A rainy day for judicial activism May 31, 2007
Posted by reformedville in : culture, Government, Media , trackbackToday was a very good day! I woke up this morning to read my “google news bites” and tabbed four articles to read, one by Susan Estrich. I like Susan Estrich, because though we normally see things completely different, it gives me another facet of the gem to view and many times cuts to the core of the issue, instead of loading in fluff. I appreciate that, because agree or not you get to deal with the issue and her posit on it. This is no different, but I could not disagree with her more, and in fact, this is a day that gives me a gleam of hope that all may not be lost in our court system.
Susan in her hit piece on the supreme court posits that Sandra Day O’ Connor is no longer ‘her hero’ because she retired to take care of her husband, when she was needed in Washington to carry the banner of womens rights and if in fact she had been there in Washington that this case would have been decided the other way.
The amount of assumptions here is staggering, but what is not, is the fact Susan posits if O’Connor was on still on the court, this case would have been rendered as a heart position, or a cause position, despite the facts of the case. Her vote for women could have been counted on. The case of Lilly Ledbetter at first glimpse may look like one of discrimination ‘as Susan frames it’, but onced one reads the opinion, the lament is not the decision, but that the justices are deciding cases on the law as written by Congress.
Based on current law and case law this was a shot in the dark for a retired employee at the end of a lackluster career in management who laments that after countless poor performance reviews and near lay-offs, that she was discriminated against for being a woman.
Susan reduces her piece to the seniority Ledbetter had and that over a nineteen year period a fellow manager was making 15,000 a year more than her, as well as some new hires making more than her. Anyone in management knows rates of pay for job titles increase, especially over a period of two decades. Many times I have seen new hires compensated very close to someone who has been loyal to the company store for decades because of these increases. You will see more of this with the new minimum wage rate hikes that seniority will lose major value in the terms of compensation.
How can an manager go back after two decades and cry about their compensation? This looks very much like a case that nearing retirement a manager who was content with their compensation sees a way to take an early retirement being spurned on by an attorney in what many ways closely resembles a test case.
Do we know if this manager was initially hired to fill a quota of women managers for the company? We do know that there were plenty of uncontested poor performance reviews that denied her any raise. Where is it written that if you have a group of managers that a man must be the lowest paid among them so not to be accused of discrimination? Is Susan positing that it is unfair for a company to give increases based on performance of their job title?Susan is positing a rote style compense package for managers where all variables, including a managers expectation to bargain for compensation if they are unpleased with their package, at which time a decision would be made if the managers value to the company and case for the raise is justified. I can tell you many managers who are unsure of their value to the company in terms of compensation would never risk their employ by laying it all on the line to get the adjustment or else, where others do it frequently. In her case she remains mute for all these years about her dissatisfaction of not getting raises ,then yells discrimination ex post facto. Susan is a law professor and really has misrepresented this to the readers.
Furhter, Susan denigrates marriage and peoples commitment to one another (those silly vows) in this piece. While she fights for a womens loyalty to the company store on one hand, she knocks Sandra’s priorities of her commitments in life , honoring her vows and placing it as a higher place of import than her employment.
Ironically, Susan also unwittingly reduces Justice O’Connor to nothing more than a mindless rubber stamp who will come through for the cause despite the facts in the case, which Susan noteably only provides very few details on, and to which I respond. If Justice O ‘Connor was as shallow (support the cause, the facts are irrelevant) as Susan posits her choice, for the sake of the law her choice to retire was none to soon. However, Justice O’Connor was many times deemed flippant as being a swing vote, which denotes she in fact thought through the cases she heard, and I believe that Susan owes her an apology for denigrating her to a mere rubber stamp.
For those of you who felt I had nothing good to say about the President the last couple posts, take heart ! In reviewing the past two presidential elections , there is one often forgotten dynamic that may have well been responsible for putting George Bush in the oval office, the appointment of Supreme Court Justices and his promise to appoint men that would be strict constitutionalists. He did nominate Judges to the bench who believe in interpeting the law and not legislating from the bench. If we disagree with a law we are to change the law through the legislative process, not wait until the case is in court and then expose another to liablilty/damages by legislating from the bench. The law is complex and voluminous enough today, at a minimum it must be a fixed standard if we are to maintain a society that has any sense of normative rule of law, otherwise we have chaos and disorder.
Do you believe Susan was disingenuous with her recounting of the case in light of the facts of the case and the well reasoned opinion?
Do you support changing the law in the court if you feel it is wrong? If so, should someone be exposed to financial liabilty/damages if the court finds the law is unfair?
In reading this case do you feel that managers who performed well and to company standards deserve a larger increase than someone who does not? If all are compensated the same despite performance what is the motivation to do a good job or the penalty for not?
Do you feel Ledbetter was discriminated against?
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Ledbetter, Lilly v. Goodyear Tire & Rubber Co. Docket: 05-1074 Term: 06-07 Appealed From: 11th Circuit Court of Appeals (Aug. 23, 2005) Oral Argument: 11-27-06 Opinion Issued: 5-4 for Goodyear Tire & Rubber Co. (Alito-May 29, 2007) Subjects: Title VII, sex discrimination, disparate pay, statute of limitations Question presented: Whether a plaintiff asserting a disparate pay claim under Title VII against an employer that periodically reviewed and re-established her pay under a facially neutral compensation system may challenge pay decisions prior to the last decision immediately preceding the start of the statutory limitations period? Related Links:Supreme Court opinion (May 29, 2007) 11th Circuit opinion (Aug. 23, 2005) Feature - The Court and 77 cents on the dollar Brief in opposition of certiorari - Goodyear Tire and Rubber Co. 2002 Supreme Court opinion in National Railroad Passenger Corp. v. Morgan |
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