In Tuesday night's debate, President Obama reaffirmed the skills that, immediately after his 2008 victory over Senator John McCain, prompted his opponent's chief strategist Steve Schmidt to praise his "once-in-a-generation eloquence" and "ice-cold discipline about the execution of his campaign message." But on Tuesday against 2012 challenger Mitt Romney, the President also missed an invaluable opportunity to address the future of the Supreme Court and explain why, hanging in the balance on that issue, are pocket-book protections vital to women, retirees, consumers, workers, depositors, small investors, and other middle-class constituencies.
This omission is by no means unique to the President or his debate preparation team. On the contrary, progressive leaders chronically avoid surfacing the courts as a political issue and with few exceptions, they have not grasped the judiciary as a venue for connecting with hard working Americans whose priority concern is economic opportunity and welfare.
In the debate, the chance to make that connection was teed up by audience member Katherine Fenton. She asked how the candidates intended to "rectify the inequalities, specifically regarding females making only 72 percent of what their male counterparts earn."
The President pounced. "The first bill I signed," he beamed, "was something called the Lilly Ledbetter bill." He concisely told the story of the iconic former rubber worker who, upon her retirement, found out that her paychecks had been systematically short-changed, compared to her male counterparts, for most of her many years on the job. "The Supreme Court," Obama explained, "said that she couldn't bring suit because she should have found out about it earlier, when she had no way of finding out about it." "We fixed that," he concluded, and then moved on to tout his initiatives to expand Pell Grants and cut private lenders out of the student loan program.
What alternative approach might the President and his team picked? They could have not pigeon-holed the Ledbetter bill as simply a one-off past score for women - hence no longer in play or at risk. They could have spotlighted also the perverse decision that the bill overturned, and held it up to underscore an ongoing concern - judicial decisions hostile to laws designed to protect the interests of ordinary people. That threat, along with the flip-side need for judges who faithfully enforce those vital legal safeguards, poses an issue very much in play.
What, specifically, might the President have said to put that broader, ongoing concern on viewers' radar screens? He could have noted that the decision to stiff Lilly Ledbetter was made by a bare 5-4 majority of the justices, rather than attributing it to the institutional "Supreme Court." Post-debate commentary would likely have noted this as an implicit reference to the sharp ideological divide on the Supreme Court and the fact that it was the Court's five conservative justices who voted against Lilly Ledbetter.
He could have quoted dissenting Justice Ruth Bader Ginsburg's eloquent denunciation of the majority decision for subverting the purpose of the Civil Rights Act, ignoring "the real-world characteristics of pay discrimination," and "grand-fathering" types of common workplace abuses that side-track, not just Ledbetter's career, but those of millions of women, older workers, people with disabilities, and members of religious groups.
In the longer term, if President Obama wins a second term, he and other progressive political leaders, could ratchet up their critique, paraphrasing Senator Patrick Leahy's frequent observations that in decisions like the Ledbetter case, "Oftentimes," slim Court majorities "turn these laws on their heads and make them protections for big business rather than for ordinary citizens." They could stress the remarkably high number of such cases that business lobbying organizations, especially the U.S. Chamber of Commerce, persuade the Supreme Court to hear and to decide their way. Further, they could connect the dots between these actions and decisions that stretch the Constitution to strike down longstanding safeguards against corporate political spending.
By failing to take a cue from Senator Leahy, who has held numerous hearings over the past four years to "shine a light on how the Supreme Court's decisions affect Americans' everyday lives," progressive leaders, including the President, have to date overlooked the political lesson implicit in the Ledbetter story. The raw fact is that Congress overturned that decision with what for it constitutes truly blinding speed -- one and one half years! That history indicates that, while media types and politicians tend at first blush to turn up their noses at disputes which, on their face, concern legal minutiae between businesses or other large organizations and workers, consumers, retirees, depositors, or the like, in fact, the very "ordinariness" of the individual protagonists and their stories of mistreatment have great potential to resonate, if brought to the attention of equally ordinary Americans. Significantly, in April 2008, six Republican broke ranks to support a nearly successful motion to end the filibuster against the Democrats' "fix" legislation -- acknowledging, in effect, the political potency of the Ledbetter cause.
The Ledbetter case is not simply a story of how women are denied equal pay -- though it is certainly powerful on that front -- it is also a template for strategic action by progressives in fighting over the courts that could and should be scaled up and broadly deployed.
This piece is cross-posted on Text and History.