[Congressional Record (Bound Edition), Volume 156 (2010), Part 8]
[Senate]
[Pages 11267-11270]
[From the U.S. Government Publishing Office, www.gpo.gov]




                            KAGAN NOMINATION

  Mr. CARDIN. Madam President, this Monday the Senate Judiciary 
Committee will begin the confirmation hearings for Elena Kagan to be an 
Associate Justice of the Supreme Court. These confirmation hearings 
will provide an opportunity to the public to see firsthand how 
important Supreme Court decisions are in their ordinary lives. There 
are many examples we could give, from schools to consumer issues to 
personal lives, privacy, religious protections, helping the 
environment, the workplace.
  In recent years, by a sharply divided Court, they have reversed 
precedent and congressional intent and ruled on the side of big 
business over individual rights. This is judicial activism, not 
judicial restraint. I hope all my colleagues will agree that the next 
Supreme Court Justice should be on the side of individual Americans, 
following legal precedent and congressional intent.
  I wish to give an example--I know my colleagues will give others--
about workplace fairness in Ledbetter v. Goodyear Tire. Let me provide 
a little background. Lilly Ledbetter worked for 19 years at Goodyear 
Tire. During that period, she was paid $15,000 a year less than her 
male counterparts doing the same work. This type of discrimination is 
prohibited by congressional statute under the Civil Rights Act of 1964. 
Within that legislation, title VII was specifically enacted to protect 
American workers from undue discrimination, including gender 
discrimination. When Mrs. Ledbetter found out she was being 
discriminated against, she did the right thing: she brought a claim 
against her employer.
  The only reason Mrs. Ledbetter knew she was being paid less than her 
male counterparts was because a colleague finally told her. This is not 
unusual. In fact, in most employment discrimination cases, employees 
are unaware of discrimination until an unexpected event occurs or 
undisclosed information finally comes to light.
  Mrs. Ledbetter went to court, stated her claim, and won. After 
multiple appeals, the case reached the Supreme Court. The Supreme 
Court, by a 5-to-4 decision, denied her claim. The Court said Mrs. 
Ledbetter had to file her case within 180 days after the beginning of 
the discrimination, and since she did not do that, her claim was barred 
by the statute of limitations. This defies logic. How can a person 
bring a claim when they don't know they are being discriminated 
against? It makes no sense.
  This decision appalled me and many of our colleagues. Whose side is 
the Supreme Court on? What happened to protecting American workers and 
not big business? What happened to following legal precedent? What 
happened to following congressional intent? What happened to judicial 
restraint from a majority of the Court that professes that is what they 
believe is right? If an employee is being discriminated against, there 
should be effective remedy. If they don't know they were discriminated 
against, it doesn't make the error any less wrong when they find out 
about it. The Court is clearly out of touch with the impact they have 
on everyday Americans.
  This case is a perfect example of hurting female workers. As of 2009, 
women comprised 46.8 percent of the U.S. labor force. As of 2009, 66 
million women were employed in the United States; 74 percent were 
employed full time; 26 percent, part time. Equal pay has been U.S. law 
for more than four

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decades. But on average, women today still make just 78 cents for every 
dollar made by a man in an equivalent position. Women of color are in 
an even worse position. The average earnings for African-American women 
were 68 percent of a male's earnings, while Latinos earn just 58 
percent of a male's earnings. The Supreme Court ruled against precedent 
and actually made it more difficult for women to bridge this gap. That 
is not what we want from the Supreme Court of the United States. That 
is not what we want as far as the activism of the Supreme Court is 
concerned.
  When the Court turned the law completely on its head and circumvented 
congressional intent, Congress stepped in. I am proud to say that my 
senior Senator, Ms. Mikulski, introduced the Lilly Ledbetter Equal Pay 
Act, which I cosponsored. This legislation had 54 Senate cosponsors and 
passed the Senate by a vote of 61 to 36. The House of Representatives 
passed the bill by a vote of 255 to 177. On January 29, 2009, President 
Obama signed his first bill into law, the Lilly Ledbetter Equal Pay 
Act.
  Under our system of checks and balances, each branch of government 
has a responsibility to keep the other in check. But we all should be 
on the side of the American people and workers. As the Judiciary 
Committee and the Senate convene next week to consider the nomination 
of Elena Kagan, we need to remember whose side we are on. We need to 
remember that big business can and will fend for itself, but it is 
individuals who look to the Court and to Congress to uphold the law and 
the protections it delivers.
  Elena Kagan will be the fourth woman to serve on the Nation's highest 
Court, and this will be the first time in history we will have three 
women serving on the Court at the same time. Elena Kagan's record as 
Solicitor General and her broad legal background give me confidence 
that she understands the appropriate role of the Supreme Court.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Rhode Island.
  Mr. WHITEHOUSE. Madam President, let me thank the Senator from 
Maryland for his comments about the Ledbetter decision.
  What we are gathering on the floor today to discuss is whether 
American corporations are getting something more than a fair shake from 
Republican appointees on the Supreme Court, whether there is a bit of a 
systemic lean in favor of corporate interests on the part of those 
judges to the point where we really now need to call that out because 
it is beyond what statistics could possibly justify.
  Certainly, the Ledbetter decision helps prove that point. We have at 
a company a woman who does not know she is being discriminated against; 
that for the same work as her male colleagues, she is being paid less. 
She has no way to know that. She does not know that. The fact that she 
does not know that is held against her rather than against the company 
which discriminated against her. The company was able to get off scot-
free for all those months and years of discrimination before she found 
out what they were doing to her. The law did not require that 
particular answer. As the dissenting Justices pointed out, it was, in 
fact, the wrong answer. But it certainly served the interests of 
corporations across America to limit their liability when they 
discriminate against their employees.
  The case I wish to talk about is the Exxon decision where the Supreme 
Court threw out a jury verdict after the Exxon Valdez oilspill, a jury 
verdict for punitive damages in the amount of $5 billion. Sounds like a 
lot of money. It is a lot of money, but at the time, it was just 1 year 
of profits for Exxon.
  Remember what they did in this case. They took this gigantic tanker, 
the Exxon Valdez, and they allowed the captain, a known alcoholic, to 
get on board drunk, to continue drinking heavily while on board, and to 
steer the Valdez aground in Prince William Sound, creating what was 
then, in 1989, the biggest oilspill in American history.
  Prince William Sound is still recovering from that. Our colleagues 
from Alaska will tell us that one can still pick up rocks on the 
seashore and see the oil on the underside of the rocks. We all remember 
the images we first saw there--and are now seeing tragically echoed in 
the gulf--of birds, marine mammals covered in oil, poisoned by oil, 
dying on the shores and beaches or, if they can be found, being 
recovered by human volunteers who try to clean them up and save their 
lives. It was a very significant error by Exxon.
  Everybody knows corporations are all about their bottom line. That is 
not me saying that; that is the law of corporations. They actually have 
a duty, a legal duty to their shareholders to maximize their economic 
self-interest. It is what they do. It is why they were set up. It makes 
them a very important economic engine for society. But it does mean we 
have to control that motivation through the law. One of the ways we 
control that motivation through the law is with punitive damages--
punitive damages assessed through the jury.
  Let me say a quick word about the jury. The jury is an American 
institution of government. It is mentioned three times in the 
Constitution and Bill of Rights. It is there for a reason. It is there 
for a very important reason. When de Tocqueville wrote ``Democracy in 
America,'' he wrote about the jury that it is ``an institution of the 
sovereignty of the people.'' He wrote that in a chapter whose heading 
was about protecting against the tyranny of the majority.
  The Founding Fathers saw it that way because they saw corrupt 
colonial Governors. They saw legislatures that had panicked in that 
period between independence and the Constitution. Remember Thomas 
Jefferson talking about the Virginia Legislature, saying: We have 
turned out 1 tyrant, and now we have 270 tyrants--or whatever the 
number was--of the Virginia Assembly. They had to go back, and Madison 
had to rethink the balance of powers. They adopted what is now the 
American system of government. They had an experience that there needed 
to be a place where one could go to get a clean decision from a jury of 
one's peers. And it didn't matter who the Governor was, who the general 
assembly was, what the power structure was; there was some place in 
American Government where power did not count, where the powerful and 
the powerless had the same shot. That is why it is in the Constitution. 
That is why it is described as a mode of the sovereignty of the people.
  When the Supreme Court takes away from the jury what seems to me to 
be a reasonable punitive damage assessment--if they had really been 
whacked for $5 billion, who knows what message that might have sent 
through the oil industry. Conceivably, it might have prevented the 
oilspill in the gulf if it really rattled their cages enough. But, no, 
it interfered with the predictability corporations want. So the Supreme 
Court threw out the $5 billion punitive damage assessment--just 1 
year's profit for that company--and knocked it down 90 percent. They 
adopted a rule that it couldn't be more than one-to-one with damages. 
It is not in the Constitution. It is not statutory. They just decided 
that the interests of corporations in predictability were so important 
that paying back Alaskans for the damage done and putting a punitive 
assessment on top of it that would prevent this from happening again 
was less important. Predictability was more important; deterring 
misconduct was less important. That is a value judgment. It is a value 
judgment these Justices bring to this Court.
  Jeffrey Toobin is an authoritative writer about the Supreme Court. He 
studies it carefully. He tracks it carefully. Here is what he wrote 
last year about our Chief Justice:

       In every major case since he became the nation's 
     seventeenth Chief Justice, Roberts has sided with the 
     prosecution over the defendant, the state over the condemned, 
     the executive branch over the legislative, and the corporate 
     defendant over the individual plaintiff. Even more than 
     Scalia, who has embodied judicial conservatism during a 
     generation of service on the Supreme Court,

[[Page 11269]]

     Roberts has served the interests and reflected the values of 
     the contemporary Republican Party.

  Remember, this is the one who, when being confirmed, said he was only 
going to call balls and strikes, as if that was even an apt metaphor. 
Well, it seems that the strike zone for individual plaintiffs is a lot 
smaller in this Court than the strike zone for the big corporations. I 
will pick out a part of the sentence:

       In every major case since he became the Nation's 
     seventeenth Chief Justice, Roberts has sided with the 
     corporate defendant over the individual plaintiff.

  That is as of May 25, 2009.
  If you take a look at the decision that came down today in Rent-A-
Center v. Jackson, an employee challenges a contract saying, Wait a 
minute. I should not have to be a party to that contract because the 
circumstances that caused me to enter into that contract were 
unconscionable. I should be protected from that contract because it was 
unconscionable to force me to sign it. The contract requires that you 
go and arbitrate instead of having access to--guess what--the jury.
  The Supreme Court said the decision over whether it is unconscionable 
should go to the arbitrator. You wouldn't even be at the arbitrator if 
the contract weren't valid. It is topsy-turvy logic. But, once again, 
it reflects the fact that the strike zone for corporations is a lot 
bigger with the Republican appointees of this Court than the strike 
zone for regular people.
  I see Senator Franken from Minnesota here waiting to speak, and I 
will yield the floor so he may do so.
  As we face this question of Elena Kagan's nomination to the Supreme 
Court, we need to be clear that when the opponents talk about rule of 
law, when they talk about not having activist judges, when they talk 
about making sure corporations get a fair shake, there is actually a 
little bit more going on here. There is a little bit more going on 
here, and what is going on here is that over and over and over again 
the Republican appointees to the U.S. Supreme Court, when they have the 
chance, will rule in favor of the corporation and against the 
individual defendant. It is not surprising, since the Republicans are 
the party of the corporations, that the judges they appoint want to 
help the corporations. We should not forget that fact as we look at a 
nominee who will hold the strike zone the same; who won't give that 
benefit any longer to the corporations that now, apparently, are 
beginning to feel they are entitled to at the U.S. Supreme Court.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Minnesota.
  Mr. FRANKEN. Madam President, I couldn't agree more with my colleague 
from Rhode Island and his eloquent statement, as well as my colleague 
from Maryland. I think we are going to be hearing a lot about this 
Roberts Court as we head into and during the Kagan hearings.
  I rise today to talk about Americans' basic right to have their day 
in court. The Supreme Court has always been a towering institution, 
both physically and metaphorically. Until recently, as visitors walked 
up the steep steps of the Supreme Court's front doors, they entered 
underneath a mantle inscribed ``Equal Justice Under Law.'' Now those 
bronze doors are closed to the public.
  That may have been because of security concerns, but it is hard to 
imagine a better metaphor for what has been happening to our Court. The 
Roberts Court has consistently denied hard-working people their day in 
court, blocking them from their entrance to the courtroom.
  Many of my colleagues remember me speaking on the Senate floor about 
Jamie Leigh Jones. As a 20-year-old, she went to Iraq as a contractor 
for KBR, then a Halliburton subsidy. She complained about sexual 
harassment almost immediately. She was put in a barracks with 400 men 
and a handful of women. When she complained to KBR, they not only 
ignored her, they mocked her. They told her, Oh, go spend the day in 
the spa. Four days later, she was drugged and brutally gang raped by 
her coworkers and then locked in a shipping container with no contact 
with the outside world.
  What happened to Jamie Leigh in Iraq was bad enough, but because of 
the Supreme Court's decision in Circuit City Stores v. Adams, KBR had 
been able to force Jamie to sign an employment contract that required 
her to arbitrate all job disputes rather than bringing them to a court 
of law. So Jamie, now a teacher in a Christian school in Texas, was 
forced to spend the next 4 years fighting to get her day in court after 
being gang raped on the job. She has had two reconstructive surgeries 
since this happened. Let me say this again. She was brutally gang raped 
on the job and still had to fight to get her day in court.
  I am proud the Senate passed my amendment to give victims such as 
Jamie Leigh Jones a chance for justice and I was proud to see it signed 
into law. But, sadly, we are about to see a lot more Jamie Leighs 
denied their day in court. Just yesterday, as Senator Whitehouse noted, 
the Court erected yet another hurdle for people seeking justice in 
another 5-4 decision, this one called Rent-A-Center v. Jackson.
  On one side of the courtroom in this case was Rent-A-Center, a 
corporation that runs over 3,000 furniture and electronics rent-to-own 
stores across North America, with 21,000 employees and hundreds of 
millions of dollars in annual profits. On the other side stood Antonio 
Jackson, an African-American account manager in Nevada who sought to 
bring a civil rights claim against his employer. Jackson claims that 
Rent-A-Center repeatedly passed him over for promotions and promoted 
non-African-American employees with less experience.
  Although Jackson signed an employment contract agreeing to arbitrate 
all employment claims, he also knew the contract was unfair, so he 
challenged it in court. But yesterday the Supreme Court sided with 
Rent-A-Center, ruling that an arbitrator, not a court, should decide 
whether an arbitration clause is valid. Let me say that again. The 
arbitrator gets to decide whether an arbitration clause is valid. Let 
me repeat that. The arbitrator gets to decide whether the arbitration 
clause is valid. That is just one step away from letting the 
corporation itself decide whether a contract is fair.
  In doing so, the Supreme Court made it even harder for ordinary 
people to protect their rights at work. Justice Stevens, not 
surprisingly, wrote the dissent. As he did in Gross, Stevens notes that 
the Supreme Court, yet again, decided this case along lines ``neither 
briefed by the parties nor relied upon by the Court of Appeals.'' In 
other words, the Supreme Court went out of its way to close those 
bronze doors--and keep them closed. Clearly, this is a ruling that 
Congress needs to fix, and I look forward to working with my colleagues 
to do so.
  Sometimes it is easy to forget that the Supreme Court matters to 
average people--to our neighbors and our kids. Some have tried to 
convince us that Supreme Court rulings only matter if you want to burn 
a flag or sell pornography or commit some horrendous crime. But as 
Jamie Leigh Jones and Antonio Jackson show us, the Supreme Court is 
about much more than that. It is about whether you have a right to a 
workplace where you won't get raped and whether you can defend those 
rights in court before a jury afterwards. It is about whether 
corporations will continue to have inordinate power to control your 
life with their armies of lawyers and their contracts filled with fine 
print. It is about whether they can force you to sign away your rights 
in an unfair employment contract so you never see the inside of a 
courtroom. It is, quite frankly, about the kind of society we want to 
live in.
  Next week, the Judiciary Committee will hold hearings on the 
nomination of Elena Kagan to the U.S. Supreme Court. Those hearings 
provide a good opportunity for us to examine the legacy of the Roberts 
Court and talk about what it would mean to have a Court that instead 
cares about hard-working Americans.
  Solicitor General Kagan is nominated to fill the seat currently 
occupied by Justice Stevens who wrote the impassioned dissent in 
yesterday's

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Rent-A-Center ruling. I hope General Kagan has learned from Justice 
Stevens and takes his words to heart. I look forward to questioning her 
during these hearings. I want to make sure she understands that Supreme 
Court cases impact all of our lives--and that she will be the kind of 
Justice who believes in equal justice under the law.
  Thank you, Madam President. I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Tennessee.
  Mr. ALEXANDER. Madam President, how much time do I have?
  The ACTING PRESIDENT pro tempore. The Republicans have 60 minutes, 
and individual Senators are limited to 10 minutes.
  Mr. ALEXANDER. Would the Chair please let me know when 9 minutes have 
expired.
  The ACTING PRESIDENT pro tempore. We will.
  Mr. ALEXANDER. Thank you, Madam President.

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