The Senate is currently debating the nomination of Goodwin Liu to the Ninth Circuit Court of Appeals. Liu is a phenomenally well qualified legal scholar who has support across the political spectrum, as well as among a majority of U.S. Senators. However, because Senate Republican leaders are putting politics over all else, they are set on stymieing the majority and filibustering the nomination. A cloture vote to end this stalling tactic may occur as soon as tomorrow morning.
People For the American Way supports the nomination. We sent a letter this morning that says much of what we have been saying in person on the Hill for over a year. Among other things, the letter states:
Perhaps the most powerful testament to Professor Liu's superb qualifications is the extensive support his nomination has garnered from across the ideological spectrum. It is not only progressive and moderate legal thinkers who admire his work: He has received endorsements from conservatives such as Ken Starr, Solicitor General under President Ronald Reagan; Richard Painter, the chief ethics counsel for President George W. Bush; and Clint Bolick, Director of the conservative Goldwater Institute.
When a judicial nominee attracts such strong support independent of political ideology, you can be confident that he is exactly the kind of mainstream, talented, and fair jurist we need on the federal bench.
Although Liu has the support of a majority of senators, his opponents are working to block his nomination from receiving an up or down vote. Their claim is that Liu's nomination constitutes one of those rare "extraordinary circumstances" warranting a filibuster, under the benchmark developed by the Gang of 14 during the George W. Bush Administration.
By no measure can this nomination be considered to even approach "extraordinary circumstances." Even a cursory look at President Bush's nominees who were approved using that test – those whose nominations were not considered to constitute "extraordinary circumstances" – makes clear that Liu's nomination must be permitted to go forward.
- Pricilla Owen's dissenting positions on the Texas Supreme Court were so extreme that even her fellow conservatives on the Supreme Court in different cases described them with phrases like "an unconscionable act of judicial activism," "disregard of the procedural elements the Legislature established," "def[ying] the Legislature's clear and express limits on our jurisdiction," and "inflammatory rhetoric." Her nomination was not considered extraordinary, and the Senate afforded her an up-or-down vote for a seat on the Fifth Circuit, where she is now serving.
- Thomas Griffith pushed to severely curtail laws ending discrimination against women and girls' participation in school athletic programs, declaring "illegal" a test upheld by all eight of the nation's Circuit Courts of Appeals that had considered the issue. He was also suspended from the DC Bar for failure to pay mandatory Bar dues yet continued to practice law in the District during that time. Published reports and an examination of Utah law indicated that he had been engaged in the unauthorized practice of law in Utah for the four years prior to his nomination. Nevertheless, the Senate did not consider Griffith's nomination extraordinary, and he received an up-or-down vote confirming him to a seat on the DC Circuit Court of Appeals.
- Janice Rogers Brown criticized opposition to the Lochner decision, which began the period when the Supreme Court issued its most pro-corporate rulings—rulings that struck down laws requiring minimum wages, regulating working hours and conditions, and banning improper business practices. In addition, despite several Supreme Court rulings to the contrary, she explicitly suggested that Title VII of the 1964 Civil Rights Act is unconstitutional. Despite this record, her nomination was not considered an "extraordinary circumstance," and the Senate was allowed to cast an up-or-down vote, confirming her to the DC Circuit Court of Appeals.
- William Pryor called Roe v. Wade "the worst abomination of constitutional law in our history" and urged Congress to consider repealing or amending Section 5 of the Voting Rights Act. Despite the significant opposition that these and other extreme positions garnered, his nomination was not filibustered, and he was confirmed to the Eleventh Circuit Court of Appeals.
Each of these nominees attracted substantial controversy and was opposed by numerous civil rights and civil liberties groups, but not one was found to constitute "extraordinary circumstances."
The claim that Goodwin Liu is out of the mainstream as compared to any of these nominees simply does not bear scrutiny. In fact, a fair reading of his work makes clear that Liu is well within the judicial mainstream.
By any standard articulated by either party, Goodwin Liu's nomination deserves a vote on the Senate floor, and he should be confirmed to the Ninth Circuit Court of Appeals.
Tomorrow, we will learn which Republican senators are willing to toss logic, consistency, principles, and the good of the nation's court system out the window in order to score political points against a Democratic president.
The Supreme Court issued its decision in Staub v. Proctor Hospital today, addressing whether an employer may be held liable for employment discrimination based on the discriminatory animus of an employee who influenced, but who did not make, the ultimate employment decision.
Although the case involved the Uniformed Services Employment and Reemployment Rights Act (USERRA), that statute's similarity to Title VII means the outcome of this case could affect people's ability to fight against a variety of different types of employment discrimination. Both statutes state that unlawful discrimination has occurred if bias was a "motivating factor" behind an employment decision, even if other, legitimate reasons existed.
The Supreme Court ruled today for the fired employee. Justice Scalia wrote the majority opinion, joined by Chief Justice Roberts and Justices Kennedy, Ginsburg, Breyer, and Sotomayor.
The Court held that if a worker's supervisor is motivated by bias and intentionally takes steps to cause the worker to be penalized in some way, which then results in the worker being penalized, then the employer is liable, even if someone else who is free of bias actually carries out the penalty.
The hospital was supported by Big Business interests in an amicus brief filed by the U.S. Chamber of Commerce. They had argued that as long as the person who made the actual firing decision was not biased and had made an independent investigation of the facts, then the company could not be held liable for the discriminatory actions leading up to that point. This interpretation, if accepted, could potentially have opened a loophole in anti-discrimination statutes, one where corporations could maneuver their internal processes to shield themselves from liability for unlawful employment decisions.
However, as SCOTUSBlog reports:
[T]he Court majority rejected the hospital's argument that, since the supervisor who made the final decision actually did her own investigation before acting, that should neutralize the effect of the other supervisors' bias and get the hospital off the hook. If the biased supervisors' intent fit into the scenario laid out by the Scalia opinion, the Court said, an investigation by the final decision-maker would not remove liability.
This defeat for the Chamber of Commerce is a victory for workers across the country.
Attorney General Eric Holder has announced that the Department of Justice will no longer defend Section 3 of the Defense of Marriage Act in court because it is unconstitutional. This is the provision prohibiting federal recognition of the marriages of gay or lesbian couples. As if that wasn't big enough news by itself, DoJ has concluded that legal classifications based on sexual orientation, like those based on race, sex, national origin, and religion, should be subject to a higher level of judicial scrutiny.
While the Department has previously defended DOMA against legal challenges involving legally married same-sex couples, recent lawsuits that challenge the constitutionality of DOMA Section 3 have caused the President and the Department to conduct a new examination of the defense of this provision. In particular, in November 2010, plaintiffs filed two new lawsuits challenging the constitutionality of Section 3 of DOMA in jurisdictions without precedent on whether sexual-orientation classifications are subject to rational basis review or whether they must satisfy some form of heightened scrutiny. Windsor v. United States, No. 1:10-cv-8435 (S.D.N.Y.); Pedersen v. OPM, No. 3:10-cv-1750 (D. Conn.). Previously, the Administration has defended Section 3 in jurisdictions where circuit courts have already held that classifications based on sexual orientation are subject to rational basis review, and it has advanced arguments to defend DOMA Section 3 under the binding standard that has applied in those cases.
These new lawsuits, by contrast, will require the Department to take an affirmative position on the level of scrutiny that should be applied to DOMA Section 3 in a circuit without binding precedent on the issue. As described more fully below, the President and I have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of DOMA is unconstitutional.
This is the first recognition by the United States government that gays and lesbians have suffered a long history of discrimination so bad that it makes suspect any laws that treat people differently based on sexual orientation. Moreover, that discrimination continues today and limits their political influence.
[T]he adoption of laws like those at issue in Romer v. Evans [prohibiting the state from passing civil rights protections for gay people] and Lawrence [laws making their private sexual conduct a crime], the longstanding ban on gays and lesbians in the military, and the absence of federal protection for employment discrimination on the basis of sexual orientation show the group to have limited political power and "ability to attract the [favorable] attention of the lawmakers." Cleburne, 473 U.S. at 445. And while the enactment of the Matthew Shepard Act and pending repeal of Don't Ask, Don't Tell indicate that the political process is not closed entirely to gay and lesbian people, that is not the standard by which the Court has judged "political powerlessness." Indeed, when the Court ruled that gender-based classifications were subject to heightened scrutiny, women already had won major political victories such as the Nineteenth Amendment (right to vote) and protection under Title VII (employment discrimination).
The Attorney General's announcement notes that it will continue to enforce DOMA until it is repealed by Congress or struck down definitively by the courts. In addition, it will work to ensure that Congress, should it wish, has the opportunity to defend the law in court since the Administration cannot in good conscience do so. (This would presumably avoid a situation like the one in California, where the state refused to pursue an appeal of the district court ruling against Proposition 8, leaving in doubt whether anyone has standing to do so.)
Miriam Regalado and her fiancé Eric Thompson both worked at North American Stainless. In 2003, after Regalado filed a sex discrimination complaint against the company, it fired her fiancé, Thompson, in retaliation. The Supreme Court is now considering whether Title VII gives Thompson the right to sue the company. While the parties disagree on whether Thompson can sue, they agree that Regalado, the one who was being retaliated against, could sue the company for firing her fiancé.
As noted in a previous blog post, the U.S. Chamber of Commerce filed an amicus brief taking a far more extreme position: There was no unlawful retaliation in the first place, because the company never altered the working conditions of the woman who filed the initial complaint. A company is completely within its rights to intimidate its workers by firing the family members of anyone who dares assert their rights under Title VII.
Unfortunately, it turns out that the Chamber is not alone. SCOTUSBlog reports that during oral arguments, Justice Scalia actually chided the company's attorney for acknowledging that a company can't retaliate against an employee for exercising her Title VII rights by firing her fiancé.
Congress specifically wrote a prohibition against retaliation into Title VII to ensure that workers would not be bullied or threatened into surrendering the rights guaranteed by that law. Congress recognized that without this protection, the rest of the statute would be meaningless. The Supreme Court has previously made clear that the primary purpose of the anti-retaliation provision is "[m]aintaining unfettered access to statutory remedial mechanisms."
Perhaps for as long as there have been families, bullies ranging from neighborhood thugs to totalitarian dictators have used the threat of retaliation against loved ones to keep people cowering in fear, afraid to exercise their basic rights. It is hard to imagine a more effective method of neutering Title VII - and keeping American workers too intimidated to exercise their rights.
It is equally hard to imagine that this is not exactly the sort of retaliation that Congress set out to prevent.
No respectable person should support a company's right to keep its workers too terrified to complain when they are illegally discriminated against. Yet that is the position of the corporate titans who run the U.S. Chamber of Commerce. This should give local Chambers another reason to separate themselves from the national organization.
At yesterday's oral arguments on Thompson v. North American Stainless – the case of the fired fiancé – the Justices discussed whether Title VII allows Eric Thompson to sue his employer for firing him in retaliation for a discrimination complaint lodged by his fiancée. Everyone agrees that Title VII prohibits the company from firing her. The Justices of the Supreme Court are trying to figure out if that federal law also protects her fiancé.
The Washington Post reports:
But Justice Samuel A. Alito Jr. wondered if the betrothed were included, how far would the law extend.
"Does it include simply a good friend?" he asked. "Does it include somebody who just has lunch in the cafeteria every day with the person who engaged in the protected conduct? Somebody who once dated the person who engaged in the protected conduct?"
[The fired employee's attorney] said the person fired would have to prove the intent was to punish the person who complained. And then the person would have to show that the retaliatory action was serious enough to dissuade a reasonable person from filing a complaint.
Justice Antonin Scalia put himself in the role of employer, saying he would want a clear rule on who he "had to treat with kid gloves."
Note that Justices Alito and Scalia are not mechanically calling balls and strikes, as in the severely flawed umpire metaphor then-Judge John Roberts used at his confirmation hearings - and which conservatives have been using since to bamboozle the American public. In interpreting Title VII, they are taking policy considerations into account: How would their interpretation work? How could any line-drawing be justified? How could the needs of employers for clarity be met?
Conservative supporters of Alito and Scalia who repeat the tired "balls and strikes" line simply cannot be taken seriously. They simply use it to mask their extremist, results-oriented viewpoint that no matter what the Constitution and statutes actually say, corporations and powerful special interests should win, while workers, women, gays, immigrants, and liberals should lose.
Tuesday morning, the Supreme Court will hear oral arguments in Thompson v. North American Stainless, an employment retaliation case that threatens to keep illegally fired employees from holding accountable the companies that fire them.
In 2003, North American Stainless fired Eric Thompson in retaliation against his fiancée, who also worked for the company and had just filed a sex discrimination complaint against it. Such retaliation against an employee seeking to vindicate her rights under Title VII is illegal. So Thompson sued.
Two separate provisions of Title VII are relevant here:
The firing was designed to retaliate against an employee seeking to vindicate her rights and was therefore clearly an unlawful employment action. Thompson, who lost his job, was undoubtedly aggrieved by this unlawful employment action. There shouldn't be any question that Congress gave him the right to sue.
Yet the Sixth Circuit Court of Appeals, dominated by nominees of George W. Bush, held otherwise. Ten judges (nine of whom were nominated by Republican presidents, a full seven by George W. Bush) held that Thompson cannot sue because he wasn't the person who was being retaliated against. North American Stainless is asking the Supreme Court to uphold that holding.
The U.S. Chamber of Commerce has filed an amicus brief that is even more extreme: There was no unlawful retaliation in the first place, because the company never altered the working conditions of the woman who filed the initial complaint. In the frightening world the Chamber wants us to live in, firing a complaining employee's fiancé, spouse, daughter, etc. is not at all considered unlawful retaliation.
As the Obama Administration points out in its amicus brief supporting the fired employee, the Sixth Circuit opinion ignores the plain language of Title VII. In addition, if upheld, it will have a devastating real-world impact. Most lay people unassisted by lawyers would naturally assume that the person who was fired - not the one who is still employed - should be the one to sue. If the Supreme Court bars suits by the most obvious plaintiffs, the ones who have suffered the most, then many injured parties will in the real world be left without a remedy.
On January 29, 2009, President Obama signed the Lilly Ledbetter Fair Pay Act into law, restoring the rights taken away by the Supreme Court in Ledbetter v. Goodyear Tire & Rubber Company. One year to the day, a new movement is afoot to correct the Court.
Title VII of the Civil Rights Act of 1964 was enacted to protect individuals from discrimination they face in the workplace. In Ledbetter, the Supreme Court undermined that protection by holding that employees who are subjected to pay discrimination must bring a complaint within 180 days of the discriminatory compensation decision and that each paycheck that is lower because of such discrimination does not restart the clock. Advocates fought hard for a law that would reiterate Congress’ intent to hold employers accountable for their discriminatory practices and to allow employees a fair chance to challenge unlawful pay discrimination.
Advocates are now calling for another Court correction, this time in response to the Citizens United ruling, which prohibits Congress from limiting the influence of corporations in elections for public office. Not only is this a radical departure from longstanding precedent, it defies common sense: it argues that corporations and American citizens have identical free speech rights under the Constitution. As Justice Stevens pointed out in his dissent, corporations are not people. They cannot vote, they cannot hold office, and they should not be allowed to pour billions of dollars into our system of government.
Unfortunately the fix we found in for the Ledbetter decision is not enough to fix Citizens United. Legislation, while important and critically needed to mitigate the effects of the decision, may ultimately prove to be inadequate against the unfettered influx of corporate election spending. Only a constitutional amendment can restore the American people’s authority to regulate corporate influence in our elections and restore our democracy.
People For the American Way is calling for just such an amendment. Click here for more information and to sign our petition.