Supporters and protesters on the 35th anniversary of Roe v. Wade (Photo: Diego M. Radzsinchi / LEG)
Practitioners, scholars, politicians and law graduates made their strong opinions known in 2013 on topics ranging from same-sex marriage and immigration to gun control and judicial appointments. The state of the legal profession played prominently in the NLJ’s opinion pages, as did legal education and government surveillance. Here are some highlights.
IN THE COURTS
Erwin Chemerinsky, dean, University of California, Irvine School of Law (July 1)
The U.S. Supreme Court’s decision in United States v. Windsor, striking down Section 3 of the Defense of Marriage Act, reflected themes that have been present in Justice Anthony Kennedy’s jurisprudence for years: a concern about federalism and a desire to protect gays and lesbians from discrimination. These came together powerfully in a ruling that will matter for married same-sex couples all across the country.
But as much as Kennedy has been with the conservatives in federalism decisions, he has been with the liberal justices in advancing rights of gays and lesbians. In fact, he has written every major Supreme Court decision in American history doing so.
Evan P. Schultz, attorney and former editor at Legal Times (April 8)
As the U.S. Supreme Court ponders whether there’s any sort of federal right to gay marriage, the justices might want to consider one little peek into the wider world of discrimination that gays in America still suffer.
For too long, homophobes of all stripes have slandered lesbian, bisexual, gay and transgender people by claiming that they should “stay in the closet.” For anyone who thinks that having the right to say “I do” will fix the problem, it won’t. Simply put, gay marriage won’t end gay bashing.
Nancy Northup, president and chief executive officer of the Center for Reproductive Rights (Nov. 4)
On Oct. 28, a federal district court drew an important legal line against Texas’ attacks on women’s health and constitutional rights, ruling that a provision designed to shut down abortion providers in the state was unconstitutional. The judge couldn’t be more correct.
As the court recognized, this requirement would have forced at least one-third of the state’s abortion clinics to stop providing those services immediately.
Clarke D. Forsythe, senior counsel of Americans United for Life in Washington (Nov. 4)
What the [Texas law] requirement really spotlights is the myth that abortion is “between a woman and her doctor”: Abortions are increasingly done by strangers who fly in and never see the woman again.
The silver lining is that the decision creates an opportunity for the Supreme Court to review its record as the national abortion control board.
Orrin G. Hatch, R-Utah, member and former chairman, Senate Judiciary Committee (Nov. 11)
Democrats opposed more Republican D.C. Circuit appointments in 2006 because “written decisions per active judge” and “total number of appeals filed” had declined. Since then, these benchmarks have declined by 27 percent and 18 percent, respectively. D.C. Circuit Chief Judge Merrick Garland confirms that cases scheduled for argument per active judge have also declined by 11 percent since then.
Democrats also opposed more Republican D.C. Circuit appointments in 2006 because judicial emergency vacancies had not been filled. Judicial emergencies have increased by 90 percent since then, and the percentage of those vacancies with nominees has declined from 60 percent to only 47 percent.
No Democrat has either said that the criteria used to block Republican nominees in 2006 were wrong or explained why different criteria should be applied to Democratic nominees today.
Patrick Leahy, D-Vt., chairman, Senate Judiciary Committee (Nov. 18)
Senate Republicans attempt to justify their opposition to three of the most qualified attorneys in the country with an argument that the court’s caseload does not warrant the appointments. Yet during the Bush administration, these same senators saw fit to confirm judges to the 9th, 10th, 11th and again the 10th seat on the court when the caseload was lower than it is today. Just eight active judges currently are on the D.C. Circuit. When Bush was in office, it operated at full strength with 11 active judges. The same Republican senator who in these pages recently cited caseload concerns once noted that “comparing workloads in the D.C. Circuit to that of other circuits is, to a large extent, a pointless exercise. There is little dispute that the D.C. Circuit’s docket is, by far, the most complex and time consuming in the Nation.”
Bryan Schwartz, chairman, Levenfeld Pearlstein (Sept. 2)
Most of us in the legal profession — myself included — have felt that sense of being trapped (or, as we hear daily, “swamped”). We have believed in the impossibility of getting any time away — a week, a weekend, an evening. The tragedy is that it is very possible, and not only for senior partners like me. Certainly, it takes planning. And certainly, it requires one to establish boundaries. But it is within the reach of all lawyers working in any reasonably humane environment, and in the end it makes us better attorneys.
For me, the illusion of multitasking without sacrifice has been shattered. I know that I am a better husband, father and friend when I have truly turned off work.
James E. Moliterno, professor, Washington and Lee University School of Law (June 17)
In times of change and challenge, some individual lawyers have seen change around them and adjusted and some have not. But never has the profession seen change and adjusted. Instead, the profession as an entity has acted as if it had eyes on the back of its head. But none on the front.
Sergio Garcia, law school graduate, denied admission to the California State Bar (Sept. 16)
I have complied with every requirement under the law. I have spent a lifetime educating myself, believing in an implied contract met by my performance — getting and paying for my education, passing the California bar exam on the first try and being ready, willing and able to contribute to this great country.
I have waited nearly 19 years, living in limbo, a prisoner of an immigration system that only works for those profiting from it, a system that trades human suffering for dollars.
I will one day be sworn in, either by legislative enactment, by fighting at the U.S. Supreme Court or simply waiting for my priority date to arrive. The only constant and certain thing in this David versus-Goliath battle is my unwavering commitment to protecting the American Dream for generations to come.
Stephen B. Bright, president, Southern Center for Human Rights; Sherrilyn Ifill, president and director-counsel, NAACP Legal Defense and Educational Fund Inc.; Virginia Sloan, president, The Constitution Project (Dec. 2)
Since the 50th anniversary of the Gideon decision in March, some well-meaning individuals have recommended the creation of a bipartisan commission to study the deficiencies in providing lawyers to indigent criminal defendants and propose solutions. We don’t doubt the sincerity of the advocates of a study commission. However, now is a time for action, not another study by a commission.
Eve Brensike Primus, professor, University of Michigan Law School (March 18)
People hailed Gideon v. Wainwright as a landmark case that would forever change our criminal justice system. Yet here we stand, 50 years later, and the promise of Gideon remains largely unfulfilled.
Indigent defendants often sit in jails for weeks or even months waiting to meet an attorney. In many jurisdictions, defendants languish in jail for longer than the length of the maximum sentence for their alleged criminal offenses and still never see an attorney.
David Stern, executive director, Equal Justice Works (Sept. 23)
Would you hire a lawyer who took out a mortgage without understanding the repayment obligations? Yet every year incoming law students take on mortgage-sized debt — currently averaging about $122,000 to attend a private law school — without knowing the terms or having a plan for how they will repay these loans.
Responsibility for this ignorance falls both on the borrowers and the law schools that help students secure the loans. Although I appreciate that law schools are developing courses to train students on how to read corporate financial statements, they aren’t doing enough to help students understand the complex job, salary and repayment information needed to make good financial decisions.
Ruth Anne Robbins, professor, Rutgers School of Law-Camden (Feb. 18)
The time has come for entire law school faculties to move the focus of nonclinical experiential courses toward the notion of client. True curricular reform will begin when law schools, consistent with the American Bar Association’s call, choreograph a curriculum that is constructed around client-centeredness.
Dorothy A. Brown, professor, Emory University School of Law (April 15)
The question that needs to be asked is: What makes for successful lawyers in the 21st century and how would a new rankings system reward law schools that did the job well? Although U.S. News & World Report does not seem to care, lawyers, law schools and consumers should.
Law schools must develop leaders who are problem solvers and collaborative workers — leaders who have the integrity to say “no” when no one in the room wants to hear it. If a rankings system could take that into account, society as a whole would be better off.
POLITICS AND POLICY
Rep. Adam Schiff, D-Calif., member, House Intelligence Committee (Aug. 13)
While the Foreign Intelligence Surveillance Court’s responsibilities have grown, Congress has not updated the court itself to put in place new procedures to allow it to function in a rigorous and more transparent fashion. The secrecy necessary in the court means it will never operate in precisely the same way as a traditional court, but sensible reform can be made to serve as a credible check on overreaching surveillance requests.
Peter L. Davis, professor, Touro College Jacob D. Fuchsberg Law Center (March 25)
If we are going to try to calculate the statistical likelihood of a “good guy with a gun” having been present at a mass shooting, we need to consider the number of people nearby at the time of the violence. Sixty-two mass shootings [in the past 30 years] took place in workplaces, schools, movie theatres, shopping malls, government buildings, places of worship, restaurants and cafes.
There have been “good guys with guns” present at prior shootings. If you think about it, there are some pretty good reasons for a gun-carrying civilian not to return fire. First, he may simply panic. Second, the bystander may assess the attacker’s firepower against his own and decide he would not stand a chance. Third, he might quite sensibly decide not to use his gun because a gunfight might simply increase the carnage. In all three scenarios the good guy with a gun does not stop the bad guy with a gun.