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How the President Can Foster the "Civil and Honest" Debate He Called For

In his speech in Tucson, where federal Judge John Roll was murdered, President Obama said that "only a more civil and honest public discourse can help us face up to our challenges as a nation." But the President himself has often failed to live up to this aspiration, as his dishonest attacks on the judiciary, and his long line of broken campaign promises, illustrate. (Obama’s broken promises include false claims that he would implement a “net spending cut,” not raise taxes on anyone making less than $250,000, and not prevent anyone from "keeping" their existing health coverage.)

Some of Obama’s attacks on the judiciary have just exaggerated the scope of Supreme Court decisions for political gain.  For example, he deceptively claimed that the Supreme Court’s First Amendment ruling in Citizens United, which allowed U.S. companies and unions to spend money on political ads, “reversed a century of law" to allow "foreign corporations" to "spend without limit in our elections.”  (In response, Justice Alito silently mouthed the words “not true” when Obama attacked the Supreme Court for this ruling at the State of the Union Address, at which the Justices were present as invited guests).  In reality, as I noted earlier, the Supreme Court’s ruling did not lift restrictions on foreign companies; it did not call into question the 1907 federal law banning corporate contributions to politicians; and it overturned only one past Supreme Court decision, the Supreme Court’s controversial, 5-to-4 decision in Austin v. Michigan Chamber of Commerce (1990), a ruling that deserved to be overturned because it was itself "at odds with prior precedent."

But other times, Obama’s attacks have been completely false -- such as his attacks on the Supreme Court’s decision in Ledbetter v. Goodyear, which were deeply misleading, as legal commentators like Stuart Taylor of the National Journal have pointed out.

Obama didn’t let facts get in the way of a good story, or milking a political wedge issue, when he signed into law his very first legislation, the Lilly Ledbetter Fair Pay Act, which overruled the Supreme Court’s decision in the Ledbetter case. (In that case, the Supreme Court enforced the 180-day deadline for bringing pay discrimination claims contained in the federal discrimination law with the shortest deadline, Title VII. Other laws, like the Equal Pay Act, have much longer deadlines, like 3 years).

Obama falsely claimed that Lilly Ledbetter, whose pay discrimination claim was dismissed by the Supreme Court as untimely, worked at Goodyear “for nearly two decades before discovering that for years, she was paid less than her male colleagues for doing the very same work.” Actually, Ledbetter knew by 1992, if not earlier, that she was being paid less than the male employees she claimed should have been paid the same as her. Small wonder that the  Supreme Court’s 2007 ruling in Ledbetter v. Goodyear dismissed her claim as untimely. (As Stuart Taylor notes, she brought her discrimination claim only after the supervisor she accused of discrimination had died, and shortly before she retired.)

The White House statement accompanying Obama’s claim made additional false claims about the Supreme Court’s ruling.  It dishonestly claimed that the Supreme Court ruled that an employer can avoid discrimination claims just by concealing discrimination for 180 days -- a claim flatly at odds with language in the Supreme Court’s decision, like footnote 10.

In an assertion parroted by gullible reporters, it claimed that “The Court ruled that employees subject to pay discrimination like Lilly Ledbetter must file a claim within 180 days of the employer’s original decision to pay them less . . . even if the employee did not discover the discriminatory reduction in pay until much later (check out Justice Alito’s arguments in the Court’s opinion).”

That claim was knowingly false, since it was contradicted by passages in the very court decision the White House linked to.  First, the Court never said there was a rigid deadline that bars claims by employees who “did not discover” discrimination “until much later.” Ledbetter never argued that the deadline should be waived or suspended based on her employer concealing discrimination against her, because she in fact knew for years about the pay disparity she later sued over. If she truly had been in the dark about the alleged discrimination, she could have sought to take advantage of exceptions to the deadline that suspend it, like waiver, estoppel, and equitable tolling, under the Supreme Court’s decision in Zipes v. Trans World Airlines (1982). But she never made that argument, because, as she testified in her deposition, she had been told many years earlier that she was being paid less than the men she later claimed ought to have been paid the same as her.

Ledbetter did not even argue that the outcome of her case would be affected by an even broader extension to the deadline for employees who are unaware of the discrimination against them known as the so-called discovery rule. As the Supreme Court specifically noted in footnote 10 of its decision, “we have previously declined to address whether Title VII suits are amenable to a discovery rule. . . .Because Ledbetter does not argue that such a rule would change the outcome in her case, we have no occasion to address this issue.”  In short, since Ledbetter had long known of the facts underlying her discrimination claim, relaxing the deadline for employees who “did not discover” the discrimination until much later would have done her no good.

Thus, it was obviously wrong for the White House to claim that the Supreme Court was barring discrimination claims irrespective of whether “the employee did not discover the discriminatory reduction in pay until much later."

Moreover, the Supreme Court expressly noted that the plaintiff could have pressed her claim instead under the Equal Pay Act, which had a longer deadline for suing (usually 3 years) and more generous rules for when the deadline starts running. But her lawyer foolishly failed to preserve that claim, which was a mistake, as he admitted to the Supreme Court. The Supreme Court responded by noting, “Petitioner, having abandoned her claim under the Equal Pay Act, asks us to deviate from our prior decisions in order to permit her to assert her claim under Title VII.”

Lawyers like Paul Mirengoff have repeatedly chided Obama and the White House for telling tall tales about the Ledbetter case.   During the 2008 election campaign, both Obama and state democratic parties made false claims about the Ledbetter case, in order to use it as a political wedge issue -- claims that were mindlessly parroted by some in the media.

A good first step for Obama in fostering “civil and honest” debate would be to engage in it himself, by no longer distorting court rulings for political gain.