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The Gift That Keeps on Giving

March 31, 2008 3:51 PM

It was pretty quiet at the Court today, so I figured I'd use the time to call your attention to one of the Chief's favorite cases. It made a big appearance in his opinion last week in Medellin v. Texas, when the Court said both an international court and President Bush lacked authority to order new hearings for 51 Mexican nationals on Death Row.

But first, here are the top three things we got today:

---The Court refused to get involved in the fight between the Justice Department and Rep. William Jefferson, the Louisiana Democrat facing bribery charges, over an FBI raid of his office. The Bush Administration had argued that the FBI has broad authority to search congressional offices when members are under criminal investigation, but the justices declined to step into the case. That means a lower court decision siding with Jefferson--which said the FBI violated the Constitution when it reviewed documents in his office--will stand.

---Taking up a significant religion case, the Court announced it will consider whether a religious group in Utah can put its display in a public park. The justices will hear arguments next fall in the case, which could set important guidelines for religious displays in public spaces. The case came about after officials in Pleasant Grove City, Utah refused to allow a religious group known as Summum from displaying a "Seven Aphorisms of Summum."  The group (which was founded in 1975 and believes in the “mummification of transference,” as it explains on its website) said it should be able to erect the monument in the park, since it contained a Ten Commandments monument. The city said if it allows the Summums, it will have to allow all kinds of monuments—and next thing you know, the park will look like some kind of putt-putt golf course.

--And in the only decision of the day, Delaware triumphs over New Jersey in the battle over a proposed natural gas terminal on the Delaware River. The Court said Delaware shares control over the land with New Jersey and could therefore block the project--which it is almost certainly going to do.

So with that out of the way, on to Medellin and the gift that keeps on giving: Grubart v. Great Lakes Dredge & Dock Co.

As is clear to everyone by now, Roberts is a justice who likes “bright-line” rules. He understands the costs of uncertainty that come with multi-factor tests. He’d rather have a good, predictable rule so litigants can better understand how to behave in the future and lower courts will have a clearer idea what the law is.

And long before he became Chief Justice of the United States, Roberts had a favorite passage in a favorite opinion that he often used to make his point.

The passage was in a 1995 opinion over liability for the great Chicago flood of 1992. For those of you who weren’t fortunate enough to live in Chicago then (remember the names “Jordan,” “Pippen,” “Grant”?), it was an unbelievably bizarre “dry” flood---you didn’t see a single drop of water if you were walking around in the Loop.

The Chicago River had flooded basements throughout downtown after crews working on a barge operated by Great Lakes drove a piling into an abandoned tunnel that (unknown to anyone) ran beneath the river. Water seeped out and the “flood” shut down the city for three days, costing Chicago nearly $2 billion.

So the issue of liability was intensely litigated. Roberts argued the case in the Supreme Court for Great Lakes, which was facing $400 million in damages since its crews inadvertently helped cause the flood. The issue was a technical one over the use of admiralty law, and Roberts prevailed in a unanimous decision for Great Lakes.

But even putting aside the result, Roberts has said the case is one of his favorite opinions because of what the Court said.

He liked one passage in that opinion so much—it was written by Justice Souter---that he repeatedly cited in written briefs in other cases and, later, in opinions as a federal appeals court judge. In a 10-year-period, Roberts cited the passage nearly a dozen times in briefs and appeals court opinions.

What’s the big deal with that one sentence, you ask? Well, it emphasizes a clear dislike for multi-factor tests, a dislike Roberts obviously shares. That’s because---and here goes---those tests are “difficult to apply, jettisoning predictability for the open-ended rough-and-tumble of factors.”

There’s your passage. And then, last week in Medellin v. Texas, there it was again.

Roberts cited it to support his approach to interpreting a treaty by focusing on its language—and to criticize what he saw as Justice Breyer’s more unpredictable approach in the case.

Roberts wrote: “As against this time-honored textual approach, the dissent proposes a multifactor, judgment-by-judgment analysis that would ‘jettiso(n) relative predictability for the open-ended rough-and-tumble of factors.’” Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 547 (1995).

To Roberts, the passage—written 13 years ago by Justice Souter--stands for clarity and the need for clear and precise rules.

But this time, Souter didn’t mind the “multifactor, judgment-by-judgment analysis.” Souter joined Breyer’s dissent—allowing Roberts, now a colleague and Chief, to use his own words against him.

March 31, 2008 | Permalink | User Comments (2) | TrackBack (0)

Mukasey's Brief

March 25, 2008 5:11 PM

Talk about rising to the occasion—and then quickly sitting down. Attorney General Michael Mukasey, making his first-ever argument before the Supreme Court this morning, stood before the justices, answered their questions, and then—when things started slowing down--asked if they had any more.

He looked left, over to Justice Breyer, and then right, to Justice Alito on the other end of the bench.

Silence. 

So he sat down—with 14 minutes left in his allotted 30 minutes of argument time.

I’ve got several points to make here, but first, consider this: When does anyone in Washington ever walk away from a free microphone?

Even at the Court, when you sometimes see lawyers under siege extraordinarily eager to high-tail it back to their seats, they typically stand there until the clock ticks down and the red light mercifully comes on, indicating their time is up. (I do remember Chief Justice Rehnquist occasionally admonishing lawyers to “stop looking at the clock.”)

Not Mukasey. No one could accuse him of playing to the crowd—or to the Court. He spoke in clipped sentences, almost haltingly. He in no way came across as a polished and seasoned Supreme Court advocate. He stumbled over his words a couple times and seemed to be sweating.

But bottom line: He ran circles around some of his predecessors in the AG’s office who took the opportunity to argue a case and ably defended a law he believes is critical to prosecuting suspected terrorists. That said, he should keep his day job---otherwise, people could get used to those shortened arguments, and next thing you know, we've got lawyers using power points.

In his quarter hour, Mukasey was adamant that a federal law banning possession of explosives during the commission of a felony should apply to man suspected of plotting to blow up LAX. Ahmed Ressam was charged with lying about his identity and citizenship, which is a felony. And since Ressam was committing a felony—and happened to have explosives in his car--prosecutors slapped him with the additional charge of carrying “an explosive during the commission of any felony.” That charge brought him an additional 10-year sentence.

Ressam challenged his conviction, saying the explosives had nothing to do with the felony of lying about his identity and citizenship.

Mukasey basically said "too bad." Congress passed the tough law, which makes it a crime to carry explosives while committing “any felony.” And that means “any felony,” Mukasey said.

Justice Scalia asked whether the law would apply to some guy carrying a can of gasoline to mail a fraudulent tax return. “Explosives,” after all, covers a lot of things—gas cans, cleaning supplies, gun cartridges. Defense lawyers have pointed out that a cleaning woman carrying supplies who lies about her citizenship at the border could be prosecuted for “carrying explosives” “during” a felony.

“We concede that it was a very broad statute. ‘Any felony’ couldn’t be any broader,” Mukasey said. “But that was Congress’s choice. And if Congress chooses to amend the statute, respectfully, it ought to be Congress that amends it.”

The justices kept pushing. But Mukasey wouldn’t budge. The law’s the law.

Well, Chief Justice Roberts asked, was there any policy in the Justice Department that limited the use of the law—when prosecutors would actually use it against people?

No, Mukasey said. He said guidelines weren’t necessary because prosecutors weren’t using the law like that.

JUSTICE KENNEDY: I suppose if you thought there was a problem, you could promulgate (the guidelines) out of your department.

MUKASEY: I think I’d be ideally suited to do that.

Everyone laughed at that.

But Mukasey said the law’s harsh penalties were serious—and necessary in cases where suspected terrorists couldn’t be easily convicted of other crimes.

His demeanor was what you’d expect from someone of his background---an experienced federal trial court judge who’d heard an argument or two in his day. He was going to make his argument, answer whatever questions the justices happened to have, then shut up and let the Court get on with things.

For a completely opposite approach, check out then-AG Dick Thornburgh’s argument in Skinner v. Railway Labor Executives’ Assn., a 1989 case that involved drug testing for railroad employees. He had a hard time with the record in the case, told the court—under questioning from Justice Marshall—that he wasn’t “going to palm himself off as an expert,” then proceeded to wax on and on and on for long stretches, after the justices had leaned back in their chairs, having lost all interest in what he had to say.

Or Janet Reno. She had the unenviable position of following a disastrous argument by the state attorney general from Maryland in what was supposed to be a relatively straightforward 4th Amendment case, Maryland v. Wilson. State AG Joseph Curran argued that police not only should be able to order passengers out of cars when they pull over the driver—which was the question in the case--but then to also detain them on side of the road indefinitely. That prompted Justice O’Connor to almost bolt out of her seat.

“Suppose it’s a driving snowstorm, or a blinding rainstorm, the passenger is a mother with a very young baby, and the officer automatically can order her out of the car, to put the baby down outside where he can see the baby and raise her hands up,” O’Connor countered to Curran. “Real damage can occur.”

By the time Reno got up for her 10 minutes, the justices were highly annoyed with Curran—and her simple case had gotten pretty complicated.

No attorney general had argued since Reno. John Ashcroft argued before the Court before he became AG, and Alberto Gonzales never got around to it. When someone at DOJ mentioned it as a possibility, Mukasey said he’d like to give it a shot.

“I was told…‘Hey, by the way, it's sort of customary, not always, but customary for the attorney general to argue a case.’” Mukasey told reporters last week. “And then…I sort of threw my cap over the wall and said, ‘Hey, I think I'd like to do that.’"

He said he had two moot courts to prepare, but “unlike (prominent Supreme Court lawyer and former Solicitor General) Walter Dellinger, I haven't had the guts to invite people to watch.”

Also unlike Dellinger, the AG showed himself to be an advocate of few words.

March 25, 2008 | Permalink | User Comments (3) | TrackBack (0)

In Sight

March 18, 2008 1:54 PM

After 90 minutes of intense argument this morning in the 2nd Amendment case, HERE is our breakdown that aired on World News with Charles Gibson, and here are a few bullet points:

---A majority of the justices clearly seemed to embrace the idea that the 2nd Amendment protects an individual right to own a gun—and that the government can’t ban guns completely. The justices spent most of the argument focused on the details: Assuming there is an individual right, what restrictions and regulations would be considered reasonable?

---A majority seemed skeptical of DC’s sweeping ban on handguns and functional shotguns.

---Justice Kennedy—in this morning’s arguments, anyway—was firmly in the individual rights camp. “In my view," he said, "there’s a general right to bear arms.” He was focused on the idea that the framers considered a gun was necessary for defense—self-defense, as well as defense of the state. Kennedy saw no conflict with the Amendment’s two provisions—which speak of the state’s right to assemble a “well regulated militia” and a person’s “right to bear arms.” Kennedy suggested you can read the 2nd Amendment to see the first clause as simply reaffirming the government’s right to assemble a militia, and the second as creating an additional “right to bear arms.”

---Chief Justice Roberts asked, “What is reasonable about a total ban on possession?” But he also seemed to indicate that trigger locks---to protect small children at home---could be ok.

---Justice Alito was troubled by DC’s gun laws, especially since they also say shotguns must be kept locked and unloaded. When Walter Dellinger, arguing for DC, insisted there was a self-defense exception---and that homeowners could load a shotgun to protect themselves, Alito responded that the law didn’t seem to say that. “Even if you have a gun” Alito said, “it doesn’t seem like you could use it in defense of your home.”

---Justice Souter and Stevens seemed most hostile to the idea of individual rights. Souter, of course, focused on history to suggest that the founders were concerned with a militia. Stevens repeatedly pointed out that most states at the time—except Pennsylvania and Vermont—didn’t think self-defense was grounds for providing an individual right to bear arms.

---Justice Breyer urged the Court to look at the purpose of the DC law. In light of the 80,000 to 100,000 people killed every year by handguns, why can’t cities act to keep streets safer and ban them? “Does this case not hinge on whether it’s reasonable to ban handguns, while leaving you free to own other weapons?” he asked the lawyer opposing the ban.

---Justice Breyer took aim at conservatives with a judicial modesty/restraint point: Do you want thousands of judges across the country deciding these questions, rather than city councils and legislatures?

---Justice Ginsburg was focused on what restrictions were permissible. Bans on machine guns? Licensing requirements? Trigger locks?

---The White House spin machine broke down. Someone over there was trying to persuade reporters last week that Solicitor General Paul Clement would back away from his position--filed in the Bush Administration’s written brief---urging the Court to adopt a balancing test to assess gun laws. (Clement’s position had enraged the gun rights crowd and was a more moderate and cautious approach than what Judge Silberman advanced his D.C. Circuit opinion, which flatly struck down the gun ban.)  Clement, if anything, more aggressively defended his position today and suggested Silberman’s opinion would undermine existing federal gun laws.

---Justice Ginsburg asked if there was any difference in Clement’s standard and Judge Silberman’s. “It makes a world of difference,” Clement said.

--Chief Justice Roberts and Justice Scalia hate balancing tests. Roberts asked Clement why the Court should impose the “baggage” of a balancing test—as it has done over the decades in the First Amendment—on a provision it’s taking a fresh look at today?

--And Scalia seemed the most certain that the 2nd Amendment protects an individual right, that DC’s handgun ban was unconstitutional—and that Judge Silberman got it exactly right.

March 18, 2008 | Permalink | User Comments (247) | TrackBack (0)

The Court's Gun Battle

March 18, 2008 10:28 AM

When a man tried to break into her house one night, Shelly Parker -- a single woman living alone -- felt defenseless.

"I had the alarm system, had the dog.  And I was like, ok, my next step is that I need some sort of firearm in order to truly feel like I am going to be able to defend myself in my home," she said.

Parker lives in Washington, D.C., one of the nation's most violent cities… with the country's toughest gun laws. It bans handguns and requires shotguns be kept locked and unloaded. Parker says that puts her in danger. She is suing the city.

The Supreme Court today will hear Parker's case and decide one of the great unresolved constitutional questions:

Does the Second Amendment protect an individual's right "to keep and bear arms" or does it only protect a state's right to have "a well regulated militia?"

Watch my story from Good Morning America HERE.

If the Court strikes down the law, officials predict thousands of people in the nation's capital will buy handguns.  That worries Washington's mayor, Adrian Fenty.

"There are enough handguns on our streets.  One can only imagine what would happen if you put even more guns on the streets of this city," he said.

This case has already drawn intense interest, with people camping out for days to get a seat inside the courtroom for the argument.  The stakes are huge -- if the court upholds D.C.'s gun ban, officials think it's going to encourage other cities across the country to try to pass tougher gun laws of their own.

March 18, 2008 | Permalink | User Comments (8) | TrackBack (0)

Dirty Words

March 17, 2008 1:51 PM

Holy @$#%! Here’s a surprise: The Supreme Court is going to hear some bad language. 

The justices announced today they’re going to take up the issue of profanity on network television—and whether it’s OK for President Bush to use the “S-word” when he’s talking about Hezbollah, but not when Nicole Richie happens to blurt it out during some music award presentation.

I gotta tell you. I can’t wait for the arguments on this one.

This is the legal issue: Whether a single use of the “F-word” or the “S-word” on television violates FCC indecency rules. The FCC had long taken the position that it takes more than a so-called “fleeting expletive” to violate those rules, but it started cracking down during the Bush Administration. It now says it can punish any network that broadcasts any vulgar word, no matter how unexpected.

So when Cher unexpectedly blurted out the “F-word” and Richie said the “S-word” during the Billboard Music Awards in 2002 and 2003, the FCC said Fox--which broadcast both shows--violated indecency rules.

All four networks sued over the tough new policy. The FCC lost in the U.S. Court of Appeals for the 2nd Circuit, thanks to some brilliant arguments by lawyers for NBC, led by Miguel Estrada at Gibson Dunn & Crutcher. Estrada cleverly pointed out that if President Bush and Vice President Cheney can say “s***” and “f***” in widely-reported exchanges, then the FCC can’t punish Fox when Nicole and Cher unexpectedly blurt out the same words.

Basically, NBC argued—and the 2nd Circuit agreed—that the FCC erred when it said that someone who utters certain words always is implying a sexual or excretory meaning.

Estrada’s brief in the 2nd Circuit is so terrific (and entertaining) that I’m just going to quote from it. Read and enjoy. But know that wherever you see asterisks, those are my own—since ABC policy prevents me from printing the brief in its full glory, even though that’s how the Washington Post and other publications wrote up the quotes at the time.

“…the “F-word” is often used to express intense (and clearly nonsexual) feelings—even by political leaders. For example, Vice President Cheney’s retort of “F*** yourself” to Sen. Patrick Leahy (D-Vt.) on the floor of the Senate chamber in 2004 was widely reported. See, e.g., Cheney Utters ‘F-Word’ in Heated Exchange With Leahy, THE FRONTRUNNER, June 25, 2004.

In a display of bipartisan understanding that the “‘F-Word’” has non-sexual meanings, Senator John Kerry explained his vote to authorize the use of force in Iraq by asking “Did I expect George Bush to f*** it up as badly as he did? I don’t think anybody did.” Will Dana, John Kerry’s Desperate Hours, ROLLING STONE, Dec. 25, 2003; see 32 also Michael Elliott & James Carney, First Stop, Iraq, TIME, Mar. 31, 2003, at 172 (quoting President Bush as saying to a group of U.S. Senators, “F___ Saddam. We’re taking him out.” (omission in original)).

These usages are not remotely “sexual”—and no viewer could reasonably view them to be. An administrative agency like the Commission cannot promulgate a legal standard that declares to the broadcast community that, “[i]n making indecency determinations, context is key,” In re Infinity Broad. Corp., 17 FCC Rcd 9892, 9895 (2002) , but then adopt a one-size-fits-all, per se rule that expressly disavows any contextual analysis of the meaning of the “‘F-Word.’”

NBC then made the same argument for the “S-word,” taking aim at the FCC order’s that any use of the word has an “inherently excretory connotation.” Not so fast, said NBC.

While “s***” can refer to excrement or excretory function, it also can refer, “[i]n negative contexts,” to “anything.” IV OXFORD ENGLISH DICTIONARY SUPP. 124 (1972). It denotes “[r]ubbish, trash,” “[m]isfortune, unpleasantness,” or an “awkward predicament” (such as when “the s*** . . . hits the fan”). Id. at 125. And bulls*** has no excretory implications; it means simply “[r]ubbish, nonsense,” or “to bluff one’s way through (something) by talking nonsense.” I OXFORD ENGLISH DICTIONARY 645 (2d ed. 1989).

The “‘S-Word’” has non-excretory application in public discourse, as well. In July 2006, as reported in newspapers and aired on cable networks, President Bush remarked to British Prime Minister Tony Blair that the United Nations needed to “get Syria to get Hezbollah to stop doing this s***.” Peter Baker, Bush’s Bull Session: Loud and Clear, Chief, WASH. POST, July 18, 2006, at C1; see also, e.g., Transcript, CNN American Morning, LEXIS Transcript 071705CN.V74 (July 17, 2006). Surely no observer—not even the Commissioners—could believe the President was making reference to Hezbollah’s “excretory activities.”

The appeals court agreed.

“In recent times even the top leaders of our government have used variants of these expletives in a manner that no reasonable person would believe referenced sexual or excretory organs or activities,” the court ruled.

It added that the FCC’s new policy failed “to provide a reasoned analysis justifying its departure from the agency’s established practice.”

FCC Chairman Kevin Martin was irate. If he had spoken his mind rather than issued a written statement, well you be the judge of whether he violated indecency rules. (And remember I actually can’t print the statement verbatim, because ABC policy prevents me from writing out s*** and f***. You can use your imagination.)

“Today, the Second Circuit Court of Appeals in New York said the use of the words ‘f***’ and ‘s***’ by Cher and Nicole Richie was not indecent,” Martin said in a statement (the asterisks are mine). “I find it hard to believe that the New York court would tell American families that ‘s***’ and ‘f***’ are fine to say on broadcast television during the hours when children are most likely to be in the audience.”

Holy @$#%, Mr. Chairman!

March 17, 2008 | Permalink | User Comments (41) | TrackBack (0)

Lining up for Guns

March 16, 2008 10:26 PM

The landmark legal battle over the 2nd Amendment is still two days—and two cold nights—away. But people already are waiting in line to get a prized seat in the courtroom for the historic arguments.

Jason McCrory, 23, and Dan Mott, 21, started the line at exactly 5:35 p.m. Sunday. I know, because I happened to be standing out front myself, getting ready to file a report about the case for World News.

“Here’s your story,” a Supreme Court police officer yelled over to me, pointing to a sport utility vehicle that stopped across the street. Out came two guys with a bunch of stuff--rolled up blankets, plastic bags of water--and within minutes they’d found a spot at the foot of the Court’s steps and settled in for the long haul.

Let me tell you, it already was pretty cold and-- as anyone who happened to see my World News piece knows—absurdly windy. But Jason and Dan were unfazed. Jason pulled on a fur hat. Dan wrapped up in a blanket.

They’d come down from Lancaster, Pa. because they have pretty strong opinions about the 2nd Amendment.

“The 2nd Amendment is important to me,” said Jason, who just graduated with a degree in political science from Millersville University and is working construction until he gets a job more suited to the degree. “It’s intended for people to defend themselves.”

Added Dan: “We’re constitutional supporters.”

And that, both said, means they support the idea that the 2nd Amendment guarantees an individual’s right to own a gun.

Before long, they were talking to a guy from Phoenix who had just gotten into town for the arguments. He and a friend had gone straight to the Court from the airport, and he was planning to camp outside, too.

If you had any doubt this was a big case—if the scores of legal briefs on both sides hadn’t convinced you---there’s more proof, sitting right outside the Courtroom tonight.

Long lines mean big cases that stir deep emotions. And you can be sure that line is going to get longer and longer as it gets closer and closer to 10 a.m. Tuesday.

That’s when the Court, for the first time in 70 years, will confront one of the most vexing constitutional questions: Does the 2nd Amendment protect an individual’s right to “keep and bear arms” or does it only protect a state’s right to a “well regulated militia?”

The people in front of the Court tonight adamantly believe it protects an individual’s right, as do most members of Congress, the Bush Administration and—according to the polls—a vast majority of the American people.

But officials in Washington D.C., which bans handguns and has some of the toughest gun laws in the nation, argue otherwise. And most of the federal appeals courts have agreed that it only protects a state’s right to assemble a militia. That interpretation means, of course, that the government can ban guns if it wants to.

Tuesday, we’ll hear for the first time from the justices, and their questions to the lawyers may finally give us some sense of how they’re thinking about this case. We sure don’t have much to go on now.

There’s no precedent, no past Supreme Court cases, to guide them. The briefs are voluminous, but take wildly divergent positions. The justices literally will be writing on a blank slate. And people on both sides—those sitting in line outside and those listening at home--think it’s absolutely clear what they should write.

The 2nd Amendment protects an individual right to own a gun. The 2nd Amendment protects a state’s right to form a militia.

But which one?

March 16, 2008 | Permalink | User Comments (28) | TrackBack (0)

Spitzer -- Possible Financial Crimes

March 11, 2008 1:08 PM

New York Gov. Eliot Spitzer has said his alleged tie to a prostitution ring is a "private" matter, but charges against him could extend well past prostitution.

Because Spitzer's bank notified the government of suspicious financial activity in his accounts -- as the banks are required by law to do -- the Governor now could face serious legal charges connected to money laundering.

The money laundering aspect of involves the crime of "structuring," which is pretty much what it sounds like. Structuring occurs when someone structures their financial transactions -- when they make deposits or withdrawals -- to avoid triggering the bank's reporting requirements.

Banks are required by federal law to report any cash transactions over $10,000. It's a crime to manipulate cash deposits or withdrawals to avoid those reporting requirements.

These laws were designed to detect people trying to hide huge amounts of cash from illegal activities -- such as drug transactions or taking bribes.

You can't, for example, take $50,000 from a drug deal and deposit it in $5,000 increments to avoid setting off the automatic reporting requirements. And banks are required to report customers they think are trying to do just that.

It would be unusual for this be carried out for prostitution. Typically, money laundering laws are targeted at drug dealers, bribery and racketeering offenses.

So the great irony here is that the financial institutions which long saw Eliot Spitzer as nemesis may have gotten their revenge.

March 11, 2008 | Permalink | User Comments (16) | TrackBack (0)

Choice

March 05, 2008 7:46 AM

Of all the conversations I’ve had with Justice O’Connor over the years, one of the most interesting and provocative was a personal one. It involved the issue of choice. I’ve been thinking about it a lot lately, because it says something about Hillary Clinton’s bid to be the first woman president.

Today, when women talk about “choice,” it’s usually in the context of abortion. We’re “pro-choice” or anti-abortion. But that wasn’t how Justice O’Connor was using the word.

She was talking about the abundance of choices women have today—a fundamental issue of a different kind. We can work at the highest levels of government, hold partnerships in major law firms, direct leading corporations. We can have children. We can stay at home with them or go to work part time. Or we can work full-time and have children, too.

Those are choices my generation and younger generations of women can make, thanks to the trailblazing women who came before us---women who didn’t have those choices and went without. Just do a quick survey of any big law firm. Many of the women partners over 55—in firms that have them—bypassed kids for a career. They had no choice.

Once when I was talking to Justice O’Connor, I mentioned the familiar anecdote about how she only was offered a job as a secretary when she graduated near the top of her class at Stanford Law School. Her classmate Bill Rehnquist was off to Washington to clerk on the Supreme Court, and O’Connor—also a star student who’d grown up branding cattle and rounding up livestock on her family ranch—couldn’t get a job at a law firm.

I remember telling O’Connor that women of my generation would have a hard time imagining that the first female justice only got a job offer as a secretary out of law school---and had to sit and watch the men go off to fill the big-time jobs. O’Connor swiftly corrected me.

“Oh no,” she said. That story was wrong. There was no job offer. The law firm wanted her to take a typing test before it would hire her as a secretary. She refused. No offer.

Not a whole lot of choices there.

So O’Connor talked her way into a local DA’s office by volunteering to work for free. And when she decided to have children, she left the work force for a while—despite the huge struggle she had gone through to get a job in the first place.

Those are not the kind of decisions the luckiest of us women face today. Instead, we have this luxury of choice, and what do we do? We agonize. Just go to any Borders and look at the forests of trees felled for books on our inner conflicts. Do we “surrender to motherhood” or pick up arms in the mommy wars? Do we work or stay home? How do we decide?

I’ve been there myself. I came thisclose to staying home after my first child was born and nearly quit every day for the first month I was back. I’ve sat anguished in my car many times after prying my little girl’s hands off my leg when I left her at day care. I’ve missed school plays and book fairs. My wonderful nanny has taken my children to the emergency room with broken bones and busted lips, while I tried to get out of the office. Even now, writing this in a hotel room, I can still hear the four little voices that told me goodbye when I left, the littlest one saying earnestly, “Come back, mommy.”

But those were choices I made because I love my work—and choices I was fortunate to make, thanks to women like Sandra Day O’Connor and the generations that went before mine.

Talking all this over with Justice O’Connor a while back, it dawned on me pretty quickly that there ain’t much sympathy for women of my generation fretting over all these choices we now have. We’re the lucky ones who get to decide. So just decide and get on with it.

And that exposes the debate for what it is: luxurious. All those books lining those bookstore shelves are written for women who have the luxury to make those choices, whose spouses or partners work, who don’t have to punch a clock to pay the bills. They can work if they choose or stay home. The hard part is making the decision.

But at bottom, it’s important to remember that those are elitist arguments, true only for a small segment of society. As everyone knows, many, many women don’t have those choices. Some are raising kids alone, trying to figure out how to tell their daughters to pick between soccer and gymnastics, because they can’t afford both. Some combine their checks with their husbands and still worry about paying the bills.

They have to work, and they work hard—and they are struggling all over this country, in Alabama and New York, and, of course, in Texas and Ohio.

To these women, lofty words like “hope” and “change” are less powerful than the concrete idea that a woman could speak for them in the Oval Office, a woman President could give a voice to their powerlessness.

For them, Hillary is a symbol and a cause. She’s both hope and change.

But when you look at the news coverage of her campaign, it’s the elites who are driving the debates. People in the opinion classes—in New York and Washington, on television and in print—act like there’s no question that women today are equal to men, that sexism is behind us, that we can do it all if that’s what we choose to do--even be President.

Sure, you see a minor furor when some commentator says Hillary Clinton reminds men of their ex-wives at probate court. Or when one says she’s where she is today only because her husband fooled around. Or that she’s “pimping out” her daughter on the campaign trail.

But the furor is minor and fades amidst the laughter—because, hey, we all know women today have so many choices that we just go on and on about how in the world we can decide between all those great choices.

Or you hear self-styled feminists and Hillary bashers explain it away as not about all women, it’s about one woman. And because it’s Hillary--because she engenders such vitriol, because everything about her seems to be filtered through the idea that she’s capable of anything, that she will do anything, say anything--they don’t seem to mind the language. You almost expect to hear them say next, hey, she was asking for it.

For the life of me, I don’t get it. Nor do I understand why women—aside from the Hillary supporters and the elders in NOW—aren’t more outraged. You don’t have to be backing Hillary or weary of the Clintons to see those double standards and find the talk offensive and disturbing.

And yes, depressing. Turn on cable news or read an op-ed, and it seems that we’ve chosen either not to care or to pretend we’ve come such a long way, baby, that we can now laugh along with the guys when they say Hillary sounds like the shrewish ex-wife. Girl, that’s real progress.

Commentators have repeatedly underestimated Clinton and written her off as dated and tired and shrill. But for huge groups of women, that stuff isn’t so funny or easily dismissed. It’s too familiar.

Clinton speaks to them as a symbol that “we can”--and a reminder that they’ve heard otherwise long enough.

March 5, 2008 | Permalink | User Comments (63) | TrackBack (0)