Law blog roundup

Maryland JudiciaryWelcome to another Monday and we hope you had a lovely holiday weekend. Here are some links to check out while you ponder whether you’d like to throw your hat in the ring for New York City comptroller:

– The Maryland Judiciary debuts a spiffy new website. (Let us know what you think about it in the comments section)

– When you hear “bear arms” in terms of the Second Amendment, do you think one gun or multiple guns? Why this might become very important in Illinois tomorrow.

– Ron Miller on why the first settlement offer from an insurance company is usually a bad one.

Is Ruth Bader Ginsburg too old to be a Supreme Court justice?

Law blog roundup

Bananas FosterWelcome to Monday and a reminder to reserve your infield spot for Saturday. Here are some news items to get your week started.

– Supreme Court Justice Ruth Bader Ginsburg criticizes Roe v. Wade.

– The family of NHL player sues National Hockey League for wrongful death.

– Male lawyers will don stilettos to make a point.

– The family behind the Bananas Foster fights over its New Orleans restaurant.

 

Law blog roundup

Ruth Bader GinsburgWelcome to the Monday following a Blast of a weekend. Here are some items to get your week started.

– The Tennessee Legislature also has a dogfight.

– Supreme Court Justice Ruth Bader Ginsburg hits the big 8-0.

Gideon v. Wainwright hits the half-century mark.

– Israelis urge President Barack Obama to free a spy.

Law blog roundup

ruth bader-ginsburgWelcome to the first Monday in November, which makes tomorrow, well, you know the rest. Here now some news items to get your week started.

– What ever happened to that lawyer who argued for the respondent in Weinberger v. Wiesenfeld?

– What is your answer to one of the great questions of our time?

– It’s never too early to have a legal battle over ballots.

– “Girls Gone Wild” case reaches the Georgia Supreme Court.

The politics of SCOTUS clerking

Looks like my guide on how to become a clerk on the U.S. Supreme Court is now at least a two-part series. In Part One, I told you the importance of coming from a top-10 law school. Today’s lesson: have the right (or left) ideology.

The New York Times reported this week that all 84 of Justice Clarence Thomas‘ clerks “have first clerked for an appeals court judge appointed by a Republican president.”

Thomas explained his reasoning a decade ago, according to The Times: “I won’t hire clerks who have profound disagreements with me. It’s like trying to train a pig. It wastes your time, and it aggravates the pig.”

Thomas is the extreme example of a growing partisan trend in clerk picking on the Roberts court, with the conservative justices almost exclusively following Thomas’ example while liberal justices largely pick clerks who served for appeals court judges appointed by Democratic president. Justice Stephen Breyer is the only member of the court who comes close to picking an equal number of clerks from both sides.

The Times also reports this doozy: More than half of the clerks who have served on the Roberts court came from the chambers of just 10 judges. Three judges accounted for a fifth of all Supreme Court clerks. So if you clerk for Judge Merrick B. Garland in D.C. or Judge Alex Kozinski on the 9th Circuit, you’re in luck!

A 2008 study found that clerks that identified themselves as Democrats increased the chances of a liberal vote by their judge in the same manner as a Republican clerk/conservative justice combination.

New Justice Elana Kagan‘s clerks for her first term, incidentally, show another popular trend – clerks who clerked for other justices. Kagan took former clerks of Justices Ruth Bader Ginsburg, Breyer and Anthony M. Kennedy.

Remembering Myra Bradwell

My colleague Brendan Kearney’s article Monday about a female paramedic’s allegation she was blackballed by the city of Crisfield’s volunteer fire department because of her sex hearkens to a time, hopefully bygone, when the ol’ boys’ network was alive and well and Myra Bradwell wanted to be a lawyer.

Does the name ring a bell? If not, think back to your Constitutional Law class.

In the late 1800s, Illinois denied Bradwell a license to practice law — and it wasn’t because she failed the bar exam.

So she did what any self-respecting, should-have-been-admitted lawyer would do: She took her case all the way to the Supreme Court.

Her attorney argued that Illinois had violated Bradwell’s constitutional rights under the Privileges and Immunities Clause by not giving her the license she had earned and deserved.*

The high court, in a well-reasoned part of Justice Samuel F. Miller‘s 1873 majority opinion, rejected that argument and said a law license is not among the privileges of citizenship.*

But it was Justice Joseph P. Bradley who, in a concurring opinion, gave a spirited defense of good ol’ boy networks when he characterized Bradwell’s case as bigger than the Constitution:

“[T]he civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life…. It is true that many women are unmarried and not affected by any of the duties, complications, and incapacities arising out of the married state, but these are exceptions to the general rule. The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society must be adapted to the general constitution of things, and cannot be based on exceptional cases.”

*It would be another 100 years before anyone — read: then-attorney Ruth Bader Ginsburg — would successfully argue that gender discrimination by a governmental body violates the Equal Protection Clause.

Pensions and Pregnancy

For Justice Ruth Bader Ginsburg, it must be a case of deja vu all over again, as Yogi Berra would say.

The Supreme Court, over her dissent Monday, upheld a provision of an AT&T Corp. pension program that had subtracted from the retirement plan’s calculation of seniority the time female workers took off to give birth. The court held in AT&T Corp. v. Hulteen that women who took leave before 1978 suffered no illegal discrimination because federal law did not equate pregnancy bias with sex discrimination in those days.

The justices, in a 7-2 vote, said the precedent back then was General Electric Co. v. Gilbert, a 1976 decision in which the high court stated that “an exclusion of pregnancy from a disability-benefits plan providing general coverage [was] not a gender-based discrimination at all.”

The Gilbert decision prompted Ginsburg — then a women’s rights attorney — to co-author a New York Times column urging Congress to amend Title VII of the 1964 Civil Rights Act and classify pregnancy discrimination as illegal gender bias. Congress agreed and enacted the 1978 Pregnancy Discrimination Act.

Now more than 30 years later, Ginsburg has returned to the fight, saying the current court has paid insufficent heed to the PDA.

“Congress put the court back on track in 1978 when it amended Title VII to repudiate Gilbert‘s holding and reasoning,” Ginsburg wrote on Monday, in a dissent joined by Justice Stephen G. Breyer. ”Congress’ swift and strong repudiation of Gilbert, the court today holds, does not warrant any redress for the plaintiffs in this case.”

Equality, Sex and Gender

Feminist author Marilyn French, whose 1977 novel The Women’s Room added fuel to the fire of the Equal Rights Movement, died this month.

French’s death, coupled with speculation that President Obama will name a woman to succeed retiring Supreme Court Justice David Souter, got me thinking of the court’s only current female member and how she also sought gender equality in the 1970s.

Ruth Bader Ginsburg’s feminism resided in the courtroom, where as a civil rights attorney she led the high court to rule that women are a “suspect class” under the Constitution’s Equal Protection Clause.

Government may favor one gender over another in law or policy only when the favoritism is substantially related to achieving an important governmental goal, the court said.

The ruling led to the end of paternalistic policies, such as those that had permitted widows – but not widowers — to get Social Security benefits for their dependent children.

Ginsburg, now 76, waged this legal battle for equality with humor.

At her Supreme Court confirmation hearing in 1993, Ginsburg explained why the legal community should refer to the evil as “gender” discrimination.

“In the 1970’s when I was [teaching] at Columbia [University law school] and writing briefs, articles and speeches about distinctions based on sex, I had a  bright secretary,” Ginsburg told the Senate Judiciary Committee. “She said one day, ‘I have been typing this word, sex, sex, sex,  over and over. Let me tell you, the audience you are addressing, the men you are addressing’ – and they were all men in the appellate courts in those days – ‘the first association of that word is not what you are talking about. So I suggest that you use a grammar-book term. Use the word ‘gender.’ It will ward off distracting associations.’”

Sole female justice speaks

I’m not particularly shocked by Justice Ruth Bader Ginsburg’s statements in a USA Today story today about how her own colleagues sometimes don’t pay her the respect she deserves, but I am disappointed.

USA Today Supreme Court reporter Joan Biskupic writes:

Ginsburg, 76, a former women’s rights advocate whom President Clinton named to the high court in 1993, recalled that as a young, female lawyer her voice often was ignored by male peers. “I don’t know how many meetings I attended in the ’60s and the ’70s, where I would say something, and I thought it was a pretty good idea. … Then somebody else would say exactly what I said. Then people would become alert to it, respond to it.”

Even after 16 years as a justice, she said, that still sometimes occurs. “It can happen even in the conferences in the court. When I will say something — and I don’t think I’m a confused speaker — and it isn’t until somebody else says it that everyone will focus on the point.”

Sad.

In the interviews for the story, conducted before Ginsburg’s colleague David Souter announced his retirement, Ginsburg also says:

“Women belong in all places where decisions are being made. I don’t say (the split) should be 50-50. It could be 60% men, 40% women, or the other way around. It shouldn’t be that women are the exception.”

So here’s my question: most court-watchers seem to be convinced that the president will nominate a woman to replace Souter. And if Ginsburg leaves the court during Obama’s presidency (the 76-year-old justice has pancreatic cancer but wants to continue to serve), I’d guess Obama would nominate another woman to fill her seat. (Otherwise, we’d be right back at 1 of 9.) But what if Obama gets the chance to nominate a replacement for one of the sitting male justices? We’ve already had 2 of 9 when Ginsburg and Sandra Day O’Connor were both on the court. Shall we go for 3 of 9?

What are the odds?

HT: How Appealing