Barrister by day, Bacardi by night

The Practice Never Had It So Good

An excerpt from Sean Carter's "The Defense Lawyer's Life for Me!" ...

I began reading every legal thriller I could get my hands on. After spending every waking moment studying the fine arts of plot design, character development and insertion of the gratuitous sex scene, I knew that I’d finally come upon my true calling. For the first time in 38 years, I know exactly what I want to be: I want to be a criminal defense lawyer.

During the course of two trials, the quick-witted, courageous protagonist manages to bed his law partner, opposing counsel, the court stenographer and three supermodels. By the way, did I mention that two of the models were twins by the names of (be still my heart) Lexy and Rexy? Obviously, criminal trial work is a lot more hands-on than I had ever imagined.

Read more about how Fictional Exploits Could Lead a Guy to a Life of Crime.

Eat this Poppa Smurf

Innocence Lost

Wow.  When did Gargamel figure out that his childish antics paled in comparison to a full out high ordinance bombardment?  Perhaps the most distrubing television program since "The Anna Nicole Smith Show," UNICEF (United Nations Children's Fund) has teamed up with Belgian company IMPS, which holds ownership rights to Smurfs to produce the "adult-only episode” without DP shots.  Unless DP stands for Destruction Personified.  The show was aired after 9 p.m., as not to terrorify youngsters, with the intent to to draw attention to the use of children in various wars throughout the globe.

It opens with the Smurfs dancing, hand-in-hand, around a campfire and singing the Smurf song. Bluebirds flutter past and rabbits gambol around their familiar village of mushroom-shaped houses until, without warning, bombs begin to rain from the sky ...

Tiny Smurfs scatter and run in vain from the whistling bombs before being felled by blast waves and fiery explosions. The final scene shows a scorched and tattered Baby Smurf sobbing inconsolably, surrounded by prone Smurfs.

The final frame bears the message: "Don't let war affect the lives of children."

A Glance at Nominations

Whatever misgivings we have concerning Ms. Harriet Mier's lack of judicial experience, I am reminded that the late Chief Justice Rehnquist never served on the bench prior to his appointment by President Nixon. Political appointments along party lines and loyalty is nothing new and the Supreme Court is not above such practices.

My personal favorite is Associate Justice Bryon White (1962-93) who was a well known pro-football star (and lawyer). He played a prominent role in President Kennedy's campaign in Colorado before serving as Deputy Attorney General under Robert Kennedy. Justice White had no prior judicial experience either, yet his opinions are well published in law school casebooks.

A cursory glance at the Court's recent history reveals other notable Supreme Court justices with no judicial experience. Some names are deeply ingrained into the modern American jurisprudence.

Chief Justice Earl Warren (1953-69) was an immensely popular Republican governor from California. You may remember Associate Justice Abe Fortas (1965-69) from his role in Gideon v. Wainwright, who was an AU professor and served in various government agencies. Associate Justice Felix Frankfurter (1939-62) was a Harvard law professor and advisor to President Franklin Roosevelt. Associate Justice Lewis F. Powell, Jr. (1971-87) was primarily confined to private practice but also served in the Virginia state school board. Associate Justice Tom C. Clark (1949-67) was an Attorney General. Associate Justice Arthur J. Goldberg (1962-65) was Secretary of Labor and a professor at John Marshall law school. Even thought the times have changed, Chief Justice John Marshall (1801-35) had no judicial experience but held various political offices at the federal and state level.

Perhaps our preference for a nominee with a bench experience stems from our desire for a judicial record. Politically, we are facing a very polarized environment where both sides value predictability above all else. Maybe Miers will bring a fresh breath into our Supreme Court. Maybe Miers will turn out to surprise us all.

Source - http://www.oyez.org

Live from D.C.

Life in D.C. has been on the constant move. I've been juggling around so many tasks that I often find myself awake at 1:23 in the morning. On the weekends, I just want to lie in bed and sleep. At work, I have six cases on my desk that I'm working on (breach of contract, enforcement of foreign judgment, 3 wrongful discharge, modification for custodial visitation). I recently drafted my first complaint (the court paper that begins a law suit) and I spent an afternoon looking for the clerk's office. In the meantime, I'm still debating about whether the law review write-on competition is worth the added hassle. I'm supposed to write about the national security ramifications of the Alient Torts Claim Act when allowing people outside the U.S. sue multinational corporations for labor abuses. However, I'm rarely in the library because I'm often attending various seminars, panel discussions, and conferences. Just looking ahead, October will certainly be a busy month. There's a conference in Chicago followed by another meeting in San Francisco I need to attend. Plus, I fly out to Boston for a call back interview. And my girlfriend wants to visit Atlantic City.

Meirs Examined (redacted)

HARRIET MIERS’ ‘UNKNOWN’ STORY
Colleagues Cite Her Work Ethic, Integrity and Discretion
BY MOLLY McDONOUGH

"Rather an unknown." That’s a statement that could describe Harriet Ellan Miers, President Bush’s latest nominee for associate justice of the U.S. Supreme Court. But it’s actually a headline topping a 1981 New York Times news analysis about President Reagan’s then-nominee Sandra Day O’Connor.

Indeed, outside of her home state of Arizona, very little was known about the first woman to take a seat on the country’s highest court. Likewise, Miers, a trailblazer for women lawyers in her own right, isn’t a known commodity outside of her native Texas.

"[Miers] has not been on the national stage," says constitutional law professor Marci A. Hamilton, who clerked for O’Connor and is struck by the similarities of the Miers and O’Connor nominations. "It’s crucial to have someone at the Supreme Court who has had that experience," says Hamilton; Without O’Connor, Hamilton has long argued, the court would be losing the sensitivity she brought from her experience as a state legislator and state court judge. Yet Miers, has been neither of these outside a short stint in the Dallas City Council.

Miers focused most of her career in behind-the-scenes trial practice. Colleagues say her penchant for being discreet won her the trust of her clients, including Microsoft, Walt Disney & Co. and, eventually, then-Gov. George W. Bush.

Friends close to Meirs say that she’s well-known for not trumpeting her gender-barrier breakthroughs and, similarly, keeps her personal views to herself, which will make it difficult for Republicans and Democrats alike to pinpoint her beliefs on hot-button issues such as abortion, gay marriage and the death penalty.

Jerry K. Clements of Locke Liddel & Sapp, a close friend and former college of Meirs, doesn’t like those questions anyway. "The real question is, does she believe in the rule of law and the concept of stare decisis?" Clements says. The answer is yes, she says. Clements believes Miers would hold a high regard for precedent and is a strict constructionist.

Nothing of what he has learned about Miers so far soothes constitutional scholar Bruce Fein, who served as associate deputy attorney general in the Reagan administration. One of his biggest problems with the nomination is that he hasn’t seen anything in her record that shows she has any enthusiasm or vigorous insight into the weighty constitutional issues regularly addressed by the Supreme Court.

Life & Death Battle

It was fundamental question long before the founding of this great nation.  It was fought over during the Civil War.  This tension continues to permeate in our society because at its very core is the conflict over -- no, not the right to die -- states rIghts or federal interests.  Once more today the question was brought before the highest court.  But this time, it will be the Roberts Court, not the Rehnquist Court, to hear Oregon v. Gonzales.

A 1997 Supreme Court decision held that terminally ill patients had no constitutional right for doctor-assisted suicides.  The Court did not rule the practice unconstitution and instead left enough leniency for state-by-state experimentation.  Justice O'Connor provided the essential vote to swing the 5-4 decision.  With Miers pending nomination, it is likely O'Connor's vote will not participate in this decision, resulting in a potential 4-4 split.  Ripe for the taking by either side. 

Oregon is the only state that permits terminally ill patients to obtain lethal doses for doctor-assisted suicides.  Twice Oregon voters have endorsed its doctor-assisted suicide law.  Despite what protestors are shouting about on the steps of the Supreme Court, this as a turf war, not a moral debate.  The question framed isn't one of a person's right to life or death.  The question framed is government's interest in policing controlled substances over the state legislature.  (Interestingly enough, this quesiton presents a paradoxal ideology among the Christian conservative right.  On one hand, doctor-assisted suicide is incompatible with basic morality and traditional role of physicians as "healers."  Yet other the other hand, these believes are at odds with the conservative principle of limited federal interference.) 

There was no indication that Congress intended to set out federal policy on assisted suicide when it passed the Controlled Substances Act. No other federal law directly, or indirectly, prohits assisted suicide and no where in the Constitution did Congress reserve such a right to regulate. It would seem that former Attorney General John Ashcroft seemed to bring this suit out of thin air. But at the end of the day, people will want to know how should the court judge the life of another?

Tiger Tiger in the Sky

I started salivating when I heard about this.  Imagine.  All 3,160 strips of one of the greatest comic strips ever in the history of the world.  Oh that mischievous Calvin.  What possibly could he be up to now?  If you really love me, you'll get me the elegant encyclopedic three-volume The Complete Calvin and Hobbes.

Activist Judges

Former Solicitor General Olson, when asked about the current buzz phrase “activist judges,” stated that he doesn’t like the term. “Everybody uses that term for a decision that they don’t like,” he said. “It’s a label that is not useful.”

Article: ABA - Is the independence of the judiciary at risk?

Bush's latest Gal

I'm opposing Harriet Miers on face value. I admit, I have not read her entire biography nor her ideological philosophy. In fact, I know nothing about her except her resume. Given my qualifiers, her nomination merely demonstrates Bush's long standing policy of nepotism and recruitment from within. As the Washington Post points out, "Miers's low-key but high-precision style has been particularly valued in a White House where discipline in publicly articulating policy and loyalty to the president are highly valued."

Yes, Meirs is female. No, Miers has never sat on the bench. And following Robert's confirmation process, it is unlikely we'll see any working papers produced by Miers as well. Her creditials are certainly lacking for the nation's highest court. I know, not everyone can be as impressive as Roberts; but it would be nice if she's at least clerked somewhere.  (Correction, she did clerk for a federal district court in Dallas after graduating from SMU).

She's a bureacrat, not a litigator. Just because she was a lawyer, doesn't mean she can do the job. Two words: Michael Brown.