Tuesday, June 16, 2015

The Earth is Not Flat

     Many centuries ago a timid sailor said to the ship’s captain, “Columbus, don’t do this‑‑we will fall off the edge of the world.”  I have it on good authority that the earth is an oblate spheroid.  Yet there are people today who believe the earth is flat despite all the evidence to the contrary.  Many such “believers” (or are they nonbelievers?) belong to flat-earth societies.
         There are people who believe that a president should not appoint a person directly to the United States Supreme Court unless the appointee has had prior judicial experience.  The same goes for a governor making direct appointments to the state Supreme Court or to the Court of Appeal.  I have not seen evidence to support this notion.
Perhaps this curious misconception comes from those of one political party who seek to disapprove appointments made by the other party.  All the members of our United States Supreme Court, with the exception of Justice Sonia Sotomayor, had direct appointments to appellate courts.  Chief Justice Earl Warren, Justices Felix Frankfurter and William Douglas were direct appointments to the Supreme Court.  Many judges on the 9th U.S. Circuit Court of Appeals, Republicans and Democrats, were direct appointments.
In California, one of the great jurists of the 20th century, Roger Traynor, was directly appointed to the California Supreme Court.  Other luminaries Raymond Peters was directly appointed to the Court of Appeal in 1939.  And Mathew Tobriner was directly appointed to the Court of Appeal in 1959, and three years later to the California Supreme Court.
In recent times governors from both parties have made direct appointments to the Court of Appeal.  They include Justices Daniel Kolkey, Earl Johnson, Andrea Hoch, Coleman Blease, Jim Humes, Peter Siggins, Therese Stewart, Charles Poochigian, and Richard Mosk, though prior to his appointment he sat as a judge on the Iranian-United States Claims Tribunal at The Hague.  Whatever their political affiliation, these jurists and other “direct appointees” have distinguished themselves as outstanding judges.  And we can expect the same from our recent appointees to the California Supreme Court.  The range of talent among appellate jurists has little or no correlation to prior judicial experience.
I am particularly enthusiastic about the recent appointees to the 2nd District Court of Appeal‑‑Lamar Baker, Elwood Lui and John Segal.  They all have impressive backgrounds.  Baker’s appointment will be directly to the Court of Appeal.  He has been a special assistant to the president, has worked as an assistant U.S. attorney, and has been in private practice in Los Angeles.  He has tried cases in trial and appellate courts, and has received rave reviews from all who have worked with him.  Segal has been sitting by assignment on the Court of Appeal.  His well-reasoned opinions already establish him as a first rate justice.
I have more than a passing familiarity with Elwood Lui who is coming back to the Court of Appeal.  I have known him for 40 years and we are close friends.  He is a brilliant lawyer and an extraordinarily fine justice.  Justice Frances Rothschild, Lui and I began our judicial careers in traffic court.  We were all in our30's.  As I recall Rothschild was Gov. Jerry Brown’s first appointment to the Los Angeles Municipal Court.  Justice Lui (Ret.), soon to jettison the “Ret.,” thinks he was the second appointment, and I was the third.  On August 18, 1975, we both received a call from the governor, who was also in his 30's.  We cannot prove whom the governor called first.  Whenever we ask him, he changes the subject.  The only reason Elwood had seniority over me was that he ran down to the courthouse and was sworn in before me.  Richard Mosk, who back in 1975 was a successful lawyer, arranged for me to be sworn in by his father, Justice Stanley Mosk at Richard’s home on Labor Day.  And now that Lui will be back with us as a justice, for the first time ever, I have reminded him, more than once, that I will have seniority over him.
I have often thought about why people apply to the bench.  Gov. Brown once said it was not for the pay but for the psychic rewards.  He has a point.  It is why I am on the court, and why Elwood Lui will once again join me as a colleague.  It is the reason that we are all there.   
An article in the New York Times a few weeks ago by Douglas Quenqua posits that successful lawyers are not happy, documented in a study authored by Lawrence S. Krieger, a law professor at Florida State University.  If you think the rewards of a successful practice, “wealth, status, stimulating work,” bring happiness, you are probably wrong.  Quenqua, referencing the study, wrote, “Researchers who surveyed 6,200 lawyers about their jobs and health found that the factors most frequently associated with success in the legal field, such as high income or a partner-track job at a prestigious firm, had almost zero correlation with happiness and well-being.  However, lawyers in public-service jobs who made the least money, like public defenders or Legal Aid attorneys, were most likely to report being happy.” 
         “Lawyers in public service jobs also drank less alcohol than their higher income peers.  And, despite the large gap in affluence, the two groups reported about equal overall satisfaction with their lives.”  
         Lui represented me in the celebrated case, Gilbert v. Chang 227 Cal. App.4th 537 (2015).  The case allowed retired judges to accept public employment during their so-called “term of office.”  I can assure you I did not pursue this case on behalf of all judges in the state of California so they could make more money.  This is public employment mind you.  So why do it?  I guess it’s about the satisfaction we experience in public service.
         And let’s not hear complaints about judicial experience.  Diversity in experience and background provides a dynamic and energetic judiciary.  A flat-earth mentality defeats that goal.
         In my research to dispel popular misconceptions, I discovered that Einstein did not fail mathematics.  He was good in the subject.  He failed his first attempt at the entrance exam to the Swiss Federal Polytechnic School.  Hey, what do you expect, he was two years younger than the other students.
         I also learned that Napoleon Bonaparte was 5 feet 7 inches tall, not 5 feet 2 inches.  What a relief.  And here is some truly useful information.  Vomiting was not a customary Roman dining custom.  The vomitorium was simply an archway to enter or leave a stadium where you could see a lion eating someone.  So it’s no wonder that people would probably make good use of the exit.  Flush toilets were used during the Bronze Age.  So Thomas Crapper did not invent the flush toilet.  Marconi did not invent the radio, and Al Gore did not invent the Internet.
         But I had difficulty resolving the Coriolis effect.  Does water drain in a counterclockwise vortex in the Northern hemisphere and clockwise in the Southern?  It’s all the same to me, like arguments about judicial appointments.  The governor makes the appointments and the Judicial Evaluation Nominees Commission evaluates and rates the candidates.  The system works fine, and given that California’s judiciary is par excellence, arguments about judicial experience and direct appointments should be washed down the drain, clockwise, counterclockwise, or otherwise.

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