The Right Should Stop Demagoguing — And Obama Should Stop Distorting Facts – The Ninth Justice

National Journal

As has occurred with dispiriting regularity in recent decades, the current debate over filling a vacancy on the Supreme Court has been marred — already! — by a considerable dose of demagogy and false factual claims. It would be nice to see the media truth-squadding such stuff, without the usual double standards.

Take, for example, the wildly overheated denunciations of Judge Sonia Sotomayor by Newt Gingrich and Rush Limbaugh, on the one hand, and the demonstrably untrue assertions that President Obama has repeatedly made about the Supreme Court’s 2007 ruling against the now-famous Lilly Ledbetter, on the other.

Limbaugh has denounced Sotomayor as a "reverse racist" and a "hack" — adding that "Obama is the greatest living example of a reverse racist, and now he’s appointed one." Gingrich has also called her a racist and demanded that she withdraw.

"Hack?" Judge Sotomayor’s legal opinions may not be the stuff of brilliance, as some liberal critics have complained. But she is an accomplished jurist with many admirers and a stellar academic record at Princeton and Yale law School. She is also an inspiring, up-from-modest-origins American-dream life story.

"Racist"? Limbaugh and Gingrich based this imprecation on Sotomayor’s assertion in a 2001 speech that "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life."

I, too, have criticized that assertion. But in the apt words of former Karl Rove aide Peter Wehner, now of the Ethics and Public Policy Center:

It is entirely appropriate to criticize those comments and Judge Sotomayor’s decisions. But that is quite different, I think, from calling her a racist and insisting that she should withdraw. As a general matter, I think the term ‘racist’ is thrown around far too promiscuously and carelessly. … Strong, spirited, even passionate debate can be useful, and even important, in the life of a nation. But civility and decency are vital as well.

Wehner’s brief post — "Challenge, With Civility" — on Commentary’s blog "Contentions" is worth a full read (as are all of Wehner’s posts).

Obama’s misrepresentations of the facts of the Ledbetter case are far less inflammatory but will take a bit more explaining.

In elaborating on his quest for a new justice with "empathy," Obama has repeatedly cited the 5-4 rejection of Ledbetter’s claim of sex discrimination in pay. The more conservative justices held that Ledbetter had missed a congressionally imposed deadline because her claims of intentional discrimination involved decisions by Goodyear Tire & Rubber Co. more than 180 days before she filed suit.

Ledbetter "didn’t know that she was getting paid less [than male co-workers]," Obama said in a May 23 C-Span interview. "When she discovered it, she immediately filed suit to get back pay, and the suggestion was somehow that she should have filed suit earlier."

But the president’s statement was demonstrably untrue. This is clearly established by the record in Ledbetter v. Goodyear, including Ledbetter’s own sworn testimony.

The same misrepresentation of the facts has littered several previous statements by Obama, by Ledbetter herself since she became a poster-child for complaints that the justices are unfair to victims of job discrimination, and by congressional Democrats, as well as hundreds of media reports. These rampant falsehoods helped propel through Congress in January the dubious "Lilly Ledbetter Fair Pay Act of 2009."

I have pointed out the actual facts here, here and here. Others, including Hans Bader of the Competitive Enterprise Institute, have done so too.

But such assertions have so far been unable to withstand the winds of Ledbetter mythology. So let’s go to the evidence.

Ledbetter admitted in her sworn deposition that "different people that I worked for along the way had always told me that my pay was extremely low" compared to her peers. She testified specifically that a superior had told her in 1992 that her pay was lower than that of other area managers, and that she had learned the amount of the difference by 1994 or 1995. She added that she had told her supervisor in 1995 that "I needed to earn an increase in pay" because "I wanted to get in line with where my peers were, because… at that time I knew definitely that they were all making a thousand [dollars] at least more per month than I was."

Yet contrary to Obama’s assertions, Ledbetter did not "immediately" file suit — not in 1992, and not in 1995. Instead, she waited to sue until 1998, when her retirement was imminent. This was well over five years after she had learned of the pay disparities. It was also after a supervisor whom she blamed for much of the alleged discrimination had died, making it impossible for the employer to refute those allegations.

Indeed, Ledbetter’s lawyer didn’t even argue that the Supreme Court should extend to her claim, under Title VII of the 1964 Civil Rights Act, its rule in some other contexts that time limits should not begin to run until the employee discovers the alleged discrimination. "Because Ledbetter does not argue that such a rule would change the outcome in her case," Justice Samuel Alito wrote for the majority, "we have no occasion to address this issue."

As Alito explained, the logic underlying the relatively strict congressional time limit was that lawsuits filed years after the alleged discrimination — and after key witnesses have moved on or died, memories have faded, and records such as performance evaluations have been discarded — make it difficult or impossible for defendants to disprove false or misleading discrimination claims.

It’s less than clear, by the way, that Ledbetter was a victim of discrimination at all. Her years of poor performance evaluations, plus repeated layoffs affecting her eligibility for raises, convinced a federal magistrate judge that her relatively low pay did not prove sex discrimination. The jury disagreed and awarded Ledbetter back pay and punitive damages. Maybe the jury was right; maybe the magistrate judge was.

In her dissent, Justice Ruth Bader Ginsburg complained at length that the decision might deny any remedy to victims who learn long after the fact of pay disparities that were "hidden from the employee’s view." Ginsburg ignored both the fact that the pay disparities in Ledbetter’s case were not hidden from her view and the fact that the majority had not ruled out making an exception for hidden-discrimination cases.

At least Ginsburg refrained from saying that Ledbetter didn’t know that she was being paid less — the demonstrably untrue assertion that Obama has made repeatedly. Bad staff work? Let’s hope so.