Convictions: Slate's blog on legal issues

Yet Another California Primary

While much of the country trains its eyes on South Dakota and Montana tomorrow, California voters also will go to the polls.

According to my 23-page "Official Voter Information Guide" and my 40-page "Sample Ballot and Voter Information Pamphlet," I'm to choose candidates for four partisan offices (ranging from Congress to county committee) and two nonpartisan offices (judge and county supervisor). Then I'm to ponder two competing state ballot propositions (Ban eminent domain? Or not?), and one county ballot measure (Taxes, anyone?). Missing, for the first quadrennial year in memory, is a choice among candidates for president. It's thus as good a time as any to ask whether moving the presidential primary up to Feb. 5 was a good idea.

For the GOP, it might've been a smart political move. Sen. John McCain trounced his competitors in California that day, and he clinched the nomination not long afterward. The Democrats are another story. Sen. Hillary Clinton won by eight points, but victory in California did not deliver her the nomination. What's more, in the interim four months, Californians changed their mind: Were the election held now, polling indicates, Sen. Barack Obama would carry California by 13 points. For Democrats at least, California's primary once again seems not to matter.

But forget politics for a moment. It cost at least $51 million to hold that early, extra primary. How many California taxpayers do you suppose would say it was worth the expense?

McCain's Intemperate and Unfortunate Assessment of the Third Branch

John McCain's harsh assessment of the federal judiciary is unworthy of him.

While his praise for the separation of powers and judicial restraint is fine, and unexceptional, Senator McCain's suggestion that there is a flaw in the constitutional design or that the Supreme Court is an unchecked, or renegade body is simply off-base. 

There is no flaw, Congress has virtually plenary authority over the Court's appellate docket.  Congress can withdraw cases from the Court if it believes matters have been wrongly handled, and perhaps more importantly, it can mandate that the Supreme Court handle a full range of cases so that it has less time and less discretion to find itself tempted to mischief. The fact that the Congress leaves these powers largely untouched may have more to do with what distresses Senator McCain than judicial activism. 

Since Congress has it within its authority to keep the constitutional system in balance, it is imprudent and unfair to once again make judges the scapegoat for the constitutional outcomes with which one disagrees.  Certainly, it is vast overstatement to claim that there is some "common and systematic abuse of our federal courts by the people we entrust with judicial power."  Or that "for decades now, some federal judges have taken it upon themselves to pronounce and rule on matters that were never intended to be heard in courts or decided by judges."

I have just returned from having the privilege with the Solicitor General of discussing with Justice Scalia and the judges of the U.S. Fifth Judicial Circuit the methods of constitutional and statutory interpretation.  To a person, every judge present, regardless of the president who appointed him or her, spoke in earnest about faithfully adhering to the rule of law.  It is a simple fact that the conventional meanings of language do present issues that are difficult or indeterminant or not fully addressed by the legislative body.

While Senator McCain is to be thanked for the praise given the Chief Justice and Justice Alito, it is unbecoming and two-dimensionally partisan to imply that Justices Breyer and Ginsburg are ipso facto out of the mainstream or that there is  some "systemic" disregard of the judicial oath by the men and women who serve their nation in the Third Branch in the lower courts at a salary that is dwarfed by extraordinary levels of work and the burdens of the office. 

David Barron is right, Senator Obama should take the opportunity to outline his own understanding of judicial role and philosophy, and it might begin with a more fair and honest assessment of the judiciary. Like Senator McCain, I often concur with the particular constitutional outcomes that John Roberts, Sam Alito (and powerfully intelligent Antonin Scalia who McCain curiously left off his praise list) often determine, though it devalues their service to imply that these jurists are worthy merely because they have arrived at a conservatively happy ending in given case.  Because the legal questions presented to the Court are seldom self-evident, these men have disagreed with each other on some not insignificant matters, including federal commerce limitations on state power, and most recently, the Chief Justice had more agreement with Justice Stevens in upholding Indiana's choice to require a government voter ID than his former Reagan administration colleagues. 

It is poisonous to the health of the constitutional system to trash the Court  as venal politicians.  In truth, a general word of thanks from Senator McCain, and his leadership in the Senate to approve a much-needed and long overdue pay increase for federal judges, would be more statesman-like and welcome.

Equal Pay Bill

 Thanks Emily for pointing out the wrongheadedness of McCain’s opposition to the Equal Pay Bill.

This very mild piece of legislation would have undone an incredibly bad Supreme Court decision in Ledbetter which held that the filing period to bring a Title VII action for discriminatory compensation begins running when the employer first discriminates, even if the employer continues to in fact discriminate for years afterward.  The Court in Ledbetter wrongly focused on an discriminatory state of mind—which, contrary to Justice Alito’s assertion in that case is not the sine qua non of unlawful discrimination but rather simply evidence of it---rather than the actual discrimination: differential treatment because of sex.  

As I wrote in Slate last year, it’s pretty obvious that the actual discrimination is ongoing as long the employee is in fact receiving lower pay because of her sex, even if the subsequent low paychecks are simply the carryover result of the initial discriminatory decision.  It doesn’t (or shouldn’t) matter if the person setting later salaries based on the original discriminatory salary isn’t motivated by discriminatory intent—the employer is discriminating as long as it is in fact paying the woman less because of her sex.  The point of Title VII isn’t just to punish bad actors with evil intentions—it’s also to prevent discriminatory actions and the injuries that result from them.

And, contra McCain, far from encouraging frivolous litigation, the Equal Pay Act might even discourage it.   As Emily points out, in many cases it take a while for the employee to find out that she’s being paid less than other people doing the same work (employees rarely discuss their salaries with each other and of course management has every incentive not to publicize pay disparities)—but Ledbetter says that’s tough—if you don’t find out after until after the quite short filing period ends (either 180 or 300 days), your action is time barred. This actually encourages anyone with a potential claim to hurry up and file—waiting until you’re sure you’ve been discriminated against will, under Ledbetter, often mean your case is time barred. 

I have to say it’s hard for me to believe that anyone who is really committed to equal pay would oppose this mild and sensible piece of legislation-- it doesn't open us up to lawsuits for "all kinds of problems"-- only for the problem of discriminatory pay.  Opposition suggests that McCain is most concerned with reducing the absolute number of cases filed—whether or not they have merit.