Glenna's Blog

The Times has a big piece about foreclosure profiteers in Florida. One of the more humungously rich lawyers defends himself:

“Should I feel ashamed that I have built a successful practice? No one references how committed I am, how I built my firm and how I work 20 hours a day.”

“there is an appropriateness”

Supreme Court, can’t you budget for an editor?

New York Magazine reported a while ago that Elena Kagan liked to torment students when she taught civil procedure. Today the Times reports that browbeating subordinates is a Kagan family trait.

On her mother, an elementary school teacher:

“I did talk to her about calming down and told her that they are still children and have a ways to go,” said Dr. Seidman, who is now director of the private Columbia Grammar School on the Upper West Side. “In almost all cases, it wasn’t anger that was vicious. It was more her being upset with the students for not wanting to push themselves a step further.”

On her brother, a high school teacher:

Aja Colon, a 16-year-old junior, saw a stricter side of Mr. Kagan, who also serves as a disciplinary dean. During an event last fall called Freshmen Fridays, Mr. Kagan tore stickers off students’ shirts that bore labels like “fresh meat” and other inappropriate phrases. “He yells,” Ms. Colon said. “He definitely yells. He’s a fan of that.”

I wish I were a senator. At the confirmation hearings I would ask Elena Kagan, “are you genetically predisposed to humiliate people who have less power than you do?”

On Wednesday lawyers in the Prop 8 trial will make their closing arguments. The judge has come up with 39 questions for them to address. Some of them bring up issues that we partisans haven’t turned to cud yet:

How does the Supreme Court’s holding in Michael H v. Gerald D […] square with an emphasis on the importance of a biological connection between parents and their children?

Michael H is a child custody case in which the Supreme Court denies a biological father visitation rights because there’s another guy on the birth certificate—the mother’s husband at the time she gave birth. Writing for the plurality, Scalia favors the marital relationship over the biological connection because, he says, that’s what American law has always done. 

A pro-gay ruling could use Michael H to defeat two arguments: that America has some kind of grand tradition of privileging biology-defined families; and that kids are better off being raised by biological parents (even if the facts show that they are, the law as stated in Michael H supersedes them).

What are the constitutional consequences if the evidence shows that sexual orientation is immutable for men but not for women? […]

The constitutional consequences are clear: the state would be allowed to discriminate more against lesbians than against gay men. The question’s not academic. At trial the anti-gay side’s only credible argument was that it is a woman’s prerogative to change her mind. Some of their evidence on this point even came from non-religious sources.

If the court finds that lesbianism is whimsical, there are ways to argue we should have marriage rights anyway. For example, all women deserve the same level of protection as gay men, because we are all immutably bisexual. But I hope no one bothers. It’s about time the federal courts recognize that fags and dykes have nothing in common.

When news outlets run stories about government figures, they can either display an official-type photo of the person or a random one. Potential Supreme Court nominee and arguable lesbian Elena Kagan has a nice pic on her office’s website (there are also flattering candids out there), but blogs keep using horrible shots whenever they’re speculating about whether she’s a lesbian—including supposedly pro-gay sites [New York][Slate][Queerty]. It seems like they’re using imagery instead of English to say: “she must be a lesbian, look how ugly she is!”

To counteract the media’s ugly lesbian stereotype, here is a beautiful picture of a lesbian:

Savor this moment. Think about where you are so that you can tell your children one day. Because legal history is being made. Just like judicial activism defined the baby boomers’ constitutional vision, judicial transparency will define ours. And it’s all thanks to huffy op-eds that were published this weekend.

The anti-gay side in Perry v. Schwarzenegger didn’t want the trial webcast and the gay side did. The Supreme Court sided with the anti-gays, so now liberal journalists are refuting its argument. And instead of dissecting the logic of the ruling, they’re lashing out against the entire concept of shrouded judging.

The Atlantic: “why can’t the American people watch what our biggest and most important judges do at work?” Slate: “the Supreme Court’s decision to stay the broadcast […] betrays a deep ambivalence about the same humble American voter whose very rights the court purports to be defending.” LA Times: “If matters of social change are going to be debated in the courts, we all should get to view the process — and, through our reactions, to participate in it.”

Just last week the “cameras in the courts” movement was a populist idea that the populace didn’t care about. Stuck. But because the Supreme Court’s recent anti-camera ruling just happened to hurt Team Liberal, now the Liberals are pro-camera. Judicial transparency has found a constituency which blogs.

Brown v. Board was about racial equality but sparked a war over “judicial activism.” The gay marriage case looks similar: a cultural issue inspiring pundits to pay attention to a totally different legal theory issue. I’m psyched. The conservative justices probably ruled against the cameras because they are grossed out by gays. Now they’ll have to defend judicial elitism—their lifestyle, the cornerstone of their identity!—nonstop for the rest of their lives.

Prop 8 is going to stand because the pro-gay lawyers forgot rule #1 of activism: exploit children.

US Courts only side with plaintiffs who have both rational arguments and sad stories. You can’t say to a judge, “this law makes no sense! Please change it in order to make our society more philosophically coherent.” Procedure requires that the plaintiff show the law injured him. In Perry v. Schwarzenegger David Boies and Ted Olson are presenting a solid rational argument against marriage discrimination, but the sad stories suck.

If the plaintiffs just wanted their relationships to have all the legal characteristics of marriage, they’d have an easy time showing injury. The New York Times recently calculated that the lifetime dollar-cost of being in an unmarried couple can easily run into the hundreds of thousands. But Perry isn’t asking for the legal characteristics of marriage—it’s going for the word marriage.

The only possible way that terminology can injure people is psychologically. In other words, hurting their feelings. So the plaintiffs, middle-aged middle-class partnered homosexuals, say things like:

“I’m not good enough to be married.”

and

“I love kids … To think that you have to protect some children from me, from Jeff, there’s no recovering from that.”

This testimony is awful. It’s reinforcing all the worst stereotypes about the liberal constitutional vision (wimpy) and about gay men (wimpy). (The worst stereotypes about gay women have to do with hair and makeup. I won’t analyze what the lesbian plaintiffs are doing on that front.)

To show that bad terminology hurts people, Boies and Olson shouldn’t have put histrionic grown ups on the stand. Gay teens and children of gay parents suffer more, plus they’re cuter.

If Obama doesn’t fight against every American lesbian’s quest for health insurance, swing state voters will think this photo is real.

Karen Golinski works as a lawyer for the 9th Circuit. After HR told her she couldn’t add her wife to her insurance, Alex Kozinski—the circuit’s chief judge—cleared up the rule and ordered HR to process her form. It was just an internal administrative snafu, not a contested law suit, so HR had no problem executing Kozinski’s order. But then Barack Obama intercepted the lesbian insurance form, running it in for a touchdown!

Seriously. The Obama administration, acting through the Office of Personnel Management, forbade Blue Cross Blue Shield from insuring Golinski’s wife. Now Kozinski has ordered Obama to back off, framing the issue in terms of separation of powers, which is the judicial style of calling someone Hitler.

Obama’s coming off not only as mean but as stupid. Of all the lesbians in America, he picks on one who works as a lawyer and whose name rhymes with the judge deciding the case?

Anyway, I think I speak for all law school graduates when I say it is AWESOME to watch the judiciary and executive square off. Law v. Order isn’t on every day. Usually when the president shirks judges, he pretends he’s not, for example by getting John Yoo to write up a weaselly legal memo. And even when he’s obviously contradicting what a judge ordered, the judge doesn’t get to sass him right back. He has to wait for someone to sue about it, then the case makes its way up… This is different because Kozinski is operating as an administrator—a boss standing up for his employees—but because he’s also a judge he has the power to say what the law is.

Unfortunately for married lesbians, Kozinski’s only power is to say what the law is. The executive is the one who actually tells people what to do. If Obama is serious about keeping his anti-gay marriage record spotless (it seems like he is) then he can just scrounge up a technical reason why Kozinski doesn’t have authority here. Golinksi will then have to file a law suit, taking forever, wasting money, etc.

Scalia holds a coherent judicial philosophy which depends on both historical knowledge and rhetoric skills. But a lot of Americans see him as a mere politician, railing against gay marriage and abortion while paying lip service to racial equality. Why do they insist on caricaturing him? It’s not because they’re unsophisticated. It’s because Scalia’s judicial philosophy—the one thing that makes him better than Sarah Palin—obviously forces him to oppose Brown v. Board, but he refuses to admit it.

Since Scalia won’t explain himself, I will explain him.

Scalia thinks that rule of law is more important than integrated schools. That’s okay; every serious judge in America probably believes that rule of law is more important than integrated schools. If it weren’t for rule of law—the fact that courts help people after they’ve been treated unfairly—the only people with any power at all would be cops, drug kingpins, and Jared Kushner. Rule of thugs.

For most judges, rule of law and integrated schools don’t conflict because standing up for minorities seems to them like the opposite of thug rule. But this approach doesn’t strike Scalia as lawful at all. He thinks that when judges allow affirmative action and strike down unequal marriage laws they over-enfranchise minorities. Favoring certain people = rule of thugs. Super-powered courts are just as bad as powerless courts. Except in Scalia’s vision of lawlessness, educated black people, Ellen Degeneres, and Portia de Rossi rule the streets.

In order to resist favoring minorities, Scalia judges equality cases according to how he thinks the 19th century framers of the Equal Protection clause would want him to. Historians have shown that the framers did not intend to integrate public schools. So if Scalia is serious about his philosophy—and he’d better be, because it’s the only thing that morally justifies the dozens of anti-minority opinions he’s written—then that means he should believe Brown v. Board was wrongly decided.

Presumably Scalia won’t admit that because he thinks he’ll sound like a bigot. But everyone already knows he’s a bigot. Now he sounds stupid, too.

Some people decorate their houses creatively; some people make money creatively; some people aren’t creative at all. NY Times columnist Thomas Friedman thinks that in our exciting new economy, only those in the second camp will be able to eat—and he seems to be cool with this. Sure, not all of us are superstar hustlers, but that’s just because we have bad educations. If public schools start teaching “entrepreneurship, innovation and creativity” then wealth disparity will melt.

What inspired Friedman to blame poverty on uncreativeness?

“A Washington lawyer friend recently told me about layoffs at his firm. I asked him who was getting axed. He said it was interesting: lawyers who were used to just showing up and having work handed to them were the first to go because with the bursting of the credit bubble, that flow of work just isn’t there. But those who have the ability to imagine new services, new opportunities and new ways to recruit work were being retained.”

Another interesting factoid about laid off lawyers: lots of them are recent graduates who would’ve been laid off plus punched in the face if they’d told a partner that they wanted to change how he practiced law.

I guess the Friedmanian solution is to start our own firm. Clients will love us because we’re cheap, we tweet, and our memory of Introduction to American Legal History is way sharper than those old experienced guys’.

Or here’s a less dangerous idea: since America is wealthy but there’s not a lot of work to go around, we should distribute the wealth according to some other metric besides work. Niceness, maybe, or funniness. And we should give everyone a few sandwiches per day just for being themselves.

UPDATE: here’s an anti-Friedman rant from a lawyer who survived layoffs at her firm. She refuses “to fall into the trap of blaming all the people who had to lose their jobs to justify my own privileged position[.]”