"When I first came to Washington, I was surprised at how few Democrats had taken their argument for the merit of paid leave to their colleagues across the aisle."

"So it really was starting from the beginning and talking about this policy and framing it in different terms.... We proposed the first ever bipartisan, bicameral plan.... [T]he president has made very clear he thinks that this is critical policy. And now we are working with members on both sides of the aisle to see who has the right policy to move forward and to be able to garner the votes to pass this into law....  I think the option that has been put out there by the Democrats without even opining on the policy of it, it has sat there since 2012, has never been scored, has never received the endorsement of a president, including President Obama, and has never received bipartisan support from colleagues in the Senate. So the way I look at it is that the debate had grown stale...."

Said Ivanka Trump on "Face the Nation."



The interviewer, Margaret Brennan, tries to bring a little edge.

First, she brings up the fact that Ivanka, in her own private business, did not initially have a paid family leave policy in place. Ivanka's answer is that the first pregnant person in her company was the fourth person hired, indeed, she was pregnant at the time of hiring, and they put a policy in place at the point.

Second, Brennan introduces the topic of family separation and immigration, which she is kindly enough to observe that Ivanka was "vocal" in opposing and called "a low point." Brennan asks if Ivanka is still "engaged" on the subject of family separation. Ivanka answers and quickly turns the subject to human trafficking:

Why is this article — "New mothers who took leave in California were less likely to work a decade later than those who didn’t" — illustrated with a photo of a father?

And why is this "A Surprising Finding"? It seems completely unsurprising.

The title on the article page is "A Surprising Finding on Paid Leave: 'This Is Not the Way We Teach This.'" It's surprising mainly because other studies had shown that paid leave would improve the chances that women would return to work. I guess logically you might think that not every parent takes leave and that the ones who would take unpaid leave are those who don't need money so much and might be likely to drop out of the working-for-money way of life. If there's paid leave, you'll get some people who need the money, so paid leave should swell the ranks of the parents-on-leave with people who need to work for money, and they'd be going back to work when the paid leave runs out.

The research looked at California women who took leave before the state required payment during leave and those who took leave after that point. In this large set of cases, women who got paid during parental leave were less likely to return to work.

The new paper is solid and the results plausible, said Maya Rossin-Slater, an economist at Stanford who has researched California’s program extensively. “They have fantastic data and large sample sizes relative to the prior papers, and that’s a big advance,” she said. “This paper cautions us that paid leave is not a silver bullet. There are other policy tools we need to implement.”

A silver bullet?!! Is the woman who chooses to stay home with her children a werewolf?!

[T]he researchers concluded, something about taking paid leave seems to have encouraged mothers to scale back at work and spend more time with their children.

Mothers who took the leave spent more time than those who didn’t reading to children, sharing meals with them and taking them on outings, the researchers found. They also had fewer children, consistent with the style of intensive parenting that entails investing lots of time and money in each child....

Maybe rational women, who respond to the incentive of paid leave, also analyze other aspects of life in economic terms and figure out the value of the work done in the home, the costs of going to work, and the good reasons to institute division of labor within the family, with only one parent engaged in  money-earning outside the home.  Maybe you get some perspective on life and economics when you've got the time to reflect and plan. When you're outside of the workplace, you may develop a sense of the meaning of life that isn't workplace-based? Does the government want that not to happen?!

In the end of the article, we get around to dad:

If the mother — but not the father — is out of work and doing most of the child care at the beginning, the division of labor could get locked in.... Just 15 percent of bonding leave claims in California in 2014 were by men, and the average man took just two or three days off. Men’s employment and earnings did not decline after they had a child.

I guess this is the place where we are not supposed to talk about gender. But if we really believe in gender, why isn't gender the explanation for why women are much more likely to take the home-based role in the division of labor? I've known men — cis-gender men — who've taken the home-based role, and these are men I greatly respect. I'm just saying that if gender has real meaning, then maternal nurturing is the ultimate in things that are not surprising.

Kirsten Gillibrand: "So the first thing that I'm going to do when I'm president is I'm going to Clorox the Oval Office."

From last night's debate, and I've got to think that was a scripted joke, because it was a response to an invitation to explain how the Green New Deal — "which includes the guarantee of a job with medical leave, paid vacations, and retirement security for everyone in America" — is realistic

It seems as though she had a joke and had no compunction about sticking it in where it didn't belong:

So the first thing that I'm going to do when I'm president is I'm going to Clorox the Oval Office. The second thing I'm going to do is I will reengage on global climate change. And I will not only sign the Paris global climate accords, but I will lead a worldwide conversation about the urgency of this crisis.

Maybe that Clorox stuff is there to separate her answer from the question — which is about the realism of guaranteeing everyone medical leave, paid vacations, and retirement security — not simply getting back to the Paris accord and having a conversation. I want to talk about the Clorox, but I've got to stop and say I'm so tired of hearing that what we need is "a conversation." It sounds like no solution at all and a way to delay. But "conversation about the urgency" is quite special — delaying by talking about how delay is not an option. And if dealing with climate change is all important, why is the Green New Deal cluttered with guarantees of medical leave, paid vacations, and retirement security?

Gillibrand settles in to expatiate about climate change. Here's something that drives me nuts. There's always time to say the name of some specific individual in Iowa:

The greatest threat to humanity is global climate change. I visited a family in Iowa who -- water spewed into her home, Fran Parr, it tossed her refrigerator upend, all the furniture was broken, all the dishes were broken, and mud was everywhere. That is the impact of severe weather right now on families' lives.

So, this Fran Parr character, did she live on a flood plain? I notice that her house was a mess and admire the thematic unity of Gillibrand's little speech, which on first hearing felt like a mishmash. The theme is: a dirty house that needs cleaning up. But this answer is a jumble. I feel like it needs tidying up. There's the ludicrous phrase, "her home, Fran Parr." There's "upend" used as an adverb. There's the muddling of "climate" and "weather" and "water spew[ing]" (which I have to guess was a flood).

She devolves into all-purpose blather about doing things:

And so the truth is, we need a robust solution. When John F. Kennedy said I want to put a man on the moon in the next 10 years, not because it's easy, but because it's hard, he knew it was going to be a measure of our innovation, our success, our ability to galvanize worldwide competition. He wanted to have a space race with Russia. Why not have a green energy race with China? Why not have clean air and clean water for all Americans? Why not rebuild our infrastructure? Why not actually invest in the green jobs? That's what the Green New Deal is about. Not only will I pass it, but I will put a price on carbon to make market forces help us.

The question was how is it realistic to guarantee a job with medical leave, paid vacations, and retirement security for everyone in America. That sounds like just imposing requirements — burdensome requirements — on private businesses, which is nothing like sending a man to the moon, where government itself performs the task. Gillibrand never addresses those requirements at all. She switches to "green energy" and clean air and water. She declares "That's what the Green New Deal is about" as if to exclude the very things that were the subject of the question — requiring private businesses to provide medical leave, paid vacations, and retirement security.

With all that disorder — like broken dishes and furniture in a mud-splattered house in Iowa — let me get back to the Clorox. Clorox — do all listeners know? — is bleach. Do you clean with bleach? You can, but most people think of bleach as a whitener. We're so prodded to think of racism these days that I got sidetracked wondering whether the use of bleach will be regarded as racist. Will some people hear the white woman promising to whiten things up?

And when was bleach just in the news? Oh! Jussie Smollett!

“There’s bleach on me. They poured bleach on me,” Jussie Smollett told police the night of the alleged attack in Chicago. “Do you want to take it off or anything?” Chicago police officer asks Jussie Smollett about the rope around his neck. https://t.co/4mmKwNVaBb pic.twitter.com/WfsuKc3PrW

— CBS Chicago (@cbschicago) June 24, 2019

In the staged attack, the meaningful liquid allegedly thrown was bleach.

And then there's BleachBit — the method Hillary Clinton used to thoroughly destroy her 33,000 emails.

I wouldn't have brought up bleach. And why would a woman candidate present herself in the metaphor of housecleaning? "I'm going to Clorox the Oval Office." Why would you need to Clorox the Oval Office? The question makes me think of Bill Clinton and his famous bodily fluids. Donald Trump is known for posh interiors, not dirtying a place up. Of course, it's metaphorical dirt — the person as filth. Isn't it morally wrong to talk about human beings as filth? Well, maybe not. I'm sure many Trump-haters routinely refer to him in scatological terms. But this is a presidential debate, and Gillibrand seems to be appealing to our desire for cleanliness. I guess you stimulate that desire by making people feel uneasy about excrement and germs.

Elsewhere in the debate, Gillibrand called herself "a white woman of privilege" who "can talk to those white women in the suburbs." You know those women, always worrying about tidiness and warding away infection with chemical sprays on household surfaces. She can "explain to them what white privilege actually is, that when their son is walking down a street with a bag of M&Ms in his pocket, wearing a hoodie, his whiteness is what protects him from not being shot."

Protects him from not being shot?

The mind of Kirsten Gillbrand is like a bag of M&M rattling around in the pocket of a hoodie.

The problem/nonproblem of maternity leave without paternity leave.

Here's Prachi Gupta in Cosmopolitan, interviewing Ivanka Trump about her father's proposal to guarantee 6 weeks of paid leave to women who have given birth. The leave, as Ivanka clearly explains, is premised on the physical needs of the female body, recovering from childbirth and establishing breastfeeding. (Ivanka doesn't mention that not all mothers choose to breastfeed.)

Because women give birth (and breastfeed), there's a natural difference between men and women, and if you are interested in women's equality, you might want to provide a benefit that covers that difference. But many people worry that giving benefits only to mothers would exacerbate inequality over the long term, because it would reinforce the culture of presuming that childcare is mainly the mother's responsibility.

Gupta attempts to raise this concern:

[P]aternity leave is said to be a great factor in creating gender equality.

She doesn't explain this premise, but I can tell you that it is based on the debate about the old Family and Medical Leave Act, which the Supreme Court held to be premised on enforcing equality. (I wrote a law review article on the subject.) Requiring employers to give 12 weeks of leave to parents of both sexes — unpaid leave — was supposed to erode the stereotype that mothers are the primary caregivers. There was always a problem with that prediction: No one was forced to take the leave, and if new mothers took all that leave and new fathers did not, it would reinforce the stereotype and worsen the perception that female employees take too much time off. The employer has to cover for them during the guaranteed leave and accept them back at work even after 12 weeks of absence, year after year. But the idea was that fathers would take the leave too, and that would tend, over time, to balance childcare responsibilities, which would improve the image of women in the workplace.

I assume Gupta is familiar with this old debate, though she doesn't lay it out for Cosmo readers (or for Ivanka). She just says:

So I’m wondering, why does this policy not include any paternity leave?

Ivanka avoids the equality question and says maternity leave is better than nothing. Those who push the equality theory might say that it's worse than nothing, because it encourages the parent who gave birth to the child to become its primary caregiver. As the woman's body is recovering from the physical effects of pregnancy and childbirth, she's bonding with the baby and learning how to take care of it, and she may be establishing the ongoing physical process of breastfeeding. Meanwhile, the father is encouraged to keep working. The traditional division of labor is supported by the government.


Ivanka — in what looks like a bid to win over Democrats — brings up gay people:

Both sides of the aisle have been unable to agree on this issue, so I think this takes huge advancement and obviously, for same-sex couples as well, there's tremendous benefit here to enabling the mother to recover after childbirth. It's critical for the health of the mother. It's critical for bonding with the child, and that was a top focus of this plan.

Gupta tries to break in:

OK, so when it comes to same-sex—

But Ivanka continues:

So it's meant to benefit, whether it's in same-sex marriages as well, to benefit the mother who has given birth to the child if they have legal married status under the tax code.

You can see that she's only talking about recovery from childbirth. (And, indeed, it would probably violate the Equal Protection Clause for the government to give this benefit to women and not men if it is not tied to the physical differences between men and women.) The only gay person who gets this proposed benefit is the woman who gives birth.

Gupta either doesn't see this point or wants to talk about a much more expensive government benefit — paid leave for all new parents. She asks:

Well, what about gay couples, where both partners are men?

Ivanka repeats that the policy relates only to the physical recovery from childbirth. Gupta seems to understand but still wants to drive it home:

So I just want to be clear that, for same-sex adoption, where the two parents are both men, they would not be receiving special leave for that because they don't need to recover or anything?

The policy quite obviously doesn't cover any adoption. The sex of the parents is irrelevant. In adoption, no one has given birth. Ivanka laughs and says:

Well, those are your words, not mine. Those are your words. The plan, right now, is focusing on mothers, whether they be in same-sex marriages or not.

You're not going to get anything with the slightest tinge of homophobia out of Ivanka, I don't think. Gupta's effort to drum up the Cosmo reader's empathy for gay man should fail. The bigger problem  is that paid leave for mothers puts government money into skewing the decision of heterosexual couples toward the traditional division of labor.

Gupta's next question does have something to do with that problem, the stereotype that women are less valuable employees:

OK, I just wanted to make sure I understood. In 2004, Donald Trump said that pregnancy is an inconvenient thing for a business. It's surprising to see this policy from him today. Can you talk a little bit about those comments, and perhaps what has changed?

Ivanka doesn't seem to know what her father said 12 years ago, and she goes meta:

So I think that you have a lot of negativity in these questions, and I think my father has put forth a very comprehensive and really revolutionary plan to deal with a lot of issues. So I don't know how useful it is to spend too much time with you on this if you're going to make a comment like that....

She goes on about how good her father has been as an employer of women, and Gupta nonapologizes — she's sorry Ivanka finds the questions negative — and assures her that Trump really did say that pregnancy is "certainly an inconvenience for a business." He did. Ivanka says she doesn't know that he said that, and she's right to refuse to accept Gupta's presentation of what he said, which might be wrong (though it isn't) and might be out of context.

But Ivanka could have said: Her father was being admirably straightforward. Of course, it's an inconvenience when anything physical takes away from the employee's time and attention at work. But that has nothing to do with the woman's need to deal with recovery from childbirth. She must take some time to recover, and Trump's plan is to ensure that she has some paid leave.

And, if Ivanka had said that, Gupta should have said: But by making it even easier for the woman to take time off — 6 weeks off — aren't you going to intensify the inconvenience that employers see in women? Even your father — who, you say, has been so good with hiring and promoting women in his business — thought of their childbearing function as a problem. Aren't you proposing to spend government money to make that problem even worse, as it becomes more likely that female employees will take even more time away from work?

One more question, and it's not one I'd advise Gupta to ask: Won't this government spending draw women away from the workplace and the leaning-in style of careerism that feminism has promoted? As they have weeks of time alone with the baby, isn't government easing women into the comfort and happiness of the noncommercial life of the home and perhaps even a spiritual awareness that the best life is grounded in love and family and not a career at all?

The "meternity" leave.

It's maternity leave without having a baby — me... -ternity.

Women are bad at putting ourselves first. But when you have a child, you learn how to self-advocate to put the needs of your family first. A well-crafted “meternity” can give you the same skills — and taking one shouldn’t disqualify you from taking maternity leave later.

As for me, I did eventually give notice at my job and take a “meternity” of my own.... Ultimately, what I learned from my own “meternity” leave is that any pressure I felt to stay late at the office wasn’t coming from the parents on staff. It was coming from myself. Coming back to a new position, I realized I didn’t need an “excuse” to leave on time....

That's from Anna Davies, who has a book. Meanwhile, Arianna Huffington, who also has a book, is making herself about sleeping. 

“I want to rekindle our romance with sleep,” said Ms. Huffington, 65, in a lullaby voice as soothing as her floral perfume. “It’s a central part of life and a gateway to our dreams.”

Man takes 6 weeks off to take care of his new baby, gets featured in the NYT.

"Paternity Leave: The Rewards and the Remaining Stigma" starts out enthusing about this guy who "learned how to lull the fitful baby to sleep on his chest and then to sit very still for an hour to avoid waking her" and "developed an elaborate system for freezing and thawing his wife’s pumped breast milk" and "handed over the baby" to her when she got home and then "collapsed on the couch." He did all this for 6 weeks. That's the opening anecdote, priming us for the generalities:

Social scientists who study families and work say that men like Mr. Bedrick, who take an early hands-on role in their children’s lives, are likely to be more involved for years to come and that their children will be healthier. Even their wives* could benefit, as women whose husbands take paternity leave have increased career earnings and have a decreased chance of depression in the nine months after childbirth. But researchers also have a more ominous message. Taking time off for family obligations, including paternity leave, could have long-term negative effects on a man’s career — like lower pay or being passed over for promotions.

He took 6 weeks off. And he did it because he worked for a firm that gave paid childcare leave, which I don't think his wife had in her teaching job. It was obviously in the family's economic interest. But, maybe, the daring Mr. Bedrick suffered some stigma, even as he's presented to NYT readers as some kind of hero.  Give me a break. Tell me about the man who takes years off to be a stay-at-home parent, who really shoulders the responsibility for the home-based side of a single-earner family and makes that work. For years. Not some paid 6-week gig. And spare me the absurdity — straight out of a Lucy-and-Ricky sitcom scenario — where the man, tasked with women's work, hands over the baby and collapses on the couch at the end of the day.

But I know why the NYT does it this way. It's because the liberal agenda is to change the workplace and make it "family-friendly," not to suggest that couples view the family as a single enterprise and give it the predominance in their life that children deserve.
________________________

* Heteronormativity alert! Come on, New York Times. Not good enough. Gay couples have children too. Stop the marginalization.

"It turns out that judges with daughters are more likely to vote in favor of women’s rights than ones with only sons."

"The effect, a new study found, is most pronounced among male judges appointed by Republican presidents, like Chief Justice Rehnquist," reports Adam Liptak, in the NYT.

The new study considered some 2,500 votes by 224 federal appeals court judges. “Having at least one daughter,” it concluded, “corresponds to a 7 percent increase in the proportion of cases in which a judge will vote in a feminist direction.”

Additional daughters do not seem to matter. But the effect of having a daughter is even larger when you limit the comparison to judges with only one child.

“Having one daughter as opposed to one son,” the study found, “is linked to an even higher 16 percent increase in the proportion of gender-related cases decided in a feminist direction.”

If we assume the study accurately detected a "daughter effect," what would account for it? One might guess it's that parents are attuned to things that might advantage or disadvantage their own children. Or maybe the daughters tend to support the "feminist direction" and make influential arguments to their fathers (and mothers) or make their fathers (and mothers) feel moved to please their daughters.

Liptak writes specifically about Chief Justice Rehnquist and his opinion in a 2003 decision "that so delighted Justice Ginsburg," Nevada Department of Human Resources v. Hibbs, which found that Congress had power under the Fourteenth Amendment to require states to give their employees leave to care for family members. I've written a lot about that case including in this (PDF) law review article and in this blog post:

For there to be Fourteenth Amendment power, it must be shown that Congress is really enforcing the rights guaranteed by the Fourteenth Amendment. It can't use this power to create different rights or offer other benefits, however justified and beneficial those new rights or benefits may be. To say that there is no Fourteenth Amendment power is not to say the [Family and Medical Leave Act] isn't a good idea or that women aren't "disadvantaged in the workplace when they are not allowed to take family leave." Fourteenth Amendment power requires that the law remedy the violation of rights. What constitutional right against sex discrimination was being remedied by guaranteeing unpaid family and medical leave? Keep in mind that the constitutional right against sex discrimination is only violated by intentional discrimination. How were the states violating rights in a way that family leave corrected?

In Hibbs, Chief Justice Rehnquist ultimately bent over backwards to find a way to say that the FMLA fit the Fourteenth Amendment power. (It had to do with the tendency to give more leave to women than to men, by the way, not any failure to give leave. And it wasn't about the need to help women who have family responsibilities. It was about stereotyping women by assuming they have more family responsibilities than men!)

Liptak quotes Justice Ginsburg: "When his daughter Janet was divorced... I think the chief felt some kind of responsibility to be a kind of father figure to those girls [i.e., his granddaughters]. So he became more sensitive to things that he might not have noticed."

More sensitive to "things he might not have noticed" or more sensitive to the desires and opinions of the women in his life?

I'd posit the latter, because Rehnquist's Hibbs case is notable for its complete failure to find a constitutional rights violation that was remedied by the entitlement to unpaid leave, as Justice Kennedy made obvious in his dissenting opinion.

Liptak quotes political scientist Maya Sen, a co-author of the study: "Justices and judges aren’t machines... They are human, just like you and me. And just like you and me, they have personal experiences that affect how they view the world. Having daughters... is just one kind of personal experience, but there could be other things — for example, serving in the military, adopting a child or seeing a law clerk come out as gay. All of these things could affect a justice’s worldview."

I'm all for judges who've got lots of real-world experience in them, to go along with the reading and analysis skills that they must use to decide cases. You can't understand anything without reference to the world, and it's terrible to have to trust judges who have limited experience, particularly those who've spent too many years enclosed in the life of judging. Rehnquist had sat on the Supreme Court for 31 years, and he was 78 when he wrote Hibbs.

Is it "delightful" — Ginsburg's word — to think that Rehnquist absorbed his sense of how the world works from empathizing with his own family members? Or should we anguish over getting stuck with opinions written by judges whose connection to real life is so limited and self-centered?

"Lean In, Dad/How Shared Diaper Duty Could Stimulate the Economy."

A NYT Magazine item — worth clicking through for the illustration alone, which is a graphically excellent riff on Rosie the Riveter.

What's the economic theory purveyed in the NYT?

New research suggests that, because it’s primarily women who take advantage of leave and part-time entitlements, work-life accommodations often paradoxically limit career trajectories. 

Ha. This is precisely the point made by critics of the Family and Medical Leave Act, the Clinton Era legislation that was sold as an advancement for women. Senator Nancy Kassenbaum (R — Kansas) said: "Mandating leave will have a negative impact on [employment] opportunities for women... . Employers... will seek to hire workers with lower benefit costs, increasing the pressure to discriminate against women." (139 Cong. Rec. S985 (1993).)

The NYT wheels out a Harvard economist to make the point Kassenbaum made 20 years ago.

“In a regime where anyone can go part time, where it’s hard to get rid of people if they do, employers might sort on the front end and not hire people they think are likely to want to go part time, which usually means women,” said Lawrence F. Katz, an economist at Harvard. “There may be no way a woman can credibly commit to sticking around and not going part time.” The U.S., where these policies do not exist, has the smallest gap between women’s representation in the labor force and their representation in senior management positions.

Except that we do have the Family and Medical Leave Act, and it's hard to imagine getting rid of it. Once a benefit is in place, there are real-live beneficiaries who are going to yell if you try to take it away. Even if it's hurting women, threatening it will be called a war on women.

So what's the solution?

In order to prescribe policies that really allow female workers to “lean in” at work, social scientists are trying to find ones that recast social norms and encourage male workers to “lean in” at home. 

Just change how people think! That should be easy... in the fever dreams of a social scientist.

One area where there seems to be a lot of potential is paternity leave, which still has a stigma in both the United States and Europe. To remedy this bad rap, countries like Sweden and Norway have recently introduced a quota of paid parental leave available only to fathers. 

So! The prescription is outright sex discrimination! Affirmative action for men!

This might not sound like such a big deal...

Uh, yeah, actually it does. It's blatant sex discrimination against women, to be sold as helping women.

... but social scientists are coming around to the notion that a man spending a few weeks at home with his newborn can help recast expectations and gender roles, at work and home, for a long time. 

Oh, the good old social scientists... coming around... Not even a consensus. Just long-headed brooders maundering toward an idea that just might work. Absurd! 

For the first time, a Supreme Court opinion uses the word "feminist."

The case is Coleman v. Court of Appeals of Maryland, which came out this year on March 20th. There are 19 other Supreme Court opinions where the word "feminist/s" appears, but only in the name of an entity like "the Feminist Majority Foundation" or the "Feminists for Life of America" or (once) in the name of a cited law review article.

The article is "The Victim In a Forcible Rape Case; A Feminist View," cited for the proposition that "Rape is very often accompanied by physical injury to the female and can also inflict mental and psychological damage," in the case that says it's cruel and unusual punishment to impose the death penalty for rape. Interesting, isn't it, that it took "A Feminist View" to see that "Rape is very often accompanied by physical injury"? Often? Accompanied? Rape is a physical injury! "Can also inflict mental and psychological damage"?! Can? Do you really have to hedge it?

Anyway, the actual use of the word "feminist" occurs in a dissenting opinion written by Justice Ginsburg. She is explaining why she thinks that Congress had power under §5 of the 14th amendment to enact the self-care provisions of the Family and Medical Leave Act of 1993. To fit the §5 doctrine, the law needs to be portrayed as some kind of remedy for a 14th Amendment rights violation, but both males and females use sick leave, and getting sick leave doesn't seem to be about alleviating unconstitutional sex discrimination.

But Ginsburg says the law had roots in a California effort to require pregnancy or childbirth leave to women:

The California law sharply divided women’s rights advocates. “Equal-treatment” feminists asserted it violated the Pregnancy Discrimination Act’s (PDA) commitment to treating pregnancy the same as other disabilities.... “Equal-opportunity” feminists disagreed, urging that the California law was consistent with the PDA because it remedied the discriminatory burden that inadequate leave policies placed on a woman’s right to procreate.

So the first time a Supreme Court Justice uses "feminist," she's talking about 2 types of feminists, the "'equal-treatment' feminists" and the "'equal-opportunity' feminists." Ginsburg refers to the debate between the 2 factions about whether gender-neutrality or special accommodations better served the interests of women. For example Prof. Eleanor Holmes Norton testified that if employers "provide something for women affected by pregnancy that they are not required to provide for other employees [it] gives fodder to those who seek to discriminate against women in employment."

Breastmilk-pumping.

Did you know some women use a device that pumps out their breastmilk while they are driving? That seems so wrong. But what do you think of all these other efforts women make to keep up with breastfeeding when they are separated from their babies? From my own experience with breastfeeding, I can't imagine wanting to keep it up once I'd gone back to work. The idea of using a mechanical pump is so unpleasant, and the milk seems too intimate to leave in the office refrigerator. (The picture at the link shows bags of milk -- cutesily labelled "My Mommy's Milk" -- on a freezer rack next to a box of black bean enchiladas.) And there's a huge problem -- not mentioned in the article -- that I'll just sum up in one word: leakage.

But apparently, a lot of women are working and pumping these days. I guess if you don't now, you're supposed to feel bad. It's hard enough to be a working mother without having people upping the standard of what it takes to do it passably well.

But as for the women who want to do it... they'd like more active accommodation by their employers. In pursuit of this goal, the linked NYT article takes the equality tack: Professional women are nicely accommodated by employers who offer posh "lactation rooms" and lots of time but working class women are stuck using the bathroom during their regular breaks. Are you softened up for some legislation yet?

[F]ederal law offers no protection to mothers who express milk on the job — despite the efforts of Representative Carolyn B. Maloney, Democrat of New York, who has introduced such legislation. “I can’t understand why this doesn’t move,” she said. “This is pro-family, pro-health, pro-economy.”

Meanwhile, states are stepping in. Twelve states have passed laws protecting pumping mothers — Oklahoma’s law, the newest, will take effect in November. But like Oklahoma’s, which merely states that an employer “may provide reasonable break time” and “may make a reasonable effort” to provide privacy, most are merely symbolic.

One solution that's not mentioned is giving women longer maternity leaves so they can breastfeed the baby directly. But that, ironically, would violate the Equal Protection Clause! Maternity leaves in excess of the pregnancy disability period of eight weeks -- unless an equal period is given to new fathers -- is unconstitutional sex discrimination. That's the plain implication of the Supreme Court's opinion in Nevada v. Hibbs -- upholding the Family and Medical Leave Act as an exercise of Congress's Fourteenth Amendment power -- as I pointed out in a law review article (PDF):

There was no recognition in Hibbs that a state might, without engaging in mere sex stereotypes, genuinely think that more than eight weeks are needed to recover from pregnancy and childbirth or might, quite apart from stereotypes about who ought to take care of a baby, want to facilitate breast-feeding for a period longer than eight weeks.

[FOOTNOTE} See Liz Galst, Babies Aren’t the Only Beneficiaries of Breast-Feeding, N.Y. TIMES, June 22, 2003, § 15, at 4 (noting the developing scientific evidence indicating that breastfeeding offers greater health benefits to children as well as to mothers). It is puzzling that there is no mention in the briefs or in the opinions of the issue of breast-feeding, which entails a real physical difference that can justify treating new mothers differently from fathers. The importance of accommodating breast-feeding women in the workplace should not make it seem invidious to support a new mother who wants to take a longer leave to procure this health benefit for herself and the infant, instead of struggling with breast-pumping or bringing the infant into the workplace. That medical research is developing in this area suggests the value of leaving room for experimentation with maternal leave policies.

When I was writing that article, I asked a colleague why no one brought up breastfeeding. She didn't have any ideas about why the states wouldn't use breastfeeding to account for treating men and women differently when it comes to giving leave to new parents (a key issue in Hibbs). But, she said, women's groups have not worked for breastfeeding leaves because it runs counter to their goal of pushing for requiring employers to accommodate breastfeeding employees. And, I would add, it conflicts with a preference for keeping women in the workplace. If a state offered more new parent leave to women in order to breastfeed, women's groups might construe it as an attempt to promote traditional sex roles, with the woman staying home with the baby. Can you tell the difference between a benefit and discrimination there? [ADDED: I should clarify that only government action violates the Equal Protection Clause, so that if the state is not the employer and if the new statutory law did not require longer leave for women, it would be possible to redo the statutory law that limits private employers.]

I think we could support giving women more of a choice whether to stay home and breastfeed or go back to work and continue to breastfeed. There is so much pressure on women! It's hard to go through pregnancy and childbirth and to take care of an infant. Breastfeeding a pretty simple part of this if you have your baby close by. But you may need to go back to work or want to go back to work. I strongly support that. And I support the pumping approach if you can do it. And of course the employer should accommodate the physical needs you will have. But it's a much harder question whether there should be laws that allow you to sue if you think your employer hasn't helped you enough. But of all the things we ought to do to make life easier for mothers, we should quit making them feel like they have to go through the pumping routine. It's hard to work and have an infant at home. It's going to be harder if you have to pump breastmilk throughout the day while you're trying to pay attention to your work -- regardless of how accommodating the employer is. Frankly, quite aside from the pumping task, I would not want to have to try to concentrate on work with my breasts acting up continually.

Now, before you pile on in the comments, let me restate my point. I think it's fine and admirable for women to pump breastmilk in the workplace, and employers should voluntarily accommodate them, but legislation may not be needed, we shouldn't put pressure on women to keep up breastfeeding when they go back to work, and women who decide they don't want to do it should feel perfectly justified in their decision.

Alito and the Family and Medical Leave Act -- Part 5.

Harvard lawprof Laurence Tribe on the FMLA case:

YOU CAN'T help doing a double-take when you read Judge Samuel Alito's opinion holding Congress powerless to compel states to provide family medical leave to their employees. It was a position the Supreme Court rejected in a nearly identical case when it held three years later that the 14th Amendment confers such power by authorizing Congress to enforce each state's duty to accord ''equal protection of the laws."

The evidence and legal arguments hadn't changed when Chief Justice William Rehnquist, writing for the 6-3 majority, saw what Congress had seen: that women and men are unequally protected in a world still shaped by the ''pervasive sex-role stereotype that caring for family members is women's work." The court accordingly held Congress empowered to ''dismantle persisting gender-based barriers to . . . women in the workplace." Why, then, did the deliberately deferential Alito, after reading the same text, history, precedents, and factual data, see no gender discrimination for Congress to dismantle?

Talk about doing a double take! Is this really by Larry Tribe?

The "nearly identical" Chittister case didn't involve caring for a family member. It involved self-care. Tell me, Professor Tribe, when men are sick, don't they stay home? I'm really having a hard time seeing what gender discrimination Congress is dismantling there.

The Supreme Court's case (Hibbs) was about caring for a family member, but even there, as I've written here too many times already, the Court was changing the way it applied its own test, a test that Alito was bound by when he decided his case. The Fourteenth Amendment law in question requires that Congress be providing a "congruent and proportional" remedy for the states' violation of Fourteenth Amendment rights. It was actually extremely hard to portray the states as violating Equal Protection in a way that went with the leave benefit, as Justice Kennedy -- no conservative firebrand -- explained in his dissent.

Anyway, I'll give Tribe credit for not saying that Alito found the Family and Medical Leave Act unconstitutional, though he's hiding the ball by not admitting that the commerce power supports it, and that Alito's case was only about whether an individual could sue the state for retrospective relief. Under Alito's opinion, states are still bound by the FMLA and their employees can sue to get their jobs back if the states don't follow these requirements.

Tribe's eagerness to slam Judge Alito shows.

UPDATE: There are two post-Hibbs court of appeals cases that say the self-care provision doesn't fit the Fourteenth Amendment -- that is, the result in Chittister is still correct.

MARY TOUVELL v. OHIO DEPARTMENT OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES, 422 F.3d 392 (6th Cir. 2005):

[W]hile Hibbs found that Congress had adduced sufficient concrete evidence of discrimination by the states regarding the availability and consequences of family-care leave, there is no equivalent evidence that the self-care provision of the FMLA was intended to, or did, target similar discrimination. On the contrary, the self-care provision appears to have been social legislation designed to protect the seriously ill and their families regardless of gender. While this may be an admirable goal, it is not one that permits Congress to abrogate the Eleventh Amendment immunity of the states from private suit for damages.

KATHLEEN BROCKMAN v. WYOMING DEPARTMENT OF FAMILY SERVICES, 342 F.3d 1159 (10th Cir. 2003):

Because the Supreme Court's analysis in Hibbs turned on the gender-based aspects of the FMLA's § 2612(a)(1)(C), the self-care provision in subsection (D) is not implicated by that decision. The legislative history accompanying the passage of the FMLA reveals two motivations for the inclusion of the self-care provision. First, Congress was attempting to alleviate the economic burdens to both the employee and to his or her family of illness-related job-loss. See S. Rep. No. 103-3, at 11 (1993), reprinted in 1993 U.S.C.C.A.N. 3, 13-14; H.R. Rep. No. 101-28(I), at 23 (1990). Second, Congress was attempting to prevent those with serious health problems from being discriminated against by their employers. See S. Rep. No. 103-3, at 12; H.R. Rep. 101-28(I), at 23. The legislative history does not, however, identify as the basis for subsection (D) a link between these two motivations and any pattern of discriminatory stereotyping on the part of the states as employers.

Hibbs loses.

With all the talk today of the Family and Medical Leave Act and the relationship between Judge Alito's decision in Chittister and the Supreme Court's decision in Hibbs, it's interesting to see that Mr. Hibbs himself lost his case today:

The 9th U.S. Circuit Court of Appeals has rejected an appeal from a former Nevada state worker fired from his job after taking several months off to help his wife who had been injured in a car accident.

The appeals court ruled Wednesday against William Hibbs, who won a U.S. Supreme Court ruling in 2003 that preserved protections for workers under the federal Family and Medical Leave Act - only to see his own case later dismissed by U.S. District Court Judge Howard McKibben of Reno.

In upholding McKibben, a three-judge panel of the circuit court said Hibbs got more than five months of leave from his job as a state welfare worker, far more than the 12-week FMLA period, and still didn't return to work when told that his leave had expired.

"When Hibbs was eventually fired two months after being informed that his leave had expired, he had long since departed the protections of the FMLA," the court added in its decision favoring the Nevada Department of Human Resources.

The court also agreed that Hibbs failed to provide evidence to support his claim that he was fired in 1997 in retaliation for taking FMLA-authorized leave.

Alito and the Family and Medical Leave Act -- Part 4.

Look at how a commenter who tries to explain law is treated over in the DailyKos comments. This is how Armando speaks to a reader who patiently tries to explain how he's misstated the law:

STFU (none / 0)

You were dead wrong. Yiu said ALito did NOT say that Congress acted unconstitutionally. You were WRONG. Whose clients should be in fear. You were dead wrong jerk. And abused the hell outr of mcjoan when you were wrong asshole.

See, mcjoan said exactly that, that Alito said that Congress invaldfily abrogated SI. And you kust flat out lied about what the diary said and were abusive and were wrong.

Stupid ass jerk.

The SCOTUS is Extraordinary.

by Armando on Fri Nov 04, 2005 at 05:25:18 AM PDT
[ Parent ]

Correct the piles of shit you laid all over (none / 0)

Alito ruled that Congress acted unconstitutiopnally wen it expressly abrogated the Sovereign Immunity of the States.

Go learn some fucking law.

The SCOTUS is Extraordinary.

by Armando on Thu Nov 03, 2005 at 08:21:00 PM PDT
[ Parent ]

Just to be clear: Armando is one of the main writers over on DailyKos, not just some commenter. And DailyKos is the most widely read blog in the world, with traffic nearly as high as the NYT online.

Liberals, does it bother you that this is what your loudest voice on the web sounds like?

[My earlier Alito and the FMLA posts: 1, 2, 3.]

UPDATE: Here's the McJoan post that goes with those comments:

In 2000, Judge Samuel Alito authored an opinion in which he concluded that Congress did not have the power to require state employers to comply with the Family Medical Leave Act.

False. The commerce power supports the FMLA even as applied to the states, and nothing in Alito's opinion is to the contrary.

This ruling was overturned by the Supreme Court in 2003, with a 6-3 margin. Voting in dissent? That's right, everyone's favorite activist justice, Antonin Scalia.

Don't bother mentioning that the main dissent was written by the moderate Anthony Kennedy, who was distressed at the misapplication of a whole line of cases -- cases Alito, as a lower court judge, had to follow. Just throw out the name of Antonin Scalia! It's so inherently alarming.

In his ruling in Chittister v. Department of Community and Economic Development, Alito argued that the FMLA was an instance of unconstitutional congressional overreach. He also argued that the FMLA was unconstitutional because "there was no evidence for the notion that women are disadvantaged in the workplace when they are not allowed to take family leave. Furthermore, he argued, the requirement that everyone be guaranteed 12 weeks of unpaid family leave was a disproportionately strong remedy":

Notably absent [from the FMLA] is any finding concerning the existence, much less the prevalence, in public employment of personal sick leave practices that amounted to intentional gender discrimination in violation of the Equal Protection Clause.

...Moreover, even if there were relevant findings or evidence, the FMLA provisions at issue here would not be congruent or proportional.

McJoan is quite wrong to say Alito found the FMLA unconstitutional. The quoted material is the reason why, following a line of recent cases, the FMLA didn't fit the Fourteenth Amendment power, which is needed to abrogate sovereign immunity (and allow an individual employee to sue the state for retrospective relief). The FMLA remains supported by the commerce power and the state is still bound by it in this analysis.

Alito's idea that women are not disadvantaged when they can not take maternity leave seems absurd, both intellectually and factually. Even William Rehnquist, who wrote the Supreme Court's 6-3 opinion in 2003 overturning Alito's ruling, found Alito's argument deeply flawed.

The question under the Fourteenth Amendment power wasn't whether women are disadvantaged, but whether the states were violating Fourteenth Amendment law: What violation of constitutional rights was the FMLA remedying? That was the question Alito faced and answered as the law required. To characterize him as not caring about women's interests is either a mistake or deliberate distortion. And by the way, the states were giving women maternity leaves. To find an equal protection violation, you need to point to the lack of paternity leaves and attribute it to stereotyping. And I'm not saying the FMLA isn't a good law and a nice benefit. The problem was that it wasn't a correction of the violation of constitutional rights. Rehnquist finessed his way around that problem, as Kennedy detailed in dissent, and so the ability of state employees to sue for back pay was preserved. But Alito just did what the case law required at the time.

Luckily for me, Rehnquist led the Supreme Court in overturning Alito's flawed decision. Let me reiterate that. Alito's ruling was too conservative for Rehnquist.

But it was quite proper according to Kennedy. Could it perhaps be that sometimes, some judges analyze legal issues?

Alito's and Scalia's hostility toward the FMLA could very well stem from the hostility of business interests, like the U.S. Chamber of Commerce.

But the issue in Hibbs and Chittister only had to do with the way the FMLA applied to the states, so the interests of private business were not at stake in the slightest.

Again, the commerce power supports the FMLA, and neither Hibbs nor Chittister had anything to do with that. And why not include Kennedy in your group of hostile justices? Doesn't fit the attempt to paint the justices as a bunch of ideologues.

The United States is the only industrialized nation in the world that doesn't provide paid family leave. Should another FMLA case come before a Supreme Court with both Alito and Scalia, we might even lose the unpaid leave we have now. That would leave millions of families, like my own, struggling to care for ourselves, our loved ones. In terms of family values, I don't know what could be more critical.

Yes, yes, let's talk about mommies and daddies and babies and families, all the emotional things only good liberals care about. Who wants to stop and talk about a difficult legal issue? But the fact is that nothing about what Alito said in Chittister and Kennedy and Scalia said in Hibbs threatens to take away the leave rights people now have. The commerce power supports the FMLA. When will the people who are demagoging this issue mention that the commerce power supports the FMLA? When they don't, you should know that they are not playing it straight (or they actually don't understand the law).

ANOTHER UPDATE: If you keep reading the comments over at Kos, you'll see this:

Typical Armando (none / 0)

So far, Armando's legal "analysis" is nothing more than name calling. The fact is that every other circuit that addressed the issue of sovereign immunity and the FMLA ruled the same as Alito, with many Democratic judges participating, except for the 9th Circuit. Most S. Ct. observers were surprised when Rehnquuist & O'Connor didn't follow their earlier "federalism" precedents when the FMLA issue came up in Hibbs. To argue now that it was somehow clear that states couldn't be sued by their employess under the ADEA & ADA, but could be under the FMLA, is absurd.

What kind of lawyer engages in name-calling rather than citing cases?

by Realist2004 on Thu Nov 03, 2005 at 10:26:48 PM PDT

[ Parent ]

Excuse me (none / 0)

Typical you - the asshole you defend engaged in name calling and was flat out werong about what the diary said and was abusive to mcoan for no good fucking reason.

Typical of you to IGNORE all that.

Typical of you and it is why you are a waste of time.

The SCOTUS is Extraordinary.

by Armando on Fri Nov 04, 2005 at 05:23:07 AM PDT

[ Parent ]

Later, Armando has this outburst, in response to commenters who keep trying to explain the law:

How in BLAZES do you enforce a law against the State then Genius? Soveriegn Immmunity. Look it the fuck up asshole.

Well, Armando, it's called Ex Parte Young. Look it up!

IN THE COMMENTS: Armando himself stops by. (Where's my link from Kos? I link to the people I argue with.) He tries to explain himself, but doesn't understand the law in this area. He does manage to avoid saying "f*ck" over here.

YET ANOTHER UPDATE: Patterico points out an extremely important point about Alito's Chittister case: it was not about leave to take care of a family member, but about sick leave. What is the sex discrimination problem to be remedied with respect to self-care? Hibbs was about taking care of family members, so there was a way to connect the FMLA to the stereotyping of women as the main caregivers. But when it's a matter of taking care of yourself, where's the rights violation to enforce? Patterico links to Bench Memos and this Tenth Circuit case. The bottom line is that Alito was even more scrupulously correct than I've been portraying him. And it's not even about families. Even single folks with no responsibilities for others get this benefit. It may be nice, but it's not about remedying violations of constitutional rights.

Alito and the Family and Medical Leave Act -- Part 3.

Nathan Newman at TPM Café wants to make the case against Alito out of Chittister, the Family and Medical Leave Act case. Newman is a lawyer, in fact he went to Yale Law School, so presumably he knows something about how legal analysis is done and the way Supreme Court cases bind lower court judges. But maybe he doesn't mind using his aura of expertise to sell a specious argument to serve a political goal. I won't assume he actually understands the cases Alito had to deal with in deciding Chittister. They are difficult, and you have to take the trouble to read them. (I have spent a lot of time with them and claim expertise based on this law review article and 20 years teaching in the relevant field of law. I explain Alito's Chittister decision here. ) But why should Newman bother to understand the cases and to treat Alito fairly, when it's so easy and exciting to demagogue and to say that Alito is hostile to this important federal statutory benefit? What more do you need to know than that the statute is good and Alito did something against it?

To build the case against Alito, we do need to document all the ways thsat Alito opposes the rights of the accused, threatens abortion rights, and endangers workers rights.

But we need at least one decision that encapsulates what's wrong with Alito's view of the law, unites the maximum voters against him, and divides the potential opposition.

And that case is Chittister v. Department of Community and Economic Development, the decision where Alito ruled that the Family and Medical Leave Act did not apply to millions of state employees across the country.

False. The FMLA would still apply to state employees. (The decision only prevented suits by individual state employees for retrospective relief -- such as backpay.) But nice to see you admit that you're all about building a case against the man and finding something you can use.

This was a decision that was overturned by the Supreme Court, in a decision written by Chief Justice Rehnquist.

Well, Rehnquist decided a different case, Hibbs, but that's just a careless error. Still, thanks for showing how little you care about accuracy as you mount your attack.

There is little question that the Family and Medical Leave Act is one of the popular laws passed in recent decades -- a lifesaver for many mothers and fathers who want to stay home with a newborn or a sick family member without fear of being fired from their job for taking that time off.

Yes, the law is popular. Nice grasp of the role of courts and the Constitution. The law is popular, so you should strain to find a way to leave it alone. After all, Rehnquist found a way. Of course, Rehnquist did not have to take so much trouble to follow Supreme Court cases. But down with Alito for respecting the case law. Because he's a bad, bad man. He went against a popular law. He wants mommies and daddies fired!

Opposition to Alito's decision is a unifier-- it unites feminists, oganized labor, public employees, and soccer Moms. And by alienating working mothers especially, who depend on FMLA leave, Chittister has the potential to deeply divide the Republican base.

Yes, fire them up. Who really cares about law and the courts? This is all about organizing the opposition. People will get really mad when they hear that Alito wants to fire mommies and daddies!

Other issues that motivate progressive activists-- Casey for abortion rights activists, Alito's deeply disturbing anti-union attacks or his disdain for criminal defendants -- will motivate key groups, but the question is how to we make the danger of Alito on the Supreme Court clear enough to swing voters that their Senators fear the backlash.

Politically, the pressures on parents in balancing work and family is overwhelming. That Alito would attack a common sense law like the Family and Medical Leave Act in the name of "states rights" will seem to most such voters as pure rightwing ideology. And it can be painted as exactly the judicial activism, the "legislating from the bench" that Bush claimed his judges would not engage in.

Yes, regular folks won't get the concept that courts apply law. What matters is what we can make seem like "pure rightwing ideology." Those dopey soccer moms will totally fall for this one.

If we want to encapsulate what the "federalism revolution" means, what the "Constitution in Exile" means for average families, it is this: ordinary laws enacted by democratic majorities will randomly be struck down in the name of rightwing ideology.

Randomly! Those rightwingers are just crazy. They might see a law and just shoot it down -- absurdly attempting to interpret legal texts -- even when the law is popular. And, no, don't bother me now about the way liberals care about some parts of the Constitution and might sometimes want a court to strike down a popular statute.

It's worth thinking about why Renhquist, the original architect of the federalism legal revolution, decided to uphold the Family and Medical Leave Act when it came before the Supreme Court. A pretty fair analysis is that, aside from the legal arguments, Rehnquist recognized that a decision against the Family Leave law would create such a backlash that it might endanger the whole legal movement in the long term.

Yes, and shame on Rehnquist then, right? Or if the case law was so terrible, it was up to the Supreme Court to change it. There was nothing Alito as a lower court judge could do to change it. The fact that Rehnquist changed it in the Supreme Court in no way showed that Alito should have or even could have changed it in the court of appeals. There is no basis for criticizing him for what was ordinary faithfulness to established law. (Sound like a concept you might want to rely on some time?)

So raising the profile of Chittister should be a key strategy, to raise that spectre of a shift of the Court not just to the right of O'Connor but to the right of Renhquist and to raise pressure on those swing Senators.

Sure, go ahead. Great idea. Teach the world that the Court is nothing more than a political game and the judges who attempt to follow the law are just dangerous, arbitrary fanatics. No chance you might care about the rule of law some day. Screw it! We can win a political battle.

It isn't even funny that you really have virtually no chance of defeating the nominee. Your abject disrespect for law is thoroughly disgusting. But thanks for posting your embarrassing strategy on a blog and for not noticing that there are other bloggers out there who know the legal details that you are counting on the soccer moms not understand or care about at all.

UPDATE: Welcome Instapundit readers. For other parts to my ongoing effort to stop the Chittister demagogery: Part 1, 2, and (dealing with Kos) Part 4.

YET ANOTHER UPDATE: Patterico points out an extremely important point about Alito's Chittister case: it was not about leave to take care of a family member, but about sick leave. What is the sex discrimination problem to be remedied with respect to self-care? Hibbs was about taking care of family members, so there was a way to connect the FMLA to the stereotyping of women as the main caregivers. But when it's a matter of taking care of yourself, where's the rights violation to enforce? Patterico links to Bench Memos and this Tenth Circuit case. The bottom line is that Alito was even more scrupulously correct than I've been portraying him. And it's not even about families. Even single folks with no responsibilities for others get this benefit. It may be nice, but it's not about remedying violations of constitutional rights.

Alito and the Family and Medical Leave Act -- Part 2.

Sovereign immunity law is difficult, so it is not surprising that people misread what Samuel Alito wrote about the Family and Medical Leave Act.

Here's the blunder on Daily Kos:

Alito's record also seems to put the Family Medical Leave Act in jeopardy. According to Angry Bear, Alito found

that the FMLA was unconstitutional because there was no evidence for the notion that women are disadvantaged in the workplace when they are not allowed to take family leave.

No, no, no, no.

Last night on "The Daily Show," Senator Barbara Boxer said that Alito would have deprived state employees of the benefits of the FMLA. Not as wrong as Angry Bear got it, but still wrong!

I know what I'm talking about on this subject. Here's my law review article. I am making it my business to correct misstatements about Alito's opinion in Chittister. The law here is horrendously complicated, and I will try to put it as simply as I can.

Chittister was not about whether Congress had the power to pass the FMLA. The commerce power clearly supports the FMLA, and nothing in Chittister addresses or in any way challenges that very basic point of law.

Chittister is about whether the FMLA is also supported by the power the Fourteenth Amendment gives Congress to enforce the rights guaranteed by that Amendment. The reason why the additional basis for congressional power matters is that Congress can only abrogate state sovereign immunity if there is power under the Fourteenth Amendment. If Congress can't abrogate sovereign immunity, that only affects state employees and it only means that they can't get retrospective relief if the state violates the law. The state is, in fact, still bound by the requirements of the FMLA (contrary to Boxer's statement), but employees will only be able to sue for prospective relief.

For there to be Fourteenth Amendment power, it must be shown that Congress is really enforcing the rights guaranteed by the Fourteenth Amendment. It can't use this power to create different rights or offer other benefits, however justified and beneficial those new rights or benefits may be. To say that there is no Fourteenth Amendment power is not to say the FMLA isn't a good idea or that women aren't "disadvantaged in the workplace when they are not allowed to take family leave." Fourteenth Amendment power requires that the law remedy the violation of rights. What constitutional right against sex discrimination was being remedied by guaranteeing unpaid family and medical leave? Keep in mind that the constitutional right against sex discrimination is only violated by intentional discrimination. How were the states violating rights in a way that family leave corrected?

In Hibbs, Chief Justice Rehnquist ultimately bent over backwards to find a way to say that the FMLA fit the Fourteenth Amendment power. (It had to do with the tendency to give more leave to women than to men, by the way, not any failure to give leave. And it wasn't about the need to help women who have family responsibilities. It was about stereotyping women by assuming they have more family responsibilities than men!)

Rehnquist twisted a whole line of cases to get to his result, as Justice Kennedy explains in dissent. Alito wrote his opinion in Chittister before Hibbs was decided, and what he wrote was a solid application of the precedent that reveals nothing more than his commitment to precedent and his legal craftsmanship.

Those who try to paint Alito as hostile to women's interests for this are either distorting his record or misunderstanding the law. It is very easy for Alito's opponents to do this because the law is hellishly complicated, and the Family Medical Leave Act is a very nice and popular benefit. Please be alert to this problem. Alito absolutely does not deserve criticism for this!

Okay, I've put in my Google Alert for "'family medical leave act' alito." Expect me to point out the errors ad nauseum.

UPDATE: Here's lawprof Pam Karlan getting it wrong on the News Hour:

[H]e would have held unconstitutional the provisions democratically enacted by Congress of the Family Medical Leave Act that applied to require states to give unpaid medical leave to their employees.

Now the Supreme Court with both Justice O'Connor and Chief Justice Rehnquist in the majority voted to uphold those provisions. And one of the reasons why I think it's incorrect to talk about people as if there are people who read the text of the Constitution and people who don't is that social conservatives and movement conservatives have read into the 11th Amendment of the Constitution, which gives sovereign immunity to states against democratically-passed laws, words that aren't there, and they read the [word] "equality," which is in the Constitution, the word "equal" differently from liberals.

Again, denying the existence of Fourteenth Amendment power would not make the FMLA unconstitutional. It is independently supported by the commerce power, even for state employees.

Karlan is also saying something more about the interpretation of the 11th Amendment: that conservatives read beyond its text when they interpret state sovereign immunity. This is another complicated matter that I won't detail right now, but what is very important to acknowledge is that the interpretation in question is a matter of sticking with a precedent that has been relied on for over 100 years (Hans v. Louisiana). Those who care about preserving Roe v. Wade emphasize the importance of stare decisis, and that is part of what we are talking about here.

YET ANOTHER UPDATE: Patterico points out an extremely important point about Alito's Chittister case: it was not about leave to take care of a family member, but about sick leave. What is the sex discrimination problem to be remedied with respect to self-care? Hibbs was about taking care of family members, so there was a way to connect the FMLA to the stereotyping of women as the main caregivers. But when it's a matter of taking care of yourself, where's the rights violation to enforce? Patterico links to Bench Memos and this Tenth Circuit case. The bottom line is that Alito was even more scrupulously correct than I've been portraying him. And it's not even about families. Even single folks with no responsibilities for others get this benefit. It may be nice, but it's not about remedying violations of constitutional rights.

Alito and the Family and Medical Leave Act.

Judge Alito made short work of the question whether Congress has the power under the 14th amendment to enact the Family and Medical Leave Act in Chittister v. Department of community and Economic Development:

In enacting the FMLA, Congress found, among other things, that it is "important . . . that fathers and mothers be able to participate in early childrearing and the care of family members who have serious health conditions," 29 U.S.C. § 2601(a)(2), that the "lack of employment policies to accommodate working parents can force individuals to choose between job security and parenting," § 2601(a)(3), that "there is inadequate job security" for persons who might take medical leave, § 2601(a)(4), and that "the primary responsibility for family caretaking often falls on women" and has a greater effect on their work than it does on men, § 2601(a)(5). Notably absent is any finding concerning the existence, much less the prevalence, in public employment of personal sick leave practices that amounted to intentional gender discrimination in violation of the Equal Protection Clause. For example, Congress did not find that public employers refused to permit as much sick leave as the FMLA mandates with the intent of disadvantaging employees of one gender. (Indeed, it is doubtful that a practice of allowing less sick leave than the FMLA requires would even have a disparate impact on men and women.). Nor are we aware of any substantial evidence of such violations in the legislative record.

Moreover, even if there were relevant findings or evidence, the FMLA provisions at issue here would not be congruent or proportional. Unlike the Equal Protection Clause, which the FMLA is said to enforce, the FMLA does much more than require nondiscriminatory sick leave practices; it creates a substantive entitlement to sick leave. This requirement is "disproportionate to any unconstitutional conduct that conceivably could be targeted by the Act." Kimel, 120 S. Ct. at 645. It is "so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior." City of Boerne, 117 S. Ct. at 2170. For these reasons, the legislative scheme cannot be said to be congruent or proportional to any identified constitutional harm, and it cannot be said to be tailored to preventing any such harm. Accordingly, we hold that the FMLA provisions at issue here do not represent a valid exercise of Congress's power to enforce the Fourteenth Amendment and that the FMLA does not abrogate Eleventh Amendment immunity. Cf. Lavia v. Commonwealth of Pennsylvania, Department of Corrections, 224 F.3d 190, 2000 U.S. App. LEXIS 18989 (3d Cir., 2000) (Title I of ADA).

This is stunningly well and concisely written and quite correct, though it is not the position the Court ultimately took in Nevada Department of Human Resources v Hibbs. I have a law review article on Hibbs, which you can read in PDF here. Alito took the position Justice Kennedy took in dissent in Hibbs. Chief Justice Rehnquist wrote the majority opinion, which purported to apply Boerne and Kimel, but most certainly did not. You can argue that Boerne and Kimel were wrongly decided, but Alito was bound by them and duly and competently applied them. Anyone who tries to say that Alito is hostile to women's rights because of this decision is utterly wrong.

Note: The FMLA is still supported by the commerce power. The issue under the 14th amendment only concerns whether the plaintiff can receive retroactive relief when the employer is the state.

YET ANOTHER UPDATE: Patterico points out an extremely important point about Alito's Chittister case: it was not about leave to take care of a family member, but about sick leave. What is the sex discrimination problem to be remedied with respect to self-care? Hibbs was about taking care of family members, so there was a way to connect the FMLA to the stereotyping of women as the main caregivers. But when it's a matter of taking care of yourself, where's the rights violation to enforce? Patterico links to Bench Memos and this Tenth Circuit case. The bottom line is that Alito was even more scrupulously correct than I've been portraying him. And it's not even about families. Even single folks with no responsibilities for others get this benefit. It may be nice, but it's not about remedying violations of constitutional rights.

Those scary conservative Supreme Court Justices.

Adam Cohen rants, as an "editorial observer" on the NYT editorial page, about the horrible, frightening Supreme Court that might result if Bush is reelected:

Abortion might be a crime in most states. Gay people could be thrown in prison for having sex in their homes. States might be free to become mini-theocracies, endorsing Christianity and using tax money to help spread the gospel. The Constitution might no longer protect inmates from being brutalized by prison guards. Family and medical leave and environmental protections could disappear.

What's that about family and medical leave?

Justices Scalia and Thomas are judicial activists, eager to use the fast-expanding federalism doctrine to strike down laws that protect people's rights. Last year, they dissented from a decision upholding the Family and Medical Leave Act, which guarantees most workers up to 12 weeks of unpaid leave to care for a loved one. They said Congress did not have that power.

Excuse me a minute while I go into full lawprof mode. The dissenters in the Hibbs case did not say that Congress lacked the power to pass the Family and Medical Leave Act. In fact, they assume Congress has that power under the Commerce Clause. The case was only about whether Congress also had the power to subject the states to lawsuits for retrospective relief if they violate the FMLA. To be able to do this, the act had fit into the legislative power given by the Fourteenth Amendment. That is, it needed to be portrayed as a remedy for the violation of the constitutional right of Equal Protection.

The majority--in an opinion written by Chief Justice Rehnquist--had to stretch quite a bit to fit the FMLA into the Court's Fourteenth Amendment jurisprudence. What violation of Equal Protection by the states was remedied by a family and medical leave entitlement? I've written an article on the subject, and I am quite convinced that the majority dismantled its own established doctrine as it stretched to uphold the right to sue the state in this case. Justice Kennedy--one of the moderate conservatives--certainly thought so and dissented.

UPDATE: My article is “Vanguard States, Laggard States: Federalism and Constitutional Rights,” 152 University of Pennsylvania Law Review 1745 (2004). The Law Review is only up to issue 5 on their website, and my article is in issue 6, so presumably it will be up soon. If Lexis links work, this is the Lexis link.

ANOTHER UPDATE: I just focused on "which guarantees most workers up to 12 weeks of unpaid leave to care for a loved one." A loved one? Spare me the sentimentality! The feds have mandated a leave entitlement to care for family members even if you hate them, and if they aren't in your family, there's no benefit even if that person is the love of your life (which, I note, embeds discrimination against gay persons in federal law).

Breastfeeding.

I barely, but polarly, posted yesterday. I took a long drive down to the outskirts of Chicago to do some shopping. That means I was in no position to run into and photograph the protest march for breast milk that took place alongside the Farmers' Market yesterday. Nina has pictures of fruits, vegetables, and breast-promoters. She asks was anyone against breast milk? She asks rhetorically, in the sense of: isn't it silly to march for this because it's completely noncontroversial?

I remember in the early 70s, Ms. Magazine, in its early days, constantly attacked La Leche League, a pro-breastfeeding group. It was considered anti-feminist at the time to encourage women to breastfeed. Breastfeeding promoters had an ulterior motive (according to Ms.): keeping women at home.

Last year, I studied the Family and Medical Leave Act, after the Supreme Court decided that the law enforced equal protection rights. The Court considered whether the federal statute was a remedy for violations of constitutional equal protection rights, and the violation of rights the Court found was that states had given more family leave to women than to men. Key evidence showed that maternity leaves exceeded paternity leaves to an extent that could not be explained by the time of physical disability that follows childbirth (supposedly four to six weeks). I wondered why it violated men's rights to give long maternity leaves to women, considering that only women were physically capable of breastfeeding. A new mother might want to breastfeed for six months or a year. An employer that accommodated the new mother's wish to stay home and breastfeed violates equal protection? I thought it was rather amazing that none of the briefs talked about this subject.

So I think that's an indication that breastfeeding is not treated as important. Sure, go do it if you want, but don't expect a lot of help. I don't know anything about the women who marched in Madison yesterday, but I assume that they are asking for institutions to encourage and facilitate breastfeeding. If they are hoping for long work leaves to allow it, they've got a big problem. But there are still other issues about being accommodated in the workplace (bring the baby to work?) and in various public places (at the next table in at a restaurant?).

Tennessee v. Lane comment #1: Rehnquist can't complain.

The Supreme Court decided today that Congress has the power under Section 5 of the Fourteenth Amendment to permit individuals to sue the states for damages if they fail to provide access to judicial proceedings, as required by the Americans With Disabilities Act of 1990. The 5-person majority consisted of four members of the Court who always vote against state sovereign immunity (Stevens, Souter, Ginsburg, and Breyer) plus Justice O'Connor. I expect to read press reports saying that somehow O'Connor is governed by fuzzy emotions that caused her to abandon her usual pro-state stance and find in favor of the plaintiff who was forced to crawl up a staircase to attend a judicial proceeding. But in fact, Justice O'Connor was voting for the same position she took in Hibbs, last summer's Familiy and Medical Leave Act case, which was written by Chief Justice Rehnquist. In Hibbs, Justices Scalia, Kennedy, and Thomas dissented. Today, the Chief Justice joins the Hibbs dissenters and even writes the principal dissent. But his words ring awfully hollow after the position he took in Hibbs. Justice Stevens, writing for the majority today, is quite right to throw the Chief's own opinion back in his face.

We upheld the FMLA as a valid exercise of Congress’ §5 power to combat unconstitutional sex discrimination, even though there was no suggestion that the State’s leave policy was adopted or applied with a discriminatory purpose that would render it unconstitutional. ... We approved the family-care leave provision of the FMLA as valid §5 legislation based primarily on evidence of disparate provision of parenting leave, little of which concerned unconstitutional state conduct. ...

Now Rehnquist asserts that "the FMLA was 'narrowly targeted' to remedy widespread gender discrimination in the availability of family leave," but little if any of that gender discrimination amounted to a violation of a constitutional right (as the right against sex discrimination is delineated in the case law). Before Hibbs, it wasn't enough that there was a serious social problem that Congress had undertaken to remedy: it had to have a remedy framed as a cure for the violation of a constitutional right. The Chief Justice tried then and now to portray Hibbs as preserving the §5 test applied in the Court's earlier cases, but it didn't, as Justice Kennedy amply demonstrated in Hibbs. Since Rehnquist's own opinion in Hibbs took the bite out of the §5 doctrine, he has no basis to complain about what the majority did today, which was to see what really happened in Hibbs.