Kagan Nomination
Floor Speech
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Mr. WHITEHOUSE. Madam President, let me thank the Senator from Maryland for his comments about the Ledbetter decision.
What we are gathering on the floor today to discuss is whether American corporations are getting something more than a fair shake from Republican appointees on the Supreme Court, whether there is a bit of a systemic lean in favor of corporate interests on the part of those judges to the point where we really now need to call that out because it is beyond what statistics could possibly justify.
Certainly, the Ledbetter decision helps prove that point. We have at a company a woman who does not know she is being discriminated against; that for the same work as her male colleagues, she is being paid less. She has no way to know that. She does not know that. The fact that she does not know that is held against her rather than against the company which discriminated against her. The company was able to get off scot-free for all those months and years of discrimination before she found out what they were doing to her. The law did not require that particular answer. As the dissenting Justices pointed out, it was, in fact, the wrong answer. But it certainly served the interests of corporations across America to limit their liability when they discriminate against their employees.
The case I wish to talk about is the Exxon decision where the Supreme Court threw out a jury verdict after the Exxon Valdez oilspill, a jury verdict for punitive damages in the amount of $5 billion. Sounds like a lot of money. It is a lot of money, but at the time, it was just 1 year of profits for Exxon.
Remember what they did in this case. They took this gigantic tanker, the Exxon Valdez, and they allowed the captain, a known alcoholic, to get on board drunk, to continue drinking heavily while on board, and to steer the Valdez aground in Prince William Sound, creating what was then, in 1989, the biggest oilspill in American history.
Prince William Sound is still recovering from that. Our colleagues from Alaska will tell us that one can still pick up rocks on the seashore and see the oil on the underside of the rocks. We all remember the images we first saw there--and are now seeing tragically echoed in the gulf--of birds, marine mammals covered in oil, poisoned by oil, dying on the shores and beaches or, if they can be found, being recovered by human volunteers who try to clean them up and save their lives. It was a very significant error by Exxon.
Everybody knows corporations are all about their bottom line. That is not me saying that; that is the law of corporations. They actually have a duty, a legal duty to their shareholders to maximize their economic self-interest. It is what they do. It is why they were set up. It makes them a very important economic engine for society. But it does mean we have to control that motivation through the law. One of the ways we control that motivation through the law is with punitive damages--punitive damages assessed through the jury.
Let me say a quick word about the jury. The jury is an American institution of government. It is mentioned three times in the Constitution and Bill of Rights. It is there for a reason. It is there for a very important reason. When de Tocqueville wrote ``Democracy in America,'' he wrote about the jury that it is ``an institution of the sovereignty of the people.'' He wrote that in a chapter whose heading was about protecting against the tyranny of the majority.
The Founding Fathers saw it that way because they saw corrupt colonial Governors. They saw legislatures that had panicked in that period between independence and the Constitution. Remember Thomas Jefferson talking about the Virginia Legislature, saying: We have turned out 1 tyrant, and now we have 270 tyrants--or whatever the number was--of the Virginia Assembly. They had to go back, and Madison had to rethink the balance of powers. They adopted what is now the American system of government. They had an experience that there needed to be a place where one could go to get a clean decision from a jury of one's peers. And it didn't matter who the Governor was, who the general assembly was, what the power structure was; there was some place in American Government where power did not count, where the powerful and the powerless had the same shot. That is why it is in the Constitution. That is why it is described as a mode of the sovereignty of the people.
When the Supreme Court takes away from the jury what seems to me to be a reasonable punitive damage assessment--if they had really been whacked for $5 billion, who knows what message that might have sent through the oil industry. Conceivably, it might have prevented the oilspill in the gulf if it really rattled their cages enough. But, no, it interfered with the predictability corporations want. So the Supreme Court threw out the $5 billion punitive damage assessment--just 1 year's profit for that company--and knocked it down 90 percent. They adopted a rule that it couldn't be more than one-to-one with damages. It is not in the Constitution. It is not statutory. They just decided that the interests of corporations in predictability were so important that paying back Alaskans for the damage done and putting a punitive assessment on top of it that would prevent this from happening again was less important. Predictability was more important; deterring misconduct was less important. That is a value judgment. It is a value judgment these Justices bring to this Court.
Jeffrey Toobin is an authoritative writer about the Supreme Court. He studies it carefully. He tracks it carefully. Here is what he wrote last year about our Chief Justice:
In every major case since he became the nation's seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests and reflected the values of the contemporary Republican Party.
Remember, this is the one who, when being confirmed, said he was only going to call balls and strikes, as if that was even an apt metaphor.
Well, it seems that the strike zone for individual plaintiffs is a lot smaller in this Court than the strike zone for the big corporations. I will pick out a part of the sentence:
In every major case since he became the Nation's seventeenth Chief Justice, Roberts has sided with the corporate defendant over the individual plaintiff.
That is as of May 25, 2009.
If you take a look at the decision that came down today in Rent-A-Center v. Jackson, an employee challenges a contract saying, Wait a minute. I should not have to be a party to that contract because the circumstances that caused me to enter into that contract were unconscionable. I should be protected from that contract because it was unconscionable to force me to sign it. The contract requires that you go and arbitrate instead of having access to--guess what--the jury.
The Supreme Court said the decision over whether it is unconscionable should go to the arbitrator. You wouldn't even be at the arbitrator if the contract weren't valid. It is topsy-turvy logic. But, once again, it reflects the fact that the strike zone for corporations is a lot bigger with the Republican appointees of this Court than the strike zone for regular people.
I see Senator Franken from Minnesota here waiting to speak, and I will yield the floor so he may do so.
As we face this question of Elena Kagan's nomination to the Supreme Court, we need to be clear that when the opponents talk about rule of law, when they talk about not having activist judges, when they talk about making sure corporations get a fair shake, there is actually a little bit more going on here. There is a little bit more going on here, and what is going on here is that over and over and over again the Republican appointees to the U.S. Supreme Court, when they have the chance, will rule in favor of the corporation and against the individual defendant. It is not surprising, since the Republicans are the party of the corporations, that the judges they appoint want to help the corporations. We should not forget that fact as we look at a nominee who will hold the strike zone the same; who won't give that benefit any longer to the corporations that now, apparently, are beginning to feel they are entitled to at the U.S. Supreme Court.
I yield the floor.
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