Equal: Women judges to the rescue

More posts from Equal. See the last one here.


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.”

25. Women Judges to the Rescue.

The National Association of Women Judges was led by Minnesota Hennepin County District Court Judge Cara Lee Neville at the time NAWJ agreed to back VAWA. It stood at the intersection of the judiciary, led by Rehnquist, and the young women lawyers who supported VAWA. After the association voted to support VAWA, Ninth U.S. Circuit Court of Appeals Judge Mary Schroeder and University of Southern California Law School Professor Judith Resnick were two influential women who threw their influence toward VAWA and got the resolution supporting it passed prior to the ABA annual meeting where the ABA Judicial Administration Division was expected to attack it. NAWJ supported four parts of VAWA as written, and supported the civil rights provision if it was narrowly tailored to cases where a federal forum was necessary and appropriate. This wording would give Judge Norma Shapiro, a member of the ABA house of Delegates and the Judicial Administration Division, a chance to influence the division to accept the women judges language regarding a civil remedy. Judge Schroeder would work on tailoring the civil rights language.

Right before the climactic ABA meeting, Justice Sandra Day O'Connor addressed the Ninth Circuit Judicial Conference and told them to think more expansively about the reach and responsibility of the federal courts in addressing discrimination against women.

The ABA seemed poised to vote against VAWA, even thought the Board of Governors supported it, when attorney Brooksley Born, chair of the ABA standing committee on the federal judiciary, told the House of Delegates this would be the first time the ABA opposed civil rights legislation. In the end, the judicial administration was defeated and VAWA had survived its worst moment en route to Congress.

Then, in 1993, in a move that many saw as miraculous, the Judicial Conference reversed course from Rehnquist and shifted from opposition to VAWA to no position, opening the way for moderate judges to push for an acceptable and constitutional civil rights law for women. Judges began to see that closing the courthouse doors to women was not good for the judiciary.

A final challenge to VAWA came in meeting the concerns of judges by narrowing the scope of the civil rights provision but still affording the remedy that Nourse and the others involved with the bill sought. They wanted to draw on legal precedent but avoid the obstacles created in the 1880s civil rights cases and the early pregnancy cases. Eventually they reached the definition of crimes that VAWA covered: crimes committed because of gender or or the basis of gender and due, at least in part, to an animus based on the victim's gender. VAWA became law on Sept. 13, 1994.