Nancy Gertner

Law enforcement is tracking down and arresting extremists who participated in last week's violence at the U.S. Capitol. Congress is bringing new articles of impeachment to remove Trump from office, with a fight over them again breaking largely down party lines. With all that we've seen transpire over the last week, what's next after the attack? We take listener calls with retired federal judge Nancy Gertner, a senior lecturer at Harvard Law School, and WBUR's Legal Analyst; and WBUR senior political reporter Anthony Brooks.

President Donald Trump's desperate and conspiracy-ridden attempts to challenge President-elect Joe Biden’s election win went a step further this weekend when The Washington Post published a recording of him asking Georgia officials to “find” him the votes needed to win the state. The Hail Mary attempt comes as Congress prepares to officially count the Electoral College votes this Wednesday, with more than 100 Republican lawmakers planning to make a symbolic stand that day against the majority will of the American electorate. To discuss, Jim Braude was joined by Jennifer Horn, a co-founder of anti-Trump Republican organization The Lincoln Project, and retired federal judge Nancy Gertner, now a professor at Harvard Law School.

This past weekend was a big one for Republicans. Here in Massachusetts, party members re-elected Jim Lyons as state party chair, in a 39-36 vote over his challenger, State Representative Shawn Dooley of Norfolk. Lyons, an ardent Trump supporter, has frequently clashed with GOP governor Charlie Baker. Meanwhile, on Saturday, at least 10 Republican US Senators announced they will object to certifying the electoral college results this Wednesday. Also, the Republican Secretary of State of Georgia released the audio of an hour-long call with President Trump and some of his lawyers in which Trump repeatedly asked Secretary Brad Raffensperger to "find" exactly enough votes to declare him the winner there. We take listener calls with Judge Nancy Gertner, retired federal judge, senior lecturer at Harvard Law School, and WBUR's Legal Analyst. We also hear from WBUR senior political reporter Anthony Brooks and Amy Carnevale, an elected member of the Massachusetts Republican State Committee.

The search for Massachusetts' next top federal prosecutor is about to begin in earnest. Incoming President Joe Biden will appoint the next U.S. attorney for Massachusetts, but a local advisory committee expects to begin reviewing applications as early as next week. The committee was set up by Sens. Elizabeth Warren and Ed Markey, who will ultimately recommend who the next president should appoint to replace current U.S. Attorney Andrew Lelling. The chair of the advisory committee, retired federal judge Nancy Gertner, says the panel interested in talking with the candidates about the power wielded by prosecutors and whether changes might be needed, although that will largely depend on the next attorney general. "It's not an ordinary time," she said. "We've had demonstrations about the George Floyd killing and more attention to mass incarceration, and the criminal legal system is not going to have the resources due to the pandemic. I think all of that conspires to a moment of reform and the next U.S. attorney ... should be moving that."

The past 24 hours have been a microcosm of the past four years of President Trump’s time in office — with a sudden slew of self-serving and questionable pardons, a last-minute wrench thrown into a COVID relief bill on which many were relying, and a call for someone to challenge one of the top senators in the Republican party. David Gergen, who served as an adviser to Presidents Nixon, Ford, Reagan, and Clinton, and retired federal judge Nancy Gertner joined Jim Braude to discuss the legacy Trump leaves behind... “The optimist in me says that, in many ways, [Trump] has not forever changed the presidency, only because he is such a unique character,” said Gertner. “It’s not clear that someone can fill the job with his kind of blather, frankly, the way he has. But … [Trump] has shown us the weakness of the guardrails. I don’t think that anyone else could take advantage of them quite the same way he has, but we have to do something about those guardrails.”

The resurgence of COVID-19 in Massachusetts could prompt Gov. Charlie Baker to again impose aggressive restrictions on businesses using a decades-old statute, but legal experts say courts are likely to give him broad deference in combating the public health crisis. Baker was one of many governors to impose sweeping business closures and other measures in the spring when the virus first surged in the Bay State. Despite the governor's broad popularity, a number of the emergency orders enacted under the Civil Defense Act have drawn legal challenges. While Baker's record in these suits has not been perfect, experts told Law360 the courts are likely to defer to his authority should he decide to snap restrictions back into place. "While there are limits, the emergency powers mirror the nature of the emergency," said Nancy Gertner, a former federal judge and current Harvard Law School professor, adding that a crisis like COVID-19 would be reviewed by looking at the rational basis of the measures imposed. It's a standard she said the governor is likely to meet. "This is not like mandating motorcycle helmets, which is a public health issue but affects everyone else around the motorcyclist only tangentially in terms of insurance rates and visits to emergency rooms," Gertner said. "This is a direct link where what you do affects me."

Everything in our lives this past month has existed at the intersection of the coronavirus, or the election. In the past two weeks, there's been a slew of legal questions around both. President Donald Trump refuses to acknowledge his defeat by President-Elect Joe Biden. And his team and other Republicans have turned to the courts, citing unverified and unproven claims of voter fraud in key battleground states. Plus, as the coronavirus surges nationwide and here in Massachusetts, there are renewed legal questions about the balance between individual freedom and actions state and federal government can take to curb infections and hospitalizations. We take listener calls with Nancy Gertner, retired federal judge, senior lecturer at Harvard Law School, and WBUR's Legal Analyst. And with John Fabian Witt, a professor of law and history at Yale University, is author of the new book "American Contagions: Epidemics and the Law from Smallpox to COVID-19."

Lawyers nationwide are demanding that their colleagues stop representing President Trump since he is falsely claiming widespread voter fraud and such unfounded allegations are in violation of his duties under the US Constitution. The Nov. 10 open letter is signed by more than 1,100 lawyers, many of them in with Massachusetts ties, including retired Supreme Judicial Court Justice Fernande RV Duffly, former federal judge Nancy Gertner, and Pamela Bergman, president of the Massachusetts Women’s Political Caucus. "There has never been a more important time for America’s lawyers to acknowledge the importance of these solemn commitments, and to demand accountability for those lawyers and federal officials who do not live up to their oaths and ethical obligations,'' the open letter demands. The legal profession has ethical rules that bar attorneys from filing lawsuits when they know the claim being made is false or untrue, according to Lawyers Defending American Democracy, the group leading the campaign. "We join in this letter to demand that public office holders and lawyers uphold their oath to defend the Constitution,'' the letter states. “To do that, they must cease making false or unfounded claims and implementing actions – including those actions taken by Attorney General William Barr on November 9 – that undermine our presidential election process.”

Supreme Court Justice Samuel A. Alito Jr. took aim at legal interpretations of a historic Massachusetts lawsuit, appeared to mock Cambridge, and slammed two New England senators as he offered an unusually blunt critique of coronavirus lockdowns and other measures in a speech to a conservative legal group. Alito’s Thursday address to the Federalist Society, which held its annual convention virtually due to the pandemic, overstepped the usual boundaries for a Supreme Court jurist and could undermine the public’s faith in the court, legal observers said. “This is a conservative justice’s grievance speech. … It’s the Federalist Society manifesto through the mouth of a Supreme Court judge,” said Nancy Gertner, a retired federal judge and senior lecturer at Harvard Law School. “I was stunned when I listened to it,” Gertner said of the livestreamed speech, in which Alito criticized the high court’s rulings in both recent and historic cases, including some on matters such as contraception access and coronavirus emergency orders that could come before the court again. Alito criticized the use of a 1905 Supreme Court decision in a Massachusetts case to justify COVID-19 restrictions — while taking a dig at Cambridge...Laurence H. Tribe, a Harvard Law School professor emeritus, said Alito’s remarks were “extremely unusual” and that it was “injudicious and highly inappropriate” for a Supreme Court justice to comment “on issues that are bound to return to the Court, like same-sex marriage and religious exemptions and restrictions on personal liberty designed to control the spread of COVID-19.” “He seriously compromised the integrity and independence of his role as a Supreme Court Justice by offering hints and intimations and sometimes all but explicit forecasts of how he would approach matters not yet briefed and argued before him in the context of a specific case or controversy,” Tribe said in an e-mail.

Before dawn on January 23, 2019, Mark McConnell arrived at the Key West headquarters of the military and civilian task force that monitors drugs headed to the United States from the Southern Hemisphere...On a computer approved for the handling of classified information, he loaded a series of screenshots he had taken, showing entries in a database called Helios, which federal law enforcement uses to track drug smugglers. McConnell e-mailed the images to a classified government hotline for whistle-blowers. Then he printed backup copies and, following government procedures for handling classified information, sealed them in an envelope that he placed in another envelope, marked “secret.” He hid the material behind a piece of furniture. McConnell had uncovered what he described as a “criminal conspiracy” perpetrated by the C.I.A. and the F.B.I. Every year, entries in the Helios database lead to hundreds of drug busts, which lead to prosecutions in American courts. The entries are typically submitted to Helios by the Drug Enforcement Administration, the F.B.I., and a division of the Department of Homeland Security. But McConnell had learned that more than a hundred entries in the database that were labelled as originating from F.B.I. investigations were actually from a secret C.I.A. surveillance program. He realized that C.I.A. officers and F.B.I. agents, in violation of federal law and Department of Justice guidelines, had concealed the information’s origins from federal prosecutors, leaving judges and defense lawyers in the dark. Critics call such concealment “intelligence laundering.” In the nineteen-seventies, after C.I.A. agents were found to have performed experiments with LSD on unwitting Americans and investigated Vietnam War protesters, restrictions were imposed that bar the agency from being involved in domestic law-enforcement activities. Since the country’s founding, judges, jurors, and defendants have generally had the right to know how evidence used in a trial was gathered. “This was undisclosed information, from an agency working internationally with different rules and standards,” Nancy Gertner, a retired federal district judge and a senior lecturer at Harvard Law School, told me. “This should worry Trump voters who talk about a ‘deep state.’ This is the quintessential deep state. This is activities beyond your view, fundamentally affecting what happens in American courts.”

The confirmation of Amy Coney Barrett as Supreme Court Justice on Tuesday cemented a 6-3 conservative majority that will shape the country for generations to come, starting with expected rulings on the Affordable Care Act, immigration, abortion, voting rights, and possibly even the results of the upcoming presidential election. To discuss, Jim Braude was joined by retired federal judge Nancy Gertner, who is now a senior lecturer at Harvard Law School.

Here is the Radio Boston rundown for Oct. 16. Tiziana Dearing is our host. This week was about the pandemic, politics and policing. There are now 63 cities and towns designated as high risk for the coronavirus in Massachusetts, which is 23 more than last week. In Washington, just three weeks before the presidential election, the Senate Judiciary Committee started Supreme Court confirmation hearings for Judge Amy Coney Barrett, while the presidential candidates held dueling town halls. Back here in Boston, Mayor Walsh announced that he would adopt all four prongs of a police reform task force report, making changes to police oversight, addressing issues of diversity and inclusion, the use of force and police body cameras. We take listener calls and discuss it all with our Week in Review panelists: retired federal judge Nancy Gertner and Joe Battenfeld, political columnist at the Boston Herald.

An op-ed by Nancy Gertner: In his 2016 book “The Undoing Project,” Michel Lewis described the work of psychologists Daniel Kahneman and Amos Tversky as “undoing” assumptions about human decision-making. The title is also apt for what is unfolding before the Senate today: the Republican Party’s efforts to remake the Supreme Court into a conservative branch, first with the addition of Justices Neil Gorsuch and Brett Kavanaugh, and now with the nomination of Judge Amy Coney Barrett. This undoing project is not just about undoing the right to choose abortion, or the right to same-sex marriage — although that much is clear. Barrett, in an article entitled “Catholic Judges in Capital Cases,” distinguished between a judge’s obligations in death penalty cases and abortion cases. Abortion, she said, was “always immoral,” the church’s teachings constituting a “flat prohibition.” In contrast, the church treated the death penalty as permissible in cases of “absolute necessity.” Barrett’s mentor, the late Supreme Court Justice Antonin Scalia, whose originalist judicial philosophy she touts, stridently dissented when the court ruled that the state cannot criminalize homosexual conduct or prohibit same-sex marriage. On the Affordable Care Act, Barrett accused Chief Justice John Roberts of having “pushed” it “beyond its plausible meaning to save the statute.” But this undoing project is broader — it’s a return to an era decades ago, when a conservative pre-New Deal Supreme Court used a contested constitutional doctrine about freedom of contract — the right of workers and bosses to contract for the terms of employment — to invalidate statutes requiring improved working conditions, higher wages, and limited hours. Recently, the court’s conservative majority held that the requirement that public employees pay agency fees to support their union violated the free speech rights.

We bring you live coverage of the developing news regarding President Donald Trump and First Lady Melania Trump testing positive for the coronavirus, and take your calls with our panel of experts. Guests: Shira Doron, infectious disease physician and hospital epidemiologist at Tufts Medical Center. Anthony Brooks, WBUR senior political reporter. Michael Curry, Deputy CEO & General Counsel of the Massachusetts League of Community Health Centers, former head of the Boston NAACP, and a member of the national NAACP Board of Directors. Nancy Gertner, WBUR legal analyst, retired federal judge, and senior lecturer at Harvard Law School. David Gergen, advisor to presidents Nixon, Ford, Reagan and Clinton, and founding director of the Center for Public Leadership at the Harvard Kennedy School.

Amy Coney Barrett’s Supreme Court nomination likely will bring renewed attention to the issue of Title IX litigation filed by students accused of sexual misconduct on campus. As a judge on the Seventh U.S. Circuit Court of Appeals, Ms. Barrett wrote a 2019 decision that revolutionized how courts consider Title IX claims from accused students. Lawsuits in this area have multiplied since 2011 guidance from the Obama administration, which pressed universities to adopt biased procedures to favor accusers, hoping that doing so would increase reporting of campus allegations. Several other courts of appeals embraced Judge Barrett’s standard, which now applies to claims in 22 states. Beyond its importance to Title IX law, the opinion speaks to Judge Barrett’s quality as a jurist. The case involved a relationship between two Purdue University students...The Purdue case provided an almost perfect fact pattern for a judge eager to impose a cross-examination requirement. Yet Judge Barrett’s opinion held that because Purdue’s conduct might have violated the student’s rights on more clearly defined questions—insufficient notice of the evidence against him, and possibly a “sham” hearing—the court didn’t need to address the cross-examination issue. Judge Barrett exercised judicial restraint. As Nancy Gertner, a Harvard law professor and a former federal judge, recently observed, “Judges of all stripes around the country have been concerned with fairness in these proceedings.” It’s unlikely that Judge Barrett’s nomination will rise or fall on her decision to join scores of her colleagues in issuing a ruling favorable to a student accused of sexual misconduct. But to the extent that concerns such as intellectual quality or judicial temperament still play a role in the confirmation process, Judge Barrett’s Purdue opinion should serve her well.

Google parent Alphabet has agreed to commit $310 million to diversity, equity, and inclusion initiatives as part of a settlement for a series of sexual harassment and misconduct lawsuits filed against some of the company’s officers and directors. As part of the settlement, filed on Friday in California Superior Court, Alphabet will establish a diversity, equity, and inclusion advisory council featuring outside experts, which include retired judge and Harvard Law School professor Nancy Gertner and former member of the Equal Employment Opportunity Commission Fred Alvarez, as well as company executives including CEO Sundar Pichai and Google chief legal officer Kent Walker. The settlement also ends Alphabet’s mandatory arbitration for harassment, discrimination, and retaliation-related disputes between employees or contractors and the company. It limits Google’s use of nondisclosure agreements and ensures that the recommended consequences for misconduct are equal across business units. “This settlement will not only change and improve the culture at Google, but it will set the standard for culture change at tech companies throughout Silicon Valley,” Ann Ravel, an attorney from Renne Public Law Group who led parts of the settlement negotiation, said in a release. "Recent years have involved a lot of introspection and work to make sure we’re providing a safe and inclusive workplace for every employee," said Google vice president of people operations Eileen Naughton in a blog post Friday. "That doesn’t stop here and you’ll receive reports on our progress as we move forward."

Witnesses appearing before a congressional subcommittee Tuesday warned of the conservative influence on the federal judiciary under the Trump administration, as Senate Republicans on the other side of the Capitol appeared to have enough votes to confirm President Donald Trump’s forthcoming nominee to the U.S. Supreme Court. The hearing, which included topics such as the influence of groups like the Federalist Society on judicial selections, has long been in the works, but the vacancy caused by Justice Ruth Bader Ginsburg’s death cast the proceeding in a new light...Sen. Sheldon Whitehouse, one of the Senate Democrats leading an investigation into conservative legal groups’ use of “dark money” in supporting judicial nominations, spoke at the start of the hearing. “The sooner we clean up this mess, the sooner courts can escape the grimy swamps of dark-money influence and return to their place in the broad and sunlit uplands of earned public trust,” he said in his remarks. Other witnesses invoked Ginsburg’s vacancy in their testimony, as they warned that even the perception of outside political influences on the courts could undermine the judiciary. “There are, or at least I fear the public perceives that there are, ‘Trump’ judges. The administration has explicitly said as much. These are, after all, ‘his judges,’” former U.S. District Judge Nancy Gertner testified. “The unique judicial selection process has produced them. And the public’s perception of Trump judges could undermine the rest of the bench.”

She entered Harvard Law School in 1956 as just one of a few women enrolled in a class of 500. A few years later, the woman who would one day sit on the US Supreme Court was famously rejected by dozens of New York City law firms because of her gender. But over the decades that followed, Ruth Bader Ginsburg built a remarkable career as a legal and cultural icon who used her intelligence and courage to fight fearlessly for social justice. And after her death was announced on Friday, entire generations of lawyers — women and men alike — grieved for a jurist whose legacy somehow transcended even the highest court in the nation. “Justice Ginsburg personified the best of what it meant to be a judge,” Harvard Law School Dean John F. Manning said in a statement. “She brought a deep intellectual and personal integrity to everything she did. Her powerful and unyielding commitment to the rule of law and to equal justice under law place her among the great Justices in the annals of the Court.” Martha Minow, a former dean of Harvard Law School, recalled Ginsburg’s impact on her own legal career. “I am one of countless people she directly encouraged and deeply inspired to use reason and argument in service of justice and humanity. Justice Ginsburg also showed that it is possible to build deep and meaningful friendships with people despite severe disagreements. At this time of deep social and political divisions, there is much to learn from her life and her commitments,” Minow said in a statement...Nancy Gertner, a retired US district court judge and a professor at Harvard Law School, said Ginsburg had inspired generations of women and wound up a reluctant pop culture icon while approaching the law as “a craftsperson who cared about the court’s precedents and was going to work within them.” “Ruth Ginsburg was more than just a brilliant scholar, and a liberal, which is what the press reduced her to,” Gertner said by phone. “She essentially created the law of gender and race discrimination. From the time she was a lawyer, a litigator, she was raising issues about the nuance of discrimination.”

Supreme Court Justice Ruth Bader Ginsburg is known as a trailblazer for gender equality and equal rights, and her death has reverberated around the nation. Former Boston federal judge and WBUR legal analyst Nancy Gertner knew Justice Ginsburg personally, and spoke with WBUR's Sharon Brody to share her thoughts and memories of a woman she calls "the model of what we wanted to be."

An op-ed by Nancy Gertner: I was in my late 20s, attending a conference for women lawyers in the 1970s. I sat in the front row of a large auditorium for the keynote address. The speaker was Ruth Bader Ginsburg, the founder of the American Civil Liberties Union Women’s Rights Project. I was mesmerized. She was all that I wanted to be. To devote one’s life to the fight for civil rights, to use legal skills to effect justice, better yet to make a difference — I could think of nothing greater. And I was not alone; generations of civil rights lawyers looked to emulate her. Ginsburg’s vision of gender equality was decades ahead of her time. It went beyond just empowering women to compete for “men’s” roles. While stereotypes distorted women’s view of what was possible, they also impeded men, no less trapped in gender-based assumptions. Equality meant that both sexes should be free to assume all of society’s roles without preconceptions. My son can be a caregiver; my daughter can be an executive. When the school administrators wanted Ginsburg to come to school to discuss her son’s misconduct, she famously said, “This child has two parents.”