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From the diaries by Armando.

In 2000, Judge Samuel Alito authored an opinion in which he concluded that Congress did not have the power to require state employers to comply with the Family Medical Leave Act. This ruling was overturned by the Supreme Court in 2003, with a 6-3 margin. Voting in dissent? That's right, everyone's favorite activist justice, Antonin Scalia.

Now why should this somewhat arcane labor issue be of interest to me, particularly in light of Alito's involvement in the much more controversial and interesting Casey decision? Well, I am an employee of the state of Washington. Had Alito and Scalia gotten their way, my employers could have denied me leave, and I wouldn't be in the position I am now--able to provide assistance to my disabled sister and brother-in-law while he fights for his life against an aggressive and deadly lymphoma. I am here at my sister's and brother-in-law's side because of the Family Medical Leave Act.

In his ruling in Chittister v. Department of Community and Economic Development, Alito argued that the FMLA was an instance of unconstitutional congressional overreach. He also argued that the FMLA was unconstitutional because "there was no evidence for the notion that women are disadvantaged in the workplace when they are not allowed to take family leave. Furthermore, he argued, the requirement that everyone be guaranteed 12 weeks of unpaid family leave was a disproportionately strong remedy":

Notably absent [from the FMLA] is any finding concerning the existence, much less the prevalence, in public employment of personal sick leave practices that amounted to intentional gender discrimination in violation of the Equal Protection Clause.

...Moreover, even if there were relevant findings or evidence, the FMLA provisions at issue here would not be congruent or proportional.

Alito's idea that women are not disadvantaged when they can not take maternity leave seems absurd, both intellectually and factually. Even William Rehnquist, who wrote the Supreme Court's 6-3 opinion in 2003 overturning Alito's ruling, found Alito's argument deeply flawed.

Luckily for me, Rehnquist led the Supreme Court in overturning Alito's flawed decision. Let me reiterate that. Alito's ruling was too conservative for Rehnquist. Let me also point out that Justice O'Connor, the woman who Alito has been named to replace, joined the court majority in deciding that the FMLA was an appropriate federal response to gender discrimination, as the states had a history of basing their leave policies on the stereotype that women should stay home to take care of sick family members or newborn children. Thus, FMLA stands as Congress intended it, and state employees like me can realize its benefits.

But of course, FMLA isn't just about me. The Family Medical Leave Act, passed in 1993, provides for as many as 12 weeks of unpaid leave for employees of all public agencies, all public and private elementary and secondary schools, and companies with 50 or more employees. These employers must provide an eligible employee with up to 12 weeks of unpaid leave each year for the birth and care of the newborn child; placement of a child for adoption or foster care; to care for an immediate family member with a serious health condition; or to take medical leave because of a serious health condition. According the the Department of Labor's most recent survey, in an 18-month period in 1999 and 2000, nearly 24 million Americans took leave from work for an FMLA covered reason.

Alito's and Scalia's hostility toward the FMLA could very well stem from the hostility of business interests, like the U.S. Chamber of Commerce. In part because of lobbying efforts by them, the Department of Labor is currently developing proposals to revise parts of the law. See, the Chamber feels that the law is too vague, and is vulnerable to employee abuse. Because, you know, getting those 12 weeks of unpaid time off from work is just too tempting. How great would it be to forego  your income for three months so you can sit around and watch Oprah?

Gender issues aside (that he could find that there was no foundation for the idea that women were unfairly burdened by not being allowed maternity leave absolutely baffles the mind), this is yet another issue in which Alito is far out of the mainstream of both public opinion and public experience. From Labor Department surveys we know that:


  • The overwhelming majority of employers said the use of intermittent leave had no impact on productivity or profitability.

  • More than four in five employees surveyed believed that every worker should have up to 12 weeks of unpaid leave in a year for family and medical problems.

  • Two-thirds of employees believed 12 weeks of unpaid leave in a year for family and medical problems was not an unfair burden on co-workers.

  • 85 percent of employees reported that the taking of leave by co-workers had a positive or neutral impact on them.


  • While the vast majority of American workers support FMLA, and a majority of American companies provide it without detriment to their own bottom line, Alito thinks it goes too far.

    The United States is the only industrialized nation in the world that doesn't provide paid family leave. Should another FMLA case come before a Supreme Court with both Alito and Scalia, we might even lose the unpaid leave we have now. That would leave millions of families, like my own, struggling to care for ourselves, our loved ones. In terms of family values, I don't know what could be more critical.


    Originally posted at:

    Originally posted to Daily Kos on Thu Nov 03, 2005 at 02:04 PM PST.

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    Comment Preferences

    •  The personal (4.00)
      is almost always political. Especially with this crowd in power.
      •  Personal, indeed, is political. (4.00)
        First of all, I wish your family well and send them and you my best.

        Secondly, this shows how the results of political debate and voting can effect people on a very personal level.

        This administration has people jammed in from all directions.   For example, say you were left with the decision between quitting your job and tending to your family?  Say you chose your family...and went into financial difficulties and had to declare bankruptcy, the new bankruptcy bill would screw you to the wall...so you would regret your "family values" choice long after your family's health crisis was over.

        I hate the people who are running our country into the ground.

        What's Political Cortex? Open for business, that's what!

        by NYBri on Thu Nov 03, 2005 at 02:20:46 PM PST

        [ Parent ]

        •  It's difficult enough for many (4.00)
          Even if they don't have to quit their jobs, because FMLA is unpaid, they often have to go on public assistance. The administration and Republican Congress have cut foodstamps, Medicaid, and other programs for the needy. So while they're job might be saved, and they still have benefits, they're living hand to mouth.

          What a mess.

          •  Indeed. I've not had to avail myself... (none)
            of Family Medical Leave. But easily better than 50% percent of the people I'm close to at work, would have been badly hurt in some way, had it not been there. Thank you for posting on this.

            "We have too many high-sounding words, and too few actions that correspond with them." Abigail Adams 1764

            by greeseyparrot on Thu Nov 03, 2005 at 04:15:23 PM PST

            [ Parent ]

          •  I have been on FMLA (none)
            in the past. It saved my job, for a while, anyway. I was very grateful for it.   Also had to use it when one of my sons was ill, and again when my husband had a stroke.

            That's what I don't understand about this aversion to FMLA: It keeps people working.  I was a trained ER tech with lots of experience;  when you have to quit for health reasons, it is expensive for the company to hire and train a new employee.  It leaves a gap, it stresses the staff to work short-handed.  More stresses when someone has to train the new person plus do their job.
            It seems very short-sighted and mean.  What's next, debtors' prisons?  

            War is not an adventure. It is a disease. It is like typhus. - Antoine De Saint-Exupery

            by Margot on Thu Nov 03, 2005 at 04:39:18 PM PST

            [ Parent ]

            •  FMLA is a slippery slope (none)
              towards a world where human rights
              trump the property rights

              read the iraqi constitution
              and all the defense of property rights

              we live in a world where
              people hire hungry chuildren to make profits

              love life, ride bikes

              by common terry on Thu Nov 03, 2005 at 04:56:41 PM PST

              [ Parent ]

              •  Without FMLA (none)
                It's a steep plunge off a cliff for people who just want to work, and get sick or have illness in their families.  
                I'll have to write my congressman about this.  

                War is not an adventure. It is a disease. It is like typhus. - Antoine De Saint-Exupery

                by Margot on Thu Nov 03, 2005 at 05:25:21 PM PST

                [ Parent ]

            •  Employers are not idiots (in general) (none)
              That's what I don't understand about this aversion to FMLA: It keeps people working.  I was a trained ER tech with lots of experience;  when you have to quit for health reasons, it is expensive for the company to hire and train a new employee.  It leaves a gap, it stresses the staff to work short-handed.  More stresses when someone has to train the new person plus do their job.
              It seems very short-sighted and mean.  What's next, debtors' prisons?

              In the situation you present, it would be dumb of an employer to NOT voluntarily offer 12 weeks of time off. If employer A did and employer B did not, obviously employer A would have a competitive advantage and employer B would disappear eventually if they stuck to their stupid practices.

              However, at the two extremes, I don't think this is as true. At the low end (consider McDonalds and WalMart checkers), turnover is so great that you can hire, train, and have a "fully" productive employee in six to eight weeks - so offering 12 weeks of leave may not make sense (but may - given that the 12 weeks is unpaid). At the other end of the continuum are high skill employees (consider software development in small/midsized shops developing sophisticated enterprise level products), where it may take six months for an employee's productivity to BEGIN to overcome their training costs - obviously it's a no brainer to let a key employee have 12 weeks off (even if it is a PAID 12 weeks). The problem I have with FMLA is the "one size fits all" nature of it. It's far too generous in some cases (trust me, if I'm an employer competing w/India call centers and here I have to adhere to FMLA and in in India I don't, I may just outsource the whole mess and it might be that FMLA is the "straw that broke the camel's back -- now, how did FMLA help the unemployed US worker whose job went to India?) and inadequate in others. We DO live in a global economy and protectionism won't save the U.S. -- the U.S. companies need to compete in world markets and the scope of the U.S. Federal government is limited to the States. Let the market work.

              •  The fact is, you can't compete with India on costs (none)
                The sooner people start to realize that, the better. You can compete with protectionism, infrastructure and education, fighting for innovation and selling training, finding better ways to motivate your workforce than the old "no work, no bread". Not on costs. If you really compete on costs, you could as well close shop now, because if it's not India it will be China or Argentina or The Next Catching-up Country.
                •  Everyone competes on cost. (none)
                  For a given product or service of a given quality delivered within a given time frame, cost is the only material free variable. The business who can produce higher quality products for the same price (as the Japanese car makers did while Detroit fiddled) or the same or better quality at a lower price (as China has been doing for a long time) will win. Even if the U.S. can somehow warp the free market within its borders, it can't do so worldwide and the U.S. can't be an economic island onto itself.

                  Protectionism is completely appropriate when it is retaliatory. For example, if China doesn't respect our IP or levies tariff's on imported chip manufacturing equipment, we should levy tariffs against some portion of their products (and might as well pick an area that helps those U.S. businesses hurt by China's malicious actions). Protectionism may be appropriate for SHORT term problems - unfortunately we (the U.S.) don't have long term vision so such measures are, IMHO, unlikely to work very well in the long term since making life soft for some business sector rarely actually causes them to work harder and/or smarter. (Of course protectionism as a tool to get votes is always inappropriate - as Bush finally figured out with his ill-fated steel tariffs).

                  Due to competition for skilled workers, the costs of software development are rising rather significantly in India - and it is inevitable that this trend will continue. As India addresses their rather serious infrastructure and poverty problems, this will also drive up the cost of living in India which, in turn, will drive up the cost of hiring software developers there. We don't have to completely meet them on price, but we have to (and are) respond to the pricing problem and wait for them to become more expensive.

                  But, as you seem to agree, education is a key to retaining the high standard of living enjoyed by Americans. I fear that we may be so far behind the education curve that by the time we recover our education system to the point it matches that experienced by the top students in China and India, the U.S. will be a "has-been" having condemned yet another generation to educational mediocrity. There is a glimmer of hope for public education now that objective standards are being applied again, but this is not enough. Much of the problem is cultural. These cultural problems include parents who have low expectations and who don't believe that their kids should work hard in school (and even complain because their kids have too much homework). Another cultural problem includes the notion in some areas that science should be taught only to the extent it doesn't challenge religion. In my opinion, one of the greatest cultural problems within the public school system is the notion that kids should not be judged and classified - which leaves the good students under-challenged and the poor students overwhelmed (or completely oblivious to the fact they will never be able to get a job better than a WalMart checker).

      •  Alito nomination (none)
        Specter just said on NPR that Alito's nomination would not come before the Senate until January.  By that time the Bush administration will be in so much hot water that they would be lucky to get Mother Theresa confirmed to the SCOTUS.
      •  FMLA Roll Call (none)
        Thanks for your writing as always. Best wishes to you and your family.

        The FMLA passed 71-27 in February 2003. The Senate roll call is here. The following Senators who voted for FMLA should get a question on the subject - either from a constituent or the local press.

        Akaka (D-HI)       Feingold (D-WI)      Levin (D-MI)
        Baucus (D-MT)      Feinstein (D-CA)     Lieberman (D-CT)
        Biden (D-DE)       Harkin (D-IA)        McCain (R-AZ)
        Bingaman (D-NM)    Inouye (D-HI)        Mikulski (D-MD)
        Bond (R-MO)        Jeffords (R-VT)      Murray (D-WA)
        Boxer (D-CA)       Kennedy (D-MA)       Reid (D-NV)
        Burns (R-MT)       Kerry (D-MA)         Sarbanes (D-MD)
        Byrd (D-WV)        Kohl (D-WI)          Shelby (D-AL)
        Dodd (D-CT)        Lautenberg (D-NJ)    Specter (R-PA)    
        Dorgan (D-ND)      Leahy (D-VT)         Stevens (R-AK)

        Murkowski, Chafee and Pryor all had their fathers vote for FMLA.

      •  FMLA was not relevant (none)
        to the situation of the plaintiffs in this case. The State had already enacted legislation that was equally generous. The case concerned only the federal government's ability to usurp state legislative authority. Those who support "active liberty," as Justice Breyer describes it in his recent book, should celebrate this example of restricting the power of the federal government to remove democratic decisionmaking power from the States. When will we learn that centralized power harms the ability of local people to govern themselves according to their particular, local preferences? That is not a Republican or Democratic value, it is the American ideal as brilliantly enacted by the Founding Fathers.
    •  mcjoan (4.00)
      Excellent diary.

      There is nothing more stimulating than a case where everything goes against you. -- Sherlock Holmes

      by Carnacki on Thu Nov 03, 2005 at 02:24:28 PM PST

    •  One of the disturbing things about Alito (4.00)
      As I understand it, the legal question was whether the federal government could require states -- not private employers -- to comply with FMLA.

      But Alito won't shut up! He could simply say, "Women may be harmed, but federalism prohibits this as a remedy." Instead he spouts off about Congress' assertion of gender inequity not having enough evidence for him.

      This guy is an out-of-control activist who has minimally concealed contempt for Congress.  Any Senator who votes to confirm him will regret it when Alito starts examining the Senator's bills.

      I've got blisters on my fingers!

      by Elwood Dowd on Thu Nov 03, 2005 at 02:30:06 PM PST

      •  I am truly terrified about this one (none)
        He is a Scalia clone. There is absolutely no question. And with the huge unknown that Roberts presents? This could be an incredible disaster.
        •  well if it gets to that point (none)
          i.e., a disaster wherein we see a Scalia-cloned majority send us back into a pre-New Deal state of nature, then the solution is simple: we ignore the Court and its decisions. There's no obligation to obey or live by laws that are contrary to basic human rights and dignity. And if the USSC turns into an instrument of evil then we are compelled to resist it -- or, better yet, ignore it completely.
          •  Respectfully disagree... (none)
            The real problem is not us ignoring court rulings, though civil disobedience and the underground are always options.  Loompanics is your friend, always.

            It's the corporations, the place where most of us are employed or depend on insurance from, that won't ignore the court rulings.  They'll celebrate them, and take it out on you...and you CAN'T ignore that.

            That's the raal problem.

            •  then perhaps (none)
              this would require the creation of alternate economies, barter-based, where people exchange goods and services based on shared values and community, removed from the eyes of the corporations.
              •  That's the very definition of underground... (none)
                But it would also mean living without a salary, or health care, making all your own clothing, not using anything mass-manufactured by a major company (that includes bicycles!) etc.  Ie, pioneer living.  I doubt most people would be willing to take such drastic steps.  I know with my physical problems, I would quickly die without health care.

                Or you could just leave the country, for places that aren't so barbaric.  That's what I'm seriously contemplating doing.

                •  You should leave, if you are (none)
                  so unpatriotic as to refuse to live in accordance with the results of the democratic process. Try North Korea. Or Canada, where they will lock you up for protesting government policy immediately before an election. People like you do more to undermine the left's progress than anything the right could ever dream up. "Useful idiots," I believe Lenin called you.
                  •  Oh, really? (none)
                    It's called personal survival.  If I can't get health care for my particular little cross to bear when it flares up, I die a slow, exeedingly painful death.  And I'm not rich, management or poltically connected, so keeping health insurance -- even as a scientist and a 'privileged white male' is going to get ever-dicer in this environment.

                    I'd rather be alive in Canada then a dead activist in the U.S.  

                    And if that's not good enough, then screw you and the horse you rode in on.

                    •  Good luck getting health care in Canada (none)
                      I know, I lived there for years and left in part because, with the exception of a few affluent communities, the wait for medical care is dangerously long.

                      And I note that you seem to be able to afford access to a computer and the internet. Maybe cutting some luxuries--television, eating out, movies, a car (we all have are own preferred luxuries)--would help pay for health care for those who can't afford it. I know people who don't buy health insurance but spend hundreds, or even thousands, of dollars on holidays each year. If a person has a television, a new or newish car, cable, or takes holidays, and does not have health insurance, then that is a personal choice.

                      •  A more civil answer deserves a civil response. (none)
                        The wait for health care under the plan I have now is dangerously long.  It takes me six months plus to see a specialist (save playing phone tag to get perscriptions) and just as long to get colonoscopies.  I can't see how the wait in Canada is going to be any worse.  Round here, we ALREADY have rationing.

                        No amount of luxury cutting will allow me to afford a single payer policy, unemployed (or minimally employed) with ulcerative colitis.  With people being denied policies for suspicious moles, guaranteed that unless I get under a group plan, nobody will ever be offering me health insurance.  And fewer and fewer companies are going to be offering any sort of health plan to anyone that isn't management.

                        Plus, it's extraordinarily ignorant to argue that cutting my $50 a month in broadband access charges is going to allow me to suddenly afford a $25,000 hospital copay.  Even WITH insurance, I get diagnosed with colon cancer -- a high risk with my disease -- I'm dead.  One way or the other.

                        At least in Canada or Switzerland, I will have none of these worries.  I'll gladly pay half my income in taxes for sake of NEVER having to worry about access to lifesaving treatment.  Period.  That will forever be a worry here, because I'm not management, not an executive, and not a politician.  I'm just a scientist.  A breed that's increasingly coming under fire in this country, too.

                        I'll say it again: I'd rather be a live activist in Canada then a dead martyr -- for no cause at all but adding some number to a statistics page which changes NOTHING -- in this country.

      •  Here's the thing (4.00)
        In order to justify his decision, Alito had to examine Congressional findings.  That is because what was at issue in the case was whether Congress had properly abrogated state sovereign immunity under the 11th Amendedment.  

        Under existing Court precedent, individuals cannot directly sue the state because the state enjoys sovereign immunity.  Congress can abrogate that immunity when it seeks to enforce the Equal Protection Clause of the 14th Amendment.  To do so, Congress must make findings justifying the need for a particular remedy to some existing violation of the Equal Protection Clause.  

        Thus, to reach his decision, Alito had to say that Congress did not make the appropriate findings to justify abrogation of state sovereign immunity.  

        State sovereign immunity is a bunch of nonsense created by Renquist, Scalia, Thomas, O'Connor, and Kennedy, but that is another story.  

        Ever get the feeling you've been cheated?

        by johnny rotten on Thu Nov 03, 2005 at 04:01:03 PM PST

        [ Parent ]

      •  you've been misled (none)
        you've got it all right except for one thing - the case alito was examining involved the personal sick leave provision of FMLA (not the maternity leave or sick child leave).

        alito's decision was narrowly written to reject just that one provision, not the entire FMLA, because it doesn't serve any equal protection purpose, as required by the the 11th amendment when congress wants to allow people to sue state employers in federal court.

        to claim that personal sick leave has an equal protection role is to say that women are inherently more prone to illness, which is absurd.

        i'm no fan of alito. i am a big fan of the FMLA (the first bill clinton signed). but sometimes strict construction is just strict construction.

        "The best lack all conviction, while the worst are full of passionate intensity" -Yeats

        by jethropalerobber on Fri Nov 04, 2005 at 08:32:26 AM PST

        [ Parent ]

    •  THIS is the issue they should use, (4.00)
      NOT abortion. This is the clear winner that all men would also be able to identify with. Commercials of a mother (with appropriate father behind her) with her newborn intimating that she wouldn't be able to take any time off or not have a job when she got back from taking time off would be SO effective.  We could point out how anti-family values it is. We could point out that this would mean more money for childcare would be needed, not much, but still some.

      A commercial about taking time off to deal with a sick ailing parent.

      All of us could write the copy for these commercials  in a host of situations.

      This will work.  This is the issue.

      •  One of many issues (4.00)
        Believe me, I'm pretty pissed off about Casey and spousal notification as well.

        In total, what these rulings mean is that this guy is far, far out of the mainstream of opinion, experience, and life out in the real world.

      •  The abortion issue also has personal resonance! (4.00)
        The abortion issue may be more controversial, but if we frame it as freedom from government intrusion, I think it will resonate.

        Here's MY  story, for what it's worth:

        My sister called me in a panic sometime in the mid-eighties.  She was pregnant and wasn't sure the baby was her husband's.  Their marriage was troubled and she had not been faithful.  She begged me to give her the money so she could go and get an abortion without needing to tell her husband.   Of course I did.  

        If  Judge Alito had his way, my sister  would have had to notify her husband that she was pregnant with a child that might not be his.   Who knows what might have happened to her if the government had interfered in her private family business?   Does Big Brother know what is best for your family?  I don't think so.  

        My intention isn't to hijack this thread and make it into an abortion discussion, but I just had to disagree with the suggestion that family leave is THE primary issue to stress.  

        "Pro-life" really means "pro-criminalization"

        by Radiowalla on Thu Nov 03, 2005 at 03:45:38 PM PST

        [ Parent ]

        •  I got to watch oral arguments in Casey (4.00)
          Drove by myself to DC, got in line the night before and waited all night to get in.  I was interviewed on the radio afterward about the issue of spousal notification, and remember talking about how the government had no place insinuating itself in spousal communications.  

          Being there then being heard was a pretty cool day.  So sad that it has come back around again.

        •  Please, would everyone (none)
          attacking Alito do the simple task of reading his opinions before criticising them. Threads like this do the anti-Alito cause terrible harm by making other posters, who are trying to sensibly oppose the nomination, look foolish by association.

          The law that Alito would have upheld in Casey contained an exception for women who believed that their husbands were not the father of the child. Your sister, despite her shameful and wicked behavior, would have been exempted from the notification requirement.

          Is this the best that can be offered in opposition to Alito? Incorrect allegations that adulterers will be incovenienced by the nomination? Cause that'll play just dandy in the heartland.

      •  Where are these commercials now? n/t (none)
      •  Exactly (none)
        Abortion is controversial. FMLA is not.
      •  Harry &Louise: what do we do with Mom?? (none)
        The ailing parent scenario is a fact of life for many aging baby boomers.  Unless you're satisfied with a flip through the phone book & shipping dear old Mom off to the closest care center, it takes a LOT of time and a LOT of travel (if you're not local) to handle a parent who can no longer live on their own.  We just went through 2 1/2 years of hell with my mother-in-law (she was in FL, we're in NJ) and now are dealing with my father & mother in upstate NY. I'm lucky; I have two siblings who can help out, but we're all working full time & two of us are more than 6 hrs away.  It's emotionally and often financially draining.  People who have not dealt with it have very little clue on what it can be like - rather like having kids or a serious illness strike.  

        We must do better than this Scrooge-like mentality towards workers.  God help us, every one.

        "What do I want? Absence of mood swings and some stability in my life" -L. Simpson

        by FindingMyVoice on Thu Nov 03, 2005 at 06:54:27 PM PST

        [ Parent ]

    •  is there a reason (none)
      that family medical leave could not be established either in the collective bargaining process, or the State Legislature?

      A Senator YOU can afford
      $1 contributions only.
      Masel for Senate
      1214 E. Mifflin St.
      Madison, WI 53703

      by ben masel on Thu Nov 03, 2005 at 02:53:36 PM PST

      •  Paid leave? (none)
        As we have FMLA for now, I'm assuming you're talking about an expansion of it, maybe as paid leave? Prior to FMLA, there were labor agreements and possibly even some state laws granting it. I know that much, but not a lot more.
      •  No reason we can't do that (none)
        But of course, the same applies to child labor laws, workplace safety laws, minimum wage...

        I've got blisters on my fingers!

        by Elwood Dowd on Thu Nov 03, 2005 at 03:05:18 PM PST

        [ Parent ]

        •  So, shouldn't those favoring (none)
          responsive government, in keeping with Justice Breyer's "active liberty" thesis, support returning all these issues to the States? Why do we always oppose this? Can't we stand the results of the democratic process? What are we afraid of?
          •  Economic view (none)
            You're asking for a 'race to the bottom.' States will tend to keep minimum wages very low, to compete with neighboring states.

            I've got blisters on my fingers!

            by Elwood Dowd on Sun Nov 06, 2005 at 02:30:07 PM PST

            [ Parent ]

            •  But a race to the bottom (none)
              is the democratic result. Nothing requires a State to join the race to the bottom. If a State prioritizes other values above luring businesses that won't comply with their preferred regulations, then they can make that choice. To seek a high standard of regulations while denying another jurisdiction the right to choose a lower standard is asking to have your cake and eat it too. Aren't we willing to suffer for our standards?
              •  Game theory (none)
                Tells us that every state wants no race at all, yet every state will compete. Democracy has nothing to do with it -- if each state were a monarchy that had to compete withits neighbors, the results occur.

                I've got blisters on my fingers!

                by Elwood Dowd on Tue Nov 08, 2005 at 06:58:23 PM PST

                [ Parent ]

                •  Actually, game theory (none)
                  doesn't "tell us that every state wants no race at all." Game theory couldn't possibly know the will of the voters of a given state--it is a theory, one of whose variants postulatest that, in a situation in which neither party would benefit from a given outcome, there is often an incentive for both parties nevertheless to seek that outcome. It also doesn't apply easily in situations where multiple (in the case of States, millions) of decisionmakers have input, and in which the interests are infinitely complicated by other related interests.

                  In a democracy, however, different States can--and do--value different policies differently and act accordingly. If this were not so, then every EU country would have the same tax rates, and Canada and the U.S. would have the same corporate and environmental regulations. They don't, because different societies are willing to accept greater amounts of regulation, and to forego additional revenue, because they have different orders of preferences.

                  Your simplistic view of game theory doesn't accommodate these different orders of preference (although other variants do, with mixed success, and no real practical application).

                  But all of this is ancillary to much of the federalism debate, which concerns social regulation and criminal law. If different States want to enact different laws regulating, say, violence against women (the SC's Morrison case) or handgun possession near schools (Lopez), then wouldn't a more responsive, participatory system of government allow these decisions to be made at the State or local level, rather than by a centralized Congress, in which a majority of the States can override the will of a minority?

                  Remember, the Commerce Clause interpretation that would strike down VAWA also struck down California's medical marijuana laws.

                  State's rights are not a bad thing: those who are unhappy with their State's policies can leave far more easily than someone who is unhappy with national policy.

    •  Be Careful (none)
      In assuming that Rehnquist actually agreed with the majority opinion.  He may have voted that way only so that he could assign himself the opinion, and thus narrow the scope of the opinion as much as possible.  If he was going to lose 5-4 anyway, there's no reason for him not to jump sides and thus be able to personally author the majority opinion.
      •  Politically? (4.00)
        I'm sticking with this story. Rehnquist really isn't in a position to deny it, is he.
      •  Correct (none)
        Rehnquist on occasion joined majorities he probably didn't agree with so that he could assign the majority opinion to himself and write a narrow ruling.

        Perhaps the most prominent example of this is Dickerson v. United States, the case in which the Court re-affirmed the Miranda warning requirements.

        Rehnquist had previously expressed his distaste for Miranda, but lo and behold he pops up in the majority and writes the opinion that says Miranda is "embedded in routine police practice" and should be upheld on stare decisis grounds "whether or not this Court would agree with Miranda's reasoning and its rule in the first instance".

        That's relevant to the FMLA, because Rehnquist's views are a pretty good predictor of how his protege John Roberts would vote, and it's fair to say as you have that Rehnquist's true views were likely with Alito and the SCOTUS dissenters on the FMLA.

        So, it's reasonable to assume that both Roberts and Alito would be hostile to the FMLA and related issues.

        ModestNeeds.org Response For Hurricane Evacuees

        by socal on Thu Nov 03, 2005 at 03:54:11 PM PST

        [ Parent ]

      •  Rehnquist never even ruled on the case. (none)

        Rehnquist never "overturned" Alito's decision because he never received it.  He ruled on another case, which had the effect of upholding the FMLA and thus invalidating the ruling by Alito (and other similiar rulings by other courts.)


        The Alito case was Chittister, the one that Rehnquist ruled on was Hibbs.

        •  Now he's got me doing it! (none)

          He ruled on another case, which had the effect of upholding the FMLA


          Upholding the right to sue states under the FMLA is what I should have written.

        •  Actually, the Supreme Court never overruled Alito (none)
          The two cases involved different provisions of the FMLA, and Alito's position has been adopted by other Circuit Courts since. This line of criticism should stop here, or opponents of Alito will look foolish when this is pointed out by his supporters.
    •  Good eye Armando... (4.00)
      I recommended mcjoans diary a while ago and I was afraid it would fall off the list, especially with all the repeat Fema/Brownie dairies which are way out of hand. Thanks to mcjoan for sharing her personal story with us.

      *This site is slower than Bush's reaction on 9/11.*

      by Chamonix on Thu Nov 03, 2005 at 03:25:57 PM PST

      •  thanks newb! (none)
        And thank you, Armando.
        •  Thanks McJoan (none)
          for bringing this issue to the fore. One more reason to oppose Alito. UNPAID family leave is not chopped liver however much it is seldom used (being unpaid). When you have to have it you really need it.

          With all the Choice and Privacy issues that have come up, and the things like this issue coming out every day, I'm really writing a lot of emails. Boxer and Feinstein must have the idea where I'm at by now.  I'm writing my Rep Woolsey encouraging the fighting Democrat idea in the House too.  Woops, time to email Harry Reid's office again.

          Who else should I be emailing?

          Sometimes I wonder whether the world is being run by smart people who are putting us on or by imbeciles who really mean it. - Mark Twain

          by Rolfyboy6 on Thu Nov 03, 2005 at 03:58:36 PM PST

          [ Parent ]

    •  Horray McJoan!!! (none)
      Congrats on the wonderful article and the deserved front page placement.

      Fighting Dems: Thems some 'nads!

      by coigue on Thu Nov 03, 2005 at 03:28:11 PM PST

    •  Thank YOU, mcjoan, for highlighting (none)
      how dangerous this Court is going to be with Scalito on it. Our lives will change over the course of the next several years-in subtle ways, like dying a slow death. This personal story really brings it home.  
      BTW, best wishes for you family.
    •  What I find amazing about Scalito is... (none)
      ...he has 15 years experience on the bench and he appears to be just as horrible and clueless, hell, moreso, than Harriet Miers. Talk about going from bad to worse. Also, don't anyone hand me crap about, "I told you we should support Miers" as a result. Who ever W nominates is going to be an enemy of the people. That doesn't mean we can't make their confirmation process agonizing. Hell, to do less would be an affront to Democracy, because we will need to be able to point to people like him when they start screwing over the country and say to the people, "We warned you!"

      We need to hammer home that strict constructionist = anti-constitutionalist. They should be called out as such. Say what you want about them, but they definitely do not have the best interests of the people of the United States in mind.

      How about we only put people on the bench that believe in a country for the people, by the people, and of the people?

      •  Strict constructionism (none)
        seems disingenuous to me.  This isn't a sacred text.  The writers weren't holy men.  Is second-guessing their thoughts and motives even legitimate 200+ years later?  Is it relevant?  We aren't an isolated, 18th century agrarian society.

        Let's not forget their original intent on subjects like race and gender.  Are we willing to go back to that?

        So far as activist judges go, all judges are activists.  Issues come before judges, esp appellate judges, because they are not clear cut.  Whatever judgment is made is a personal interpretation no matter the erudition brought to the table.

    •  Not just for women (4.00)
      I am a woman, and can remember when pregnancy could mean forced unemployment - unless you dropped the kid like a hot potato pretty much the minute he dried off. So obviously FMLA is important in that way.

      But as people get older, and poorer, with crappier jobs that don't pay for short term unemployment insurance...just the inevitable consequence of living - getting sick - can become the same kind of terrifying prospect. I live on a meager income, with 2 kids in college and another in high school. It's just me, with a lot of bills that I stay on top of with a strenuous effort. So, if I got sick - got a treatable form of cancer, say, and had family to keep me afloat a few weeks for the treatments - with FMLA I could survive and have a job to go back to. Instead of facing utter despair of total, sudden, absolute poverty.

      THIS is the issue Dems should highlight. Not because it will defeat Scalito. It won't. But the American public is getting a BIG hate on against this government. They are starting to realize the "conservative dream" basically means Fuck You.

      This would be an excellent time to highlight this Republican perspective on a government program the American people love, which is FMLA. It raises the issue that  "strict constructionalism" of the Constitution, in conservative thinking, means it is WRONG for the American government to be responsive to the needs and wants of its citizens. Regular, average people really need to focus on things like this. That's why this, and not the abortion issue, is the place to oppose Alito.

      •  I'm on FMLA right now (none)
        I didn't even know it existed until I got sick.

        Not just for women, indeed.  My doctor, a woman, joked about it when I showed up to start the paperwork:  "Are you pregnant?"

        My company has an insurance provider that covers 75% of my pay.  I guess that's why I gave them 50-60 hours a week, they've always been good to me.

        [shrugs] It's a scary place, even though I kept my job.  It's kinda messed up, I quit 'cause I was sick and needed to get better, and then they asked me to stay with FLMA, I didn't know that option was there.  I thought it was just life in America, time to luck it out on your own if you can get better again.  Not a new experience for me.

      •  On top of Katrina (none)
        It shows the mean spirited, selfish, greedy agenda of this administration.  As you said, fuck you!
    •  I think your story offers up a way to defeat (none)
      this nomination. I want to know if there are other stories out there like this? Not just with the FMLA but other areas of law in which his ruling would have had a horrible consequent to popular legislation?
    •  Typical Republican zero-sum thinking (none)
      So a majority of employers are not hurt by FMLA.  People benefit, families are stronger, worker loyalty increases, and there's more general decency and altruism all around.  

      It has always seemed to me that Democrats are simply more altruistic, more willing to look for truly mutual advantage, and that altruism is a useful adaptation for families, communities and civilizations.  

      Contrast that with Republicans, not just Alito, but especially our President, often known as the Chimp.  Strangely enough, they just did a study on - get this - Chimps in Texas.  The results are an interesting reflection on our Commander in Chief's world view:  

      http://www.physorg.com/...

      "...This is the first experiment to show that chimps don't share the same concern for the welfare of others as do humans, who routinely donate blood, tithe, volunteer for military duty and perform other acts that benefit perfect strangers."

      Uh, don't volunteer for military service?  Hello Cheney?  Hello W?

      "The chimps with access to the handle faced two choices: They could continue delivering food to both themselves and the other chimp or they could pull a handle that delivered food only to themselves...The chimps in Texas chose the option that provided rewards to the other chimp 48 percent of the time, exactly the same percentage of time that they delivered rewards to an empty enclosure."

      WTF is wrong with Texas?

      "Given the opportunity to spread random acts of kindness, chimps would just as soon pass, finds a new UCLA-led study."

      Uh, is it any wonder that W nominated Brownie?  Is it any wonder that Alito splits hairs and treats FMLA as some sort of facile intellectual exercise?

      So if Alito gets confirmed - will he pull the lever, so to speak?  Does he pass the altruism litmus test for the Supreme Court?  Is he all brain, or does he have a heart too?  Would he rule the same way again on FMLA or would he consider the plight of all of us other chimps out here and err on the side of generosity?    

    •  Reminds me of Lochner v. New York (4.00)
      Scalito's second-guessing of the legislature reminds me of the Supreme Court's infamous 1905 opinion in Lochner v. New York, where the Court struck down a New York law making it illegal to employ a baker for longer than 60 hours a week:

      We think that there can be no fair doubt that the trade of a baker, in and of itself, is not an unhealthy one to that degree which would authorize the legislature to interfere with the right to labor, and with the right of free contract on the part of the individual, either as employer or employee. . . .

      . . . .

      It is impossible for us to shut our eyes to the fact that many of the laws of this character, while passed under what is claimed to be the police power for the purpose of protecting the public health or welfare, are, in reality, passed from other motives. We are justified in saying so when, from the character of the law and the subject upon which it legislates, it is apparent that the public health or welfare bears but the most remote relation to the law.

      Contrary to what the Rethuglicans would have you believe, Scalito, like big Scalia, is not a practitioner of judicial restraint.

      When we talk about war, we're really talking about peace. George W. Bush

      by Frederick on Thu Nov 03, 2005 at 03:49:10 PM PST

    •  I also trying to get a reliable source of (none)
      polling data on various issues, positions and legislation that may come before the S Ct- can anyone suggest a good source, and preferably multiple source for something I am working on?
    •  Sorry to Throw Cold Water, But (none)
      Something does not add-up here.  I happen to know quite a bit about the FMLA, having been a Labor Relations professional for a Government agency at the time it became effective in 1993.  Based on what you wrote in your diary, you are caring for your brother-in-Law.  But, under FMLA, he is not a dependent.  That is because, normally, your sister or brother-in-law would not qualify as an immediate family member, which is defined as a spouse, child or parent.  

      The only exception that I am aware of is if you are your brother-in-laws legal guardian, and since he is married to your sister, I doubt that is the case.  Of course, it is possible that the agency you work for simply does not know the law, and is granting you the leave in error, or is granting you the leave even though you are not technically covered in this situation.  

      I'm not being snarky here, simply making you aware that you may be getting the leave, or adjusted schedule, in error.

      •  Would it count (none)
        because her sister is disabled? It seems a little overly technical to require leave when your sister has an illness but not when she has a disability that renders her unable to care for her family.
        •  Siblings not covered (none)
          You might want to reread the post you responded to.

          The post indicated that a siblings' medical conditions (or disability for that matter) don't qualify one for the 12 week leave under FMLA (also see http://www.opm.gov/... which confirms this). Now it is possible that the brother-in-law is a dependent of the diary poster mcjoan - unusual but possible.

          Of course, nothing (yet) prevents an employer (including a state government) from offering better benefits than dictated by Federal law. (Although, it's very wise to have written policies on what these benefits are, exactly when they apply, and to apply them uniformly -- it can save a lot of time/money in discrimination suits from disgruntled employees). But if mcjoan is not covered by FMLA directly in this case, the assertion that Alito's decision would have had an impact on mcjoan would be incorrect.

      •  Um... not true. (none)
        "...immediate family member, which is defined as a spouse, child or parent..."

        Siblings are invariably included in definitions of "immediate family."  Often aunts and uncles are as well, but not always; it depends on what the purpose of the legislation is.

        The problem with the French is that they don't have a word for entrepreneur. -- GW Bush to PM Tony Blair Snopes "debunk": Not Persuasive

        by PJBurke on Thu Nov 03, 2005 at 05:26:06 PM PST

        [ Parent ]

        •  OPM Wrong??? (none)
          The Office of Personnel Management's posting of the law/regs Sec. 630.1203  Leave entitlement. and DOL 'elaw' adviser don't indicate that FMLA includes siblings' medical conditions. I would think that the Federal government would understand FMLA for its own employees...

          Why do you think that a sibling is covered - is there some case law that you are familiar with that is not being referenced here?

          (The only reason I'm being pedantic about this is that I would hate for someone to think that they have a situation that qualifies them for FMLA leave only to have their hopes dashed.)

          •  Hmm (none)
            Federal government is wrong on its advice ALL the time.

            The reason I am being pednatic is because I would hae for someone to take the type of pulbications you cite as gospel.

            The SCOTUS is Extraordinary.

            by Armando on Thu Nov 03, 2005 at 07:30:32 PM PST

            [ Parent ]

            •  The Definition of Family Member is in the Law (none)
              Look, I taught this stuff to managers and supervisors for over 10 years.  The law is specific, a family member is defined as a spouse, parent or child under the age of 18.  The only addtition to this is in cases where a child of over 18 is not mentally competent.  

              If McJoan's HR folks determined that her sister is a dependent, and she (mcJoan) is eligible under FMLA for leave to provide care, good for her.  But I don't want folks to think that that is the law, it isn't.

              •  Yes, the law is specific, but (none)
                not as you specify it.

                The Act specifies, via an explicit selective list, which family member's medical situations count for an employee to invoke the FMLA leave benefit, but it neither defines nor redefines "family" or "immediate family."

                Your claim that "a family member is defined as a spouse, parent or child under the age of 18" is simply incorrect, as there is no such defining language anywhere in the Act.  

                The only addtition to this is in cases where a child of over 18 is not mentally competent.

                Sec. 825.113  
                ...
                    (c) Son or daughter means a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco
                parentis, who is either under age 18, or age 18 or older and ``incapable of self-care because of a mental or physical disability.''
                    (1) ``Incapable of self-care'' means that the individual requires active assistance or supervision to provide daily self-care in three or
                more of the ``activities of daily living'' (ADLs) or ``instrumental activities of daily living'' (IADLs). Activities of daily living include
                adaptive activities such as caring appropriately for one's grooming and hygiene, bathing, dressing and eating. Instrumental activities of daily
                living include cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones and directories, using a post office, etc.
                    (2) ``Physical or mental disability'' means a physical or mental impairment that substantially limits one or more of the major life activities of an individual. Regulations at 29 CFR Sec. 1630.2(h), (i), and (j), issued by the Equal Employment Opportunity Commission under the
                Americans with Disabilities Act (ADA), 42 U.S.C. 12101 et seq., define these terms.


                The problem with the French is that they don't have a word for entrepreneur. -- GW Bush to PM Tony Blair Snopes "debunk": Not Persuasive

                by PJBurke on Thu Nov 03, 2005 at 10:11:19 PM PST

                [ Parent ]

          •  FMLA (S. 5) does not use (none)
            either the term "immediate family member" or "immediate family," most likely for the very reason that, as it is widely and commonly used in the law, "immediate family" does include siblings.

            The Code of Federal Regulations, Part 825, introduces a usage of "immediate family" which is at variance with the standard definition, even to the point of excluding parents-in-law.


            The problem with the French is that they don't have a word for entrepreneur. -- GW Bush to PM Tony Blair Snopes "debunk": Not Persuasive

            by PJBurke on Thu Nov 03, 2005 at 09:47:40 PM PST

            [ Parent ]

      •  Sibling (none)
        I qualify because my sister is disabled, so I'm officially providing care for her.
    •  You said (4.00)
      the US is the only industrialized nation, that doesn't provide paid family leave.

      There it is, in a nutshell.  

      We don't have women representing us in Congress, or the judiciary.  There is no one who can speak, or vote, for women.

      When women in this country took their shot for equality, we were branded feminazi's.  Sure did scare a lot of men.

      These wingnuts are concerned for family.  Their concern lies is forcing women under their thumb so the status quo will be maintained.  I mean, heaven forfend that they might have to give an inch, or so.

      And people, no.  I am not a lesbian, I don't hate men.  

    •  Thanks, McJoan, for this ... (4.00)
      ...window into how a national policy affects you personally. Our arsenal against Alito - already bulging the minute he was nominated - is growing thanks to reminders like yours.

      Your remark "...(that [Alito] could find that there was no foundation for the idea that women were unfairly burdened by not being allowed maternity leave absolutely baffles the mind)... expresses exactly what I was thinking while reading your summary of what FMLA is all about.

      For those of us first-crest baby-boomers who will turn 60 next year and are seeing our parents depart in ever-larger numbers, FMLA offers some modest assistance in our time of grief and turmoil. The only word that comes to mind in reviewing Alito's comments in this case is: cold-blooded.

      •  Alito Can Afford to be Cold-blooded... (none)
        With a net worth of well over $600,000 and counting, Alito can probably afford to provide for his elderly mother (bless her candor!) and his wife and children. He will not need to apply for FMLA benefits, especially on his Supreme Court salary. Somehow, the idea that he would take unpaid leave to stay home with his mom is difficult to imagine. Visit her now and then, yes, but take care of her? Hardly. Anyway, he's got his wife to attend to Mom. Should we ask HER how she feels, down deep?
    •  More Complex (4.00)
      Alito's opinion just reflects the legal hash that the S. Ct. has made in 11th Amendment cases. Prior to his ruling, the S. Ct. had held that the 11th Amendment barred application of provisions of the Age Discrimination in Employment Act (ADEA) & Americans with Disabilities Act (ADA) to state employees. See Board of Trustees of the Univ. of Alabama v. Garrett; & Kimel v. Florida Bd. of Regents.

      When the 11th Amendment (sovereign immunity) issue came up in the FMLA context, most courts followed Garrett & Kimel and barred the suits. A lot of Judges appointed by Democrats ruled the same way as Alito. I don't have all the cites handy, but here's a couple of the cases:

      2nd Circuit:  Hale v. Mann

      http://caselaw.lp.findlaw.com/...

      5th Circuit:  Kazmier v. Widmann

      http://caselaw.lp.findlaw.com/...

      When the FMLA case, Neveda v. Hibbs, went to the S. Ct., most observers predicted that the Court would follow its "federalism" cases and rule against FMLA coverage. However, Rehnquist & O'Connor switched, turning what had been a 5-4 majorities in Kimel & Garrett, into the short end of a 6-3 margin in Hibbs.

      It will be tough to fault Alito for following what appeared to be the applicable precedent. I think something like 6 Circuits went the same way.

      •  Nonsense (none)
        Those cases were inapposite.

        Please read the Supreme Court decision.

        The SCOTUS is Extraordinary.

        by Armando on Thu Nov 03, 2005 at 07:22:37 PM PST

        [ Parent ]

        •  To The Contrary, Exactly On Point (4.00)
          No, as pointed out below, the cases are precisely on point. There was a 7-1 Circuit split in favor of Alito's position that prior S. Ct. precedent indicated the 11th Amendment barred such suits by state employees.  Sorry if the facts are inconvenient, but it isn't going to do do any good to spread sloppy, poorly researched talking points, as some of the interest groups have done, only to see them easily rebutted at the Judiciary Committee hearings. Did folks learn nothing from the Roberts hearings?
          •  GENDER discrimination (none)
            is the same under the EPC as disability discrimination? You reallty think so? No kidding?

            Sheesh.

            The SCOTUS is Extraordinary.

            by Armando on Fri Nov 04, 2005 at 04:31:31 AM PST

            [ Parent ]

            •  you still haven't explained... (none)
              ...how personal sick leave (the provision alito ruled on) serves an equal protection interest - do women get sick more often than men?

              if you're not completely full of crap on this thread you've yet to show any sign of it. the poster you're responding to has it exactly right - it's a sloppy attack that will be easily knocked down. it's counterproductive to those who want to see alito defeated.

              "The best lack all conviction, while the worst are full of passionate intensity" -Yeats

              by jethropalerobber on Fri Nov 04, 2005 at 08:47:27 AM PST

              [ Parent ]

      •  They were inapposite why? (none)
        You're a lwyer, see if you can tell me why.

        The SCOTUS is Extraordinary.

        by Armando on Thu Nov 03, 2005 at 07:29:28 PM PST

        [ Parent ]

    •  The Jurisprudence of the Intellectually Bankrupt (none)
      The "strict constructionist original intenters" like Scalia and Scalito play this game that moves the goal posts all the time.  In this case, Scalito evidently rested his opinion on a lack of evidence and his own sense that the remedy was "disproportional."

      But when, as in Doe v. Groody, he wanted to uphold the application of qualified immunity to the police officers who searched a mother and daughter without valid warrant authority, Scalito was willing to infer from the affidavit that the Magistrate would have permitted it, in the complete absence of any evidentiary basis for drawing that inference.

      This is exactly what these "conservative" judges do. They make up the rules of decision that permit them to reach the result they want. If I had unlimited time I'd go over every one of Scalito's decisions and compare and contrast how his analysis varies based on the result he wants to achieve. I am almost certain this would reveal a person whose judicial philosophy is no less result-oriented that Scalia's. Original intenters?  Bah.

      •  Conservative judges (none)
        are some of the worst results-oriented judges out there.  It's such a goddamn shame that the language of judicial restraint and judicial activism has been so thoroughly dominated by conservative rhetoric.  

        From the looks of things, Alito does look to be a pretty egregious example of a results-oriented judge.  But given the way political rhetoric is used to describe conservative judges, liberals are at a bit of a handicap in making this case out to the public.

        Ever get the feeling you've been cheated?

        by johnny rotten on Thu Nov 03, 2005 at 04:35:19 PM PST

        [ Parent ]

    •  Ok, first off, why do we need to exaggerate? (4.00)
      Alito DID NOT, DID NOT, DID NOT vote to make FMLA unconstitutional.  That's a REALLY, REALLY, REALLY bad reading of the opinion.  If anything, it's an incredibly awful interpretation of the law.  I realize that it's a message that lots on the left WANT to believe, but that's just not the case.

      Granted, the law is complex, but that doesn't mean it's fair to characterize Alito's opinion that way.

      Indeed, the question was whether Congress can abrogate STATE sovereign immunity, and not whether Congress had no power to do it at all.  There is NO question that Congress had authority under the commerce power.  None.

      What isn't clear was whether Congress could apply FMLA to the states via the 14th Amendment.  Nothing less, nothing more.

      I'm not sure why, except for the sympathy factor, this diary got moved to the frontpage. It makes us look stupid.

      •  Don't believe me? (none)
        If you don't believe me, look at the section of the dissent quoted.  It starts with the sentence:
        As noted, Congress has the authority to abrogate Eleventh Amendment immunity pursuant to its power to enforce the Fourteenth Amendment.

        This is a question of 11th and 14th Amendment law, not unconstitutionality.

        •  Yeah and (none)
          what did
          Altio rule ass hole? Did he NOt rule that Congress acted UNCONsTitutioNALLY in this case?

          The SCOTUS is Extraordinary.

          by Armando on Thu Nov 03, 2005 at 07:21:51 PM PST

          [ Parent ]

          •  No he did not... (4.00)
            and you should know better, Armando.  What he did say was that the FMLA could not be constitutionally applied against the states.  Or more accurately, that the Constitution did not give federal courts jurisdiction to hear such cases against states.

            Every circuit court that had ruled on the question ruled as the 3rd circuit did.  And all the cases were unanimous except for one 2-1 decision.  Given the direction the Supremes had taken since Seminiole Tribe, ruling that the ADA and ADEA could not be applied against the states, the ruling was a pretty reasonable interpretation of Supreme Court precedent.

            Joining Alito in the majority in that case was Justice Theodore McKee, a very liberal judge (and great guy).  It's not because he wanted to, but because he thought precedent required it.

            When the Supremes subsequently held that the FMLA could be applied to the states, it took almost every court watcher and legal analyst by surprise.  I am glad they did so, and I believe it is the correct view of the law.  But then again, I believe Seminole Tribe was incorrectly decided.

            We have a right to be very concerned with Alito's jurisprudence.  But this attack on him is incorrect and unfair.

            •  Precedent? (none)
              What precedent? The EPC clause treats GENDER differently than disability.

              This is so obvious that it boggles the mind to read ACTUAL lawyers buying into this BS.

              Look, you can try and shout down people who don;t know about this shit but don;t ever try it with me.

              The SCOTUS is Extraordinary.

              by Armando on Thu Nov 03, 2005 at 07:41:04 PM PST

              [ Parent ]

              •  I practice civil rights law... (4.00)
                ...you pompous schmuck.  Of course I wanted the Third Circuit to go the other way.  But given the ADA and ADEA decisions, the court's direction is clear.  Every circuit court decision had come out the other way, and the justices on the court, in particular O'Connor, had made clear in their opinions that they were very strong believers in sovereign immunity.
                •  You do? (none)
                  And you didn't see the argument for treating gender discrimination differently?

                  Sounds like you are the schmuck.

                  Psst, I've handled a Section 1983 case or 5 in my time.

                  The SCOTUS is Extraordinary.

                  by Armando on Fri Nov 04, 2005 at 07:01:09 AM PST

                  [ Parent ]

            •  Read this (none)
              Congress responded to this history of discrimination by abrogating States' sovereign immunity in Title VII of the Civil Rights Act of 1964, 78 Stat. 255, 42 U. S. C. §2000e-
              2(a), and we sustained this abrogation in Fitzpatrick, supra. But state gender discrimination did not cease. "[I]t
              can hardly be doubted that ... women still face pervasive, although at times more subtle, discrimination ... in the job market." Frontiero v. Richardson, 411 U. S. 677, 686 (1973). According to evidence that was before Congress when it enacted the FMLA, States continue to rely on invalid gender stereotypes in the employment context, specifically in the administration of leave benefits. Reliance on such stereotypes cannot justify the States' gender discrimination in this area. Virginia, supra, at 533. The long and extensive history of sex discrimination prompted us to hold that measures that differentiate on the basis of gender warrant heightened scrutiny; here, as in Fitzpatrick, the persistence of such unconstitutional discrimination by the States justifies Congress' passage of prophylactic §5 legislation.

                   As the FMLA's legislative record reflects, a 1990 Bureau of Labor Statistics (BLS) survey stated that 37 percent of surveyed private-sector employees were covered by maternity leave policies, while only 18 percent were covered by paternity leave policies. S. Rep. No. 103-3, pp. 14-15 (1993). The corresponding numbers from a similar BLS survey the previous year were 33 percent and 16 percent, respectively. Ibid. While these data show an increase in the percentage of employees eligible for such leave, they also show a widening of the gender gap during the same period. Thus, stereotype-based beliefs about the allocation of family duties remained firmly rooted, and employers' reliance on them in establishing discriminatory leave policies remained widespread.3

                   Congress also heard testimony that "[p]arental leave for fathers ... is rare. Even ... [w]here child-care leave policies do exist, men, both in the public and private sectors, receive notoriously discriminatory treatment in their requests for such leave." Id., at 147 (Washington Council of Lawyers) (emphasis added). Many States offered women extended "maternity" leave that far exceeded the typical 4- to 8-week period of physical disability due to pregnancy and childbirth,4 but very few States granted men a parallel benefit: Fifteen States provided women up to one year of extended maternity leave, while only four provided men with the same. M. Lord & M. King, The State Reference Guide to Work-Family Programs for State Employees 30 (1991). This and other differential leave policies were not attributable to any differential physical needs of men and women, but rather to the pervasive sex-role stereotype that caring for family members is women's work.5

                   Finally, Congress had evidence that, even where state laws and policies were not facially discriminatory, they were applied in discriminatory ways. It was aware of the "serious problems with the discretionary nature of family leave," because when "the authority to grant leave and to arrange the length of that leave rests with individual supervisors," it leaves "employees open to discretionary and possibly unequal treatment." H. R. Rep. No. 103-8, pt. 2, pp. 10-11 (1993). Testimony supported that conclusion, explaining that "[t]he lack of uniform parental and medical leave policies in the work place has created an environment where [sex] discrimination is rampant." 1987 Senate Labor Hearings, pt. 2, at 170 (testimony of Peggy Montes, Mayor's Commission on Women's Affairs, City of Chicago).

              It was obvious that this was different from the disability cases. Gender discrimination is differently scrutinized. And the HISTORY is much much clearer.

              Frankly, this was not a close case.

              You are just plain wrong here. Not even close.

               

              The SCOTUS is Extraordinary.

              by Armando on Thu Nov 03, 2005 at 07:52:33 PM PST

              [ Parent ]

            •  As for the Court watchers (none)
              then they sucked - O'Connor was an easily predicted vote for anyone who reads her on gender discrimination.

              And indeed, the institutionalized history of gender discrimination is manifest. Disability "discrimination" is not.

              Frankly, the Hibbs decision should have been EASY to predict. Indeed, it was.

              Alito is bad at predicting O'Connor, see his Casey opinion.

              The SCOTUS is Extraordinary.

              by Armando on Fri Nov 04, 2005 at 04:49:31 AM PST

              [ Parent ]

              •  Not Correct (4.00)
                If it was so easy to predict, why did 7 Circuits get it "wrong"? Why did so many (10, IIRC) judges appointed by Democratic Presidents vote the "wrong" way? It should also be noted that the precedents those 7 Circuits relied on weren't just ADA cases. The S. Ct. had similarly ruled that state employees couldn't sue under the Age Discrimination in Employment ACt (ADEA).

                The fact is that Hibbs was a surprise to most lawyers who practice employment law or observe the S. Ct. closely. The comments below make that clear.

                It simply does no good to try & portray Alito as out of the mainstream on the FMLA/11th Amendment issue. It will be as easily rebutted at the hearings as it was here, except the name-calling won't be allowed before the Committee.

                •  Why? (none)
                  I don't know.

                  That it was a surprise to some does not answer my point.

                  Sandra Day O'Connor. You have heard of her have you not?

                  As for your political advice, well it is as useless as always.

                  The SCOTUS is Extraordinary.

                  by Armando on Fri Nov 04, 2005 at 05:53:06 AM PST

                  [ Parent ]

                  •  Suck it up... (none)
                    You've lost the battle to several others already.  In fact, the only people posting anything looking like legal analysis have disagreed with your characterization.

                    I apologize to McJoan if my comments in anyway were taken to make light of her unfortunate situation.  But they did not.  I took issue on the characterization of Alito's opinion.  It's unfortunate that the law around SSI and FMLA is complex, but that doesn't mean we can permit wrong things to be said.

                    Your defense of the characterization has been largely without merit.

                    You point to nothing in the text that says that Alito would have held FMLA unconstitutional.  At best, it says that Congress hadn't met its burden to abrogate SSI.  That's it.  That's not the same.  There's no way to interpret it as saying FMLA was unconstitutional.

                    If you don't like Alito--who, I myself do not like--that's fine.  But you should not have to exagerate Alito's positions to make your case.

                    •  Pffft (none)
                      What a charlatan you are.

                      I've lost nothing. You lied.

                      Did Alito rule that Congress violated the Constitution by improperly abrogsting SI, yes or no?

                      Since the answer is Yes, and you said Alito did not rule Congess' actions unconstitutional, you lose.

                      End of story.

                      Objective fact.

                      Go take solace in the inanities of realist. He is no legal scholar as I have learned over many months.

                      I learned today that neither are you.

                      The SCOTUS is Extraordinary.

                      by Armando on Fri Nov 04, 2005 at 06:33:51 AM PST

                      [ Parent ]

                      •  Again.. (none)
                        that does not make the FMLA unconstitutional.  It just means the Congress did not do enough under almost every standard applied before Gibbs to abrogate SSI.

                        Stop conflating the two issues.

                        •  Stop lying (none)
                          It made it UNconstitutional with respect to its attempt to enforce it on the states.

                          Are you being serious? Or are you really not understanding this? Maybe I am being too rough on you. You may just be ignorant.

                          The SCOTUS is Extraordinary.

                          by Armando on Fri Nov 04, 2005 at 06:40:52 AM PST

                          [ Parent ]

                      •  BTW, You have a very weird... (none)
                        definition of "unconstitutional".  Very clearly, you're doing it to make the position taken by Alito much worse.

                        Clearly this must be because you have yet to find something else to hang the man on.  No matter what way you spin it, it comes off as legally weak but yet disproportionately inflammatory.

                        Thank you for sounding like the folks at RedState.  We certainly need that around here!

                        •  Violating the Constitution (none)
                          What do you find weird about that?

                          Was US v. Lopez declaring a law unconstitutional because Congress exceeded itspower?

                          Yeessss.

                          You are really digging a hole for yourself.

                          Why not fess up, admit your mistakre and apologize.

                          The SCOTUS is Extraordinary.

                          by Armando on Fri Nov 04, 2005 at 06:46:55 AM PST

                          [ Parent ]

              •  Armando hates disabled people... (none)
                "And indeed, the institutionalized history of gender discrimination is manifest. Disability "discrimination" is not."

                The institutionalized history of disability discrimination was well documented by Congress when it passed the ADA.  The discrimination against disabled people went well beyond failure to give equal opportunities in employment, government services, and the like.  State governments have acted in a way that essentially prevented the disabled from having any meaningful participation in society.

                And you place "discrimination" in quotes.  Why is that, Armando?  You're sounding an awful lot like Rush Limbaugh today, why is that?

                As for the title of my thread.  Is it a cheap shot?  Maybe.  But no more than your posts on this thread.

                •  Armando can reading cases (none)
                  You can spew lies.

                  Liar.

                  If you can't read cases, that's your problem.

                  BTW, if you think I supported the BS 11th Amendment jurisprudence, you are more full of shir thant the other guy.

                  Stop fucking lying!

                  The SCOTUS is Extraordinary.

                  by Armando on Fri Nov 04, 2005 at 06:39:26 AM PST

                  [ Parent ]

                  •  Answer the question, punk (none)
                    Why did you put disability "discrimination" in quotes?
                    •  Because of the question of intent (none)
                      and the SCOTUS jurisprudence in this area, which is atrocious.

                      You need to read Genius. Learn something about what the type of Judges you seem to like like Alito have done.

                      You are ignorant of what has happened in this area apparently.

                      Oh, and do better than "punk." That was so weak.

                      You can't play this game.

                      The SCOTUS is Extraordinary.

                      by Armando on Fri Nov 04, 2005 at 06:45:30 AM PST

                      [ Parent ]

                      •  That's right... (none)
                        Your legal ipso facto legal analysis of SSI constitutional law is astounding!  

                        It's funny how almost all independent federal circuits followed the same line of reasoning as Alito.  Just amazing! It was so obvious and yet almost no one expected the result before the supreme court had a go at it.  Sheesh, where oh where could they have all gone wrong?  It must have been that Alito was out on some wacky right-wing fringe with groups like the ACLU.

                        Like, I've been saying, this is not the case to hang the man on.  If it were, you'd have almost NO potential nominees who had been federal judges.

                        Come back to earth Armando.  It's ok.  We won't bite.

                        •  Changing the subject are you? (none)
                          You can have an opinion as the one you expressed, no matter how wrong it is. You were saying something else before and in insulting tones.

                          You got from me what you desrved.

                          If you had treated mcjoan with respect I would not have taken the time to embarrass you in this thread, by pointing out your OBVIOUS error. One you STILL don't own up to.

                          Let me show you how it is done.

                          To the degree that this diary implies Alito was out of the mainstream in his opinion, that is misleading. However, I don;t think it does.

                          The diary points out that switching from O'Connor to Alito leads to a reversal of result in cases like this.

                          Hence, the ScAlito Court.

                          You created straw men and with insult, precluding a discussion that would have elevated all of us. You dragged us into the mud.

                          You owe mcjoan an apology.

                          The SCOTUS is Extraordinary.

                          by Armando on Fri Nov 04, 2005 at 06:58:37 AM PST

                          [ Parent ]

                      •  Disabled people (none)
                        ...have been treated as second class citizens in this country from its inception.  For you to pretend that it's not discrimination is atrocious.

                        I don't like Alito.  I do like Theodore McKee, who happened to concur in Alito's opinion.  I suppose we should filibuster McKee if a Democratic president nominated him?

                        And as I've noted, I practice in this area.  So I am quite aware of how the jurisprudence developed.

                        •  I don't pretend it (none)
                          I deny it. Talk to the fucking ScAlito Court that you want apparently.

                          You are a liar.

                          You lied about me and what I want and what I think.

                          Beneath contempt.

                          The SCOTUS is Extraordinary.

                          by Armando on Fri Nov 04, 2005 at 07:02:45 AM PST

                          [ Parent ]

                        •  As forMCkee (none)
                          Don;t know much about hm, but if this is the only thing I have to judge on, I'd say yers.

                          I presume there areother decisons that prove his bina fides as a progressive judge.

                          Your little strawman games are of no avail with me.

                          You can;t play this game.

                          The SCOTUS is Extraordinary.

                          by Armando on Fri Nov 04, 2005 at 07:04:09 AM PST

                          [ Parent ]

                          •  "You can;t play this game." (none)
                            Because that's what it is for you.  A game.  You like to show your liberal internet friends that you stick up for women.  It doesn't matter what the law actually was, or whether your critiques are actually sound, you just like to call people names and insist that they are republicans.  You like to call people racists if they dare point out that Fernando Ferrer is a terrible mayoral candidate.

                            I'm surprised you haven't heard of Judge McKee.  Because, after all, you're a constitutional law expert, right?

                            Please, you read a few talking points on blogs, pick and choose a few cases.  Selectively quote jurisprudence, and pretend that you know something.

                            Still, that's not as bad as denying that disabled people have faced intentional discrimination in this country.  That is a true disgrace.  Let's be glad that your achievements in life are limited to being kos's front mage mascot.

            •  Also (none)
              the Supreme Court opinion involved a different provision of the FMLA, so Alito was never really overruled and the 3rd circuit's opinion has since been cited as good law. (The SC only identified a split between the 9th and 5th circuits, and followed the 9th; they never mentioned Alito's opinion or others involving the other section of the law). But don't take my word for it, you can look it up on Lexis.
        •  Hey liar (none)
          For these reasons, the legislative scheme cannot be said to be congruent or proportional to any identified constitutional harm, and it cannot be said to be tailored to
          preventing any such harm. Accordingly, we hold that the FMLA provisions at issue here do not represent a valid exercise of Congress's power to enforce the Fourteenth Amendment and that the FMLA does not abrogate Eleventh Amendment immunity. Cf. Lavia v. Commonwealth of Pennsylvania, Department of Corrections, No. 99-3863 (3dCir., filed Aug. 8, 2000) (Title I of ADA).

          You going to apologize to everybody on this thread for your steaming piles of shit?

               

          The SCOTUS is Extraordinary.

          by Armando on Thu Nov 03, 2005 at 07:28:36 PM PST

          [ Parent ]

          •  Again, that doesn't support your position (none)
            That doesn't say the law is unconstitutional.  Yet again, you have purposefully conflated two problems--general unconstitutionality and the ability for Congress to abrogate SSI.  The first leads to a law not being enforceable, the second merely preventing employees from suing the state for retrospective damages.  Different.
            •  Are you this stupid? (none)
              You do realize that a PART of a law can be rules unconstitutional don;t you? You don't? Then you are not much of a lawyer.

              I've conflated nothing. This diary conflated nothing.

              You don't know jack shit apparently.

              The SCOTUS is Extraordinary.

              by Armando on Fri Nov 04, 2005 at 06:42:56 AM PST

              [ Parent ]

              •  Yep! (none)
                I'm stupid.

                I'm so glad that you're given a forum to air your opinions that exceeds your abilities.

                Of course part of a law can be unconstitutional.  But that's not what the article says.  That's not what you've been arguing.  Slowly you're retreating to a more reasonable position.

                Yay!

                •  You are a fucking piece of work (none)
                  That is EXACTLY what the articel said.

                  And you said FLATLY Alito did NOT rule it unconstitutional.

                  I have changed my positon notr one iota.

                  Do youself a favor and fess up, you fucked up and were an asshole doing it.

                  The SCOTUS is Extraordinary.

                  by Armando on Fri Nov 04, 2005 at 06:48:30 AM PST

                  [ Parent ]

                  •  The article reads... (none)
                    He also argued that the FMLA was unconstitutional because "there was no evidence for the notion that women are disadvantaged in the workplace when they are not allowed to take family leave. Furthermore, he argued, the requirement that everyone be guaranteed 12 weeks of unpaid family leave was a disproportionately strong remedy"

                    How is that what you just wrote?  These are very clearly arguments aimed at the 11th and 14th amendments. Not to FMLA constitutionality which is independently supported by the commerce clause.

                    Maybe I've uncovered the problem.  You're the one having a hard time reading.

                    •  Because (none)
                      It is not what I just worte.

                      That came after the flip.

                      To wit, in context, as a normal human being would read it, he ruled that Congress exceeded his power because of those reaosns.

                      Are you really still pushing this BS? Do yourself a favor, fes up. You fucked up.

                      Let's dust ourselves off and move on.

                      The SCOTUS is Extraordinary.

                      by Armando on Fri Nov 04, 2005 at 07:06:03 AM PST

                      [ Parent ]

                •  the FIRST graf (none)
                  In 2000, Judge Samuel Alito authored an opinion in which he concluded that Congress did not have the power to require state employers to comply with the Family Medical Leave Act. This ruling was overturned by the Supreme Court in 2003, with a 6-3 margin. Voting in dissent? That's right, everyone's favorite activist justice, Antonin Scalia.

                  Did you miss that? Fes up, you fucked up. Apologize and admit your mistake.

                  The SCOTUS is Extraordinary.

                  by Armando on Fri Nov 04, 2005 at 06:52:03 AM PST

                  [ Parent ]

          •  "the FMLA provisions at issue here" (none)
            armando, you keep conveniently ignoring the fact that alito's opinion struck down only the provision of FMLA that was "at issue" in that case, namely personal sick leave.

            as i've asked you elsewhere, how does personal sick leave come under the 14th amendment? do women get sick more often than men?

            or is there some other route besides the 14th for getting around SSI?

            (you're the lawyer - i'm just asking)

            "The best lack all conviction, while the worst are full of passionate intensity" -Yeats

            by jethropalerobber on Fri Nov 04, 2005 at 09:00:47 AM PST

            [ Parent ]

      •  Take it easy (none)
        The author is obviously not a legal expert.  

        But you are correct.  The decision did not concern whether the FMLA was consitutional, but whether Congress could authorize individuals to sue the state to enforce the FMLA.  To authorize individual suits, Congress need to abrogate SSA through enforcement of the Equal Procection Clause.  

        But you should try to be a little more diplomatic in your criticism.  Non-lawyers are at a disadvantage in following the inticacies of caselaw.  

        Ever get the feeling you've been cheated?

        by johnny rotten on Thu Nov 03, 2005 at 04:42:26 PM PST

        [ Parent ]

        •  But this is precisely the problem... (4.00)
          with this post.  It's just wrong.  And yet, there it is on the front of dailykos.com.  Why?  Because it fits the story people want to tell.

          You're right, it's not diplomatic, but in the 50+ comments preceding mine, where was the critical commentary?  There was none.  One that sort of question the logic, but nothing.

          This is at least the second story like this on dailykos that completely gets the law wrong and states it authoritatively. Why should I be diplomatic?  It's called due diligence; it's called being responsible; it's called "I don't want to be like the idiots on the other side of the aisle".

          •  Well (none)
            I agreed with you that the legal understanding of the case was wrong.  My suggestion to you was that you have more success in educating other posters if you adopt a more patient, less combative tone.  So the answer to your question why you should be dimplomatic, is that you are more likely to persuade people.  Good reason, no?  

            Also, I did point out in a commment above that the real issue in the case was SSA.  I could have been more forceful, but I think your tone here is going to undermine your effort to help people understand what the case was about.  

            Ever get the feeling you've been cheated?

            by johnny rotten on Thu Nov 03, 2005 at 04:56:11 PM PST

            [ Parent ]

            •  I don't think I'll be happy till this is... (none)
              modded OFF the front page.  And I doubt very much that that'll ever happen. Would the author correct the story? Is Kos likely to do that? Almost certaily, two nopes.

              Very clearly the author expresses a legal opinion which is at best well-intentioned, but wildly misinformed.  That article then makes it to the front.  How else should I feel except incredibly perturbed that this site allows articles like this to the front.  It's not just someone's misinformed personal diary at this point.

              •  Your beef (none)
                should be with Armando for frontpaging the diary.  Try sending him a nice email.  

                In the meantime, you are more likely to do some good by calmly explaining the misunderstanding here in the comments.  That way, people who read the diary may see your comment and understand that the diarist may not have a firm grasp of the legal complexities of the case.

                Ever get the feeling you've been cheated?

                by johnny rotten on Thu Nov 03, 2005 at 05:14:06 PM PST

                [ Parent ]

                •  Done, my e-mail (none)
                  Armando-
                  I think that the article moved to the front of dailykos.com ought to be modded off the front or very much corrected.  The article is wrong almost from the get go.

                  I appreciate the fact that the story that dailykos.com wants to tell about is Alito is that he'll be bad for everything liberal. But, I must say there has got to be a better way than putting a story on the front that is just plain false.

                  Alito did not, I repeat, did not vote to make FMLA unconstitutional.  Very clearly, Alito did not question it's constitutionality.  If he had, that would be a genuinely WILD opinion.  However, as it was, FMLA is very clearly supported by Congress' commerce power.  The actual issue before the court was about Congress' ability to abbrogate State Sovereign Immunity.

                  I realize that the jurisprudence regarding the 11th and 14th amendment is not an easy topic, but that doesn't justify putting up entirely bad articles that interpret the law even worse.  Under the 14th amendment, there HAS to be a showing that rights protected by the 14th amendment are being violated.  There are lots of examples of certain constitutional rights that aren't--the 7th amendment right to a civil jury being one of them.

                  Very obviously that wasn't plainly obvious.  Both the PA Supreme Court and the SCOTUS bent over backwards to make it fit.  That does not mean that Alito voted to make it unconstitutional though.

                  Please, for the love of god, offer a correction.

                  mmmbeer!

                  •  mmmbeer (none)
                    You may be sorree...

                    Armando is a lawyer. A constitutional lawyer, if I remember correctly. And I've noticed his titanic past clashes with mcjoan.

                    But one thing I have never known him to do is take kindly to people making peremptory demands of him.

                    Sooo... a friendly warning: if he responds, you may want to duck.

                    Folly is fractal: the closer you look at it, the more of it there is. - TNH

                    by Canadian Reader on Thu Nov 03, 2005 at 06:49:01 PM PST

                    [ Parent ]

                    •  I fear for his clients... (2.66)
                      If his legal analysis follows the reasoning in these threads, then I fear for any of his clients.

                      I mean, finding the FMLA unconstitutional is not the same as saying Congress didn't not make a sufficient showing to abrogate state sovereign immunity to allow employees to sue the state. The first means that there would not be the FMLA.  The second means that FMLA still exists and is enforceable.

                      A closer analysis might be to say that Alito found Congress' unconstitutionally abrogated SSI.  That's hardly fatal to FMLA, though.  We do have a Federalist government with rights accorded to the states on purpose.  We also have an 11th amendment providing for SSI.  

                      If you don't like that part, you can always change it. Or you persuade the supreme court to change it.  Alito and the other districts really didn't have the authority.

                  •  Correct the piles of shit you laid all over (none)
                    Alito ruled that Congress acted unconstitutiopnally wen it expressly abrogated the Sovereign Immunity of the States.

                    Go learn some fucking law.

                    The SCOTUS is Extraordinary.

                    by Armando on Thu Nov 03, 2005 at 07:21:00 PM PST

                    [ Parent ]

              •  Suck it up jerk (none)
                I'll clsarify it but you are reallt full of shit here.

                You're lucky I wasn't here to pin a tail on your ass.

                The SCOTUS is Extraordinary.

                by Armando on Thu Nov 03, 2005 at 07:10:43 PM PST

                [ Parent ]

            •  Well (none)
              You picked the wrong side of the argument Johhny.

              The SCOTUS is Extraordinary.

              by Armando on Thu Nov 03, 2005 at 07:19:37 PM PST

              [ Parent ]

          •  You're exactly right (4.00)
            When we take honest and actual unfortunate situations and repeat them as if they were proof that our polical enemies are malicious, then we are basically lying. We need to (gently) correct these errors.
            •  He is exactly wrong (none)
              He is clearly ignorant of the case, since it was decided by Altio that Congress acted in an UNCONSTITUIONAL manner in abrogating the Sovereign Immunity of te states.

              To wit.it ruled THAT portion of the FMLA UNCONSTITUTIONAL.

              The fucker is dead wrong and an asshole to boot.

              The SCOTUS is Extraordinary.

              by Armando on Thu Nov 03, 2005 at 07:19:08 PM PST

              [ Parent ]

              •  Typical Armando (4.00)
                So far, Armando's legal "analysis" is nothing more than name calling. The fact is that every other circuit that addressed the issue of sovereign immunity and the FMLA ruled the same as Alito, with many Democratic judges participating, except for the 9th Circuit. Most S. Ct. observers were surprised when Rehnquuist & O'Connor didn't follow their earlier "federalism" precedents when the FMLA issue came up in Hibbs. To argue now that it was somehow clear that states couldn't be sued by their employess under the ADEA & ADA, but could be under the FMLA, is absurd.

                What kind of lawyer engages in name-calling rather than citing cases?

                •  Excuse me (none)
                  Typical you - the asshole you defend engaged in name calling and was flat out werong about what the diary said and was abusive to mcoan for no good fucking reason.

                  Typical of you to IGNORE all that.

                  Typical of you and it is why you are a waste of time.

                  The SCOTUS is Extraordinary.

                  by Armando on Fri Nov 04, 2005 at 04:23:07 AM PST

                  [ Parent ]

                  •  Would you like to show me... (none)
                    where I was name calling?  In fact, you're the one that has been doing that.  I said allowing this sort of legal reasoning to make it to the front makes us look stupid.  Not that the author is stupid.  The constitutional law surrounding SSI is very complex, which I also stated in the original.

                    It really helps to know who your enemies are.  I don't think that I am.  However, Armando, it seems to me that you're your own worst enemy.  Why jump down my throat when I very clearly point out that rule set forth in the article (that alito voted FMLA unconstitutional) is plainly wrong.

                    Oh well.  Maybe this is exactly what's wrong with our party.  We can be as anti-intellectual as the right.

                    •  Our Party? (none)
                      Puhleeeaze.

                      Your vicious attacks are there for all to see.

                      You were wrong.

                      You STILL don't admit it and you still have not apologized to mcjoan.

                      Go try your bullshit on someone else.

                      The SCOTUS is Extraordinary.

                      by Armando on Fri Nov 04, 2005 at 05:51:09 AM PST

                      [ Parent ]

          •  IT is not wrong in essentials (none)

            The SCOTUS is Extraordinary.

            by Armando on Thu Nov 03, 2005 at 07:09:43 PM PST

            [ Parent ]

        •  Thank you (none)
          I appreciate your efforts to resolve this courteously. How would the offending statement be better phrased?
      •  Oooooooh (none)
        How could I have forgotten?

        I need to look to daddy state for liberty.

        Yours are in the constitution.

        Sell stupid elsewhere, we're all booked up here.

      •  The author (none)
        happened to be at the hospital during your meltdown, so sorry if your demands weren't answered quickly enough. I did do quite a bit of research in writing this, and in no way reached in my description of this decision based upon the reading that I did.

        I'm not a lawyer, but I pulled none of this out of thin air. You tell me how better to state his opposition when reading this: "On appeal, in an opinion by Judge Alito, the Third Circuit upheld the reversal of the jury verdict and held that Congress did not have the power to require state employers to comply with the FMLA."

        I would join with johnny rotten in suggesting that you approach your fellow posters with just a little more civility.

        •  Start with removing the unconstitutional (4.00)
          Start with removing everything stating that Alito voting to find the FMLA unconstitutional. That's just wrong.  The case wasn't about the constitutionality.

          The case was about whether Congress had the power to permit one to sue the state in federal court for violations of FMLA.  He in fact agreed with the District court who found that under the law at the time, they had not.  Even under Alito's opinion, the states are still bound by the FMLA, but employees can only get prospective relief.

          A finding that there was not power under the 14th Amendment really only means that there was no RIGHT that FMLA sought to remedy for violations.  It's tough to even conceive of one that it would.  For example, in other contexts, Congress can abbrogate state sovereign immunity under the 14th amendment to correct INTENTIONAL sex discrimination.  Note, intentional is still a very high threshold.

          This whole area of constitutional law does not make for good soundbites.

          •  One more thing (none)
            The other problem with making generalizations about Alito's opinion is that this was that it is written by-and-large on the precedents he had to apply.  He was a lower court judge who was obligated to apply that precedent.  Frankly, I think he did it correctly.

            It's VERY, VERY difficult to say how reaching such an opinion under those circumstances would help one judge how he'll be in the future.

            You also have to remember that the 3rd circuit is somewhat liberal and he was writing the opinion for the majority on that case at that level.

            This is, honestly, NOT the case to hang this judge on.  Though very clearly, it's easy to get it wrong, and very easy to convince the reader that he hates families, or what not.

            •  Also (none)
              As someone else pointed out elsewhere, he was following the lead of the other Circuit courts that had ruled on the issue.  It was sort of a going with the low kind of ruling.

              Ever get the feeling you've been cheated?

              by johnny rotten on Thu Nov 03, 2005 at 06:17:18 PM PST

              [ Parent ]

              •  Err (none)
                Going with the flow.  

                Ever get the feeling you've been cheated?

                by johnny rotten on Thu Nov 03, 2005 at 06:18:13 PM PST

                [ Parent ]

              •  Nope (none)

                That's bullshit Johnny.

                CONGRESS SAID EXPRESSLY  THEY were invokingSection 5 power.

                This poster is full of shit.

                The SCOTUS is Extraordinary.

                by Armando on Thu Nov 03, 2005 at 07:09:13 PM PST

                [ Parent ]

                •  Not totally full of shit (none)
                  Armando you are correct to say that Alito's decision found the part of the FMLA authorizing private rights of action against states was unconstitutional.  It was not a decision concerning the constitutionality of the FMLA as a whole.  That's the important distinction.  

                  I know that Congress expressly invoked its Section 5 powers.  But the Supreme Court shot them down before when they did that.  

                  In light of the Supreme Court and Circuit Court precedent, I don't think Alito's decision was so outrageous.  Like I said, he was just going with the flow.  

                  Ever get the feeling you've been cheated?

                  by johnny rotten on Thu Nov 03, 2005 at 08:13:46 PM PST

                  [ Parent ]

                  •  And where in Gawd's name did the diary (none)
                    say otherwise? The guy was totally full of shit BECAUSE he created a red herring to attack.

                    he was WRONG AND an ASSHOLE.

                    The SCOTUS is Extraordinary.

                    by Armando on Fri Nov 04, 2005 at 04:21:43 AM PST

                    [ Parent ]

                    •  Where did the article say that... (none)
                      is in the first two sentences below the fold where it discusses the decision:
                      In his ruling in Chittister v. Department of Community and Economic Development, Alito argued that the FMLA was an instance of unconstitutional congressional overreach. He also argued that the FMLA was unconstitutional because "there was no evidence for the notion that women are disadvantaged in the workplace when they are not allowed to take family leave.
                •  Moreover (none)
                  Before the 9th Circuit, every other Circuit ruled in the exact same fashion as Alito:

                  Laro v. New Hampshire, 259 F.3d 1 (1st Cir. 2001); Townsel v. Missouri, 233 F.3d 1094(8th Cir. 2000); Kazmier v. Widmann, 225 F.3d 519 (5th Cir. 2000); Sims v. University. of Cincinnati, 219 F.3d 559 (6th Cir. 2000); Hale v. Mann, 219 F.3d 61 (2d Cir. 2000); Garrett v. University of Alabama Birmingham Board of Trustees, 193 F.3d 1214 (11th Cir. 1999).

                  It was a 7 to 1 Circuit split.  Alito was hardly outside the mainstream on this one, and not as much a no-brainer as you suggest.  

                  Ever get the feeling you've been cheated?

                  by johnny rotten on Thu Nov 03, 2005 at 08:22:21 PM PST

                  [ Parent ]

                •  Lastly (none)
                  Here's what Vik Amar (no Republican troll) had to say about the Supreme Court's decision:

                  Nevada Dep't. of Human Resources v. Hibbs. Here the Court, in a 6-3 ruling, upheld Congress' power under the Fourteenth Amendment to subject States to monetary liability for violating the Family and Medical Leave Act (FMLA).

                  The case was both unexpected, and significant, because in five similar cases - each asking whether Congress could, using its Fourteenth Amendment remedial powers, subject States to damage liability - the Court had always said "No," siding with the States.

                  The sudden "Yes" answer Hibbs provided complicates the New Federalism the Court's conservative majority has espoused over the past decade or so. In addition, Hibbs struck a blow for women's rights, by placing so much weight on the history of gender inequity in the workplace that had inspired Congress to pass the FMLA in the first place.

                  Here's what the ACLU said:

                  In a surprising 6-3 decision authored by Chief Justice William Rehnquist, the Court rejected this conclusion and held that the FMLA was an appropriate effort to protect against sex discrimination by state employers in granting family leave.

                  It was kind of a surprising decision.  

                  Ever get the feeling you've been cheated?

                  by johnny rotten on Thu Nov 03, 2005 at 08:49:43 PM PST

                  [ Parent ]

                  •  Yadda yadda (none)
                    Well they did not consider the different treatment given race and gender under EPC BECAUSE of the well documented history of institutionalized bias on the basis of race and gender.  

                    The SCOTUS is Extraordinary.

                    by Armando on Fri Nov 04, 2005 at 04:18:53 AM PST

                    [ Parent ]

                  •  From the ACLU (none)
                    In what the American Civil Liberties Union called the most important sex discrimination case since the Virginia Military Institute's male-only admissions policy was struck down, the Supreme Court today held that state government employers are not immune from lawsuits under the Family and Medical Leave Act (FMLA).

                    "Today, the Supreme Court recognized that when employers treat women as mothers first and workers second, or assume that men don't need time off to care for children or family members, they do both women and men a grave disservice," said Lenora Lapidus, Director of the ACLU Women's Right Project.

                    GENDER discrimination. Get it?

                    The SCOTUS is Extraordinary.

                    by Armando on Fri Nov 04, 2005 at 04:43:38 AM PST

                    [ Parent ]

                  •  it surprised Vik (none)
                    because he seems not to understand O'Connor:

                    In addition, Hibbs struck a blow for women's rights, by placing so much weight on the history of gender inequity in the workplace that had inspired Congress to pass the FMLA in the first place.

                    O'Connor made this a foregone conclusion IMO.

                    Rehnquist was a surprise.

                    O'Connor decidedly was NOT.

                    You'll excuse me if I think Vik's description as incorrect.

                    Just read O'Connor on gender issues.

                    Making ScAlito's change if view fr O'Connor an EXTRA signifcant point about this.

                    The SCOTUS is Extraordinary.

                    by Armando on Fri Nov 04, 2005 at 04:46:42 AM PST

                    [ Parent ]

            •  Horseshit (none)
              Rehnquist, fucking Rehnquist, coulkd see it. And you and Alito can't>

              Who in the hell are  you kididng??

              The SCOTUS is Extraordinary.

              by Armando on Thu Nov 03, 2005 at 07:08:24 PM PST

              [ Parent ]

              •  Yay (none)
                Well, I'm glad I made a difference!

                I'm so glad that I took the time to explain myself more politely. end sarcasm This was nearly exactly the response I sort of expected when I posted the original.

                The fact it went this far and that a few people recognize the problem is better than nothing, I guess.  Unfortunately, this is one thing that's FAR easier to distort than it is to get right.

                And if you think I'm a republican troll, try looking at the handful of diaries I've written over a very long period of time.

                •  You'v ebeen a prick throughout (none)
                  And as worng as fucking rain. You don't have a fucking clue what you are talking about.

                  Thei ISSUE, dumbass, was whether Congress acted  constitutionally in EXPRESSLY ABROGATING the States' Sovereign immunity.

                  Alito ruled that it did not.

                  Rehnquist, flaming liberal that he is, said they did.

                  Fuckwad/.  

                  The SCOTUS is Extraordinary.

                  by Armando on Thu Nov 03, 2005 at 07:17:36 PM PST

                  [ Parent ]

          •  Oh fuck it (none)
            Everyone understood exactly what she meant you effing Republican troll.

            Ge the fuck out of here with your States rughts crap.

            The SCOTUS is Extraordinary.

            by Armando on Thu Nov 03, 2005 at 07:07:17 PM PST

            [ Parent ]

          •  You are wrong (none)
            ANd an asshole. A terrible combination.

            The SCOTUS is Extraordinary.

            by Armando on Thu Nov 03, 2005 at 07:38:42 PM PST

            [ Parent ]

      •  Oh really? (none)
        How in BLAZES do you enforce a law against the State then Genius? Soveriegn Immmunity. Look it the fuck up asshole.

        The SCOTUS is Extraordinary.

        by Armando on Thu Nov 03, 2005 at 07:06:13 PM PST

        [ Parent ]

      •  He really really did (none)
        He ruled that Congress invalidly attempted to ABROGATE the state's sovereing immunity.

        My gawd you loaded this thread with piling steaming steams of shit.

        The SCOTUS is Extraordinary.

        by Armando on Thu Nov 03, 2005 at 07:15:28 PM PST

        [ Parent ]

    •  Serious question here (none)
      How come the US has done little to nada about telecommuting?

      It saves energy by no commuting, it saves on overhead, since there's no need for a desk?  It would certainly save on the FMLA, since there would be much less use of it?

      Come on, tell me why?

      •  kos i bet (none)
        you'd be spending your time reading dkos and saving democracy, or wis it the planet!

        you know it's true (good for you)

        besides it's much easier to control you in that nice little cubicle, nice and safe in the hive with your fellows

        <little white snark>

        why? just kos..... *just cause*

        by melo on Thu Nov 03, 2005 at 06:43:40 PM PST

        [ Parent ]

    •  Great diary, mcjoan (none)
      You always have a knack for making clear and concise explanations of how the personal and the political meet.

      Seems to me that this is a major issue for the Senate Democrats to seize upon at confirmation hearings and in laying the groundwork for a filibuster.

      I'm not part of a redneck agenda - Green Day

      by eugene on Thu Nov 03, 2005 at 04:47:05 PM PST

    •  Sending positive thoughts (none)
      to you and your family.

      I am a traumatic brain injury survivor.

      by Street Kid on Thu Nov 03, 2005 at 04:47:52 PM PST

    •  Ya know what I just LOVE about America? (none)
      (Your) rights (men) are in the constitution.

      I gotta state shop for mine.

      •  The Constitution is Gender-Neutral (none)
        with regard to citizens.

        It uses terms such as "People," "Person," "Citizen," and "Inhabitant."

        It is not until the 14th Amendment (following the Civil War) that an explicit gender requirement for voting is introduced.

        The problem with the French is that they don't have a word for entrepreneur. -- GW Bush to PM Tony Blair Snopes "debunk": Not Persuasive

        by PJBurke on Thu Nov 03, 2005 at 05:53:08 PM PST

        [ Parent ]

    •  Quibble (none)
      If you follow your link to the DoL website, you'll notice that "FMLA" stands for "The Family and Medical Leave Act."  FMLA gives you the right to a leave for a spouse, child, parent, or dependent in your household, or for your own serious medical condition, either all at one time (e.g., an doctor's order for bed rest during a pregnancy), or intermittently (e.g., for asthma, migraines, arthritis, a recurring back problem).  Intermittent leave is one of the big targets of the right wing.  They want bosses to be able to fire workers who call out sick.

      "Run, comrade, the old world is behind you!" -- Situationist graffito, 1968

      by Pesto on Thu Nov 03, 2005 at 05:14:40 PM PST

      •  Also, of course (none)
        FMLA gives you the right to a leave to care for a newborn or newly-adopted child (that's the main thrust of the "family" part of the law).

        "Run, comrade, the old world is behind you!" -- Situationist graffito, 1968

        by Pesto on Thu Nov 03, 2005 at 05:16:14 PM PST

        [ Parent ]

    •  Poll Info (none)
      Here is a large pdf file with good survey information on parental leave.  FMLA covers much more than parental leave but does include it.

      The survey shows that 80% of respondents support paid parental leave to care for young babies.  The FMLA falls well short of that providing only unpaid leave.  

      Alito's views are way out of the mainstream on this one.

    •  How is denying the FMLA or healthcare coverage (none)
      "pro-family"?  I've never understood that about Republicans.  Hating gays and abortion is pro-family, but a living wage whereby a father can send his kids to college and save for his retirement is not?  I would say that national health insurance, unemployment insurance, Pell grants, FMLA, overtime pay, the 40 hour work week, vacation time, a living wage, etc. do more positive for families than anything else.

      Everyone keeps talking about Roe when it comes to the Alito pick.  While important, I actually believe the most immediate threat a guy like Alito poses is to all the worker protections that were hard fought for during the early part of last century.  That's why Alito will not bring us back to the 1950s.  In reality, he's bring us back to the 1800s.

      The fight against Alito is the most important political fight of our time.

      by HillaryGuy on Thu Nov 03, 2005 at 05:44:54 PM PST

    •  FMLA. (none)
      You should come work for my company.  NO sick days.  Call off 3 times in 18 months, be fired.  Such a great place to work.
    •  The real point to me is (none)
      that Alito's dissenting opinion would have overturned a law passed by Congress.

        That is the scary precedent that Alito's dissenting opinion could create.

        A complete lack of respect for the Three, (3) separate but equal branches of government.

      inspire change...don't back down

      by missliberties on Thu Nov 03, 2005 at 06:04:25 PM PST

      •  Wrong... read the thread above (none)
        You're wrong.  Read the thread above.

        If anything, you've even got his judicial philosophy wrong.  He's VERY deferential to legislatures.  If you read his other opinions, including the controversial Planned Parenthood case, he defers to the legislature almost always--and probably TOO much.

        Instead, Alito's majority 3rd circuit opinion found that Congress had not abbrogated STATE's sovereign immunity.  Which, under the law at the time, they very clearly had not.

        •  You're wrong (none)
          In all esentialsd - Look at the question Alito presents -

          "we must decide whether Congress validly
          abrogated
          the states' Eleventh Amendment immunity when it enacted provisions of the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. SS 2601-54,"

          To wit, did the Congress act in a Constitutiponal manner.

          You come on this thread an try to push a bunch of nonlawyers around spoutng a pile of shit, proving you don't know what the fuck you are talking about.

          The SCOTUS is Extraordinary.

          by Armando on Thu Nov 03, 2005 at 07:14:00 PM PST

          [ Parent ]

      •  Not a fan of Marbury vs. Madison? (none)

        that Alito's dissenting opinion would have overturned a law passed by Congress.


        That's kind of what the courts are supposed to do.

    •  clarifying your first paragraph... (none)
      alito's decision did not say congress doesn't have the power to require state employers to comply with the entire FMLA, just the one provision of FMLA which grants personal sick leave.

      as i understand it, the founders wrote into the bill of rights that states could not be sued in federal court. later, the 14th amendment would allow it, but only when needed to "due process" and "equal protection." the explicitly stated equal protection claim of FMLA is the prevent gender discrimination in the workplace.

      do the individual provisions of FMLA relate to that goal?

      maternity leave? ...obviously.
      sick child leave? ...certainly.
      sick spouse leave? ...possibly.
      sick personal leave? ...no at all - unless you propose that women are inherently more prone to illness than men.

      so just to clarify, while i don't like the result of alito's decision, it appears to be correctly decided. no?

      "The best lack all conviction, while the worst are full of passionate intensity" -Yeats

      by jethropalerobber on Thu Nov 03, 2005 at 07:40:31 PM PST

      •  err NO (none)
        The Supreme Court EXPRESSLY said he was WRONG.

        Sheesh.

        The SCOTUS is Extraordinary.

        by Armando on Thu Nov 03, 2005 at 07:42:40 PM PST

        [ Parent ]

        •  yeah yeah i know (none)
          but why do you resort to an "appeal to authority" instead of arguing it on the merits?

          "The best lack all conviction, while the worst are full of passionate intensity" -Yeats

          by jethropalerobber on Thu Nov 03, 2005 at 08:57:42 PM PST

          [ Parent ]

          •  Well (none)
            becaue you said something that was incorrect. If you knew that, you should have said so.

            And frankly, the tone of this thread has crowded out a reasoned discussion.

            A commenter here has been insulting and STUNNINGLY wrong and the rest of you let him get away with it so sorry, not much patience from me for anyne else.

            Maybe next time.  

            The SCOTUS is Extraordinary.

            by Armando on Fri Nov 04, 2005 at 03:24:27 AM PST

            [ Parent ]

            •  i haven't said anything wrong... (none)
              ...and you're still unable to counter my argument.

              the fact that the SC reversed his decision has zero bearing on whether he decided it correctly to begin with - unless you believe in judicial infallability.

              "The best lack all conviction, while the worst are full of passionate intensity" -Yeats

              by jethropalerobber on Fri Nov 04, 2005 at 08:21:06 AM PST

              [ Parent ]

            •  No he didn't, the diarist did. (none)

              He also argued that the FMLA was unconstitutional because "there was no evidence for the notion that women are disadvantaged in the workplace when they are not allowed to take family leave.


              He argued a certain provision of the FMLA could not apply to states because of sovereign immunity.  The FMLA was a general-purpose restraint on employers, not specifically states. If you accept the diarists phrasing, anything that gave you a right to sue anyone in general that could possibly be used against a state would be ruled "unconstitutional" when the long-held concept of sovereign immunity was applied.


              The FMLA would only be "unconstitutional" had it been specifically aimed at states.  Alito just applied the usual "you can't sue the states" protection without altering the law in any way.

              •  Context boyo (none)
                Unconstitutional in its application to States.

                Apparently you and Ann Althouse missed some classes at law school.

                The SCOTUS is Extraordinary.

                by Armando on Fri Nov 04, 2005 at 09:59:44 AM PST

                [ Parent ]

                •  He just narrowed the wording. (none)

                  Rather than "all employers" it became "all non-state employers" that had to grant leave.  As I said, if you use your "definition" then any law allowing legal recourse becomes "unconstitutional" the second you try to sue a state with it.

      •  whoops - substitue 11th for bill of rights (none)

        "The best lack all conviction, while the worst are full of passionate intensity" -Yeats

        by jethropalerobber on Fri Nov 04, 2005 at 09:10:23 AM PST

        [ Parent ]

    •  I wish these community friendly arguements (none)
      could be made on spreadsheets with math, accounting, stats ...

      I know that lots of libs think that money and math are one of hte roots of the evil - to me, they are just tools, and the tools happen at this point in time to made by the rich for the rich.

      FMLA, Universal Health Care, educational access, good transportation ...

      some of the things we have in this country, some are breaking down, some we need, but,

      it is obvious when you look at the 4 or 5 billion people who live in the poverty of the Brazils / India/ Chinas / Nigerias ...

      there is a certain level of community investment, taxes, and a certain degree of fair umpires, government, which has to happen in order to get the the economy growing and moving and creating opportunity.

      sure FMLA is the right thing to do - but, whoopee!

      there will ALWAYS be people, bushco aristocrats for example, who don't want anything going to anybody that increases opportunity cuz it decreases thier control

      and I think we are going to be doomed to lose to these aristocrats until we can use the tools of money and math and software modelling ...(or, whatever effective measurement tools come along)

      to PROVE to everybody that the FMLA is in fact a good investment - we know it is the right thing to do, we have a hunch it is a good investment, but,

      why can't we show in dollars and cents and soundbites what all our proposals are worth, investment wise?  

      (too many of our university soft science egg - heads don't want to use math ... ?? )

      rmm.  

      Grassroots Organizing Should Be for The Community, By The Community - NOT for "Leaders" http://www.liemail.com/BambooGrassroots.html

      by rmdSeaBos on Thu Nov 03, 2005 at 07:46:15 PM PST

    •  For those having trouble (none)
      uderstanding why the FMLA case, addressing gender discrimination, is different from the disability cases, read this from the Supreme Court decision upholiding the abrogation of sovereign immunity by the FMLA:

      Congress responded to this history of discrimination by abrogating States' sovereign immunity in Title VII of the Civil Rights Act of 1964, 78 Stat. 255, 42 U. S. C. §2000e-
      2(a), and we sustained this abrogation in Fitzpatrick, supra. But state gender discrimination did not cease. "[I]t
      can hardly be doubted that ... women still face pervasive, although at times more subtle, discrimination ... in the job market." Frontiero v. Richardson, 411 U. S. 677, 686 (1973). According to evidence that was before Congress when it enacted the FMLA, States continue to rely on invalid gender stereotypes in the employment context, specifically in the administration of leave benefits. Reliance on such stereotypes cannot justify the States' gender discrimination in this area. Virginia, supra, at 533. The long and extensive history of sex discrimination prompted us to hold that measures that differentiate on the basis of gender warrant heightened scrutiny; here, as in Fitzpatrick, the persistence of such unconstitutional discrimination by the States justifies Congress' passage of prophylactic §5 legislation.

           As the FMLA's legislative record reflects, a 1990 Bureau of Labor Statistics (BLS) survey stated that 37 percent of surveyed private-sector employees were covered by maternity leave policies, while only 18 percent were covered by paternity leave policies. S. Rep. No. 103-3, pp. 14-15 (1993). The corresponding numbers from a similar BLS survey the previous year were 33 percent and 16 percent, respectively. Ibid. While these data show an increase in the percentage of employees eligible for such leave, they also show a widening of the gender gap during the same period. Thus, stereotype-based beliefs about the allocation of family duties remained firmly rooted, and employers' reliance on them in establishing discriminatory leave policies remained widespread.3

           Congress also heard testimony that "[p]arental leave for fathers ... is rare. Even ... [w]here child-care leave policies do exist, men, both in the public and private sectors, receive notoriously discriminatory treatment in their requests for such leave." Id., at 147 (Washington Council of Lawyers) (emphasis added). Many States offered women extended "maternity" leave that far exceeded the typical 4- to 8-week period of physical disability due to pregnancy and childbirth,4 but very few States granted men a parallel benefit: Fifteen States provided women up to one year of extended maternity leave, while only four provided men with the same. M. Lord & M. King, The State Reference Guide to Work-Family Programs for State Employees 30 (1991). This and other differential leave policies were not attributable to any differential physical needs of men and women, but rather to the pervasive sex-role stereotype that caring for family members is women's work.5

           Finally, Congress had evidence that, even where state laws and policies were not facially discriminatory, they were applied in discriminatory ways. It was aware of the "serious problems with the discretionary nature of family leave," because when "the authority to grant leave and to arrange the length of that leave rests with individual supervisors," it leaves "employees open to discretionary and possibly unequal treatment." H. R. Rep. No. 103-8, pt. 2, pp. 10-11 (1993). Testimony supported that conclusion, explaining that "[t]he lack of uniform parental and medical leave policies in the work place has created an environment where [sex] discrimination is rampant." 1987 Senate Labor Hearings, pt. 2, at 170 (testimony of Peggy Montes, Mayor's Commission on Women's Affairs, City of Chicago).

      If you still don't get it, I can't help you.

       

      The SCOTUS is Extraordinary.

      by Armando on Thu Nov 03, 2005 at 07:49:25 PM PST

      •  again i ask (none)
        how does personal sick leave go to the issue of gender discrimination?

        what types of leave are covered by FMLA?

        SEC. 102. LEAVE REQUIREMENT.
        (a) IN GENERAL.--
        (1) ENTITLEMENT TO LEAVE.--Subject to section 103, an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period for one or more of the following:
        (A) Because of the birth of a son or daughter of the employee and in order to care for such son or daughter.
        (B) Because of the placement of a son or daughter with the employee for adoption or foster care.
        (C) In order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.
        (D) Because of a serious health condition that makes the employee unable to perform the functions of the position of such employee.

        and which one was alito was ruling on?

        In this case, we must decide whether Congress validly abrogated the states' Eleventh Amendment immunity when it enacted provisions of the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. SS 2601-54, that require a broad class of employers, including states, to provide their employees with 12 weeks of leave "[b]ecause of a serious health condition that makes the employee unable to perform the functions of the position of such employee" and that permit employees to sue in federal court for violations of the Act.

        so how exactly are women more prone to "serious health conditions"?

        .

        "The best lack all conviction, while the worst are full of passionate intensity" -Yeats

        by jethropalerobber on Fri Nov 04, 2005 at 09:33:30 AM PST

        [ Parent ]

    •  This is what I have been saying all along! (none)
      By focusing on the one divisive issue of abortion, we lose out on so many broader cases that are at stake here.  This is but one of them.  And THIS is a large reason why I think Scalito should be filibustered.
    •  I fear a judicial tyranny (none)
      This Alito nomination is driving me crazy. I wish that more Americans would wake up and see the great danger. The republicans want an extreme right-wing Supreme Court for many reasons. One big reason is for insurance. They realize that the democrats might come back in power again someday. With a far-right Supreme Court, the republicans can rule this country for 40 years, maybe permanently. A far-right court can end democracy in this country very easily. A far-right court will be a judicial tyranny. We badly need extreme measures to stop this.

      I suggested one method to get rid of Bush and Cheney RIGHT NOW. From the top of my lungs, I say that people should work for a constitutional convention:

      http://www.dailykos.com/...

      In addition, I think it's a good idea to begin efforts to remove right-wing judges. I'd like to see a constitutional convention adopt amendments that would remove Thomas, Scalia, Roberts, and Kennedy. And Alito if he is confirmed. Kennedy is not as extreme as Thomas and Scalia, but he did vote to anoint Bush as God Himself.

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