In last week’s hearings to determine whether former Harvard Law School dean Elena Kagan should be a justice of the U.S. Supreme Court, a number of liberal Senators criticized the Supreme Court’s 2007 decision in Ledbetter v. Goodyear Tire & Rubber Co. as the work of “conservative activists.” In Ledbetter, the Court reaffirmed that the 180-day time period – a period that Congress itself established – for bringing a charge of discrimination under Title VII of the Civil Rights Act is triggered when the alleged act of unlawful discrimination takes place.
This common-sense decision merely applied the statute as written. It disposed of the arguments by Lilly Ledbetter’s attorneys that the Court should “interpret” the law to trigger the 180-day period any time an employee experiences a “continuing effect” of an alleged discriminatory act, even if that discriminatory act happened years or decades in the past.
Last Thursday, the Judiciary Committee heard from Ms. Ledbetter herself, who testified that she did not know until years later that her male co-workers were allegedly being paid more than she was. But Heritage Senior Legal Fellow Robert Alt observed in his written statement for the hearings that Ledbetter admitted in her sworn deposition in the case that “she was aware of the pay disparity of which she complained more than 5 years before she filed her claim.” That’s a lot longer than the 180-day period that Congress established, and Alt produced a copy of Ledbetter’s deposition at the hearings.
Edward Whalen, president of the Ethics and Public Policy Center and former Principal Deputy Assistant Attorney General in the Justice Department’s Office of Legal Counsel, also rebutted the contention that Ledbetter decision is a product of “conservative activism.” As Whalen explained, the Ledbetter decision is consistent with four previous decisions on the same issue that the Supreme Court issued over the course of three decades.
But Whalen’s cogent defense of the Court from the unfair criticism of the liberal Senators may not have been his greatest contribution. In an act of verbal jujitsu, Whalen noted that Greg Garre, a former Solicitor General of the United States who Chairman Patrick Leahy (D-VT) had invited to testify in favor of Kagan and was also on the panel, had personal and professional knowledge about Ledbetter. Whalen encouraged the Senators to ask Garre about the case. While Garre disclaimed authorship of the government’s brief in the case, he said that Whalen had accurately summarized the government’s position. Garre also agreed with Whalen that the Court’s decision was “in line with a number” of the Court’s previous decisions.
Perhaps most significantly, Garre told Senator Sessions that he “would agree” that it is unfair to criticize the Court for being activist in Ledbetter.
Alt and Whelan testified during the only segment of the four-day hearings that afforded conservatives an opportunity to hear from witnesses who could set the record straight on the many half-truths and misrepresentations that were repeated like mantra-like during Kagan’s testimony. Liberal Senators had postponed this segment until after 4:00 p.m. on Thursday, about the time most Washingtonians and many others in the East and Midwest were headed out for a long 4th of July weekend.
Predictably, then, only Senator Ted Kaufman (D-DE) was present to represent the Committee’s Democrats during this segment of the hearings. Assuming they are intent on getting the facts straight, Senator Kaufman or some of the Senate staffers who remained and heard Garre’s testimony should enlighten the other Senators who have unfairly criticized the Court for its straightforward, common-sense holding in Ledbetter.