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Obama Elaborates on "Empathy," What He Wants in a Supreme Court Nominee:
The transcript of his Friday C-SPAN interview is here, and this is the part about the Supreme Court, continued below the jump:
STEVE SCULLY, POLITICAL EDITOR, C-SPAN: Mr. President, as we speak to you in the White House Library, a constitutional lawyer, former law professor, as you work through the process for you personally in selecting the Supreme Court nominee, what are you thinking?

BARACK OBAMA, PRESIDENT OF THE UNITED STATES: Well, there are some benchmarks that you have to make sure that you hit. Obviously, you want somebody who is highly qualified, who knows the law. I want somebody who, obviously, has a clear sense of our constitution and its history and is committed to fidelity to the law.

Is going to make their decisions based on the law that's in front of them, but as I've said before, I think it's also important that this is somebody who has common sense and somebody who has a sense of how American society works and how the American people live.

And you know, I said earlier, that I thought empathy wasn't important quality and I continue to believe that. You have to have not only the intellect to be able to effectively apply the law to cases before you.

But you have to be able to stand in somebody else's shoes and see through their eyes and get a sense of how the law might work or not work in practical day-to-day living. And a good example of this, the Lilly Ledbetter case that came up a while back, where the justice has I believe misinterpreted the law in closing the door to a lawsuit by a woman who had worked for 20 years and had been paid less than her male counterparts.

She didn't know that she was getting paid less, when she discovered it, she immediately filed suit to get back pay and the suggestion was somehow that she should have filed suite earlier.

Well, I think anybody who has ever worked in a job like that understands that they might not know that they were being discriminated against it. It doesn't make sense for their rights to be foreclosed.

That's the kind of case, where I want a judge not only to be applying the law in front of them, but also to understand that as a practical matter. A lot of times people have weak bargaining power.

Now, in some ways it might cut the other way. I want a judge who has a sense of how regulations might affect the businesses in a practical way. And so, when they're interpreting a statute that they are saying, is congressional intent being met in this kind of circumstance. So, if there is a farm program somewhere, and you have somebody who can take the time to learn about how farmers work that's helpful.

So, in all these cases what I want is not just ivory tower learning. I want somebody who has the intellectual fire power, but also a little bit of a common touch and has a practical sense of how the world works.


  Notably, Obama seems to use "empathy" in different ways here, and in ways that appear (to me at least) to be somewhat different than his earlier uses. At various points in the interview, Obama suggests that empathy means just having an accurate understanding of the world. At other times, he seems to suggest it means being a pragmatist in the sense of interpreting the law to avoid bizarre results. Last I checked, though, no one believes that misunderstanding the world is a good thing, and even Justices like Scalia have a strong pragmatic streak. If that's all Obama means by "empathy," then, I'm not entirely sure what kinds of Justices he thinks don't have that quality. Maybe the idea is someone who is a purposivist rather than a textualist when it comes to statutory interpretation? I'm not sure.
John Kindley (www):
Yes, the content of what Obama has meant by "empathy" has always been unclear and problematic. In the criminal law context, for example, does it mean empathy for powerless criminal defendants, or empathy for powerless victims of alleged crimes? I've been surprised that commentators have taken it so seriously, as a tangible indicator of what he's looking for in a Supreme Court Justice, and not as the mere political tag (like "compassionate conservative") designed to curry favor with voters that it is.
5.24.2009 2:26pm
bc4:

If that's all Obama means by "empathy," then, I'm not entirely sure what kinds of Justices he thinks don't have that quality.


IIRC, the plurality in the Thornton case apparently believed that an officer was in danger from a suspect handcuffed and waiting in the back of a squad car. If empathy means common sense, I'd say Rehnquist, Breyer, Kennedy and Thomas were decidedly unempathetic in that case.

To use another 4A example, the fact that the Brendlin case even got to the Supreme Court in the first place shows that some judges (in the CA supreme court) have absolutely no idea what it's like to be pulled over by police.

When you have the Constitution being delineated entirely on the basis of "reasonableness" it's incredibly important that Justices actually understand how reasonable people behave. I don't think that's a universal trait among all potential replacements for Souter.
5.24.2009 2:28pm
MarkField (mail):
Just noting a typo in the interview transcript. The phrase "I thought empathy wasn't important quality" seemingly should be "I thought empathy was an important quality".
5.24.2009 2:52pm
Desiderius:
"Empathy" is for the Left as "patriotism" is for the Right: a quality it's enemies are purported to lack, for purposes of suspending one's conscience in dealings with said enemies. A tribal marker.

Both have engendered pathetic me-too responses (dissent is the highest form of patriotism/compassionate conservatism) by those who mistake such charges for good faith critiques. That such efforts have served only to inflame the haters rather than to mollify them gives the lie to their claims.

Obama is smart enough to recognize both the vacuousness of the Left's tradition conception of empathy but also how essential it is to preserving unity among his supporters, so he's attempting to flesh it out in the most inclusive way possible, as prior presidents have done with patriotism.

I wish him well there, and given his past record at HLR, he is likely serious about the precedence he gives to the law and its history.
5.24.2009 2:55pm
J. Aldridge:
Obviously, you want somebody who is highly qualified, who knows the law. I want somebody who, obviously, has a clear sense of our constitution and its history and is committed to fidelity to the law.

Well if that is the case then we shouldn't be deciding discrimination cases in the federal courts because the "clear sense of our constitution and its history" says that belongs with state courts under their own laws.
5.24.2009 2:56pm
MarkField (mail):
I think Obama may have in mind an image of textualism which doesn't care about the real world impact of the statutory language, but sees it as the job of the court to enforce the literal words regardless of consequences. Given that image, I think he's suggesting that pragmatic concerns ought to temper robotic literalism.

As an example, let me suggest the "use a gun" case. "Using" a gun during the commission of a felony would not, except to someone Spockishly literal, mean "trading the gun for drugs". I'm not sure how empathy would achieve a different result in this particular case, but he seems to have something similar in mind in his references to the Ledbetter case, where "empathy" as a judicial quality might well lead to a different result.
5.24.2009 2:59pm
Connecticut Lawyer (mail):
I guess that by empathy, President Obama means a judge who is willing to invent the facts to support a sympathetic plaintiff. At least, that's how I interpret his mischaracterization of the facts in the Ledbetter case, where I don't believe there was any evidence at all that she filed suit as soon as she learned she had been underpaid years before.
5.24.2009 3:14pm
Constantin:
I truly cannot believe all this time has been spent on this matter. The guy is going to pick a woman, or a racial minority, with legal views that comport with the Democratic Party's platform. He does not care about--and probably is unqualified to analyze, considering the classes he taught at Chicago--this person's intellectual approach to the law, should one even exist.

I'm not contending GOP presidents' approaches to Supreme Court picks is any different. But Obama can drop his I'm-intellectually-superior pose here (and everywhere else, too). He's a hack politician, just like the rest of them.
5.24.2009 3:23pm
BGates:
given his past record at HLR, he is likely serious about the precedence he gives to the law and its history

Was it at Harvard that he learned that the President runs the auto and financial sectors of the economy?
5.24.2009 3:27pm
Ron Hardin (mail) (www):
Obama doesn't mean anything by empathy except to drop the word.
5.24.2009 3:31pm
John (mail):
Oh, for god's sake people. This is Obama. He uses words as tools to induce feelings and conduct, and any relationship to his actual intention is merely a happy coincidence.

Don't we all know he is going to appoint some wild-ass liberal to replace Souter and every other judge he gets a chance to replace? Of course we do. The rest is just word salad, and there is no point trying to figure out what he "means." What he means is, "calm down, and I hereby utter the words designed to bring that about."
5.24.2009 3:39pm
DiverDan (mail):
When will we get someone to interview Obama that has both the Brains and the Balls to call him on it when he tells a huge whopper? Why couldn't someone be there whe he told his little fairy tale about Lily Ledbetter who could say, "Mr. President, either you are completely ignorant about the true facts in Ledbetter, which is really a rather sad commentary on your willingness to just make up whatever facts might be convenient to your argument, or you are willfully misleading the American Public. Which is it, Sir?"
5.24.2009 3:48pm
Bart (mail):
President Obama's discussion of what he looks for in a judicial nominee during Friday's C-SPAN interview:

But you have to be able to stand in somebody else's shoes and see through their eyes and get a sense of how the law might work or not work in practical day-to-day living. And a good example of this, the Lilly Ledbetter case that came up a while back, where the justice has I believe misinterpreted the law in closing the door to a lawsuit by a woman who had worked for 20 years and had been paid less than her male counterparts.

She didn't know that she was getting paid less, when she discovered it, she immediately filed suit to get back pay and the suggestion was somehow that she should have filed suite earlier.

Well, I think anybody who has ever worked in a job like that understands that they might not know that they were being discriminated against it. It doesn't make sense for their rights to be foreclosed.

That's the kind of case, where I want a judge not only to be applying the law in front of them, but also to understand that as a practical matter. A lot of times people have weak bargaining power.


In short, Mr. Obama wants judges who have no problem rewriting the law in front of them to achieve Mr. Obama's desired outcomes.

Wonderful.
5.24.2009 3:54pm
Bpbatista (mail):
"Empathy" means whatever Obama wants it to mean -- nothing more, nothing less. Just like the Constitution will mean whatever his appointee wants it to mean -- nothing more, nothing less.
5.24.2009 4:04pm
drunkdriver:
Bart,

I too noticed the Ledbetter discussion and found it puzzling. His discussion of the case sounded like the ill-informed soundbites from activists-- "It doesn't make sense for their rights to be foreclosed," as if that were not the very purpose of statutes of limitation, the case were not a question of statutory interpretation, and the judges were doing nothing more than reasoning from first principles about what to do in the case.

Ledbetter is a very poor example for Democrats to claim as bad reasoning by a Republican majority (there are a lot better ones out there). Indeed it's almost troubling: here you have in Ledbetter a case where even a liberal judge would admit the statutory case for the plaintiff is shaky; "screw it, I like plaintiffs more than defendants" is a legit answer for a congressman but do we really want to have judges going down that road?
5.24.2009 4:06pm
Andrew Hyman (mail) (www):
In the Ledbetter situation, Congress established a statute of limitations out of empathy for businesses that would otherwise have to defend actions they took decades ago, by which time business records have been destroyed, and memories have faded. The whole purpose of any statute of limitations is to be empathetic to defendants, and unempathetic to plaintiffs. If Congress balances this one way, and the Supreme Court balances it another way, then Congress ought to win in a case of statutory interpretation. It's very disturbing that Obama would instead like for the Court to win. If Congress makes a mistake, it can be easily corrected, but it the Court makes a mistake, there's no accountaibility.

In my opinion, the statute should say that the 180 days runs from when the victim reasonably could have known that the pay decision had been discriminatorily made. But that's for Congress to decide, not for the Court (or Obama) to dictate. And, indeed, Congress has acted. If Obama gest his way, Congress will be superfluous, IMHO.
5.24.2009 4:16pm
rosetta's stones:

Now, in some ways it might cut the other way. I want a judge who has a sense of how regulations might affect the businesses in a practical way. And so, when they're interpreting a statute that they are saying, is congressional intent being met in this kind of circumstance. So, if there is a farm program somewhere, and you have somebody who can take the time to learn about how farmers work that's helpful.


This is a muddled bunch of spaghetti, and he's obviously just searching for a way to get the word "farmer" into his monologue, while also getting in some riffs about "regulation" and "business".

Better to just leave the "empathy" nonsense out of the discussion, because any attempt to explain what empathy really is just exposes him as just another pol seeking outcomes.
5.24.2009 4:22pm
my interpretation (mail):
it was a multi-faceted definition. the most charitable reading i can offer is this.

1. overall, be competent and apply the law.

2. if it's a claim by someone with weak bargaining power, put your thumb on their side of the scale.

3. if it's purely a business issue, decisions can favor efficiency.
5.24.2009 4:24pm
Borris (mail):
I always assumed when Obama says he "wants judges that have empathy" he means he wants judges that will make laws that are politically unpopular but Democrats would like to have made.

Also, given precedent and stare decisis, he would like Justices to make laws that can't be repealed or easily overturned. He would like to end debate on a given subject and carve the results he wants in stone.

I short, he wants a Justice with "empathy".
5.24.2009 4:31pm
Rock Chocklett:
What Obama may have meant by "empathy" and some responses:

1. A certain type of experience: e.g., legal experience outside of academia, government, or appellate practice. This goes to the "common sense," "practical," outside of the "ivory tower" keyphrases he uses. One can debate the merits of requiring such experience for a Justice, but this doesn't seem too controversial.

2. The ability to imagine being in another's position and to appreciate the challenges that the other faces. How does one measure this ability without counting votes in prior cases to see if the prospective nominee has often enough sided with "the little guy"? See, for example, Obama's opposition to Alito.

3. The willingness to reject application of the law when to do so would violate the justice's sense of fair play. This is the biggest danger, and I think Obama has at least hinted at this by referencing the Ledbetter case.
5.24.2009 4:46pm
Just an Observer:
If that's all Obama means by "empathy," then, I'm not entirely sure what kinds of Justices he thinks don't have that quality. Maybe the idea is someone who is a purposivist rather than a textualist when it comes to statutory interpretation? I'm not sure.

Indeed, I still am not sure at all what Obama means by "empathy."

I continue to think it is mostly undefined rhetoric aimed at the galleries -- "change" as applied to SCOTUS -- rather than a coherent criterion for selecting a nominee. Or it may be that Obama just means liberals have empathy and conservatives don't.

In any case, we can reliably expect that Obama will nominate a liberal, and he will laud that nominee's empathy. A talented politician could find empathy in almost anyone short of Cruella de Vil.
5.24.2009 5:26pm
DG:
If someone isn't being paid enough, why not just quit? If someone is being paid less because they are a woman, why not organize a boycott? Why not take it to the streets or the Internet and use group power to punish those who offend against your group?

I don't see why the courts should be involved at all.
5.24.2009 5:50pm
Oren:

At least, that's how I interpret his mischaracterization of the facts in the Ledbetter case, where I don't believe there was any evidence at all that she filed suit as soon as she learned she had been underpaid years before.

The jury found otherwise, but that's not even the matter under contention. The SCOTUS ruled that the statute of limitation just doesn't toll starting when one learns of the allegedly discriminatory act. That is, it doesn't matter what anyone thinks about when the plaintiff learned about the wrongdoing because the limit doesn't toll in the first place.
5.24.2009 5:50pm
Oren:

Indeed it's almost troubling: here you have in Ledbetter a case where even a liberal judge would admit the statutory case for the plaintiff is shaky

29USC206(d)(1)

(1) No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to
(i) a seniority system;
(ii) a merit system;
(iii) a system which measures earnings by quantity or quality of production; or
(iv) a differential based on any other factor other than sex:

Hard to see how there is shaky anything there. Every time that the defendant paid the plaintiff less than her male colleagues, they violated 29USC206(d). Each paycheck is a discrete injury because each paycheck violates the statue anew.
5.24.2009 5:56pm
Mike G in Corvallis (mail):
For some reason I am reminded of Kingman Brewster, the former president of Yale University back when the Black Panther trials in New Haven were going on. Brewster famously said he doubted that a black man could get a fair trial in America. When someone asked him what he meant by a "fair trial," he answered that a fair trial was one in which the defendant had a fifty percent chance of being acquitted.
5.24.2009 5:56pm
Oren:

I don't see why the courts should be involved at all.

That's an admirable political view. You should write to Congress and the President to repeal or rewrite the relevant parts of the US Code.

Until then, the courts she be involved because The People directed them to get involved.
5.24.2009 5:57pm
Downfall:
As an example, let me suggest the "use a gun" case. "Using" a gun during the commission of a felony would not, except to someone Spockishly literal, mean "trading the gun for drugs".

It takes Spockish literalism to note that one way to 'use' an item is to barter it? A google search of "use money" turns up nearly three million results, and going through the results shows that most of them mean it in exactly that sense. In the absence of a statutory definition that is narrower than the every day usage, 'using a gun' must include trading it.
5.24.2009 5:59pm
Downfall:
Hit "post comment" before I was ready-- not that usages in google are controlling, but it's generally recognized that one of the ways to use something is to barter it. It is, indeed, one of the most fundamental uses out there.
5.24.2009 6:00pm
Danny (mail):
By "empathy" I hope he means an angry lesbian
5.24.2009 6:00pm
drunkdriver:
Hard to see how there is shaky anything there.


I guess not Oren, if you don't read the statute of limitations provision that the case was decided upon.
5.24.2009 6:16pm
Mike G in Corvallis:
Hard to see how there is shaky anything there. Every time that the defendant paid the plaintiff less than her male colleagues, they violated 29USC206(d). Each paycheck is a discrete injury because each paycheck violates the statue anew.

The paycheck doesn't violate the statute, because the violation is based on intent, and the paycheck has no intent. The decision about how much to pay Ledbetter was made years before she filed suit, by someone who might not have been her supervisor -- or even employed by Goodyear -- at the time she filed suit. Even Ledbetter herself didn't claim that Goodyear acted with discriminatory intent within the charging period by issuing the checks.

Sorry if that doesn't convince you. It seems to have convinced five Justices.
5.24.2009 6:22pm
jukeboxgrad (mail):
mike:

he answered that a fair trial was one in which the defendant had a fifty percent chance of being acquitted


Do you think his actual words can be found somewhere?
5.24.2009 6:25pm
Downfall:
The dissent in Ledbetter shows how shaky the statutory argument was. The entire thing is basically one long policy argument completely unmoored from the text. The law being interpreted literally, and then Congress changing it because it didn't like the law it had passed, is how the system is supposed to work.
5.24.2009 6:30pm
eyesay:
In Ledbetter v. Goodyear Tire &Rubber Co., judges were faced with facts and law that could be applied in more than one way with regard to the facts. Ledbetter was was paid less than her male colleagues for the full duration of her employment at Goodyear. Was each subsequent paycheck after her first paycheck a renewed act of discrimination, re-starting the 180-day clock? A minority of four justices on the Supreme Court agreed with this view, as did a majority of the U.S. House and Senate in January 2009, as evidenced by the passage of the Lilly Ledbetter Fair Pay Act of 2009.

Some persons posting and commenting on this blog seem to have the idea that if only justices would put aside politics and prejudice and just look at the law, they could always come to the one true and correct decision in every case. But Ledbetter shows the silliness of this notion. Does each paycheck constitute a new act of discrimination? Intelligent minds differed on this question.

I think that when Barack Obama speaks of empathy, he means that in cases where one might intelligently come to various conclusions, that compassion in this case would have taken into account that Lilly Ledbetter had suffered pay discrimination at Goodyear for the entire duration of her employment there, didn't know about it until near the end, and her employer did know about it for the entire time — and in this case empathy goes to Lilly Ledbetter and not to Goodyear.

In response to comments posted here, Obama does not mean:
* Extra sympathy to violent criminals
* Inventing untrue or non-existent facts
* Rewriting the law by judges
* Whatever Obama wants it to mean

You all are welcome to your belief that justices should not be empathetic, as President Obama and I understand the term. But, as Republicans used to say, elections have consequences.
5.24.2009 6:37pm
Andrew Myers:
It seems to me that the whole "empathy" criterion is just another one of Obama's straw men. To put it in his usual phrasing, "Some judges believe the practical impact of laws is not important".
5.24.2009 6:39pm
Constantin:
You all are welcome to your belief that justices should not be empathetic, as President Obama and I understand the term.

Which of Barack's understandings do you mean? The entire point of the original post is that his take on empathy seems to have changed.

But, as Republicans used to say, elections have consequences.

So, as our philosopher-king has said, "I won." Isn't this the stuff he ran against as entirely beneath his regal dignity?
5.24.2009 6:42pm
MarkField (mail):

It takes Spockish literalism to note that one way to 'use' an item is to barter it? A google search of "use money" turns up nearly three million results, and going through the results shows that most of them mean it in exactly that sense. In the absence of a statutory definition that is narrower than the every day usage, 'using a gun' must include trading it.


We know that Leonard Nimoy is not Spock; I guess we now have a candidate.

Thanks for reinforcing my point: we use words in different ways, just as we "use" real world objects in different ways. The ordinary meaning of "using" money involves trading it from person to person. That's not at all the ordinary meaning of "using" a gun. The failure to make such distinctions is precisely the problem with unthinking textualism.
5.24.2009 6:44pm
Jim at FSU (mail):
I remember that discrimination case. Didn't congress explicitly limit the time within which suits could be brought and wasn't she clearly on the wrong side of that limitation?

If you can "interpret" your way around unambiguous text and numbers, are you really a judge any more? Sounds like Obama wants a wise legislator on the supreme court.
5.24.2009 6:45pm
byomtov (mail):
Last I checked, though, no one believes that misunderstanding the world is a good thing, and even Justices like Scalia have a strong pragmatic streak. If that's all Obama means by "empathy," then, I'm not entirely sure what kinds of Justices he thinks don't have that quality.

But the issue is not whether a Justice, or anyone else, thinks misunderstanding the world is a good thing. The issue is whether they do in fact understand the world. More precisely, it is whether they can grasp how people with vastly different life experiences understand the world.

bc4 offers some examples. I'm not familiar with the cases, but they sound like the sort of thing I'm talking about. Another is the discussion we've had on some threads about traffic stops. I've been surprised that soem of the lawyers commenting seem to assume that the average person is well familiar with his rights in that situation. I don't think that's correct. I'm sure I would fail a quiz on the subject.

In the criminal law context, for example, does it mean empathy for powerless criminal defendants, or empathy for powerless victims of alleged crimes?

Why not both? Empathy does not imply bias.
5.24.2009 6:52pm
Mike G in Corvallis:
Re: Kingman Brewster Do you think his actual words can be found somewhere?

I'm sure about the gist of the quote -- it made a big impression on me at the time, because I was appalled that anyone in so high a position could have such a warped understanding of the purpose of a trial. I think I read it either in a news magazine (Time or Newsweek) or in the Los Angeles Times when he said it, but it's possible I saw him on a television newscast. Alas, I have tried to find it using Google, but no luck. And Brewster is no longer with us, so we can't just ask him.
5.24.2009 6:52pm
drunkdriver:
I remember that discrimination case. Didn't congress explicitly limit the time within which suits could be brought and wasn't she clearly on the wrong side of that limitation?

And wasn't there even a claim under a specific statute (the Equal Pay Act) which her lawyer failed to appeal upon?

But hey-- malpractice, like statutory language, is nothing in the face of "empathy" for the side you'd like to win.
5.24.2009 6:53pm
Andrew Hyman (mail) (www):
Eyesay said: "Does each paycheck constitute a new act of discrimination? Intelligent minds differed on this question."

But here's what Justice Stevens said in United Airlines v. Evans, 431 US 553 (1977): "A discriminatory act which is not made the basis for a timely charge...is merely an unfortunate event in history which has no present legal consequences." Thus, the Court held in 1977 that each paycheck does not constitute a new act of discrimination. The fact of Ledbetter were no different, and I think intelligent minds realize this.
5.24.2009 6:56pm
glangston (mail):
Will empathy join pornography.? As in "I' know it when I see it."

More and more Obama seems a pragmatic sort that is really vague about that idealism everyone thought they voted for.
5.24.2009 6:56pm
Joseph Slater (mail):
What Eyeseay said (eyesaid?).
5.24.2009 7:05pm
Jim at FSU (mail):
Also, it is absurd to assume that when congress said "use a gun during the commission of a crime" that they meant anything other than "use a gun as a weapon during the commission of a crime."

I think it was Scalia who said that if someone asks you if you use a cane, they don't mean "do you use a cane as a decoration on your wall?" They mean "do you use one as an aid to walking?"

The analogy to "use money" is silly because the sole purpose of money is to act as a store of value and an instrument of trade. Guns are weapons, not currency. That a gun can be used in a manner similar to currency does not change the fact that such a use is very far from what any ordinary person would mean by "use a gun."
5.24.2009 7:06pm
Jim at FSU (mail):

Does each paycheck constitute a new act of discrimination? Intelligent minds differed on this question.

Not in the past 30 years they haven't.

This question was decided in the late 70s, as others (Andrew Hyman, here) have pointed out.


Justice Stevens said in United Airlines v. Evans, 431 US 553 (1977): "A discriminatory act which is not made the basis for a timely charge...is merely an unfortunate event in history which has no present legal consequences." Thus, the Court held in 1977 that each paycheck does not constitute a new act of discrimination. The fact of Ledbetter were no different, and I think intelligent minds realize this.


If you separate out the malpractice of her attorney (for failing to bring a suit on grounds that hadn't been foreclosed by SOL) and the "hard question" that had previously been before the court, the actual question is a ridiculously simple one. Was she past the statute of limitations? Clearly the answer is YES.

The fact that Obama has managed to convince himself that this was a difficult question requiring special empathic talents says a lot about his supposed talent as a legal scholar.
5.24.2009 7:16pm
Hans Bader (mail) (www):
Obama is deliberately misstating the facts of the Ledbetter case, and he knows it. Ledbetter knew for years about the pay discrepancy she later claimed was discriminatory -- and in spite of that, she still could perhaps have prevailed had her incompetent lawyer not pressed her claim solely under the discrimination law with the shortest deadline, rather than one with a longer deadline.

The Obama campaign made the Ledbetter decision a major campaign issue by bashing and distorting it. Both the Obama Administration and Obama campaign made easily verifiable false claims about the decision.

In Ledbetter v. Goodyear (2007), the Supreme Court held that a woman who had waited more than five years after learning of pay disparities to file an EEOC complaint, and more than a decade after her pay was allegedly set lower than her male peers, could not later sue for discrimination under a civil-rights law known as Title VII, since that law has a 180-deadline. In its ruling, the Court held that plaintiffs generally must sue within 180 days after a discriminatory pay level is set, and that it is not enough that the plaintiff sued within 180 days after a subsequent paycheck or pension benefit affected by the discrimination, which could be many, many years later.

The court specifically left open, however, the possibility that a plaintiff could sue more than 180 days after the discriminatory pay decision if the plaintiff did not discover that the decision was discriminatory until much later. In footnote 10 of its decision, it wrote, "We have previously declined to address whether Title VII suits are amenable to a discovery rule. . .Because Ledbetter does not argue that such a rule would change the outcome in her case, we have no occasion to address this issue."

The plaintiff, Lilly Ledbetter, had admitted in her deposition that she had been informed by 1992 of the pay disparity she later sued over, and had cited it herself to her boss by 1995. As even the liberal employment lawyer David Copus, who brought landmark pay discrimination lawsuits for the EEOC, has noted, Ledbetter suspected for years that she was discriminated against, and the Supreme Court left intact employees' ability to sue when employer deception leaves employees unaware of discrimination against them. See Davis A. Copus, "Pay Discrimination Claims After Ledbetter," Defense Counsel Journal, Volume 75, page 300 (Oct. 1, 2008).

As Copus notes, "Ledbetter admitted at her deposition that 'different people that [she] worked for along the way had always told [her] that [her] pay was extremely low.' She recalled that her manager told her in 1992 that her pay was lower than that of other Area Managers, and that by 1994 or 1995, she had learned the amount of the difference. In 1995, Ledbetter told her supervisor that she 'needed to earn an increase in pay' because she 'wanted to get in line with where [her] peers were, because . . . at that time [she] knew definitely that they were all making a thousand [dollars] at least more per month.'" Yet she waited to sue until shortly before she retired, and after the supervisor she accused of discrimination died!

As legal commentator Stuart Taylor observed in the National Journal, "Ledbetter waited more than five years after learning that she was paid substantially less than most male co-workers to file her Title VII claim." See Stuart Taylor, "Does the Ledbetter Law Benefit Workers, or Lawyers? Democrats and the Media Have Distorted the Facts Underlying the New Equal Pay Law," National Journal, Jan. 31, 2009.

Given Ledbetter's tardiness and longstanding knowledge that she might have been discriminated against, her lawyer didn't even claim that she could take advantage of the Supreme Court's exceptions to the deadlines for workers whose employers conceal evidence of discrimination, leaving them unaware of discrimination, such as "equitable tolling" and "estoppel." See Zipes v. Trans World Airlines, 455 U.S. 385, 393 (1982) ("filing a timely charge of discrimination with the EEOC is . . . a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling").

In signing his first bill into law -- a bill to override the Supreme Court's Ledbetter decision -- Obama didn't let facts get in the way of a good story, or milking a political wedge issue. He falsely claimed that Lilly Ledbetter, whose pay discrimination claim was dismissed by the Supreme Court as untimely, worked at Goodyear "for nearly two decades before discovering that for years, she was paid less than her male colleagues for doing the very same work." Actually, Ledbetter knew by 1992, if not earlier, that she was being paid less than the male employees she claimed should have been paid the same as her. Small wonder that the Supreme Court's 2007 ruling in Ledbetter v. Goodyear dismissed her claim as untimely.

Similarly, the White House falsely claimed that "The Court ruled that employees subject to pay discrimination like Lilly Ledbetter must file a claim within 180 days of the employer's original decision to pay them less . . . even if the employee did not discover the discriminatory reduction in pay until much later (check out Justice Alito's arguments in the Court's opinion)."

This is misleading, and perhaps knowingly so, since the White House linked to the very court decision it distorts. First, the Court never said there was a rigid deadline that bars claims by employees who "did not discover" discrimination "until much later." Ledbetter never argued that the deadline should be suspended based on her employer concealing discrimination against her, because she in fact knew for years about the pay disparity she later sued over. If she truly had been in the dark about the alleged discrimination, she could have sought to take advantage of exceptions to the deadline that suspend it, like waiver, estoppel, and equitable tolling, under the Supreme Court's decision in Zipes v. Trans World Airlines, 451 U.S. 385, 398 (1982). But she never made that argument, because, as she testified in her deposition, she had been told many years earlier that she was being paid less than the men she later claimed ought to have been paid the same as her.

Nor did she argue that the outcome of her case would have been changed if the Supreme Court recognized an even broader extension to the deadline for employees who are unaware of the discrimination against them, the so-called discovery rule. As the Supreme Court specifically noted in footnote 10 of its opinion, "we have previously declined to address whether Title VII suits are amenable to a discovery rule. . . .Because Ledbetter does not argue that such a rule would change the outcome in her case, we have no occasion to address this issue." In short, since Ledbetter had long known of the facts underlying her discrimination claim, relaxing the deadline for employees who "did not discover" the discrimination until much later would have done her no good.

But in the 2008 election campaign, Obama and state democratic parties falsely claimed that the Supreme Court had created a rigid 180-day deadline for bringing discrimination claims, regardless of whether the employer conceals evidence of discrimination. The 2008 campaign featured TV ads from Obama, and mass mailings by state Democratic Parties, falsely claiming that McCain backed wage discrimination against women, simply because he did not support a bill to override the Supreme Court's Ledbetter decision. Amazingly, the McCain campaign did almost nothing to counter those attacks.

Press coverage suggesting that the Ledbetter decision created a rigid 180-day deadline for pay discrimination claims was also faulty because it ignored the fact that the 180-day deadline only applies to plaintiffs who choose to sue only under the law with the shortest deadline, Title VII. Pay discrimination claims can also be brought under the Equal Pay Act, which has a longer three-year deadline for most claims, and more generous accrual rules as well. And race discrimination claims can be brought under 42 USC 1981, which has a long four-year deadline.

The Supreme Court specifically noted that the plaintiff could have sued instead under the Equal Pay Act, observing that plaintiff "having abandoned her claim under the Equal Pay Act, asks us to deviate from our prior decisions in order to permit her to assert her claim under Title VII." Plaintiff Ledbetter's lawyer admitted to the court that he had goofed by failing to press her claim under that law.

In short, it wasn't the Supreme Court that prevented Ledbetter from suing: it was her own incompetent lawyer, and her own tardiness in suing after she learned of the pay disparities she claimed were discriminatory.
5.24.2009 7:33pm
RPT (mail):
I'm afraid I can't why conservatives think Mrs. Ledbetter such a villain.
5.24.2009 7:34pm
Downfall:
A minority of four justices on the Supreme Court agreed with this view, as did a majority of the U.S. House and Senate in January 2009, as evidenced by the passage of the Lilly Ledbetter Fair Pay Act of 2009.

False. Changing the law in response to a supreme court decision does not indicate Congress's disagreement with the interpretation, just with the result. Any other result is absurdity; Congress would be powerless to change policy, lest they be seen as repudiating interpretation.

If you read the dissent in Ledbetter, the dissent hardly pretends with the veneer of a statutory construction argument; they base their reading almost entirely on policy determinations, policy determinations they are ill-suited to make from the bench
5.24.2009 7:35pm
Cornellian (mail):
This is totally off topic and not exactly of earth shaking significance, but why is the link to display comments for this post in a different font and slightly larger than the link to display comments in all the other posts?
5.24.2009 7:37pm
Andrew Hyman (mail) (www):
RPT, no one thinks that she's a villain. Suppose we reaplace the U.S. Code with the following simple statute: "The villain shall always lose in court, and the opposing party shall always win." The U.S. Code would be a lot simpler and a lot shorter, but do we really want to put judges in charge of the country?
5.24.2009 7:41pm
Christopher Cooke (mail):
I don't know why we are re-arguing Ledbetter, but Oren and others are ignoring that this was a close statutory case, and not some "plain language" vs. lawless liberal judges dispute.

Ledbetter's argument was that the pay she was receiving was illegal because the product of prior acts of discrimination. Her receipt of each paycheck was therefore an illegal act of discrimination, the employer paid her less, because of her gender, and she sued within 180 days of the last such discriminatory act. The jury agreed with her (that she had been discriminated against based on her gender with respect to the pay she received). So did the trial court. The 11th Circuit overturned because it adopted one view of the 180 day statute, i.e., she had to sue within 180 days of the first moment she received discriminatory pay, and could not sue simply based on receiving pay that was less as a result of discrimination that had occurred more than 180 days before she sued. I note that the majority's result is contrary to the way statute of limitations are construed in criminal cases, i.e., the statute runs when the criminal conduct ceases, in the cases of on-going, continuous criminal activity. So, one easy way of interpreting Ledbetter is that Big Corporation won against the average plaintiff citizen, a typical conservative, pro-business result. I doubt these same justices in this majority would have applied such a crabbed interpretation of statute of limitations in a criminal prosecution (I wouldn't either, for that matter, because I think statutes of limitations should be narrowly construed, like evidentiary privileges, since they limit the truth-finding function of the courts and are essentially "technicalities").
5.24.2009 7:44pm
loki13 (mail):

The fact that Obama has managed to convince himself that this was a difficult question requiring special empathic talents says a lot about his supposed talent as a legal scholar.


Most cases that get to SCOTUS and result in a 5-4 split are clearly *easy* questions of law, and Jim at FSU is right in calling out Obama, who only graduated from some random law school with an undistinguished resume (I doubt he was even on law review), and then probably didn't even teach, or if he did, taught at some no-name place (perhaps in Tallahassee). Indeed.

Can't we get to the point where we acknowledge that reasonable people can have differing opinions, even if we think they're wrong? I gather Ginsburg and Scalia have gotten to there.
5.24.2009 7:53pm
Hans Bader (mail) (www):
Ledbetter knew for years of the pay discrepancy she later sued over, and might still have prevailed had her incompetent lawyer pressed her claim under laws other than the one with the shortest statute of limitations. I document this in my comment above. Christopher Cooke overstates the holding of the 11th Circuit (affirmed by the Supreme Court) in his summary of the Ledbetter case. The facts are as I chronicle above in my comment a little ways up.
5.24.2009 7:55pm
Ben P:

If you separate out the malpractice of her attorney (for failing to bring a suit on grounds that hadn't been foreclosed by SOL) and the "hard question" that had previously been before the court, the actual question is a ridiculously simple one. Was she past the statute of limitations? Clearly the answer is YES.


so you're denying the supreme court has the ability to change or modify it's own prior rulings?

To turn the phrase someone used earlier, four justices disagreed with the proposition too. So it's clearly not quite as straightforward as you're arguing.

Furthermore, you're simply blatantly misrepresenting the facts of United Airlines vs Evans.

In Evans, United Had a policy prohibiting flight female attendants from being married. Evans got married and was asked to resign in 1968, she took no action. Subsequently, someone else brought a suit and it was decided that such a rule violated Title VII.

In 1972, Evans was rehired, and she sued for recognition for the time she was unemployed under United's Seniority system (a higher salary eventually) as well a suing for damages for her termination 5 years earlier.

The opinion by Stevens first held that her claim for wrongful termination was barred and secondly held that the "discriminatory act" did not continue simply because upon being rehired she was not credited for seniority time. The court said the past discriminatory act was unfortunate, but she was in the same class as all other employees that had quit in 1968 and been rehired in 1972 regardless of the reason.

Is the case relevant to Ledbetter? Certainly. But it's absolutely not exactly on point. The The true question in Ledbetter is whether there's a new violation each time you're paid or when your payment decision is made, because Ledbetter filed suit within the time period for her payment, but not after the decision.

Regardless of what you think the answer to that question should have been, pretending like it was an open and shut case is simply dishonest.
5.24.2009 7:55pm
dmv (www):
This re-arguing of Ledbetter is fun, particularly when people say the same things over and over again, and conclude: "It's obvious!!11!ELEVENTY!"

Let's play this game some more.
5.24.2009 7:58pm
Andrew Hyman (mail) (www):
Ben P, are you aware that Justice Stevens wrote the following in Evans?

"United's seniority system does indeed have a continuing impact on her pay and fringe benefits."
5.24.2009 8:05pm
AF:
In Ledbetter v. Goodyear (2007), the Supreme Court held that a woman who had waited more than five years after learning of pay disparities to file an EEOC complaint . . . could not later sue for discrimination under a civil-rights law known as Title VII, since that law has a 180-deadline.

Hans Bader, those facts do not appear in the Supreme Court's decision. As such, they are not part of its holding.
5.24.2009 8:09pm
Christopher Cooke (mail):
Hans, I based my understanding of Ledbetter's case on the Supreme Court's decision, did you review the record below?

I did not see any facts in the majority or dissent to suggest that Ledbetter knew, 5 years before she filed suit, that she was being paid less than her male counterparts. I personally would have a different view of the outcome in that case if these facts were true, or if a jury had so found. At the very least, it might put one on inquiry notice.

I do think you overstate things when you say that the majority's opinion is grossly distorted because the Democrats/Obama fail to mention that Ledbetter could have argued for equitable tolling.

I agree that the decision does not foreclose equitable tolling, but it hardly endorses it either. But, your post is good in pointing out the grey areas of this decision that have been overlooked by partisans. I stated this was not a simple statutory construction case, and I stand by that characterization. If it were so easy, I don't think the circuits would have split on the issue.
5.24.2009 8:13pm
Ben P:

Ben P, are you aware that Justice Stevens wrote the following in Evans?

"United's seniority system does indeed have a continuing impact on her pay and fringe benefits."


Quotes in context are fun.

The whole paragraph reads

[quote]nited's seniority system does indeed have a continuing impact on her pay and fringe benefits. But the emphasis should not be placed on mere continuity; the critical question is whether any present violation exists. She has not alleged that the system discriminates against former female employees or that it treats former employees who were discharged for a discriminatory reason any differently from former employees who resigned or were discharged for a nondiscriminatory reason. In short, the system is neutral in its operation. [/quote]

I don't know whether it's the "correct argument" (that's "above my pay-grade" as it were), but I think there's certainly a very plausible argument that if someone is presently being paid less than their colleges for a discriminatory reasion, that's a "present violation" regardless of whether the actual payment decision was made previously. Ledbetter did file suit within 180 days of her last payment.


All I'm really arguing at this point is that there's sufficient ambiguity here that this merited making it to the supreme court and that a split decision was forseeable. Pretending that this is a 9-0 "the law says what the law says" is a bit dishonest.
5.24.2009 8:15pm
Andrew Hyman (mail) (www):
In the 1977 Evans case, Carolyn Evans was presently being paid less than her colleagues for the discriminatory reason that she had wrongly been denied seniority years earlier, just like Ledbetter had been denied a promotion years before her lawsuit.
5.24.2009 8:24pm
Christopher Cooke (mail):
The post is about what does Obama mean by "empathy." Focusing on that, it sounds like he means: "real world" and "middle class" or "lower middle class" experience, and someone who is pragmatic. I would expect, based on his descriptions, he may appoint someone who has represented individuals, or tried cases, and not just some academic or corporate/big firm lawyer, but who knows.
5.24.2009 8:32pm
Ben P:

In the 1977 Evans case, Carolyn Evans was presently being paid less than her colleagues for the discriminatory reason that she had wrongly been denied seniority years earlier, just like Ledbetter had been denied a promotion years before her lawsuit.


I think the facts are distinguishable.

In Evans, the discriminatory act was the policy that led to her resigning in 68. The statute passed on that instance of discrimination. Her subsequent difference in pay was the result of a neutral policy that treated her the same as all other employees that started in 1972 (and quit for whatever in

In Ledbetter, the decision was made that directly led to the discriminatory act. There was no neutrally applied policy in the middle. They discriminatorially decided to pay her less, and she was paid less through her career.
5.24.2009 8:34pm
geokstr (mail):

loki13:
Can't we get to the point where we acknowledge that reasonable people can have differing opinions, even if we think they're wrong?

I know you've been involved in commenting on the posts on SSM and torture, so you must already know the answer to this can't-we-all-just-get-along question. It is impossible as long as one side considers the other satanic neo-Nazis capitalist-roaders without honor or integrity whose motives are always evil and racist, and believes the debate is closed because there is already consensus that only their opinions are just and right.
5.24.2009 8:34pm
Andrew Hyman (mail) (www):
Ben P, Ledbetter submitted the following question to SCOTUS:

Whether and under what circumstances a plaintiff may bring an action under Title VII of the Civil Rights Act of 1964 alleging illegal pay discrimination when the disparate pay is received during the statutory limitations period, but is the result of intentionally discriminatory pay decisions that occurred outside the limitations period.


There was no continuing discrimination in Ledbetter, only continuing effects of discrimination, just like in Evans.
5.24.2009 8:53pm
LM (mail):
BGates:

Was it at Harvard that he learned that the President runs the auto and financial sectors of the economy?

No, I believe he learned those (the latter literally and the former by logical extension) from his Republican predecessor.
5.24.2009 8:54pm
LM (mail):
Oren,

The SCOTUS ruled that the statute of limitation just doesn't toll starting when until one learns of the allegedly discriminatory act.

I assume that's what you meant.
5.24.2009 8:57pm
eyesay:
Here is another example of empathy. Suppose there is a law stating that a case must be filed within two years of some event. And suppose that a government agency issues an adverse ruling of some kind and in the letter attached, states that the deadline to appeal is some particular day later than the two-year deadline. And suppose that someone relies on this letter and files before the government-stipulated deadline, but after the two-year statutory deadline. Should the filing be considered timely? Empathy says yes.
5.24.2009 9:09pm
Dennis Nicholls (mail):

Also, it is absurd to assume that when congress said "use a gun during the commission of a crime" that they meant anything other than "use a gun as a weapon during the commission of a crime."


How about this fact pattern? Crook trades gun for gas to fill up the getaway car. Crook then robs a bank with no weapon, only vague threats. Did crook use a gun in the commission of the bank robbery? I think I just wrote a good law exam question for the next time Prof. Kerr teaches crim. law.
5.24.2009 9:14pm
Andrew Hyman (mail) (www):
Eyesay, that hypothetical has various answers depending on the circumstances. For example, suppose the person who relies on the misinformation is a lawyer who should know better. Or suppose that the opposing party has relied upon the actual correct deadline. There is no simple answer, and courts have reached all kinds of conclusions.

But perhaps a more pertinent question is this: if Congress explicitly says that no one can rely on misinformation to extend a statute of limitations, may the courts simply disregard what Congress has said?
5.24.2009 9:28pm
LM (mail):
Constantin:

Which of Barack's understandings do you mean? The entire point of the original post is that his take on empathy seems to have changed.

That's one reading. Another is that you read his prior statements as conforming to the caricature painted by his opponents. A few days ago on another thread I suggested that empathy is simply a means or informing a better understanding of the facts. Was I clairvoyantly channeling Obama's later C-SPAN interview? No, it's just the proper role I see for empathy in a Supreme Court Justice. It's also a reasonable way someone not looking for confirmation that Obama has an extremist, activist agenda could read what he's been saying all along.
5.24.2009 9:52pm
Cornellian (mail):
Here is another example of empathy. Suppose there is a law stating that a case must be filed within two years of some event. And suppose that a government agency issues an adverse ruling of some kind and in the letter attached, states that the deadline to appeal is some particular day later than the two-year deadline. And suppose that someone relies on this letter and files before the government-stipulated deadline, but after the two-year statutory deadline. Should the filing be considered timely? Empathy says yes.

There is plenty of caselaw on this type of situation. Sometimes the law says yes, sometimes it says no, depending basically on the credibility of the government official who issued the ruling. Relying on a verbal statement from the receptionist who answered the phone at the DMV is not going to carry the day. A written opinion from the attorney general might be a different story.
5.24.2009 10:25pm
James Moylan (mail) (www):
DG said:

If someone isn't being paid enough, why not just quit? If someone is being paid less because they are a woman, why not organize a boycott? Why not take it to the streets or the Internet and use group power to punish those who offend against your group?

I don't see why the courts should be involved at all.




Only someone who has been paid too much for doing too little for far too long would make comments like this.

Sure: a poor, relatively ill educated working class black woman is going to quit her job, organise a boycott, use the Internet to create a mass movement against her employer etc.

Perhaps she should fly to the moon and collect space diamonds for a living?


Obama said:

That's the kind of case, where I want a judge not only to be applying the law in front of them, but also to understand that as a practical matter. A lot of times people have weak bargaining power.


I think Obama means, when he uses the word 'empathy', that Judges should avoid the ludicrous sort of reasoning that DG engages in.
That Judges should accept that education and financial opportunity are apposite considerations.
That extrinsic material should be considered in statutory interpretation.
That the mischeif being addressed by a statute (when it was created) should be considered when a strict literal interpretation is nonsensical or plain undjust.

In other words obama suggests that America might want to join most other developed countries in encouraging the Judiciary to cast off the false cloak of 'discovering law' and rather explicate their interpretations (law making) in a manner which makes the interpretation of statute open and transparent.
5.24.2009 10:51pm
Jim at FSU (mail):

How about this fact pattern? Crook trades gun for gas to fill up the getaway car. Crook then robs a bank with no weapon, only vague threats.


Ignoring for a second that crim law is taught from the fantasy land perspective of the model penal code....

Crook is guilty of robbery if the "vague threats" were threats comprising the use of force.
Crook is guilty of extortion if the "vague threats" were non-forcible threats not supported by law.
Crook is guilty of nothing if the "vague threats" were threats to exercise a legal right and he took the money as compensation for forgoing the exercise of those rights to which he is legally entitled.

Crook is NOT guilty of violating statutes that forbid using a gun to commit a crime. He used the gun in furtherance of his criminal activity, but not as a weapon. Even if he had used it as a weapon (say to steal gas), his use of the weapon would only constitute a violation if he was apprehended for the theft of the gas. Using it to commit armed robbery at the gas station doesn't mean it was "used" during the bank robbery. There's simply not enough proximity between the acts.

Caveat: I'm not a crim law person.
5.24.2009 10:52pm
Redlands (mail):
Here's a thought: He's a politician. Why should we attach any degree of confidence in anything he says about what wants in a Supreme Court justice?
5.24.2009 10:55pm
Brian G (mail) (www):
The Senate should carefully consider using a filibuster if the President nominates a radical to fillt he position, as the filibuster is an important check on the power of the Pres...uh, what was that Obama is President? I meant, those damn right-wingers better not try to unconstitutionally obstruct Obama's right to unilaterally chose whoever he wants to join the Court.
5.24.2009 11:06pm
Nick056:
Obama seems to mean that empathy is really a tool to help decide what is truly normative. In Ledbetter's case, her pay disparity, was to him, continuing, normal discrimination of which she was reasonably unaware. The quality of empathy would help a justice arrive at that interpretation, and that would inform his or her holding on the Title VII SOL.

Incidentally, in my rather worthless view, the case of Ledbetter was not an extension of Evans or Morgan but properly an extension of Bazemore. The majority did not distinguish the holding of Bazemore sufficiently. I found it highly ironic that the majority wanted the quoted section of Evans to ring out as precdent in this case, while Bazemore's case dealt directly with continuing pay disparities rooted in intentional discrimination. It held that a discriminatory pay system beyond the SOL was not immune from suit under VII.

I also think it's reflective of the bizarre heat cast on this particular decision that none of the commenters here --commenters, not advocates -- have even mentioned Bazemore. Evans was the victim of a policy that forced her to leave the airline; she later returned to employment with the company and wanted to apply Title VII. I find that a very imperfect analogy for someone whose employment was never terminated, but who was instead quietly subjected to a discriminatory policy whose effects continued in silence for years. The ongoing and disguised nature of the discrimination is crucial in an evaluation of SOL, isn't it? Evans was a single act of discrimination -- termination. And Evans is quite separate from Ledbetter on this account, isn't it? You can say of Evans that her returning to employment with the same firm contributed directly to the disparity she suffered. Can you say the same of Ledbetter?

The case is far more like Bazemore, which ruled for the plaintiff. And I have no idea what the EPA filing has to do with the SOL of Title VII. Is it relevant for purposes of interpretation that the lawyer didn't refile under the EPA, or merely for purposes of characterizing the plaintiff as someone who doesn't deserve a favorable ruling?
5.24.2009 11:08pm
Allan Walstad (mail):
I'm with the cynics on this one. Obama is a very clever politician. As with other pols, the point behind his choice of words is not to mean something but to elicit the sort of response (votes, adulation, political support) that he wants. The job of "empathy" is to elicit head-nods now, votes later.
5.24.2009 11:09pm
Nick056:
To elaborate on the question of empathy, I was discussing how empathy can be used. But I agree with LM. Empathy is rooted in imagination, and it's also necessary to understand the full scope and context of one's rulings as a judge. I would want any justice to have that quality. I assume the issue is that some think of judges as technicians whose empathy and imagination don't come into play.
5.24.2009 11:24pm
Nick056:
Allan Walstad,

That's a likely possibility. He is a politician. But your view assumes that he's not worried too many will really think about what he says very long or very hard. Is that really well-founded?

I'm just asking. That kind of animus toward certain politicians seems to necessitate a contempt for the polity as incapable of doing much beyond nodding or shaking their heads.
5.24.2009 11:27pm
BGates:
No, I believe he learned those (the latter literally and the former by logical extension) from his Republican predecessor.

Funny, he hasn't expressed gratitude for learning of these sweeping powers from his Republican predecessor. Though come to think of it, he hasn't had a nice word regarding any of his predecessor's decisions he's decided to follow.

Funny, too, that Mr Harvard Law Review is learning about the Constitution from old George W, isn't it?

Sure: a poor, relatively ill educated working class black woman is going to quit her job, organise a boycott, use the Internet to create a mass movement against her employer etc.
Rubbish, old chap! Can you imagine the audacity of these Republicans, claiming the Negroes could understand a computer? And who ever heard of a poor, relatively ill educated working class black woman organizing a boycott?

I know "poor" is false; she was making nearly $45,000 a year while living in Gadsden, Alabama. Did you read that and "relatively ill educated" out of "working class black woman"?
5.24.2009 11:30pm
Cornellian (mail):
Not that it matters, but Ms. Ledbetter isn't black.
5.25.2009 12:07am
Cornellian (mail):

If someone isn't being paid enough, why not just quit? If someone is being paid less because they are a woman, why not organize a boycott? Why not take it to the streets or the Internet and use group power to punish those who offend against your group?

I don't see why the courts should be involved at all.


The courts are involved because Congress enacted anti-discrimination legislation, and federal courts don't have the luxury of tossing out claims created by such such legislation because they don't feel like hearing them or think they don't exist. At the moment, the American public ranks the right not to be discriminated against in a business transaction higher than the right to carry on business transactions in a discriminatory manner (it's basically the reverse priority for non-business transactions). If you think the right to carry on business transactions in a discriminatory manner ought to have a higher priority, that's a perfectly logical position to argue. See if you can get the Republicans to adopt that as part of their election platform.
5.25.2009 12:13am
pdxbob:
Can't we get a better understanding of what he means by looking through his legal writings?
5.25.2009 12:30am
PlugInMonster:
Oh great. Instead of interpreting the Constitution, we need "empathy". Fantastic.
5.25.2009 1:54am
Nick056:
FWIW, Stanley Fish just delivered an excellent Think Again on this topic. Worth reading through:


This is the answer to Dahlia Lithwick's question, what's wrong with empathy? It may be a fine quality to have but, say the anti-empathists, it's not law, and if it is made law's content, law will have lost its integrity and become an extension of politics. Obama's champions will reply, that's what law always has been, and with Obama's election there is at least a chance that the politics law enacts will favor the dispossessed rather than the powerful and the affluent. No, says Walter Williams at myrtlebeachonline: "The status of a person appearing before the court should have absolutely nothing to do with the rendering of decisions."


And to the above posts, it still strikes me as funny how much heat this case provoked. Is it germane that she made $45,000 at the end of her career? (a fact I'm accepting as asserted). Or is it more relevant that men in her position made considerably more by sole dint of being men? Did her wage, given her family size, ever leave her impoverished or not? (I don't know).

I find it interesting that people whose only concern in this is that the legal conclusion is reached are nontheless holding as relevant her other court filings or her potential status as impoverished. Wouldn't the proper response to all that be not to argue with the liberal perspective, but simply to tell them that it's all irrelevant in the first place because your only proper interest in the decision is the law?

Or do facts outside the law color how you feel about this case and potentially its result, as well? If it's become a encoded battleground for political fighting, whose to say that the whole appeal and the underlying law weren't part of that same fighting all throughout? I mean, if you have no sympathy for Ledbetter not because the law wasn't with her (that shouldn't affect your sympathy) but because she possibly could have filed sooner, or should have known, or could have quit and organized, then your viewpoint on her is at least partly political, and so your viewpoint on the case at hand isn't free of politics.

So if you're going to concede your own politics in your view of Ledbetter, for the love of the Lord please don't sound so strident about your indifferent principled opposition to empathy in legal findings.
5.25.2009 2:28am
Nick056:
Who's. Who's.
5.25.2009 2:30am
Matthew K:
Does anyone actually take this rorschach test seriously? Half the posts on this comment thread translate to "I don't like Obama." While this is a fair position it doesn't really bear on the topic at hand.

To Orin's question

Notably, Obama seems to use "empathy" in different ways here, and in ways that appear (to me at least) to be somewhat different than his earlier uses. At various points in the interview, Obama suggests that empathy means just having an accurate understanding of the world. At other times, he seems to suggest it means being a pragmatist in the sense of interpreting the law to avoid bizarre results. Last I checked, though, no one believes that misunderstanding the world is a good thing, and even Justices like Scalia have a strong pragmatic streak. If that's all Obama means by "empathy," then, I'm not entirely sure what kinds of Justices he thinks don't have that quality. Maybe the idea is someone who is a purposivist rather than a textualist when it comes to statutory interpretation? I'm not sure.

I think you're making the same wrong assumption here as in your previous post on this topic: You are implicitly claiming that there is an objective right answer in law and right view of objective reality, and that all sensible judges will come to agree. This is false, as I'm sure you realize. Reasonable people can differ on matters of statutory interpretation, the relevance of the fear of a police officer v the fear of a suspect, and any balancing of rights. Much of this difference can be explained by different weightings of various facts and values. Obama wants to appoint someone who, all else being equal, is more willing than average to empathize with the less powerful and weigh their concerns more heavily (think the opposite of the employer liability cases circa 1900). This could mean a variety of things, and we won't really know which until he gives us a name.
5.25.2009 9:59am
martinned (mail) (www):
Indeed, these remarks by Obama seem to link up pretty closely with recent discussions about the fact that none of the current justices have experience as a trial court judge, or about Jeffrey Toobin's characterisation of the Chief Justice as someone with a somewhat sheltered background.


Congress, however, snubbed the Chief Justice. Six-figure salaries, lifetime tenure, and the opportunity to retire at full pay did not look inadequate to the elected officials, who make the same amount as judges and must face ordinary voters. Roberts's blindness on the issue may owe something to his having inhabited a rarefied corner of Washington for the past three decades.
(...)
In one respect, Roberts's series of prestigious jobs all amounted to doing the same thing for more than twenty years—reading and writing appellate briefs and, later, appellate decisions. During the heart of his career, Roberts's circle of professional peers consisted entirely of other wealthy and accomplished lawyers. In this world, a hundred and sixty-nine thousand dollars a year might well look like an unconscionably low wage.

(The earlier Volokh discussion about that article here focused more on Toobin's characterisation of Roberts' ideological position and of his style as a justice.)
5.25.2009 10:19am
Dan28 (mail):

Last I checked, though, no one believes that misunderstanding the world is a good thing

Is this so hard to understand? He's making essentially the same anti-formalist argument that has been made for generations. It applies to all formalists. E.g.:

"Some fifty years ago a great German jurist had a curious dream. He dreamed that he died and was taken to a special heaven reserved for the theoreticians of the law. In this heaven one met, face to face, the many concepts of jurisprudence in their absolute purity, freed from all entangling alliances with human life. Here were the disembodied spirits of good faith and bad faith, property, possession, laches, and rights in rem. Here were all the logical instruments needed to manipulate and transform these legal concepts and thus to create and to solve the most beautiful of legal problems. Here one found a dialectic-hydraulic-interpretation press, which could press an indefinite number of meanings out of any text or statute, an apparatus for constructing fictions, and a hair-splitting machine that could divide a single hair into 999,999 equal parts and, when operated by the most expert jurists, could split each of these parts again into 999,999 equal parts. The boundless opportunities of this heaven of legal concepts were open to all properly qualified jurists, provided only they drank the Lethean draught which induced forgetfulness of terrestrial human affairs. But for the most accomplished jurists the Lethean draught was entirely superfluous. They had nothing to forget."
5.25.2009 10:39am
Laura(southernxyl) (mail) (www):
Seems to me that if people are going to say "why didn't she just quit" and so forth, and think that's a relevant argument, then that points up the need for the court to have empathy. If you're going to mind-read, then go ahead and put in a good-faith effort.

Maybe she needed her job to put food on the table. People in that circumstance can't "just quit".

Maybe she feared that she couldn't rock the boat too much or they'd fire her. And maybe that was true.

She asked for more money, did she not? And was turned down. Maybe strung along - "next year we'll see". Meanwhile she needed her damn job.

I understand the need to follow the law as written. At the same time, if this underpayment, and discrimination based on sex, is a matter of record, and the law prohibited her getting satisfaction b/c of the statute of limitations, then the law is an ass. She was still living, the company still existed - what prevented them from cutting her a check for money they clearly owed her? They didn't have to, that's what.
5.25.2009 10:51am
geokstr (mail):

Matthew K:
Does anyone actually take this rorschach test seriously? Half the posts on this comment thread translate to "I don't like Obama."

And the other half translate to "I love Karl", whose vision of utopia was much more in line with those who favor empathy over the rule of law.

Amazing, isn't it, how that "empathy" thing works? From one "half" there is no criticism for those who agree, but those who disagree must have ulterior motives or else are just irrationally Obamaphobic (TM - look for this to soon be declared a mental disease or defect by the psychiatric profession).

Which is precisely why those who favor "empathy" do so so emphatically - because the rule of law applied as written doesn't always give their approved victim groups the correct result.

I'm sure that instead of the rule of law they'd much prefer the rules of Alinsky.
5.25.2009 10:52am
Desiderius:
Matthew K,

"You are implicitly claiming that there is an objective right answer in law and right view of objective reality, and that all sensible judges will come to agree. This is false, as I'm sure you realize."

And is also entirely beside the point, as I'm sure you also realize.

The question is not whether there exists an empirically perfect answer accessible to rationally dispassionate analysis (a question that must be as popular among the empaths as whether one likes Obama is among the antis, judging by how much it is answered without being asked), the question is whether a judge should look within to his own values or without to the legislature's and/or those expressed by prior precedent in weighing decisions.

That the judge's personal values inevitably inform her decisions is exactly why it is important to nominate judges who recognize the value of checking such personal partiality. I believe that Obama recognizes this and argues that an empathetic judge (his meaning) is less likely to allow the personal to become political on the bench.

I don't have such confidence in many of his supporters.
5.25.2009 11:38am
RPT (mail):
"And the other half translate to "I love Karl", whose vision of utopia was much more in line with those who favor empathy over the rule of law."

The Rove fans on this site tend to oppose Obama. I agree that the Rove fans oppose the rule of law, from Mr. Rove on down.
5.25.2009 12:03pm
Glenn W. Bowen (mail):

Well, there are some benchmarks that you have to make sure that you hit. Obviously, you want somebody who is highly qualified, who knows the law.


This is why I kiss the hem of his garments- he's a goddam genius...
5.25.2009 12:03pm
Michelle Dulak Thomson (mail):
Here's a "fact pattern" for you:

I worked for several years at a (now-defunct) retail establishment in Berkeley, CA. At one point, some years into my time there, I discovered accidentally that new employees that I was training were making more than I was myself. When I raised the issue with my boss, my pay was raised to the level (not over) of the new employees. I didn't demand back pay, still less sue. In retrospect, obviously I ought to have.

The thing is, this wasn't sex discrimination at all; it was "what can we get away with?" discrimination. My employers calculated, correctly, that I wouldn't inquire into what my co-workers made, and would probably not make a major stink even if I found out about the discrepancy. They weren't assuming that a woman would be satisfied with less pay; they had sized me up and decided that I was not going to demand more pay. There were other women on the staff that drove hard bargains and by and large got what they wanted.
5.25.2009 12:18pm
martinned (mail) (www):
@Glenn W. Bowen: Getting cynical, are we?

@Michelle Dulak Thomson: I sympathise, but I find myself wondering what exactly the point is that you're trying to make.
5.25.2009 12:20pm
ArthurKirkland:
I am surprised that those who defend the torturers (and murderers) of prisoners would be so dismissive of empathy -- isn't empathy just about the only refuge available to those who facilitated the mistreatment of shackled captives in a manner already repudiated? Antiseptic application of law would appear to direct the offenders to trial (in Italy, in the United States, in Spain, or elsewhere) and likely to conviction and imprisonment (or censure and disbarment).

Empathy is the only reason Scooter Libby escaped imprisonment, the only way Elliott Abrams was able to arrange another crack at a government paycheck, the only way a man like Oliver North is permitted to rejoin a decent society. Nearly everyone favors empathy, at least in some cases, even if they don't recognize it or won't acknowledge it.

A broader application of empathy by the Supreme Court -- broader than that within the grasp of someone who has lived in a highly informed and privileged, uncommonly sheltered cocoon -- strikes me as a worthy aspiration.
5.25.2009 1:21pm
Matthew K:

The question is not whether there exists an empirically perfect answer accessible to rationally dispassionate analysis (a question that must be as popular among the empaths as whether one likes Obama is among the antis, judging by how much it is answered without being asked), the question is whether a judge should look within to his own values or without to the legislature's and/or those expressed by prior precedent in weighing decisions.

I hope I need no evidence to claim that a person's perceptions are inherently biased by their backgrounds, values, and political views (I hope this mostly because I am far to lazy to justify something so basic). given that, it matters a great deal not just WHETHER a person is looking at legislative intent, precedent etc but also WHO that person is. Obama wants someone who is - shockingly - on the political left. He's also hinting that this person will be - wait for it, this is terrifying - inclined to sympathize with the disadvantaged (as opposed to certain current justices who I'd imagine he views as being a little too sympathetic to corporations).

This is why this entire discussion is fundamentally silly. Everyone is biased. The questions remaining are "how much" and "which way." The "which way" question has been answered. the "how much" question boils down to "do you trust Obama?" We might as well take a poll. Far more interesting is what will happen down the road (in a few weeks?) when we get a name.
5.25.2009 1:42pm
Desiderius:
MatthewK,

"This is why this entire discussion is fundamentally silly. Everyone is biased. The questions remaining are "how much" and "which way.""

Bullshit. The question is whether that bias is to be minimized or celebrated.
5.25.2009 1:53pm
geokstr (mail):

RPT:
"And the other half translate to "I love Karl", whose vision of utopia was much more in line with those who favor empathy over the rule of law."

The Rove fans on this site tend to oppose Obama. I agree that the Rove fans oppose the rule of law, from Mr. Rove on down.

Nice try RPT, but wrong "Karl". But you knew that already, didn't you?
5.25.2009 1:55pm
BenFranklin (mail):
Anyone who tries to make sense of anything Obama says is on a fool's errand. You are giving his words more thought than he does. He means whatever he feels at the moment and may feel the opposite the next moment. Indeed, I believe this is the very same interview where he said the government is out of money and then a couple of minutes later he states his intention to take over the health care system. You have to be totally devoid of reason and any hint of self-awareness to pull off that stunt ----- and it is sad to say Obama is well up to the task. Either he is too dense to understand the implications of the things he says or he is cynical enough that he is incapable of feeling shame at his own antics.

IMO we are going to get the judicial equivalent of Joe Biden as the Supreme Court nominee --- and that is if we are lucky. We have a man whose every instinct is towards fascism (who thinks nothing of bankrupting entire industries and violating private contracts) picking our next Supreme Court Justice. Obama sees no limits on government power so it would not surprise me if his nominee sees no limits on judicial power.

Indeed if "empathy" can be said to have any meaning whatsoever as a characteristic for a judge then it necessarily involves valuing something more than basing one's decisions on the law. It is a nice way of saying that we are going to get another would-be dictator who will use her own feelings and political views as the deciding factor in how she rules. But don't think you aren't living under a tyranny just because your views coincide with the tyrant's.
5.25.2009 2:05pm
innocent bystander (mail):
Wasn't it "empathy" that helped the Supreme Court majority in Bush v. Gore understand and act on the real-world implications of Republicans losing the 2000 presidential election?
5.25.2009 3:37pm
tanarg:
What he means, Prof. V, is that he wants a judge who will advance policy and go around the law -- or ignore it, as with the deadline for filing the suit in Ledbetter. He wants someone to curse the concept of the law altogether.
5.25.2009 3:42pm
Ben P:
These threads do more than anything else possibly could have to reinforce J.S. Mills views on conservatives.
5.25.2009 3:57pm
Desiderius:
Ben P,

"These threads do more than anything else possibly could have to reinforce J.S. Mills views on conservatives."

Confirmation bias is a bitch. I feel for you.
5.25.2009 4:04pm
Ben P:

Confirmation bias is a bitch. I feel for you.


You actually think the declaration that anyone whose view is different is a Marxist is actually some sort of valuable insight? Or that Obama wants to "curse the concept of law?"

If anything I fall closer to the cynical camp, Obama's going to appoint someone whose results will be reliably liberal, just as Bush appointed someone whose results would be reliably conservative. I don't for an instant think Bbush cared for a philosophy of law as differentiated from the results it produced, and I don't really think Obama cares either.

By all means I'd encourage any republican senator who thinks a particular nominee would be bad for the country to do whatever he feels necessary to oppose them or bring out the viewpoints he would consider to be bad. I'd probably agree with a number of the criticisms in practice.

But what I don't agree with is this pretending that one side is all about upholding the law, and the other side has nothing more than bad faith efforts to be biased in favor of certain groups or some sort of "judicial tyranny." To the extent it's just shilling for one side I expect it from politicians, but I'd hope commenters here would be better than that.
5.25.2009 4:43pm
Desiderius:
"To the extent it's just shilling for one side I expect it from politicians, but I'd hope commenters here would be better than that."

I would too, but sometimes you get what you pay for. On the other hand, if you think the category "conservative" is the appropriate one for such a complaint, and not a broader, more inclusive one, you're not paying attention. Hence confirmation bias and being a part of the problem you rightly decry.
5.25.2009 4:51pm
one of many:
I wish him well there, and given his past record at HLR, he is likely serious about the precedence he gives to the law and its history.

just caught this one while rereading the thread. Beautiful, I love it.
5.25.2009 6:18pm
Oren:



Sorry if that doesn't convince you. It seems to have convinced five Justices.

5 Justices still amounts to less than 250 Reps and 61 Senators.
5.25.2009 6:20pm
Oren:

The paycheck doesn't violate the statute, because the violation is based on intent, and the paycheck has no intent.

So, Goodyear intended to pay her the same as her male colleagues but somehow didn't manage it? Cutting a check is evidence of the intent to pay the payee the amount of money on the check. If the amount of money on the check is less than the amount on the checks of similarly-situated male colleagues, then cutting the check is discrimination.


I remember that discrimination case. Didn't congress explicitly limit the time within which suits could be brought and wasn't she clearly on the wrong side of that limitation?

I absolutely support the statute of limitations. If she had brought suit more than 180 days from her last paycheck, the suit would be properly barred.

Instead, the Justices invented this notion that the fresh injury in cutting each paycheck somehow magically is transported back in time to well before the check was actually cut.
5.25.2009 6:25pm
Tony Tutins (mail):

instead of the rule of law they'd much prefer the rules of Alinsky.

Or, almost as sinister, the rules of Dale Carnegie.

The "rules of Alinsky" are compatible with the rule of law, because they fit into the First Amendment freedom of assembly, and freedom to petition for redress of grievances. But as a way for the powerless to achieve their objectives, the "Rules for Radicals" do threaten the status quo.
5.25.2009 7:07pm
Mike G in Corvallis:
5 Justices still amounts to less than 250 Reps and 61 Senators.

If you're talking about passing laws, that exactly as it should be. The Supremes aren't supposed to pass new laws.

If your definition of "amounts" has anything to do with the 61 senators' wisdom, integrity, or reasoning ability, you'll have to at least show some evidence in support of your statement before I'll give it any consideration.
5.25.2009 7:28pm
Random Commenter:
"These threads do more than anything else possibly could have to reinforce J.S. Mills views on conservatives."

Translation: I've lost the argument, so I'm going to indulge myself in a bit of whingeing as emotional compensation.
5.25.2009 7:59pm
Tony Tutins (mail):

given his past record at HLR, he is likely serious about the precedence he gives to the law and its history.

just caught this one while rereading the thread. Beautiful, I love it.


Prohibiting unwarranted snark would improve the VC, I think.

The evidence is that as EIC of HLR, Obama devoted considerable effort to the law, by working hard, presiding over a good product, and writing a creditable case comment.

Obama's classmate, G.W. Bush's associate White House counsel Bradford Berenson, said to PBS's Frontline that [After Obama is selected,] he does a very able job as president. Puts out what I think was a very good volume of the Review. Does a great job managing the difficult and complicated interpersonal dynamics on the Review. And manages somehow, in an extremely fractious group, to keep everybody almost happy.

Per the Boston Globe, As editor for two semesters, Obama spent 50 to 60 hours a week holed up in a second-floor office of Gannett House, a 19th century building overlooking Cambridge Common. He reviewed hundreds of articles, on topics ranging from corporate law to racial bias in auto pricing, and presided over long, heated debates in the cluttered first-floor lounge.

Obama's case comment, on the rights of fetuses to sue their mothers, can be found at the taxprof blog.
5.25.2009 8:18pm
Oren:




Prohibiting unwarranted snark would improve the VC, I think.

Except it's unwarranted when coming from your side and entirely appropriate from mine.
5.25.2009 9:09pm
Borealis (mail):
"Empathy" is clearly a code word (to use the left-wing nomenclature).
5.25.2009 9:31pm
Haumea (mail):
"Empathy" is code for "social justice" which is code for class warfare vis-a-vis the courts. Obama wants judges who will offer rulings which will promote the Dictatorship of the Proletariat. C'mon -- it really is that simple.
5.25.2009 9:38pm
Desiderius:
one of many,

"just caught this one while rereading the thread. Beautiful, I love it."

Good to hear it. Here's a link that might help you convince others. Highlights:

"But Obama, who this March referred to "identity politics" as "an enormous distraction," was not so easily pinned down. He published a searing attack on affirmative action, written by a former Reagan administration official. And when, in an unusual move, he selected a young woman from a non-Ivy League law school to fill one of the Review's most prestigious slots, she produced an essay focused as much on individual responsibilities as on liberties, criticizing both conservative judges and feminist scholars.

"I was very surprised and honored to receive the invitation, of course, as I was teaching at Maryland Law School at the time, and the Foreword typically is extended to more established scholars at 'top' law schools," Robin West, now a professor and associate dean at Georgetown Law Center, wrote in an e-mail to Politico. While other articles are selected by the Review's editors as a group, the Foreword is solicited by a smaller band led by the Review's president...

If the editor and author — a black man and a woman — were an unconventional team for the Review, however, West's article challenged the then-prevailing wisdom in a different way, taking as its touchstone the work of Czech freedom fighter Vaclav Havel and the anti-Communist revolutions in Eastern Europe that were then still under way. Havel had written that the citizen's sense of responsibility — not just of individual rights — was essential to political liberty, and West applied that critique to contemporary liberalism to argue that goals such as tolerance and diversity might in fact be "weakened, not strengthened, by taking rights so 'super-seriously' that we come to stop examining our sense of responsibility."

Obama "clearly agreed with me at the time that a shift in constitutional thinking from a rights-based discourse to one that centered [on] responsibility and duties ... would be a good thing," West told Politico. "Partly because of those conversations, I don't find it surprising at all that Sen. Obama's speeches are often marked by calls to spark a sense of responsibility, rather than a sense of grievance.""

Snark, you say? No way.
5.25.2009 9:53pm
Paul Allen:
The citation to Ledbetter is scary, partisan stuff.

Oren writes:

5 Justices still amounts to less than 250 Reps and 61 Senators.

The Ledbetter Fair Pay act does not actually touch upon the issue that the court considered. Congress ducked and spin followed.

The court held that each subsequent paycheck did not constitute discrimination anew. The fair pay act allows that if first a "present" act of discrimination occurs then prior acts can be incorporated, but this was already the 'case-law' and was not altered by the SC.

Instead the SCs determination amounted to a finding that there was no "present" act of discrimination. Had Ledbetter the benefit of the congressional action the outcome would still be the same.

Ledbetter's essential claim was that because current pay can be represented as pay[i+1] = pay[i] + raise, then pay[0] is a component of any future pay[i+1]. The SC held that adopting such a per-se rule would subvert the intent of requiring a "present" act.

Ledbetter offered no further support for her claim, thus the SC decision was fatal to her case.
5.25.2009 9:54pm
edh (mail):
Can someone explain the difference between "empathy" and bias?
5.25.2009 10:01pm
eddy:
Can "empathy" on behalf of jurists be used to outlaw racial preferences that seem to find some people's civil rights more valued than others?
5.25.2009 10:02pm
Haumea (mail):
"Can someone explain the difference between "empathy" and bias?"

"Empathy" is the correct kind of bias.
5.25.2009 10:11pm
Oren:

The court held that each subsequent paycheck did not constitute discrimination anew.

Indeed. It's like if I beat my wife on the first of every month, each punch does not constitute assault anew. It's just an unfathomable result to my mind -- I can't wrap my head around Alito's reasoning here. Each check in which someone is payed less than a similarly situated colleague (the factual matter having gone to the jury) is an injury in absolute fact -- her bank account is that many dollars short.


Ledbetter's essential claim was that because current pay can be represented as pay[i+1] = pay[i] + raise, then pay[0] is a component of any future pay[i+1]. The SC held that adopting such a per-se rule would subvert the intent of requiring a "present" act.

That's an unflattering assessment of her argument. She argued that herPay[i] < hisPay[i] even though SimSit(her,him) is true. It hardly seems to matter what happened at time (i-1) or really any previous time, except that it goes to prove to the jury that, absent unlawful discrimination, herPay[i] would have been equal to hisPay[i].

That is to say, it's absurd (again, to my mind, I accept that no one seems to see it my way -- such is life) to say that when an employer writes a check based on the result of a past discriminatory process that he is not actually discriminating in the present. By basing decision on those results, he is adopting them as his policy in the present tense. It defies reason to say that I did something today but because the reason I did it was done a long time ago, the act itself isn't in the present.
5.25.2009 10:35pm
Tony Tutins (mail):

Except it's unwarranted when coming from your side and entirely appropriate from mine.

Although that definition has some appeal, for me, to be warranted snark must immediately provide facts in support, with sufficient specificity to satisfy an objective observer.
5.25.2009 10:37pm
Oren:

Can someone explain the difference between "empathy" and bias?

Empathy: Dick Heller is a responsible upright citizen living in a bad neighborhood who is denied the right to have an operable firearm in his home -- a right of self defense that is guaranteed by the 2A against this sort of unreasonable interference.

Bias: I think gun control is bad public policy therefore the 2A forbids it.

Does anyone really think Heller would have come out the way it did i plaintiff was a crack dealer or a pimp? I doubt it would have even gotten cert.
5.25.2009 10:40pm
Oren:

with sufficient specificity to satisfy an objective observer.

A what now?
5.25.2009 10:40pm
Tony Tutins (mail):

A what now?

Hey, I never said one would be easy to find.

*hums* I beg your pardon,
I never promised you a rose garden.
5.25.2009 10:50pm
Icarus:
A question from a non-lawyer - What is more important - re-writing legislation from the bench as was done in Ledbetter, or following the law (which would have gone against Ledbetter), and in the decision note that the law is poorly written, does not protect people and really needs to be rewritten, or however judges do that piece of magic?
5.25.2009 11:51pm
jt007:
Empathy is fine for a legislator. It is even good for a trial court judge when it comes to sentencing. Empathy should have no place in appellate jurisprudence. I always laugh when I hear the narcissist Obama talking about empathy for the poor. He grew up upper middle class, went to an elite prep school, and then went to the ivy league. Clarence Thomas grew up in the Jim Crow era south. I am certain that he has much more empathy for the poor and disenfranchised than Obama will ever have.
5.26.2009 12:03am
Paul Allen:
Oren writes:

That's an unflattering assessment of her argument. She argued that herPay(i) < hisPay(i) even though SimSit(her,him) is true.


Wrong. Ledbetter did not claim that Goodyear acted with discriminatory intent in the charging period by issuing the checks, nor by denying her a raise in 1998. She argued that the discriminatory behavior occurred long before but still affected her during the 180-day charging period.
5.26.2009 12:50am
davod (mail):
"Can't we get a better understanding of what he means by looking through his legal writings?"

I would like to read some of the President's legal writings.
5.26.2009 7:09am
martinned (mail) (www):
@Davod: Just check here: 103 Harv. L. Rev. 823.

(It's actualy a pretty interesting problem.)
5.26.2009 8:49am
Steakhouse County:
Any guesses on how an Obama-approved empathetic justice would decide on Kelo? With the little old lady, right?
5.26.2009 9:19am
Oren:

She argued that the discriminatory behavior occurred long before but still affected her during the 180-day charging period.

Continuing to pay her a discriminatory paycheck constitutes continuing discrimination.
5.26.2009 10:33am
Oren:


She argued that the discriminatory behavior decision occurred long before but still affected her during the 180-day charging period.

The core of her argument was the assertion that continuing to pay her less than her colleague was discrimination.
5.26.2009 10:35am
Laura(southernxyl) (mail) (www):
Oren wonders if no one sees it his way.

I do.

"Can someone explain the difference between 'empathy' and bias?"

Well, let's see. Suppose that a 13-yr-old girl has to strip-search b/c it's been reported that she has hidden an ibuprofen tablet in her underwear. And suppose that a male justice reasons that that should not have bothered her, because similar things didn't bother him. Is that empathy, or bias?
5.26.2009 1:06pm

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