Guest Post: Eric on the Chicago conference Supreme Court Session

Guest post from Hubby Eric here. I attended a panel discussion with the following folks:

Moderator: Danielle Gray, Deputy Policy Director, Obama for America
Lilly Ledbetter, Plaintiff, Ledbetter v. Goodyear Ture & Rubber Co.
Maria T. Vullo, Chair, NARAL Pro-Choice America
Gary Feinerman, Litigation Partner, Sidley Austin LLP, Fmr. Solicitor General of Illinois from 2003-2007.

Danielle kicked off with a short statement where she called out the fact that George W. Bush’s only real ’success’ was that he has appointed more than 1/3 of ALL Federal judges.

The first speaker was Lilly Ledbetter. If you are not familiar with her story, it is one of ultimate injustice. After 19 years of working her way up at Goodyear Tire & Rubber, one day she found an anonymous note in her locker that listed her name and salary along with those of 3 male peers, all running comparable divisions and doing exactly the same sort of work. She was appalled and embarrassed to find that she was paid 40% less than her peers after 19 years of loyal service to her company. She said it was like waking up from a dream where you feel like you are walking around in a crowd and then realize you have forgotten to put on your clothes. She ultimately filed suit in Ledbetter v. Goodyear Tire & Rubber Co. and was awarded a judgment of $3.8 million in a jury trial, but the judge struck this down to a cap of just $300K, plus 2 years of back pay totaling $60K (which was computed by Goodyear based on the salary of the lower paid male peer in the entire company). Goodyear appealed to the dreaded 11th Circuit Court and won, and the case ultimately made it to the Supreme Court where Ledbetter was denied in a 5-4 decision in 2006 based on a statute of limitations technicality. Somehow she needed to both find out and then file suit sooner. How exactly she could have done this was unclear. Talk about the ultimate chicken and egg dilemma?!?

Next up was Maria Vullo. Her first point was a chilling one. Bush has left us with a multigenerational legacy: Roberts and Alito are both young men who could easily be on the court for 30 more years. In contrast, the liberal justices are aging with Stevens hanging on at 88 years old and Ginsberg at 75. More scary than this, Bush 43 has appointed 326 Federal judgesm about 40% of the overall population! If you add in appointees from Reagan and Bush 42 and you have more than 60% Conservative appointees with 10 of 13 Circuit Courts in the Republican majority. Having Republians for 20 of the past 28 years in the White House has left a dramatic legacy on the Judicial branch of governement. Roe v. Wade and other Civil Liberties literally hang in the balance. In fact, Liberals are “barely” 5-4 in the Supreme court with Kennedy being the sort-of 5th. This is a very tenuous position where an Obama presidency only puts us in a position to maintain and not even to gain. We NEED 8 years!

Next up was Gary, and he continued the theme. The next 3 retirees are all likely liberal. 12 of the past 14 appointees have come via Republican presidents, and in fact we have dodged two HUGE bullets, getting very lucky with Souter and managing to get Kennedy instead of Bork. However, we will not get so lucky again. McCain’s judicial committee is chaired by Ted Olson and Sam Brownback. You should have heard the groans and wails from the roomful of 400 women as these names were mentioned. As an example of Brownback, he actually blocked a female judge that was appointed by George W. Bush simply because she once attended a same sex commitment ceremony of a neighbor’s daughter and the woman had the temerity to actually utter a few public and congratulatory words to her friend’s daughter.

Maria took over again and spoke about the Violence Against Women Act. This was effectively neutered by a 5-4 Supreme Court decision in United States v. Morrison. She proceeded to explain that this is how the Conservatives worked. As in the case of Lilly Ledbetter, the courts very carefully gut social rights acts through technicalities so as not to have to take a controversial stand. John McCain speaks about the courts to his base in code–code to his base that shows he is hostile against Roe v. Wade and Civil Rights actions.

Gary chipped in with some more examples:

• An Indiana voter identification case.
• A habeas corpus case in the 6th circuit court, Bowles v. Russell. This was brutal. The prisoner had 30 days to file an appeal which the judge stated was 2/17. In fact, the appeal was filed a ‘day early’ on 2/16. There was only one problem. The judge had miscalculated the date which was in fact 2/14. The Supreme Court upheld the decision on the basis of this technicality and not on the merits of the case (and despite the fact that the judge had misled the prisoner.)

At this point the audience chimed in with questions (asking about access to the court to which Lilly described the agonizing length of her process), on how the confirmation process would play out if Obama were president (it would much easier for him that Clinton since the Senate will likely be very close to 60 Democrats; and even if we don’t have 60 there are reasonable Republicans like Susan Collins and Arlen Specter who would likely be amenable and of course the Republicans have spoken at length about how evil the filibuster is…), a question about diversity (only 20% of Federal judges are women and just 1 of 9 Supreme Court justices)

We finished with a few more example talking about how scary it could be if McCain wins. So for example, there is currently a ballot initiative in Colorado to define a person as a fertilized egg. If that passes it could ultimately be used to strike down Roe v. Wade AND would spell doom for stem cell research. Alternatively, Roe v. Wade is based on the right of privacy, and it could in concept be struck down by pitting the right of free exercise of religion against it. There was some other discussion about how Violence Against Women was gutted again citing the aforementioned Morrison case as well as Castle Rock v. Gonzalez, where the Supreme Court defers to state rights when it suits them and then in this case where it struck down a Colorado state statute using the interstate commerce clause.

All in all, this was a fairly dense presentation, but the basic gist of it was clear. The Republicans have gained more control of the bench that perhaps at any other time in history, and this will take generations to undo. If we have another 4 or 8 years of Republican presidency the impact will be far more dire than I ever imagine, going far beyond Roe v. Wade.