The Next Justice of the U.S. Supreme Court

To put it succinctly, the D.C. Circuit is overrepresented on the court, and many racial, ethnic, socioeconomic, religious, and gender classes in the United States are underrepresented.

Presently the court is comprised of eight members: Chief Justice John Roberts, Justice Steven Bryer; Justice Anthony Kennedy; Justice Clarence Thomas; Justice Ruth Bader Ginsburg; Justice Samuel Alito; Justice Sonya Sotomayor; and Justice Elena Kagan.

That composition yields the following demographics:

5 men, 3 women

6 Whites, 1 African American, 1 Latina

4 conservative thinkers, 4 liberal thinkers

5 Christian, 3 Jewish

8 (presumably) straight, 0 (openly) gay

That makeup says a lot about a court that makes decisions on issues of constitutional construction, and personal rights. What I mean is, for example there may be an issue of constitutional import to women, regarding healthcare, workplace equality, reproductive rights, or equal protection which are being decided by mostly men–men by the way who come from a none-too-woman-friendly era of legal training. How many other areas of the law does this impact?

Here are some extrapolated facts to chew on:

1. The o-so-popular reconstruction-era Fourteenth Amendment to the U.S. Constitution has been mostly interpreted by white justices.
2. Religious rights cases have been decided mostly by Christian justices
3. Womens’ rights issues have been decided mostly by male justices.
4. Gay rights issues have been mostly decided by straight justices.
5. Immigration issues have been decided by mostly by not-recent-immigrant justices.
6. Juvenile justice issues have been decided by a court with a median age over 60.
7. Death penalty cases have been decided by justices who are far-removed from imposing the sentence.
8. Worker’s rights cases are being decided by justices who have never been a members of a labor union.

A court with as much power as the Supreme Court should have a broad base of perspectives upon which to draw when crafting opinions. There should be no requirement that it resemble the population at large like a jury, but there should certainly be some representation of as many perspectives as possible when deciding an issue that can have an often significant impact on the lives of real people facing real problems.

So, what things should the next justice bring to the table? In addition to requisite educational credentials, legal skill, judicial experience, and respectability, the next justice should have one or more of these qualities, any one of which will broaden the perspective of the court.

The next justice of the United States Supreme Court:

1. Should not be from the U.S. Court of Appeals for the D.C. Circuit.

The “Supreme Court-in-Waiting” circuit is already over-represented and is too political. There are currently three justices who came from the D.C. Circuit Court of Appeals: Chief Justice John Roberts, Justice Ruth Bader Ginsburg, and Justice Clarence Thomas. That’s right we have 12 Federal Circuit Courts of Appeals in the United States and a full third of our justices come from the D.C. Circuit Court of Appeals. Astonishing. There isn’t even room on the 9-justice court for a justice to come from each circuit, but Washington has made sure to appoint from this nearby court because its members are closely scrutinized by the political system. It’s time for an outsider from an outland circuit or district court, or–god for everloving bid–a state supreme court (politicos clinch teeth).

Even though Judge Padmanabhan Srikanth “Sri” Srinivasan seems like a shoe-in given that this same Senate recently confirmed him, I think that his would be a nomination of political necessity–not one of courage. I will say, however, that Judge Srinivasan does satisfy other criteria below, which would make him a good addition to the court in spite of the fact that he came from the Supreme Court’s beltway breeding farm.

2. Should be a woman.

You heard it here first, folks. The next justice should be female. I said it. There is an opportunity here to give the court a 5 male to 4 female balance which is as close to true gender representation on the court as you can get without making it 4 men and 5 women, a proposition I also support. If you’re making laws about vaginas and uteruses, then you should have at least 4 women at the 9-person table.

3. Should be from a racial or ethnic background not currently represented on the court.

You heard it here again. Why have we never had an east Asian justice? East Asians have been in this country for a very long time without representation on the court. How about African American women? There are approximately 23.5 million African American women in the United States yet there are neither any African American women on the Supreme Court, nor have there ever been. Why? Lots of reasons, which are too many to recount here.

4. Should have parents or grandparents who emigrated to this country.

There are pending cases in the always hot-button area of immigration law. Well, its no surprise that immigration laws do not favor immigrants when the people making and interpreting the laws are themselves not recent immigrants. Go figure.

5. Should be openly GBLTQ.

As of 2012, there are an estimated 10 million GBLTQ people in the United States. We’ve got 8 straight justices deciding issues that affect them. Math.

6. Should be younger than the median age of the court.

With a median age on the court greater than the age of retirement for most Americans, do you think there is a potential for grandpa and grandma to be a little out-of-touch? You’re not alone. The only three justices keeping that number so low are Chief Justice Roberts (age 61), and President’ Obama’s two Appointees, Justices Sotomayor (age 61) and Kagan (age 55).

After that, we’re riding with the walker brigade: Justice Alito (age 65), Justice Thomas (age 67), Justice Bryer (age 77), Justice Kennedy (age 79), and Justice Ginsburg (age 82).

I think this is by far the hardest category to satisfy because the most experienced judges are experienced precisely because they have many years of being judgy under their robes.

7. Should have been required to impose the death penalty as a trial judge.

My one outstanding fact check is how many of the sitting justices have ever themselves imposed a death sentence. If the answer is none of them, then before the court makes any more rulings on the death sentence, don’t you think there should be at least one of them in the room with a perspective on what that’s like?

8. Should have been a member of a labor union.

There lots of cases being decided right now in the organized labor arena, especially in the area of public sector unions. Many old labor protection laws are being cut down by justices who were never themselves members of labor unions. It’s easy to pass judgment from on-high. But give us a justice who’s been in the trenches of working life, and understands what workers go through before they get to hand those judgments down.

9. Should be neither Christian nor Jewish

There are plenty of citizens of the United States who are neither Christian nor Jewish. Why are 100% of the justices aligned with those faiths in some way? That’s just how it shook out I guess. But there is an opportunity to change it now.

As I said, any one of these qualities will broaden the perspective of the court, which can only be seen as a good thing. Now that you have my perspective on what qualities a justice should have please now consider my list.

Judge Padmanabhan Srikanth “Sri” Srinivasan
Current position: Judge, U.S. Court of Appeals for the D.C. Circuit
Undergraduate School: Stanford University, 1989
Law School: Stanford Law School/Stanford Graduate School of Business J.D./M.B.A., 1995
DOB: February 23, 1967 (age 48)
If nominated, Judge Srinivasan would be the first Asian-American justice of the Supreme Court.

Judge Diane Pamela Wood
Current position: Chief Judge, U.S. Court of Appeals for the Seventh Circuit
Undergraduate School: University of Texas at Austin, 1971
Law School: University of Texas School of Law, 1975
DOB: July 4, 1950 (age 65)
Judge Woods was among the first women to clerk at the U.S. Supreme Court (for Justice Blackmun).

Judge Ojetta Rogeriee Thompson
Current position: Judge, United States Court of Appeals for the First Circuit
Undergraduate School: Brown, 1969
Law School: Boston University School of Law, 1976
DOB: August 8, 1951 (age 64)
If nominated, Judge Thompson would be the first African American Female justice on the U.S. Supreme Court.

Judge Deborah A. Batts
Current position: Senior Judge, U.S. District Court for the Southern District of New York
Undergraduate School: Radcliffe College
Law School: Harvard Law School
DOB: April 13, 1947 (age 68)
Judge Batts was the nation’s first openly LGBT, African-American federal judge. If nominated, she would be the first openly gay Justice and the first African American female justice on the U.S. Supreme Court.

Chief Justice (Ret.) Leah Ward Sears
Current position: Retired/Private practice, Chief Justice (Ret.), Georgia Supreme Court
Undergraduate School: Cornell University, B.S. 1976
Law School: Emory University School of Law J.D., 1980, University of Virginia School of Law, LLM 1995
DOB: June 13, 1955 (age 60)
Justice Sears was the first African American female chief justice in the United States. If nominated, Justice Sears would be the first African American female justice on the U.S. Supreme Court.

Chief Justice Bernette J. Johnson
Current position: Chief Justice, Louisiana Supreme Court
Undergraduate School: Spelman College
Law School: Louisiana State University, Baton Rogue
DOB: June 1943 (age 72)
If nominated, Justice Johnson would be the first African American female justice on the U.S. Supreme Court.

Chief Justice Tani G. Cantil-Sakauye
Current position: Chief Justice of the California Supreme Court
Undergraduate School: University of California Davis, B.A., 1980
Law School: University of California Davis Law School, J.D., 1984
DOB: October 19, 1959 (age 46)
Justice Cantil-Sakauye’s Hawaiian-born father, Clarence, was of Filipino and Portuguese ancestry, while her mother, Mary Gorre, was Filipino. If nominated, Justice Cantil-Sakauye would be the first woman of Asia-Pacific Island descent on the U.S. Supreme Court.

Justice Mary Yu
Current position: Justice, Washington Supreme Court
Undergraduate School: Dominican University (B.A.)
Law School: Notre Dame Law School
DOB: 1957 (age 59)
If nominated, Justice Yu would be the first openly gay Supreme Court Justice, and the first Asian American justice on the U.S. Supreme Court.

This list is nonexclusive. I have five more suggestions, but for personal reasons I have chosen not to post their names here.

Congressional Hearings on Flint Water Begin

Watch it live here.

 

 

U.S. Supreme Court Decides 6-3 Miller v. Alabama is retroactively applicable.

PRESS RELEASE

Hubbell DuVall PLLC Announces that it Will Seek New Sentence for Cortez Davis, Based on the Holding in Montgomery v. Alabama.

The partnership of Hubbell DuVall PLLC met today, and decided it would immediately file a motion in the Wayne County Circuit Court seeking a new sentence for Juvenile Life sentencee Cortez davis basedon the holding in Montgomery v. Alabama.

The Montgomery case, released today, held:

In light of what this Court has said in Roper, Graham, and Miller about how children are constitutionally different from adults in their level of culpability, however, prisoners like Montgomery must be given the opportunity to show their crime did not reflect irreparable corruption; and, if it did not, their hope for some years of life outside prison walls must be restored.

FOR IMMEDIATE RELEASE

This Should Be Next for Flint

Before Devin Scillian interviewed DPS Emergency Manager Darnell Early, on both Flint Water and the state of DPS this morning on his Channel 4 program, Flashpoint, Detroit Free Press Writer Matthew Dolan wrote today on what is next for Flint. [1]

Dolan quoted Flint Mayor Karen Weaver from her interview with National Public Radio earlier this month as saying the ordeal over water has been “[a] terrible thing, no community should ever have to go through what Flint has gone through, but I’m also looking at the possibility of what can come out of this.”

I wish to answer Dolan’s headline question, and propose a Plan for Mayor Weaver to consider. The title of this blog response is “This Should be Next for Flint,” because even though the expansive response I propose below is what the residents of Flint deserve—and more—I doubt very seriously that in spite of Governor Rick Snyder being “devoted” to Flint, that the political will exists in Michigan to make such a comprehensive plan a reality.

The plan has 18 steps, it is not exclusive, and needs to start now. Just in case the State or the incompetent officials running it are confused about the meaning of “now,” it means after you’re done reading—not after the blue ribbon commission makes a recommendation 2 years from now. It means today.

Here is what should happen now.

1. Relocate children and their families permanently to lead-safe housing if necessary to reduce their lead exposure in a timely manner.

If there was a way to “fix” this in short order, it is to physically relocate children away from Flint. Don’t make it mandatory, but make it easy if a family chooses this option.

2. Complete a thorough, initial, physical on-site assessment and evaluation of each home connected to the municipal water system where each child under the age of 18 principally resides, and inspect other sites where the child spends significant amounts of time and of systems to which the child is routinely exposed.

This individualized evaluation must include testing of (i) house dust; (ii) paint that is not intact or is subject to friction; (iii) exposed soil, especially in play areas; (iv) water piping, joints, and fixtures inside the structure, and (v) drain fields and other areas as appropriate, all of which should be completed with a focus on control of current lead hazards that may continue or exacerbate the current crisis.

3. Supply temporary vulnerable adult occupant relocation or other measures to protect from exposure to lead produced by lead hazard control activities. Replace or enclose building components when elimination of intact leaded paint is performed. Include clearance testing following lead hazard reduction work to ensure that lead levels are safe prior to a structure being re-occupied.

In addition to children, one group that is largely overlooked are the elderly and vulnerable adults who do not have the same voice as the younger parents or individuals who shout at community meetings. These people will simply suffer quietly, and many will meet horrible ends that will, inevitably, go ignored.

4. Prepare a complete individualized history of exposure and testing data for each child under the age of 18, and document the evaluation and data in a format and medium easily accessible to the child’s parent/guardian in perpetuity.

This data needs to be appropriately documented and widely available for future use in debates, policy positions, and as evidence available to defense attorneys in future criminal trials of people exposed to high levels of lead.

5. Physically dig up water transmission lines from pumping structures to neighborhood distribution lines, inspecting, applying prophylactic stabilizing and antibacterial measures, and replacing pipes as necessary;

There are multiple technologies that can be used to modernize and make safe the municipal drinking water system in Flint. [2] [3] [4] [5]

6. Physically dig up water transmission lines from the city water main under the street conveying water to a structure, inspecting, applying prophylactic stabilizing and antibacterial measures, and replacing pipes as necessary;

These lead and cast-iron systems should be replaced immediately with steel, steel-lined, or water grade polymer systems.

7. Physically replace water piping and joints inside structures using or which utilize lead-based joinery, including appliances and fixtures where lead may be pooling, or waiting dormant for an event which would disturb it and put it back into the tap water, such as water heaters, pre-existing filtration systems, and city water meters.

Local plumbing contractors can do the footwork of going house to house, free of charge, to assess the extent to which fixtures, piping, joints, and appliances should be replaced. Then pay them to do the work.

8. Establish a new internet site to monitor progress of the foregoing, as well as for residents to submit claim information for early replacement of contaminated components.

A component of the site will be storing data about the updates made on every transmission line, every neighborhood project, and every structure. Many reputable plumbing contractors have already developed similar reporting software for handling annual inspections of commercial and industrial applications. The technology exists to do this now.

9. Promptly make monthly water monitoring data available on the internet at no cost, including a full breakdown of all known contaminants and additives (not just those required to be disclosed by law), in easy-to-understand terms, including analytics of legacy and historical data for real-time comparison.

This information should be widely available to residents, as well as media, watchdog groups, and independent auditors to maintain the integrity of the system through constant checks about water quality.

10. Increase the frequency of the consumer confidence reports by community water systems required by the Safe Drinking Water Act (SDWA), at 42 U.S.C. § 300g–3(c)(4)(A) from annually to monthly for a period of 10 years.

Most Michigan residents already receive an annual water quality report. That effort needs to be made available to Flint residents and businesses monthly for a long period of time in order to increase consumer confidence if positive results are obtained.

11. Offer semi-annual blood testing for all residents, free of charge, regardless of permanent relocation status.

This should be voluntary for residents, and free of charge.

12. Supply medical intervention, including evaluation and, if necessary in acute cases, chelation therapy, to all exposed individuals, free of charge.

This should be voluntary for residents, and free of charge. In spite of the high costs involved with chelation therapy, for residents who need medical intervention, but cannot afford it should receive necessary treatments regardless.

13. Provide adequate nutritional supplementation appropriate for management of childhood lead contamination, free of charge, regardless of permanent relocation status.

One response to high blood lead levels is ensuring proper nutrition in order to allow the body to develop as normally as possible in spite of the high levels of contaminants. As previously noted, Flint does not have a large chain grocery store, or meaningful access to high nutritional value and fresh foods. Even if these resources are available, most families cannot sustain the budget required to ensure year-long proper nutrition given the high cost of quality food options. Although the State of Michigan offers food assistance benefits, it has also been busy ensuring that fewer people than ever qualify for these benefits.

14. Promote the expansion of existing federal, state, and local subsidies to help finance lead hazard control in economically distressed communities, and the creation of new subsidies, if necessary.

Money. That’s what this started as, and that’s what it’s going to take to fix it.

15. Alter local ordinances and state laws, including the Michigan Freedom of Information Act, to exempt all state officials from turnover requirements of documentation pertaining to any of the foregoing.

This has been a topic of ongoing discussion in Michigan for some time. Michigan ranks last in states in the United States for laws concerning ethics and transparency according.

As reported by the Detroit Free Press, In 2013, Gov. Rick Snyder signed into law Senate Bill 661, which among other changes enshrined into state law the anonymity of donors who pay for campaign “issue ads” that may praise or criticize candidates for elected office but don’t expressly advocate how people should vote. Such ads have proliferated in recent years as part of the growth in the influence of “dark money” on political campaigns.

Wording was added to the bill to keep the donors secret just hours after Secretary of State Ruth Johnson, who, like Snyder, is a Republican, announced she would seek changes to administrative rules that would require the identify of such donors to be publicly disclosed.

Snyder, who said he favored disclosure of issue ad donor during his first campaign for governor in 2010, argued the bill increased overall transparency by requiring that disclaimers identifying sponsors be included with automated telephone calls, known as robocalls, and other political ads. But campaign finance reform advocates said those changes were minor when compared to the legalizing of dark money under state law. [6]

Instead, nothing has changed. It got worse, and Michigan FOIA is as protective as it ever has been for executive actions.

16. Alter state law to exempt state governmental officials from immunity for acts of negligence with regard to any of the foregoing.

17. Alter state law to proscribe criminal penalties, including terms of imprisonment, for willful violations of any of the foregoing.

18. Alter state law to require the State of Michigan to immediately turnover water quality reports and progress reports on lead abatement, and the costs pertaining thereto, to an independent auditor that is not subject to state control or regulation.

19. Fire Darnell Earley as Emergency Manager of Detroit Public Schools, and appoint him to no further positions of authority or control.

The previous 5 ideas are to increase the transparency and accountability of government in Michigan in order to deter this kind of gross negligence and recklessness in the future.

Many of these action items were taken from the following sources:

Managing Elevated Blood Lead Levels Among Young Children: Recommendations From the Advisory Committee on Childhood Lead Poisoning Prevention. Atlanta, GA: Centers for Disease Control and Prevention; 2002. [7]

Oral Chelation Therapy for Patients With Lead Poisoning. Jennifer A. Lowry, MD, Division of Clinical Pharmacology and Medical Toxicology The Childrens’ Mercy Hospitals and Clinics, Kansas City, MO; 2010, reposted by World Health Organization. [8]

State of the State 2016

Friends:

Tonight, Governor Rick Snyder will deliver his State of the State address to the Michigan Legislature. It is anticipated that a large portion of the address will be dedicated to the #FlintWaterCrisis.

If you listen or watch this address, please understand the dynamics of this situation. The Governor is in full damage-control mode. He is reeling from intense criticism of his office’s handling of the Crisis. He will attempt to assuage public distrust of government by assuring the people that action is being taken to abate the crisis, such as his call for a federal disaster declaration, the state of emergency declaration, the re-connecting of the Flint water system to Detroit Water, and possibly others. The damage, however, is already done.

The chief pharmacological response to heavy metals poisoning is to avoid exposure in the first place, and that position is shored by numerous federal and state laws designed to protect the integrity of the drinking water system of the many cities in Michigan and in the United States.

The great thing about being a regular citizen is that I don’t need to worry about being fair, like the press does, I only need to worry about being truthful. Why post about this? Because my kids may be these peoples’ next target, and I won’t let that happen, and neither should you.

In anticipation of tonight’s address, I have started this blog, and I respond thus. If you don’t know the faces of the characters in this story, I’ve attached images.

The following facts are undisputed.

Flint is the largest city and county seat of Genesee County, Michigan. Located along the Flint River, 66 miles northwest of Detroit. According to the 2010 census, Flint has a population of 102,434, making it the seventh largest city in Michigan. Genesee County comprises the entirety of Flint’s metropolitan area, the fourth largest metropolitan area in Michigan with a population of 425,790 in 2010.

The City of Flint changed its water source to the Flint River from Lake Huron in April 2014.

Following the switch, residents began complaining about discoloration and the water’s taste and smell. The city initially struggled with bacteria levels and the presence of a disinfectant byproduct, TTHM, in the water. Flint’s drinking water became contaminated with lead in 2014 after the city, while under the control of state-appointed emergency manager Darnell Earley, switched its drinking water supply from Lake Huron water treated in Detroit to water from the Flint River treated at the Flint water treatment plant.[1]

Officials in the Michigan Governor’s office  knew of the lead contamination as early as 2014, but the exact date is yet to be determined.

The Michigan Department of Environmental Quality knew of the lead contamination as early as 2014, but the exact date is yet to be determined.

In July of 2015, the governor’s Chief of Staff, Dennis Muchmore, noted in an email that Flint residents were basically being blown off by the state. Two days after Muchmore’s communication, he received a response from DEQ spokesman Brad Wurfel indicating the concerns were unfounded. Roughly a half-hour before sending the email, Wurfel was told by Stephen Busch, DEQ’s district coordinator, the latest testing results showed Flint to be in compliance with federal standards. [2]

On September 14, 2015, Flint Mayor Dayne Walling asked the governor for money to replace lead water pipes.[3]

On Sept, 24 2015, Dr. Mona Hanna-Attisha, a Pediatircian at Hurley Medical Center found that the percentage of children 5 years old and younger with more than 5 micrograms per deciliter of lead in their blood increased from 2.1 percent while Flint purchased Lake Huron water from the city of Detroit to 4 percent after the switch to the Flint River. Areas of Flint with the highest lead levels, according to testing by Virginia Tech University, also showed the most drastic increases in elevated lead levels in children, rising from 2.5 percent to 6.3 percent. She recommended that the Flint River be immediately terminated as a drinking water source, and that lead filters be distributed immediately. [4] At first, the state publicly denounced Dr. Hanna-Attisha’s work, saying she was causing near hysteria. They spent a week attacking her before reversing their narrative and admitting she was right. [5] Dr. Attisha went on to say, “[i]f you were to put something in a population to keep them down for generation and generations to come, it would be lead, [i]t’s a well-known, potent neurotoxin. There’s tons of evidence on what lead does to a child, and it is one of the most damning things that you can do to a population. It drops your IQ, it affects your behavior, it’s been linked to criminality, it has multigenerational impacts. There is no safe level of lead in a child.” Lead poisoning is irreversible. Pediatricians such as Hanna-Attisha fear the Flint children who tested with elevated levels will suffer lifelong consequences. There are environmental actions that can help mitigate exposure such as proper nutrition and early childhood education. But that’s made more difficult in a city with inadequate resources and without a grocery store.

On October 13, 2015 the former State-appointed Emergency Manager, Darnell Earley, who presided over the water switch, quickly disavowed involvement in the crisis. [6] Earley is now the Emergency Manager of Detroit Public Schools, which in January of 2016 are being subjected to teacher “sick-outs” and investigations over the conditions in the schools, which include mold, leaky ceilings, busted windows, rodents, roaches, lack of heat and standing water. [7]

Flint Finance Director Jody Lunquist told Flint residents as early as November 05, 2015 that shutoff notices would be issued for past-due water accounts. [8]

On November 6, 2015, Flint’s former mayor Dayne Walling was replaced by Karen Weaver.

On November 9, 2015, Michigan was named by a national survey as raking last in laws concerning ethics and transparency, placing it among the most corrupt states in the country. [9]

On December 30, 2015, former Michigan Department of Environmental Quality director Dan Wyant resigned. [10]

On January 5, 2016, it was reported that United States Attorney for the Eastern District of Michigan Barbara McQuade, along with the U.S. Environmental Protection Agency announced an investigation into the contamination in Flint. [11]

On January 13, 2016 it was reported that Legionella bacteria was discovered in the water, which causes Legionnaires Disease. From May 2015 to November 2015, 42 cases of the disease were confirmed in Genesee County. [12]

On January 15, 2016, Governor Snyder activated 30 National Guardsmen to assist in distributing bottled water and fighting fires in Flint. [13]

Attorney General Bill Schuette, who is Michigan’s”top law-enforcement officer,” and self-styled “people’s lawyer” deferred all action, and did not even begin an official investigation into the handling of this matter until January 15, 2016—long after the matter had received national attention. [14] Schuette has held a large portfolio of political positions in Michigan, which he hopes to expand in 2018 as Governor.

The President declared an emergency in Flint on January 16, 2016 – two days after receiving a request for such an action from Governor Snyder. [15]

My focus will be on bringing attention to important matters, so that my children will not have to deal with the fallout of this kind of incompetence in the future, hopefully without any journalistic propriety–only truth.