Ed Whelan's Testimony at the Kagan Hearing
At Bench Memos, Ed Whelan posts an excerpt of his forthcoming testimony to the Judiciary Committee.
I’ll begin with a remarkable colloquy among three Senate Democrats, all members of this Committee, that took place just last week on the Senate floor. In their prepared remarks, each of the three senators complained about the supposed conservative activism of the Roberts Court and used their complaint to frame the Kagan nomination. In extensive comments, each of the three senators offered what he regarded as a compelling example of that supposed conservative activism.
Whelan goes on to pick apart the claims--made by Senators Cardin, Whitehouse, and Franken--of conservative activism. It's worth reading the whole thing. Here's Whelan's takedown of Franken:
The third participant in this remarkable colloquy was Senator Franken. Senator Franken began his remarks by connecting a brutal gang rape of a military contractor employee in Iraq to the Supreme Court’s 2001 decision in Circuit City Stores v. Adams:
What happened to [the rape victim] in Iraq was bad enough, but because of the Supreme Court’s decision in Circuit City Stores v. Adams, [her employer] had been able to force [her] to sign an employment contract that required her to arbitrate all job disputes rather than bringing them to a court of law.
In Circuit City, the Court ruled 5 to 4 (with Justice O’Connor, among others, in the majority) that a provision of the Federal Arbitration Act excludes from the Act’s coverage contracts of employment of transportation workers, but not other employment contracts. (The underlying complaint involved alleged employment discrimination.) Over a period of more than four decades, ten courts of appeals had previously addressed the same question. All but the Ninth Circuit reached the same conclusion as the Supreme Court. But you wouldn’t know any of this from listening to Senator Franken’s remarks, nor would you have any idea whether and why he believed that Justice O’Connor and her colleagues in the majority got it wrong as a matter of law. Instead, you’d be led to believe that the Court’s decision was “about whether you have a right to a workplace where you won’t get raped.”
All of this was Senator Franken’s wind-up for his condemnation of a ruling that the Supreme Court issued the day before his remarks, in Rent-a-Center West v. Jackson, No. 09-497 (June 21, 2010). The case involved an issue of federal law that Solicitor General Kagan evidently regarded as so unimportant that her office chose not to file a brief. The Court ruled by a 5-4 vote that under the Federal Arbitration Act, where an agreement to arbitrate includes an agreement that the arbitrator will determine the enforceability of the agreement, a party’s challenge to the enforceability of the agreement as a whole is for the arbitrator to decide. I’ll volunteer that I have no considered opinion whether the Court got it right in Rent-a-Center West, for I haven’t spent more than a few minutes skimming through the 25 pages of dense argument and counterargument in an unfamiliar and complicated area of the law. But Senator Franken was ready the very next day with his assessment:
Although Jackson signed an employment contract agreeing to arbitrate all employment claims, he also knew the contract was unfair, so he challenged it in court. But yesterday the Supreme Court sided with Rent-A-Center, ruling that an arbitrator, not a court, should decide whether an arbitration clause is valid. Let me say that again. The arbitrator gets to decide whether an arbitration clause is valid. Let me repeat that. The arbitrator gets to decide whether the arbitration clause is valid. That is just one step away from letting the corporation itself decide whether a contract is fair.
Senator Franken evidently imagined that he was offering a legal argument that would somehow become compelling if only he just kept repeating it. But he utterly failed to address, much less grapple with, the statutory text and precedents on which the majority and dissent divide.