Editor’s Note: Judith Resnik is the Arthur Liman Professor of Law at Yale Law School and the founding director of the Liman Center for Public Interest Law. She has testified in hearings on judicial nominees, served on the Ninth Circuit Gender Bias Task Force, was one of the lawyers for Anita Hill, and writes about the federal judiciary. The views expressed here are solely hers. View more opinion articles on CNN.
Today we are debating Brett Kavanaugh’s actions and attitudes towards women and his rulings in cases about women’s rights. But it is worth remembering that before the 1970s, no one asked Supreme Court nominees anything at all about their attitudes towards women’s equality.
Credit for this change goes to women – who mobilized, organized, elected women, and insisted that the “women’s question” be asked – and answered. Holding nominees accountable for their views about women’s equality has had a major impact on the composition of the Court and its jurisprudence. Without the Senate’s rejection of past nominees, the authors of majority opinions in Roe v. Wade and Obergefell v. Hodges – among other decisions – would not have gone on the Court when they did.
So much has changed. But has the Senate? Confirmation processes are painful – but they can also be generative. These are the national stages on which we debate what we value and how we should behave. One hope would have been that the Senate paused long and hard after hearing the concerns about the decisions issued by Judge Kavanaugh on women’s autonomy. Now, in addition, there are allegations of drinking and sexual aggression, which make it all the more important that the Senate show the world what a responsible and non-exploitative inquiry entails and looks like.
The first time women’s rights made it into Supreme Court nomination hearings was in 1970, when nominee George Harrold Carswell was before the Senate. Opposed was Congresswomen Patsy Takemoto Mink, who was the first nonwhite and the first Asian-American woman in Congress.
Mink testified in the Senate about Judge Carswell’s role in the case of Ida Phillips, who was barred from an assembly-line job at the Martin Marietta Corporation because she had preschool children, while fathers of young children could have those jobs.
Phillips argued that the policy violated the federal law against sex discrimination. She lost. Carswell (along with others on his court) refused to review the rejection of her case. Congresswoman Mink said his approach showed a “total lack of understanding of the concept of equality.”
Betty Friedan – a founder of the National Organization for Women (NOW) – also testified. She told the Judiciary Committee it should understand the judge’s “dangerous insensitivity” to sex discrimination.
Carswell’s nomination was rejected, and his stereotyping of women was but one issue on the list of complaints against him. In his stead, Harry Blackmun (who wrote the majority opinion in Roe v. Wade) was nominated and confirmed.
Mink, Friedan, and the movement of which they were a part paved the way for nominees thereafter to be asked about women’s rights. And, in 1987, when Robert Bork was being considered, his confirmation hearings showed that hereafter, a new criterion for judges had to be considered. The Bork hearings taught us all that it matters, as a matter of politics and public opinion, that the individuals to be confirmed for life-tenured positions thought women’s bodies and jobs merited law’s protection.
Judge Bork’s belief that the Equal Protection Clause of the US Constitution did not protect women was an important factor in the Senate’s decision not to confirm him. So were several of Bork’s decisions involving women’s rights. One case involved a factory’s policy forcing some women of childbearing years to be sterilized if they wanted to work around chemicals that cause infertility. In this case, Bork did not find the law illegal and described women as being put to an “unhappy choice.” Another decision was about sexual harassment. Judge Bork chose to call those interactions “sexual escapades.”
Discussion also focused on the Supreme Court’s decision in Griswold v. Connecticut, holding unconstitutional a Connecticut statute making it a crime to prescribe contraceptives – a ruling Bork had long criticized. In his testimony, Judge Bork seemed oblivious to the fact that while the rich were able to go out of state to get birth control pills, Connecticut’s law meant that a clinic for poor women could not provide birth control.
Months later, when Anthony Kennedy (who wrote the majority opinion in the cases striking down sodomy laws and the Defense of Marriage Act) was nominated (and then confirmed), he faced questions about his involvement in clubs that excluded women. And in the years that followed, nominees dropped membership in clubs that did not admit women – and many of those clubs changed their membership policies.
Women’s rights took center stage in 1991, when Anita Hill came forward. On October 6 and 7, 1991, the press reported that Hill had made allegations of sexual harassment by Clarence Thomas, who had been her boss when he chaired the Equal Employment Opportunity Commission (EEOC). The confirmation vote was scheduled to take place two days later. The conventional wisdom was that Thomas’s confirmation was a fait accompli.
But a remarkable number of people around the country wanted Hill to be heard and felt a need to do something. Within hours, 120 women law professors (myself included) had signed a letter to the Senate Judiciary Committee calling for a full inquiry into what had transpired. The following day, newspapers ran a picture of seven women – all members of the US House of Representatives – marching up the steps of the Capital to ask that the Senate delay the vote.
The uproar stopped the process, briefly. The Senate Judiciary Committee announced it would hold a “hearing” on Friday, October 11, 1991, the eve of the Columbus Day weekend. And thus, on that Friday, Anita Hill went before the Senate and, via television, before the world.
Why remember this fragment of history about timing? The brief respite captured both women’s newfound power and demonstrated how profoundly limited it was. At the supposed hearing in 1991, some senators repeatedly invoked a trial-like stance, with mentions of “burden of proof” as they claimed they had devised procedures to provide “fairness.” But their format revealed the proceeding to be what one law professor later called it—a “fake trial.”
What people watching television saw was a young black woman being attacked ruthlessly and a black man awkwardly questioned by the 14 white men then comprising the Senate Judiciary Committee. Several senators acted more like Thomas’ defense counsel, as they aggressively interrogated Hill, berated her, and discounted her responses.
Many institutions, faced with inquiries about facts and law, have changed significantly since 1991, when the hearings provided a window into the mistreatment of people in a host of other legal encounters. Concerned about unfairness in courts, the chief justices of state judiciaries commissioned serious research projects. By the early 1990s, when Anita Hill and Clarence Thomas testified, more than 30 jurisdictions had issued reports on gender and race and ethnic bias. Many of the reports documented what people saw when some senators questioned Anita Hill. As the 1986 New York State’s Task Force on Women in the Courts put it: “Women uniquely, disproportionately, and with unacceptable frequency must endure a climate of condescension, indifference and hostility.”
That report was joined by dozens of others, officially commissioned by state chief justices or state bars associations. Within the decade, more than 60 such reports existed and half the federal circuits had undertaken studies.
In response, many courts issued new rules to insist on dignified and equal treatment of women and men of all colors. New codes of conduct for lawyers and judges were put into place. This work continues. Indeed, on September 13, 2018, the US Judicial Conference – the policymaking body of the federal courts – put out for public comment new rules to change judicial ethical codes and require judges to take responsibility for workplace misconduct.
What happens next with Brett Kavanaugh will tell us whether the Senate has learned, as US courts are trying to, that women and men are equally entitled to the security of their bodies and to fair treatment.