A New Year's Resolution

When I was a kid, rarely did we see “homeless” people wandering the streets, and never did we see someone putting cardboard boxes together to make a shelter to sleep in the park. The occasional vagrant begging for a handout was called “a bum” or “a drunk.” I recall when I was a college student, a man, unshaven and wearing dirty clothes, approached a group of us walking down the street and asked for money. One of my friends told him to get a job. The man swore at us as we walked away. That scene, fifty years ago, still haunts me. I wasn’t sure how to respond. Jobs were much more available then, but this particular needy person may not have been capable of getting a job, and, perhaps, had we given him money, he might have spent it on booze. But these rationalizations give me small comfort.

Now, fifty years later, on occasion I either give a few dollars to a homeless person or order him or her a meal. Notice, I said “on occasion.” I am not sure why sometimes I do and sometimes I don’t. About twenty-five years ago, when I was newly appointed to the Court of Appeal, a group of my colleagues and I were walking to lunch on Wilshire Blvd. A pathetic looking homeless person standing by the curb asked us in almost a whisper if we could spare some change. I doubt my colleagues heard him, but I did. I walked over and gave him some change.

One of the justices gently chided me for giving him money that he was sure would be spent on alcohol. He suggested good naturedly that I was a typical liberal. I responded that even alcoholics have to eat. A psychiatrist friend of mine scolded me for giving money to a homeless person. “He is an alcoholic. He will just spend the money on booze.”

Maybe they are right. Perhaps it is better to donate time and money to a homeless shelter than to offer random individuals sporadic palliatives. Yet, it is hard to ignore the lady with the dog at the freeway entrance at 11:00 p.m. or the elderly couple huddled in the front alcove of a closed store on a cold evening.

This dilemma spawns so many questions. Was I a liberal when I gave money, but not a liberal when I didn’t? Is there such a thing as a sometimes liberal? The term “liberal” was effectively used in George W. Bush’s campaign for President as a contemptible trait found in people who were not worthy to govern.

But what is a liberal? Someone who supports change for the good of everyone in society? Someone who supports justice for everyone? Do not conservatives aspire to the same goals? I have heard conservatives complain that liberals theorize about concepts, but can be cranks who tyrannize their spouses, offspring and friends. And I have heard liberals complain that some of their conservative friends are kind and generous on a personal level, but have no compassion or concern about specific groups of people, like, for instance, the homeless or the uninsured.

Whatever those terms connote, it looks like neither conservatives nor liberals have exclusive rights to the moral high ground. David Brooks, who some consider a conservative columnist, wrote a month or two ago in the New York Times about notions of morality. Brooks notes that Princeton Professor Kwame Anthony Appiah, in his book, Experiments in Ethics, posits that decades of experiments have led psychologists to question traditional philosophical notions of morality. We act in moral ways sometimes, but not always. We can be generous and courageous in some situations, and downright despicable in others. And this goes for liberals and conservatives.

Appiah acknowledges that there may be a seeming conflict between the philosophical conception of a consistent moral character and the results of scientific experimentation that show otherwise. But Appiah contends that moral philosophy and scientific empiricism are compatible and can have a “conversation.” The recent debate over health care and other public issues leads me to believe a “conversation” is not taking place between liberals and conservatives.

And this brings me to two unabashed liberals, both friends of mine who passed away within one day of each other. I bet that everyone who knew these two remarkable persons would agree that they both embodied a consistent moral persona that I am certain scientific experimentation would have verified.

I speak of activist Alice McGrath and civil rights lawyer Bob Berke. I was fortunate to have spent time with both of them, just days before their passing.

Alice became famous for her fortitude and commitment to justice as Director of the Sleepy Lagoon Defense Committee. The play, Zoot Suit, by Luis Valdez, tells the dramatic story of this famous trial in which twelve Mexican-American men were tried for murder in 1940. The convictions were reversed in People v. Zammora, 66 Cal.App.2d 166 (1944). The trial was infected with racism and hostility towards the defendants. The appellate court found the evidence insufficient to show defendants conspired to commit murder (id. at pp. 201-202) and chastised the trial judge for disparaging remarks he made about defense counsel in the jury's presence (id. at p. 215).

Alice, diminutive, stunningly beautiful, possessing a will of iron, but always with a twinkle in her eye, fought for social justice all her life. In her 80's, she developed a legal aid program for poor people in Ventura and led numerous study groups to Nicaragua and Cuba. In 1991, Alice accompanied the justices of my division of the Court of Appeal and others from various disciplines on such a trip to Cuba.

We visited the courts and law schools. Alice promoted and encouraged frank discussions with judges and government officials about our differences. Alice and I had many lunches together during which we engaged in animated discussions about literature, politics and religion. And then I lost this great friend. She died November 27th at the age of 92.

Bob Berke was one of the great civil rights lawyers of our day. An indefatigable worker, he refused to give up. I first met him when he was a public defender in my trial court in the 1970's. Like Alice, his commitment to justice was built into his DNA. Bob is credited with helping establish case law allowing criminally charged defendants discovery procedures into police misconduct. He was victorious in public interest lawsuits and secured reversals for defendants whose convictions were based on suspect jailhouse informant testimony. He was handsome, vital, warm and engaging. Again, like Alice, he was someone you could not help but like. He and I had lively discussions about the law, the courts and politics. And a few weeks after our last discussion, he died quite suddenly on November 28th from a form of encephalitis at the untimely age of 61.

The deaths of these two vital individuals take me back to David Brooks' insightful observations. At the end of his column, he remarks that Spike Jonze's film, Where the Wild Things Are, illustrates how the difference between the philosophical and psychological may find resolution. Max, the protagonist, quells the wild impulses within him, but not through the force of reason and self-analysis. These tools are often no match for impulses and instincts that come from evolution, culture and upbringing. Instead, weakness, fear and selfishness are subdued when Max is focused on building a fort or being involved with someone else. Brooks theorizes that "it is possible to achieve momentary harmony through creative work."

And that explains how Alice McGrath and Bob Berke lived their lives. Their moral compass never lost its course because they directed their dissatisfaction with injustice through action, not ranting, not verbal attacks, but doing. They took time to consider other points of view and responded to their adversaries with civility--a good model for all of us, for liberals and conservatives alike. I would like to see everyone adopt this approach as a New Year's resolution. By "everyone," I include politicians and judges everywhere, even in California. And when you ponder what to do about a homeless person in distress, you will make the right decision.