Today the Supreme Court heard oral argument in the case of Dukes v. Wal-Mart, a gender discrimination case brought by female workers of Wal-Mart, the nation’s largest private employer. The workplace discrimination case is a complicated piece of litigation and has already been in the courts for a decade.
The women suing Wal-Mart won an important victory in 2004 when a district court ruled that they could pursue their case as a “class,” representing all similarly situated women working for Wal-Mart.
Class action cases are permitted under very limited circumstances but they serve as important vehicles for groups of plaintiffs who may not have the means or resources to individually take on a deep-pocketed defendant in court. Because without a class action case, most of the plaintiffs wouldn’t be willing to go through the difficult process of filing a suit, class actions mean that corporations are forced to deal with cases they could otherwise ignore. In addition, class actions raise the possibility that a company will have to pay an enormous monetary award and even punitive damages—a powerful incentive to settle out of court.
So it’s no surprise that Wal-Mart appealed the district court’s decision to let this case proceed. The company’s appeal resulted in two split decisions by three-judge panels and a later 6-5 decision from the full 9th Circuit which, among other things, ultimately upheld the district court’s decision as to certification of the class. Wal-Mart appealed to the Supreme Court.
Wal-Mart is arguing that the women suing shouldn’t be designated a class for a number of reasons. The company claims that that the representative plaintiffs do not have claims typical of the whole class—a group which could involve from 500,000 to 1.5 million women with varying jobs and circumstances. Wal-Mart also argued that allowing the district court’s decision to stand would make the trial so unmanageable that it would violate Wal-Mart’s federal and constitutional rights.
The women pushing the suit point to company-wide practices that they claimed resulted in a culture of gender discrimination, including sexist nicknames, managers who held meetings at Hooters restaurants, and other disparaging conduct directed at women. They also point out that only a class action approach would work against a giant corporation like Wal-Mart. Individual claims of $1,100 per worker would do nothing towards ending the company’s discriminatory practices.
PFAW Foundation filed an amicus brief in support of the female class along with 33 other civil rights organizations, including the ACLU and the National Women’s Law Center. The brief emphasizes that sex discrimination in the workplace remains a very serious problem in the United States and the systemic barriers to individual actions reinforce the need for a class action to address the kind of discrimination alleged in the case against Wal-Mart. Not surprisingly, corporate America and its many powerful trade associations, including the U.S. Chamber of Commerce, came out in full force in support of Wal-Mart, filing amicus briefs to protect their corporate interests.
While the outcome of the case remains unclear, it can be certain that there remains a pro-corporate bloc of the Court that will be sympathetic to Wal-Mart’s claims. Justice Scalia tipped his hand at his skeptical view of class actions last year in another case, suggesting that there was “national concern over abuse of the class action device.” The Court is also considering a case this term that would weaken the ability to bring class action lawsuits in the context of state consumer protection laws.
Back in September, we wrote about Sen. Jeff Sessions’ discovery of what he called the “ACLU chromosome”—according to the senator, a common genetic defect that disqualifies bearers from the federal judiciary.
Well, Dr. Sessions is back at it. TPM has this video of Sessions ranting yesterday about the supposed prevalence of the “ACLU chromosome” in President Obama’s judicial nominees:
As Sen. Mark Udall later pointed out on the Senate floor, it’s unlikely that Sen. Sessions would have a similar reaction to a “Federalist Society chromosome”. While a few of President Obama’s nominees have had a history working with the ACLU—for instance, Edward Chen of California who worked to prevent discrimination against Asian Americans—President Bush made a point of packing the courts with judges who belonged to the far-right Federalist Society.
It’s absurd arguments like Sessions’ that are keeping qualified, well-respected nominees like Chen from even receiving an up or down vote in the Senate. While reports say that the Senate GOP has finally agreed to vote on 19 judicial nominees who they have been stalling despite little or no opposition to their confirmations, four nominees, including Chen, will be left out to dry without even a vote.
And, for the record, the ACLU had this to say about Sessions’ rant:
"Senator Sessions' reference to 'ACLU DNA' in President Obama's judicial nominees should be greeted as a welcome discovery by all Americans, regardless of party. For 90 years, the ACLU has defended the rights enshrined in the Constitution for everyone, regardless of their political beliefs. While not everyone agrees with us on every issue, Americans have come to rely on the ACLU for its unyielding dedication to principle."
"There is a long record of highly respected ACLU-affiliated lawyers who have been appointed to the federal bench, including luminaries such as Supreme Court Justices Thurgood Marshall, Felix Frankfurter, Arthur Goldberg and Ruth Bader Ginsburg. All have demonstrated their dedication to the Bill of Rights in important decisions supporting freedom of speech, the right to due process and gender and racial equality. There are also dozens of highly regarded district court and appellate court judges who have served or serve now on federal benches throughout the nation. Their ACLU background has helped them bring to the judicial system a steadfast commitment to constitutional values and an understanding of the critical role that the judiciary plays in safeguarding them."
"If you ask us, ACLU chromosomes make for a pretty remarkable gene pool," she added.
The Blog of the Legal Times is reporting that Senate Majority Leader Harry Reid is planning to call Senate Republicans on their obstruction of judicial nominees and break the gridlock that has kept four of these nominees pending, in some cases for over a year. Reid will attempt to stop the Republican filibuster of Ninth Circuit nominees Goodwin Liu and Edward Chen, Rhode Island District Court nominee John McConnell, and Wisconsin District nominee Louis Butler.
This is a critical moment for these nominees, who despite support from their home-state senators and endorsements across the ideological spectrum, have for various reasons been branded as “too extreme” by obstructionist Republicans in the Senate. McConnell has been up against an expensive lobbying campaign from the Chamber of Commerce, which objects to his work as a public interest lawyer representing victims of lead paint poisoning. Butler has been up against business interests who don’t think he was friendly enough to them when he was on the Wisconsin Supreme Court. Chen was accused by Jeff Sessions, the top Republican on the Senate Judiciary Committee of having an apparently disqualifying “ACLU chromosome.”
Liu’s nomination has been the subject of the most partisan squabbling. Liu’s main obstacle, it seems, has been his own brilliance: some on the Right worry that if he makes it on to the bench, he could eventually become a Supreme Court nominee. But Liu’s nomination is backed by legal luminaries from across the ideological spectrum, including former Bush White House lawyer Richard Painter, who today wrote another plea for the Senate GOP to break the judicial gridlock and at least take a vote on Liu’s nomination:
In any event, nominees who should not be controversial, including Goodwin Liu (I have made previous posts here on his nomination), are described as radical activists, the same tactic that advocacy groups deployed to mischaracterize many of President Bush’s nominees.
Public opinion of Members of Congress (both parties) these days is lower, far lower, than it was in the days when Senator Henry Cabot Lodge used just the right term to describe what he saw going on when Senators filibustered legislation. Those of us who care about the future of the judiciary should make it clear that the delay must stop.
This does not mean the Senators should vote "yes". They can vote "no". But they should vote.
Specific nominations aside, the federal judicial system in general has taken a drubbing under the Senate GOP’s refusal to confirm nominees. A new report from the Alliance for Justice has found that the number of vacancies in the federal judiciary has nearly doubled since President Obama took office, and that the number of open seats designated as “judicial emergencies” has risen from 20 to 50, affecting 30 states.
Confirmation votes will become much more difficult next year, with Democrats hanging on to a much slimmer majority in the Senate. Now’s the time to push through the nominees whom the GOP has been the most eager to obstruct.
The Senate is scheduled to take 2 votes today at 11 am. First up – the Paycheck Fairness Act! They’ll consider what’s called a “motion to proceed.” Overcoming this procedural hurdle would allow the bill itself to come to the floor.
The Administration strongly supports Senate passage of S. 3772, the Paycheck Fairness Act. The persistent gap between men’s and women’s wages demonstrates the need for legislative change. This bill would address this gap by enhancing enforcement of equal pay laws. Specifically, it would prohibit retaliation against employees who ask about or discuss wage information, and it would provide more effective remedies for women subjected to discriminatory pay practices. S. 3772 would strengthen the Equal Pay Act by closing judicially created loopholes in the law and bringing its class action rules into conformity with the Federal Rules of Civil Procedure. S. 3772 also requires the Equal Employment Opportunity Commission to collect pay data to better enforce laws prohibiting pay discrimination.
And here’s a blog post from Terrell McSweeny, Domestic Policy Advisor to the Vice President
The Importance of Equal Pay For Women
Posted by Terrell McSweeny on November 17, 2010 at 07:00 AM EST
Yesterday I picked up my Wall Street Journal and read an opinion piece “Washington’s Equal Pay Obsession” arguing that the Paycheck Fairness Act is unnecessary because, in a nutshell, women don’t face rampant pay discrimination. Instead, the author asserted, the wage gap exists because women are mothers.
So let’s break this down.
First, there is ample evidence that women – regardless of their parental status - do face pay discrimination. Yes, part of the wage gap is a result of occupational choices and other factors. No one denies that. Most economists agree, however, that no matter how many variables you control for an unexplained wage gap between men and women persists. For example, Francine Blau and Lawrence Kahn did an excellent breakdown of the wage gap in 2007 and identified that 41% of the wage gap between men and women could not be explained by controlling for variables. Regardless of the precise percentage of the wage gap, we have a responsibility to ensure that no one in this country makes less as a result of his or her gender.
Wage discrimination is real.
Just ask Lilly Ledbetter. She is a mother. She didn’t seek a “less stressful work environment” than her male counter parts. And she was paid roughly 30% less. If she had been allowed to share information about her pay with her colleagues she would have realized she was being paid less than men with less experience.
But Lilly couldn’t bring that case. She could have lost her job if she discussed her pay with her colleagues. The Paycheck Fairness Act would provide that protection. The author is right there are a lot of laws aimed at this problem – but because they don’t provide basic tools like pay transparency, discrimination persists.
Where employees know how their pay compares to that of their peers they are better able to advocate for themselves and ensure discrimination does not occur. For example, the Institute for Women’s Policy Research recently conducted a survey that shows that only 14% of public sector workers feel that discussions of pay are discouraged or prohibited. In the federal government, the wage gap between men and women is only 11%. Conversely, in the private sector, the survey showed that 61% of employees are discouraged or prohibited from talking about salary information. The wage gap in the broader economy is much larger. It’s common sense that in order to identify and prevent discrimination, employees have to know how their pay compares to that of their peers and that pay would be more equal where workplaces are more open.
Second, lots of women who are parents don’t take time off or seek flexible schedules. This is particularly true in tough economic times when families increasingly rely on women’s income. That’s one of reasons why, for the first time, women now make up nearly half of all workers on US payrolls. In fact, now more than ever women are the primary breadwinners for their families. As families depend more on women’s wages, eliminating wage discrimination is also critical for middle class economic security - families who are working hard can hardly afford to lose part of a paycheck to discrimination.
Motherhood should not be used as a scapegoat here. BLS reports that in 2009, 64% of women in the workforce were not parents at all. And many still are paid less than their male counter parts.
Third, “career breaks” do not necessarily equate with loss of skill. Taking a year or ten off to stay home with kids doesn’t necessarily mean a parent has lost skills.
The Paycheck Fairness Act gives women more tools to get fair pay in the workplace. For example, the legislation allows employees to inquire about wages or share salary information without fear of reprisals. The Act closes loopholes that make it harder for women to challenge being paid different wages for the same work, and it ensures that women who prove their case are compensated fairly.
Women deserve these protections.
Terrell McSweeny is Domestic Policy Advisor to the Vice President
We’ll continue urging the Senate to pass the Paycheck Fairness Act, but your Senators also need to hear from you. Take a few minutes now to dial 877-667-6650.
The Senate is scheduled to take its first votes of the lame duck session soon. Number 2 on the list tomorrow – the Paycheck Fairness Act! They’ll consider what’s called a “motion to proceed.” Overcoming this procedural hurdle would allow the bill itself to come to the floor.
We expect the Senate will vote upon the Paycheck Fairness Act as early as tomorrow, Wednesday, Nov. 17th. We may be on the cusp of an historic victory for fair pay, but to achieve it, we need your help.
Today, American Association of University Women members and supporters across the country will join thousands of other pay equity advocates in a nationwide call-in day to support the Paycheck Fairness Act. We have enough votes to pass the bill, which would deter wage discrimination by closing loopholes in the Equal Pay Act and barring retaliation against workers who disclose their wages to coworkers – but we need to win a procedural vote – which has a 60 vote hurdle – so that the bill is considered for passage.
Whether you’ve written, emailed, and called your senators once, twice, or fifty times, today is the day to call again. We want to keep senators’ phones ringing off the hook, and we can do it if you call at least once today and tell your senators that the time has come to pass the Paycheck Fairness Act and make real progress on equal pay for equal work.
Call your senators (toll-free at 877/667-6650 or by entering your zip code above) and urge them to vote for and support the Paycheck Fairness Act without amendments. With a vote as early as tomorrow, your senators need to hear from you TODAY! Once you’ve taken action, forward this alert to your friends and family and encourage them to take action too!
AAUW has been leading the coalition to pass the Paycheck Fairness Act, which would close loopholes, strengthen incentives to prevent pay discrimination, and bring the Equal Pay Act in line with other civil rights laws. It would also prohibit retaliation against workers who inquire about employers' wage practices or disclose their own wages. Call your Senators today!
NOTE: If you’re unable to call today, call tomorrow and every day until the bill passes!
We’ll continue urging the Senate to pass the Paycheck Fairness Act, but your Senators also need to hear from you. Save a few minutes on the national call-in day to dial 877-667-6650. That’s today – the day before the vote.
The Senate is scheduled to take its first votes of the lame duck session this Wednesday. Number 2 on the list – the Paycheck Fairness Act! They’ll consider what’s called a “motion to proceed.” Overcoming this procedural hurdle would allow the bill itself to come to the floor.
President Obama’s signing of the Lilly Ledbetter Fair Pay Act formed a strong foundation for pay equity in this country. Now that fair access to the courts has been restored, it is time to build on that foundation. On behalf of the hundreds of thousands of members of People For the American Way, we urge you to support the Paycheck Fairness Act (S. 3772) as a clean bill with no amendments.
The Ledbetter v. Goodyear decision was a clear step backward for ending employment discrimination in the workplace, when the Supreme Court held that employees could not challenge ongoing compensation discrimination if the employer’s original discriminatory decision occurred more than 180 days before filing of the claim. The Lilly Ledbetter Fair Pay Act was meant to correct this misinterpretation of the nation’s civil rights laws. It reiterates Congress’ intent to hold employers accountable for discrimination and allows employees a fair chance to fight back.
But they still need the tools to do so. S. 3772 strengthens the remedy, enforcement, and exception provisions of the existing Equal Pay Act. It engages the Equal Employment Opportunity Commission (EEOC) and the Department of Labor in a number areas including technical assistance, data collection and review of existing data, and the provision of wage discrimination training to government employees and individuals seeking their assistance. It supports negotiation skills training for women and girls and general public awareness regarding the means available to eliminate pay discrimination.
S. 3772 sends a clear message: The wage gap is real. No employer should benefit from discriminating against employees like Lilly Ledbetter. Retaliating against employees who fight for equal pay is unacceptable. Pay equity should be the rule, not the exception. What S. 3772 does not do is also clear: It does not eviscerate employers’ legal rights. It does not take away their right to set their own business practices or constrain them in terms of job applicants. It does not create unfair comparisons between jobs performed or where they’re performed. It does not hurt small businesses, and it certainly does not negatively impact women.
In fact, S. 3772 is good for families who are facing daily struggles in this unsteady economy. The last thing they should be worrying about is whether the women who work so hard to support them are being treated fairly in the workplace. Americans know this to be true. According to a June 2010 National Partnership for Women and Families/Lake Research Partners poll(1) regarding the Paycheck Fairness Act, 84% said they supported “a new law that would provide women more tools to get fair pay in the workplace.” 72% expressed strong support. This message resonated with men (81% support/69% strong) and women (87% support/74% strong) and among Democrats (91% support/83% strong), Republicans (77% support/61% strong), and Independents (87% support/70% strong). It also holds up among racial and ethnic groups and across geographic regions.
For these reasons and more, we strongly urge you to support the Paycheck Fairness Act (S. 3772) as a clean bill with no amendments.
Michael B. Keegan President
Marge Baker Executive Vice President for Policy and Program
We’ll continue urging the Senate to pass the Paycheck Fairness Act, but your Senators also need to hear from you. Save a few minutes on the national call-in day to dial 877-667-6650. That’s tomorrow – the day before the vote.
The Senate is scheduled to take its first votes of the lame duck session on Wednesday, November 17. Number 2 on the list – the Paycheck Fairness Act! They’ll consider what’s called a “motion to proceed.” Overcoming this procedural hurdle would allow the bill itself to come to the floor.
So that you’re prepared for next week, we have updated our fact sheet on the bill. Here’s a sample of our talking points.
The Paycheck Fairness Act sends a clear message. The wage gap is real. No employer should benefit from discriminating against employees like Lilly Ledbetter. Retaliating against employees who fight for equal pay is unacceptable. Pay equity should be the rule, not the exception.
What the Paycheck Fairness Act does not do is also clear. It does not eviscerate employers’ legal rights. It does not take away their right to set their own business practices or constrain them in terms of job applicants. It does not create unfair comparisons between jobs performed or where they’re performed. It does not hurt small businesses, and it certainly does not negatively impact women.
We’ll continue urging the Senate to pass the Paycheck Fairness Act, but your Senators also need to hear from you. Save a few minutes on the national call-in day to dial 877-667-6650. That’s Tuesday, November 16 – the day before the vote.
You can imagine our delight here at People For when we finally made it on to Glenn Beck’s infamous conspiracy theory-promoting blackboard last night. You can watch the clip here:
Note that, contrary to Beck’s assertions, People For the American Way is not a 501c(3) group…and, moreover, 501(c)3 groups like People For the American Way Foundation are not allowed to participate in partisan political activity at all.
Beck is gradually expanding the reach of his broad conspiracy involving progressive groups to include as many as possible, it seems. But we’d like to think that our inclusion has something to do with the petition campaign People For and Media Matters have launched urging Fox News advertisers to drop their support of the network—because they are indirectly subsidizing Beck.
Beck, of course, has every right to criticize progressive groups on the air. But his rhetoric frequently verges on violent, and has led, on more thanone occasion, to actual or attempted violence against those involved in the progressive movement.
Sign People For and Media Matters' Drop Fox petition here.
And read the full letter Tides Foundation CEO Drummond Pike sent to Fox advertisers last month after he was the victim of a Beck-inspired assassination attempt:
Dear Fox Advertiser,
I am writing to ask your company to take a simple step that may well save lives in the future. And it is not unimportant that taking this action will remove your company and its products from any connection to what could very likely be an unpleasant tragedy, should things remain as they are today. On behalf of my organization, and many others like it, I ask that you cease advertising on the Fox News Channel.
This is neither a hollow request, nor one rhetorically made. There is an urgency to it born of our own direct experience as the target of a would-be assassin inspired by Fox's Glenn Beck Show.
On July 19th of this year, I arrived at our San Francisco office to learn that a misguided person carrying numerous guns and body armor had been on his way to start a "revolution" by murdering my colleagues and me. The Oakland Police Department called to tell us that, following a 12 minute shootout with the California Highway Patrol, law enforcement officials arrested an assailant who had targeted the Tides Foundation, an organization which I founded and currently serve as CEO, and the ACLU for violence. To say we were "shocked" does not adequately describe our reaction. Imagine, for a moment, that you were us and, had it not been for a sharp eyed highway patrolman, a heavily armed man in full body armor would have made it to your office with the intent to kill you and your colleagues. His motive? Apparently, it was because the charitable, nonpartisan programs we run are deemed part of a conspiracy to undermine America and the capitalist system, which is hogwash.
Although not a political organization, the Tides Foundation has been a frequent target of misinformation, propaganda, and outright lies by Fox News' Glenn Beck. Since his arrival at Fox in early 2009, Beck has repeatedly vilified Tides, suggesting we are intent on "creat[ing] a mass organization to seize power." He accuses the foundation of indoctrination and says we are "involved in some of the nastiest of the nasty." Beck tells viewers that Tides has "funneled" money to "some of the most extreme groups on the left" and that our mission is to "warp your children's brains and make sure they know how evil capitalism is." In total, prior to the attempted rampage, Beck had attacked the Tides Foundation 29 times. On September 28th, more than a month after the shooting, Beck reiterated his focus on the Tides Foundation, warning, "I'm coming for you." In jailhouse interviews, the gunman confessed he views Beck as a "schoolteacher" who "blew my mind." My would-be killer admitted that Beck "give[s] you every ounce of evidence you could possibly need" to commit violence.
Beck is a self-described "Progressive Hunter" who relies on violent rhetoric. Do you really think that the millions of Americans who describe themselves as "progressive" need to be "hunted down"? If so, to what end?
For hours every day on radio and television, Beck pits American against American, telling his audience that our country is under attack by a demonic Nazi-like regime seeking to destroy all that is great about America while insisting it's up to his viewers to resist and revolt. He warned his audience that "these are the most dangerous two years of our republic. Because in the end, in revolutions, the real dangerous killers show up." Beck even compared our government to vampires while instructing his viewers to "drive a stake through the heart of the bloodsuckers" and pretended to poison Speaker Pelosi on television. A few months later, Gregory Giusti was arrested for repeatedly threatening House Speaker Nancy Pelosi -- including threatening to destroy her home -- because he was upset over health care reform. The man's mother told a local news station he listens to those with "really radical ideas," adding, "I'd say Fox News or all of those that are really radical."
When I started the Tides organizations 35 years ago, I did so in the very American belief that ordinary citizens had a role to play in our democratic process. It was, I thought, the responsibility of everyone to become engaged in our civic life, and for years we've worked with thousands of Americans to do just that. And, while we support progressive values and goals, we respect the rights and voices of those with whom we disagree on issues. Never in our history have we tolerated employees or grantees that support those who would do harm to others. By supporting Fox News Channel, you and your company are risking your reputation and good standing because they are doing just this.
As you may know, a coordinated advertiser boycott by Media Matters and Color of Change, an online civil rights group, has caused Glenn Beck's Fox News show to lose over 100 sponsors. Despite the campaign's success, Fox insists it has had no impact on the channel's profitability because the overall demand for advertisements on Fox has remained stable. Companies are still paying to advertise on Fox News, but their ads are simply moved to a different time of day. Thus, businesses that pay to broadcast commercials on Fox News are subsidizing Glenn Beck's television show by continuing to pump money into the network. It has become clear that the only way to stop supporting Beck is to stop supporting Fox News.
I respectfully request that you bring this matter of your company's sponsorship of hate speech leading to violence to the attention of your fellow directors as soon as possible. I believe no responsible company should advertise on Fox News due to its recent and on-going deplorable conduct.
While we may agree to disagree about the role our citizens and our government should play in promoting social justice and the common good, there should be no disagreement about what constitutes integrity and professionalism and responsibility in discourse – even when allowing for and encouraging contending diverse opinions intelligently argued. This is not a partisan issue. It's an American issue. No one, left, right or center, wants to see another Oklahoma City.
The next "assassin" may succeed, and if so, there will be blood on many hands. The choice is yours. Please join my call to do the right thing in this regard and put Fox News at arm's length from your company by halting your advertising with them.
The recent suicides of several LGBT students across the country have highlighted the fact that anti-LGBT bullying and harassment in schools can have a dramatic and tragic effect on LGBT students, their families, and school communities.
On Wednesday night, the Senate left for recess without confirming a single one of the 23 judicial nominees who had been waiting for a vote, most of them for several months. The GOP blocked the majority of these nominees not because of ideology—19 were approved unanimously by the Judiciary Committee—but just for the sake of obstruction. President Obama responded yesterday with this letter to Senate leaders:
Dear Senator Reid, Senator McConnell, Senator Leahy, and Senator Sessions:
I write to express my concern with the pace of judicial confirmations in the United States Senate. Yesterday, the Senate recessed without confirming a single one of the 23 Federal judicial nominations pending on the Executive Calendar. The Federal judiciary and the American people it serves suffer the most from this unprecedented obstruction. One in eight seats on the Federal bench sits empty, and the Administrative Office of the U.S. Courts has declared that many of those vacancies constitute judicial emergencies. Despite the urgent and pressing need to fill these important posts, a minority of Senators has systematically and irresponsibly used procedural maneuvers to block or delay confirmation votes on judicial nominees – including nominees that have strong bipartisan support and the most distinguished records. The minority has even been blocking non-controversial nominees – a dramatic shift from past practice that could cause a crisis in the judiciary.
The Judiciary Committee has promptly considered my judicial nominees. Nonetheless, judicial confirmation rates in this Congress have reached an all-time low. At this point in the prior Administration (107th Congress), the Senate had confirmed 61% of the President’s judicial nominations. By contrast, the Senate has confirmed less than half of the judicial nominees it has received in my Administration. Nominees in the 107th Congress waited less than a month on the floor of the Senate before a vote on their confirmation. The men and women whom I have nominated who have been confirmed to the Courts of Appeals waited five times longer and those confirmed to the District Courts waited three times longer for final votes.
Right now, 23 judicial nominees await simple up-or-down votes. All of these nominees have the strongest backing from their home-state Senators – a fact that usually counsels in favor of swift confirmation, rather than delay. Sixteen of those men and women received unanimous support in the Judiciary Committee. Nearly half of the nominees on the floor were selected for seats that have gone without judges for anywhere between 200 and 1,600 days. But despite these compelling circumstances, and the distinguished careers led by these candidates, these nominations have been blocked.
Judge Albert Diaz, the well-respected state court judge I nominated to the U.S. Court of Appeals for the Fourth Circuit, has waited 245 days for an up-or-down vote – more than 8 months. Before becoming a judge, Diaz served for over 10 years in the United States Marine Corps as an attorney and military judge. If confirmed, he would be the first Hispanic to sit on the Fourth Circuit. The seat to which he was nominated has been declared a judicial emergency. Judge Diaz has the strong support of both of North Carolina’s Senators. Senator Burr has publicly advocated for Judge Diaz to get a final vote by the Senate. And just before the August recess, Senator Hagan went to the floor of the Senate to ask for an up-or-down vote for Judge Diaz. Her request was denied.
We are seeing in this case what we have seen in all too many others: resistance to highly qualified candidates who, if put to a vote, would be unanimously confirmed, or confirmed with virtually no opposition. For example, Judge Beverly Martin waited 132 days for a floor vote – despite being strongly backed by both of Georgia’s Republican Senators. When the Senate finally held a vote, she was confirmed to the Eleventh Circuit unanimously. Jane Stranch was recently confirmed by an overwhelming majority of the Senate, after waiting almost 300 days for a final vote. Even District Court nominees have waited 3 or more months for confirmation votes – only to be confirmed unanimously.
Proceeding this way will put our judiciary on a dangerous course, as the Department of Justice projects that fully half of the Federal judiciary will be vacant by 2020 if we continue on the current pace of judicial confirmations. The real harm of this political game-playing falls on the American people, who turn to the courts for justice. By denying these nominees a simple up-or- down vote, the Republican leadership is undermining the ability of our courts to deliver justice to those in need. All Americans depend on having well-qualified men and women on the bench to resolve important legal matters – from working mothers seeking timely compensation for their employment discrimination claims to communities hoping for swift punishment for perpetrators of crimes to small business owners seeking protection from unfair and anticompetitive practices.
As a former Senator, I have the greatest respect for the Senate’s role in providing advice and consent on judicial nominations. If there is a genuine concern about the qualifications of judicial nominees, that is a debate I welcome. But the consistent refusal to move promptly to have that debate, or to confirm even those nominees with broad, bipartisan support, does a disservice to the greatest traditions of this body and the American people it serves. In the 107th Congress, the Judiciary Committee reported 100 judicial nominees, and all of them were confirmed by the Senate before the end of that Congress. I urge the Senate to similarly consider and confirm my judicial nominees.
Back in June, President Obama made a similar plea in a meeting with Senate GOP leaders, but apparently bipartisan cooperation on something as straight-forward as filling seats in the judiciary wasn’t on their list of priorities.
(I also want to point out that while the GOP is holding up most of the 23 stalled nominees for absolutely no reason, there are a handful of nominees who certain GOP senators actively oppose. We’ve explored some of the reasons for this opposition here and here and here.)
Politico today outlines an emerging trend in judicial obstruction. While partisan battles over judicial nominees have in past years focused on the occasional appellate court judge or Supreme Court justice, these days even nominees to lower-profile district courts are fair game for partisan obstructionism. Among other problems, this doesn’t make it easy to keep a well-functioning, fully staffed federal court system:
According to data collected by Russell Wheeler of the Brookings Institution and analyzed by POLITICO, Obama’s lower-court nominees have experienced an unusually low rate of confirmation and long periods of delay, especially after the Senate Judiciary Committee has referred the nomination for a confirmation vote by the full Senate. Sixty-four percent of the district court nominees Obama submitted to the Senate before May 2010 have been confirmed — a number dwarfed by the 91 percent confirmation rate for Bush’s district court nominees for the same period.
But analysts say the grindingly slow pace in the Senate, especially on district court nominations, will have serious consequences.
Apart from the burden of a heavier case load for current judges and big delays across the federal judicial system, Wheeler, a judicial selection scholar at Brookings, says that potential nominees for district courts may think twice before offering themselves up for a federal nomination if the process of confirmation continues to be both unpredictable and long.
"I think it means first that vacancies are going to persist for longer than they should. There’s just not the judge power that there should be," Wheeler said. And private lawyers who are not already judges may hesitate to put their practices on hold during the confirmation process, he added, because "you can’t be certain that you’ll get confirmed" for even a district judgeship, an entry-level position to the federal bench.
Jeff Sessions, the top Republican on the Judiciary Committee, has been at the lead of the GOP’s obstruction of every judicial nominee who can possibly be obstructed. He told Politico that he simply wants to make sure every new federal judges passes his litmus test: "If they’re not committed to the law, they shouldn’t be a judge, in my opinion."
Sounds fair. But the problem is, of course, that Sessions’ definition of “committed to the law” is something more like “committed to the way Jeff Sessions sees the law.”
In a meeting yesterday to vote on eight judicial nominees-- five of whom were going through the Judiciary Committee for the second or third time after Senate Republicans refused to vote on their nominations--Sessions rallied his troops against Edward Chen, nominated to serve as a district court judge in California. Chen is a widely respected magistrate judge who spent years fighting discrimination against Asian Americans for the American Civil Liberties Union. But Sessions smelled a rat: Chen, he said, has “the ACLU chromosome.”
No matter how much disarray it causes in the federal courts, it’s in the interest of Sessions and the Right Wing to keep the number of judicial seats President Obama fills to a minimum. If they succeed, they keep their conservative, pro-corporate courts, tainted as little as possible by the sinister “ACLU chromosome.”
Equal pay in America needed to be put back on track after the Supreme Court’s devastating Ledbetter v. Goodyear ruling, and the Lilly Ledbetter Fair Pay Act answered that call – as the first major milestone of the Obama Administration. Still, this new law cannot on its own do the job of eliminating the wage gap. Additional tools are necessary to bring equality to the workplace and prevent further disturbing incidents like the one that befell Lilly Ledbetter. Especially in this unsteady economy, people who are struggling to pay their bills shouldn’t have to worry about whether they are being discriminated against in the workplace. We need the Paycheck Fairness Act.
Nine Democratic senators went to the Senate floor today to call for up-or-down votes on the confirmation of 20 federal judicial nominees, many of whom have been waiting months to be confirmed and several of whom passed out of the Judiciary Committee with little or no opposition from members of either party. The Senators who spoke on the floor today included Mark Udall (CO), Michael Bennet (CO), Amy Klobuchar (MN), Herb Kohl (WI), Sheldon Whitehouse (RI), Jack Reed (RI), Ben Cardin (MD), Tom Carper (DE), and Ted Kaufman (DE).
The explanation from Senator Sen. Jeff Sessions, one of the architects of the obstruction? "Things do not always go as smoothly as you would like."
Among the nominees Democratic senators sought votes on were several whose nomination sagas we've been following. There were Albert Diaz and James Wynn of North Carolina who would be be, respectively, the first Latino and fourth African American appointed to the Fourth Circuit Court of Appeals (and who garnered one no vote between the two of them in committee). There was John McConnell of Rhode Island, who has come under attack from the powerful lobbyists at the Chamber of Commerce because of his record of defending consumers in suits against large manufacturers. There was William Joseph Martinez, the Colorado judge who has come under attack for having sat on an advisory panel for the ACLU.
And then there was Goodwin Liu. Sen. Ben Cardin told a Netroots Nation panel last week that Liu's hearing with the Judiciary Committee was "one of the most impressive confirmation hearings we've ever had." Richard Painter, who served as a lawyer in the Bush White House, called him "a fine choice for the federal bench." Yet, inexplicably, Liu, a law professor at Berkeley who is respected by legal scholars across the political spectrum, has become a flash point for Republican obstruction.
It's time for the Senate GOP to stop stalling votes on these critical nominations and come clean about their true priorities for the courts.
Many thanks to the Senators who took to the floor today to shine a spotlight on this unprecedented and senseless obstruction.
As the questioning in Elena Kagan's confirmation hearing finally gets underway, right-wing groups are busy releasing statements and reports claiming she is everything from a "clear and present danger to the Constitution" to a sign of the end times.
The Senate Judiciary Committee just concluded the first day of Elena Kagan's hearings to replace Justice Stevens on the Supreme Court. Our summary of Day 1: She may not be a Constitutionalist, but she sure plays one on TV.
As we expected, Kagan followed in Justice Sotomayor's footsteps and disguised herself as the next John Roberts, and Democratic Senators did their best to help her hide from her record of extreme activism on abortion, 2nd Amendment rights, and the scope of government power. According to Kagan, "what the Supreme Court does is to safeguard the rule of law, through a commitment to even-handedness, principle, and restraint." In the immortal words of The Who, "Don't get fooled again."
Chaplain Klingenschmitt has contracted with a team of investigative journalists including Brian Camenker, Amy Contrada and Peter LaBarbera to investigate and report breaking news about Supreme Court nominee Elena Kagan.
While serving as Dean of Harvard Law School, Kagan's administration demanded and forced Blue-Cross, Blue-Shield to cover sex-change operations as an "equal right" paid benefit, harming gender-confused students, as confirmed in 2006 and 2008 by Harvard Crimson newspaper articles.
Kagan also offered sympathetic ear to lesbian group Lambda's Transgender Task Force demand to force all women to share public bathrooms and locker-rooms with cross-dressing men, which is now part of Harvard's dormitory policy, according to the report.
"This is further proof Elena Kagan cannot be trusted to impartially rule on Obamacare or bathroom bills like ENDA, since she believes sin is a Constitutional right," said Chaplain Klingenschmitt, "but rights come from God, who never grants the right to sin."
Because if anything is going to clarify these confirmation hearings, is a report written by a bunch of militantly anti-gay activists like Klingenschmitt, Camenker, and LaBarbera ... and now that is exactly what we have:
Supreme Court nominee Elena Kagan is committed to the radical campaign pushing acceptance of homosexuality and transgenderism as “civil rights." Her unprecedented activism supporting that view as Dean of Harvard Law School (2003-2009) calls into question her ability to judge fairly and impartially on same-sex “marriage” and other homosexuality- or transgender-related issues that may come before the nation’s highest court.
Kagan’s record while Dean of Harvard Law School (HLS) demonstrates her agreement with the goals of the radical GLBT (gay lesbian bisexual transgender) movement and her solidarity with those activists. Working hand in hand with students to expel military recruiters in protest over the Armed Forces’ ban on homosexuals (a “moral injustice of the first order,” she wrote) is only the most obvious example of Kagan’s passionate dedication to this controversial and immoral agenda.
Kagan’s celebration and active promotion of the radical homosexualist and transgender worldview has profound implications. As a Supreme Court Justice, she could be expected to overturn traditional law and understandings of family, marriage, military order, and even our God-given sex (what transgender radicals call “gender identity or expression”). She is a most dangerous nominee who must be opposed by all who care about religious freedom, the preservation of marriage and traditional values.
There should be grave concern over Kagan’s issues advocacy concerning “sexual orientation.” Even before her nomination to the Court, her enthusiastic and committed pro-homosexuality activism at Harvard (including her recruitment to the faculty of radical “gay” activist scholars like former ACLU lawyer William Rubenstein and elevation of radical out lesbian Professor Janet Halley) was highly significant for the nation. Now, it is imperative that Senators and the U.S. public gain an accurate understanding of the radical, pro-homosexual environment that was Kagan’s home at Harvard – and the GLBT legal agenda that Kagan herself helped foster as Dean.
But that is actually quite reasonable compared to this statement from Tim LaHaye and Craig Parshall claiming that Kagan "presents a danger as old as the book of Genesis" and that her confirmation could be a sign of the End Times:
First, if she becomes a Supreme Court justice, she could be the all-important fifth vote in favor of interpreting our Constitution, not according to the vision of our Founding Fathers, but from an international law standpoint, a concept that would have seemed treasonous to our Founders. Three justices on the Court have already relied on foreign law in their opinions: Justices Kennedy, Breyer and Ginsburg. Recently-installed justice Sotomayor has praised Ruth Bader Ginsberg's penchant for international law, so we can assume she will be a legal globalist as well. Five justices create a majority and with Kagan on board they could begin radically steering us away from view of the Constitution that honors our Judeo-Christian heritage and founding.
Second, if this happens, it will usher America into a new age of global law. With Elena Kagan on the Supreme Court, international legal standards could well be imposed on Americans by the High Court's legal globalists, even without the Senate approving a specific international treaty. In our new novel, Edge of Apocalypse, we show how this trend might create a modern-day legal nightmare for conscientious Christians. We need only to turn to Genesis chapter 11 to see how God opposed the ancient attempt at global unification: the Lord declared the tragic result that would follow if a centralized group of fallen men were to consolidate an unlimited, unrestrained power over the planet.
Keep your eyes on the Supreme Court's view of global law. It could be one of the most telling 'signs of the times.'
Last week, People for the American Way Foundation signed on to an amicus brief urging the Fifth Circuit Court of Appeals to overturn a lower court’s decision allowing a Louisiana middle school to segregate classrooms by sex. The amicus brief, led by the National Women’s Law Center, argued that sex-segregated classrooms are harmful to members of both sexes and violate the Fourteenth Amendment’s Equal Protection Clause.
Parents of the Rene A. Rost Middle School were informed in 2009 that classes for the school would be segregated by sex for the coming fall semester. A parent whose children were placed in sex-segregated classes without receiving constitutionally mandated coeducational options objected and was told that because the coed classes had already been filled, the only option left for one of her daughters was a special needs class. Represented by the ACLU, the parent sued and the trial court dismissed the case by wrongly shifting the burden of proof, requiring the victim to prove discrimination by demonstrating an “intent to harm” - a new standard that is almost impossible to meet and not recognized by the Supreme Court.
As the Supreme Court held in its 1996 decision requiring the Virginia Military Institute to admit women, for a state to permissibly classify on the basis of sex, it “must carry the burden of showing an exceedingly persuasive justification for the classification.” Additionally, the state must not “rely on overbroad generalizations about the different talents, capacities, or preferences of males and females.” Simply put, the Court has found that a state must have a very good reason before it decides to discriminate on the basis of sex.
NWLC’s brief cites evidence that suggests a total lack of adequate justification for the school’s policy, both from a legal and practical perspective, specifically a flawed study performed by Rost Middle School’s principal. Simply put, if the Fifth Circuit were to uphold the District Court’s decision, it would ignore almost 30 years of settled Equal Protection law in order to endorse a discriminatory policy that is harmful to all students regardless of gender.
Matt Coles at the ACLU has written an interesting blog post outlining some major reasons why the repeal of Don’t Ask Don’t Tell is so important. One of his points especially resonated after last week’s firestorm around Republican Senatorial Candidate Rand Paul:
Second, we need to get rid of DADT because it is a blot on the Constitution. DADT enshrines in federal law a principle which had been rejected in most other contexts: that discrimination could be justified by the prejudice of others. In the 60s, businesses in the South said that the prejudice their customers had against black people ought to give them an exemption from discrimination laws. Congress and the courts disagreed. In the 80s, government agencies actually defended discrimination on the basis that neighbors (or others) had strong negative feelings about disabled people, "hippies" and even older people (in Miami of all places). Again, the courts disagreed. But in the Congress that passed it, the single justification for Don't Ask, Don't Tell was not that gay members of the Armed Forces couldn't do their jobs. It was rather that heterosexual service members would be so unnerved by the mere presence of gay people that they would be unable to perform theirs. As long as DADT endures, the idea that your rights can't be taken away just because someone else doesn't like you is hardly secure.
Last week, Rand Paul struggled to defend his view that the government should allow private enterprises to discriminate against people based on race, gender, or sexual orientation. He was forced to backtrack on his position after his statements were shot down by civil rights groups, the media, and members of his own party. His reasoning essentially amounted to the idea that the government has more of a duty to protect the right to discriminate than to protect those who are discriminated against. Sound familiar?
That’s a false and outdated interpretation of the Constitution—one that didn’t hold water in 1964, and doesn’t today.
(And, as a sidenote, check out the American Prospect’s takedown of another one of Paul’s perversions of the Constitution).
As we mark Mother’s Day this Sunday, think about taking action to support women’s rights. Ask your Senators to support the Paycheck Fairness Act. Be sure to thank them if they’re already cosponsors.
Equal pay in America needed to be put back on track after the devastating Ledbetter ruling, and the Lilly Ledbetter Fair Pay Act answered that call – but it wasn’t the last word. The Paycheck Fairness Act would move us even further forward by providing the tools necessary to enforce equity in the workplace and prevent further disturbing incidents like the one that befell Lilly Ledbetter. It ensures that employers would not have the incentive to continue to discriminate against workers like Lilly Ledbetter, and in doing so actually increases employer incentives for pay equity. It would also prohibit retaliation against workers who ask about employers’ wage practices and increase educational outreach to employers and employees about proper pay practices.
We are seeing one witch hunt after another led by right-wing opinion leaders, media outlets, organizations and even members of Congress. They pursue personal smear campaigns, grasping at straws to create "guilt by association" and challenge the legitimacy, allegiances and patriotism of their opponents.
Remember the Bush-era attacks on the patriotism of anyone who questioned the administration's policies? Those look tame in comparison. Now, with Democrats in power, the insinuation is that the president, his advisers and his political allies are actively trying to destroy America from within and, despite being elected by the people, are inherently unfit to lead.
We stand up to right-wing bullies every day, and we want to help all courageous Americans do the same. People For the American Way is ready to confront this new McCarthyism head-on. In the coming days and weeks we will be exposing the Right's tactics and rhetoric and creating tools to help activists combat them. We will educate Americans about the insidious nature of what we see happening in this country and impress upon Americans the urgency of stopping it.
In a 1954 Senate hearing, Army head counsel Joseph Welch famously put Senator Joseph McCarthy in his place, saying, "Have you no sense of decency, sir, at long last? Have you left no sense of decency?"
In that great moment in American history, Welch called McCarthy out for his "cruelty" and "recklessness." The crowd at the hearing erupted in applause and, in that instant, McCarthy's power started its decline.
It's time for all of us to ask that same question -- Have you no sense of decency? -- of those on the Right who have resurrected McCarthy's tactics.
Radical Right activists ("Birthers," "Tea Baggers"), paranoid anti-government extremists and irresponsible media personalities like Glenn Beck and Rush Limbaugh (and media outlets like FOX News) -- in many cases with the backing of entrenched right-wing and corporate interest groups -- have simultaneously raised the ominous, not to mention incompatible, specters of socialism, communism, fascism, Nazism and infiltration by foreign elements. This has created a backdrop of suspicion in which McCarthy-like intimidation, guilt by association and character assassination thrive.
In the last two weeks alone, we've seen:
53 right-wing members of Congress sign a letter to the President requesting that he fire Kevin Jennings who heads the office at the Department of Education tasked with keeping schools safe, for "promoting homosexuality and pushing a pro-homosexual agenda in America's schools." Jennings, a gay man and founder of the Gay, Lesbian and Straight Education Network (GLSEN), has been the target of right-wing groups like Family Research Council for months. He was also the victim of false accusations that he broke the law in counseling an underage student when he was a teacher - and the congressional letter included that allegation even though the office of the letter's primary signer, Rep. Steve King, had been made aware that the story was wrong.
Glenn Beck, whose "6 degrees of Obama" guilt-by-association attacks have generally lacked any shred of coherence, has been going after White House Communications Director Anita Dunn for once offhandedly referring to Mao Tse-tung (along with Mother Teresa) as one of her favorite political philosophers. He has repeatedly implied that this means she must endorse his heinous deeds and personal ideology while remaining conspicuously silent about the fact that many icons of the conservative movement have approvingly cited the political writings and tactics of communists like Mao, Lenin and the Viet Cong.
Just this past Sunday, the notoriously right-wing editorial page of the Washington Times savaged Judge Edward Chen, who is nominated to the Northern District Court of California, opening the piece with the sentence, "Another day, another Obama nominee who doesn't appear to love America." For its 'evidence,' the editorial cites: Chen's acknowledgement of what we all know -- that a judge's life experiences affect how he or she views a case (shades of the attacks against Sonia Sotomayor); the fact that he expressed concern -- as many thinking Americans did -- about potential recriminations for Muslim Americans following the tragedy of September 11; and his former work with the ACLU.
Of course, the use of race-baiting, red-baiting, gay-baiting and lies to characterize people as enemies of America doesn't stop with attacks on administration officials and nominees. There have been many more examples, and sadly, there will undoubtedly be many more to come.
That's why we must all be vigilant. We must call out fear-mongering and intimidation in government, in the media and in our own communities. And when we confront it, we must ask the vital question, "Have you no sense of decency?"
People For the American Way is getting out in front of this troubling and pervasive new trend. Through research, educational materials and activism tools, we'll give you what you need to stand up to the Right and McCarthyism.
Almost 100 people testified on Monday, October 26 in a 7 ½ hour hearing on marriage equality legislation moving in the District of Columbia council. Another 169 people who signed up will testify on Monday, November 2. After that, marriage equality will move from committee to the full council and should be passed into law by the end of the year.
The hearing was inspiring and invigorating. I testified in support of the bill on behalf of People For the American Way and as a DC resident hoping to get married next year. I was at the halfway point of the hearing but stayed until almost 11 p.m. to hear everyone speak.
The good news is that pro-equality speakers, and pro-equality clergy, vastly outnumbered opponents. Included were other professional advocates from the Human Rights Campaign and the ACLU; a dozen pro-equality religious leaders, men and women representing many faiths, races, and ethnicities, among them Rev. Dennis Wiley of Covenant Baptist Church and Rev. Robert Hardies of All Souls Church, Unitarian, leaders of DC Clergy United for Marriage; pro-equality leaders from the local Democratic and Republican political parties; and a long list of DC residents, LGBT and not, testifying on behalf of themselves, their partners, their families and friends, and their children.
There were many moving moments: a young gay couple, one of them a vet, tightly holding hands and fighting back tears to testify; a heterosexual married man who testified with his seven-year old daughter at his side, because she already understands that it's wrong that the gay people in her life, including the parents of her best friends, aren't treated equally under the law; dozens of women and men speaking the truth about their lives, their eagerness to protect their loved ones, and their desire to be treated equally in the city that is their home.
Opposing the measure were Bishop Harry Jackson, who leads the city's anti-equality forces, a handful of local civic activists, and a group of officials from the Catholic archdiocese of Washington and Catholic Charities. The most interesting back-and-forth of the night took place between the panel of Catholic leaders and Councilmembers David Catania and Tommy Wells over the scope of the religious liberty protections in the bill. Councilmember Catania had said earlier in the day that he was willing to consider changes to those provisions, but he and Wells were deeply skeptical of demands that Catholic Charities be given carte blanche to discriminate against same-sex couples in provision of services and treatment of its employees when 75 percent of its revenues are from public funds. Notably, a few panels earlier, Professor Joseph Palacios from Georgetown University had testified in favor of the legislation, citing recent research showing strong support for marriage equality among lay Catholics nationally and even stronger support in the District of Columbia.
The legislation is assured of passage: it was co-sponsored by nine of the 12 councilmembers, and another councilmember announced his support at the hearing. DC Mayor Adrian Fenty has pledged to sign it. Activists are working with congressional leaders to make sure that the legislation survives the legislative review period that DC's laws are subjected to. The council's overwhelming support for the measure was a source of frustration to some of the anti-equality speakers, who angrily denounced the hearing as a sham and demanded that the issue be put to a public vote. Earlier in the day, Jackson and other anti-equality speakers urged the District's Board of Elections to allow them to put marriage equality before the voters, even though the board had ruled earlier this year that doing so would violate DC law against putting human rights protections on the ballot.
This week, the Supreme Court heard arguments in Salazar v. Buono, a case involving the display of a cross on top of Sunrise Rock in the Mojave National Preserve, which is federal property. (People For the American Way Foundation joined an amicus brief in this case filed by Americans United for the Separation of Church and State and other religious and secular non-profits).
By now, you've probably read about Justice Scalia's angry response when a Jewish lawyer had the audacity to point out that Jews don't use Christian crosses to honor their dead.
Mr. Eliasberg [the ACLU Foundation attorney] said many Jewish war veterans would not wish to be honored by "the predominant symbol of Christianity," one that "signifies that Jesus is the son of God and died to redeem mankind for our sins."
Justice Scalia disagreed, saying, "The cross is the most common symbol of the resting place of the dead."
"What would you have them erect?" Justice Scalia asked. "Some conglomerate of a cross, a Star of David and, you know, a Muslim half moon and star?"
Mr. Eliasberg said he had visited Jewish cemeteries. "There is never a cross on the tombstone of a Jew," he said, to laughter in the courtroom.
Justice Scalia grew visibly angry. "I don't think you can leap from that to the conclusion that the only war dead that that cross honors are the Christian war dead," he said. "I think that's an outrageous conclusion."
When I read this, my mind immediately went to … crayons. Yes, crayons.
When I was five, I had a somewhat peach-colored crayon that Crayola called "flesh." I'm white, and the crayon was close to my own skin color. It didn't occur to me that Crayola was assuming that all people are white. I didn’t need to think about it – After all, I was part of the majority. Later on, of course, I realized how this nomenclature marked African Americans as other, as outsiders in our society.
But not everyone who is a member of the in group has the capacity to understand what it is to be on the other side. Justice Scalia certainly doesn't.
For Justice Scalia, the cross has never had anything but positive connotations. From the perspective of his life experience, how could a cross grave marker be anything but an honor?
But in the history of America, Jews and other non-Christians have experienced the cross at times as neutral, and at times as a symbol of exclusion and persecution. Yet when someone points out that Jews do not see the cross as a symbol of honor, Justice Scalia gets angry.
In analyzing how the law impacts people, a wise judge considers people who are different from himself. A wise judge has empathy. Justice Scalia has none.
The Supreme Court's 5-4 decision in Hobby Lobby says your boss's religion trumps your rights. We need to change the majority on the Supreme Court. But we can't do that if Republicans take over the Senate.