I just realized how long it's been since I posted a chapter of Equal. My apologies.
Here's two, to make up for it.
23. Judges Strike Back
Chief Justice William Rehnquist's attacks on women's rights were not unusual, which was why his opinion in Vinson was a surprise. But they usually were contained in judicial opinions. But in 1991, Rehnquist attacked VAWA in his year-end report. VAWA would involve the federal courts in a host of domestic disputes, add to the caseload crisis, and degrade the high quality of the federal courts. Only congressional action vital to meeting important national interests was appropriate, which did not include violence against women.
At the time, O'COnnor was the only Supreme Court woman justice; 9 percent of the Courts of Appeals judges were women and fewer than 7 percent of the federal trial judges were women. More than half the district courts had no women judges.
The Conference of Chief Judges of the state supreme courts opposed the civil rights provision as well. Then, a federal judicial impact assessment suggested that VAWA would damage the judiciary, apparently because violence was so pervasive that the courts would be flooded with claims. The need for the law meant the law should be opposed.
Rehnquist formed an ad hoc committee on gender-based violence to prepare a resolution for the Judicial Conference of the United States. Two women judges were appointed to the committee. The committee met with Nourse and was reassured that VAWA would not flood the federal courts, but the Judicial Conference disregarded this assurance and claimed the impact of the law would be more than 20 times greater than the original judicial impact assessment.
In doing so, the judges arguably were going beyond lobbying against legislation but interpreting in opposition to the stated intent of its drafters and before it was considered by Congress. These events coincided with the confirmation hearings of Clarence Thomas, which Biden was conducting.
Rehnquist continued his attack of VAWA on the grounds of federalism, again arguing that the federal courts limited role should be reserved for important national issues. He and other judges began to lobby the ABA to oppose VAWA's civil rights actions.
At a Congressional hearing sponsored by Rep. Chuck Schumer, chair of the House subcommittee on crime and criminal justice, Biden took on the chief justice. He told them that one of the judges in the ad hoc committee had said, in response to a comparison between VAWA and civil righs laws protecting African-Americans, “I wouldn't do it for black folks either.” Biden was challenging the committee to explain the difference between race discrimination and sex discrimination.
24, Seeking Equal Judicial Firepower
VAWA turned to the National Association of Women Judges, which had pioneered research into gender bias in the court system, not only from judges but from male attorneys. They took their work back to their states, sometimes to the chagrin of their male colleagues. New Jersey was first, followed rapidly by other states, including Minnesota. Slowly, the federal courts became involved. “Nourse [recognized] the potential power of almost a decade of surveys and investigations into judicial gender bias led by America's National Association of Women Judges.”
