For more than a century, when our constitutional rights were endangered, the major Jewish “defense agencies” — the ADL, the American Jewish Committee and the American Jewish Congress — fought back, and in doing so provided invaluable leadership to our community. Today, however, they are on the sidelines while perhaps the most important contest of our generation takes place: a struggle for the future of the federal courts.
Constitutional rights — religious liberty (and the separation of church and state), civil rights, privacy and civil liberties — have long been the pillars of those agencies’ work. In 1923, the American Jewish Committee filed its first amicus curiae (“friend of the court”) brief in the Supreme Court case of Pierce v. Society of Sisters, when the court heard objections to an Oregon statute that required mandatory enrollment in public schools, thereby targeting Catholic parochial schools. In 1948, the ADL filed its first-ever amicus brief in Shelley v. Kraemer, a pivotal civil rights case before the Supreme Court, where the court found that discriminatory property ownership laws were unconstitutional. More recently, in 2000, the American Jewish Congress filed an amicus brief in another Supreme Court case, Dale v. Boy Scouts of America that urged the court to uphold an appellate decision that a scoutmaster could not be discriminated against based on his sexual orientation. These are merely three of the hundreds of examples when the defense agencies looked to the judicial process to defend our rights as Jews and promote ideals of civil rights, religious freedom and equality for all.
How are our fundamental rights endangered today? Not through any one case or on any one issue, but rather through an attempt to radically reconstitute the entire federal court system with a series of lifetime appointments that would push the courts far to the right not just of the “center” but of the entire mainstream political spectrum.
Of course President Bush has the right to nominate judges of his choosing. We do not question his decision to select politically conservative judges, but rather his appointment of judges so clearly far outside any fair understanding of the judicial mainstream. That is why the Reform movement has opposed only a small number of the president’s nominees. In the last Congress, we opposed five out of 224 nominees, only those who held the most egregious opinions on civil liberties, civil rights, women’s rights, worker rights, separation of church and state, and environmental decisions: issues of crucial concern to our community, and the aforementioned agencies.
Now, despite major opposition and congressional testimony that further discredited these individuals, Bush has pledged to nominate seven of the 10 filibustered nominees in the 109th Congress. These returnees include Priscilla Owen, who continually ruled against the protection of workers, consumers and the environment; Janice Rodgers Brown, who criticized, in her words, “the rather uninformative metaphor of the ‘wall of separation’ between church and state,” and held that the First Amendment shielded racial slurs in the workplace even in cases when they escalated to illegal race discrimination; and William Pryor, who called Roe v. Wade “the worst abomination of constitutional law in our history” and criticized Supreme Court rulings that uphold “the so-called wall of separation between church and state.”
And this at a time when the Supreme Court is accepting fewer and fewer cases, and, therefore, the federal Court of Appeals is effectively the court of last resort for most claims.
But even still, most alarming is the prospect that radical right judges could be nominated to the one to four vacancies expected on the Supreme Court during Bush’s second term. With so many of the Warren and Berger Courts’ advances hanging by a thread, suchappointees could undo 100 years of Jewish defense agencies’ valiant efforts to defend our rights.
To be clear, the Reform movement does not anticipate wholesale opposition to the president’s nominees. We will continue to look at each nominee on his or her own merits and will oppose only those we believe would seek to undermine fundamental freedoms. We urge the defense agencies to do the same — to examine each nominee (especially those being re-nominated) individually. It is time to recognize the current reality and to move beyond the traditional reticence to oppose judicial nominees.
As highly contentious appointments continue to arise through the second term of the Bush administration, I urge the defense agencies to stand against nominees who threaten the very tenets that make this country ours. The effort to remake the federal bench poses a grave threat to the very freedoms that have made America such a safe and welcoming home for American Jews. The defense agencies have always risen to the task of defending these freedoms in the past. I hope they will do so now.
Mark J. Pelavin is associate director of the Religious Action Center of Reform Judaism in Washington, D.C.
TWO VIEWS:
Bush’s court nominations: Will they be a Jewish battleground?