Ladies from Washington

NOTE: I got behind on my blogging, while writing a series of case studies from the last election cycle, but I have continued to cover events. So, here are some.

What’s Wrong With This Picture?

During the month of May a couple of powerful women from Washington, D.C. visited New Mexico.

The newest appointed member of the United States Supreme Court, Associate Justice Elena Kagan, gave the commencement address to the 60^th graduating class of the University of New Mexico Law School. She is seated with Board of Regent J.E. (Gene) Gallegos, left.

Professor of Law, and the Dean of the School of Law Kevin Washburn, introduced Justice Kagan by reading her biography, as posted on the Supreme Court’s webpage.

Elena Kagan, Associate Justice, was born in New York, New York, on April 28, 1960.

She received an A.B., summa cum laude, in 1981 from Princeton University.

She attended Worcester College, Oxford University, as Princeton’s Daniel M. Sachs Graduating Fellow, and received an M. Phil. in 1983.

In 1986, she earned a J.D. from Harvard Law School, graduating magna cum laude, where she was supervising editor of the Harvard Law Review.

She served as a law clerk to Judge Abner Mikva of the U.S. Court of Appeals for the District of Columbia Circuit from 1986-1987.

She served as a law clerk to Justice Thurgood Marshall of the Supreme Court of the United States during the 1987 Term.

And she worked as an associate in the Washington, D.C. law firm of Williams and Connolly, from 1989-1991.

She became an assistant professor at the University of Chicago Law School in 1991 and a tenured professor of law there in 1995.

And about that time she left the University of Chicago to join the White House where she was associate counsel to President Clinton and then served as deputy assistant to the President for Domestic Policy and Deputy Director of the Domestic Policy Council.

She joined Harvard Law School as a visiting professor in 1999 and became professor of law in 2001.

She was the Charles Hamilton Houston Professor of Law and was appointed the 11th dean of Harvard Law School in 2003.

She was the first female dean of Harvard Law School.

While there, she earned a reputation, deserved, as the most transformative academic leader of our time.

President Obama nominated her to serve as the 45th Solicitor General of the United States and the first woman in that role of the United States, and she was confirmed on March 19, 2009.

President Barack Obama then nominated her as an Associate Justice of the Supreme Court on May 10, 2010, to take the place of retiring Justice John Paul Stevens and she assumed this role on August 7, 2010.

“We’ve had other justices visit UNM School of Law,” Dean Washburn said. “But, the last justice to actually give the commencement address was William O. Douglas. And I know that you now hold his seat,” Washburn said.
"You know from that introduction that Dean Washburn gave me, the secret to my career, or ah, the secret is, I can’t keep a job,” Kagan said, “But, I think I’ve solved that now,” referring to the lifetime appointment to the federal bench.

“I understand Albuquerque is sometimes called the city at the end of the world,” Kagan said, “because it’s the city in America located furthest away from any other city; and perhaps that is why you treat your guest so well.”

“You know how far we travel, and let me tell you, it took a little bit of time yesterday on Southwest Airlines,” She said to knowing groans and laughter.

In fact, this address is something of a momentous occasion for me as well, because this is my very first commencement address as a Supreme Court Justice.

And in fact, it’s my first public address as a Justice of any kind whatsoever.

So, you know, we’ll see how I do, you know.

Kagan told the crowd the reason she accepted the invitation to UNM was because Dean Washburn had taught at Harvard during her tenure as Dean.

There was nothing political about her speech; only encouragement and advice.

When it came time to present graduates with their hood, Kagan insisted on greeting each student, shaking their hand, and having their picture taken together.

Mary Martha Corinne Morrison Claiborn Boggs – Roberts. You would know her as, Cokie Roberts was the featured speaker at New Mexico First’s First Forum Lecture Series, and the awarding of the “Spirit of Bipartisanship Awards," May 25, 2011 at UNM's Keller Hall.

The topic, Cokie Roberts: The Politics of Good Government.

Roberts comes from a unique place, her parents served in Congress for some combined total of 50 years according to her.

Her father, Thomas Hale Boggs Sr., a Democrat, served 14 terms as a member of the U.S. House of Representatives from Louisiana’s 2^nd district, New Orleans. He was first elected to one term, January 3, 1941 – January 3, 1943, when he was defeated in his reelection bid. He joined the Navy and served out the remainder of World War II. He was reelected and served from January 3, 1947 – January 3, 1973.

Boggs was the 16th Majority Whip of the United States House of Representatives from January 10, 1962 – January 3, 1971. He became the 17th Majority Leader of the United States House of Representatives from January 3, 1971 – January 3, 1973. He presumably died in a twin-engine airplane crash over a remote area of Alaska on October 16, 1972, the wreckage has never been found, and he was not declared dead until January 3, 1973,

Boggs' widow, Marie Corinne Morrison Claiborne Boggs, known as Lindy, also a Democrat, was elected in a special election and served from March 20, 1973 – January 3, 1991, six terms, just under 18 years. She served as ambassador to the Vatican, appointed by President Bill Clinton in 1997–2001.

Roberts says her role is to try to explain politics on radio and television.

The moderator for the evening was New Mexican Sam Donaldson. He has served 37 years as an ABC NEWS reporter and commentator.

Roberts and Donaldson appear to enjoy each other’s company and during the question and answer session, it felt like you were watching a couple of pretty smart and well-informed people having a living-room conversation, and you were a silent guest, taking it all in.

Donaldson asked several questions and read some from the audience:

Roberts was talking about the polarization in the legislative process, “… it’s destructive, but it’s not new.”

"But it didn’t again use to be that way,” Donaldson said. “When I came to Washington 50 years ago, to think of your father, people assumed that people in Congress were trying to serve their constituents, assumed they were honest, which is not always true, and assumed they were good people….”

I’m from Louisiana,” Roberts said. “It wasn’t always true at all. Our most recent jailed governor just got out. But, there was a much more strong assumption of that period,

But again I’ve come to believe again that that period of from about 1946 to 1974 was really the aberrant period of…. But, was aberrant in a lot of ways and a lot of it was because of World War II and in fact if you look at the graphs, of when the Congress was most, was least polarized, it was in that period of our history.

You know, the men that were in, and it was men in Congress at that point, had literally been in the trenches together.

And they, and the whole country lived through it, you know we, the whole country had been on rationing, sacrifice and America understood the enemy was the dictator across the ocean not the guy across the aisle. And so that carried over for a very long period time.

And then it ended.

“Do you see any way, or ways, to lessen the influence of big – big money, and lobbyists, and PACs on our elections,” Donaldson asked?

“Uh No,” Roberts said. “In a word,…

“What are the prospects of a Constitutional change for term limits,” Donaldson read an audience question?

None. And that’s a good thing. I speak as a daughter of people, with combined terms of about 50 years.

Term limits don’t get you anywhere. The problem in Washington is not that people stay forever, and are set in their ways. Those people who are actually the ones who are willing to do some compromising and try to get things done. It’s people who arrive fresh and new who have never, you know spend the first few years looking for the men’s room. They’re worrying about their voters at home and don’t have the security to do the right thing beyond that.

And it’s not as if they served for six years and go home, they serve six years and have plenty of experience in state legislature. They serve and then run for something else. It’s not like they’re not running for something, and therefore not paying attention to what the electorate has to say.

And, by the way, why shouldn’t they pay attention to what the electorate has to say?

We are their bosses, they should pay attention to what we have to say…

And the truth is, if you have members of Congress who don’t know the system and don’t have institutional memory, and don’t know, and frankly lots of piece of legislation, Secretary Lujan can tell you, can take 10, 12 years to get passed; because, it takes a long time for some of these changes.

Former New Mexico 10-term U.S. Congressman and Secretary of the Department of Interior Manuel Lujan, below, with his wife, Jean, was awarded a life time achievement for bipartisanship.

And so, if you don’t have people there who can do those kinds of things. The power devolves on to staff, the bureaucracy in Washington, and us, the press.

…Having weakened elected officials has, in fact, strengthened bureaucracies.

So what’s Wrong With This Picture?

Where was C-SPAN for Kagan's first speech as a Supreme Court Associate Justice. How could such an opportunity be lost. Getting a Justice to a college campus is neither a small nor insignificant feat.

Justice Kagan and Cokie Roberts don’t make the pictures wrong.

The outstanding things instantly apparent are that Kagan and Roberts are both smart and have wry senses of humor.
Justice Kagan was under the protection of the United States Marshal with local assistance of the United States Secret Service, above left, the Albuquerque and University of New Mexico Police Departments.

I display the above picture more as art imitating reality, or the fact stranger than fiction impressions. The woman to the right, in the mirrored sunglasses is the Deputy U.S. Marshal accompanying Justice Kagan.

Right here in the Duke City, we are host to a TV production, "In Plain Sight," starring Actress Mary McCormack, above, as U.S. Marshal Mary Shannon of the Witness Protection Program, with Actor Steven Weber, who played FBI Special Agent Mike Faber.

You met McCormack, below right, who lives in Albuquerque, in a post a couple of years ago, while filming in the neighborhood.

Someone has the look of a U.S. Marshal down pat, I'm just not sure which one pulls it off better.

From a media standpoint there was a problem with the delivery of sound from the podium microphone to what is known as a mult-box.

A mult-box, seen above the knee of the television, cameraman, seated in the center of the photo above, is an electronic device with multiple outlets that delivers an audio signal form the master control board of an event, especially for audio dependent press of television and radio, but also used by journalists who more often use recorders as auxiliary note taking devices.

You may note that there are no plugs attached to the box, as the media present were unable to obtain any signal through the box. So, the reason for using a mult-box, to avoid cluttering the podium with several wireless microphone units and recorders failed.

However, the apprehension of the media, was completely averted when Kagan placed the binder with her speech in it, at the side of the podium, letting the left side, of turned pages, hang over the edge, and not covering any of the microphones.

Sharing Light on a Real Hero

What’s Wrong With This Picture?

Santa Fe – The latest recipient of the Congressional Medal of Honor, Army Sergeant First Class Leroy Petry, a native of Santa Fe, was welcomed to the Capitol by Governor Susana Martinez, July 29, 2011.

Petry is the second living recipient of the highest military honor awarded since the Vietnam War.

As a Weapons Squad Leader with D Company, 2nd Battalion, 75th Ranger Regiment, Petry was severely wounded on May 26, 2008 protecting his fellow Rangers in combat with the enemy in Paktya Province, Afghanistan. During the firefight, he was shot in both legs, but continued to press the fight. When confronted by a grenade, he picked it up and tried to throw it back toward the enemy. The grenade exploded as he let it go spontaneously amputating his right hand and riddling his body with shrapnel. Though badly wounded, Petry treated himself, applying his own tourniquet, and remained calm while directing the fight until the enemy fighters were eliminated.

Petry was serving his seventh deployment to the southwestern Asia, region with five tours to Afghanistan, and two tours in Iraq. He has since been to Afghanistan for a total of eighth tours.

Hiroshi H. "Hershey" Miyamura, above right, of Gallup, who was awarded the Medal of Honor for his action during the Korean War greeted Petry at the Roundhouse entrance.

Miyamura, for whom a main north-south road in Gallup is named in his honor, gave a crisp salute to Petry and the gathered group when he was introduced.

Martinez presented Petry’s children, Austin, Landon, and Reagan with gifts from the New Mexico National Guard.

Landon, 7, gives his GI bear a big hug.

The Governor presented a bouquet of flowers to Petry’s wife Ashley. Petry presented Ashley with his own reward, a public display of affection.

Governor Susana Martinez presented him with the New Mexico flag that flew over the Capitol on July 12, the day he received the medal from President Barak Obama during a White House ceremony.

Santa Fe Mayor David Coss and Albuquerque Mayor R.J. Berry, above right, presented Petry with proclamations from both cities.

Petry spoke to the crowd of about 200 gathered in the Capitol Rotunda.

The New Mexico military affairs set up an impromptu press conference in the rotunda.

Governor Martinez’s staff has yet to grasp the finer points of handling a press conference. The Capitol has so any committee rooms and conference rooms available to them, but instead the PR machine set up a row of chairs in the cavernous rotunda with the crowd still milling around and sounds echoing off the walls.

Standing only feet away from other journalists asking questions, one could not hear over the din in the room.

Fitted with robotic prosthetic hand, he has the names of fellow Rangers from his unit who died in action etched on a plaque attached to the forearm of his artificial limb.

His military bearing is not at all hampered, as evidenced by the mirrored spit-polished shine on his combat boots, which reflect the glass ceiling in the rotunda.

Petry has reenlisted and will now finish his career assisting other wounded and recovering soldiers where he is now stationed, Joint Base Lewis-McChord near Tacom, Washington.

So what’s wrong with this picture?

The events of the day were well covered, with many people wanting to document Petry's arrival. There were so many people using flashes to capture the event that I chose to edit this post as much as I could using the shared light of other photographers.

The shared light emphasizes the significance of the moment and the light coming from a different angle helps create another dimension to the image.

It was a day full of shared light; on the way back to Albuquerque, I captured the image above, of a storm south of Santa Fe, with a double rainbow and a lightening strike.

Hatch Act?

What’s Wrong With This picture?

In a Press Release Wednesday June 1, 2011, Governor Susana Martinez announced today that she has made two appointments to the Judicial Nominating Committee that will make recommendations for the Court of Appeals seat being vacated by Judge Robert Robles.

Governor Martinez has named former Acting United States Attorney Gregory Fouratt, left, and former State Representative Justine Fox-Young to the committee.

The Governor's press release doesn't mention that there are 16 separate Judicial Nominating Committees; one each for the 13 judicial District Courts, and one each for the Supreme Court, the Court of Appeals, and one for the Bernalillo County Metropolitan Court, in Albuquerque.

The press release also doesn't mention where the former acting U.S. Attorney Greg Fouratt is today.

Because Fouratt is no longer the acting U.S. Attorney, having been replaced by Kenneth J. Gonzales, a U.S. Senate confirmed appointee of President Barack Obama, one might mistakenly believe he is no longer at the U.S. Attorney's office.

In part the press release reads:

Gregory Fouratt of Albuquerque served as a federal prosecutor before being named Acting United States Attorney for New Mexico in January 2008. He prosecuted the case against Manny Aragon, the former New Mexico State Senator who pleaded guilty to conspiracy and mail fraud as part of the 2007 Bernalillo County Metropolitan Courthouse construction scandal. Fouratt is a native of Roswell and a former Air Force Officer. He graduated from New Mexico State University.

However, Fouratt is still an Assistant U.S. Attorney for the District of New Mexico, in the Albuquerque office.
Fouratt was appointed acting U.S. Attorney by the Federal District Court Judges for the District of New Mexico, after his predecessor, David Iglesias, above, who was fired by the George W. Bush administration. Iglesias contended he was fired for not having been able to bring the case against Manny Aragon to an indictment before the 2006 mid-term elections.

As evidence mounted that Iglesias was fired for political, not performance related reasons, it was apparent that the Bush administration would not make a nomination and Fouratt was appointed to the acting role by the local judges.

The reason I asked is it appears the Hatch Act covers Fouratt.

The Hatch Act is a federal law, which prohibits U.S. government workers from being involved in political activities; at both federal, state, and local levels.

Fouratt meets the restrictions of who is covered by the act.

His appointment to the State's commission raises questions of things a US government employee may not do, which include:

endorse or oppose a candidate for political party office in a political advertisement, broadcast or campaign literature, if done in concert with the candidate, the political party or a partisan political group;

knowingly solicit or discourage the participation in any political activity of anyone who has business pending before their employing agency; or

The specific sections of interest in the Hatch Act are:

Subpart C—Prohibited Activities

§734.302 Use of official authority; prohibition.

(a) An employee may not use his or her official authority or influence for the purpose of interfering with or affecting the result of an election.

(b) Activities prohibited by paragraph (a) of this section include, but are not limited to:

(1) Using his or her official title while participating in political activity;

(2) Using his or her authority to coerce any person to participate in political activity; and

(3) Soliciting, accepting, or receiving uncompensated individual volunteer services from a subordinate for any political purpose.

[61 FR 35100, July 5, 1996]

Subpart D—Employees in Certain Agencies and Positions

§734.401 Coverage.

... (13) The Criminal Division of the Department of Justice;

By the mere fact that Governor Martinez announced the appointment of Fouratt as acting U.S. Attorney, and he still is an AUSA, raises questions of whether it places him in a violation.
The duties of this Governor-appointed position is required under the Constitution of New Mexico, Article VI, Section 8,

The process to vet and make recommendations of lawyers to the Governor for appointment to judgeships of state courts is also found in Constitution of New Mexico, Article VI, Sections: 35 for the Appellate Courts.

Judgeships to state courts that fill vacancies not associated with elections, similar to the vacancy of the New Mexico Court of Appeals by the resignation of are first made by Governor appointment, then through open elections during the next state general election. After that judges stand for retention and must garner at least 57 percent of the votes cast to stay in office.

Judge Richard Robles was suspended by the Supreme Court after a DWI arrest in Albuquerque and removed him from the bench after after guilty. His retirement was effective June 1.

I sought a statement from U.S. Attorney Kenneth J. Gonzales regarding Greg Fouratt's appointment.

On Jun 2, 2011 Executive Assistant U.S. Attorney and Public Affairs Officer Elizabeth M. Martinez emailed a statement from Gonzales.

Statement by U.S. Attorney Kenneth J. Gonzales regarding Greg Fouratt

I encourage my entire staff to participate in outside activities approved by the Department of Justice, particularly those that serve the public good. Over the years, numerous Assistant U.S. Attorneys have been appointed to serve on state judicial nominating commissions, and they have served, capably and well. Governor Martinez made a good decision in appointing Greg Fouratt to the Judicial Nominating Commission that will help her fill a vacancy on the New Mexico Court of Appeals. Mr. Fouratt is well qualified for this appointment, and I have no doubt that he will serve the public well in this important capacity.

I asked a follow up question about whether being appointed to a Judicial Nominating Committee for the State of New Mexico and its particularly unique method of selecting judges, part merit, part political created a problem with the Hatch act.

Repeated emails to Executive Assistant U.S. Attorney Public Affairs Officer Elizabeth M. Martinez asking questions about who in the Department of Justice reviewed, vetted, and approved the acceptance of Assistant US Attorney Greg Fouratt to sit on the New Mexico Judicial Nominating Commission and how that squares with the prohibitions of the Hatch Act, was met with promises of answers, but ultimately no response. A request for comment from Fouratt, through Martinez, also got no response. I waited as long as I could for the promised answer.
So What’s Wrong With This picture?

A federal employee may not be involved, by serving in other governments in making decisions about people who have, “business pending before their employing agency.”

Though Fouratt may only be part of a recommendation making process, the chances of encountering any lawyer who has business pending before the Department of Justice or the United States Attorney is highly likely.

Martinez is entitled to appoint anyone she wants, like Fox-Young, right, and appointing people of like political persuasion is to be expected. However, she has an obligation of not putting appointees into positions of conflicts of interest or possible violations of law.

She ultimately gets to select the judge from a list of names recommended by the Judicial Nominating Commission. If she is dissatisfied with the list, the Governor may ask for more names, but must chose from a name submitted by the commission.

The Governor's Constitutional duty to make appointments to judicial vacancies cannot be described as anything other than a political act, the kind the Hatch Act meant to prohibit federal employees from becoming entangled.

This is not an attack nor a commentary on the ability of the man, Greg Fouratt, or his skills as a lawyer, but it is based on his position as an Assistant United States Attorney for the District of New Mexico and the federal statutory restrictions on what any person in a similar position of federal employment as he is, may or may not do.

He is a hero amongst many state Republicans for having, as former Acting United States Attorney, compiled the cases against former Senate President Pro Tempore Manny Aragon and six other's for their involvement in corruption in the construction of the Bernalillo County Metropolitan Court building in Albuquerque. The seven all pleaded guilty.

Having Fouratt, a highly paid federal employee with a huge amount of power and influence sitting on the State's Judicial Nominating Committee, should be setting off all sorts of alarms, just from the appearance of possible conflict of interest standpoint.

The Hatch Act of 1939 and its 1940 amendment has its own unique New Mexico attachment; it was named for U.S. Senator Carl Hatch, a Democrat.

My Take

The University of New Mexico's Law School Dean Kevin K. Washburn, is Chair of the Judicial Nominating Commissions.

Washburn, right, seen here at the recent ceremonies of the 60th Law School graduating class of 2011, where he hosted his former boss, then Harvard Law School Dean, now U.S. Supreme Court Associate Justice Elena Kagan, who gave the commencement speech.

Washburn probably has an obligation, as to make sure those who sit as members of the commission are not prohibited from sitting in possible violation of law.

It's not like there aren't more than a few non-governmental lawyers in this state, even a fair number of politically like minded ones, that the Governor could choose from.

In this economy, there must be some attorneys who would like the security of a reasonably well-paid job, a regular paycheck, health, and retirement benefits, to go along with the prestige of being a member of the judicial branch of government.

When there are vacancies requiring a Judicial Nominating Committee to sit. lawyers meeting the Constitutional qualifications are encouraged to make application for consideration.
Not withstanding the state rule about possible conflict of interest:

SECTION 3. Role of the Commissioners.
B. Each commissioner shall disclose to the commission all current or past professional, family, business, and other special relationships with any of the applicants. These relationships shall not disqualify a commissioner from participating unless the commissioner feels that he/she cannot be impartial and cannot comply with his/her oath of office as to any applicant.

The Hatch Act 's "knowingly solicit or discourage the participation in any political activity of anyone who has business pending before their employing agency; or," supersedes the state rule.
It is hard to imagine a pool of 10 to 20 applicants seeking to be the next justice to pass through the doors of the New Mexico State Court of Appeals, above, where one or more didn't have an issue before the Department of Justice. If there weren't, then the question of the qualification of the applicants range of experience might be questioned.
Another problem is that again, as Governor Martinez did with appointing City of Albuquerque Chief Public Safety Officer Darren White, above, to the Judicial Standards Commission, She, is selecting an employee of an executive branch of a government, albeit, in this case the federal government, whereas White is a high ranking, first tier executive of city government, to oversee a coequal branch of government. The inclusion of a member of one branch of government into an oversight position of another branch, upsets the philosophical and actual constitutional checks and balances of our tripartite form of government.
The final problem I perceive is that if there is a Hatch act violation, upon whom does the responsibility fall to investigate? Could it be the Department of Justice? Would US Attorney General Eric Holder's, above, DoJ even consider a cursory examination? Might I ever hear back from them? Too many questions, not enough answers. However, to me, it just doesn't look right.