Kagan Nominated to the High Court

The ink is not even dry and the debate over the President’s recent nomination of Solicitor General Elena Kagan to the High Court has erupted.  Those opposed to the latest nominee claim that she does not have enough experience because she has never served as a judge, while her supporters maintain that she is a consensus builder and has the ability to bring parties together.   

On a prior blog, I stated my position on Kagan and predicted that the President would select her as his nominee based upon her background and principled stance.  Ideologically she will be close to her predecessor, Justice John Paul Stevens (perhaps not as liberal) and will also share Steven’s notable ability to bring diverse groups together.  Kagan could also be a transformational figure, similar to Justices Sandra Day O’Conner or William Brennan and might even be able to influence long-term conservative Justice Anthony Kennedy.  However, I am skeptical that she will bring Justice Kennedy over, considering his ideology is rooted in his 20-plus years of service to the Court.  But I do believe she will have an immediate and long-lasting impact on the Court.  At age 50, Kagan has the potential of being on the Court for many years and establishing a substantive legacy.  Indeed, she is smart and skilled and has blazed trails before.  She was the former Dean of Harvard Law School and later served in the role of Solicitor General (the United States’ top advocate appearing before the Supreme Court), where she argued six cases before the High Court.  

It is unusual that Kagan has not had judicial experience; it has been over 50-years since a Justice with no judicial experience was appointed to the Court.  And although Kagan is a certified democrat, many liberals have questioned her reliability as she has a small paper-trail from which an ideological determination can be made.  However, a small paper-trail can also be a good thing as it leaves little for opponents to criticize and pick apart.  Kagan’s records from her White House years in the Clinton administration should offer important insights into her legal thinking.  Therefore, it would not make sense to schedule her confirmation hearing until those records become available. 

 Many have suggested that she is a safe choice and will go through the confirmation relatively easily.  However, confirmation is never easy, especially considering one academic paper Kagan wrote in the 1990s, in which she criticized the confirmation process, could be used against her.  In addition, Kagan’s exclusion of military recruiters from the Harvard law school campus during her tenure as Dean also promises to draw considerable attention during the confirmation hearing. Certainly, Kagan will have to answer for these issues and leap many other potential hurdles if she is to be confirmed to the High Court.  Nevertheless, Kagan is well poised to succeed.  She has a command of the law, an innate ability to build majorities and an empathetic disposition that will suit her well as she is tasked to serve as a supreme arbiter of justice.

L.T. Back in the Negative Spotlight

After years on the straight and narrow, Lawrence Taylor, or just L.T. to most, is back in the news, this time it is not drugs but allegations involving rape and prostitution. The peculiar facts surrounding this incident have raised many questions and catapulted Taylor back in the negative spotlight.  The Hall of Fame linebacker was charged Thursday with rape and patronizing a prostitute in a case involving a 16-year-old runaway. The 51-year-old was arrested in a Holiday Inn in Ramapo, NY and was taken into custody along with the young girl and her purported pimp.  Taylor was charged with third-degree rape, a felony, for allegedly engaging in sexual intercourse with a minor and with third-degree patronization for allegedly paying the underage victim $300 to have sex.  Under New York law, the rape charge carries a possible four-year prison term, and the patronization charge, a misdemeanor, could bring up to a year in prison.  However, as the investigation continues more claims may possibly emerge and Taylor could realistically face jail time, especially if it is found that he engaged in a sexual act with a minor.  As would be expected, Taylor’s attorney is defiantly rejecting the allegations as false and has made public statements maintaining his client’s innocence.

Run-ins with the law are nothing new for Taylor. He was suspended twice by the NFL during his playing days for substance abuse and has been arrested several times on drug related offenses.  However, recently, Taylor has worked hard to change the public’s perception of him, with stints as a sports commentator and an appearance as a contestant on ABC’s “Dancing With the Stars” in 2009, Taylor was beginning to reshape his public persona.  However, these new allegations have again cast doubt on his character.  Although the law is based upon a presumption of innocence, the fact that he was in a random hotel room, in the middle of no-where, with a 16-year old prostitute and her pimp does not bode well for Taylor’s defense.  Even though he might ultimately be acquitted of these charges, that process is slow and at this time, he might already be found guilty in the world of public opinion.  I would encourage Taylor to make a public statement as soon as possible.  Perhaps it might not necessarily affect the outcome of his case but it should calm all the intense speculation and maybe curve the public’s response.  Take a look at Kobe Bryant, although people did not forgive the egregious act (he was accused of rape in 2004), I believe they appreciated the fact that he spoke up and provided an apology and explanation.

NBA is Speaking Out Against the Arizona Immigration Law

The unpopular Arizona immigration law is now receiving staunch opposition from all walks of life, including the National Basketball Association.  The law has been widely criticized as an intrusive invasion of civil liberties and equal rights, as it allows for police to question individuals upon reasonable suspicion that they might be in the United States illegally.  There has been outrage on a global level and many have labeled the state bill as unconstitutionally authorizing discrimination.  Now the NBA, its teams and players have entered the debate on the side of the opposition and have began to voice their concerns and grievances.   

In fact, the Phoenix Suns will be wearing its “Los Suns” jerseys for tonight’s Game 2 against the San Antonio Spurs to honor the Latino community in Arizona and to also voice their opposition to what Sun’s team owner Robert Sarver labeled “a flawed state law.”  The Spurs also submitted a proposal to wear their “Los Spurs” jerseys; however, it was too late to do so.   The NBA Players Association is supportive of these public displays of opposition.  In fact, the organization’s executive director Billy Hunter issued a press release, denouncing the law, stating “The National Basketball Players Association strongly supports the repeal or immediate modification of this legislation. Any attempt to encourage, tolerate or legalize racial profiling is offensive and incompatible with basic notions of fairness and equal protection.”

The civil rights movement was rooted in the mantra that an injustice committed against one is an injustice against all.  A similar mantra is being employed to oppose this recent law as many argue that it is an attempt to intrude on the civil liberties of a certain class of people.  Such an intrusion is not only improper but as many in the Latino community have maintained, it is also unconstitutional. Generally, sports figures do not make political statements on this scale or voice their oppositions to such provocative issues; therefore, I applaud the actions of the NBA and the Phoenix Suns’ players and management for taking a stand against an unjust and unconstitutional law.

The Retirement of Justice Stevens–More than Ideology

I was in my second year at Georgetown University Law Center when I first met Justice John Paul Stevens.  I was initially taken back by the surreal nature of the moment as it is not everyday you come across one of the top legal minds in the world, nevertheless the senior member over the highest court in the Land.  Although our first conversation was very brief, Justice Stevens did mutter these words as parting advice “keep working towards something great.”  Such a phrase has stuck out in my mind for years and is a phrase that embodies the 35-years of progressive thinking Stevens brought to the Court.  While I have had the pleasure to be in the Justice’s presence on several occasions since that memorable encounter, I am drawn back to that first meeting upon the recent announcement that Justice Stevens intends to depart from the Court within the year. 

 Justice Stevens has been a patriarch on the Court for many years and his ideology and positions have changed over that time.  From his stances on First Amendment protections and the death penalty, to affirmative action,  states’ rights concerns, abortion and gay marriage, Steven’s opinions, as well as those of the Courts, have evolved.  The recent news of his departure has caused a fire storm of debate about his successor.  Several names have been tossed into the hat including Elena Kagan, Merrick Garland and Diane Wood.  In deciding on his nominee, the President must take into account several factors, including the long-term impact on the Court and political ideology.  However, he must also consider the need to appoint someone, who like Stevens, will serve as an evolving member on the Court, one who will challenge conventional wisdom and provide the necessary momentum to deal with a new age of legal theory.

It is questionable whether the President, in the current political climate, could replace Stevens with a nominee who shares such strong positions.  However what the Court is losing the most is Steven’s skills at building majorities.  While all of the individuals who have been named as possible successors are top-notch legal minds, I think Elena Kagan stands out as a progressive leader, one whose record embodies collectivism and inclusiveness.  A New York native, Kagan was selected by President Obama to serve as the nation’s first female Solicitor General.  Prior to that appointment, Kagan served as Dean at Harvard Law School, where she came to be known as a consensus builder.  While she might not be as liberal-leaning as Stevens, or other possible nominees like Diane Woods, Kagan possesses a progressive approach to issues and can reach across a great political spectrum. 

—In this new legal world, where technological advances and other transformational changes have presented new and complex legal issues, we must enlist progressive thinkers who will confront the status quo and engage these new challenges with a prospective vision for our future.

Recent Release of Malcolm X’s Assassin

Thomas Hagan, at age 69, the only man who admitted his role in the 1965 assassination of iconic black leader Malcolm X, was paroled Tuesday following an incarceration term of 45-years. He was released from the Lincoln Correctional Facility in Harlem, NY located at the intersection of West 110th Street and Malcolm X Boulevard, thus putting in perspective the true significance of the moment. 

Malcolm X, the civil rights icon, best known for his fiery rhetoric and his public denouncement of whites (but who later in life changed his views towards whites and discarded the Nation of Islam’s ideology in favor of orthodox Islam) was a champion of civil rights and one of the most notable persons of that era.

There has been outrage among some African-Americans upon the release of Hagan, as many have questioned whether or not he would have been released if he had killed an iconic white leader.  Although such a question can never truly be answered and there are valid legal arguments on both sides of the coin regarding the appropriateness of his release, I think the fact that 45 years after playing a role in the assassination of Malcolm X, Hagan was released upon the street bearing his victim’s name, speaks volumes.  Malcolm X’s impact on the world community is well noted in history books, movies, adaptive plays (to name and few) and his legacy is evidenced when looking at the hundreds, if not thousands, of street signs and schools that bear his name or when talking with elders who speak of a man whose passion, belief and vigor transformed a people. Therefore, although the central focus of this entry was to provide an update on Hagan’s recent release, I think such an occurrence is overshadowed by the worldly impact of the man.  At this time when our country elected the first African-American president and when our Congress followed through on passing the most aggressive healthcare legislation in the history of our nation, we are better served by paying homage to Malcolm X and the other warriors of change who served as catalyst for this transformation.  Let us embrace his memory and his sacrifice and not allow debate over the recent developments take our attention away from what truly matters.     

 Malcolm X would have turned 85 years old on May 18.

The Vicious Beating of a UMD Student

A video recently emerged of an incident that took place in early March, showing Prince George’s County Maryland police officers viciously beating University of Maryland student John McKenna with night sticks.  As a result of the incident Mr. McKenna suffered severe injuries.  The video has brought the issue of police brutality and the notion of excessive force back to the forefront of discussion.  

Such instances of excessive force, specifically examples that have been documented on video, have been released in the past.  However, this incident, although receiving national media attention, has not received even close to the amount of scrutiny and discussion as prior incidents have garnered especially incidents where minorities were the victims.  For example, the Rodney King beating and trial captured public attention at unforeseen levels.  And the widely publicized January 2008 Alabama police beating, which was captured on a police car video-cam, gained national attention as it showed  five officers brutally kicking and beating an African-American man unconscious after a high-speed chase through Birmingham.  Although the assault on the Maryland student is not as vicious in nature as the King assault or the Birmingham beating, it is still very egregious nonetheless.  However, it is only covered as a passing story on the nightly news. 

Of course there are factors that influence every news story and over the history of our country, the conflict of race and society has been a reoccurring theme.  However, despite the fact that these concepts continue to confront us, we must understand that it is important that every injustice be met with the same vigor.  I am not suggesting that every act of police brutality, independent of race, be discussed and dissected at a national level.  However, I do believe it is our civic responsibility and we must encourage our communities, that irrespective of race, it is of vital importance to engage in an active dialogue whenever an incident like this occurs to ensure conduct like this never happens again.

The Gilbert Arenas Sentencing

Did Washington Wizards’ superstar Gilbert Arenas get celebrity treatment during his day in court?  Last Friday, Arenas appeared in D.C. Superior Court on weapons charges and was sentenced to two years of supervised probation, 30 days in a halfway house, required to serve 400 hours of community service and to contribute $5,000 to a fund for victims of violence.  Some who have had run-ins with the law see this as a slap on the wrist, an expected pass for a celebrity athlete while others side with the misguided star and believe the judge’s leniency was not influenced by Arenas’ superstar-status.  

        At the sentencing hearing, Arenas was visibly remorseful, fighting back tears at one point.  Based upon his testimony, the court determined that Arenas did not have any harmful intent, but rather that he was someone whose jovial and light-hearted nature was misguided.  While I don’t condone Arenas’ foolish acts, I do believe the court’s reasoning for Arenas’ sentence was correct.  Now don’t get me wrong, I am not saying that there are not instances where high-profile individuals received sentences that seem rather lenient for their crime, but then again I can also think of individuals who have been made an example of because of their position.  Take New York Giant’s ProBowl wide receiver Plaxico Burress for example.  He was sentenced to 2 years in prison for bringing a gun, which he owned and had legally registered (though not in New York), into a nightclub and on top of that he also accidently shot himself during the course of the night while walking through the club.  On the flip side, you have someone like Chris Brown who avoided jail time and instead was sentenced to 180 days of labor service in Virginia, five years of probation and was ordered to attend a domestic-abuse program for a year for allegedly assaulting his former girlfriend, Rihanna. 

        Clearly a celebrity’s status can cut both ways when it comes to criminal sentencing.  Therefore, I am not suggesting that high profile individuals should receive special treatment because of their celebrity or financial status, but I don’t think they should be treated more harshly either.  We are often too quick to attribute a court’s leniency to that individual’s status and in doing so we automatically attach a stigma of guilt to these individuals solely based on their wealth or social prominence.  Although, a high profile individual’s criminal case might garner more attention, it is important to understand, that legally speaking, although allegations exist, individuals are first presumed innocent, even if they are a celebrity.

Big Brother Is Watching

Can you say big brother is watching?  Michael and Holly Robbins sure can.  The parents of a Pennsylvania high school student are suing their son’s school, alleging that the district unlawfully used its ability to access a webcam remotely.  They claim that a school official watched their son through his district-issued laptop’s webcam while he was at home and unaware he was being observed.

The alleged incident occurred on November 11 when an assistant principal at Harriton High School told the plaintiffs’ son that he was caught engaging in “improper behavior” in his home which was captured in an image via the webcam.  According to the Robbinses’ complaint, neither they nor their son, Blake, were informed of the school’s ability to access the webcam remotely at any time. It is unclear what the boy was doing in his room when the webcam was activated.  Doug Young, a spokesman for the Lower Merion School District, said the district would only remotely access a laptop if it were reported to be lost, stolen or missing.  Young also said parents and students were not explicitly told about this built-in security feature but to receive the laptop, the family had to sign an “acceptable-use” agreement. In an “acceptable-use” agreement, the families are made aware of the school’s ability to “monitor” the hardware, he said, but it stops short of explicitly explaining the security feature.

Legal pundits have suggested that, if such activity actually did occur, the school district’s electronic eavesdropping violates constitutional privacy rights, intrudes on parents’ right to raise their children and may even be criminal under state and federal wiretapping laws.  Regardless of whether or not the actual invasive act occurred, it is troublesome that the school district would even allow for that type of feature to be activated, with such access and capability; it is almost inevitable that some type of abuse would occur.

The Petit Murders: Can There Ever Be Justice

“Punishment is the way in which society expresses its denunciation of wrongdoing: and, in order to maintain respect for law, it is essential that the punishment inflicted for grave crimes should adequately reflect the revulsion felt by the great majority of citizens for them.”  Quoting Lord Justice Denning, Dr. William Petit addresses lawmakers on what punishment he believed was appropriate for Steven Hayes and Joshua Komisarjevsky, the two men who have been accused of murdering his wife and two children during a home invasion robbery on July 23, 2007 in Cheshire Connecticut.

The jury selection process has recently begun in nearby New Haven, with three jurors selected as of last week, according to the New Haven Superior Court clerk’s office. It is expected to take several months to pick a full jury. Evidence will be presented in the case in September. Komisarjevsky will be tried separately.  This process has re-opened old wounds and brought these horrific acts back to the fore front. 

The recent preparations for trial have also forced many to reexamine their opinions on the death penalty.  Dr. Petit is strongly advocating that, upon a conviction, the men should face the same fate that his wife and two daughters did and be sentenced to death for their crimes. Dr. Petit stated, “My family got the death penalty and you want to give murders life.  That is not justice.”  While many opponents of capital punishment continue to struggle with the moral and religious dilemmas associated with what some define as “state sanctioned murder,” proponents of the death penalty are especially vocal and maintain that if any crime deserves a death sentence, this is it.  Time will determine the fate of these two men but no matter what your opinion is of capital punishment, it is hard to reconcile the fact that these two men, if convicted, would be found guilty of brutally torturing and then murdering 3 innocent victims and depriving a man of his family.  In a situation such as this, can there ever be justice.

KANSAS V. ROEDER (The Value of Human Life)

A Kansas jury spent little time determining the fate of Scott Roeder, an anti-abortion activist accused of first-degree murder in the fatal shooting of an abortion provider Dr. George Tiller.  The jury returned a conviction for first degree murder after deliberating for only a little over half an hour.

During his testimony Roeder provided the jury with the horrific chronology of how he had shot Tiller in the foyer of Reformation Lutheran Church as Sunday services began. Testifying as his only defense witness, he said he believed he had to kill Tiller to save lives.  He said he had no regrets.  Roeder faces life in prison when he is sentenced on March 9.

This tragedy has once again brought the abortion issue to the forefront.  As pro-choice and abortion opponents remain at odds, national debate continues as to whether and to what extent abortion should be legal and who should decide the legality of abortion.  However, the landmark case of Roe v. Wade, which prevents any state from impeding upon a woman’s right to abort her pregnancy until the “point at which the fetus becomes ‘viable,” remains intact despite constant opposition and attempts at overhaul for the last 35 plus years.  Nonetheless, no matter what side of the issue you stand on, there should be one consensus, and that is that acts of brutality and outright disdain for the value of human life as evidenced in the Roeder case do not serve to further his position but simply under-cut the issue which remains at the core of this debate which is the value of human life.

THE STATE OF THE UNION

Last night President Obama addressed a capacity crowd on the House floor.  In typical State of the Union fashion, he was gallantly applauded by his party supporters when he stated Democratic agenda points while the Republican opposition remained quiet in staunch defiance.  The President hit upon a variety of topics from healthcare reform to unemployment and laid out his plans to alleviate many of the issues and problems that Americans face on a daily basis.  

One of the issues that the President addressed that stuck out in my mind was the recent Citizens United Supreme Court decision which would allow for unlimited campaign spending by corporations.  The High Court’s decision last week was a major reversal of judicial precedent, lifting restrictions on what corporations can spend on advertisements for or against candidates within 30 days of a primary or 60 days of a general election.     During his address, as the Justices sat before him, the President was vocal in his disapproval of the High Court’s decision and in fact stated that the Justices, allowed for future campaigns to be “bankrolled by America’s most powerful interests, or worse, by foreign entities.” Congress, he added, should “pass a bill that helps to right this wrong.”

Democrats in Congress were anything but slow to follow the President’s advice.  In fact, a number of members began drafting legislation early last week that would combat or a least soften the blow of the Supreme Court’s decision. 

As of now, the High Court has spoken.  Stay tuned to see what policy emerges.  But suffice it to say, because of the directness and specificity of the ruling, Democrats are left with very few options.  Some have even suggested that nothing less than a Constitutional amendment will be effective in keeping corporate money out.