The President’s Super Power

Published August 25, 2012 Fem2pt0

Here’s another reason to vote in November: when one of the nine members of the United States Supreme Court resigns or retires, the President nominates his or her successor. With few exceptions, the nominee is routinely confirmed by the Senate and serves for life.

The closely split 5-4 decisions on Obamacare, Citizens United, and Bush vs. Gore highlight just how important each justice is. But unless you’re a lawyer as I am, you probably don’t track pronouncements by individual justices.

However, women should pay close attention to comments by Justice Antonin Scalia. Scalia is the Court’s arch conservative, an intellectual powerhouse and a ferocious advocate. He has long been on record that the groundbreaking Roe vs. Wade abortion decision was wrong. In a recent interview on Fox News, he opined that Griswold vs. Connecticut (a decision that struck down state restrictions on birth control) was wrong as well.

It isn’t surprising that a Jesuit-educated lawyer with nine children would reach these conclusions. However, Scalia is scrupulous about separating his personal beliefs from his legal scholarship.

Scalia approaches his judicial decisions as a “textualist” and an “originalist.” A textualist looks first to the exact language of the Constitution and then, as an originalist, considers what meanings the words had at the time they were written.

The Due Process Clause of the Fourteenth Amendment of the Constitution was the basis of the Roe and Griswold decisions. Here’s where the trouble begins: the Fourteenth Amendment was adopted in 1868 during the Reconstruction Era. The Due Process Clause provides that no State shall “deprive any person of life, liberty, or property, without due process of law.”

Scalia believes that in 1868 the term person did not include “women” because women were viewed as property at the time. Additionally, a person of that era (obviously a male person because no other existed in 1868) would not construe “life, liberty or property” to include contraception or abortion.

In Griswold, the Supreme Court found that a right of privacy existed in the “penumbras” and “emanations” of the Constitution. A couple’s right to contraception was protected by this ephemeral right of privacy. The Supreme Court relied on the same right of privacy as the basis of the Roe decision.

Scalia’s textualist and originalist approaches also led to his conclusion that women have no Constitutional right to be free of discrimination when the Supreme Court considered Virginia Military Academy’s refusal to admit women. He wrote a scathing dissent to Justice Ruth Bader Ginsburg’s opinion that any law should be struck down which “denies to women, simply because they are women, full citizenship stature — equal opportunity to aspire, achieve, participate in and contribute to society.”

Scalia’s position is that if citizens want access to abortion or contraception or to prohibit single-sex public schools, they can provide for that through the democratic process of passing laws to that effect. True in theory but increasing partisanship has dramatically diminished this opportunity. As William N. Eskridge Jr., a law professor at Yale noted, “It gives the Supreme Court significantly more power and Congress significantly less power.”

Scalia was appointed to the Supreme Court in 1986 by President Reagan and was chosen over Robert Bork, his leading competitor for the nomination, because he was ten years younger and would therefore shape the court’s decisions for a longer time.

Scalia’s positions underscore the importance of the upcoming Presidential election. As the last four years have shown, a President’s agenda can be derailed by legislative opposition.

As you decide how to cast your ballot in the 2012 Presidential election, remember the power of the President to appoint Supreme Court justices. That appointment power may have a longer impact on your life than any other action taken by the President between 2012 and 2016

Court Permits Litigation of Sexual Harrassment Claim in Ellen Pao Case

By Kate McGuinness
Published in Forbes, July 23, 2012.

Ellen PaoThis is a guest post by author and lawyer Kate McGuinness with a little input by Victoria Pynchon who is a commercial arbitrator with the American Arbitration Association.

Venture capital firm Kleiner Perkins Caufield & Byers suffered a major defeat on Friday when a judge ruled that sexual discrimination claims by Ellen Pao could be litigated in open court.

The judge had ruled against the firm on the same issue earlier this month, but agreed to a re-hearing.

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Women Battle Law Firm Bias

Published in Ms. JD 1/10/2012 and Role / Reboot 11/26/2011

Gender diversity is good for business. As a 2010 McKinsey Global Survey reported, 72 percent of executives “believe there is a direct connection between a company’s gender diversity and its financial success.” The study also noted that companies with the greatest gender diversity had better than average operating results and returns on equity. Yet, despite these monetary benefits and legal prohibitions on sex discrimination, women have yet to make significant inroads in the power structure and profit sharing at BigLaw.

Admittedly, law has been a male-dominated profession for centuries, but females have provided much of the brainpower since the 1980s. Thirty years of acclimatization has done little to convince the old boys who run these clubs that women deserve full membership in proportion to their representation among the worker bee associate class.

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Woman Wins Historic $167 Million Sexual Harassment Award

Published in Fem2pt0 March 5, 2012

RAINNAni Chopourian, a 43–year-old surgeon’s assistant, received a $167.7 million dollar award this week from a California jury for sexual harassment. It is believed to be the largest verdict ever granted to a single victim for sexual harassment in the United States.

The jury allocated $42.7 million as compensation for lost wages and mental anguish. The balance – $125 million – was awarded as “punitive damages,” a device utilized by the legal system to punish defendants for misconduct and deter them from repeating bad behavior.

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