November 20, 2007

Ted Kennedy is unhappy with Supreme Court confirmation hearings.

Ted Kennedy complains about Supreme Court confirmation hearings in an American Prospect opinion piece that's as long as one of those speeches he gives when he's eating up most of the time that allotted to him for questioning a nominee at a confirmation hearing.

He begins by going on about the Ledbetter case, which involved the interpretation of the limitations period for making a discrimination claim:
[I]n a 5-4 opinion, the Supreme Court held that Ms. Ledbetter was entitled to nothing at all. The majority ruled that she should have filed her case within a few months after the employer decided to pay her less than her male coworkers. Never mind that she had no way of knowing what other workers made, or that the discrimination continued with each paycheck.
Yes, because you and your fellow members of Congress wrote a bad statute. Fix it.

But, no, Supreme Court justices are supposed to correct your mistakes, and if they don't, you'll huff and puff about how cruel and heartless they are. They're "dangerous."

Kennedy doesn't like their constitutional decisions either, but his argument is a mess because of the way he spotlights a statutory interpretation case.

Anyway, he thinks that nominees should have to tell the Senate Judiciary Committee how they would have voted in cases that the Supreme Court has already decided. Since the briefs and transcripts of the arguments are publicly available, Senators should be able to throw a case name at the nominee and get a decision on the spot.

How much respect for the judicial process does that show? Virtually none. In fact, it betrays Kennedy's belief that the justices are making purely political decisions. In which case, your real problem is that you don't like the person who has the appointment power, and the problem boils down to presidential elections. Or mobilizing enough opposition in the Senate — which you just can't do — and shouldn't be able to do — as long as the President picks highly qualified individuals like John Roberts and Samuel Alito.

131 comments:

rcocean said...

'Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the government, and the doors of the federal courts would be shut on the fingers of millions of citizens.'

-Ted Kennedy, back in the good old day when the confirmation hearings were substantive.

SteveR said...

Since I don't agree with him on nearly everything, its easy to pile on this aspect of his career but he's nothing but a partisan hack pretending to be substantive like John and Robert.

Hoosier Daddy said...

'Robert Bork's America is a land in which women would be forced into back-alley abortions

As opposed to Ted Kennedy's world where he leaves them to drown while he sleeps off a bender.

Next to former Klansmen Robert Byrd, Teddy has to be the most despicable person sitting in Congress.

paul a'barge said...

Ted Kennedy is the single living argument that will convince Republicans this year to hold their noses and vote for the person most likely to win.

Simon said...

How many questions did Senator Kennedy ask about Title VII during the nomination hearings? How many questions did any Senator ask about statutes of limitations?

Kennedy's right that the hearing process is broken, of course, but the solution starts with banning broadcast media from the hearing room. That that might incline the Senators to actually, you know, question the nominee instead of trying to get their soundbite on TV.

bill said...

Because Ted Kennedy fat jokes are always funny:

Ted Kennedy complains...when he's eating...at a confirmation hearing.

Original Mike said...

HD said: "Next to former Klansmen Robert Byrd, Teddy has to be the most despicable person sitting in Congress."

Personally, I'd place Teddy ahead of Byrd, but I'm with you.

Simon said...

Ann, I'm just itching to ask: you write that Senators "shouldn't be able" to mobilize enough opposition in the Senate "as long as the President picks highly qualified individuals like John Roberts and Samuel Alito." Is that "shouldn't" a normative position or a synonym for "probably won't" as it's sometimes used? If it's the former (which I suspect), my question's this: I seem to remember that you opposed Bork's nomination contemporaneously. Did you think he was not highly qualified, and if not, does this mean that your thinking on this point has evolved? Would you still oppose Bork's nomination today (ceteris paribus, of course)?

christopher said...

Hoosier Daddy said...
As opposed to Ted Kennedy's world where he leaves them to drown while he sleeps off a bender.


There are only two people in the world who know what happened at Chappaquidick.

One of them is dead, and the other one isn't you.

Hoosier Daddy said...

There are only two people in the world who know what happened at Chappaquidick.

One of them is dead, and the other one isn't you.


And that simply speaks volumes doesn't it?

The Drill SGT said...

Chris said...One of them is dead, and the other one isn't you.

We don't know the micro details of what happened inside a submerged car.

We do know he left the scene, went back to the party, failed to call 911, then ultimately went back to the hotel to get some sleep, while never notifying the police that Mary Jo was trapped or dead in a submerged car. He had a lawyer before he spoke with the cops 24 hours later.

Henry said...

That's true. One of them is dead.

One gets the sense -- with Arlen Specter's talk about super-precedents and the bewailing of 5-4 decisions -- that such politicians think the most important thing that SCOTUS justices do is vote.

In this view, the Supreme Court is just a second-rate Senate -- a gaggle of voting interests writ small, a tiny flock of Senator Potholes.

Legal reasoning? Pshaw. The Senate doesn't need any; why should the Supreme Court?

The Drill SGT said...

Kennedy wants "his" SCOTUS to be lierally an un-elected third legislative branch, populated by "elites" who will "do the right thing" regardless of the underlying facts or law.

Ann Althouse said...

Simon said..."Ann, I'm just itching to ask: you write that Senators "shouldn't be able" to mobilize enough opposition in the Senate "as long as the President picks highly qualified individuals like John Roberts and Samuel Alito." Is that "shouldn't" a normative position or a synonym for "probably won't" as it's sometimes used? If it's the former (which I suspect), my question's this: I seem to remember that you opposed Bork's nomination contemporaneously. Did you think he was not highly qualified, and if not, does this mean that your thinking on this point has evolved? Would you still oppose Bork's nomination today (ceteris paribus, of course)?"

If you look at the whole sentence "shouldn't" can be just in the "probably won't" since it would be redundant of the "can't" phrase that precedes it. Bork's case was different, because he didn't present himself in the way that candidates do today. He took positions, and I think that made it legitimate to oppose him if you opposed the positions. But, yes, I feel justified in opposing someone that the President wants if that person is saying that he rejects a constitutional right that I value.

christopher said...

We do know he left the scene, went back to the party, failed to call 911, then ultimately went back to the hotel to get some sleep, while never notifying the police that Mary Jo was trapped or dead in a submerged car. He had a lawyer before he spoke with the cops 24 hours later.

But you, of course, with godlike certainty, know that she'd still be alive if none of the above were true. Oh, please.

You don't like Ted Kennedy's politics, fine. But spare me your bogus self-righteous moralizing.

christopher said...

The Drill SGT said...

Kennedy wants "his" SCOTUS to be lierally an un-elected third legislative branch, populated by "elites" who will "do the right thing" regardless of the underlying facts or law.


As opposed to Bush, of course, whose nominees have no political agenda whatever.

It is to laugh...

Hoosier Daddy said...

But you, of course, with godlike certainty, know that she'd still be alive if none of the above were true. Oh, please.

You're kidding right?

Simon said...

Ann:
"If you look at the whole sentence 'shouldn't' can be just in the 'probably won't' since it would be redundant of the 'can't' phrase that precedes it."

I was just taking pains to avoid the risk of misrepresenting what you'd said. ;)

"Bork's case was different, because he didn't present himself in the way that candidates do today. He took positions, and I think that made it legitimate to oppose him if you opposed the positions. But, yes, I feel justified in opposing someone that the President wants if that person is saying that he rejects a constitutional right that I value."

Conceding that Bork spelled out positions, nevertheless, if this is your position then aren't you conceding that it's not just about qualifications? Advocatus diaboli, if you're justified in opposing a nominee who says they reject a constitutional value that you value, why isn't Sen. Kennedy justified in opposing a nominee because he infers from testimony and/or previous writings that the nominee rejects a constitutional value (or for that matter a judicial philosophy) that he values? Are you advancing a sort of clear statement rule, wherein it's generally the case that a qualified nominee should be confirmed even if one infers concerns about their jurisprudential views or philosophy, but where opposition is legitimized if they clearly articulate a position that's unacceptable?

Joe said...

"Or mobilizing enough opposition in the Senate — which you just can't do — and shouldn't be able to do — as long as the President picks highly qualified individuals like John Roberts and Samuel Alito."

"If you look at the whole sentence 'shouldn't' can be just in the 'probably won't' since it would be redundant of the 'can't' phrase that precedes it."

Sorry, Ann, but I'm not buying it. You're the author, you (hopefully) know what you intended when you wrote the first sentence--you don't need to resort to what the sentence "can" mean.

Think of Socrates and don't evade, please.

Either you meant it one way or you meant it the other. Now the original sentence doesn't have a very clear structure, but I think its meaning is clear.

Gahrie said...

christopher:

You really need to educate yourself on the fact of the Chappaquidik case before you attempt to comment on it.

AF said...

Yes, because you and your fellow members of Congress wrote a bad statute.

Right, because clearly paying a women less than men for the same job isn't "discrimination."

Pogo said...
This comment has been removed by the author.
Pogo said...

The Chappaquiddick episode forever taints any and every effort by Ted Kennedy to gain center stage. It kept him from the Presidency, and limits his influence as Senator.

He cannot claim any moral standing without having the issue raised. His sycophants attempt to shield him the best they can, ignoring it, denying it, or deflecting it, but since he has never admitted culpability, he cannot seek redemption.

So I don't read anything he has to say, much as his words are most often spoken in anger, as if blustering could somehow hide his sin, or more likely, angered by the shame that will not recede.

christopher said...

Gahrie said...

christopher:

You really need to educate yourself on the fact of the Chappaquidik case before you attempt to comment on it.

I find that amusing coming from someone who doesn't know how to spell it.

christopher said...
This comment has been removed by the author.
Henry said...

Drill Sgt. Kennedy wants "his" SCOTUS to be lierally an un-elected third legislative branch, populated by "elites" who will "do the right thing" regardless of the underlying facts or law.

I think you're wrong here. Certainly Kennedy and his ilk want to keep in place the decisions of the Warren Court, but I don't think they want such a court now.

Instead, when you look at the rhetoric, what they bewail is that the SCOTUS won't help out individual litigants. An old lady who loses her job. A guy wrongly convicted.

Otherwise they would prefer the Supreme Court not have any broad-based power at all -- certainly not power over themselves.

No, what they want is a kind of mini-Senate that treats issues of law as a form of constituent services. Don't worry about the law, just help people.

christopher said...

Henry said...
No, what they want is a kind of mini-Senate that treats issues of law as a form of constituent services. Don't worry about the law, just help people.


Like I said, as opposed to Bush's nominees, who have no political agenda whatsoever.

You guys are incredible....

DaveG said...

I find that amusing coming from someone who doesn't know how to spell it.

Christopher hereby invokes his "Get out of jail free" card. What a substantive response! On deck: "I know you are, but what am I?"

Simon said...

Henry said...
"No, what they want is a kind of mini-Senate that treats issues of law as a form of constituent services. Don't worry about the law, just help people."

I think that's right, at least in part, and you could infer it from Sen. Durbin's remarks to Roberts, seemingly urging that the latter breach the judicial oath and rule invariably for the little guy. I mean, if you find yourself deeply troubled by the old aphorism that "the law in all its majesty forbids rich and poor alike from sleeping under bridges and stealing bread," you probably don't belong on the bench. Run for Congress or something.

I disagree with you that they don't want a new Warren Court, though. I think that's how most liberals have come to think of federal courts, as a way of doing an end-run around the democratic process, as a way to place new restrictions on government that can't easily be undone. I talk to people all the time who have no conception of why courts have the power of judicial review - we're having some problems stemming from an election down here, and someone says to me "if we can't go into court and challenge this bad law, we're wasting our time and money having courts." It's as if they think that courts have some power to strike down laws at will if they're deemed "bad." And it's only going to get worse, because most teachers will tell you that NCLB leaves even less room for teaching civics.

christopher said...

The Iraq War forever taints any and every effort by George Bush to avoid the condemnation of history...
He cannot claim any moral standing without having the issue raised.


Fixed your typos, Pogo.

Tim said...

"Right, because clearly paying a women less than men for the same job isn't 'discrimination.'"

I'm sure Senators Kennedy and Dodd's waitress at La Brasserie applauds Teddy's courageous fight against discrimination.

Tim said...

"Fixed your typos, Pogo."

Ted Kennedy has killed more people than George W. Bush.

The Drill SGT said...

When the law is against you, argue the facts. When the facts are against you, argue the law. When both are against you, attack the plaintiff.

Chris says...when all else fails, complain about grammar

Henry said...
This comment has been removed by the author.
christopher said...


Tim said...

"Fixed your typos, Pogo."

Ted Kennedy has killed more people than George W. Bush.

In your dreams, pal.

Hell, Ted hasn't even killed more people than Laura Bush.

christopher said...
This comment has been removed by the author.
christopher said...
This comment has been removed by the author.
Henry said...

Christopher, I'm not talking about a political agenda. I'm talking about a conceptual failure on the part of politicians to distinguish between their methodology and that of the Supreme Court.

When Bush nominated Harriet Miers, he demonstrated the same obtuseness.

christopher said...


Henry said...

Christopher, I'm not talking about a political agenda. I'm talking about a conceptual failure on the part of politicians to distinguish between their methodology and that of the Supreme Court.

When Bush nominated Harriet Miers, he demonstrated the same obtuseness.


You think Bush named Harriet Miers because he was obtuse?

Wow...

The Drill SGT said...

Henry,

I will concede that there is some of that "help the little guy" demagoguery in the Liberal approach to the courts, but I think there is more than that. "Legislating from the bench" is a fair description.

An example would be the use of current foreign laws to interpret what the Founders meant in the Constitution. That seems like "the law is whatever I need it to mean" logic to me.

christopher said...

So apparently nobody gives a shit that Laura Bush ran down and killed an ex-boyfriend?

Simon said...

AF said...
"[Congress wrote a bad statute?] Right, because clearly paying a women less than men for the same job isn't 'discrimination.'"

I'm sorry, but do you just not read the Ledbetter case? Don't you think it'd be a good idea to have some clue what it involved before commenting? Whether or not there was discrimination wasn't the issue. The issue was whether, when Congress has imposed certain filing rules including a statute of limitations on discrimination claims, courts ought to ignore the statute of limitations and take the case anyway. I think what Ann's saying is that Congress wrote a bad statute because the filing period failed to take into account the realities of workplace discrimination identified in Justice Ginsburg's dissent. Ginsburg's dissent very cogently argues for why Congress should change the law, but as a critique of the court's decision, it's barely even relevant in the main.

Simon said...

christopher said...
"You think Bush named Harriet Miers because he was obtuse?"

I think he named Harriet Miers because he doesn't understand the conservative legal agenda and wanted a confirmable, uncontroversial justice who would merely provide results-oriented judging in a politically conservative direction. And with the greatest of respect to those who made the decision, because I think Bush holds our agenda in something approaching contempt, I respectfully suggest that the Federalist Society should not have invited him to the lawyers conference this year.

Ann Althouse said...

AF said..."'Yes, because you and your fellow members of Congress wrote a bad statute.' Right, because clearly paying a women less than men for the same job isn't "discrimination.""

Unfortunately, you don't know what you're talking about. Ledbetter is about when the limitations period for filing a suit begins to run. It's not about the substance of the claim.

christopher said...

I respectfully suggest that the Federalist Society should not have invited him to the lawyers conference this year.
10:46 AM


Ah, the Federalist Society. Now there's a bunch who operate strictly from principle and have no political agenda whatsover.

christopher said...

Nobody wants to talk about Laura Bush, ex-boyfriend killer?

What a shock...

Simon said...

Chris: I have to admit I'm more interested in the victims of Bungalow Bill (what did he kill, anyway?) and Johnny Cash's Reno escapade than I am in anything Laura Bush did, does, or ever will do. [Insert Dr. Cox rant on things he cares less about here].

Doyle said...

Is Ann capable of putting together a cogent argument, even in what should theoretically be her wheelhouse? It appears not.

Basically what this post amounts to is: "Ted Kennedy talks too much and goes on and on when really his problem is with himself."

Thought-provoking stuff.

christopher said...

Simon said...

Chris: I have to admit I'm more interested in the victims of Bungalow Bill (what did he kill, anyway?) and Johnny Cash's Reno escapade than I am in anything Laura Bush did, does, or ever will do. [Insert Dr. Cox rant on things he cares less about here].


I can't say that I blame you. I was just bringing the episode up because it exposes a certain, shall we say, hypocrisy vis a vis the outrage around here over Ted Kennedy.

The Drill SGT said...

Whether or not there was discrimination wasn't the issue. The issue was whether, when Congress has imposed certain filing rules including a statute of limitations on discrimination claims, courts ought to ignore the statute of limitations and take the case anyway.

Ann and Simon,

In addition as I recall, the plaintiff had a couple of methods of legal redress. The one she picked had the filing deadline problem but allowed punitive damages as I recall. As I remember it, she had another basis, that she passed on, that didn't have a limitation on filing, but would not have let her cash in for millions. bad choice

did I get that right?

Simon said...

Chris, of course we have an agenda, but the agenda is to get the courts out of the political process, not to use the courts to illegitimately further our agenda.

We believe that Justice Frankfurter was correct in Coleman v. Miller when he talked about the limitations on the power of the judiciary assumed by the Constitution and the importance of observing them. We think that "the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be."

christopher said...


Simon said...

Chris, of course we have an agenda, but the agenda is to get the courts out of the political process, not to use the courts to illegitimately further our agenda.


With all respect, you'll pardon me if I don't believe that for a nanosecond.

Simon said...

Sarge, I don't have time to check right now, but my recollection is that Ledbetter initially sued on a Title VII claim and an Equal Pay Act claim, but for some reason left the EPA claim aside on appeal. EPA doesn't provide quite the same remedies as Title VII, IIRC, and more importantly, it only applies to women whereas Title VII has a much broader scope - which means that ironically enough, for all the hullabaloo about how Ledbetter is a blow to women's rights because that's the context it arose in, it's actually far, far more of a problem for minority rights because women can still sue on the EPA.

Simon said...

Chris, believe it or not, it's true.

christopher said...

Simon said...

Chris, believe it or not, it's true.
11:01 AM


Dude, I totally believe that you personally are a principled guy.

But frankly, I'm not willing to make the same assumption about any organization of which Ted Olson is a member.

Actually, I'd really love to discuss this with you further, but unfortunately I have errands to run now.

Some other time...

JohnAnnArbor said...

With all respect, you'll pardon me if I don't believe that for a nanosecond.

You're assuming your own motives are the same as your political opponents. It's called "projection."

Simon said...

Chris - oh, I tend to hang around here, but feel free to drop me an email or IM any time. :)

Henry said...
This comment has been removed by the author.
Henry said...

Simon & Sarge -- I can't deny that liberal dream to legislate through the courts. But I think it gets way overplayed.

There's two ways that Congress and President try to get the courts to decide policy. One is to appoint judges who will make constitional decisions that swing your way.

The other, Congress's perogative, is to write fuzzy legislation - legislation whose exact meaning can only be decided by judges.

On the first approach, I think liberals like Kennedy hope to hold the status quo, but little else.

On the second approach, anything goes. But here is where Senators misconceive the role of the judge (as Bush misconceives it as well). They want the judge not to decide the course of the law (as in the first process) but to rule for the most deserving litigant.

In other words, they simply don't perceive the law in abstract (and thus they don't understand the concept of the rule of law). They see the law as a spoils system.

Bruce Hayden said...

Interesting problem. Ted Kennedy, new in the Senate, presumably voted for the Civil Rights Act of 1964 and the Equal Pay Act of 1963. Title VII of the Civil Rights Act had a provision in it that limited recovery to when suit is filed w/i 180 days of the discriminatory act.

In other words, Kennedy is complaining that the Supreme Court (as well as the 11th Circuit) is interpreting statutes that he helped pass according to the letter of the statute, and not his intent, or at least his intent is now 43 years later.

Yes, he did graduate from law school, and yes, he did pass the bar. But there was only 3 years between when he was admitted to the bar and when he was old enough to take over his older brother's seat in the Senate, and part of that time was spent getting said brother elected president. So, while he was techically an attorney (I use "was" since I doubt if he has done the CLE necessary to keep up his license in the meantime), I seriously doubt whether he really ever practiced law. And law school is 50 years in his past. So, maybe, just maybe, we can excuse him here through lack of understanding of how the Judiciary and the Constitution are supposed to work.

Bruce Hayden said...

I should note that the only other Senator who was in the Senate at the time that the Civil Rights Act of 1964 was enacted (Robert Byrd, D-KKK), probably voted against it, so he would almost have an excuse when criticizing the this recent interpretation of that Act.

Hoosier Daddy said...

I was just bringing the episode up because it exposes a certain, shall we say, hypocrisy vis a vis the outrage around here over Ted Kennedy.

You know, if Barb was tanked to the gills, left the scene of the accident and didn't bother to tell anyone about it for 24 hours, sleeping it off while the poor bastard slowly died, you'd have a point.

Just thought I would point out your attempts at equivalancy.

Doug said...

Nobody wants to talk about Laura Bush, ex-boyfriend killer?

What a shock...


Why would they? Could anything be less relevant to the discussion? Laura Bush is a private citizen, not an elected official. She doesn't get up during confirmation hearings and lecture the assembly as if she has some sort of moral authority, as Kennedy does. Furthermore, Laura Bush neither left the scene nor waited a day and got lawyered up before discussing her accident with police.

I hate to break up your little attempted "gotcha," since you seem so pleased with yourself about it. But feel free to try again.

Simon said...

Henry, I agree, but a qualification I'd add is that the second approach only works if you have a judiciary that's willing to go along with it.

Bruce, quite. I don't believe that the job of the courts is to "determine and give effect to the intent of the legislature" (even if there were such a thing, a myth thoroughly exploded many years ago by Judge Easterbrook) as used to be said, particulary in derogation of the text. It's the text that has survived the structural checks of bicameralism and presentment, and it's the text itself that's authoritative. Even when we look at seemingly external materials such as original meaning or purpose, the legitimate use of such materials is to clarify ambiguities in and shed light on the text itself. "My problem with purposivism isn't inherent to the purposive inquiry, it's that it is usually used as a way to go around the text, rather than to shed light on it." Of course, as Henry says, some law is vague and ambiguous, and that makes it very hard - not every case is as easy as Ledbetter (in which I frankly doubt that justice was done, but there just isn't another way to read the statute). Not every text has such a clear meaning, and sometimes you're left to pick which of two or more constructions is the more likely - which is why they call it judging. Because it requires judgment. But in such circumstances, it seems to me, the criterion - that is, what the standard to judge a construction of a statutory or Constitutional provision by - isn't intent of the legislator who sponsored the bill, but what was the original public meaning of this provision. What would a reasonable person, familiar with the context against which the text was enacted, have understood that text to mean (or at very least, what are the permissable range of constructions, which is sometimes all originalism can tell you, but in the main, particularly when combined with precedent, that does enough).

reader_iam said...

Laura Bush, two-days 17. Ted Kennedy, 37. One didn't leave the scene, the other did. For starters (but don't worry, I think I'll stop there).

christopher said...


reader_iam said...

Laura Bush, two-days 17. Ted Kennedy, 37. One didn't leave the scene, the other did. For starters (but don't worry, I think I'll stop there).


Laura Bush killed her ex-boyfriend in suspicious circumstances and beat the rap because of connections.

Not a problem for anybody here, though.

Meanwhile, Joe Scarborough has a TV show despite the dead intern in his office.

Also not a problem for anybody here.

You could choke on the hypocrisy.

P. Rich said...

AA said: "Yes, because you [TK] and your fellow members of Congress wrote a bad statute. Fix it."

Well said.

And perhaps you could help out the more left-leaning nitwits who post here with the fact that "He/she/they/it did too!" is neither a legitimate, adult argument nor a defense.

jeff said...

I don't know if Ted Kennedy wrote that or not. I suspect his staffers did. For the past several years during the Supreme Court nomination hearings, he can read out predetermined questions, but if things go off track and he has to speak extemporaneously, he just can't do it. They have to take a break and regroup.
So since Christopher's standard is you actually have to had been in Chappaquiddick to know anything about it, I have to ask where Chris was standing at the time of Laura Bush's car wreck? Or you can be like the rest of the world and read about the details, demonstrating the idiocy of comparing the two.

AF said...

Unfortunately, you don't know what you're talking about. Ledbetter is about when the limitations period for filing a suit begins to run. It's not about the substance of the claim.

I know what Ledbetter is about. The question was whether there was an unlawful employment practice, ie an act of sex discrimination, within the filing period. The majority assumed that the plaintiff was paid less than similarly situated men during the filing period. It nevertheless concluded that the claim was time-barred because any intent to discriminate occurred earlier. By finding that no act of discrimination had occurred during the filing period, the Court did, as I wrote, hold that paying women less than men for the same job isn't an act of discrimination. Or as Justice Ginsburg, who presumably knows what she is talking about, said in dissent: "Our precedent suggests, and lower courts have overwhelmingly held, that the unlawful practice is the current payment of salaries infected by gender-based (or race-based) discrimination—a practice that occurs whenever a paycheck delivers less to a woman than to a similarly situated man."

christopher said...

Or you can be like the rest of the world and read about the details, demonstrating the idiocy of comparing the two

Right. It's idiotic when I'm grinding a political axe but not when you are.

Get real...

jeff said...

"Laura Bush killed her ex-boyfriend in suspicious circumstances and beat the rap because of connections."

Nonsense. Although I agree on the hypocrisy in here. Considering if you change the name from Laura Bush to Ted Kennedy and ex-boyfriend to young woman, your statement becomes totally factual, yet you are willing to let Kennedy completely off the hook.

jeff said...

"Right. It's idiotic when I'm grinding a political axe but not when you are."

You catch me doing that, feel free to point it out. Seems to be your stock in trade though. As exampled here.

christopher said...

Well, those last two Jeff comments totally proved my point.

Thanks for playing...

jeff said...

Yeah, this is a mistake but what the hell.

What point of yours do you think was made by my comments?

Also, what color is the sky in your world?

jeff said...

oh, wait. I found something productive to do.

christopher said...


jeff said...

Yeah, this is a mistake but what the hell.

What point of yours do you think was made by my comments?



That in your world, Laura Bush may have deliberately murdered someone and beat the rap. But Teddy Kennedy is the worst person ever.

Shorter version: You're a self-righteous hypocrite with a barely concealed political axe to grind.

boldface said...

Pointing to supposed hypocrisy of your interlocutor is nothing more than a dodge - a way of avoiding the substance of his arguments. Whether the argument is valid or not has precisely zero to do with whether the person advancing it somehow can be cast as a hypocrite.

christopher said...


boldface said...

Pointing to supposed hypocrisy of your interlocutor is nothing more than a dodge - a way of avoiding the substance of his arguments. Whether the argument is valid or not has precisely zero to do with whether the person advancing it somehow can be cast as a hypocrite.


His argument is that Ted Kennedy did something much worse than Laura Bush, which is clearly false.

He's a hypocrite because he won't admit that he's arguing it because he doesn't like Kennedy's politics.

John Stodder said...

Doyle said...

Is Ann capable of putting together a cogent argument, even in what should theoretically be her wheelhouse? It appears not.

Basically what this post amounts to is: "Ted Kennedy talks too much and goes on and on when really his problem is with himself."

Thought-provoking stuff.


Doyle, since this is, in essence, the same post your write every time, I think it's time you showed us some of your writings. I'm sure everything is fascinating, original and well-argued. They've just got to be, in order to meet your own high standards.

You do something here that most of your comrades-in-arms also do. You don't actually respond to the arguments presented by Ann or others. You turn up your nose at them and pronounce them somehow unsatisfying, like a food critic at a third-rate suburban newspaper. It's neither clever nor persuasive.

The other thing you do is you encapsulate what's been said by Ann or somebody else and then dump on it, but your encapsulations are always a false representation of the argument you're opposing.

That Ted Kennedy talks too much was incidental to her argument. The point was, Kennedy's complaint about the court's ruling failed to mention that Congress bears far more of the responsibility for the unfortunate rulings of the court than the court itself. The court's role is to interpret laws, not rewrite them. While that statement is considered an ideological argument in some circumstances, when it comes to interpreting a number, there's no ambiguity. X days can't be interpreted to mean Y days. X days = tragedy? Blame the people who passed a law limiting the time to file a claim to X days.

It's kind of wimpy, don't you agree, to change someone else's argument, then tell everyone how dumb it is. You think you look smart doing it, but you're basically a fraud.

Next time, if you want any respect from thinking people, do the hard work of actually engaging the difficult part of the argument, the part you don't have a snappy answer to. Which in this case is: Why should the court be expected to interpret a law in a different way than it was written when the language is plain and unambiguous? How is a court's failure to do that "radical?" Why won't Kennedy place the blame where it belongs, on the people who passed the law?

steve simels said...
This comment has been removed by the author.
Pogo said...

His argument is that Ted Kennedy did something much worse than ...
Bullshit.
The argument was advanced by me. No one brought up Bush but you.
The claim is as follows: Kennedy's actions at Chappaquidick were reprehensible. The Kennedy family went into defend-attack mode afterwards to, once again, protect the family name from scandal.

But Ted has never been able to shake the shame of the event. He wasn't able to become President because of it. His shoe-pounding rhetoric lacks any real moral force. He is a diminished man, and his unhappiness with recent Supreme Court justices cannot be said to be based on a moral argument, at least not without expecting snickering.

That's the argument.
Refute it or not. Laura's actions have nothing to do with it.

christopher said...

But Ted has never been able to shake the shame of the event. He wasn't able to become President because of it. His shoe-pounding rhetoric lacks any real moral force. He is a diminished man, and his unhappiness with recent Supreme Court justices cannot be said to be based on a moral argument, at least not without expecting snickering.

That's the argument.
Refute it or not. Laura's actions have nothing to do with it.


Oh, bullshit.

Until you admit she did something equally as bad, if not worse, you're a rank hypocrite.

But you won't, because Teddy's the Ultimate Wingnut Bete Noire. It's an addiction for you guys...half your fundraising over the last few decades has been based on bashing him as the Worst Person in the World.

Sorry...Laura Bush may have deliberately murdered her ex-boyfriend.

Deal with it.

AF said...

Why should the court be expected to interpret a law in a different way than it was written when the language is plain and unambiguous?

Pray tell, where is this "plain and unambiguous" language of which you speak? Even Justice Alito's majority opinion doesn't say the language is unambiguous, he only says there is no "reasonable ambiguity":

"Nor do we see any reasonable ambiguity in the statute itself, which . . . clearly requires that discrete employment actions alleged to be unlawful be motivated “because of such individual’s … sex.” 42 U. S. C. §2000e–a(a)(1)."

Read the statute and see for yourself if he is right. Here is Justice Ginsburg's helpful statement of the issue presented:

Title VII proscribes as an “unlawful employment practice” discrimination “against any individual with respect to his compensation … because of such individual’s race, color, religion, sex, or national origin.” 42 U. S. C. §2000e–2(a)(1). An individual seeking to challenge an employment practice under this proscription must file a charge with the EEOC within 180 days “after the alleged unlawful employment practice occurred.” §2000e–5(e)(1). See ante, at 4; supra, at 2, n. 1.

Ledbetter’s petition presents a question important to the sound application of Title VII: What activity qualifies as an unlawful employment practice in cases of discrimination with respect to compensation. One answer identifies the pay-setting decision, and that decision alone, as the unlawful practice. Under this view, each particular salary-setting decision is discrete from prior and subsequent decisions, and must be challenged within 180 days on pain of forfeiture. Another response counts both the pay-setting decision and the actual payment of a discriminatory wage as unlawful practices. Under this approach, each payment of a wage or salary infected by sex-based discrimination constitutes an unlawful employment practice; prior decisions, outside the 180-day charge-filing period, are not themselves actionable, but they are relevant in determining the lawfulness of conduct within the period. The Court adopts the first view, see ante, at 1, 4, 9, but the second is more faithful to precedent, more in tune with the realities of the workplace, and more respectful of Title VII’s remedial purpose.

Pogo said...

Until you admit...
Chris, you're apparently too lazy to defend Kennedy on his own merits, but can only do so by attempting to compare him to a case with which he shares nothing but a car and alcohol, varying in all other particulars as discussed above.

He doesn't make me grind my teeth. Rather I pity him. he's a gortesque man consumed by his passions, projecting onto his enemies his own failures of spirit. Too small to be an enemy.

JohnAnnArbor said...

Repetition does not make stuff true.

christopher said...


Pogo said...

Until you admit...
Chris, you're apparently too lazy to defend Kennedy on his own merits


I'm not defending Kennedy. I'm accusing you of hypocrisy.

JohnAnnArbor said...

gortesque

I know it's a typo, but it's a good one! That should be a word!

JohnAnnArbor said...

And Chris will not give up attacking you on that, no matter the facts in the Bush case or the Kennedy case.

In the Bush case, the allegation is all-important, and must never be allowed to die.

In the Kennedy case, well...those conservatives just can't get over it. He's an important guy, don't cha know. Can't go investigating every little accident.

christopher said...

In the Kennedy case, well...those conservatives just can't get over it. He's an important guy, don't cha know. Can't go investigating every little accident

Caca de toro.

You simply can't bring yourself to admit that Laura Bush may have deliberately killed her ex-boyfriend and gotten away with it.

What has Teddy got to do with that?

JohnAnnArbor said...

He's the subject of the post.

Laura isn't.

That's the point.

Duh.

christopher said...

JohnAnnArbor said...

He's the subject of the post.

Laura isn't.

That's the point.

Duh.


Go call the fricking blog police, then.

Pogo said...

Chris,
Ted can be discussed on his own merits.

You're flailing. Either discuss his moral standing regarding his claims in the article, or don't. I believe you cannot because Ted is indefensible. The only pssible reaction is the "Tu quoque" offense. Rather pathetic for a man of his supposed stature.

Pretty much sand beneath him, it appears.

JohnAnnArbor said...

Go call the fricking blog police, then.

No need to be touchy. Everyone needs the obvious pointed out to them occasionally.

Some more than others, true....

SteveR said...

Chris, While I often disagree with you, you are capable of making reasonable arguments. This is not one of them. What anyone feels about Laura Bush, Bungalow Bill or Drew Peterson has nothing to do with the statement that Ted Kennedy's actions after that car went into the water, have damaged his political career and moral authority.

If you don't think so, fine.

Simon said...

AF said...
"The question was whether there was an unlawful employment practice, ie an act of sex discrimination, within the filing period. The majority assumed that the plaintiff was paid less than similarly situated men during the filing period. It nevertheless concluded that the claim was time-barred because any intent to discriminate occurred earlier. By finding that no act of discrimination had occurred during the filing period, the Court did, as I wrote, hold that paying women less than men for the same job isn't an act of discrimination."

What you wrote was that Ledbetter wasn't the result of a bad statute because (you say with sarcasm) "clearly paying a women less than men for the same job isn't 'discrimination.'" But that misses the point - what the court held was that the act of giving someone a paycheque is not a discriminatory act, and that's the only coherent way to interpret the law. Unequal pay, freestanding, doesn't violate Title VII; that's a fairly obvious implication of § 2000e-2(a), and even if it weren't, § 2000e-2(e)(1) says explicitly that "it shall not be an unlawful employment practice for an employer to apply different standards of compensation ... pursuant to a bona fide seniority or merit system, or a system which measures earnings by quantity or quality of production or to employees who work in different locations, provided that such differences are not the result of an intention to discriminate."

Title VII makes unlawful neither action nor discriminatory intent in isolation. Only when intent and action are coupled is there a discriminatory act that will support a Title VII claim; merely discovering that you're making less money than your coworker is not itself actionable. The necessity of these two things being coupled is the main bar against treating an individual pay packet as a clock-starting event, because paying a person is ministerial and involves no specific intent, so saying that my payroll computer connecting to the bank's computer and authorizing a transfer of funds in itself starts the clock anew is precisely to uncouple the two things Title VII requires to be coupled as a threshold matter.

christopher said...


SteveR said...

Chris, While I often disagree with you, you are capable of making reasonable arguments. This is not one of them. What anyone feels about Laura Bush, Bungalow Bill or Drew Peterson has nothing to do with the statement that Ted Kennedy's actions after that car went into the water, have damaged his political career and moral authority.

If you don't think so, fine.


I think the assertion by many on the right over the years that Kennedy killed that woman in cold blood reflect far more badly on them than Kennedy's actions reflect on him.

That's what I think.

And Pogo's assertion "He wasn't able to become President because of it" is revisionist crapola.

He wasn't able to become President because he got sandbagged by Roger Mudd in a TV interview. Had nothing to do with Chappquiddick.

AF said...

The necessity of these two things being coupled is the main bar against treating an individual pay packet as a clock-starting event, because paying a person is ministerial and involves no specific intent, so saying that my payroll computer connecting to the bank's computer and authorizing a transfer of funds in itself starts the clock anew is precisely to uncouple the two things Title VII requires to be coupled as a threshold matter.

Ah, there's the plain and ambiguous language I was looking for!

In all seriousness Simon, I understand the majority opinion in Ledbetter. Like Kennedy and Ginsburg, I disagree with it. You and Althouse agree with it. Fine. But don't tell me it's an unavoidable interpretation of the statute (not even Alito said that) or that I don't know what I'm talking about.

christopher said...

BTW -- is there anybody here who doesn't seriously think the Dems did this country a favor by keeping Bork off the court?

I mean, given the crap that's come out of his mouth in the years since, is there even a doubt that the guy isn't a humongous crackpot who had no business being within miles of SCOTUS?

Bill said...

I look forward to blogging software that includes the equivalent of a usenet killfile. Until then, could people please stop feeding the trolls?

SteveR said...

He wasn't able to become President because he got sandbagged by Roger Mudd in a TV interview. Had nothing to do with Chappquiddick.

Well that didn't help, I'll grant you that. "Senator, why do you want to be president?" was a real stumper.

Simon said...

AF, I'll apologize for inaccurately inferring that you'd not misunderstood Ledbetter, but hopefully you'll see why the brevity and sarcasm of your comment would have produced that impression.

In any event, the more important point I'd make is that I disagree with you as to the possible range of outcomes in that case. The reading adopted by the court isn't the better of two valid readings of the statute, it really is the only coherent way to interpret it. If you read § 2000e-5(e)(1) to permit each paycheque to start the filing period, you end up with the absurd conclusion that Title VII has a time limitation on claims that imposes no time limitation on claims, and an intent requirement that doesn't require intent. I know Justice Alito didn't go that far (and despite suggestions to the contrary in the MSM, nor did the court repudiate Zipes' holding as to whether the filing period tolls subject to a discovery rule), but Ledbetter never struck me as being a difficult case, and I was astonished to see it come out 5-4 (be careful about accepting the conventional wisdom that it'd have come out the other way with O'Connor still on the court, either).

Simon said...

In fact, come to think of it, I could have sworn that they expressly said in a footnote that they expressed no view on the discovery rule because it wasn't at issue in the case. I'll have to check that.

Walter said...

Snopes.com link about Laura Bush and her car accident.

Looks like she caused it, but there is no proof that it was anything but a tragic accident.

Blake said...

Not only is there no proof, it's nigh impossible that it was deliberate.

But all that's necessary to exonerate Ted Kennedy's actions is that some Republican, at some time, killed someone in a car accident.

You know. Because of THE HYPOCRISY!

Pogo said...

All of christopher's arguments are of the don't look at that, look at this! method.

That is, bullshit evasion tactics.

christopher said...

Walter said...

Snopes.com link about Laura Bush and her car accident.

Looks like she caused it, but there is no proof that it was anything but a tragic accident.


Thus making it in any significant way different from Chappaquiddick exactly how?

JohnAnnArbor said...

Did she leave the scene, then lawyer up before bothering to report, many hours later, a potentially deadly accident in a remote location?

I've never looked it up. Enlighten me. She must have, since you insist the incidents are identical.

An Edjamikated Redneck said...

Christopher, me explain it to you as I would my 3 year old grandaughter:

Kennedy was a Senator; Laura Bush was a 17 year old High School Senior;

Te Kennedy Left the scene of the accident and finally reported the incident 24 hours later, after being questioned on the girls wherabouts; Laura had the police on the scene and was questioned about the incident immediately

Kennecy and Mary Jo wer the only witnesses; Laura had a friend in her car, who was able to testify, and the father of the unfortunate victim as well.

And now I will give you the addendum I wouldn't give my granddaugter:

Google it stupid!

christopher said...

JohnAnnArbor said...

Did she leave the scene, then lawyer up before bothering to report, many hours later, a potentially deadly accident in a remote location?

I've never looked it up. Enlighten me. She must have, since you insist the incidents are identical.


Oh please. Two tragic accidents. End of story.

Except for assholes on the right who've been braying for decades that Kennedy actually killed the woman deliberately.

Oh, and redneck?

Now I will give you the addendum I wouldn't give MY granddaugter:

Blow me.

Thanks.

Hoosier Daddy said...

Laura Bush killed her ex-boyfriend in suspicious circumstances and beat the rap because of connections.

Not a problem for anybody here, though.


I try to give folks the benefit of the doubt but this statement convinced me that you are a troll and nothing more.

Be nice if this blog could find one intelligent liberal to have a discussion with.

JohnAnnArbor said...

Except for assholes on the right who've been braying for decades that Kennedy actually killed the woman deliberately.

I never said anything of the kind. I do believe he left the scene of an accident, with a person missing and possibly (as it turns out, was) in potentially lethal distress. Then he didn't report it until it was far too late to do anything AND after calling a lawyer. That is evil.

AF said...

I'll apologize for inaccurately inferring that you'd not misunderstood Ledbetter, but hopefully you'll see why the brevity and sarcasm of your comment would have produced that impression.

Well, given that my brief, sarcastic comment was an accurate description of Ledbetter, I think you and Ann should have read a little more carefully before jumping to the conclusion that I had not read the case or didn't know what I was talking about.

Blake said...

Be nice if this blog could find one intelligent liberal to have a discussion with.

Hey, now, besides Ann, there's MadisonMan, beth, Eli Blake, etc.

Even I used to be a liberal before liberal meant "statist".

Original Mike said...

HD said: "Be nice if this blog could find one intelligent liberal to have a discussion with."

I'm not sure there's more than one liberal (except for Ann) on this site. I think it's pretty clear that Christopher is Lucky.

Exhibit A: "Blow me"

Blake said...

Oh please. Two tragic accidents. End of story.

That's just moral equivalency. He doesn't have to have done it deliberately, his actions were not those of the leader.

It'd be like arguing that Clinton's perjury and obstruction was on the same level as Nixon's just because, you know, they were both perjury and obstruction, regardless of the context.

Original Mike said...

Blake is right. There's more than one.

I still think Christopher is Lucky.

An Edjamikated Redneck said...

Christopher said...Blow Me

Wonderfully stated argument there my friend. Hard to argue with the logic and persuasive use of language, especially for someone for whom English seems to be a second language; Gibberish is your native tongue I suspect?

I am tempted to suspect Christopher is you middle name, with perhaps Steve and Simels as the bookends?

Simon said...

Aron, I'm sorry, but I don't agree that you provided a the clear, accurate description of Ledbetter that you seem to think you did - you wrote (and Ann and I responded) to this statement: "Right, because clearly paying a women less than men for the same job isn't 'discrimination.'"

jeff said...

"That in your world, Laura Bush may have deliberately murdered someone and beat the rap. But Teddy Kennedy is the worst person ever.

Shorter version: You're a self-righteous hypocrite with a barely concealed political axe to grind."

Not in my world.
yeah, that's it. Only a self righteous hypocrite would have a issue with a Kennedy getting away with killing somebody.

So blue then? Pink? Eggshell?

George said...

So apparently nobody gives a shit that Laura Bush ran down and killed an ex-boyfriend?

What is this? National Enquirer? Are we going to be discussing space alien anal probes now? You guys aren't called Moonbats for nothing.

kermit said...

I loved your old pictures. This one looks ... I think it's the black. You look more severe than I take you to be.

George said...

-----He wasn't able to become President because he got sandbagged by Roger Mudd in a TV interview. -----

Yeah, what kind of idiotic journalist asks a candidate 'why he wants to be President'? Sheeshh!!!

reader_iam said...

I do not believe Sen. Kennedy killed Mary Jo Kopechne deliberately. I never have. I think those who think he did are loons. I always have.

Is it possible to state that more plainly?

reader_iam said...

AND--it's an "and," folks--AND I think he behaved dishonorably and dishonestly afterward, in context and connection. At 37. Contemporaneously to the accident, and thereafter, in relation to it.

reader_iam said...

"... ran down and killed her boyfriend ..."

Nice tabloid-language phrasing, but there's not one word there that's substantiated, and especially and most particularly because of the phrasing you chose. Not one (the "and" is guilty by association).

jeff said...

"I do not believe Sen. Kennedy killed Mary Jo Kopechne deliberately."

Does anyone? Anyone making that accusation? All I ever heard was he got out of the car, made it to shore, went to his hotel and didnt tell anyone until the next day. I think he was negligent and contributed to her death, but who said he wrecked the car deliberately? I think Christopher is making stuff up. Again.
Things I have learned this week:
Roman Polanski was a victim of a diabolical blackmail trap and Ted Kennedy was the real victim of his car wreck.
Anyone ever see the pictures of him with his neck brace? Priceless.

Bill4500 said...

Teddy's staff and the American Prospect are out to get him. How else could they let Teddyquiddick "author" an article using the phrase "Wrong Turn" in the title?

As for anyone being "blinded to the plight of America's most vulnerable" it is hard to imagine anyone more vulnerable than a young woman suddenly submerged in an Oldsmobile and then abandoned to her fate by her driver.

In recounting Teddy's actions a C'quiddick recall that before turning in that night he made quite a pretense of showing himself to the desk clerk to complain about a loud party and asking the time, no doubt to establish an alibi. He also tried to get his own cousin to take the fall.

Nice guy.

Kirk said...

Pogo,

"Ted can be discussed on his own merits."

Presuming he has any...


Blake,

"Even I used to be a liberal before liberal meant 'statist'."

Same here; I suspect we have a lot of company.

reader_iam said...

Jeff: I'm referring to theories and beliefs that precede and transcend--wait for it!--not just some one little thread on one blog, but also the blogosphere in general.

Of course, there have been (and I daresay, are) people who read much more, including more deliberate, into Mary Jo Kopechne's death over ye, these many decades. Of course, there have been and are people who believe in malign intent in that connection. This is not new. The internet didn't invent this stuff or enable ability: human nature did.

reader_iam said...
This comment has been removed by the author.
RockNTheFreeWorld said...

Those who argue this case was decided wrongly are basically throwing out the statute of limitations that is is the law. Do they really believe that someone hired with discriminatory pay in 1970 but receiving the same pay increase as everyone else after that point has standing to sue for discrimination in 2007 just because they received a paycheck last week?