Friday, May 14, 2010


Minnesota Women Lawyers issued the following statements following the appointment of Justice Lorie Gildea as chief justice, as well as two more women to the district court:

Minnesota Women Lawyers congratulates Justice Lorie Gildea on her appointment to Chief Justice of the Minnesota Supreme Court. We also congratulate Mary Mahler, appointed to a judgeship in the seventh district and Christine Long appointed to a judgeship in the third district, both of which were also announced today. MWL believes that the judiciary should fairly reflect the composition of the legal profession and of the public, and appreciates these appointments as important steps towards parity on the bench and in its leadership ranks. As women currently represent 26% of state judges on a national basis, we commend these efforts, and encourage the continued consideration and appointment of qualified women candidates for future Minnesota judicial positions.

Monday, May 10, 2010

Kagan Set to be Nominated

As can be seen in all the news reports this morning, President Obama is set to nominate Solicitor General Elena Kagan as the 112th Supreme Court Justice, to succeed Justice John Paul Stevens. The announcement is set to take place at 10 a.m.

This announcement brings with it all sorts of potential historical implications. It could be the first time that three women will serve at the same time. Ms. Kagan could be the youngest person ever nominated to the court, at 50 years old. There is also a lot of talk about her prior judicial experience....

Any thoughts on how different this confirmation process could be from Justice Sotomayor's confirmation? I'm betting quite a bit different.

Thursday, May 6, 2010

Equal: the end (of the book, that is)

26. Reckoning at the Supreme Court

Of course, the prospects for VAWA, at least for a civil rights remedy, were too good to be true and the Supreme Court immediately found the provision unconsititutional as soon as a case reached it.
It was the case of Christy Brzonkala, who said she was raped by two football players at Virginia Polytechnic Institute. The college's sexual assault policy was unsatisfactory, to put it mildly. One of her alleged rapists was an important football player and the proceedings against him were reduced to “abusive conduct.” He would have been eligible to play when Virginia Tech went to the Sugar Bowl in 1995, had he not been charged with breaking the door of a bar and hit and run.
Judges found VAWA's civil remedy unconstitutional almost every step of the way. She lost at the District Court, won before an appellate panel, lost in an en banc rehearing and eventually would lose at the Supreme Court.
Before she did, however, the high court decided two other cases that would limit the commerce clause and be used to strike down VAWA. The first was United States v. Lopez, where the court said that a federal law regulating guns near schools was not justified by the commerce clause. Justices Breyer, Souter, Stevens and Ginsburg dissented. Breyer's dissent argued that the gun law could have been upheld readily under existing precedent applying a rational basis test.
Lopez was decided in 1995, about a year after VAWA, which Rehnquist had vigorously opposed, was enacted,

In 1997, City of Boerne v. Flores addressed congressional power under the 14th amendment. Congress had passed the Religious Freedom Restoration Act in 1993, setting forth a compelling state interest for a law burdening the exercise of religion. It relied on the same law that supported the civil rights remedy in VAWA. But in Borene, the court rebuffed Congress's attempt to tell it what test to use to judge constitutionality. It required congurence and proportionality between the injury and the remedy in legislation enacted under the 14th Amendment.
Both the constitutional provisions underlying VAWA had been battered. During argument Justice O'Connor asked for a “hook” to the commerce clause, and she turned out to be Justice Rehnquist's fifth vote to strike down VAWA. Gender motivated crimes of violence were not economic activity, and the voluminous fact findings of Congress were irrelevant. The four who dissented in Lopez dissented again.
Rehnquist also relied on the Civil Rights Cases of 1883 – which upheld racial discrimation – to say that the 14th amendment reached only state action. Those cases were written by Justice Joseph P. Bradley, who had also written the words, based on “the law of the Creator,” that prevented Myra Bradwell from becoming a lawyer, “The Supreme Court, as ever mostly male, closed the twentieth century be reaffirming a nineteenth-century justice who claimed blacks were the law's favorites and women were protected, thanks to the Creator, by men.

Toward Equality (Twenty-first Century)

Strebeigh writes that we don't know if Harriet Meiers was nominated to the court to serve as a “screen” to allow President Bush to nominate two men, John Roberts and Samuel Alito, to the court. We do understand that Justice Rehnquist maneuvered Justice O'Connor off the court ahead of him, leaving a vacancy to be filled by Roberts, his former clerk.
Streibeigh writes, “One might supposed that the gender of judges no longer shapes judgments about gender. But during the last three decades of the twentieth century, that supposition proved often false. Men in law fought to avoid looking closely at discrimination. Men in law fought to penalize pregnant women at work. Men in law fought to permit their firms to discriminate against women. Men in law saw sexual harassment at normal conditions of employment. Men in law cut away the legal power of Congress to curtail violence against women. Men in law then gained an increased majority on the court.”
Male presidents and senators allowed that to happen, he points out, writing before Justice Sonia Sotomayor ascended to the bench, appointed by President Barack Obama. “Voters can vote for equality.”