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Oct. 24 2009 — 11:52 am | 70 views | 0 recommendations | 2 comments

Clarence Thomas reaches new low in self-awareness

Clarence Thomas

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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.



Oct. 22 2009 — 12:10 pm | 53 views | 0 recommendations | 4 comments

Some catharsis for those frustrated by Ted Stevens’ case

WASHINGTON - DECEMBER 20: (FILE PHOTO) U.S. Se...

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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.



Oct. 13 2009 — 2:15 pm | 29 views | 0 recommendations | 2 comments

Supreme Court to consider role of ‘media tainting’ in trials

U.S. Supreme Court building.

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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.



Oct. 6 2009 — 6:56 pm | 1,190 views | 2 recommendations | 30 comments

Mary Cheney pregnant with second child

Mary CheneyMary Cheney, the former vice president’s daughter, and her long-time partner, Heather Poe, are expecting their second child, a source close to the family told True/Slant.  [Ed. Note: Since publishing this piece, Cheney has confirmed that she and Poe are expecting their second child in mid- to late November.]

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.



Sep. 28 2009 — 3:17 pm | 21 views | 0 recommendations | 3 comments

The Supreme Court docket’s shrinking, are ‘activist’ witch-hunts to blame?

American Jews

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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.


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    About Me

    While working at Talking Points Memo Muckraker during the 2008 Election, I covered the Justice Department politicization, voting rights law and the insanity of Alaska politics. I loved the beat which was somewhere between the wonky side of politics and the law. The realization was enough to send me off to law school in D.C. -- which seems to be a perfect combination of both.

    Though I've covered everything from birth control to blenders in my few years in journalism, this blog will be a compilation of stories related to the Supreme Court, federal courts, and the law generally. With an occasional story about Sarah Palin or Ted Stevens thrown in for good measure.

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