We asked a handful of legal experts to review and annotate yesterday’s SCOTUS health-care opinion because, honestly, thing is confuuuuuuu-sing! Check it out and get learn’d. Super cool.
Sick, shaken, in disbelief. As I listened to the verdicts in the Casey Anthony case, acquitting her of the homicide of her baby girl, I relived what I felt back when court clerk Deirdre Robertson read the verdicts in the Simpson case. But this case is different. The verdict is far more shocking.
Jesse’s got a new Newsweek piece about wage disparity in the legal profession—even among the best lawyers at the most elite firms. A new study found those women, within the highest ranks of the most respected firms, make, on average, $66,000 each year less than men.
First of all: ouch, apparently we’re in the wrong field. But second: double ouch, that is totally appalling. As one employment attorney put it:
“The numbers are so stark that it really does call into question whether there is a systemic problem.”
We’d go with yes.
In which we ask five people to make a case for who they think Obama should nominate for the Supreme Court:
‘A Remarkable Public Servant’
The case for Janet Napolitano.
By Gen. Barry McCaffrey
Janet Napolitano was the U.S. attorney from Arizona when I started working with her while serving as the White House drug-policy director. I spent one long day with her in 1996 inspecting U.S. border operations along the frontier with Mexico. She struck me then, and she has ever since, as a remarkable public servant. She is extraordinarily intelligent, extremely family-oriented and compassionate, and with none of the posturing that we frequently see in political officials.
An Advocate for the Average Citizen
Elizabeth Warren would represent the people against powerful financial interests on the Supreme Court.
By Jonathan Alter
Elizabeth Warren, Harvard Law School professor and passionate consumer advocate, hasn’t been on many shortlists for the Supreme Court. But I understand from administration sources that she is very much in the hunt. Warren would satisfy President Obama’s criteria for the job, and she would likely prove to be a historic choice with a long-lasting impact on the country.
A Mirror to Obama’s Self-Image
If the president wants to burnish his post-partisan credentials, he should choose Judge Merrick Garland, who has worked well with conservatives.
By Benjamin Wittes
If President Obama wants to use the current Supreme Court vacancy at once to promote his judicial values and to reestablish himself in the run-up to the midterm elections as a post-partisan president capable of genuine statesmanship, he has an obvious choice. That choice is Merrick Garland, a judge who has spent the years since 1997 bridging the divide between liberals and conservatives on the once polarized D.C. Circuit Court of Appeals—and often coaxing surprisingly liberal decisions from his conservative colleagues.
‘A Respected Scholar, Teacher’
Why Obama should choose his current solicitor general, Elena Kagan, for the Supreme Court.
By Charles J. Ogletree Jr.
Solicitor General and former Harvard Law School dean Elena Kagan would make a superb Supreme Court justice. If the president is looking for someone who is intelligent, independent, and young, and who will bring unique experience that will immediately enable her to have an impact on the court, Solicitor General Kagan is his choice. She has always overcome challenges by those who would underestimate her talent because of her age or gender.
A Consensus Builder
Judge Diane Wood has worked well with her conservative colleagues.
By Rob Warden
It is hard to imagine a more appropriate replacement for John Paul Stevens—or a more ideal addition to the Supreme Court—than Diane Wood, who sits on the U.S. Court of Appeals for the Seventh Circuit in Chicago, where Stevens once served with distinction. Wood has been to the Seventh Circuit what Stevens has been to the Supreme Court: a counterweight to conservative fellow jurists. But she, like Stevens, is no ideologue, and she is held in high esteem by her conservative colleagues.
David ColeJohn Yoo; drawing by David Levine
Whatever else you might say about John Yoo, the former Justice Department lawyer who drafted several memos in 2002 authorizing the CIA to commit torture, you have to admit that he’s not in the least embarrassed by the condemnation of his peers. On February 19, the Justice Department released a set of previously confidential reports by its Office of Professional Responsibility (OPR) excoriating Yoo’s legal work—but stopped short of referring him for professional discipline by his state bar association. Since then Yoo has written Op-Eds for The Wall Street Journal and The Philadelphia Inquirer trumpeting his “victory.” In the Wall Street Journal piece, entitled “My Gift to the Obama Presidency,” Yoo argued that President Obama owes him a debt of gratitude for “winning a drawn-out fight to protect his powers as commander in chief to wage war and keep Americans safe.” Four days later, in The Philadelphia Inquirer, Yoo called the decision not to refer him for bar discipline “a victory for the people fighting the war on terror.”
This is a bit like a child coming home with an F on his report card and telling his parents that they should congratulate him for not getting suspended, or President Clinton proclaiming to Hillary that Congress’s failure to impeach him was a vindication of his affair with Monica Lewinsky.
Yoo’s theory, that a president by virtue of winning an election gets to be absolute lord and master over the country for the next four years, is disturbing. But you have to give the guy credit; he seems equally OK with letting Obama having the power of life and death over him.
One lawyer in the National Security Division of Holder’s Justice Department, Jennifer Daskal, has written that any terrorist not charged with a crime “should be released from Guantanamo’s system of indefinite detention” even though “at least some of these men may … join the battlefield to fight U.S. soldiers and our allies another day.” Should a lawyer who advocates setting terrorists free, knowing they may go on to kill Americans, have any role in setting U.S. detention policy? My hunch is most Americans would say no. Do other lawyers in question hold similarly radical and dangerous views? Without the information Holder is withholding, we cannot know if such lawyers are affecting detainee policy.
This drives us a little crazy, because it is a common thread in the defense of Gitmo: That every detainee in Guantanamo is a terrorist. And how do we know that they are terrorists? Because they’re in Gitmo!
Here’s the actual Daskal quote: “the detainees for whom the United States lacks any evidence to convict should be released from Guantanamo’s system of indefinite detention without charge.” That word, “detainees,” presents an important distinction. It recognizes that people have a right to a trial, and that they are not “terrorists” simply because someone says so. It acknowledges that it is dangerous for all of us to accept the idea that the government can declare certain people outside the bounds of due process simply because they want to.
The great Dahlia Lithwick has a more eloquent defense of this point. Money quote:
When the “al-Qaida Seven” and their two DoJ colleagues fought to defend alleged terrorists at Guantanamo Bay, they weren’t fighting to protect jihadist murderers. They were defending the U.S. Constitution—the great whomping chunks of the Bill of Rights that Cheney and her friends are so eager to write out of existence. They did it because that’s what lawyers are ethically obligated to do. They did it because—as Spencer Ackerman points out—the Military Commissions Act of 2006 expressly provided that detainees get defense lawyers. And they did it, as Jay Bookman notes, for the same reason John Adams agreed to represent British soldiers charged with killing civilians during the Boston Massacre in 1770. Because long before Liz Cheney was born and long after she’s gone, the Bill of Rights requires serious people to take it seriously.
Today in Crazy: Liz Cheney’s assault on DOJ lawyers who defended Gitmo detainees. Isikoff has the rundown.
Dahlia Lithwick is really good on this, making a case for special courts for veterans.
Pop quiz: which of the following names represents a non-sectarian, universal deity? Allah, Dios, Gott, Dieu, Elohim, Gud, or Jesus?
If you answered “none of the above,” you are right as a matter of fact but not law. If you answered “Allah,” you are right as a matter of law but not fact. And if you answered “Jesus,” you might have been trying to filibuster David Hamilton, Barack Obama’s first judicial nominee.
Dahlia Lithwick, leaving us intrigued.