Sen. Edward Kennedy: The Supreme Court's Wrong Turn -- And How to Fix It

[marmar]

from The American Prospect:



The Supreme Court's Wrong Turn -- And How to Fix It

After posing as moderates in their confirmation hearings, Justices Roberts and Alito have moved the Court radically to the right. Henceforth, we should compel nominees to state how they would have ruled on specific cases, and why.

Edward M. Kennedy | November 19, 2007



Last May, the Supreme Court faced a textbook case of pay discrimination. Lilly Ledbetter was one of a few women supervisors working at a Goodyear Tire and Rubber Company plant in Gadsden, Alabama, and she remained at the plant despite her bosses' bias against women. One even told her that "the plant did not need women," that women "caused problems." For almost two decades, the company systematically downgraded her performance evaluations to pay her less than male colleagues who performed the same duties. Her pay eventually fell 15 percent to 40 percent behind her male counterparts.

In 2003 a jury found that Ms. Ledbetter was paid less because she is a woman, and she was awarded full damages to correct the injustice. But in a 5-4 opinion, the Supreme Court held that Ms. Ledbetter was entitled to nothing at all. The majority ruled that she should have filed her case within a few months after the employer decided to pay her less than her male coworkers. Never mind that she had no way of knowing what other workers made, or that the discrimination continued with each paycheck. Justice Ruth Bader Ginsburg, the sole female justice, observed in dissent: "The Court does not comprehend, or is indifferent to, the insidious way in which women can be victims of pay discrimination."

Unfortunately, the Ledbetter case is just one example of the Supreme Court's dangerous new direction since the additions of Chief Justice John Roberts and Justice Samuel Alito. It is vital that Americans understand how profoundly the newest justices are affecting the Court, and how their confirmation hearings failed to anticipate these developments. Whether or not it was possible to prevent confirmation of the president's Supreme Court nominees by a Republican-controlled Senate, the confirmation hearings should, at the very least, have informed the public about the nominees' views on the pressing legal issues of our time. Their failure to do so makes clear that the Senate needs to reform the process by which it considers Supreme Court nominees.

LOOKING BACK

As we enter the third year of the lifetime appointments of Roberts and Alito to the Court, it is clear that their approach to judging mocks the commitment to open-mindedness, modesty, and compassion that they professed during their confirmation hearings. President Bush had openly expressed his desire to select judges who would satisfy the most radical voices in his political base. We now know that the president got exactly what he wanted.

For two judges who repeatedly proclaimed in their confirmation hearings that they would bring no ideological agenda to the job and would decide cases with an "open mind," Roberts and Alito have turned out to be remarkably like-minded. They voted together in 92 percent of non-unanimous cases in the 2006–2007 term -- the highest rate of agreement of any two justices, edging out Antonin Scalia's and Clarence Thomas' 91 percent rate. In the previous term, Roberts and Alito voted together 88 percent of the time in non-unanimous cases. .....(more)

The complete piece is at: http://www.prospect.org/cs/articles?article=the_supreme_courts_wrong_turn_and_how_to_fix_it

[antigop]

1. Sorry, Ted, we knew this... why didn't you?

http://www.truthout.org/docs_2005/010206G.shtml

Business couldn't do any better than Chief Justice John Roberts and Samuel Alito on the Supreme Court. The prospect of the two on the Supreme Court signals to manufacturers and businesses that they will have allies in high places, say academics and business experts.

One represented corporate interests as a private attorney; the other often sided with employers in lawsuits filed by workers. Beyond their decisions in individual cases, the Roberts court also has the potential to craft a consistent philosophy on business issues, something that several academics argue has been lacking in recent years since the departure of Lewis Powell in 1987.

A former corporate lawyer, Powell built a reputation as business' friend during his 15 years on the Supreme Court.

The court's highly selective docket for the current term will give Roberts and Alito, assuming the latter is confirmed, ample opportunity to shape the court. Among the critical issues for companies are the Supreme Court's decisions in antitrust cases, government regulation of land development and the commerce clause.

Certain to catch any court watcher's attention is how the new justices decide on whether to limit punitive damages in lawsuits against corporations.

http://www.nytimes.com/2005/11/05/politics/politicsspecial1/05legal.html

Judge Samuel A. Alito Jr. has reliably favored big-business litigants as he has pushed the federal appeals court in Philadelphia in a conservative direction.

His extensive paper trail of 15 years of opinions reveals a jurist deeply skeptical of claims against large corporations. A review of dozens of business cases in which Judge Alito has written majority or dissenting opinions or cast the decisive vote shows that, with few exceptions, he has sided with employers over employees in discrimination lawsuits and in favor of corporations over investors in securities fraud cases.

Judge Alito, President Bush's choice to replace Sandra Day O'Connor on the Supreme Court, cast the decisive vote in a case involving a major steel company, and in another involving a large chemical maker, over environmentalists in pollution cases.

He has set aside punitive damages in some cases and reduced them in others; has handed down dissents that, if they became law, would impose higher burdens for workers to successfully sue their employers for discrimination; and has routinely upheld restrictive arbitration clauses that have limited the remedies available to plaintiffs. (In a rare instance of setting aside an arbitration decision, he reversed an arbitration panel that had ordered the reinstatement of an intoxicated seaman on a moored oil tanker against the wishes of his employer, Exxon.)

During day 4 of the confirmation hearings for Roberts, Feinstein asked:
http://www.post-gazette.com/pg/05259/572427.stm

FEINSTEIN:
Now, Duke Law School Professor Catherine Fisk examined nine cases
heard by you while you were on the Court of Appeals. Her review
concluded that you ruled in favor of a corporation each time.

Consequently, she made this prediction, quote: You're going to be a
fairly reliable vote against workers' rights across the board, end
quote.

Would you respond to that, please?

Alito confirmation vote:
http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=109&session=2&vote=00002

Roberts confirmation vote:
http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=109&session=2&vote=00002

[Forkboy]

2. Why harp on Ted? He voted against both.

He's been right about this stuff all along. Complain about the ones that voted for them, not the ones who did do the right thing then and are speaking out still. :shrug:

[antigop]

4. So why didn't Ted use some leadership to convince the others NOT to confirm? n/t

[Wiley50]

3. The SCJ's in the majority on Bush v Gore should be impeached first

They should have recused themselves

[Thothmes]

6. On what grounds

[VP505]

5. I don't know what

is worse, confirming Bu$h's clowns or the "buyers remorse" we get from the complicit.