Right Juris

What type of person will Barack Obama be looking for to fill any vacancies in the Supreme Court during his term as President? There is a wide range of speculation, but many have their eyes on Massachusetts Governor Deval Patrick. See pictures, a video, and a biography below.

The current court is the only court in history where all the justices were judges on lower courts before they were appointed. When Roe v. Wade was decided, none of the justices had been judges before their appointments. There is some indication that Barack Obama would like to go back to appointing people from outside the judiciary for the Supreme Court.

Deval Patrick has been an assistant attorney general under Bill Clinton and is now the governor of Massachusetts. He is also known to be a good friend of Barack Obama. He even came from the rough neighborhoods of Chicago that Obama was a community organizer in. They also share an ideology of judicial review that takes human suffering into account when applying the law. I call it “bleeding heart jurisprudence.”

Deval Laurdine Patrick was born in Chicago, Illinois on July 31, 1956, so he is 52. His family resided in the Robert Taylor Holmes Housing project on the south side at the time. Fortunately, he was recognized early as a gifted student and was recommended to “A Better Chance” program for talented African American Students. This enabled him to attend the Milton Academy in Massachusetts.

Patrick graduated from Harvard with a B.A. in 1978. After serving for the United Nations in Africa for about a year, he returned to Harvard to attend Law School. He married Diane Patrick née Bemus in 1984. They have two daughters.

After law school, Patrick clerked for Judge Stephen Reinhardt of the Ninth Circuit Court of Appeals, after which he worked for the NAACP legal defense in New York City. He also became famous for representing Desiree Washington in the Mike Tyson rape case.

He was appointed Attorney General for Civil Rights under the Clinton Administration. He has been very successful in private practice, working for the Boston firm Day, Berry & Howard. He has even served has executive vice-president and general counsel to the Coca-Cola Company. His latest success is being elected as governor of Massachusetts.

For a critical look at his ideology, see this article at the National Review.

More photos and a video of Deval Patrick are below

President Bush has pardoned 14 people in the most recent round of pardons. Among the lucky individuals are hip hop artist John Forte and Michael Milken; those still hoping and waiting former Rep. Randy “Duke” Cunningham (R-CA) and Gov. Edwin Edwards (D-LA). Interesting that Scotter Libby is absent from that list, in fact, he hasn’t even applied for one. Over all, Bush has pardoned 157 individuals and commuted on 6 sentences.

The big question is whether Bush will preemptively pardon any attorneys or government officials who worked with or authorized the use of “torture” (I put torture in quotes because I do not believe waterboarding is torture). There is some debate as to whether this is actually constitutional, although President Lincoln bestowed blanket amnesty on all soldiers who fought in the Civil War and President Carter did something similar with Viet Nam resistance fighters. The question centers around whether or not the President must name each individual person to whom would receive the pardon. I think in general it is probably good practice for a President to do so. I don’t know why it would be so hard to get a list of all the attorneys who worked for the Justice Department and just issue a pardon for each one for any crimes committed in relation to the use of torture.

The other case in which people are interested in is the case of US border agents Ramos and Campean. Ramos and Campean were convicted for shooting a drug smuggler while he was illegally crossing the boarder and running away from the agents (deadly force is authorized when a dangerous suspect is running from police). There is much controversy about this case, including 3 jurors who admitted that they were coerced into voting guilty. There is a large movement asking for a pardon for Campean and Ramos and they have raised thousands of dollars for their defense.

Meet Diane Pamela Wood. We’ve been discussing potential Barack Obama Supreme Court picks in his first term. As mentioned, Justices John Paul Stevens and Ruth Bader Ginsburg are said to plan retirement in the president-elect’s first term. See a photos, a video, and a biography below.

With Sandra Day O’Conner retired, the number of women on the court has diminished. Even Laura Bush was a little upset with old George because he didn’t maintain this balance. When both Stevens and Ginsburg retire, we are likely to see women as replacements.

As I have discussed previously on this site, Sonia Sotomayor is likely to be picked, partly because she is Hispanic, which will also be important. Chicago resident Diane Wood is also a possibility, as Barack Obama knows her from the University of Chicago.

Diane Pamela Wood was born in Plainfield, New Jersey on the 4th of July, 1950, so she is 58. She married Robert L. Sufit, who is a professor of neurology at Northwestern University’s Feinberg School of Medicine. She has three children and three step children.

In 1971, Wood received a B.A. from the University of Texas at Austin where she also earned her law degree in 1975. After graduation, she landed a clerkship with Judge Irving Goldberg of the 5th Circuit, and later with Associate Justice Harry Blackmun of the U.S. Supreme Court.

Later she advised the State Department during the Carter Administration, after which she entered into private practice in Washington D.C. in 1978. She shortly thereafter became associate professor of law at Georgetown University, later moving to Chicago University Law School where she remained until 1995. In June of that year, the Senate confirmed President Bill Clinton’s nomination of Diane Wood to the 7th Circuit Court of Appeals, where she serves to this day.

See Video and Photos

A new debate has arisen regarding the appointment of Hillary Clinton as Obama’s Secretary of State. This new debate revolves around whether such an appointment would be in violation of the Emoluments Clause of the U.S. Constitution. What is the Emoluments Clause? To be honest, I’m not real familiar with this and don’t ever remember even discussing it in law school, but here it is:

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time . . .

So, the two central questions in this instance are 1) Whether Clinton is ineligible now under the Emoluments Clause and 2) Can such ineligibility be cured by a “Saxby Fix” which would entail her salary being reduced to what it was when she began her term if appointed as Secretary of State. As to the first question, there is little doubt, by the plain language of the Constitution, that she is ineligible for the office because the Secretary’s position has increased during Clinton’s term of office, therefore a straight forward violation of the Clause.

The more difficult question is whether a Saxby Fix would cure the problem and restore her eligibility. John O’Conner, who wrote an article on this issue called The Emoluments Clause: An Anti-Federalist Intruder in a Federalist Constitution, 24 Hofstra L. Rev. 89 (1995) states:

The Saxbe Fix got its name because the Nixon administration sought to eliminate Senator William Saxbe’s ineligibility for appointment as Attorney General by reducing the salary of that office to the level that existed before Senator Saxbe’s appointment. Although there was some opposition on constitutional grounds (most interestingly by Senator Robert Byrd and then-Harvard Professor Stephen G. Breyer), the legislation passed and Saxbe was confirmed. Later, Lloyd Bentsen served as Treasury Secretary after “Saxbe Fix” legislation reduced the salary of that office to its level immediately before Senator Bentsen’s Senate term had begun.

In an e-mail exchange with Prof. Volokh, O’Conner argues that Hillary is indeed ineligible and the Saxby Fix does not help her.

Professor Volokh suggested [in the e-mail requesting this response -EV] that the clause might be read so that the emoluments of an office “have been encreased” only if the salary at the time of appointment is higher than the salary at the beginning of the appointee’s congressional term. I do not think that is the best textual reading of the clause. The clause’s use of the past participle (I think that’s what it is) “have been encreased” focuses on acts prior to appointment, and not on where the office’s emoluments stand at the time of appointment as compared to some prior point in time.

This focus [on] a past act of increasing emoluments, rather than on the emoluments existing at the time of appointment suggests to me that the clause’s best reading is that an act of increasing emoluments renders members of Congress ineligible for appointment [to] the office until their respective congressional terms end.

In addition, one of the central theses of my law review article on the subject is that the purpose of the Emoluments Clause is disserved by the Saxbe Fix. The records of the federal constitutional convention indicate two purposes underlying the Emoluments Clause: (1) general anti-corruption, whereby Congress might conspire with the President to create offices, or to give existing offices exorbitant salaries, with the understanding that a Member of Congress would be appointed to the office; and (2) limiting the size, importance, and reach of the federal bureaucracy.

As a practicality, I have no idea who would have standing to bring such a suit in the first place. I’m not sure a “taxpayer” or citizen suit would past the standing threshold. It’s an interesting argument that O’Conner gives, but in the real world of our politics I’m not sure it would get very far. A certain part of me does get a happy warm feeling thinking of having Clinton removed from her position after resigning from Congress.

In the first term of his presidency, Barack Obama will have big decisions, like who he will appoint to the Supreme Court. Sonia Sotomayor is one person that keeps popping up in conversations about who will replace likely retiring justices John Paul Stevens and Ruth Bader Ginsburg. See photos, a video, and a biography below.

Sonia Sotomayor is probably top of the list for an Obama appointment to the Supreme Court. Why? There is one major group that has never had representation on the SCOTUS, and that is Hispanics. She is probably the most prominent Hispanic judge in the country, and she is a women. There have only been two women, and currently only one on the court, who is likely to retire soon. Also, she is a liberal of course.

Sonia Sotomayor was born on June 25, 1954 in The Bronx, New York, so her age is 54. She was born of Puerto Rican decent and into modest circumstances. Her father died at an early age, leaving her mother to raise and support her.

Sotomayor was fortunate enough to be able to attend Princeton University and receive a B.A. summa cum laude in 1976. She then went to Yale for law school, earning her juris doctorate while also serving as the editor of the Yale Law Review. She served as assistant district attorney in New York for a time, then went into private practice.

Ironically, George H. W. Bush appointed her to Federal District Court in 1991. She being a moderate and the appointment being part of an overall deal between senators to appoint other Bush people, made this possible. Later, in 1998, she was appointed to the Second Circuit Federal Appellate Court by Bill Clinton.

Congressional Democrats suggested Sonia Sotomayor for appointment in 2005 while President Bush was considering who to replace Justice Sandra Day O’Conner with. This was criticized by conservatives because she did not fit the ideological profile of George Bush. Instead, Bush chose Samuel Alito.

For more on Sotomayor, go here.

See Video

With a Barack Obama administration, Associate Justice Ruth Bader Ginsburg, age 75, is likely to take retirement, leaving the president-elect an opportunity to make his mark on the court. See photos, a video, and a biography below.

President-elect Obama will likely have two opportunities in his first term to appoint new justices to the Supreme Court of the United States, with the likely retirement of Justices Jon Paul Stevens and Ruth Bader Ginsburg. Both are considered part of the liberal wing of the court.

Ginsburg was born Joan Ruth Bader on March 15, 1933 in Brooklyn, New York, so her age is 75. She was Nathan and Celia Bader’s second daughter. Her family called her “Kiki.” She graduated from James Madison High School. In high school, her beauty and competitive edge won her popularity and a position on the twirling squad. Perhaps her drive came from her mother’s battle with cancer, which led to death just days before her daughter would graduate high school.

Ginsburg’s academic prowess gave her all the scholarships she would need to make her way through college. She attended Cornell University where she graduated first in her class. Here she met her future husband, Martin Ginsburg. They later marry, and both enroll at Harvard Law School. Her husband graduated and accepted a job in New York. She transferred to Columbia Law School where she graduated at the top of her class. She became the first woman to serve on two major law school law reviews.

In 1963, Ginsburg joined the faculty at Rutgers University Law School. She spent much of this time working on feminist issues, and started working with the American Civil Liberties Union, where she was later served on the board and as general counsel. She later accepted a position at Columbia Law School, being the first woman to be hired tenured at that school.

Read the rest of this article, photos and a video

The trial of troubled mother Lori Drew begins today and you can read more about it here. Drew is accused of using MySpace to intentionally inflict emotional harm on a 13 year old girl, who later committed suicide. This is the first federal “cyber-bullying” case, in which the mother of the friend of the decedent created a hoax Myspace page which poked fun at and spread nasty rumors about a young 13 year old girl whom the friend was mad at. The young girl was so upset by the page that she committed suicide.

O’Brien claimed that Drew actively conspired with two others in creating and maintaining a MySpace profile for a nonexistent 16-year-old boy named “Josh Evans” in the summer of 2006. The Evans account was used by multiple people to flirt with, befriend and ultimately reject 13-year-old Megan Meier, who’d had a falling-out with Drew’s daughter.

Drew’s defense is that she knew about the page that was created, but did not parcipate in its creation or encourage her daughter in any way. While the actions of Mrs. Drew is obviously disgusting and tragic, from a legal standpoint I have a hard time with this case. In fact, I agree with Orin Kerr who thinks that this case presents a real danger to Civil Liberties. I mean, if we are essentially stating that lying on a social network like MySpace or Facebook is a crime, we are all in a lot of trouble. Are we going to decide as a society that any careless statement one happens to make that leads to a suicide can result in a federal crimanl prosecution? Bullys have been around for a long time and they will always be around. Obviously this young girl had some issues (and arguably the mother had bigger issues) but there is just little evidence that Drew was criminally responsible for the death of this child. If you want to talk to me about civil litigation I could possibly see an argument for that, otherwise I think the prosecution in this case is terribly misguided.

Professor Bainbridge, who has literally written the book on insider trading, has an interesting post on charges filed against Mark Cuban for insider trading. Mark Cuban, who is the billionaire owner of the Dallas Mavericks, has been accused of insider trading in relation to a web page called mamma.com. Here is the announcement from the SEC:

The Securities and Exchange Commission today charged Dallas entrepreneur Mark Cuban with insider trading for selling 600,000 shares of the stock of an Internet search engine company on the basis of material, non-public information concerning an impending stock offering.

The Commission’s complaint, filed in the U.S. District Court for the Northern District of Texas, alleges that in June 2004, Mamma.com Inc. invited Cuban to participate in the stock offering after he agreed to keep the information confidential. The complaint further alleges that Cuban knew that the offering would be conducted at a discount to the prevailing market price and that it would be dilutive to existing shareholders.

Within hours of receiving this information, according to the complaint, Cuban called his broker and instructed him to sell Cuban’s entire position in the company. When the offering was publicly announced, Mamma.com’s stock price opened at $11.89, down $1.215 or 9.3 percent from the prior day’s closing price of $13.105. According to the complaint, Cuban avoided losses in excess of $750,000 by selling his stock prior to the public announcement of the offering.

Prof. Bainbridge seems to the the SEC has a pretty good case against Cuban. He thinks the key question here is whether “Cuban assumed a fiduciary obligation of confidentiality with respect to Mamma.com.” If so, Cuban is probably toast. Prof. Bainbridge has a very detailed analysis if you want to get the inside story. Remember, Martha Stewart’s legal troubles also stemmed from insider trading (although she was convicted of obstruction of justice), so this is something big time shareholders really have to be careful of. The key to avoid this kind of trouble is to never trade on information that has not been publicly disclosed. Any time you do that, you are going to be in trouble.

Here is a video report:

Custody battles can be pretty nasty. Former Playboy Plamate Ida Ljungquist, the first African born playmate, is going to find soon. Joshua R. Lang is ready to go to court over their Chihuahua Bonnie. He claims the dog is his. See pictures, a video below.

Joshua Lang has petitioned the Santa Monica Superior Court to order the dog to be brought back to him, or in the alternative, to allow visitation time. He claims that he bought the dog, and therefore it belongs to him. Ljungqvist says that the dog was a gift to her from her husband during a difficult time in their relationship.

Lang had filed for divorce on September 19, 2008. I guess there must be a prenuptial agreement, otherwise the dog would be half hers and half his. Looks like this is turning into a nasty divorce. Along with the dog, there are accusations that she stole some of his property when she left in September.

Lang claims he loves the dog and misses her tremendously. He compared the dog to being like his own child. He also claims, among other things that he took care of the dog the first night he brought her home, while Ida went out on the town. Further, he claims he took care of the dog, walked and fed her, and that Ljungqvist did nothing to care for her.

Ida Video

The Nebraska legislature is set to re-visit their controversial “Safe Haven Law”. Under this strange law, parents may take any children under the age of 17 to a local hospital and essentially abandon them there with no fear of prosecution. According to one report:

So far, 31 other children, 17 of them teenagers, have been dropped off. Five were from other states. They have been sent back to their home states, where most were put in foster care.

Now, most states do have similar safe haven laws, however nearly all them limit the age at which you can abandon your children to a few days old, all under 1 year old. It seems that Nebraska law makers wish to bring their state in line with the rest of the country and remove itself from the spotlight.

Nebraska’s law, meant to protect infants, has had “unintended consequences,” says state Sen. Mike Flood, the Republican speaker of the Legislature. He says it also “shined a national light on a problem many states have,” which is a need for mental-health services for troubled kids. He says lawmakers won’t do anything about access to services during the special session, which will run at least a week, but will address it in the regular one in January.

One thing that this law has brought to light is that a lot of parents are struggling with raising their teenage children (much of this is due to mental health issues) and can just no longer deal with the struggle.

See the video below to learn more: