But today, Elie Mystal’s post at Above the Law on Debrahlee Lorenzana, the former Citibank employee suing for being terminated because she was “too hot,” surprised me. In light of a video circulating of Lorenzana, in which she states her desire to have breast augmentation surgery in order to attract professional men, Mystal declares Lorenzana made herself an “attractive nuisance.”

“Ha! Attractive nuisance!” you might say if you vaguely remember the term from torts class, and then also remember that Lorenzana was fired for being a smoking hot liability. But if Mystal’s goal was to make a funny legal pun, he does so at the expense of accuracy. The attractive nuisance doctrine basically says that if you have something attractive to kids on your land — let’s say, a big rusty swing-set in the middle of your yard — it’s up to you to put a fence up to keep kids from playing on it. If you don’t, and a kid sneaks onto your land, plays on the swing-set, and breaks his arm — it’s your fault.

That’s right, the attractive nuisance doctrine relates only to children not grown-ass men. The doctrine was created specifically because we think that children can’t fully appreciate the risks and dangers associated with playing on things rusty broken down swing-sets or understand the concept of property boundaries.

So it would seem to me that Mystal is really arguing that all men are children. Or maybe, more generously, that men revert to a child-like decision making state when shown giant breasts and shouldn’t be held responsible for their actions. I could get behind this new theory of Mystal’s — but only if it means we can send all the men to daycare with a library of Hustler magazines and commence our female take-over of the world.

Clever, misleading puns aside — Mystal goes even further, calling it Lorenzana’s “fault” that men were distracted by her looks: “[S]urely when a woman places objects in her boobs for the specific purpose of attracting a ‘professional’ man, she’s got to assume some responsibility when men stare.”

Is it just me, or do “attract men” and “get fired,” seem like two totally different things? If Lorenzana made a video about how she wanted to get fired from a bank for having breasts in the size and shape of regulation soccer balls, I can understand how her statement of intent might be relevant here. But seeing as Lorenzana’s suit is about getting fired for being attractive, not about whether or not she knows she’s attractive, it just seems like one more excuse for Mystal to go on a bizarre blame rampage.

Even overlooking the legal word-play inaccuracies, Mystal just gets it fundamentally wrong, ignoring the actual issue of the suit (wrongful termination) and talking about it like it’s a sexual harassment claim. In doing so, he also manages to make callous demeaning comments about Lorenzana while simultaneously stomping all over any kind of notions of gender-fairness.

But maybe after looking at pictures of Lorenzana all day, Mystal just needs a nap. Or better yet — a time out.

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There’s only been a few hours since the end of the President’s State of the Union and already it’s clear what will be heading up the news cycle tomorrow: Justice Alito’s Joe Wilson moment.

In case you missed it, which wasn’t hard since it was a few milliseconds of reaction, Justice Sam Alito shook his head and said “not true” after President Obama criticized the Supreme Court’s recent ruling in Citizen’s United.

It’s easy to get pulled along in the tide of outrage. The Supreme Court after all, is at least supposed to pretend to be neutral arbiters. AMERICAblog wrote it. Glenn Greenwald immediately twittered it. Huffington Post re-posted it. Talking Points Memo grabbed the vid.

But then comes Linda Greenhouse at the New York Times, as a voice of reason:

. . . Justice Alito shook his head as if to rebut the president’s characterization of the Citizens United decision, and seemed to mouth the words “not true.” Indeed, Mr. Obama’s description of the holding of the case was imprecise. He said the court had “reversed a century of law.”

The law that Congress enacted in the populist days of the early 20th century prohibited direct corporate contributions to political campaigns. That law was not at issue in the Citizens United case, and is still on the books. Rather, the court struck down a more complicated statute that barred corporations and unions from spending money directly from their treasuries — as opposed to their political action committees — on television advertising to urge a vote for or against a federal candidate in the period immediately before the election. It is true, though, that the majority wrote so broadly about corporate free speech rights as to call into question other limitations as well — although not necessarily the existing ban on direct contributions.

Watching the video, it’s hard not to agree  that Alito’s nodding was most likely in reaction to Obama’s inaccurate characterization.  But, as Greenhouse herself states at the end of the article, this is not an explanation that lends itself to sound-bite. If I wake up tomorrow morning and Justice Sam Alito is the new Joe Wilson, I won’t be one bit surprised.

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So here’s an interesting item floating around the Right-side of the Internets: GOP lawyers are already prepping to protest Massachusetts’s Appointed Senator Paul Kirk’s vote on the health-care reform bill if the election tomorrow is close, or Scott Brown wins.

Citing unnamed “Republican attorneys,” Fred Barnes trots out the possibility that after Election Day, Kirk’s vote in the Senate evaporates — regardless of the outcome of the race:

Massachusetts law says that an appointed senator remains in office “until election and qualification of the person duly elected to fill the vacancy” . . . If Brown wins narrowly and a recount is being conducted, Democratic lawyers might claim that he hasn’t been “duly elected.”  Republican attorneys believe, however, that a candidate has actually been elected, though it won’t be clear who that is until the recount is completed.

And in the event of a Brown victory, Barnes claims Democrats are plotting to delay certification of the election results to leave Kirk in the game for as long as possible.  So this is the kind of back and forth analysis of the law we’re in for in Massachusetts, unless all of it is made moot with a decisive victory by Democrat Martha Coakley.

But as long as we’re hypothesizing on this perfect storm of state and Constitutional election law, there are a few other interesting issues that it raises. For one, it doesn’t seem to be at all certain that Kirk’s seat in the senate would turn itself into the pumpkin at the stroke of midnight on January 20, especially if the election results are dragged out. Second, if there’s a recount, and a legal battle, could Kirk stay in office and vote on the health-care bill, anyway? And if he does and it’s counted, but a court later rules that Kirk was ineligible, can his vote be vacated?

But all these questions, seem to be trumped by one: What court could hear such an argument? And the answer doesn’t look great for conservatives.

“I’m not convinced enough that [the Republican's fight] would have much chance of succeeding,” says Curt Levey, executive director of the conservative Committee for Justice. “You can’t go to federal court based on Massachusetts law, you can’t go to federal court based on senate precedent . . .  the main thing they’re hanging their hat on is the Massachusetts law that says ‘until election and qualification of the person duly elected to fill the vacancy.’ But that’s something you’d have to do in a Massachusetts state court, and it’s hard for me to imagine them doing well in a state court and hard for me to believe a Massachusetts court would leave Massachusetts without a senator.”

Regardless, these questions could still wind down a very twisted, and easily politicized path — not unlike the one we saw in Minnesota, last year.  And while the novel issues might fascinate scholars and earn party lawyers plenty of billable hours, it could be a devastating outcome for the people of Massachusetts and the Democratic party if they’re left without a senator for one of the most  important votes in history.

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In the recent  New Yorker story on Justice Sonia Sotomayor, Lauren Collins slips in an un-reported quote from the newest justice, which minority senators might be kicking themselves for missing:

In 2000, at the graduation ceremony of the Bronx Leadership Academy, Sotomayor had said, “It is so exciting to be at the door of a major change in one’s life. That’s why brides and bridegrooms smile so much at weddings and why so many tears of joy are shed when a wanted child arrives”—her unprompted use of the phrase “wanted child” acknowledging the possibility that an expectant parent could feel otherwise

Whether the phrase “wanted child” necessarily implies its opposite is certainly a matter of debate — and one that very well might have taken place during this summer’s Senate confirmation hearings. It lends itself to a near judicial question of interpretation: Does “wanted” imply that there are “unwanted” children, as Collins suggests? Or is “wanted” merely a superfluous adjective meant to imply the hopes and dreams of a couple in having children?

There’s really no way of knowing, but rest assured that all of these interpretations and more would have likely been trotted out. With very little, if any, information on Sotomayor’s position on abortion, it’s hard to believe the minority would have let something like this slip away had they known about it.

Indeed, conservative Senators, pundits and talk-show hosts grasped at flimsier straws this July — attacking Sotomayor for her “wise Latina” remarks, and ironically heralding her as an activist judge for her part in the 2nd Circuit’s precedent following Ricci decision.

“Unless you have a complete meltdown, you’re going to be confirmed,” Sen. Lindsey Graham (R-S.C.) memorably said to Sotomayor during her hearings. That “meltdown” was very much what the minority was hunting for this summer — and the fact that a quote like this, or rather an adjective like this, could have been Sotomayor’s undoing says a lot about the adversarial heights the Supreme Court confirmation process has reached.

Here’s a reporter from a local Alaska news station, KTUU,  at the start of an interview with Sen. Lisa Murkowski (R-AK). The reporter asks Murkowski — who has been in the Senate for almost seven years — to spell her name and state her job title.

“Murkowski has been in office for nearly 7 years and the number one station in Alaska has a reporter assigned to the senator who doesn’t even know who she is,” said Dennis Zaki, who runs Alaska Report and captured the video. “The other two local channels didn’t even show up to the press conference.”

To give the reporter some credit, this might not be her fault (god knows I’ve been in plenty of interviews unprepared), so much as her news station for sending her into a situation she wasn’t experienced enough to deal with. But that’s part of the problem. If the top local news station doesn’t have reporters who even know the names of their national representatives, how can they hold these politicians accountable?

Alaska has had some crackerjack reporting in the past, but for a state that gets the most earmarks per capita ($506.34 per person in 2008) in the country, I don’t think it’s out of the question to continue to demand a credulous press asking for some political accountability.

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In speaking to a group of students at the University of Alabama, the Republican appointed Justice Clarence Thomas had a few things to say about the diversity of the Court:

A native of Georgia and the only current justice from the South, Thomas said the court is too dominated by Ivy League lawyers and lacks regional diversity. People constantly worry about racial, gender and ethnic diversity, he said, and home states matter, too.

“My goal is to have a court that is fair, and I think it’s fair when we are fair in selecting people from all parts of the country, from all walks of life,” Thomas said.

Now, there’s certainly nothing wrong with being a proponent of more academic diversity on the court, except maybe when you’re part of the problem.

That’s right, Thomas went to Yale Law School, a blue-blooded Ivy if there ever was one, making his statements bemoaning a lack of justices from different “walks of life,” deeply ironic. That’s not even mentioning that Thomas is also now one of six Catholic justices on the Court — a ratio that far outstrips Catholic representation in the general population.

Thomas also told students that the Court “didn’t need oral arguments” to reach their opinions:

Thomas – who hasn’t asked a lawyer a question during arguments in nearly four years – said he and the other eight justices virtually always know where they stand on a case by reading legal briefs before oral arguments. . .

Thomas scoffed at the idea that the justices try to use questions to influence the opinions of fellow members of the court.

“All nine of us are in the same building,” he said. “If we want to sway each other we know where we are. We don’t need oral arguments to do that. It doesn’t make any sense to me.”

Now, this, actually, isn’t the craziest idea. By the time these cases reach the Supreme Court, the issue the Justices are deciding on is incredibly narrow. Both sides’ arguments are full represented in documents to the Court. So, Thomas’ characterization of them as a vestigial organ of the legal process isn’t inaccurate or foolhardy. But if we allow that oral arguments don’t really exist solely to help the Justices make up their minds on cases, we can at least acknowledge their importance historically and civically.

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For those following the debacle of former Senator Ted Stevens’ prosecution, the big news today was that the head of the unit at the Justice Department who handled the case, stepped down, moving back to Massachusetts for “family reasons.”

For those that diligently followed the Stevens’ investigation this is something of a catharsis. There were a lot of things that went wrong with the government’s case against Stevens. To refresh: there was a huge typo in the indictment; the Justice Department withholding of evidence in discovery (which led to it being excluded) and the affair the Justice staffer supposedly had with the government’s key witness. And that’s not even counting the other distractions in the trial, like the juror who skipped deliberations to head to a horse race in California.

But there’s one more, less publicized, bit of relief for those eager for justice to be served to those involved in Stevens’ shady dealings: the prosecution is finally asking for $750,000 fine and  46 months in prison for Bill Allen, their key witness in the case. This is exciting because, well, there’s been a fair amount of speculation about whether Allen would ever be sentenced.

Even though Allen was found guilty in 2007, he’s been jetting between Alaska and New Mexico, where  his son Mark owns a horse ranch (Mark was a co-owner of the horse who won the Kentucky Derby). While he did give the Justice Department almost a half-dozen corrupt local officials and provide the majority of the case against Ted Stevens, the sentence is still significantly less than the time given to those Allen brought down. Rep. Pete Kott got 6 years on far lesser offenses than Allen was convicted of, and the same goes for former Rep. Vic Kohring, who was sentenced to 42 months after accepting a couple thousand dollars in bribes from Allen.

Allen’s attorney’s are obviously arguing for a reduction in sentencing, but it seems to me that a mere 46-months isn’t quite enough for the man that brought down Alaska.

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There’s a lot of controversy in the Supreme Court this term: the possible overturning of the McCain-Feingold Act, the inevitable incorporation of the 2nd amendment under the 14th, and now: whether or not “searing media attacks” can taint a criminal trial — as former Enron executive Jeffrey Skilling says happened in his trial.

From SCOTUSblog:

The Supreme Court agreed on Tuesday to rule on claims that “searing media attacks” on longtime Enron executive Jeffrey K. Skilling tainted his criminal trial and conviction on various fraud charges.  The case of Skilling v. U.S. (08-1394) also raises an issue on the scope of the federal law punishing the failure to provide “honest services” as a corporate executive.

So far, there’s been much talk about the Court’s thoughts on the “honest services” fraud  issue, which shouldn’t be too hard to predict. Justice Antonin Scalia’s pro-business (or at least anti-criminalization of business dealings) dissent in February’s Sorich v. United States decision, lays out a likely position for the majority in this .

But what I find more interesting then the foregone conclusion on “honest fraud” is whether the Court will find “searing media attacks” to be an adequate basis for appeal — or vacating a verdict or sentence.  It seems that this could easily open a Pandora’s box of problems litigating high-profile defendants. Could the civil judgment against O.J. Simpson be vacated? What about the sentence of Bernie Madoff? Or, more recently, could the media’s picture play a future role in the trial of Roman Polanski?

Looking at Skilling’s petition of cert, certainly doesn’t narrow the scope of the argument. “Skilling was pronounced guilty throughout Houston, long before trial,” the petition reads, and references headlines around Texas like, “Most Agree: Indictment Overdue” and ” Your Tar and Feathers Ready? Mine Are.”

Those seem like pretty run of the mill headlines in any kind of high-profile case, to me. There’s always the question of having a completely objective, untainted jury pool in trials — and many states require juries to be kept in isolation during trial to avoid being influenced by the media — or judge for that matter. But the idea is that people, and judges, can put the facts about feelings and render a verdict regardless. If the Court were to draw a line at media influence, it’s hard to say what the line would be if, but there’s a likelihood that it might create a bar towards prosecuting celebrities and other high-profile figures.

Cheney has worked as a principal at Navigators Global, a bi-partisan communications firm, but recently announced  that she would be leaving the company for maternity leave and to begin a new consulting firm with her sister, Liz. Close friends were informed that she was expecting a second child about four months ago and she is now visibly showing her pregnancy, the source says.

Cheney, a lesbian, attracted much attention from the conservative movement when she announced she was pregnant with her first child in late 2006. Social conservative pundit and founder of Focus on the Family, James Dobson, penned a controversial op-ed for Time magazine called “Two Mommies Is One Too Many,” opining Cheney’s decision to start a family:

With all due respect to Cheney and her partner, Heather Poe, the majority of more than 30 years of social-science evidence indicates that children do best on every measure of well-being when raised by their married mother and father. That is not to say Cheney and Poe will not love their child. But love alone is not enough to guarantee healthy growth and development. The two most loving women in the world cannot provide a daddy for a little boy–any more than the two most loving men can be complete role models for a little girl.

Despite her sexuality, Cheney has remained a conservative voice and supporter of her father’s campaigns, though she has all but disappeared from the public view since 2004 — even staying silent on the Bush Administration’s Federal Marriage Amendment to the chagrin of gay rights groups.

The same can’t be said for Liz Cheney, Mary’s sister, who has become a central media figure for Republicans since 2008, and famously defended the “birther” movement on Larry King earlier this summer.  As the GOP looks for new standard-bearers in the post Bush-Cheney era, Liz Cheney has been promoted as potential party leader , and many have hypothesized about her possible run for office.

During the 2004 presidential election, the Cheney family battened down the hatches on discussions of Mary’s sexuality. In his debate with then vice-presidential candidate John Edwards, Dick Cheney icily ignored Edwards’ comments about his daughter being gay. When Mary announced her first pregnancy in 2006, Cheney issued a brief statement on his excitement at being a grandfather.

It’s anyones guess how Mary’s burgeoning alternative family and Liz’s burgeoning conservative political career will reconcile themselves in the coming years.

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In today’s New York Times, Adam Liptak takes a look at the “mystery of the shrinking docket” — how the Supreme Court went from reviewing about 150 cases a year in the early 1980s, to just 80 cases a year today.

There are lots of theories being tossed around by scholars on why the Court is hearing fewer cases, but one seems to be the most comprehensive. Since 1986, the new justices, to a man (and woman), simply vote to hear far fewer cases than their predecessors. The numbers speak for themselves:

The starkest difference was between Justice Byron R. White, who voted to hear an average of 216 cases per term from 1986 to 1992, and his replacement, Justice Ruth Bader Ginsburg, who voted to hear 63 cases in 1993.

The phenomenon seemed to cut across ideological lines. Justice Clarence Thomas voted to hear 72 cases per term, down from Justice Thurgood Marshall’s 125. Justice David H. Souter voted to hear 83 cases per term, down from Justice William J. Brennan Jr.’s 129.

As Liptak points out, it doesn’t seem to have anything to do with politics — both “conservative” (Thomas) and “liberal” (Ginsburg) justices have tapered off the number of cases they select from their predecessors.  But why is this change so sudden in the last twenty years?

Well, it could be that around this time Edwin Meese III, Ronald Reagan’s attorney general in the 1980s, was beginning the conservative fight against “judicial activism” (a battle that Meese is still fighting today).

The “anti-activist judge” platform has been taken up by both sides of the aisle through the years, something Jeff Toobin writes about in last week’s issue of the New Yorker.  And while it doesn’t quite explain Justice David Souter or Ginsburg’s nominations (both were straightforward in the idea that the Constitution was an “evolving” document, according to Toobin) it might explain why the new justices, as a whole, have wanted to hear less cases.  In the last twenty years, the amount of political and popular pressure, both directly in hearings to indirectly in the press and from Congress, to not be an “activist” judge could conceivably lead the Court towards narrowing their case load in an effort to decide fewer Constitutional questions.

Update: A lawyer friend makes the point that my theory that judicial activism leads to a smaller docket is a bit attenuated, and anyway “since when have . . . justices with lifetime S. Ct. tenure, been afraid of being labeled ‘activist’?” It’s a good point — once on the bench, the justice have almost zero motivation to please anyone, so maybe my mashup of Toobin’s timeline on this problem doesn’t hold. Another theory that I was reminded of that doesn’t get mention in Liptak’s article: The Court’s docket has shrunk because the Court writes longer and more complex opinions than it ever has before. Perhaps it logically follows then, that they can’t take on the same case load they used to.