Schramm's Docket

Throughout the Supreme Court’s new 2010 term, PJP faculty member Harold Schramm will offer commentary and analysis of the Court’s caseload. Journalists can follow Schramm’s analysis to build stories of their own. Today’s post speaks to the predominantly Catholic membership of the Roberts Court – an unprecedented development – and to the erosion of the once-sacred “right to counsel.”




On Monday, October 5, the Supreme Court will begin its new term officially after some “false starts”. There has been a special and preliminary hearing on the commercial speech case (Citizens United v. FEC, in which the Court considered whether the McCain-Feingold restrictions on corporate campaign spending violate the First Amendment); and Justice Sotomayor has already been sworn in twice so no further official recognition of her appointment need be made. Despite all of this anticipatory flutter, the Court is ready to take on new cases and has scheduled three for the first Monday morning in October.

A Catholic Court?

There should be no dearth of Justices at the traditional Red Mass scheduled each year at the Washington’s Cathedral of St. Matthew the Apostle on the Sunday before the beginning of the term. There are now six (count ‘em six) Justices on the bench with strong Roman Catholic backgrounds. Justices Kennedy, Scalia, Thomas, Roberts, Alito and Sotomayor have traditional ties to Catholicism. In addition, three of the Justices have Jesuit connections: one of Justice Scalia’s nine children (how appropriate for a Justice to sire nine children, enough for a court of his progeny!), his son Paul David Scalia, attended Holy Cross College in Worcester, MA and is now a priest in Arlington, Virginia (you can read his attack on his alma mater for accepting money from pro-abortion rights groups like NARAL and Planned Parenthood here ); Clarence Thomas is an alumnus of Holy Cross as well; and Chief Justice Roberts is married to yet another Holy Cross alum. Whereas thirty years ago all but one justice was Protestant, today the balance of religious affiliation has been completely reversed: now there is just one Protestant justice, John Paul Stevens, and this in a country where sixty percent of the population claims a Protestant affiliation.

Chief Justice John Roberts departs Washington's Cathedral of St. Matthew after the 2008 "Red Mass."

The effect of this religious uniformity (the remaining two justices – Stephen Breyer and Ruth Ginsburg are Jewish) is yet to be measured or defined, but it stands out to some of us as a peculiar and remarkable coincidence. One can only speculate as to its subtle influence in decisions, but the official (and absolute) position of the Church on issues like the death penalty and abortion makes for interesting theorizing.

Does a defendant’s silence answer in the affirmative, in the negative, or not at all?

The second case to be heard on Monday the 5th is interesting because one thought that the issue of right to counsel had been settled. After all, Gideon v. Wainwright, which established this right in the Warren Court era, is one of the landmark cases in Supreme Court history and in subsequent cases the Court has expanded and clarified that right. But recently, the Roberts Court, perhaps in a return to conservative thinking, has agreed to take a new look at the parameters of the call for counsel and the restrictions on interrogation after that call has been sounded.

Last year, in Montejo v. Louisiana, the Court considered whether an indigent defendant, having had counsel appointed to his or her case, must take additional affirmative steps to “accept” the appointment in order to secure the protections of the Sixth Amendment that preclude police-initiated interrogation without counsel. By a vote of 5-4, it declared that such steps were indeed necessary and in the absence of them, statements made to police were admissible.

In Maryland v. Shatzer. the Court now will hear arguments about the finality of the “right to counsel” assertion, and will consider whether the constitutional claim once made, remains sacrosanct even after the passage of time. The case involves a defendant, Shatzer, who, in the midst of interrogation over a charge of sexually abusing a child, invoked his right to counsel and was later convicted of the crime and sentenced to prison. While in prison a second charge was re-opened (that the defendant had sexually abused his own three-year-old child) and this time, as he was being interrogated, Shatzer waived his right to counsel and admitted to the crime. However, once that case came to trial, he moved to suppress the confessions he made earlier arguing that his earlier invocation of his constitutional right to counsel was still applicable.

Justice Sotomayor will be given a chance to test her 2nd Circuit reliance on precedent since the precise issue seems to have been settled in 1981 in Edwards v. Arizona (with the right to counsel, once declared, to remain effective no matter the passage of time). But precedence has a power at the circuit court that it does not carry at the Supreme Court since it is the Supreme Court that actually sets the precedent.

Look for Edwards v. Arizona to be overturned. With a five member conservative majority, Chief Justice Roberts seems intent on influencing the direction of criminal procedure and removing the handcuffs from police officers in the interrogation process. It may be a reflection of the Chief’s “no more Mr. Nice Guy” persona as noted by a recent Newsweek article, and a change in the Court’s view of precedent in practical criminal law.

222 Years Ago Today…

...the Constitution was signed and sent to the states for ratification. Five years ago, Congress passed the Byrd Amendment declaring every September 17 “Constitution Day” and requiring all schools and universities receiving federal funding to provide an educational program on the U.S. Constitution on or around that date. (Interestingly, some have claimed that this mandate is itself unconstitutional since the document, which describes the limited powers of the federal government, has no role for the federal government in education).

This year, timed to Constitution Day, the National Constitution Center released the results of a poll it conducted in association with the Associated Press examining, among other things, Americans’ attitudes toward government intervention in domestic affairs. The most heartening discovery was that three-quarters of those surveyed agree with the statement that the Constitution is “an enduring document that remains relevant today.” But, as might be expected, a sharp division of opinion was evident in those constitutional questions at the heart of the pubic debate today: More than a third of the respondents believe it is “sometimes okay to break the law” when public safety may be at risk. The group was more or less evenly split over whether the federal government should guarantee health insurance for all with 47 percent saying yes and 50 percent no. The same break occurred on the question of whether amnesty should be provided to illegal aliens – 47, for; 50, against – and while 46 percent believe that same-sex marriages should be given legal recognition, 52 percent say they should not.

A suspicion of executive authority was evident in the reaction to other questions. Only 24 percent of Americans believe that an economic crisis would prompt them to give more power to the president at the expense of the Congress and Courts. And even when the failure of a company would seriously harm the economy, nearly two-thirds of those surveyed still opposed the federal government taking partial ownership of private companies. You can read the entire study (here).

TB

Five Recent Stories Illustrating “The Constitution in our Midst” (the third in our series)

"The People Shall Have the Right to Hunt and Fish..."

Urged on by the National Rifle Association and other Conservative Groups, State Legislatures are Passing Constitutional Amendments to Protect Sportsmen from “Overzealous” Environmentalists

Alabama was the first. In 1996, it amended its state constitution to include a right to hunt and fish. The measure had to be put on the ballot that year, but its passage was never in doubt; voters approved by an 81 percent to 19 percent margin. Then other states followed. Louisiana. Minnesota. Montana. North Dakota. Virginia. Georgia. Most recently, in 2008, Oklahoma passed a constitutional amendment guaranteeing the right to “hunt, trap, fish, and take game.” In all, ten states now have such constitutional provisions. Another, Arkansas, will vote on a similar measure amending its constitution in 2010.

In fact, the state with the oldest constitutional language protecting sportsmen — Vermont — did so back in 1777, as a way of guarding the common fisherman from the medieval policy of “the king’s deer”; that is, the notion that hunting should be reserved for the privileged and that the hunters’ kill belonged exclusively to the monarch (think of all those scenes of Robin Hood and his merry men dining on venison that they had poached from the king and you get the idea why that was so brazen an act for their times.)

But this newest trend is different, of course. According to the National Rifle Association, the continued interest in making hunting a right in the 21st Century is thanks to a thoroughly modern “problem”: Efforts by "anti-hunting" groups like the Humane Society of the United States and People for the Ethical Treatment of Animals, or PETA, who the NRA insists would rather ban the sport altogether. (Those groups almost uniformly dispute the NRA’s claims as scaremongering; asserting, instead, that their campaigns are for regulating sporting activities to eliminate “inhumane practices,” not banning gun sports altogether). Urged on by their success, the NRA is now lobbying several other states in the South and Midwest to follow suit.

This recent push to consider constitutional protection for hunting and fishing, though, goes beyond such measures. In Florida, commercial fishermen turned to the Fourth Amendment to the US Constitution to protect them from a new federal requirement that required their boats to be equipped with electronic location devices as they worked the waters of the Gulf of Mexico. The devices are meant to tell National Marine Fisheries Service officials when fishing boats penetrate areas closed for reef fishing. But in a 2006 suit filed in federal court against the NMFS, the Gulf Fishermen's Association contended that the use of these devices violated the U.S. Constitution’s Fourth Amendment protections against unreasonable searches and seizures. (You can read their complaint here). In late 2008, the suit was settled out of court when the fishermen began to see that the advantages of the new technology (“instant communications from vessel to home, secure vessel to vessel communications, tracking your own vessel or vessels, proving the [the Gulf fishing industry] can be accountable,” thereby thwarting further regulation) outweighed their concerns about an invasion of privacy. Nonetheless, the issue highlighted a suspicion of federal intrusion that is quick to be excited.

Yet another development that has led to fishermen squaring off against the federal government involves the government’s attempts to create a national fishing registry. Beginning in 2010, the federal government will require all states to control fishing activities through licensing programs, whether that fishing is being done from a commercial or private a boat or even from a lonesome cove along the shore. And this includes sport fishing as well. The authorities says it is to better govern the waters, but there are plenty of people crying foul.

Mind you, states have required fishing licenses on at least a limited basis for many years now, but the odd angler tossing a line to get his night’s dinner has long been seen by people as a protected breed. No more. The goal is to create a national registry in order to monitor fishing activity.

Finally, there is the second amendment ‘incorporation question.” The second amendment, which protects a “right to bear arms” became the subject of great controversy (not that has ever not been) when in 2008 the Supreme Court, in DC v Heller, discovered a private right protected by the second amendment. That is, the Court, for the first time, interpreted the second amendment as not only protecting a collective right to gun ownership (as in the case of militias), but a right for an individual to own a firearm for private use.

That raises an interesting issue, one that the Supreme Court may have to address very soon. The Heller case read the second amendment as applying only as a ban on the federal government and federally-administered entities like the District of Columbia. But gradually, over the last few decades, the Supreme Court has begun to read the Bill of Rights as providing a restriction on all government activity, not just the federal government. This is known as the “incorporation doctrine” and the Court has so far been selective in its determination as to which of the freedoms guaranteed in the Bill of Rights apply to the states. The first amendment, for instance, has been incorporated and so have the fourth and most of the fifth but not the seventh amendment guarantee of a jury trial for civil cases.

Now, since Heller, the circuit courts have considered several cases in which the incorporation of the second amendment is at issue. In the Ninth Circuit, the court ruled that the second amendment does indeed apply to the states (though the case is now scheduled to be re-heard there), but in the Second and Seventh, it ruled the opposite. Whenever there is a so-called “circuit-split,” the Supreme Court is more likely to grant certiorari. Look to the Court to consider this issue very soon.

TB

Another new justice in 2010?

The Associated Press is reporting today that Justice John Paul Stevens is giving signs that the coming Supreme Court term will be his last. In their report (see here), the news agency reads the tea leaves to note that Stevens has hired only one clerk for the 2010 term while the remaining justices have completed their rosters of four. Justice Stevens, who is part of the Court's liberal wing and one of the longest serving justices in Supreme Court history, is 89 years old, so retirement, if not imminent, has to at least be a yearly consideration. With a Democratic president and a Democratic Senate, this may be a unique opportunity for the Justice to exit gracefully while a like-minded replacement glides to easy confirmation. If he were to wait another year, Obama would still be president, but the Senate make-up would be subject to the outcome of the 2010 mid-term elections, a time when, traditionally, the out-of-power party tends to make some significant gains. If Stevens does indeed step down at the end of this coming term, Obama would be in a position to make his second Supreme Court appointment, always a significant part of a president's legacy. Among those who have been mentioned as potential nominees are Solicitor General (and former Peter Jennings Project board member) Elena Kagan; longtime University of Chicago and now Harvard law professor Cass Sunstein (who has been nominated by Obama to head the Office of Information and Regulatory Affairs); Seventh Circuit Judge Diane Wood; Stanford law professor (and former PJP participant) Kathleen Sullivan; and former Georgia Supreme Court Chief Justice Leah Ward Sears. Once again, the president would be replacing one liberal with another, doing little to change the court's present 5-4 balance. But justices have a way of surprising those who nominate them, as David Souter did when, nominated by a Republican president, ended up siding with the liberal wing of the Court throughout much of his term there.

TB

Privacy and the Internet -- Maureen Orth's Eyeopening Piece on the Craigslist Killer

In this month's Vanity Fair, Maureen Orth, writing on the Craigslist killer, Philip Markoff, details just how much of our lives we have ceded to the Internet...

"Few Americans, even those from the younger, Internet generation, seem to understand how easily their clicks and text messages can be detected, and how little privacy any of us have anymore. Every search, every posting, every text message or Twitter, leaves a cyber footprint. The content of every e-mail sent by any one of us is kept by the Internet service provider and stored for a period of time, usually six to nine months. Google and Gmail used to store e-mails indefinitely; now they claim they’re within the same range, but all the e-mail we choose to keep until we delete it can also be accessed by the provider. “If you can see them, they can see them,” says Rasch.

Boston law enforcement started backtracking to find out Andy’s [Markoff's] identity, first establishing that the e-mail account at Live.com came from Microsoft in Redmond, Washington. Next they had to find out who was accessing that account and from where. “They used legal processes [court orders and search warrants] to get Microsoft to disclose the unique computer-ID number, or I.P. [Internet-protocol] address, that was used to send the e-mail answering the Craigslist ad,” Rasch explains. Craigslist was able to see what time and date the user of the Live.com address responded to each of its postings—when he clicked Morgan’s or the other two women’s ads, for instance. “People who use Craigslist leave more of a trail than people who just use the phone,” says Rasch. Conley goes further: “People feel online communication is pretty discreet. That’s entirely false.” (Hotel security services routinely monitor Craigslist to see how much of the erotic trade they are attracting.)

The police searched the hotel’s surveillance tapes to see who appeared on-camera just after the killing. Simons’s phone call and her text to Brisman right before the killer got to Brisman’s room made the timing precise. The surveillance tapes showed that, just after the killing occurred, a tall, blond, white male matching Leffler’s description of her attacker was looking down and working his phone while walking briskly but nonchalantly away from the Marriott Copley elevators. Surveillance tapes at the Westin Copley revealed a remarkably similar-looking person texting upon leaving that hotel in the time frame of the Leffler holdup. “He doesn’t seem to rattle very easily,” says Conley.

The police also got important clues about the AMDPM@Live.com e-mail account [the account which Markoff used] —what information the subscriber provided when it was created and the I.P. address of the computer used to create it. “What they learned was that the e-mail account was a throwaway account, created a day or two before, just for the purpose of making these connections,” says Rasch. The address came back to an Internet service provider in the Boston area. “The provider was able to give the police the name and address of the customer to whom they had assigned the particular I.P. address. This doesn’t mean necessarily it’s the guy, but it’s close enough,” says Rasch.

When the police went to investigate the physical location—8 Highpoint Circle, in Quincy, Massachusetts, a suburb of Boston—it turned out to be a large apartment building. The I.P. address was definitely associated with a particular person, but it was a wireless router, “so anybody in the building could have been using this address,” says Rasch. “That’s the nature of wireless. So, while the police had a name and address that got them close, it did not give them the suspect. Anybody within a few hundred feet of the router would be able to access that router and be assigned the Internet-protocol address the police were looking for.” Nevertheless, Rasch says, the first thing police did, once they had a name, was exactly what many of us would do—they went to Facebook and Google to find out who their suspect was and what he looked like. Then they fell back on tried-and-true detective work and began an old-fashioned stakeout. They were shocked to learn who it was they were looking for...

You can read the complete article at VF.com, here.

Brain Imaging and the Criminal Mind: Can Neuroscience Deliver on the Promise of More Reliable Convictions?

Each year, the Gruter Institute for Law and Behavioral Research, brings together the best minds in neuroscience and law, as well as economics, philosophy, biology and other disciplines, in its annual Squaw Valley Conference. This past spring, I attended the 2009 conference which was focused on “Law, Behavior & the Brain.” Some 50 interdisciplinary experts shared their current thinking, studies, and predictions on an array of topics broadly related to the impact on criminal law of fast-breaking neuroscience developments. The topics covered the spectrum, including moral decision making and conscience, the role of psychopathy in criminal behavior, the role of emotions, the use of emotional common sense in constitutional interpretation (more on that peculiar notion in a later post), the distinctive features of juvenile brains, disability adjudication, brain scanning, detection of the way that the social background of decision makers influences decisions to punish people accused of crime, the revelations of brain scanning regarding mental states in criminal law, and the patenting of thought processes. A surprising number of these developments in neuroscience have implications for constitutional law, especially with respect to the Fifth and Fourteenth amendments.

In particular, a number of speakers expanded on the connections between neuroscience developments and criminal law and procedure. Brain imaging, in fact, has been offered by defendants in criminal cases for many purposes, such as attempting to show incompetence to stand trial or to waive basic constitutional rights like the right to a jury trial. Imaging has also been offered in an effort to rebut the mental element of crimes, called the mens rea (“guilty mind”), such as intent or knowledge, to prove the mental disease or defect element of the insanity defense, and to mitigate the imposition of the death penalty. A few unsuccessful efforts have been made to admit brain scans for the purpose of demonstrating actual innocence. . It is important to note that the issues involving mental states, aside from competence to stand trial or to waive a constitutional right, all involve past mental states – that is, mental states that existed at the time the alleged crime was committed.

The pictures here of a normal PET scan, left, and a PET scan from convicted murderer, as reported by the DANA Foundation, show considerably less activity in the prefrontal region at the top of the image, an area of the brain associated with control over aggressive activity.

In terms of specific types of brain imaging, CT scans and MRI images have been readily admitted in court as proof of brain disease or trauma. Courts have been far more guarded, however, about admitting scans such as PET (positron emission tomography) or fMRI (functional magnetic resonance imaging) when offered as the basis for inferences about broader issues such as competence, insanity, or criminal responsibility in general. Somewhat more liberal standards have been applied to offers of mitigating evidence in death penalty cases, since it is generally acknowledged that death is different. In ruling, courts have focused on reliability standards as well as relevance and probative vs. prejudicial considerations. Other types of brain scans have been developed as well, such as SPECT (single photon emission computed tomography), but also including some types (such as “brain fingerprinting”) that are not supported by most neuroscientists. Criminal trial judges routinely face offers of evidence based on expert testimony on these matters and many – perhaps most – of their decisions are not appealed and, therefore, are not published.

By way of examples of court decisions to date, one of the earliest cases was the 1992 New York case of People v. Weinstein. Herbert Weinstein was a 65-year-old executive who was charged with strangling his wife, Barbara, and then throwing her body from a 12th-story window in order to make her death look like a suicide. In that case, the trial court judge ruled that a PET scan showing reduced brain function in and around an arachnoid cyst in the frontal lobe of Weinstein’s brain was admissible. Weinstein had admitted murdering his wife but claimed that the cyst was evidence that he could not be held criminally responsible. Fearing that the brain scan evidence might unduly influence the jury, the prosecutors offered a bargain to Weinstein: he would plead guilty in exchange for a reduced charge of manslaughter.

In People v. Mezvinsky, a 2002 federal case, however, the trial court refused to admit a PET scan to support a claim that the defendant was incapable of deception in a fraud prosecution. Similarly, in People v. Protsman, a 2001 California case, the court refused to admit a PET scan to demonstrate decreased frontal lobe activity due to traumatic brain injury such that he could not formulate intent to commit murder. These cases are representative of the case law because they show the admissibility on issues of injury or disease but the refusal to admit images to go beyond that – to show the connection between reduced or impaired brain function and the formation of mental states essential to the crimes charged.

In Canada, the Chief Justice Is a Woman
While the US gets set to put only its third woman on the Supreme Court, Canada begins its tenth year with a woman, Beverley McLachlin, as the chief of its highest court. Indeed, McLachlin is one of seven women who have been appointed to Canada's Supreme Court, four of whom are presently sitting on that nine-judge bench. That's a balance that Justice Ruth Bader Ginsburg and others dreamed would long ago have taken place in the United States (see the New York Times interview with Ginsburg on this subject here).




Of course, Americans would probably bristle at the process Canadians use to appoint their justices. Their Supreme Court, like ours, is composed of eight Puisne (junior) Justices and a chief. But there is no legislative body or provincial input on the nominations to the Court. Instead, recommendations are made by a committee of the cabinet, whose wishes are delivered to the Canadian Governor General (the queen's viceroy) in consultation with the prime minister. Three of the nine justices must, by law, be from Quebec which is both a practical and political accomodation: in addition to having separatist urges, Quebec follows a civil law system while the rest of the country follows the common law approach used in England and the United States.

Yale's "Blood Veto": How Fear of Retribution Can Still Stop The Presses

After reading a story in yesterday's New York Times on the decision by Yale University Press to publish Jytte Klausen's "The Cartoons That Shook the World," a book about the 2006 uproar over Danish cartoons of the Prophet Muhammad, we asked journalist Harry Siegel, a 2009 Jennings Fellow, to post a response here. To Klausen's great regret, the publisher refused to include the cartoons themselves for fear of stirring more violence. Siegel is an editor at Politico. In 2006, he resigned as the editor-in-chief of New York Press when ownership decided to pull these very same cartoons from an issue dedicated to articles about them. While Yale's action does not, of course, constitute a first amendment issue, it does raise the question: when publishers themselves (not the government) censor material from public view, what is the proper response?

The controversy surrounding the Danish Muhammed cartoons continues to be, well, cartoonish. But the double-speak about what is and is not acceptable to print, and why, is a much more serious matter.

The latest development came in a dispatch in today's New York Times reporting that Yale University Press, well respected for its publication of materials from the Soviet archives, decided the 12 drawings were too hot to print — in a book about them, Brandeis Professor Jytte Klausen's forthcoming "The Cartoons That Shook the World.”

To recap the absurdities:
-Yale not only pulled the cartoons, but also several other historical images of Muhammad that have seen print before, inspiring no bloodshed, or threats of it.

-The determination to pull the images was made by a secret panel, whose recommendations, we are assured by Yale University Press head John Donatich, were "overwhelming and unanimous." Since the report wasn't public, there's no way to know if that's true, or who was making the recommendations. Klausen says Yale would only let her read a summary of the report if she signed a confidentiality agreement.

-Donatich told the Times that he had published other controversial books and “never blinked.” But, he added, “when it came between that and blood on my hands, there was no question.” Given that the publication of the cartoons by the New York Sun and other American outlets inspired no violence at all, this seems at once outlandish and offensive. In any case, it's a scary standard for what can see print, establishing what could be called a blood veto. (And his example of his past editorial bravery? An unauthorized biography of Thailand's king.)

-Donatich also pointed out that since the cartoons can be easily found online, reprinting them could be seen as gratuitous. If print's obituary does run online one day, expect to see this rationale in the lede.

Add to Yale's follies this patched-in sentence near the end of the Times report: "Other publishers, including The New York Times, chose not to print the cartoons or images of Muhammad when the controversy erupted worldwide in February 2006."

Fair enough, except for the paper's "when the controversy erupted" timeframe. Nearly four years after the cartoons were printed in the Danish paper Jyllands-Posten, and after the riots they nominally caused were front-page news worldwide, the paper of record has never seen the images as "news that's fit to print." The Times report today runs with a large, blurry and smeared shot of protesters that looks little better online, and certainly appears to be beneath the paper's usual image standards. One wonders if the paper slotted one of the cartoons, and then made a late pull.

While the bout of self-censorship is surely newspeak and double-speak, it's not Orwellian that there's no top-down authority governing thought content. Instead, newspapers, book publishers and television stations have taken it upon themselves to yield before any such coercion is necessary.

IRELAND OUTLAWS BLASPHEMY...YES, BLASPHEMY

It may seem odd that a 21st century European country, one that has recently thrived in the global economy (or did until the blow-out of the past year) would ban speech challenging the authority of the church (see here), but the Irish parliament (or Oireachtas, as it is called), had its hands forced by the 1937 Irish constitution. That document provides speech rights but only in the context of "the public good" and allows for the punishment of speech "used to undermine...order, morality or the authority of the state." Then it goes further, actually mandating the punishment of "blasphemous, seditious, or indecent" utterances. Ironically, the church itself had no role in pushing the new law and in fact the law may be an improvement on existing speech freedoms.

It replaces Ireland's 1961 Defamation Act which contained even more stringent speech restrictions, even though only one case of "blasphemous" speech has been heard since 1937, one which prompted Ireland's highest court to side strongly with the speaker and declare that the law has no teeth since "blasphemy" cannot be defined. Still, the restriction remains there for latter day interpretation and while punishing blasphemy may be unpopular in the West, there is growing concern for the global influence of Muslim countries, particularly the 57-nation UN Organization of the Islamic Conference (OIC), which since since 2005. has been voting up a non-binding resolution, aimed at satisfying fundamentalists, that would have all countries condemn religious defamation.

Before there was Sotomayor, before even Ginsburg and O’Connor…there was Mildred Lillie

When she is confirmed this month, Sonia Sotomayor will be the third woman to occupy a seat on the highest court in the land. Sandra Day O’Connor, who was nominated by President Ronald Reagan in 1981, was the judicial “Jackie Robinson” who broke this gender barrier and Justice Ruth Bader Ginsburg, appointed by President Bill Clinton in 1993, became the second female Supreme Court justice. But ten years before O’Connor’s appointment, when President Richard Nixon was faced with replacing two eminent justices from the Warren court era – Hugo Black and John Harlan – Nixon’s eyes were on an obscure California appellate judge named Mildred Lillie. But for a controversial negative rating from the American Bar Association, Mildred Lillie could have been the first woman to sit on the United States Supreme Court.

In 1971, there were 8,750 judges throughout the land; only 300 were women. But with equal rights in the air, Nixon saw the political potential in nominating a woman to the high court. (Ironically, a little-known Arizona state legislator, Sandra Day O’Connor, picked up on the idea and wrote Nixon a letter endorsing the idea of a woman nominee but O’Connor was not among those being considered.) Nixon sent White House counsel John Dean, who later turned on the president in the Watergate affair, to meet Judge Lillie and he let it be leaked that he had submitted Mildred Lillie’s name to the American Bar Association for an approval rating as prelude to her nomination.

Dean was impressed by Lillie. A Democrat, she was a “strict constructionist” who had begun her judicial career in 1947 when she was appointed to the Los Angeles Municipal Court by then Republican governor and future United States Supreme Court Chief Justice, Earl Warren. To Dean, she seemed wise and experienced. But the ABA nonetheless rejected her as unqualified. According to Dean, who later wrote a book about Nixon’s judicial appointments, the panel found that while Lillie was “the most qualified woman in the country to be on the Court, she was not qualified enough. In effect, they were saying no woman was qualified.” Ironically, that news sat just fine with Nixon who remained uneasy at the idea of a woman justice. “While he publicly denounced the ABA as biased against women,” writes Joan Biskupic in her biography of O’Connor, “[he] secretly felt off the hook…The next day he told his political advisor Richard Moore that the bar group ‘had played right into our hands.’”

Dean kept up with Lillie and a few years before her death in 2002, she told him an ironic story. Apparently, during the vetting process and before the negative ABA rating, Lillie came to Washington to meet with Nixon’s Attorney General, John Mitchell. Lillie said that “a nice young man” was sent to greet her and her husband, Dean recounted a few years ago to Slate. The man carried Lillie’s suitcase up to Mitchell's office, got them lunch and helped her fill in some of the questionnaires. Only later did she learn that her DOJ “baggage handler” was none other than William Rehnquist, then working in DOJ’s Office of Legal Counsel, who eventually received the nomination for which Lillie was being considered, and, of course, went on to become the sixteenth chief justice of the United States Supreme Court.