Judicial confirmation hearings are supposed to be about the fitness of the nominee to serve. Last week, however, the Democratic members of the Senate Judiciary Committee used the hearings over Elena Kagan’s nomination to attack the “Roberts Court.”
This attempt took several forms, one of which was to call as a witness Lilly Ledbetter, the unsuccessful party in a 2007 Supreme Court case where the issue concerned calculating the time period for filing a charge of pay discrimination with the EEOC. The Ledbetter decision no longer states the law on the subject; Congress amended the statute in question. Nor, it need hardly be said, does Ledbetter know anything about Kagan’s fitness to serve on the Supreme Court. Ledbetter seems to have been called as a witness solely for the purpose of criticizing a three-year old decision of the Roberts Court that no longer controls the issue it decided, in the hope of painting that Court as “activist.”
However, Ledbetter’s critique of the decision, which has become the centerpiece of liberal Democrat claims of “conservative activism,” is founded on a false version of the facts of that case. I explained why here.
To summarize, Ledbetter and her Democratic fan club claim that the decision in her case left plaintiffs who don’t discover concealed pay discrimination until long after it has occurred, unable to overcome the statute of limitations defense, and thus unable to remedy the wrongdoing. But the Supreme Court has made it clear that the limitations period in a Title VII case can be extended or tolled in such circumstances. Ledbetter could not take advantage of such tolling because she admitted at her deposition that she knew by 1992 that her pay was out of line with her male peers, and raised the problem with her supervisor in 1995, yet waited until 1998 to file her EEOC complaint.
In her successful efforts to embody a cause celebre, Ledbetter has attempted to rewrite this record. She now claims that she didn’t know of, and had no way of learning about, the pay disparities, until much later than 1992 and 1995, when she received an anonymous note. This claim is false. Had it been true, she would have made a tolling argument to the Supreme Court. But she could not because, as noted, it was precluded by her sworn testimony.
Prompted by Senator Klobuchar, Ledbetter nonetheless repeated her false claim before the Senate Judiciary Committee during its July 1 session (see the testimony at around the 74 minute mark). Ledbetter went on to opine, citing Senator Specter, that “two of last three Justices” who have gone on the Court (presumably Roberts and Alito) “have not ruled according to how they testified” at their confirmation hearings.
Fortunately, two witnesses — Robert Alt and Ed Whelan — called Ledbetter and her Democratic supporters on her misrepresentation of the facts of her case. Alt, in fact, brought the relevant pages from Ledbetter’s deposition transcript to the hearing (see testimony at the 131 mark).
Unfortunately, Ledbetter did not testify on the same panel as Alt and Whelan (the Dems probably saw to the need to protect their star witness), and thus was not present when she was publicly revealed as a fraud. And Senator Cardin, who recently rehashed the Ledbetter lie and was called out by Whelan, ducked the session in which Alt and Whelan testified. So, for that matter, did Sen. Klobuchar
It’s amazing that Lilly Ledbetter finds herself at the heart of liberal Democrat jurisprudence. But considering the dishonesty of her claim that places her there, it is perhaps not surprising.
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