Wednesday, July 20, 2016

The Illusion of Power

     I watched the news the other day.  (Seventy years ago that sentence would make little sense.)  A commentator spoke about the abuse of congressional and judicial power.  This prompted me to ponder the meaning of power in general.  An insight in the form of a rhymed couplet popped into my brain, “Conclusion:  Power, an illusion.”  Authorship unknown. 
         Example in mythology:  The satyr, half human, half goat, salivating with lust, chases the nymph through the forest.  The chase itself may give a false impression of the satyr’s power.  If he catches the nymph, he may be able to exert his power over her.  But the satyr is subject to a much more compelling power, the compulsion, the overpowering need to catch the nymph, and maybe eat a tin can or two.  Of course, the satyr cannot escape responsibility for whatever crime he may commit against the nymph . . . unless he has a terrific lawyer, and a persuasive psychiatrist. 
         And this takes me back to faulty notions about judicial power.  Oh dear.  It just occurred to me that the satyr discussion in the preceding paragraph may not be the most apt analogy for a transition.  So do me a favor.  Just forget about the preceding paragraph and keep out of your mind comparisons between satyrs and judges.  OK?  If you find this minor inconvenience an insuperable burden, please put the column aside.  I will catch you next month.
         To continue with those still with us, take it from me, judges have little or no power.  The assembled lawyers stand at attention when the judge “takes” the bench for oral argument.  The judge says, “You may be seated.”  That is not power.  Nor is it a sign of power that lawyers laugh at a judge’s humorless jokes at a bar meeting.  What about deciding a case, you may ask?  Nothing to do with power.  That is simply a judge doing her job.
         Judges who look like judges were thought by some to carry an aura of power and respect.  What kind of appearance or look is that?  Not the one I see when I look in the mirror.  But you know what I mean, the elderly gray-haired judge (so far that’s me), who is tall, gentlemanly, kindly, wise, all knowing (not me) that was portrayed in 1940’s movies. 
         When I was the supervising judge of the Los Angeles Traffic Court many decades ago, some actors were being filmed for a Hanes Hosiery commercial in one of the empty courtrooms in the building.  I knew one of the actors and popped into the courtroom to say hello.  Numerous male actors, wearing judicial robes, were dancing around the courtroom in their stocking feet.  If judges were supposed to be middle-aged males with silver hair and have a distinguished looking profile, they fit the bill.  I was the only judge in the room who didn’t look like a casting director’s vision of what a judge should look like.  As for dancing around the courtroom in one’s stocking feet….well, that’s an entirely different story. 
         But whether a judge looks like a judge or not, in many ways, a judge has less power than the average citizen.  Drive down the freeway and some jerk cuts you off.  No matter who you are, it is best practice not to flip the person off.  It is mandatory not to do so if you are a judge ….  "Just say no."  A commercial truck parks behind you in a near empty parking lot early in the morning and blocks you.  You nicely ask the driver to move a few feet.  The driver says “no” or simply shrugs his shoulders and refuses to move.  
         That happened to my colleague Justice Perren last week.  He even said “please” to no avail.  He considered his options and filed them in the rejection basket.  He called the company to complain.  Don’t hold your breath. 
         I understand Justice Perren’s frustration.  A young woman and I happen to work out at the gym during the same early morning hour.  I have a compulsion to ask her a question, but … I feel constrained to do so.  She wears this backless workout outfit and, wait a second, don’t go there.  Let me finish.  Now you know why I told you to forget the satyr discussion.  Oh wonderful, I brought up the very thing we all agreed we would forget.  She has a tattoo on her back between her shoulder blades.  But it is not the depiction of a scene, or a flower, or cryptic insignia.  It is a printed paragraph of a few sentences.
         The writing is small requiring one‑‑OK, me‑‑ to get unacceptably close to read it.  I squinted from a respectful distance and tried to read it without getting arrested.  I can’t make it out.  I think it’s the Second Amendment.  But I am pretty sure she is not packing a gun, not with that gym outfit.  Yes, I could just ask what the paragraph says.  I don’t know… I may be asking for trouble.  I can see the headlines.  Judge accosts young woman in gym.  I don’t need it.
         But wait a minute.  We already determined I don’t look like a judge.  I could ask her, “Excuse me, but I couldn’t help noticing….”  True, she might say “none of your business and quit looking at my back.”  But she wouldn’t even know I am a judge.  I think I may ask her.  If I do, I will report back and let you know what happened. 

         I know one person who could never ask the young lady the question I wish to pose, Judge Merrick Garland.  He actually looks like a judge.  And he has a perfect name for a judge.  And he is one of the finest judges one can imagine.  And there is Congress.  And this takes us back to false notions of power.  Do not let those senators fool you.  They are not doing their job. 

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