Alito: A Defeat for Working Women

By Martha Burk, Ms. Magazine. Posted January 11, 2006.

When most people think about women's rights and the Supreme Court, abortion is the first thing on the list. Though organized women's groups are vehemently opposed to the confirmation of Samuel Alito to the high court because he is almost certain to vote to overturn Roe v. Wade, the right to privacy is not the only thing on the line for women.

In nominating Alito, President Bush abandoned the idea of advancing gender fairness on the Court after his own side hounded Harriet Miers into withdrawing. Conservatives feared she would bring a woman's point of view to the bench, as have retiring Justice Sandra Day O'Connor and the only female who will be left standing if Alito is confirmed, Justice Ruth Bader Ginsburg.

There's no substitute for personal experience, and both O'Connor and Ginsburg suffered sex discrimination in trying to get an education and a decent job practicing law afterward. O'Connor was offered only legal secretary positions after getting her law degree. Ginsburg was asked by the law school dean what it felt like to occupy a place that could have gone to a deserving man, and she was refused even an interview for law clerk after graduating. The stated reason? Her gender. Those kind of experiences undoubtedly played a role in Ginsburg's consistently pro-woman rulings and O'Connor's upholding of principles underlying women's rights in the workplace.

Alito's confirmation, if it happens, could also have profound implications for working women, only from the opposite point of view. Like the other seven men on the Court, he's never experienced sex discrimination firsthand, so he doesn't see it as a problem. His record is clear -- big business rules.

During his 15 years on the 3rd Circuit Court of Appeals, he compiled a stunning record of backing corporations over workers in sex and race discrimination cases. He has bragged that he is "particularly proud" of his work in opposing affirmative action, and never expressed regret for joining a militantly anti-woman club dedicated to keeping women out of Princeton. This mindset does not bode well for female employment rights.

One case that could come before the Court in the near future just happens to be the largest sex discrimination suit in history, Dukes v. Wal-Mart. Current and former female employees of the nation's largest employer are seeking class-action status to pursue pay and promotion discrimination claims. They've won in lower courts, and Wal-Mart is of course appealing. If the case reaches the Supremes a vote against the women could effectively torpedo female workplace rights for a generation.

Just as the Court itself is hugely gender unbalanced, so is the Judiciary Committee holding hearings on Alito's confirmation. Senator Dianne Feinstein (D-CA) brings the only female perspective among the 18 members who will vote on whether Alito's confirmation goes to the full Senate. I'd bet money none of these 17 men have ever experienced sex discrimination either, so the topic is not likely to be high on their list of concerns. News reports do say some, including the Republicans, are very disturbed that Alito has backed the idea that domestic spying on Americans without a court order is ok.

That may be the only hope for scuttling a nomination that otherwise will be a clear defeat for women at work.

Martha Burk is the money editor for Ms, and author of Cult of Power: Sex Discrimination in the Workplace and What Can Be Done About It.

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