Our Rights in Peril: The Future of the Courts

The upcoming change in Administration makes us optimistic that the rightward shift of the courts will end -- but this optimism cannot be an excuse for complacency.
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The progressive religious community has long been a principal force in efforts to gain and protect fundamental rights. On nearly every issue, from civil rights to health care reform to a woman's right to choose, religious groups have made their voices heard. Yet, although every one of these issues is deeply affected by judicial decisions, the progressive religious community has been largely silent on judicial nominations.

The judiciary has a powerful and lasting impact on the issues that the religious community cares about, including but not limited to the preservation of civil liberties and civil rights, protection of the environment, freedom of choice and speech, and freedom from imposed religion. Judges and justices granted lifetime appointments to the Federal Bench have the ability to either safeguard or erode these rights over the many years they serve.

It is far past time for the religious community to join the many progressive organizations that are fighting for a fair and independent judiciary. Sitting out vital debates about judicial nominees jeopardizes the crucial gains we have made and will make in the legislative arena. We need to ensure the appointment of judges who will uphold an expansive interpretation of the law as it applies to our fundamental rights and the separation of church and state.

For this reason, the Reform Jewish Movement decided in 2002 to "oppose a nominee if after consideration of what the nominee has said and written, and his or her record, it believes that a compelling case can be made that the appointment would threaten protection of the most fundamental rights which our Movement supports." This past winter, the Reform Movement added that it would actively support qualified nominees who are attacked or criticized based on "their records or stated views related to the protection of the fundamental rights that our Movement supports" and/or "based on aspects of their personal identities that are irrelevant to their ability to fulfill the responsibilities of the positions to which they are nominated."

The recent clear shift of the courts to the right has only intensified the need for religious communities to engage with the Judicial Branch. President George W. Bush has appointed more than 30 percent of the judiciary, packing the courts with young, extremely conservative judges who will have an impact on national jurisprudence for years to come. The appointments of Chief Justice John Roberts and Justice Samuel Alito have already resulted in Supreme Court decisions to that are more predictably against the fundamental values that much of the Jewish community supports. For years, particularly during the Warren and Burger Era (1953-1986), the Supreme Court decided numerous landmark cases defending -- and sometimes expanding -- our fundamental liberties. In contrast, the Roberts Court has dealt serious blows to the rights of individuals and the separation of church and state, including the rights to demand remuneration for pay discrimination, to challenge Executive Branch spending, and to choose how to abort a pregnancy.

And we must not be concerned only with the Supreme Court. While the Supreme Court has significantly reduced the number of cases that it considers each year, Federal Court caseloads have burgeoned. As a result, we are witnessing an increased influence of each of the 13 Federal Circuit Courts. Therefore, our responsibility to scrutinize and speak out on appointments to these Courts of Appeals weighs more heavily on our shoulders.

The recent change in Administration makes us optimistic that the rightward shift of the courts will end -- but this optimism cannot be an excuse for complacency. The Union for Reform Judaism recently resumed dissemination of Rights in Peril: Why the American Jewish Community and Others Cannot Afford to Sit Out the Debate Over Judicial Nominations, a call to action for the Jewish and national religious communities to join us in creating formal processes for considering whether to oppose and support judicial nominees. We hope the Reform Jewish Movement's policies and practices will serve as a model for organizations that choose to include active engagement with the Judicial Branch as a key component of their ongoing fights for justice. The religious community cannot be complacent. Too much is at stake.

Rabbi David Saperstein is director and counsel of the Religious Action Center of Reform Judaism and a national expert in church/state issues.

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