Being Bushrod

What’s worse than being Millard Fillmore, ignored, unfortunately named and not-even-disastrous-enough-to-be-remembered-for-his-disasters minor-league president of the United States (1850-53)? Why, being Bushrod Washington, U.S. associate justice (1799-1829), of course. For every forgotten president whose accomplishments stump two out of three panelists on Jeopardy! there are nearly three ex-members of the U.S. Supreme Court whose names never appear on Jeopardy! at all. Well, to remedy that, the March 2009 issue of the Vanderbilt Law Review is devoted entirely to “neglected Supreme Court justices,” from David Josiah Brewer to Sherman Minton, from John Catron to Rufus Peckham. There is even one article graciously entitled “Justice Sutherland Reconsidered” - about George Sutherland (1921-38) if you were wondering, whom of course you have never ”considered” at all.

So, get ready, Bushrod Washington fans. Soon you will know everything you ever wanted to know about the three times on the John Marshall Court (count ‘em: three) when your man failed to vote with his good friend, the Chief Justice. Vindication, however late blooming, remains a sweet fruit … except of course for those three-score-or-so forgotten justices for whom there wasn’t room in the review.

What we teach our kids about the law

The Wall Street Journal has a good piece today about the way one Pennsylvania district attorney handled incidents of “sexting” at the local high school, that is, kids sending around nude or suggestive pictures of themselves or other kids by cellphone. It’s one of those classic, obvious, inevitable teen fads that adults see the dangers of but kids themselves often don’t, which usually lead - as here - to one of those classic adult explosions of authoritarianism that rarely solve the problem and always make the adults look ridiculous and untrustworthy in the eyes of the coming generation. Life is kabuki; we all play the standard parts.

It made me think, though, about how we teach our kids about the law. According to the Journal, DA George Skumanick has won a mix of fans and critics for what he thought of as a progressive approach to dealing with sexting. He told parents of kids whose cellphones contained the child-made child pornography that they could either put their kids in an education program about the dangers of sexting or have them face felony charges. Said he, “We could have just arrested them but we didn’t.” Now, the children involved are as young as 11 years old. This will be their first encounter with the law. Skumanick is using one of the uglier, more pragmatic, arm-twisting elements of standard legal practice - threatening a defendant with more severe charges in order to gain cooperation - in order to push them toward a benevolent end, learning in a classroom about the social error they’ve stumbled into. Before they ever - in the real world, with their own eyes - see the law rescue an innocent man, balance the rights of people of different backgrounds, ensure order, or embody noble truths, they’ll see it bully them into submission. Before they learn what it means to be citizens, in other words, they’ll learn what it means to be perps.

A man unconsumed by his career

Once, before you became a lawyer, you were many things. After settling on a career there’s always the danger you’ll let the role you’ve chosen swallow you up, that you’ll become a one-note Charlie. It can happen to the best of us. What did Clarence Darrow do with his spare time when he wasn’t defending somebody?

Well, one lawyer who definitely did not let his career define him was George Hedges, the Los Angeles-based celebrity lawyer (and occasional pro bono public-interest and capital-case attorney) who died this week at 57 years old. If only we could all fit so much into 57 years! As a fascinating Los Angeles Times obituary tells the story, in that too-brief life he managed to earn two degrees in the classics, earn his living for a while as a singer and to discover the ruins of the fabled Omani city of Ubar.

You heard me: discover the fabled Omani city of Ubar - as well as several dozen spice-route cities in Yemen. In the mid-1980s, he teamed up with a filmmaker and two Jet Propulsion Laboratory scientists who shared his interest in the classics to prove, like a set of high-tech Heinrich Schliemanns, that places professional archaeologists had dismissed as completely fabricated were in fact real. Oh, and he was apparently a nice guy, too.

Waiting for the second gun to drop

The Los Angeles Times has a nice backgrounder this week on the fight over whether the Second Amendment is, or is not, one of those parts of the federal constitution that also restricts the actions of states. Not all parts do. The Establishment Clause binds all governments, for instance, but the Fifth Amendment’s guarantee of a grand jury to weigh any serious criminal charge binds the federal government only. The process by which the courts have decided since the Second World War which rights are universal and which are exclusively federal reminds me of the process by which the Academie Francaise - the regulatory body of the French language - determines the gender of letters of the alphabet: Both are binary, mysterious, pedantic - and vulnerable to changing tides of opinion. While letters f, h, l, m, n, r and s were long considered safely and forever feminine, now Frenchpeople largely use the masculine article with them, and at some point it was determined that h could be masculine or feminine. No one has been able to feel secure about the h since then … and it’s very likely we won’t feel entirely secure in the Second Amendment for years to come, either.

As it stands now, two federal appeals panels have ruled that the Second Amendment (and so, the Heller decision that struck down the District of Columbia’s gun ban) applies only to federal actions, and a third panel has ruled it applies to the states. It has been a procession of strange bedfellows. It was the reputedly liberal Ninth Circuit that chose to apply Heller to the states. Conservatives were preparing to roast Supreme Court nominee Sonia Sotomayor as an “anti-gun radical” for her Second Circuit opinion limiting the Second Amendment’s reach … until the conservative darling of the appellate judiciary, Richard Posner of the Seventh Circuit, voted the same way. The National Rifle Association is so eager to see this one go to the Supremes that it filed a petition for cert while still blowing on the Seventh’s ink to help it dry.

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