I have often complained, I mean noted, that contrary to popular belief, judges have little power. Judges must endure the indignities and constraints that confront all of us. A few personal calamities prove the point. Like you, I also have to spend 45 minutes on the phone complaining to someone who speaks Sanskrit about my poor internet service.
In the middle of the night, when the evening is spread out against the sky like a patient euthanized upon a table, before trash pickup the next day, a miscreant roams through my neighborhood. He crams trash containers with bags of smelly garbage. The culprit is either colorblind or deliberately violates the rules concerning the correct bins for recyclables. He over fills the bins, causing odoriferous waste to land in the street. Like my neighbors, I am a victim of these marauders, yet they think I can solve the problem. Fat chance. I opt for fetid refuse over a confrontation at 3 a.m.
In one of my columns a few months ago, I wrote about the thief that got away. My wife Barbara and I heard the thump of a package we were expecting as it hit the threshold of our front door. Shortly after we heard the delivery truck pull away, Barbara opened the door. A young woman clutching our package was running to a waiting car. Barbara yelled an unavailing "Stop!" I wish she would have added "thief" at the end of her futile command. The young woman jumped into the car which sped off before Barbara could get the license plate number. I arrived just as the car turned the corner. I shouted at the top of my lungs…. It's not important what I shouted. Do children read the Daily Journal?
We got even with the thieves, proving that on occasion even a justice gains a measure of justice. The package contained the poems of a new annotated book, The Poems of T.S. Eliot. That will teach them. I wonder how the thieves' world view was influenced by themes of despair and futility in “The Waste Land.” They were ultimately apprehended. I learned that after pleas of guilty they were given jail time and various conditions of probation. If I had my say, I would have required the condition that they write an essay on the relation of Eliot's "objective correlative" in his poetry to their own lives. Our local paper brought home to the community that judges, like everyone else, are victims. The Palisadian Post wrote a front page article about the incident titled Porch Pirates Nab Poetry Books. Implicit in the article was the observation that the judge and his wife were powerless to do anything about it.
Judges are not just subject to the ordinary vicissitudes of life. They must endure a multitude of professional restraints. If you recall, in my last column Judge Foote created a disaster when he brought a flying fish to an arbitration hearing. Years ago I thought about bringing my cat to court. I decided it would be too controversial if I let him sit on the bench during oral argument. If he purred into the microphone, litigants might think I was snoring. Would I face some type of discipline if I let him hang out in chambers with me? I did not want to risk it. My staff, under the direction of one of our judicial assistants, Gloria, had his likeness reproduced on a rock. A few decades ago pet rocks were the rage. But those were just rocks. My pet rock is a pet cat rock. So, in a sense, I have my cat with me at work. For obvious reasons, I would prefer you not spread this around too much.
And judges must be careful about expressing certain opinions that ordinary citizens do all the time. The recent Justice Ginsburg imbroglio comes to mind. Her comments about Donald Trump prompted a statement of regret. “On reflection, my recent remarks in response to press inquiries were ill-advised and I regret making them. Judges should avoid commenting on a candidate for public office.”
Commentators were quick to criticize Justice Ginsburg's salvo as inimical to the concept "judicial neutrality." But Professor Chemerinsky wrote in an editorial in the Los Angeles Times that Justice Ginsburg's apology was unnecessary. Professor Chemerinsky observed that other Supreme Court justices have said and done things that were considered inappropriate. But the federal code of judicial ethics disallows judges the freedom to take sides in an election. Chemerinsky argued that these rules do not apply to Supreme Court judges.
Despite my great respect for Professor Chemerinsky, I find this argument unpersuasive. Maybe that is because the California Code of Judicial Ethics prevents me from publicly endorsing or opposing a candidate for public office. Canon 5A(2). So I guess I cannot say I agree… or disagree with Justice Ginsburg's assessment. And by assessment, I will let you, dear reader, decide if I am referring to her initial comment or her subsequent one… or both. While I ponder these troubling questions, I will pet my pet cat rock.
A SAD GOODBYE
My Daily Journal columns and some of my other articles and stories have received a wider audience of devoted, but perplexed, readers through the publication of my book Under Submission by the Rutter Group, a division of Thomson West (2008). This came about through the efforts of William Rutter and Kalman Zempleny, who, after the passing of Bill Rutter, became the Director of the Rutter Group. We all agreed that proceeds from the sale of Under Submission would go to legal charities. A few weeks ago, my dear friend Kalman passed away. So sudden and so unexpected, his death has left his legions of friends in shock and dismay. We will always remember him for his devotion to excellence in legal education, his unfaltering optimism, his warmth and kindness to all who were fortunate to know him. Goodbye dear friend. You made a difference.