Monday, November 26, 2007

Jazz and Judging

A person sitting next to me on the plane told me about his recent sex change operation. She and I both knew it was unlikely we would see each other again. I suppose that is why she could talk about this highly personal matter to a stranger. (I wonder if she was as frank with the blind date she had that evening?)

Columnists often write about personal matters. That is because when the columnist writes the readers have not yet been determined. Easier to be revelatory to a faceless inchoate readership than face to face with someone the columnist knows. The act of writing in the columnist’s present is past during the reader’s act of reading. Einstein no doubt would endorse the principle that “The reader’s present is the columnist’s past.”

This column, involving a delicate personal subject, I have already written and you will soon read. It is intimately related to the federal judiciary. By the way, while you are reading this column, I have already forgotten about it. I am working on something else. But it is not something I knew about when I wrote this column. Get it?

So to continue, no matter what the function or event, federal judges are always introduced first. Then when everyone is truly bored, they introduce the state court judges. A few months ago I spoke at the induction ceremony of a well-respected state trial judge, Judge Valerie Baker- Fairbank who had been recently appointed to the Federal District Court. Needless to say, many of her state court colleagues were present and joined the admiring audience, the numbers of which were so large they poured into adjoining courtrooms to see the ceremony on TV screens.

The judge presiding over the ceremony graciously welcomed everyone and then began to individually introduce the federal judges present from both the 9th Circuit and the trial bench. The accolades and encomiums made the inhabitants of Olympus envious, “the brilliant, the scholarly, the genius, the distinguished.” And then a recitation about the judge’s hobbies, blood type, awards and honors dating from grammar school. Then it came to the state judges. “Would you all stand and be recognized”- two seconds later-“that’s enough, sit down.”

But the real reason federal judges have it made, is that unlike state judges, they do not have to run for election. A federal judge can close down the City of Los Angeles with impunity. A rebuke from the press or a higher court may elicit a yawn or shrug, but they are in office forever. Impeachment? Not likely. From the creation of the federal judiciary to the present, only thirteen federal judges have been impeached, and six of those were actually convicted.

Speaking of the federal judiciary takes me to my personal matter. It is my colonoscopy, a subject I had discussed years ago in my Daily Journal column (March 1995) when I was younger and less discrete. The colonoscopy of which I speak this time is a different one. Least you think this evidences a desperation for material, it is not exactly the colonoscopy itself that is pertinent, but instead, the conversation with the anesthesiologist.

I received a call the day before the procedure informing me that the anesthesiologist would like to talk to me the next morning when I come in. It is the day before when the “prep” occurs. The “prep” is not a picnic. In fact picnics are not allowed. I was reading briefs, but it was hard to concentrate, what with a liquid diet and constant interruptions that reminded me of the quality of some of the briefs.

So early the next morning I was on a gurney with a needle in my arm receiving an IV, waiting for the doctor to do to me what I do to attorneys at oral argument. I was a little groggy when the anesthesiologist came in. He broached a subject of great importance- did my insurance cover his services? I assured him that if it did not I would gladly pay his fee. To prove it, I agreed to sign the form he thrust in my hand. Of course the words were a blur, and for all I knew, my signature could make him the new owner of my house.

As he browsed through the charts he saw that I was a judge. “Oh you’re a judge,” he said in a higher pitched voice. He took the form out of my hand before I could sign it. He asked what kind of judge I was. “A fair one,” I said. He smiled nervously. “What court?” he asked. “The Court of Appeal,” I said. “9th Circuit?” he asked. “No,” I answered, “my court is the state’s counterpart of that court.”

In a nanosecond he thrust the form back in my hand and directed my attention to the signature line. It was only fitting that after signing I should have a colonoscopy. I bet had I uttered the words “9th Circuit” even out of context, I would not have had to sign the form.

But these days I have it as good as federal judges. That is because I am in what state judges call their “federal term.” That is a euphemistic shorthand way of saying, “ I am not running for re-election.” I can assure you that I have never looked over my shoulder when ruling on a high publicity case, or controversial matter. If the public doesn’t like or misunderstands my ruling, well that’s how it is. It goes with the territory. If there is a chance that I may be turned out of office because of a campaign waged against me by an extremist group with a personal vendetta against me, so be it. But in my “federal term” if those fanatics don’t like my rulings they can suck eggs----

Sorry, I got a little carried away. Where was I? Oh yes. So last year the voters saw fit to return me to office for a 12-year term. This has to be my federal term, right? I mean I am not going to stay that long--am I? I don’t want them bringing me orders to sign at the In Need of Lots of Care and Attention Residential Facility. “Here’s a writ petition that seeks to close the 405 Freeway. Just give the judge a little shake and wake him up. If he knows who he is, we will ask him if he is going to grant or deny it.” That could happen if I stay to the end of my term in 2019.

But in truth I kind of miss the edgy insecurity that comes with running for election. Most of the public have little or no criteria to make an informed vote. You never know what gets or loses votes.

Many state judges engage in a variety of other pursuits when they are not judging. Some sky dive, others crochet. Some run marathons, climb Everest, explore the North Pole, garden, act, sing, box, wrestle, write novels. The people they encounter in these endeavors could be a source of votes.

In off hours I sometimes play the piano in gigs with a jazz combo. The law’s seamless web stretches wide. There is a remarkable affinity between jazz and judging-lots of improvising. But when I play the piano, I don’t want anyone to know about the judge thing. Wouldn’t want to lose votes over a bad chorus of “Stella by Starlight.” But I did get a vote in last year’s election because of my solo on “Prelude to a Kiss.” It was from Charles Embree, a wonderful artist who had studied with Thomas Hart Benton. He is also a talented writer. For many years he wrote short stories for Esquire magazine about jazz musicians under the nom de plume, Riff Charles. He wrote me,“ Not all judges are piano players, but certainly all piano players are judges. They sit on a bench and hand down decisions to fingers directing them on which key to strike in what order and when. The sound heard is the soundness of the judgment rendered. If the music is select, you must elect! Based on this argument you will be receiving my vote in the upcoming contest.”

Embree’s incontrovertible logic and his elegant writing convinces me not to be such a malcontent. When I had to run for election I complained, and here I am in my federal term nostalgic for elections. I think I will just settle down and enjoy as much of my federal term as I decide to serve. Why fret? Everything came out all right in the colonoscopy.