Senate committee rejects Christie N.J. Supreme Court nominee Bruce Harris | NJ.com

Christopher Christie is reaping the whirlwind. The Governor who thrives on confrontation has met his match in willfulness on the New Jersey Senate Judiciary Committee.  The Democratic majority has rejected a second Supreme Court nominee.  Christie has vowed to remake the New Jersey high court.  He began by refusing to submit for tenure a highly experienced Supreme Court Justice - John Wallace on overtly ideological grounds.  A moderate Democrat and the Court's only African American, Wallace had tenure as a judge of the Superior Court but gave it up when he was confirmed for a seven year term on the Supreme Court.  A storm of bar criticism followed.  
Nominee Bruce Harris - a transactional lawyer, Yale Law grad, Black and gay,  announced that if confirmed he would recuse on the issue of gay marriage - which her personally supports.  That was a fatal error.  Democratic leader Ray Lesniak and others focused on that as marking Harris as a man who followed the orders of Christopher Christie - who had vetoed a gay marriage bill.
It is a whole new ball game as the New Jersey Supreme Court - which long functioned within a narrow range - RINOS and liberal Dems - is now the ground of overt ideological and partisan combat. - GWC
Senate committee rejects Christie N.J. Supreme Court nominee Bruce Harris | NJ.com:

 "Dealing Gov. Chris Christie his second bitter defeat over a high-ranking judicial appointment, the Senate Judiciary Committee today rejected the nomination of Mayor Bruce Harris of Chatham Borough to the state Supreme Court.
The Democrat-controlled committee voted 7 to 6 to turn away the 61-year-old Harris, the first openly gay and third African-American to be nominated to the state's highest court. State Sen. Brian Stack (D-Hudson), an ally of the Republican governor, was the only Democrat to vote in support of the nomination.
Christie's office declined to issue an immediate comment.

While Democrats hammered away at Harris for his lack of courtroom experience and his stated intention to recuse himself on same-sex marriage issues, Republicans fiercely came to his aid. They said his work as a finance attorney was as complex as any cases Supreme Court justices handle, and they praised him as a man who understands the dignity and honor the position requires."

'via Blog this'

Justice Stevens backs Obama critique of Citizens United decision

Speaking at the Clinton School of Public Service in Arkansas retired Associate Justice John Paul Stevens has strongly backed President Obama's State of the Union Address critique of the Supreme Court's decision in Citizens United v. Federal Election Commission.  And, he suggests, the court may move to narrow the impact of the ruling:


On January  27,  2010, in his State of the Union address, President Obama declared: 

"with all due deference  to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests - including foreign corporations- to spend without limit in our elections. I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities."! 

In that succinct comment, the former professor of constitutional law at the University of Chicago Law School made three important and accurate observations about the Supreme Court majority's opinion in Citizens United v. Federal Election Commission.
First, it did reverse a century of law; second, it did authorize unlimited election-related expenditures by America's most powerful interests; and, third, the logic of the opinion extends to money spent by foreign entities.

The full text is HERE 

Justice Department Clears Its Own Lawyers Of Intentional Misconduct In Stevens Prosecution « JONATHAN TURLEY

Justice Department Clears Its Own Lawyers Of Intentional Misconduct In Stevens Prosecution « JONATHAN TURLEY: "The U.S. Justice Department again showed how its protects its own in scandals involving government lawyers. The DOJ has long been notorious in refusing to seriously punish its own lawyers for wrongdoing while pushing the legal envelope on criminal charges against others...The DOJ is particularly keen in finding intentional violations or substitute for intent in federal rules — bending laws to the breaking point to secure indictments. However, when its attorneys are accused of facilitating torture or lying to the court or withholding evidence, the general response is a long investigation and then a slap on the wrist. This week is no exception. Waiting until late Thursday to inform Congress to guarantee a low media coverage, the DOJ announced that it had found no intentional violations by its attorneys in the failed prosecution of U.S. Senator Ted Stevens — despite the contrary finding made by an independent investigation. "

'via Blog this'

Japan as role model - Krugman

Not a particularly good one - but a lot better than us.  Somehow the pro-growth anti-tax Republicans who ruled from 2000 to 2008 drove a lot of people from the job market.  We are dealing with the consequences.  Their power to say no in Congress keeps things bad.  The graph devised by Paul Krugman isolates prime-working years men - because it keeps things simple. - GWC

James Fallows - Ask Dr. Popkin: On the Bain Imbroglio

Politics - James Fallows - Ask Dr. Popkin: On the Bain Imbroglio - The Atlantic:
Previously in the "Ask Dr. Popkin" series, see this entry with links to previous rounds. The big idea here is that political scientist Samuel Popkin, of UCSD and the recent book The Candidate, is applying his studies of how presidents run for re-election to this year's race.

Question: 
"So, Dr. Popkin, tell us what 'the Bain question' shows about the approach each campaign is taking to this campaign. Has Barack Obama been shrewd, or foolish and (gasp) 'divisive,' in saying that Mitt Romney's record at Bain Capital is a minus rather than a plus in his suitability to the economic problems of 2012. Is the Romney campaign doing the right thing in basing its appeal on his record as a 'job-creator,' in this time of chronic unemployment?"
CLICK ABOVE FOR THE ANSWER!!

'via Blog this'

Madoff Case Is Paying Off for Trustee ($850 an Hour) - NYTimes.com

A reasonable fee?
Madoff Case Is Paying Off for Trustee ($850 an Hour) - NYTimes.com:

Irving H. Picard, the court-appointed trustee seeking to recover funds for the victims of Bernard L. Madoff’s multibillion-dollar Ponzi scheme, has been described as a modern-day Robin Hood. For nearly four years, he has been working to pay back those who were swindled by Mr. Madoff, some who lost their entire life savings.

Yet a look at recent court filings shows Mr. Picard has had much more success collecting money for himself and a dozen law firms and consultants than any victim of Mr. Madoff’s crime.

So far, Mr. Picard’s efforts have created a whopping $554 million in legal and other fees. How much have Mr. Madoff’s victims actually received from all of the cases and motions he’s made? Only $330 million. And how much does Mr. Picard estimate the fee spigot will pour out by 2014? A mere $1 billion.

At $850 an hour, Mr. Picard and his law firm, Baker & Hostetler, are starting to look more like the princes of the Full Employment Act for Lawyers than storybook heroes.

'via Blog this'

Williams & Connnolly denounce light punishment of DOJ Lawyers

The 40 and 15 day suspensions imposed by the Department of Justice on the lawyers who withheld exculpatory evidence appears to be a bad joke.  That's the view of Brendan Sullivan and his colleagues at Williams & Connolly - defense counsel for the late Alaska Senator Ted Stevens who was denied a fiar trial.  Stevens died in a plane crash shortly after his conviction.  The full statement is HERE,

'via Blog this'

Obama v. Roberts - 2005 : James Fallows - the Atlantic

C.J. John Roberts

As the Supreme Court's decisions on "Obamacare" near, James Fallows looks back to the time of Chief Justice John Roberts confirmation.  The nominee famously (I thought disingenuously) spoke of "humility" and just "calling balls and strikes" - applying rules made by others.  Barack Obama - then a little known freshman Senator - joined twenty one other Democrats who voted to deny confirmation.  His words were prescient: 

"The problem I face...is that while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95% of the cases that come before a court... what matters on the Supreme Court is those 5% of cases that are truly difficult.

In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy.

In those 5% of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision.... In those difficult cases, the critical ingredient is supplied by what is in the judge's heart.

I talked to Judge Roberts about this. Judge Roberts...did say he doesn't like bullies and has always viewed the law as a way of evening out the playing field between the strong and the weak.

I was impressed with that statement because I view the law in much the same way. The problem I had is that when I examined Judge Roberts' record and history of public service, it is my personal estimation that he has far more often used his formidable skills on behalf of the strong in opposition to the weak. In his work in the White House and the Solicitor General's Office, he seemed to have consistently sided with those who were dismissive of efforts to eradicate the remnants of racial discrimination in our political process. In these same positions, he seemed dismissive of the concerns that it is harder to make it in this world and in this economy when you are a woman rather than a man.

I want to take Judge Roberts at his word that he doesn't like bullies and he sees the law and the court as a means of evening the playing field between the strong and the weak. But given the gravity of the position to which he will undoubtedly ascend and the gravity of the decisions in which he will undoubtedly participate during his tenure on the court, I ultimately have to give more weight to his deeds and the overarching political philosophy that he appears to have shared with those in power than to the assuring words that he provided me in our meeting.

Obama has already been proven right.  I fear the Court's decision, and hoe that - against the odds - John Roberts has learned something of humility.

Mitt Romney and The Mormon Constitution

When Mitt Romney said to applause at a campaign stop that he thought the U.S. "Constitution is certainly brilliant and probably inspired", I was disgusted.  I thought it a dog whistle signal to the Tea Party - not really his opinion, not the opinion of a Harvard Law School grad.  Wrong.  This sort of thing is part of the Mormon Constitution, as Gary Wills calls it at the New York Review blog.  A brilliant Mormon student of Wills's some years ago expressed the same view - describing divine inspiration of the Declaration of Independence as a Mormon position.  Indeed Romney's view can be found in the (pre-Civil War) LDS scripture  Doctrine & Covenants:

And for this purpose have I established the Constitution of this land, by the hands of wise men whom I raised up unto this very purpose, and redeemed the land by the shedding of blood (D&C 101:80).

Perhaps the divine signal was weak when the inspired founders drafted the fugitive slave clause, or awarded white men an extra 3/5 of a vote for every slave owned.

Louisiana - prison capital of the world

The hidden engine behind the state's well-oiled prison machine is cold, hard cash. A majority of Louisiana inmates are housed in for-profit facilities, which must be supplied with a constant influx of human beings or a $182 million industry will go bankrupt....

One of the legacies of slavery is racism - of which Louisiana has plenty.  But less recognized is that harsh punishment is another.  The New Orleans Times Picayune tells the story:

 Louisiana is the World's Prison Capital

by Cindy Chang - The Times Picayune

Louisiana is the world's prison capital. The state imprisons more of its people, per head, than any of its U.S. counterparts. First among Americans means first in the world. Louisiana's incarceration rate is nearly triple Iran's, seven times China's and 10 times Germany's.

SCOTT THRELKELD / THE TIMES-PICAYUNE Inmates return to their dormitory from the cafeteria at Richland Parish Detention Center in September.

  Prison overcrowding has become a thing of the past, even as the inmate population multiplies rapidly. Louisiana Incarcerated: state is No. 1 in prisoners gallery (19 photos)

Cory Booker = a surrogate for Cory Booker

For thirty years after graduating from Rutgers-Newark I practiced law on the outskirts of the City of Newark.  So I was a close but un-involved observer of its politics.  I never joined in the denunciation of Mayor Sharpe James [who - in my opinion - was convicted of a offense that was scarcely a crime.  Basically he tipped off a girlfriend who got a low but lawful price on a piece of property.]  And I have never joined in the praise of James's successor - the self-annointed superstar Cory Booker.
I have seen it before - the phenom who sees a president in the mirror (former  Essex County Executive Peter Shapiro and former Senator Bob Torricelli come to mind) and is taken down by the sin that felled Lucifer.  Talking Points Memo Publisher and founder Josh Marshall has Booker's number:

Notre Dame, Bishops file suit against contraception coverage mandate

The University of Notre Dame and a host of Catholic universities and dioceses have filed suit to declare unconstitutional the federal mandate that employers who provide health insurance include contraceptive and other reproductive services to employees without deductible.  Church-affiliated organizations - such as hospital and universities - may decline the coverage, in which case their insurers must provide it at their own expense.  Drafted by Jones Day (attorneys pro bono) and reportedly filed today in the federal court for the Northern District of Indiana the complaint in University of Notre Dame v. Sebelius begins:

This lawsuit is about one of America’s most cherished freedoms: the freedom to
practice one’s religion without government interference. It is not about whether people have a right to abortion-inducing drugs, sterilization, and contraception. Those services are, and will continue to be, freely available in the United States, and nothing prevents the Government itself from making them more widely available. But the right to such services does not authorize the Government to force the University of Notre Dame (“Notre Dame”) to violate its own conscience by making it provide, pay for, and/or facilitate those services to others, contrary to its sincerely held religious beliefs. American history and tradition, embodied in the First Amendment to the United States Constitution and the Religious Freedom Restoration Act, protects religious entities from such overbearing and oppressive governmental action. Notre Dame therefore seeks relief in this Court to protect this most fundamental of American rights.

Catholic University of America President John Garvey explains "Religious institutions are not seeking to control what their employees buy, use, or do in private; they are trying to avoid being conscripted by the government into acting in a way that would be inconsistent with their character, mission, and values.".

The key word here is "facilitate".  The compromise offered by defendant Secretary of Health Kathleen Sebelius relieves the Church-related organizations from the burden of payment and provision, shifting that cost to insurers.  The complaint concedes the right of people to abortifacient drugs like RU 486, to sterilization, and contraception.  Its centerpiece is the "facilitation" argument.  Complicity in evil is the core argument.  Informing students, employees, and patients that contraceptive, sterilization or abortion-inducing drugs are available without cost through the insurer, it is alleged, constitute a form of speech and conduct which compels Notre Dame and other Catholic organizations to violate their conscience.

The courts will have to decide if provision of such widely employed health services is a general requirement justified by the federal power to regulate commerce of if seen as compelled conduct or speech is sufficiently narrowly drawn to avoid unduly burdening the Catholic Church's right to preach and otherwise adhere to its prohibitions of artificial contraception, including drugs or surgery which prevent conception.

In Employment Division v. Smith Justice Antonin Scalia, upholding a discharge for cause (use of mescaline in a religious ritual),  has explained that "[l]aws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices".  A key argument will be whether religious employers' provision of such limited health insurance is a "practice" which may be regulated or a choice which must be accommodated and respected.  For this the courts will have to balance the interests of beneficiaries who need or elect such care against those of religious employers who object to such methods.

Taking on the F Word - Joshua Green - Boston Globe

Time to take on the F word - filibuster.  Josh Green explains in the Boston Globe:

 Let’s take only the Obama presidency. Had the filibuster not applied, the United States would have a market-based system to control carbon emissions, which would limit the damage from global warming, vitalize the clean technology sector, and challenge other large polluters like China and India to do the same. The new health care law would have a public option. Children of undocumented immigrants who served two years in the military or went to college could become US citizens. Women paid less than their male colleagues because of their gender would have broader legal recourse against their employers. Billionaires would not be able to manipulate the political system from behind a veil of anonymity.

h/t James Fallows - the Atlantic

Cory Booker - Surrogate from Hell

"“Enough is enough,” Cory Booker said. “Stop attacking private equity. Stop attacking Jeremiah Wright.”
on Meet the Press, May 20, 2012

As Steve Kornacki writes in Salon, Booker is the Surrogate from Hell. These `balanced' remarks are a stab in Obama's back. Newark Mayor  Cory Booker, self-annointed superstar skillfully signaled to the tycoons that there'll be no economic populism on his part. Kornacki elaborates:

"He added: “I have to just say from a very personal level, I’m not about to sit here and indict private equity. To me, it’s just we’re getting to a ridiculous point in America. Especially that I know I live in a state where pension funds, unions and other people invest in companies like Bain Capital. If you look at the totality of Bain Capital’s record, they’ve done a lot to support businesses, to grow businesses. And this, to me — I’m very uncomfortable with.”

Playing up Romney’s Bain record is, of course, central to Obama’s general election plan. Romney is running as a business-savvy “job creator” and relying on the public’s tendency to associate private sector success with economic competence. There is no overstating how vital it is for Obama and his campaign to break that link, and to establish that Romney’s real expertise is in making investors rich – not adding jobs and improving the quality of life for middle class workers.

In belittling this strategy, Booker isn’t just breaking with Obama, he’s breaking with just about everyone who’s ever run against Romney – including Ted Kennedy, who used criticisms of Bain’s treatment of workers to pull away from Romney in their 1994 Senate race. Essentially, Kennedy created the blueprint that Obama is now using. Booker is also providing Republicans with a dream talking point: A top Obama surrogate not only disapproves of Obama’s use of Bain, he finds it nauseating!"

Chen Guangcheng arrives in New York

Chen Guangchengwith Prof. Jerome Cohen

Chen Guangcheng, the blind Chinese activist, arrived in New York today.  His cause has long been championed by NYU Law Professor Jerome Cohen, who dubbed him the "barefoot lawyer", though he has no legal training.  Until now, when, I expect, Prof. Cohen and NYU will try to solve that problem - and find a means for Chen and his wife to sustain themselves here.
Brian Lehrer interviews Prof. Cohen about Chen on WNYC HERE

Celebrex Class action vs. Pfizr may proceed

"A federal judge has refused to dismiss a class-action suit accusing Pfizer Inc. of securities fraud for failing to disclose relevant data from a study it conducted about its arthritis drug Celebrex.
U.S. District Judge Anne Thompson held Monday that a 2001 article in The Washington Post — revealing the alleged concealment of the study data — "may have raised the possibility that Defendants acted with scienter, thus prompting a reasonable person to begin investigating," but did not "establish a strong inference that Defendants acted with the requisite intent."
Applying a new standard for the Third Circuit, Thompson held that the statute of limitations in securities-fraud cases begins to run "when a reasonably diligent plaintiff should have discovered facts permitting it to successfully plead a cause of action under the … Securities Exchange Act."
In Alaska Electrical Pension Fund v. Pharmacia Corp., 03-cv-1519, the plaintiffs claim that Pfizer and subsidiary Pharmacia Corp. fraudulently withheld some results of a long-term clinical study of Celebrex's gastrointestinal side effects. Pharmacia allegedly reported only the first six months' worth of results in an effort to make the drug appear safer than it truly was and caused an article to be published in the Journal of the American Medical Association."

Source: New Jersey Law Journal

50 hours pro bono work a bar admission requirement -Chief Judge Jonathan Lippman's Law Day 2012 Remarks

Below is the heart of Chief Judge Jonathan Lippman's announcement that mandatory pro bono work will be a condition of admission to the New York bar.  GWC
Chief Judge Jonathan Lippman's Law Day 2012 Remarks:

"If pro bono is a core value of our profession, and it is -- and if we aspire for all practicing attorneys to devote a meaningful portion of their time to public service, and they should -- these ideals ought to be instilled from the start, when one first aspires to be a member of the profession. The hands-on experience of helping others by using our skills as lawyers could not be more of a pre-requisite to meaningful membership in the bar of our state. So today, on Law Day, 2012, we turn over a new page in the bar admission process in New York -- by requiring each and every applicant for admission to contribute 50 hours of participation in law-related and uncompensated pro bono service before they can practice in New York State."

'via Blog this'

ABA 20/20 Ethics Commission Files Reports, Resolutions

The ABA Commission on Ethics 20/20 on May 7 filed final versions of its resolutions and reports with the ABA House of Delegates which will vote on the resolutions at the Annual Meeting this August.

The summary and report is HERE 

The resolutions and accompanying reports can be found at the following links:

Technology and Confidentiality (proposals affecting Model Rules 1.0, 1.1, 1.4, 1.6, and 4.4)

Technology and Client Development (proposals affecting Model Rules 1.18, 7.1, 7.2, 7.3, and 5.5)

Admission by Motion (proposals affecting the Model Rule on Admission by Motion)

Outsourcing (proposals affecting Model Rules 1.1, 5.3, and 5.5)

Practice Pending Admission (proposal to create a new Model Rule and a proposal affecting Model Rule 5.5)

Conflicts Detection (proposal affecting Model Rules 1.6 and 1.17)

h/t Andrew Perlman/Legal Ethics Forum

Causes of the national deficit

Job creation - the Obama years

There are three big facts: 1) the Bush-era financial collapse cost millions of jobs.  2) We are slowly recovering, with a recent dip where we expected acceleration. 3) Underemployment and under-utilization of hte labor force remains a serious problem. See Chad Stone on the April jobs report.