection clause is a remedy only in race-based inequality cases.
This thinking would, in effect, strip women of a major avenue of constitutional protection that since 1971 has resulted in the overruling of numerous discriminatory laws, among them laws that gave husbands exclusive authority over community property and established higher ages of majority for men than women (meaning men were entitled to parental support for a longer time), and Social Security provisions providing payments to widows with children, but not to widowers.
Bork's view that a right to privacy does not exist in the Constitution sets him not only against the Supreme Court's abortion rulings but also its historic 1965 ruling striking down a Connecticut law banning the sale or use of contraceptives, even by married couples.
What is at stake in this nomination is the swing vote on the court. The nominee has made it clear he does not feel bound by precedent. He is, in every sense of the word, a reactionary, someone who interprets the Constitution the way a religious fundamentalist interprets the Bible. Each, in his own way, cleaves to positions devastating to women who aspire to a society in which all persons are created equal.