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Jewish Groups Reverse Course to Weigh in on Judicial Selection

November 13, 2002
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Here come the judges — and with them the ideological and political battles expected to shape the incoming 108th Congress.

When the Republicans take control of the Senate, many of President Bush’s judicial nominees to the federal bench that were held up under the Democrats are likely to get the green light.

For their part, Democrats, now reduced to the minority, will be struggling to keep conservative voices off the bench.

The outcome could have a profound effect on social and political policies, affecting everything from abortion rights to church-state issues.

For this reason, several Jewish groups are delving into the judicial selection process, an area from which they have traditionally shied away.

But while liberal groups are publicly opposing nominees they think could hurt their causes, conservative and Orthodox groups are hoping the nominees get swift approval.

Sammie Moshenberg, director of the Washington office of the National Council of Jewish Women, said people need to know what’s at stake.

Stacking the court with “right-wing ideologues” will bring about much more long-lasting policy and societal changes than is possible with legislation, she said.

The effects of the nominations will be felt in a long-term way, Moshenberg said, because the appointments are lifetime appointments.

Her group has launched what it has termed a “benchmark” campaign to educate and mobilize its members and the Jewish community to “promote a federal bench with judges that support fundamental freedoms, including a woman’s right to choose.”

Moshenberg said she fears that the issue of judicial appointments “is not on the Jewish community’s radar screen to the extent that it should be.”

Most Jewish groups have been — and continue to be — reluctant to enter the fray to play the partisan politics game on nominations. Their practice is not to endorse or oppose nominees during the confirmation process.

But the high stakes and the increasingly politicized process have compelled several groups to weigh in.

“It’s become increasingly clear that a range of core ADL issues — such as racial harassment and intimidation and church-state separation — are being asked at the appellate level,” said Rosina Abramson, civil rights director for the Anti-Defamation League.

But Jewish groups are not monolithic.

For example, the Religious Action Center of Reform Judaism, the ADL and the Orthodox Union all wrote letters to the Senate Judiciary Committee about the nomination of Michael McConnell to the 10th Circuit Court of Appeals, which is based in Denver.

The RAC and ADL called into question McConnell’s opposition to reproductive freedom and gay and lesbian rights and disagreed with him on religious liberty issues.

But the O.U. called McConnell, a law professor at the University of Utah College of Law, “one of the leading champions of religious liberty.”

Indeed, Orthodox groups are more likely to side with Bush’s conservative choices for the federal bench.

And some church-state issues, which often split the Jewish community, highlight differences of opinions among Jewish groups.

McConnell, whose positions are known from previous testimony and articles, supported permitting all kinds of after-school clubs to meet on school premises during after-school hours, including religious after-school clubs. That position was supported by a Supreme Court decision last year.

While the O.U. supported that position, the ADL objected on the grounds of church-state separation

Not all Jewish groups are reversing course when it comes to weighing in on judicial selections.

The American Jewish Committee, an often-vocal Washington player, has opted to stick with its policy of not supporting or opposing particular nominees.

“We prefer to direct our advocacy toward the issues as they are presented to Congress and the courts,” said Richard Foltin, AJCommittee’s legislative director.

In the last Congress, Democrats defeated or delayed nominations of a number of judges they deemed too conservative.

The Senate’s Judiciary Committee considers a judge’s nomination and if it approves it then the full Senate votes.

The nominations that were defeated in committee were those of Patricia Owen and Charles Pickering to the 5th Circuit Court of Appeals, which is based in New Orleans.

Owen, a conservative on the Texas Supreme Court, split the committee votes by party — 10 Democrats voted to reject her and nine Republicans voted to support her. Democrats maintained that Owen tried to insert her own anti-abortion views into court rulings while Republicans complained that Owen’s opponents had greatly distorted her record.

The NCJW opposed Owen’s nomination, citing the judge’s “hostility to reproductive rights.”

In one parental notification case, Owen wrote that judges ought to decide whether the abortion itself was in a minor’s best interest.

Pickering, a federal trial court judge in Mississippi, was considered by some Jewish groups to have had a mixed record on racial issues.

Bush could decide to renominate both Pickering and Owen.

The makeup of the new Senate Judiciary Committee — like all committees — is not yet set in stone.

Meanwhile, there is also talk of an increased likelihood of a vacancy on the U.S. Supreme Court. With several justices hovering around retirement age, observers say a conservative justice might consider retiring, knowing that Bush will be in a position to elevate another conservative to take his place.

“This is an absolutely critical time,” Moshenberg said. “People have got to take action.”

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