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October 4 2019

IWF launches the Independent Women’s Law Center

by Beverly Hallberg and Jennifer Braceras

On this week’s episode of “She Thinks,” Jennifer Braceras joins the podcast to talk about the launch of the Independent Women’s Law Center. The Center aims to influence the debate about women and the law and provide a distinctly female perspective on issues related to equal opportunity, individual liberty, freedom of association, and access to justice. Jennifer discusses how they hope to achieve that aim as well as her take on important cases in the next year and whether or not RBG should be the icon that she is.

Jennifer C. Braceras is a Boston Globe contributing columnist, and a former Commissioner on the U.S. Commission on Civil Rights. A graduate of the Harvard Law School, Jennifer often writes about issues at the intersection of law, politics, and culture. In addition to her work for the Globe, Jennifer’s columns have appeared in a variety of publications, including the Wall Street Journal, the Hill and National Review Online, the She has been a guest on FOX News and CNN and appears regularly on WGBH-Boston and New England Cable News.

Hallberg:
Welcome to She Thinks, a podcast where you're allowed to think for yourself. I'm your host Beverly Hallberg and on this episode we are discussing the launch of something new at IWF. Yes, the independent women's law center opened this week. The goal of the center is to influence the debate about women and the law and provide a distinctly female perspective on issues related to equal opportunity, individual Liberty, freedom of association, and access to justice. Here to talk about it is the center's director and frequent guest host of She Thinks IWF's own Jennifer Braceras. Jennifer, thank you so much for joining us.

Braceras:
It's great to be with you.

Hallberg:
And before we jump into this I just want to give people a little bit of background on you. I know that you're often a guest host on the program so they've heard from you but about your background and how that relates to this center. I want everybody to know that Jennifer is a Boston Globe contributing columnist and a former commissioner on the US Commission of Civil Rights. She's a graduate of Harvard law school and often writes about issues at the intersection of law, politics, and culture.

Hallberg:
She's featured in different publications across the country. She's been a guest on Fox news and CNN and so it really is a pleasure, Jennifer, to have you running the center and I'm excited about what it's going to accomplish. I want to let everybody know you can find more information at iwf.org. There's also a newsletter you can subscribe to so you can keep up to date on what's going on. But we want to hear from you Jennifer, tell us about the center. I gave a little bit of background but what was the impetus to push this forward? Why did IWF find that this was an important aspect to women and what women care about?

Braceras:
Well, I think it's really interesting because the Independent Women's Forum was founded in the aftermath of the Clarence Thomas hearings and the reason it was founded was because a group of women who knew Thomas professionally and personally came forward to testify on his behalf and to assist him when he was wrongfully accused by Anita Hill. And afterwards they decided that there needed to be an organization that spoke for conservative, and libertarian, and moderate women who did not feel represented by the National Organization for Women, or the National Women's Law Center, or any of those feminist groups on the left.

Braceras:
So they founded IWF and I think Ricky Silberman who was one of the founders it was always her goal to have IWF be active in the legal arena both with respect to nominations to the bench and with respect to filing briefs in court and influencing the debate over legal policy. That was always part of Ricky's vision and I think that as a small organization IWF for many years was focused on policy but it was always something I think Ricky had hoped IWF would do eventually.

Hallberg:
Well it's very exciting. And I know Erin Halley who is a senior fellow also at IWF she's going to be the legal fellow also working with you on this. I am curious just about your thoughts on the court these days. It seems that more and more people are concerned that the judiciary is interpreting, not just interpreting laws but making laws. Are you really going to focus on we need judges who interpret law and not make new law?

Braceras:
Yes. I mean that's the constitutional role of the courts in our system. It's supposed to be, the court is supposed to be what Alexander Hamilton called the least dangerous branch. And it's interesting if you go back to the time of the founding there were concerns from people who were against the new constitution. They had concerns that this unelected group of judges would become philosopher kings and dictate policy in a tyrannical way and that was one of the concerns. But Hamilton said, "No, this will be the least dangerous branch." And we want to make sure that it remains so.

Hallberg:
And I really love the statement that you released when this announcement came earlier this week. You said for decades progressive women's groups have occupied the legal field urging courts to enact their agenda by judicial fiat and [inaudible 00:05:02] nominees. And that this center, that these groups will no longer be able to claim to speak for all women and I think that's such an important part of that. Obviously we want the judges and the judicial system to focus on interpreting the law and not making the law. But specifically women think that, or a lot of people think that women have one perspective on how the court should rule so it seems that the female focus in showing that we're different than progressive women is an important aspect to this center.

Braceras:
Absolutely. I mean the National Women's Law Center and the the feminist progressive legal groups have attempted to speak for all women for a very long time and as you know women like men are divided politically and they're about 50 50 when it comes to politics. So, those groups don't speak for all women when it comes to issues of legal policy and their view of what the courts should be is not the same view that many women hold. Many women understand that the role of the courts is to interpret the law as written by legislative bodies and as handed down in the constitution and and that it's the role of our elected representatives to hash out compromise over hot button political issues not the role of the court.

Hallberg:
And how will the center decide what it focuses on? I know that you have already filed three briefs and those were in August and September but how are you going to decide what cases you're going to focus on? Is there a certain method that you're going to be following?

Braceras:
Well, we would like to weigh in on cases where we think we can make a distinct point. So there are a lot of other groups, women's groups, conservative groups, libertarian groups that might file in cases. We think we're unique in that we are both a women's group and the conservative/libertarian group. So we're looking for cases where we think we can make a unique point and one of those cases is currently before the Supreme Court. It's called Harris Funeral Homes. And it's a case about employment law where the court is being asked whether or not title seven which prohibits discrimination on the basis of sex applies to transgender employees. And a lot of conservative groups are weighing in saying, "No, it doesn't apply to to transgender employees. That the word sex in the legislation when it was enacted in 1964 refers to biological sex and if Congress wants to include gender identity, or sexual orientation, or any other category it can do so. But it did not do so in 1964 and it's not for the court to enact that policy."

Braceras:
So a lot of conservative groups are saying that. We thought we had a unique point to make and that is this, it's that courts typically interpret employment discrimination laws the same way that they interpret title nine which deals with discrimination in education. And one thing the court might not be thinking about because it's not an issue that's directly before them is that if they hold that title seven includes gender identity or transgender status that is also going to apply to women's sports under title nine. And so, what that means is if the court rules for the transgender employee in this case that means that all athletic programs across the country will be forced to allow male body athletes who are transgender to compete on women's teams. And that is an unforeseen consequence that the justices of the Supreme Court might not have thought about but we're hoping to bring that to their attention.

Hallberg:
And what I found interesting on the issue I'm related to that and when it comes to women's sports and whether or not transgender individuals will be able to compete as a woman is that even some so-called progressive feminist groups seem to align with the idea that that isn't fair, that we're seeing in some ways some interesting bedfellows come together on the issues related to women's sports. Are you seeing that as well that even in the legal work and what you're doing that you're seeing yourself partner with certain groups that traditionally wouldn't be on the same side of us on certain issues?

Braceras:
There is a group called the Women's Liberation Front which is a leftist feminist group that is on our side of this issue for the reasons I just said because they do not feel that frankly it's fair to allow male bodied athletes to compete on female teams. Sadly, most of the feminist groups, the Women's Sports Foundation and all the other groups that have so long argued for strong enforcement of title nine seem to not care about the impact that this might have and they've all filed on the other side.

Braceras:
But, our position is essentially that, look this is a complicated public policy issue. It will have unforeseen consequences if the courts issue a sort of blunt one size fits all ruling. And that is precisely why the legislative bodies need to hash this out because there may be reasons to prohibit discrimination against transgender people in terms of housing for example. But those reasons, same reasons may not apply in the sports context or in a privacy context where a locker room is involved. Or every context is different, employment, housing, education, sports. And so, it's really for Congress to take testimony and weigh the data and look at how these issues implicate people's rights in each context. It's not for the court to just automatically rewrite a statute in a way that will affect all of civil rights law.

Hallberg:
And I think that that's one of the reasons why this center is so important is someone like myself I am not a legal scholar, I have never gone to law school, don't have a law degree. Some of these cases can be so complex and you are weighing and balancing what makes sense to protect all people. And so, I think that's one of the aspects in today's evolving, changing world. It's important to have a center like this to help us think through those issues.

Hallberg:
So first of all, thank you. I am glad that the center is open. I'm excited to see what comes out of it. But I want to ask you a question I didn't tell you I was going to ask you this. I'm throwing you a little bit of a curve ball. I am really curious of your perspective of Ruth Bader Ginsburg and here's the reason why RBG as she's known. She's become a superstar so to speak and not just in judicial aspect but a documentary has been made, a movie Hollywood film was made about her. What is your perspective of just her life and how she's being praised in the way that she is? Do you think that that is well deserved considering she was the first female on the Supreme Court?

Braceras:
She was not the first female on the Supreme court.

Hallberg:
Oops. That's right, sandra Day O'Connor. Thank you.

Braceras:
Yeah, so I mean I think it's a couple of things. Obviously Ruth Bader Ginsburg is an amazing role model for women regardless of whether you agree with her jurisprudential philosophy or her politics but so was Sandra Day O'Connor who as we just said was appointed to the court as the first woman by President Ronald Reagan. And yet, you don't see people driving around with bumper stickers with Sandra Day O'Connor's face on them, or tee shirts or socks. There's a whole industry of RBG projects that you don't see.

Hallberg:
There are a lot of greeting cards in DC. There's a company that's made a lot of greeting cards about her. So yeah, you see her everywhere.

Braceras:
Right. And I think, I mean I think it's a couple of things. I think part of it is it's a different era with social media and Sandra Day O'Connor wasn't on the court in a time when we had social media, and tweeting, and all this stuff. And I would also say it's somewhat of a coincidence that RBG has a set of initials that are very close to a rappers, Notorious BIG. Which is how the whole cult of RBG got rolling. People started calling her Notorious RBG. So part of it is is I think those cultural differences but part of it is what IWF's President Carrie Lukas talks about in her book on progressive privilege which is that because she's a more liberal justice who was appointed by a Democrat she becomes this icon in a way that a woman appointed by president Ronald Reagan does not. So, I think it's all of those things combined.

Hallberg:
And of course the Supreme Court came into focus in the past year and even again a couple of weeks ago. Justice Kavanaugh, we know the story behind him. There were even calls for impeachment a couple, two or three weeks ago against him once again. What has been IWF's perspective on now that we can take a step back it's been a little bit over a year and how his confirmation process was handled. Is that another reason why the center is here to try to stand up for judges to have a say or to at least be part of the public square and talking about these types of issues?

Braceras:
It is absolutely one of the reasons that we decided to go forward and and launched the center now. Like I said it was always part of Ricky Silverman's vision for IWF but the urgency became clear last year with the nomination of Justice Kavanaugh and the way he was treated. And in fact, it really illuminated the fact, it illuminated a pattern frankly that started with Judge Robert Bork, continued with Justice Clarence Thomas, and really came to fruition with the Kavanaugh hearings. Because when you look at the totality of how the left behaves when conservatives are nominated to the court you see that they will stop at nothing to prevent them from getting on the court or to bully them into maybe changing their jurisprudential views on things. I mean this is all part of a pattern by the left that we feel we need to stand up to.

Hallberg:
And what do you say to people out there who say as a female as you are talking about these issues. You mentioned Judge Bork, you mentioned Clarence Thomas, you mentioned Justice Kavanaugh, that how can you be for women and what women care about if you're supporting these men? What do you say to people who think that you aren't fighting for women by having this perspective?

Braceras:
I would say that none of these men mistreated women that that's false to begin with and I would say that there's nothing about their jurisprudential philosophy that is harmful to women. These are people who understand what the proper role of a judge is and that's not something that's harmful to women. In fact it protects women's voice in the political arena because if a judge or a group of nine unelected judges takes decisions out of the hands of the voters that's taking power away from women as well as all Americans. So, I don't think it's inconsistent and of course IWF is happy to support female nominees to the bench and to the Supreme Court who subscribe to a restrained, originalist, constitutionalist philosophy of the court. I mean we'd be more than thrilled to see an appointment of a constitutionalist female justice in the future and I'm sure that we will. So, it's not that we supported Clarence Thomas or Brett Kavanaugh because they're men, we supported them because they were good judges who understand the proper role of the court.

Hallberg:
And as the Supreme Court is going to be figuring out what cases to take up we'll of course have oral arguments again in the spring and decisions in June. What court cases are you most focused on? Because I know you're always giving us good information of what we should be paying attention to.

Braceras:
Well, we're focused this fall we're going to be hearing oral arguments in the Harris Funeral Homes case which is the case I talked about that deals with whether or not the civil rights statutes apply to transgender individuals. So, that's one we're very focused on. We're also, we filed a brief in the Supreme Court for cert asking the court to take up the case of Americans for Prosperity versus Becerra which is a case out of the ninth circuit involving donor privacy. We think that's a very important issue.

Braceras:
That's the case where the California attorney general who at the time was Kamala Harris wanted organizations to hand over their donor list essentially. And Americans for Prosperity said, "No, we're not going to do that. That violates the first amendment right to give anonymously." And they lost in the ninth circuit and now we're asking the Supreme Court to hear that case. And we think we have a unique point to make there because a lot of civil rights causes including the suffragist movement were funded in part by anonymous donations. And so, anonymous giving is a very important part of our history and of the history of philanthropy and civic participation in this country. And so, we're hoping the Supreme Court will take that case up and reaffirm the first amendment right to anonymous giving.

Hallberg:
And final question for you. What can people expect from the center? Obviously you mentioned some things that you're going to be doing just in this podcast, this episode that we have today, but what other aspects is the center going to be focused on that, the reason why people should subscribe to a newsletter? What information can people get?

Braceras:
So, we're going to be operating primarily in three lanes. We're going to be operating in the lane of appellate advocacy where we are going to file briefs in cases as we talked about. We're going to be active with judicial nominations and confirmations. And we are going to continue to do a lot of the work IWF has already done in the legal policy arena. And what we really hope to do there is educate non lawyers about why these legal issues are so important and break them down for the general public. So, I think anybody who's interested in the law and how it affects their daily life and politics can find resources on our website that help explain legal or constitutional topics.

Hallberg:
Well as a non lawyer myself as I already stated this is going to be extremely helpful so thank you so much. It's so exciting this has opened and thank you so much for chatting with us today.

Braceras:
Yeah, no problem. It's been great talking to you

Hallberg:
And thank you all for joining us of course. Once again, do go to IWF's website to check out the Independent Women's Law Center and subscribe to the newsletter. I also wanted to let you know of a great podcast you should subscribe to in addition to She Thinks it's called Problematic Women and it's hosted by Kelsey Buller and Lauren Evans where they both sort through the news to bring stories and interviews that are of particular interest to conservative leaning or problematic women. That is women whose views and opinions are often excluded or mocked by those on the so-called feminists left. Every Thursday hear them talk about everything from pop culture to policy and politics by searching for Problematic Women wherever you get your podcasts. Last, if you enjoyed this episode of She Thinks do leave us a rating or a review on iTunes. It does help and we'd love it if you shared this episode so that you can let your friends know about She Thinks and let them know there are more episodes that they can listen to. So from all of us here at Independent Women's Forum thanks for listening.





Independent Women's Forum is an educational 501(c)(3) dedicated to developing and advancing policies that aren’t just well intended, but actually enhance people’s freedom, choices, and opportunities. IWF is the sister organization of the Independent Women’s Voice.​
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