As People For the American Way has noted before, Senate Judiciary Committee Republicans have exercised their prerogative to delay committee consideration of every single one of President Obama's judicial nominees by at least one week, with only four exceptions. More than seventy of these nominees were confirmed without opposition.
Republicans have no good explanation for this. They are doing this simply to obstruct. The routine use of this hold, without cause and almost without exception, is unprecedented. It is part of a larger set of procedural roadblocks the Senate GOP uses to obstruct confirmation of qualified nominees whose only "fault" is that they were nominated by a Democratic president.
This morning, the Senate Judiciary Committee was scheduled to vote on the nominations of eleven judicial nominees, five of whom were scheduled for the first time. To the surprise of no one, they, too, fell victim to this form of partisan obstruction.
There is no reason that Republicans should have delayed committee consideration of Second Circuit Court nominee Christopher Droney or district court nominees Robert D. Mariani, Cathy Bissoon, Mark R. Hornak, and Robert N. Scola, Jr. All five appeared before the committee last month to answer questions. However, of the eight Republican members of the committee, only Ranking Member Grassley showed up for the hearing, where he spent just a few minutes asking questions of each nominee. Although all committee senators had an opportunity to ask follow-up questions in writing, no Republican but Senator Grassley did so.
So there really is no good reason for Senate Republicans to have exercised their prerogative to hold the vote over by a week for any of these nominees. But Republican obstructionism has become the rule: Highly qualified judicial nominees are blocked solely because they were nominated by a Democratic president.
Committee Republicans should be asked what exactly they need to learn about these nominees that they don't know already ... and, if they have questions, why they chose not to avail themselves of the many opportunities they have had to ask them.
More importantly, they should be asked why they are actively sabotaging the confirmation process when there are judicial crises all around the country. Americans need access to the courts, not partisan mudfights.
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.
In addition to our recent fact sheet, PFAW has just sent its letter to the Senate urging the bill’s passage.
November 15, 2010
United States Senate
Washington, DC 20510
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
Executive Vice President for Policy and Program
(1) A press release announcing the poll results is available at http://www.nationalpartnership.org/site/News2?page=NewsArticle&id=24776&security=2141&news_iv_ctrl=1741. Visit http://www.nationalpartnership.org/site/DocServer/5-2010_Poll_Data_One_Pager.pdf?docID=6681 for additional information.
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.
It was way back in January 2009 that the House passed the Paycheck Fairness Act. Please join American Association of University Women, American Civil Liberties Union, the National Committee on Pay Equity, National Women’s Law Center, and hundreds of other organizations nationwide in calling on the Senate to do the same and send this important legislation to the President’s desk.
In yet another decision highlighting the Roberts Court's tendency to favor corporations over individual citizens, the Supreme Court on Monday made it more difficult for employees and consumers challenging their contracts to seek justice in court.
In Rent-A-Center v. Jackson, Antonio Jackson filed suit in a Nevada federal district court against his employer, Rent-A-Center, claiming that he had suffered racial discrimination and retaliation. Rent-A-Center tried to dismiss the lawsuit and force Jackson to move the dispute to arbitration, as was required by Jackson’s employment contract. The district court agreed with the company, but the Ninth Circuit court reversed, holding that when a person opposing arbitration claims that he or she could not have meaningfully consented to the agreement, the question of whether the original contract was fair must be decided by a court.
In a 5-4 opinion written by Justice Scalia, the Supreme Court overturned the Ninth Circuit's ruling, saying that Mr. Jackson failed to specifically challenge the arbitration provision in the agreement that requires challenges to the validity of the entire agreement to also be decided by an arbitrator. Previously, if an employee challenged certain aspects of a contract that included a binding arbitration clause but not necessarily the arbitration clause itself, the dispute would go to the arbitrators. However, the Court's decision expanded upon that to hold that even if an employee argues that the entire contract – including the arbitration clause – was unconscionable and therefore unenforceable, that person is still denied access to the courts unless he specifically and separately challenged the arbitration clause. In other words, arguing that the entire contract is illegitimate is not enough.
Treated as contracts, arbitration clauses waive one’s rights to go to court, meaning that any disputes must instead be settled through private arbitration. Often built into the fine print of a contract, these clauses are very common in the consumer context and usually there is little choice but to sign or not sign the contract. Most people at some point or another will become bound to an agreement with an arbitration clause, perhaps as part of a cell phone contract, a health insurance plan, or an employment contract. Although they are ostensibly for the benefit of both parties, they are primarily drafted to protect companies from litigation, as it is often too expensive for a claimant to even initiate the arbitration proceedings, much less pay the arbitrator’s hourly fees. In a telling signal of what a majority of the Court today thinks about these practical obstacles for ordinary Americans, Justice Scalia, in oral arguments, dismissed people who sign arbitration agreements as “stupid.”
Forced arbitration is an increasing problem as these clauses become standard parts of everyday contracts, but they are particularly troubling in civil rights cases such as this one. Mr. Jackson’s claim that his employer discriminated against him based on his race was brought under section 1981 of the Civil Rights Acts – legislation that was passed specifically to ensure that victims of such discrimination would have access to the federal courts. Instead, because Mr. Jackson signed an employment agreement - an agreement that he had little choice but to sign if he wanted the job - he is now precluded from asserting a violation of those rights and seeking justice in court.
As confirmed in Justice Stevens’ dissent, neither party even asked the Court for such a heightened standard of pleading, showing how once again, the Roberts Court is going out of its way to protect corporations and prevent real citizens - workers and consumers - from being able to access the federal courts.
With everyone talking about the retirement of Justice David Souter, the Radical Right’s propaganda machine is set to max.
Right Wing Watch is reporting on the Right’s reaction. One of the more laughable claims comes from Wendy Long of the Judicial Confirmation Network:
The current Supreme Court is a liberal, judicial activist court. Obama could make it even more of a far-left judicial activist court, for a long time to come …
Calling the current Court liberal is like calling Mitt Romney consistent – you can’t say it with a straight face. In fact, no less an authority than Justice John Paul Stevens has pointed out that “every judge who’s been appointed to the court since Lewis Powell has been more conservative than his or her predecessor,” with the possible exception of Justice Ginsburg.
But, for the sake of argument, let’s review some of the highlights of the current “liberal” Supreme Court.
In order to achieve their desired ideological results, the Far Right justices have recklessly toppled precedents, or even ignored them while pretending not to, with alarming frequency. For example, the restrictive federal abortion ban upheld by the Roberts Court was essentially identical to one the Court had struck down before Roberts and Alito joined the bench. Unfortunately, extreme Right Wing ideology trumped the rule of law.
Voting rights have also come under attack. The Roberts Court upheld the constitutionality of the most restrictive voter ID law in the country, an Indiana law requiring people to present a currently valid, government-issued photo ID in order to vote. This imposes a substantial burden on the elderly who don’t drive, college students, and the poor who don’t own cars. Indiana was unable to identify a single case of in-person voter fraud occurring in its history. That didn’t stop the Roberts Court from upholding a restriction that kept many Americans from being able to go to the polls on Election Day and cast a vote.
Even our very access to the courts has come under attack from the “liberal” Supreme Court.
Lilly Ledbetter was a victim of sex discrimination effectively barred from the courthouse. Late in her career, she learned that she had, over the years, been subjected to salary discrimination on the basis of her sex, and she sued. A jury found that she had been illegally discriminated against. Yet a 5-4 Right Wing majority held that she should have sued within 180 days of the initial discriminatory conduct—even though she didn’t learn that she was being discriminated against for more than a decade.
The Court also closed the courthouse door in Riegel v. Medtronic, holding that patients injured by a defective medical device cannot sue for damages for violations of state common law if it was approved for marketing by the Food and Drug Administration and made to the agency’s specifications. To reach this result, the Court had to interpret a federal law in a manner directly contrary to how its Senate sponsor said it was intended.
Keith Bowles was yet another victim denied his day in court. After Bowles was denied relief in federal district court, the judge informed him that he had 17 days to file an appeal. Unbeknownst to him, the rules really gave him only 14 days. So when Bowles, relying on the federal judge, filed on day 16, a narrow 5-4 Supreme Court majority said that he had filed too late. In so doing, the Court majority overruled clear and principled precedent that protected people in his situation. In dissent, Justice Souter correctly wrote that “it is intolerable for the judicial system to treat people this way, and there is not even a technical justification for this bait and switch.”
The danger from right-wing justices was clear in Boumediene v. Bush, a case related to the then-President’s claim of virtually unlimited executive powers to conduct the war on terror. The case involved the constitutionality of the Military Commissions Act of 2006, which eliminated federal court jurisdiction over habeas corpus claims by certain foreign detainees. The Court rebuked President Bush’s vision of the presidency as an office of limitless power and declared that the president of a free nation cannot simply lock people up and throw away the key like some third-world dictator. Chillingly, with Chief Justice Roberts and Justices Alito, Scalia, and Thomas dissenting, the case was decided by a single vote, 5-4. One more hard-right justice on the Court, and the decision would likely have gone the other way.
That’s why it’s crucial to have justices who are committed to our core constitutional values of justice and equality under the law.
It is of the utmost importance that Justice Souter be replaced by a powerful advocate for our Constitution—a justice in the mold of great jurists like Thurgood Marshall and William Brennan. Our nation cannot afford anything less.