This year, the Senate Judiciary Committee will begin confirmation hearings for Elena Kagan to be Associate Justice of the Supreme Court of the United States. These confirmation hearings will give an opportunity to the public to see firsthand how important Supreme Court decisions are in their lives. There will be many examples that we could give from schools to consumer issues to personal lives, privacy, religious protections, health and the environment, workplace.

 

In recent years, a sharply divided court has reversed precedent and congressional intent and ruled on the side of big business over individual rights. This is judicial activism, not judicial restraint. I hope all my colleagues would agree with me that the next Supreme Court Justice should be on the side of individual Americans by following legal precedent and congressional intent.

 

I’m going to give one example. I know some of my colleagues who are here on the floor will give other examples. I’m going to talk about workplace fairness and the Ledbetter v. Goodyear Tire case.

 

Lilly Ledbetter worked for 19 years at Goodyear Tire Company.  During that time she was paid $15,000 less than her male counterparts doing the same work. This type of discrimination is prohibited by Congressional statute under the Civil Rights Act of 1964. Within that legislation, Title VII was specifically enacted to protect American workers from undue discrimination – including gender discrimination.

 

When Ms. Ledbetter found out that she was being discriminated against she did the right thing. She brought a claim against her employer.

 

The only reason Ms. Ledbetter knew she was being paid less than her male counterparts was because a fellow colleague finally told her.  This is not unusual. In most employment discrimination cases, employees are unaware of the discrimination until undisclosed information comes to light.  

 

            Ms. Ledbetter went to court, stated her claim and won. But guess what? After multiple appeals, the case reached the Supreme Court of the United States. The Supreme Court, by a 5-4 decision, denied her claims.  The Court said that Ms. Ledbetter had to file her case within 180 days after the beginning of discrimination, and since she didn’t do that her claim was barred by the Statute of Limitations.

 

This defies logic. How can a person bring a claim when she doesn’t know she’s being discriminated against? It makes no sense whatsoever.  This decision appalled me and many of our colleagues. We were shocked.

     

Whose side is the Supreme Court on? What happened to protecting American workers and not big business? What happened to following legal precedent? What happened to following Congressional intent? What happened to following judicial restraint?

 

If an employee is being discriminated against, there should be an effective remedy.  If they didn’t know they were being discriminated against, it doesn’t make the error any less wrong once they find out.

 

The Court is clearly out of touch with the impact they have on everyday Americans. This case is the perfect example of hurting female workers.

 

As of 2009, women comprise 46.8 percent of the total US labor force.  As of 2009, 66 million women were employed in the US – 74% were employed full time, while 26% were employed part time.

 

Equal pay has been U.S. law for more than four decades, but, on average, women today still make just 78 cents to every dollar made by a man in an equivalent position.  And women of color fare even worse. The average earnings for African American women were just 68 percent of men’s earnings while Latinas earned just 58 percent of men’s earnings.

 

The Supreme Court ruled against precedent and actually made it more difficult for women to bridge this gap. That’s not what we want from the Supreme Court of the United States. That’s not what we want as far as the activism of the Supreme Court is concerned. So, when the Court turned the law completely on its head and circumvented congressional intent, Congress stepped in.

 

I am proud to say that my senior senator from Maryland, Barbara Mikulski, introduced the Lilly Ledbetter Equal Pay Act, which I cosponsored.  This legislation had 54 Senate co-sponsors and passed the US Senate by a vote of 61 -36. The House of Representatives passed the bill by a vote of 255-177.  On January 29, 2009, President Barack Obama signed his first bill into law – the Lilly Ledbetter Equal Pay Act.

 

In our system of checks and balances, each branch of government has a responsibility to keep the others in check. We ALL should be on the side of the American people and the American workers.

 

As the Judiciary Committee and the Senate convene next week to consider the nomination of Elena Kagan, we need to remember whose side we are on. We need to remember that big business can and will fend for itself, but it is the individual that looks to the court and looks to Congress to uphold the law and the protections it delivers.

 

Elena Kagan will be the fourth woman to serve on the nation’s highest court, and this will be the first time in history we will have three women serving on the Court at the same time. Elena Kagan’s record as Solicitor General and her broad legal background gives me confidence that she understands the appropriate role of the Supreme Court of the United States.

 

I urge the American people to tune in for the confirmation hearings to learn more about how the Supreme Court really does have an impact on their daily lives.