Friday, January 31, 2014

Defense Attorney Gives Christie's Office Discount Rate Of $650 An Hour

Life is good for Randy Mastro. - gwc

Defense Attorney Gives Christie's Office Discount Rate Of $650 An Hour:
The high-powered attorney hired by New Jersey Gov. Chris Christie's (R) office to defend it in the bridge scandal will be giving the administration a big break on his bill.
The Bergen Record reported Thursday that the attorney, Randy Mastro, will be paid $650 -- a 40 percent discount off his normal rate.
According to a retention letter obtained by the Record, Mastro will help the governor's office with an internal review of the lane closures, as well as with "document retention and production in connection with the United States Attorney inquiry, and other appropriate inquires and requests for information.”

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Rep. Henry Waxman will retire

Rzf7gxvjtbiz9nq1lkhpThere are few legislators who can point to the record of accomplishment that Henry Waxman can rightly claim.  The list below taken from this document issued by the House Energy and Commerce Committee is impressive.  His work over forty years has changed our lives. - GWC

The Affordable Care Act, which gives all Americans access to affordable health insurance, strengthens Medicare and Medicaid, and reduces the deficit.
Medicaid and CHIP Expansions, which extended the coverage and benefits available to millions of needy and working families.
Nursing Home Reforms, which stopped the industry’s worst abuses and protected the rights of vulnerable residents.
The Waxman-Hatch Generic Drug Act, which gave rise to the generic drug industry, saving consumers over $1 trillion in the last decade alone.
The Orphan Drug Act, which gave drug companies incentives to develop treatments for rare diseases they had previously ignored.
The Ryan White CARE Act, which provides medical care and other services to Americans living with HIV/AIDS.
Women’s Health Initiatives, including the laws establishing standards for mammography, requiring the inclusion of women in clinical trials, and creating the Office of Research on Women’s Health at NIH.
The National Childhood Vaccine Injury Act, which strengthened FDA oversight of vaccine manufacturers and created a no-fault compensation system for vaccine-related injuries.
FDA User Fee Laws, which raise hundreds of millions of dollars each year from drug and device manufacturers to fund vital FDA functions.
The Nutrition Labeling Act, which mandated the ubiquitous and popular nutrition labels that consumers rely upon to compare packaged foods.
The Food Quality Protection Act, which established a strong health-based standard for pesticide residues in food.
The Food Safety Modernization Act, which sets science-based standards for the safe production and harvesting of raw agricultural commodities and requires new preventative controls for companies that process or package foods.
Cigarette and Smokeless Tobacco Health Warning Laws, which required rotating Surgeon General warnings on cigarette packages and advertisements and the first health warnings on smokeless tobacco packages and advertisements.
The Family Smoking Prevention and Tobacco Control Act, which restricted the marketing of cigarettes and smokeless tobacco to children and gave FDA jurisdiction over tobacco products.
The Safe Medical Devices Act, which enhanced public protection from dangerous medical devices by requiring mandatory reporting of adverse events and surveillance and tracking of implantable devices.
The Drug Quality and Security Act, which strengthens FDA’s authority over compounded drugs and creates a uniform system for tracking drugs to prevent counterfeits.
The 1990 Clean Air Act Amendments, which established new programs to reduce urban smog, hazardous air pollution, and acid rain and prevent the depletion of the stratospheric ozone layer.
Safe Drinking Water Act Amendments, which strengthened the standards for drinking water and established funding mechanisms for drinking water infrastructure improvements.
Laws Reducing Childhood Lead Exposure, including laws removing lead from plumbing supplies, water coolers, and children’s toys, requiring disclosure of lead hazards during real estate transactions, and setting standards for safe renovations.
The Formaldehyde Standards Act, which set minimum standards for formaldehyde levels from plywood, fiberboard, and particleboard.
Laws Reducing Greenhouse Gas Emissions, including provisions requiring greater efficiency in federal buildings and procurement of clean vehicles.
Spectrum Reforms, which will ease the nation’s growing spectrum shortage, enable new “super WiFi” applications, and create a nationwide broadband network for first responders.
The 21st Century Video and Communications Accessibility Act, which increases the access of persons with disabilities to smart phones and other modern communications devices.
Procurement Reforms, which enhanced competition, transparency, and accountability in government contracting to reduce waste, fraud, and abuse.
The Postal Accountability and Enhancement Act, the first major overhaul of the U.S. Postal Service since 1970.
Waste, Fraud, and Abuse, identifying over $1 trillion in wasteful and mismanaged federal contracts, including billions of dollars of wasteful spending in Iraq and the response to Hurricane Katrina.
Misleading Intelligence, exposing over 200 misleading statements by senior Bush Administration officials about the threat posed by Iraq.
The Tobacco Industry, revealing decades of industry concealment of the dangers of smoking and the addictiveness of nicotine.
Steroids in Baseball, uncovering the extent of players’ illegal drug use during baseball’s “steroids era” and prompting major reforms in steroid policies in baseball and other sports.
Politicization of Science, disclosing dozens of instances in which Bush Administration officials distorted or misrepresented science, such as funding misleading abstinence-only education programs or censuring climate experts.
The Wall Street Collapse, examining the fall of Lehman Brothers and AIG, the failure of the credit rating agencies, and the negligence and mistakes of market regulators.
The Gulf Oil Spill, disclosing a series of overlooked warnings and risky decisions made by BP to reduce costs and save time.

Wednesday, January 29, 2014

Monday, January 27, 2014

GOP Obamacare "Alternative" - goodbye to all that

The Senate's old-new Obamacare alternative features reductions in Medicaid, reductions in premium subsidies, and loopholes to allow insurance companies to refuse to insure people, charge more to older people and dramatically increase the number of people with no health insurance which for some reason that escapes me seems to be a major policy goal of today's reactionary GOP.  If you are a glutton for punishment, the whole thing is HERE. - GWC

TPM reports: GOP Senators Offer Yet Another Obamacare Replacement

"The legislation is put forward by Republican Sens. Orrin Hatch (UT), Tom Coburn (OK) and Richard Burr (NC). It would begin, like its predecessors, with repealing Obamacare.

But the bill would keep some of the law's more popular provisions, namely allowing children to stay on their parents' insurance until age 26. Otherwise, it would roll back the law's reforms to the insurance industry, doing away with the individual mandate, rules regulating premiums based on age and the requirement that insurers not discriminate against anybody with pre-existing conditions.

Here's what it would do:
Insurers are banned from discriminating against people with pre-existing conditions -- if those people have had insurance for the previous 18 months, a significant step back from Obamacare's reforms that unilaterally prohibits discrimination based on health conditions.
Americans with incomes up to 300 percent of the federal poverty level would be eligible for an age-adjusted tax credit to help purchase private insurance. A new federal office would be responsible for administering the tax credits.
Medicaid would be reformed as a quasi-block grant. States would receive a capped allotment based on their number of residents under the federal poverty level. States would be given flexibility to reform their Medicaid programs using those dollars. People eligible for Medicaid would also be able to access tax credits to purchase private coverage.The senators said that the bill would be budget-neutral by capping the currently unlimited tax exclusion for employer-provided health coverage."

SCOTUS has chance to overrule Korematsu - Adam Liptak, NY Times

Japanese await train to detention camps - 1942

The approval of the internment of Japanese Americans ranks with Dred Scott as the worst decision of the U.S. Supreme Court, Justice Antonin Scalia has said.  Yet the court has never formally overruled the 1944 Korematsu decision.  Despite being urged to do so many times in the past seventy years.  It has another chance, thanks to the perseverance of Peter Irons, activist lawyer and constitutional law professor from the University of San Diego. The chance comes in a challenge by journalists who find unconstitutionally vague and dangerous Congress's 2011 affirmation of the post September 11, 2011 Authorization for the Use of Military Force which has been relied upon for the war in Afghanistan and detention without charge or trial at Guantanamo Bay.  Adam Liptak reports:

A discredited ruling that still stands, Technically

In urging the Supreme Court to hear their case, Hedges v. Obama, No. 13-758, the plaintiffs challenging the law asked the justices to consider whether Korematsu should be overruled.
The new case is hardly an ideal vehicle. The federal appeals court in New York dismissed it, saying that the plaintiffs had not suffered the sort of injury that gave them standing to sue, and it said nothing about Korematsu. Solicitor GeneralDonald B. Verrilli Jr. will presumably oppose a Supreme Court review on the grounds that the appeals court’s ruling on standing was correct.
But Peter H. Irons, a lawyer who discovered evidence of government misconduct in the Korematsu case and later helped its namesake, Fred Korematsu, wipe out his conviction, for remaining in a restricted military area, said the new case represents an opportunity.
He and other lawyers recently wrote to Mr. Verrilli to ask him to join the plaintiffs in asking that Korematsu be overruled. They reminded Mr. Verrilli that his predecessor, Acting Solicitor General Neal Kumar Katyal, had in 2011 issued a“confession of error” for the actions of government lawyers in the Korematsu case. Those lawyers, over the protests of underlings, had twisted and withheld evidence from the Supreme Court.
Mr. Katyal spoke for the executive branch. Congress has also addressed the matter.
In 1982, a congressional commission concluded that the internment of Japanese Americans was “a grave injustice” animated by “race prejudice, war hysteria and a failure of political leadership.” It added that “the decision in Korematsu lies overruled in the court of history.”
But not in the court that issued it. “The Supreme Court is the last branch of government to formally apologize and renounce this,” Mr. Irons said in an interview.
He said the Hedges case could provide an opportunity even if the court declined to hear it, as it is not unusual for justices to append statements to orders denying review. “It would be a very symbolic gesture on the court’s part, especially if it is joined by a majority of the justices,” Mr. Irons said of such a statement.

Sunday, January 26, 2014

What's The Matter With Jersey?Understanding the Garden State's Deep and Bipartisan Culture of Corruption

Republican Chris Christie and Democrat George Norcross - deal makers
To understand what's going on in New Jersey - and what Chris Christie's bipartisanship is about, you need to know that the biggest player on the Democratic side is George Norcross - the deal maker.  The Governor of New Jersey has almost no constraints.  He appoints everyone.  He can veto any legislative appropriation (the line item veto) but still the money must be appropriated by the Legislature.  So an opposition party majority has leverage.  To do what?  To make deals: to move around assets like universities, arenas, build roads and bridges.  That is what New Jersey politics is about.  It is not about the petty corruption which is no more common in New Jersey than anywhere else. Brian Murphy explains. 

But there is one more very important element to add to Brian Murphy's observations: except for the initial appointment process, the judiciary has been completely insulated from this ordinary political horse-trading.  Once a judge was appointed to the initial seven year term, renomination and confirmation for tenure was assured by custom (except for misconduct, incompetence, or temperament issues).  
Mandatory retirement at age 70 assured governors and legislators of a steady pool of vacancies to fill , allowing a high degree both of bipartisanship and a generally centrist judiciary.  When Chris Christie came in he broke that mold - as he announced he would.  His refusal to nominate for tenure John Wallace - a very senior judge who had given up tenure on the Superior Court - who had only eighteen months to go to retirement broke that egg.  Democrats rebelled and the Supreme Court appointment process has been broken.   Like Humpty Dumpty there has been no putting it back together.  

The recent shocker was Christie's refusal to nominate for tenure the most conservative member of the Supreme Court - Helen Hoens - the wife of a close adviser and prominent statehouse and court reporter.  She had served for almost twenty years as a judge and was universally respected for diligence and competence.  She was sacrificed in favor of Fausto Fernandez, an apparently well-liked south Jersey trial judge of no particular distinction.  Speculation for the choice includes his Cuban-American ethnicity and apparent acceptability to the Norcross wing of the Democratic party - the most prominent member of which is Senate President Stephen Sweeney.  But the standoff with the Democrats is not over.  Two vacancies remain n the high court. And Chief Justice Stuart Rabner's term expires June 29! 

That horse-trading has entered the tenure process - along with the many other attacks on judges when Christie disagrees with them - has deeply alarmed the entire state bar.  The  judiciary and bar have long rightly considered themselves a bastion of competence and integrity.  They fear that the state's highly regarded judiciary will be swept into the vortex of horse-trading and deal-making.
- gwc
What's The Matter With Jersey?Understanding the Garden State's Deep and Bipartisan Culture of Corruption:
by Brian Murphy

George Norcross III, an insurance executive and former chairman of the Camden County Democratic Party in South Jersey, was seen everywhere in the state house. Norcross had gotten rich by selling his insurance business to Commerce Bank, which was then winning accounts with municipalities, state authorities, county governments, and other public entities across the state. He was on the board of directors of Cooper Hospital in Camden. He was a key fundraiser for McGreevey. He recently bought a majority stake in the Philadelphia Inquirer. Norcross was and remains a hand visible and invisible in New Jersey politics, and one cannot understand the state without appreciating the alliances he forged in North Jersey that allowed him to hand-pick the current assembly speaker and senate president while also backing Chris Christie’s 2013 re-election campaign. Those alliances are not grounded in goodwill, but are the product of hard-fought back room politics and are sustained by the lifeblood of all New Jersey political alliances: money....
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Another Strike at Gay Discrimination | New Jersey Law Journal

Judge Reinhardt's opinion barring lawyers' use of peremptory strikes to remove gay jurors is noteworthy because it  is driven by two key opinions by Justice Anthony Kennedy in Lawrence v. Texas and Windsor v. U.S., which have elevated distinctions based on sexual orientation to a classification that requires heightened scrutiny similar to that accorded discrimination based on gender.  Ed Whelan at National Review online views this as "mischief' by a liberal "arch-activist".  No shame in that but Whelan is right that Reinhardt is drawing from Windsor a principle not expressly adopted - that gender differences are subject to heightened scrutiny.  Even in her moment of triumph in U.S. v. VMI Justice Ginsburg was not able to get the majority to embrace strict scrutiny of gender classifications. - GWC

Another Strike at Gay Discrimination | New Jersey Law Journal -by the Editorial Board:
The United States Court of Appeals for the Ninth Circuit last week barred the use by lawyers of peremptory challenges of potential jurors on the ground that the venireman (to use the old phrase) is gay or lesbian."Gays and lesbians have been systematically excluded from the most important institutions of self-governance," Judge Stephen Reinhardt wrote for a unanimous three-judge panel in SmithKline Beecham (GSK) v. Abbott Laboratories. "Strikes exercised on the basis of sexual orientation continue this deplorable tradition of treating gays and lesbians as undeserving of participation in our nation's most cherished rites and rituals."This decision extends a line of cases that began in 1986 when, in Batson v. Kentucky, the Supreme Court barred racially based peremptory strikes. Then in 1994, the court began to extend the principle to women. In J.E.B. v. Alabama, it held that when the gender of the juror coincided with the subject matter of the case, the potential for an impermissible strike based on sex increased substantially. The current dispute arose from GSK's allegation of unfair trade practices by Abbott that drove up the price of a GSK HIV drug that Abbott had licensed. HIV drugs are of particular salience among San Francisco's homosexual community, which was among the hardest hit when the epidemic first appeared 35 years ago.....
Read more:

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Saturday, January 25, 2014

Xu Zhiyong, Chinese Rights Advocate Releases Statement on Goals -

Beijing City - 1st Intermediate People's Court
The Chinese Communist Party is well aware of the frictions created  by the country's rapid and uneven development.  And it is well aware of the cynicism of much of the population toward the government.  Like Americans Chinese people greatly overestimate the degree of official corruption, and are quick to believe the worst of government officials.  In China's case the problem is complicated by the revolutionary heritage and utopianism that drove the CP during the revolutionary period and the Cultural Revolution.  There is, therefore, a large audience for activists like Xu Zhiyong and his colleagues in the New Citizens movement.  Though they are few the CP sees such groups as presenting a large potential challenge - and has decided not to tolerate them.  But since Chinese law protects free expression offenses like creating public disorder must be relied upon even if the evidence is slim to none. 

Xu Zhiyong has now been sentenced to four years for creating public disorder. (court judgment HERE; translation in progress)  His real offense is that he is an open activist and organizer for a western-style multi-party democracy.  The issues around which he has agitated (e.g. the system of residential registration which creates an underclass of urban immigrants who do not have the same access to education and wages as local residents) are recognized as issues to be addressed by the central authorities.  It is not the activism but the ideology that Xu advances that causes the authorities to move against him.  The core language follows. - GWC
Chinese Rights Advocate Releases Statement on Goals -

Good politics is a result of true democracy and rule of law. On every level, the government and the legislature must be elected by the people. The power to govern should not come from the barrel of a gun but through votes.Under true democracy and rule of law, politics should be carried out within the the rule of law. Political parties should compete fairly and only those that win in free and fair elections are qualified to govern.Under true democracy and rule of law, state powers are scientifically separated and mutually subject to checks and balances; the judiciary is independent and judges abide by the law and conscience.Under true democracy and rule of law, the military and the police are state organs and should not become the private property of any political party or vested interest group.Under true democracy and rule of law, the media is a social organ and should not be monopolized to be the mouthpiece of any political party or vested interested group.Under true democracy and rule of law, the constitution stipulates and actualizes sacred civil rights, including the right to vote, freedom of speech and freedom of belief. The promise of people’s power should not be a lie.These modern democratic values and measurements are rooted in common humanity. They should not be Eastern or Western, socialist or capitalist, but universal to all human societies

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Bankrupt Dewey LeBoeuf Partner's Straits Exposed

It's a worst  case scenario from one point of view- the lawyer whose bankruptcy petition - is linked to an essay by a widely read reporter/commentator. But it is the illustrative quality, not scandal that got Owens in the paper.  Fortunes can be made as partners in law firms but they can also be lost.  When business "heads south" and you are on the hook for a lease, and other debt incurred by a high-flying law firm the crash can be deep.  For Owens it meant a job as a non-equity partner at White & Case.  lets get non-equity partner straight.  It's not a partnership - you don't own anything.  Nor owe anything! - GWC
Gregory Owens, former Dewey LeBoeuf Partner, files for bankruptcy relief - NY Times
by James B. Stewart 

Mr. Owens has been well paid by most standards, but not compared with top partners at major firms, who make in the millions. (Mr. Pierce was guaranteed $8 million a year at Dewey & LeBoeuf.) When Mr. Owens first became a partner at Dewey, Ballantine, he made about $250,000, in line with other new partners. At Dewey & LeBoeuf, his income peaked at over $500,000 during the flush years before the financial crisis. In 2012, he made $351,000, and last year, while at White & Case, he made $356,500. He listed his current monthly income as $31,500, or $375,000 a year. And he has just over $1 million in retirement accounts that are protected from creditors in bankruptcy.
How far does $375,000 a year go in New York City? Strip out estimated income taxes ($7,500 a month), domestic support ($10,517), insurance ($2,311), a mandatory contribution to his retirement plan ($5,900), and routine expenses for rent ($2,460 a month) transportation ($550) and food ($650) and Mr. Owens estimated that he was running a small monthly deficit of $52, according to his bankruptcy petition. He has gone back to court to get some relief from his divorce settlement, so far without any success.
In his petition, Mr. Owens said he didn’t expect things to get any better in 2014.

Wednesday, January 22, 2014

Cheating a way of life for those who manage ICBM's

The triad, the land, sea, air nuclear forces have long been (at least since the Cuban Missile Crisis) an expensive piece of kabuki theater.  No one is ever going to use them, so it is pretty much of a joke to keep them in launch on a moment's notice mode.  As a matter of fact, nuclear weapons are already outlawed.  No one who might actually use them is allowed to have them.  The drama with Iran is because they act like they actually believe the Israelis would use their against Iran.  But the Israelis won't either.  They would never risk the utter opprobrium that would accompany actual use.  Making Israel the object of universal condemnation would be an unthinkable mistake.  So it's kabuki theatre for them too.

In that context we should not be surprised, as the Times reports today that cheating on tests of proficiency and competence is endemic among those who manage and maintain our arsenal.  It's pretty silly to be told to maintain a sharp edge when the result of sleeping for twenty years like Rip Van Winkle would be safer than maintaining genuine operational readiness.  Because only a fool or a madman would order the damn things to be used.

WASHINGTON — Top military officials were quick to voice outrage over revelations last week that 34 officers responsible for launching the nation’s nuclear missiles cheated on monthly proficiency tests, but few expressed surprise.
Cheating has been a fact of life among America’s nuclear launch officers for decades, crew members and instructors said. “When I saw that they got something wrong, I would say, ‘Go back and look at No. 5 again,'” said Brian Weeden, a former launch officer at Malmstrom Air Force Base in Montana who said that he routinely asked new crew members to show him their test answers before they turned them in.

Another step up - Gays may not be barred from juries

Judge Stephen Reinhardt
As Adam Liptak reports in the Times today, the United States Court of Appeals for the 9th Circuit yesterday barred the use by lawyers of peremptory challenges of potential jurors on the ground that the venireman (to use the old phrase) is gay or lesbian:
“Gays and lesbians have been systematically excluded from the most important institutions of self-governance,” Judge Stephen R. Reinhardt wrote for a unanimous three-judge panel. “Strikes exercised on the basis of sexual orientation continue this deplorable tradition of treating gays and lesbians as undeserving of participation in our nation’s most cherished rites and rituals.”
Like Justice Anthony Kennedy in Edmonson v. Leesville Concrete , 500 U.S. 614, 631 (1991)(extending the bar on racial challenges to civil cases) the 9th Circuit in Smith Kline Beecham v. Abbott Laboratories focuses on the citizenship rights of the juror, rather than the denial to a litigant of a jury of his/or her peers.  Driving the dispute is GSK's allegation of unfair trade practices by Abbott who drove up the price of GSK's HIV drug that Abbott had licensed.  HIV drugs are of particular salience among San Francisco's homosexuals - a community that was among the hardest hit when the epidemic first appeared thirty five years ago.  

The ACA's Obamacare Problem - Jonathan Bernstein // American Prospect

Jonathan Bernstein is right.  The ACA is a reform of the insurance markets and an expansion of Medicaid.  People who have insurance will think they bought private insurance and willbe little aware of the subsidies that made it affordable.  People on Medicaid will think they have Medicaid, or MediCal, or whatever.  They'll still be against Obamacare, or for it but they won't see this as a government program when they go to Covered California or They'll think they're buying insurance - and that it costs too much and covers too little.  - gwc
The ACA's Obamacare Problem:
by Jonathan Bernstein
From the very beginning, and certainly before Democrats also adopted “Obamacare” as the shorthand name for health-care reform, Republicans have strongly opposed a fantasy version of the landmark legislation. Whether it was “death panels,” or “government takeover,” or any number of wacky claims in chain emails, Republican opposition has rarely been focused on what’s actually in the ACA.And no matter how successful reform turns out to be, that’s unlikely to change.See, the funny thing about the Affordable Care Act is that a whole lot of it will either be invisible or, oddly enough, won’t be identifiable as “Obamacare.” The core of the program is the system of health-insurance exchanges and subsidies, but little or none of these operations will have the words “Affordable Care Act,” much less “Obamacare,” attached to them. Nor are the exchanges what people think of going in as Obamacare. The latest Kaiser health reform tracking pollhas only 22 percent of respondents saying they’ve heard “a lot” or “some” about the exchanges (and among the unemployed, that number is only 12 percent). So there’s little expectation built up that health reform should be judged by how the exchanges work.

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Tuesday, January 21, 2014

Balkinization: Hobby Lobby Part IV: The Myth of Underinclusiveness

Balkinization: <i>Hobby Lobby</i> Part IV: The Myth of Underinclusiveness:
by Marty Lederman  // Georgetown Law School
As I explained in an earlier post, the Affordable Care Act guarantees that virtually all Americans will be entitled to a wide array of “preventive health services,” which their insurance plan must make available without cost to plan participants and beneficiaries.  42 U.S.C. § 300gg-13.  These guaranteed cost-free services include cholesterol screening; colorectal cancer screening; diabetes screening for those with high blood pressure; certain immunizations; “evidence-informed preventive care and screenings” for infants, children, and adolescents, and “with respect to women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration.”  Id. § 300gg-13(a)(4). 
Hobby Lobby and Conestoga Wood are seeking a religious exemption from the requirement that their employee insurance plans provide coverage of one such preventive health service for women—namely, certain forms of FDA-approved birth control.  (I discuss in this post which methods of contraception might be implicated.) 
If the plaintiffs were to receive the relief they seek, it would mean that their female employees would have to pay for such contraception themselves—and thus they would not enjoy a virtually universal new health care benefit that will be available to more than 99% of other women in the United States.

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What Martin Luther King actually did - Hamden Rice

Martin Luther King, Coretta Scott King, John Lewis
This is a great essay by a Black man, six generations American, tracing ancestry back through slavery to Africa Jones and Mama Suki.  I remember my parents went to Charleston, South Carolina in the fifties because my father had a job interview.  They came back saying they could not live there because Black men stepped off the sidewalk into the street when they - a white couple - approached.  It is that world that Hamden Rice recalls.  It is that world that Martin Luther King led us out of. Read the whole thing.  Its power grows as you read. 
Daily Kos: Most of you have no idea what Martin Luther King actually did:
by Hamden Rice
This is what the great Dr. Martin Luther King accomplished. Not that he marched, nor that he gave speeches.He ended the terror of living as a black person, especially in the south.I'm guessing that most of you, especially those having come fresh from seeing The Help, may not understand what this was all about. But living in the south (and in parts of the midwest and in many ghettos of the north) was living under terrorism.  It wasn't that black people had to use a separate drinking fountain or couldn't sit at lunch counters, or had to sit in the back of the bus.  You really must disabuse yourself of this idea. Lunch counters and buses were crucial symbolic planes of struggle that the civil rights movement used to dramatize the issue, but the main suffering in the south did not come from our inability to drink from the same fountain, ride in the front of the bus or eat lunch at Woolworth's.It was that white people, mostly white men, occasionally went berserk, and grabbed random black people, usually men, and lynched them. You all know about lynching. But you may forget or not know that white people also randomly beat black people, and the black people could not fight back, for fear of even worse punishment.  This constant low level dread of atavistic violence is what kept the system running. It made life miserable, stressful and terrifying for black people.

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Robert McDonnell, former AG and Governor of Virginia indicted in gifts scandal

Former Virginia A.G. and Governor Robert McDonnell with wife Maureen
A federal grand jury in Virginia has charged former Governor and Attorney General Robert McDonnell and his wife with receiving illegal gifts from a businessman.  A political career and a law career wrecked will be the consequence of a shopping spree at Oscar De La Renta and Luis Vuitton.

The indictment is HERE.

Monday, January 20, 2014

Gideon’s Trumpet Heard Faintly Now

2013 saw the fiftieth anniversary of Gideon v. Wainwright - one of two U.S. Supreme Court decisions that year promising transformation of the criminal justice system.  Gideon promised lawyers to indigent defendants. Miranda v. Arizona promised that everyone facing accusatory interrogation would be informed of the right to silence and to call a lawyer.  

In the anniversary year public defender systems were in crisis.  Richard Lasnik, a federal district judge, appointed a monitor for two Washington State counties; Pennsylvania continued as the only state which provided no state assistance for indigent defendants, and even the Federal Pubic Defender services were hobbled by the draconian budget measure known as “sequestration”.  Immigrants facing deportation still have no right to counsel to defend them in their efforts to remain in the U.S. A few will benefit from federal District Judge Dolly M. Gee’s decision to recognize a right to representation for a class of persons with mental defect facing deportation. 
Gideon’s trumpet is heard faintly now.  The prospect grows dimmer that we will realize the promise of the Model Rules of Professional Conduct.  The Preamble identifies every lawyer as “a public citizen having special responsibility for the quality of justice” and to use our “influence to ensure access to our system of justice for all those who because of economic or social barriers cannot afford or secure adequate legal representation”.  That noble sentiment runs into enormous obstacles.  
When the financial crisis struck in 2008 the Federal Reserve reduce effective interest rates to near zero.  Interest on lawyers trust accounts plummeted.  Legal Services Corporation agencies cuts staffs by as much as half.  It is not easy for courts to take firm action today to realize the laudable goals of our profession.  They cannot themselves appropriate money, and elected officials faced with mandates may act against judges directly - as in New Jersey where a Governor can without stating a reason refuse to nominate for tenure any judge at the conclusion of the seven year term.  In other states judges face retention elections.
In New Jersey the Editorial Board of the Law Journal - the only statewide legal newspaper - has deplored the state Supreme Court’s refusal to review D.N. v. K.M.  There Justice Barry Albin - who has tenure - dissented alone from a denial of certification.  The Appellate Division had refused to appoint counsel for a respondent in a “civil” Domestic Violence action.  A finding of domestic violence has grave consequences.  They include reputational harm, a loss of custody of children; loss of possession of the family home; financial penalties; placement on the offender registry; and loss of the right to a weapons permit - devastating for a law enforcement officer for whom that is a job requirement.

Albin argued for appointment of counsel.  He pointed out that in New Jersey an indigent defendant must be assigned counsel in a civil case if he is facing termination of parental rights, N.J. Div. Of Youth & Family Services. v. B.R. (2007); tier classification in a Megan’s Law case, Doe v. Poritz (1995); involuntary civil commitment, In re S.L (1983); and contempt for violating a restraining order, State v. Ashford (N.J. App. Div. 2004).  But these are relatively narrow swaths of cases.  Domestic Violence Act cases, on the contrary, are numerous.  To protect women from violence the laws have made exclusionary orders readily available.  One result of this laudable goal is that people, especially in poor districts, now rely heavily on the police and the courts to intervene in and resolve domestic disputes.  In such a flood of cases unfounded claims are a substantial risk.

The timidity of the Supreme Court is understandable if regrettable.  Domestic Violence Act cases are so numerous that it would be a substantial burden on the bar if courts assigned counsel in all such cases.  And the appointment of lawyers with little experience or expertise in such matters would likely lead to representation of dubious quality.  As the majority pointed out in denying certification, a ruling affording counsel in such cases would be expensive; it would affect thousands of cases annually.  But fifty years ago such obstacles did not deter the U.S. Supreme Court.  In the current circumstances we recognize that fewer now than then are prepared to answer the call of Gideon’s Trumpet, as Anthony Lewis called the landmark opinion in his classic book. - GWC

Sunday, January 19, 2014

Federal Appeals Judge Martin retired under a cloud //TPM

34 four year veteran Boyce F. Martin, Jr. retired
from the 6th circuit Court of Appeals
Talking Points Memo reports that federal 6th Circuit Judge Boyce Martin did not resign last year because he was "at the top of his game" but rather because he was under investigation for improper spending.   the report of the Second Circuit Judicial Council is HERE.  Martin offered to repay $140,000 in challenge travel expenses.  - GWC

Judicial Conference Discloses Misconduct by Judge Richard Cebull

former District Judge Richard Cebull
Former U.S. District Judge Richard Cebull gained notoriety when it was disclosed he had circulate a racist email about President Obama.  The Montana Judge later resigned.  Investigation had revealed that he had forwarded hundreds of racist and sexist "joke" emails. The case was nearly buried as moot but Third Circuit Chief Judge Theodore McKee determinedly pressed the issue. The Judicial Conference of the United States has, after much prompting, issued its report - GWC
Striking A Blow For Transparency:
bu Richard Kurtz // TPM
Lifetime appointments to the bench, the legitimate need to keep judges apart from the political hurly burly, and their own institutional insularity combine to make the conduct of the federal judiciary extremely opaque and difficult to hold to account. So it's worth noting that on Friday, the Judicial Conference's Committee on Judicial Conduct and Disability, which reviews cases of misconduct by federal judges, published two different decisions involving judicial misconduct where the essential issue before the panel was whether to make public the alleged misconduct or keep it cloaked behind the judicial trappings of secrecy and confidentiality.
In both cases, the committee opted in favor of openness. How it got there -- and the backstory on both cases -- is fascinating.
by tpmdocs
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