Thursday, July 16, 2009

Sen. Franken rises to the challenge

Earlier this week, Doug Clark from the local News & Record used the appointment of newly-seated Sen. Al Franken to the Judiciary Committee to ridicule the Supreme Court confirmation process. Clark wrote
It's appropriate that Senate Democrats put Al Franken on the Judiciary Committee.

The Supreme Court confirmation hearing that begins this morning will be pure show business, with a comic edge. Franken, the comedian-turned-senator from Minnesota, ought to fit right in.

These proceedings have become a joke.
He concluded by sarcastically suggesting that Democrats appointed him to the committee so that he could provide "a laugh or two."

When Sen. Franken got his turn to ask questions, he did provide some comic relief. However, Sen. Franken also ended up asking one of the most insightful questions of the hearings regarding the judicial activism of the Roberts Court.

By a 5-4 decision in Gross v. FBL Financial, the Roberts Court changed the evidentiary standard in age discrimination cases, making it much more difficult for older workers to prevail in lawsuits.

Sen. Franken pointed out that when the Supreme Court decided to hear the case, it indicated that it would be considering a matter regarding whether plaintiffs in age discrimination suits needed to provide direct or indirect evidence of discrimination. In its hearing, the Court received briefs on these issues.

However, the majority's decision addressed an issue on which it had not been briefed--namely, how to weight mixed motives by employers in such cases. As Justice Stephens wrote in his dissent
...the Court is unconcerned that the question it chooses to answer has not been briefed by the parties or interested amici curiae. Its failure to consider the views of the United States, which represents the agency charged with administering the ADEA, is especially irresponsible. Unfortunately, the majority’s inattention to prudential Court practices is matched by its utter disregard of our precedent and Congress’ intent.
After describing the case, Sen. Franken asked Judge Sotomayor, "as an Appellate Court judge, how often have you decided a case on an argument or a question that the parties have not briefed?"

She answered that that was not the practice of her Court.

Sen. Franken's question shows the Roberts Court making important and wide-ranging decisions without giving the parties an opportunity to present facts and arguments. As with so many its other recent decisions, the Court showed a lot of empathy for business interests. You'd think that Sen. Sessions and other Republicans would be outraged by such activism, but you'd be wrong.

Kudos to Sen. Franken for making this point. The Democrats made the right call by seating him on the Committee, though not for the reasons that Doug Clark gave.