The XX Factor: What women really think.

Why aren't more women considered "rainmakers?" Depends who you ask.

A post from DoubleX writer KJ Dell'Antonia:

Top law firms report having few or no women on their list of the top 10 "rainmakers." Fifteen years out of law school and a veteran of big-firm life, I asked former classmates and colleagues why women don't bring in the bucks. Should I be surprised that the answers turned out to reflect their own gender divide?

Can the Balloon Boy's Parents Really Go to Prison?

A guest post from DoubleX intern Jessica Dweck.

“Poor kid” is right, Emily. The Heenes are not only spectacularly bad parents, but they might soon become inmates in Colorado state prison. In the span of one short weekend, the Balloon Boy drama has turned out to be just that—an elaborate one-act theatrical work put on by the Heene Family Players, staged on television stations and computer screens across the country. We now know that the Heenes' ordeal was just one more attention-grabbing stunt in what appears to be an agonizingly protracted audition for a TLC-style reality television show—the last act in a series of questionable parenting moves ... (Read the rest of this article in DoubleX).

What, No Waterboarding?

The Irish government has released a report detailing the vicious beatings, rape, and emotional abuse inflicted on tens of thousands children entrusted to the care of Catholic orphanages for 60 years, until the 1990s. The Times pulls out this description: “Punching, flogging, assault and bodily attacks ... burning, scalding, stabbing, severe beatings with or without clothes, being made to kneel and stand in fixed positions for lengthy periods ..." (To read the rest of this post, visit our new website DoubleX.com!)

From the "I Didn't Get the Memo" Department

Last year, when he was running for president, Rudy Giuliani explained his thinking about the courts. He complained that "civil litigation consumes 2.2 percent of America’s gross domestic product" and argued that "to reduce the impact of the trial lawyer tax, we should reform the system by adopting rules that discourage frivolous lawsuits."

This week, Rudy's son Andrew, 22, filed a suit against Duke University, where he is a student, because he was cut from the golf team. The suit "accuses the university of bad faith by aggressively recruiting him to play golf for Duke and then dashing his dreams by taking steps to remove him from the team," the NYT writes. Andrew G. wants damages and "the right to use Duke’s golf center for the rest of his life." This is such a genius exhibit of self-parodying entitlement that I almost wish Rudy were the GOP candidate, so he'd have to answer for it. As is, he's getting away with no comment. I will have to content myself with the service Andrew does himself by including, in the court filings, that "he may have misbehaved in February when he tossed an apple in a teammate’s face, flipped his putter a few feet, threw and broke a club and gunned his engine in a parking lot."

Black Widow Freed Because Oops, No Murder

After we toast Danica, let's raise a glass (of milk, in case anyone's watching) to welcome Cynthia Sommer home from jail. As far as I can tell, Sommer spent 2½ years in lockup for getting breast implants and hanging out in bars. A San Diego jury heard a lot about what a tramp she supposedly was; Sommer even started dating again after her husband died! Then, they found her guilty of murdering him. According to the Los Angeles Times, prosecutors presented 34-year-old Sommer as an older woman (OK, it's Southern California, but still) who offed the 23-year-old Marine "to collect on his $250,000 life insurance policy and begin a new, fun-filled life'' in Florida, with new boobs and multiple boyfriends. Only—their bad—it turns out Sommer "was jailed 876 days for an arsenic-poisoning murder that prosecutors now say didn't occur.''

If only she'd been thinking ahead, she would have saved her pennies for a better attorney, because the first knucklehead she hired opened the door to a description of her "lifestyle'' that was so inflammatory the judge ruled she'd been deprived of a fair trial. He overturned her conviction for murder with special circumstances, which carries a mandatory life sentence. "The evidence about her breasts, drinking and sexual activity 'became like an overwhelming cloud that covered everything,' " her new defense attorney, Allen Bloom, told the Times. Yet Sommer was kept in jail—and separated from her four children, ages 8, 12, 13, and 16—while waiting for a retrial. Until last week, when new tests showed no evidence of arsenic in her husband's tissue samples. Bloom had already lined up experts who were going to testify that Todd Sommer's death could have been caused by the diet pills he'd been taking. And prosecutors were still interviewing the neighbors, hoping to find some additional dirt on Sommer. Maybe, while she's deciding whether to sue them, each prosecutor should be made to wear a big A pinned to his or her chest, like Hester Prynne in the Scarlet Letter. Except in that case, of course, the A stood for adulterer.

Dream a Little Dream With Me

Somewhat lost in the presidential horse race this week, the Senate again takes up the question of retroactive immunity for the phone companies that helped the Bush administration in its illegal eavesdropping program. The rationale for granting telecom immunity is that they were innocently misled by the Bush administration’s doomsday rationale for breaking the laws and need to be free to be misled by the same rationale again in the future.

I point this out to make the simple observation that the folks inclined to sneer about Barack Obama’s hands-across-America yes-we-can fairy tales would do well to remember that we haven’t exactly been residing in gritty, cold reality these past eight years.

As Fred Kaplan points out in his new book, Daydream Believers, excerpted today in Slate, the politics of the Bush era has largely rested on near-daily screenings of a horror movie cobbled together up by a handful of fantasists unmoored from history, science, technology, or fact. And it was a movie they were screening privately long before 9/11.

After eight years of enduring the “daydreams” of “dangerous men [who] act their dream with open eyes," Obama’s daydreams about change and hope sound almost hardheaded and pragmatic to me.  

Try It, You'll Like It . . .

Via Think Progress, we learn that at a speech last night at the University of Colorado, former Attorney General John Ashcroft answered a question about his willingness to undergo waterboarding. He told his audience, “the things that I can survive, if it were necessary to do them to me, I would do.”

That answer is deranged in at least 20 ways, and I’ll think of 20 more as soon as I post this. But can someone please sit down and explain to the bright lights of the Bush administration, patiently, and like they are 7, that there is a difference between being willing to die for one’s country (and apparently Ashcroft is only willing only to all-but die for his) and the ways in which civilized humans treat their enemies? His effort to turn a serious question into a chance for sloppy braggadocio is astounding.

For one thing, Ashcroft didn’t do anything necessary to protect America. He sat out Vietnam (six student deferments and one occupational deferment). Moreover his DoJ colleague who apparently did allow himself to be waterboarded, acting head of the OLC, Daniel Levin, underwent the procedure in 2004. According to an ABC News report, Levin “found the experience terrifying and thought that it clearly simulated drowning,” then concluded that waterboarding was illegal torture “unless performed in a highly limited way.” He lost his job at Justice for that.

The most telling thing about Ashcroft’s non-answer is that it lays bare the central fallacy in Bush administration thinking about how to conduct their torture: The relevant question for these guys is never "what are the rules," but "how tough can I pretend to be while breaking them?"

Deterrence Unplugged

Melinda, I think your instinct about the deterrent effect of the death penalty is about the same as mine. The Liptak article is incredibly interesting but makes the same point I learned in law school: Deterrence works if there is a reasonable chance the punishment in question will actually happen. Even my kids know that if they only get in trouble one time out of every 10,000 times they crayon the walls, it's totally worthwhile to take a chance and crayon the walls. We currently execute only a few dozen people a year.

But even if it were proved that the death penalty served as a terrific deterrent, it wouldn’t solve for the other fundamental problem: We don’t kill the worst offenders—we mainly kill only the most unlucky ones (the guys lumped with sleepy counsel, mixed-up DNA, tough-on-crime judges). Here’s a great new piece by Stuart Taylor on the recent decline of the death penalty that ties some of that together. For something to be a true deterrent, it needs to be understood to work. Even a rationally acting drunk killer on a spree can hardly game the odds of a capital punishment system that seems to punish indiscriminately. 

Wronged Wife to the Rescue

Though this is not a capital case—the cop, James Kulbicki, got life without parole—it seems yet another example of the most undeniable problem with the death penalty: We get stuff wrong. Often enough that we ought to be humbled. And I'm eager to hear what you legal experts think of the New York Times story about the new studies that purport to find that capital punishment might "save lives'' by preventing murders in the states that impose it most freely.

I find this hard to believe, for one thing because I doubt that violent criminals, most of whom are drunk or high at the time of an attack, are at all apt to stop and think, "Uh-oh, do I really want to wind up like old Joe, who ate his last meal and then rode the needle? No! And so, my intended victim, never mind!'' I also cannot see how capital punishment, even as administered in Texas or Virginia, could have a statistically significant deterrent effect. How is it possible to isolate that effect from the larger law-and-order picture in those states?     

Ruin Your Week Without Even Trying ...

Anyone else following the lawsuit filed by two women at Yale law school against AutoAdmit -- the law school discussion board that makes the men's room wall at your local bus station read like the collected works of John Donne? Via the Wall Street Journal's law blog here's a link to the amended complaint, filed late last week in federal court in Connecticut. These women are alleging that anonymous posts to the Web site created emotional distress and may have precluded employers from offering them jobs.

It's going to be rough sledding for these women to actually track down the offenders, named, for instance, "Horse walks into a bar" and "Spanky" in the complaint. And who knows whether they'll be able to prove that they were harmed. Still, just reading the complaint is cause for emotional distress: The plaintiffs are threatened with rape and sodomy and violence; links to the site were sent to employers; private information about them was posted on the site. Part of this is just the unbelievable sewage that gets chummed up wherever anonymous posts about women roam free. I've written a bit on this, but have no real solution to offer. Read the complaint. Is this the kind of thing we should simply ignore? Are lawsuits the answer?

Justice Girls

A nice point, Emily, about the dangers of looking at Sandra Day O’Connor through pink-colored glasses. You’re right to say that there are heaps of women judges who don’t employ O’Connor’s Miz Fixit hospital-corners jurisprudential style. Ruth Bader Ginsburg included. But I don’t think that makes the corollary—that O’Connor’s approach had some uniquely female qualities—false. There’s been some interesting legal scholarship on the point, starting with an article by Suzanna Sherry in 1986, trying to link up O’Connor’s legal opinions to Carol Gilligan’s Different Voice paradigm of women as accommodating and problem-solving and “relational.”

Sherry’s premise has taken a beating in subsequent years, often from feminists pointing out that this kind of thinking is marginalizing to women and celebrates passivity and niceness in all the ways I probably did in my first post today. Needless to say, Ginsburg’s addition to the court also undermined the Sherry thesis. But I stand by my conviction that some of the qualities I most admire in O’Connor are qualities I largely associate with women. Doesn’t mean Ginsburg is manly by the way. Doesn’t mean O’Connor’s ability to foster agreement and forge deals wasn’t also informed by her time in the Arizona state legislature. But I do think—and O’Connor would hate me for writing this—you can’t separate her gender from her jurisprudence as neatly as you may like.

Judging as a Woman

O'Connor Is Much Among Us

Another thought: If O'Connor's pragmatic, this-case-only approach to judging is particularly female, then maybe that helps explain why male commentators tended to excoriate her for it. I don't think this explains all the frustration with her jurisprudence—as you say, Dahlia, she drove you (and me and plenty of other women) crazy sometimes, too. But it did feel to me that she elicited a sort of scorn from some male academics that seemed awfully pointed in a world in which politesse is usually de rigeur. (Must be that cafe au lait I just drank.)

On a grumpier note: I don't miss O'Connor because I keep encountering her in recent books about the court. In Jan Crawford Greenberg's book, O'Connor is there to tell us that she stepped down when she did because Justice Rehnquist asked her to—an account that hardly squares with her record of forthright independence, and which Rehnquist can never confirm or deny. And then in Jeffrey Toobin's book, O'Connor is full of regrets and distress about the bad end she thinks President Bush ended up coming to. Maybe I should find this refreshing, but it mostly strikes me as depressing—far too little, too late from one of the justices who gave us Bush v. Gore.

Whither O'Connor?

I miss Sandra Day O’Connor.

I always forget how much I miss her until I see her talk, as I did yesterday, at a conference at the Law Library of Congress on the need for competent counsel. The conference was co-sponsored by the Constitution Project. The justice was in a wheelchair as a result of a hip injury—“a temporary deficiency” is all she would say.

O’Connor gets more and more O’Connorish each time I see her. And there is something so honest about her approach to her years at the court—as a great big work-in-progress with no certain answers and no definite solutions—after all the bombast and nastiness of last term. “It’s hard when the Supreme Court gets into a new area and tries to articulate a new principle,” she said, describing Strickland, the 1984 opinion she authored that set the standards to determine whether a lawyer had provided competent representation. Describing “so many questions today” that have caused the courts to re-examine the Strickland test, she said, again, that the issue is “very hard.”

She even went so far as to say she wished for a magic wand that would permit a few jurisdictions in the United States to experiment with the British system, in which both prosecution and defense lawyers are paid for from the same public purse. “One day a lawyer is a prosecutor for the state, and the next day he does defense work," she explained. The benefit? A new level of courtesy and understanding for having handled both sides and some much-needed parity in the quality of representation. “I’d sure like to see us take a look at that,” she says. “I don’t know. It’s a thought.”

 A magic wand? The need for courtesy? “It’s hard.” And that dismissive “it’s a thought.” The inevitable sense you get is that she was kind of winging it at the court, throwing solutions against that constitutional wall and hoping to solve some problems. I know it drove her critics (and me) crazy sometimes. But with the court sounding more and more like it’s comprised of the nine smartest-kids-on-the-debate-squad each year, it’s refreshing to hear someone confess that they were just trying to be fair. A particularly female approach to judging? I don’t know. It’s a thought.

More Mukasey questions

Darren Mack Trial and Fathers Rights

I must confess to a more than passing obsession with the Darren Mack trial, which gets under way today in Las Vegas. Mack stands accused of fatally stabbing his estranged wife Charla with their 7-year-old daughter upstairs in the home, then shooting – sniper style – at the family court judge who was presiding over their divorce and custody dispute. Of course part of my fascination is that I knew Darren and Charla quite well, back when I clerked at a Reno divorce firm.

The current jury pool offers a snapshot of everything weird and wonderful about Vegas, including, at present, a former go-go dancer who has been married three times, a veteran trapeze performer, as well as a floor supervisor for a local casino who’s studied martial arts since he was 5. But I am mostly curious to see whether the defense will indeed be styled as a referendum on father’s rights and their alleged unequal treatment in family courts. After the shooting, Mack left a message on his cousin’s answering machine asking, “If anything happens to me, please make sure that the true story about the injustices that are going on in that courtroom get out to the media and the public.” I guess he’ll finally get his wish.