IN HIS State of the Union address, President Bush made a passing plea for congressional action on judicial nominations that raised the conservative bogeyman of activist judges. "I've submitted judicial nominees who will rule by the letter of the law, not the whim of the gavel," he said.
Just ask Lilly Ledbetter how reasonable it is. She was the victim of gender discrimination who last year was denied just compensation by a majority of conservative Supreme Court justices who followed the letter of the law to such an extent that they ignored the spirit and intent of the law and effectively turned it into an absurdity.
Ms. Ledbetter worked as a supervisor at a Goodyear Tire and Rubber Co. plant in Gadsden, Ala., from 1979 until her retirement in 1998. Over the years, she was paid less than male workers but didn't know it because pay scales were kept confidential. When she finally found out the full extent of the unfairness, she filed suit. Although the company said her pay was based on performance evaluations, a jury ruled for her and awarded her damages and back pay.
But justice was undone when the case went to the Supreme Court. In a 5-4 vote in May, Ms. Ledbetter lost her claim because she hadn't filed it within 180 days of an act of discrimination, even though the pattern of unequal pay was set years before. Thus the majority constructed a Catch-22: She didn't make a complaint because she didn't know she was being discriminated against, and therefore she had no complaint.
In a dissent pointedly read from the bench, Justice Ruth Bader Ginsburg called the majority's reading of the law "parsimonious" - a polite way of saying outrageous - and called on Congress to repair the damage. The good news is that Congress is trying.
Ms. Ledbetter recently appeared before the Senate Committee on Health, Education, Labor, and Pensions in support of the Fair Pay Restoration Act. In language that is a rebuke to the Supreme Court, it would correct the alleged defect in Title VII of the Civil Rights Act that denied Ms. Ledbetter justice. The House passed a companion bill last summer.
These bills deserve full support and passage by Congress. This effort would not be necessary if the justices had brought to the task not the whim of the gavel but the common sense of the court.