Tuesday, February 04, 2014

The Devil Made Me Do It.

     Recently I attended a fancy affair at an exclusive venue to honor important people who have made significant contributions to the legal community.  I arrived a few hours early while they were "setting up."  I had to be there early because I was playing in the band and the "sound check" had to be completed before the guests arrived. 
         While I sat at the piano bench watching the sound technician "mike" the piano, I could not help but hear the maitre d', who was standing nearby.  He was instructing, or should I say scolding, the gaggle of waiters about what was expected of them that evening. 
Digression.  Yes, I know today we consider it appropriate to refer to waiters as servers.  "Hi there, I'm Tammy and I will be your server this evening."  Is the rationale that the word "waiter" is demeaning, but "server" is not?  I would much prefer being called a waiter than a server.  A waiter is, after all, a profession.  And look at all the great actors, directors, musicians and other artists who started out as "waiters."  Can you imagine an interview with an Academy Award winning actor, "So when you first came to Hollywood from Indiana, what did you do"?  It is unlikely the actor will respond, "I was a server at IHOP," when, in fact, he was a waiter.  "Waiter," unlike "server," is definitive.  But of course it is honorable to "serve" your country or "To protect and to Serve" citizens of our community.  Serving is a goal, not a profession. 
But getting back to the maitre d' and the waiters… servers.  His tone was peremptory, harsh, even threatening at times. "You break one of the fine wine glasses, and you pay for it."  He was preparing his troops for battle and would not brook mishaps.  He wanted the evening to go perfectly. 
         At that moment I felt one with the servers.  As a member of the band, I too was part of the "help."  And we in the band were not even getting paid.  No matter that judges and prominent lawyers were in the band:  perfection was our goal and the expectation of the audience.  But most of the audience was talking while we were playing so that the music competed with a din of voices.  Well, what can you expect at a gathering of lawyers, judges and mediators?  They are there to network and schmooze.  And when people who were talking at the top of their lungs clapped after my solo, I knew they didn't mean it.
         This got me thinking about the servers who we also take for granted.  Throughout the evening they were trying to negotiate the limited space between tables, precariously balancing trays of soup and dinner plates, and sidestepping miscellaneous diners who suddenly pushed back their chairs to greet someone going by.  If you are one of those push-back chair persons, and the person to whom you have to say "hello" is a judge, believe me, it won't make a bit of difference to the outcome of any present or future case.  But it can make a difference to the server sweating over spilling or breaking the china on the tilted tray.
         And then it occurred to me that no matter who we are, we are all members of the servant class.  Try to change plane reservations; complain about an error in your credit card bill; return defect items on or offline.  The Earl of Grantham at Downton Abbey would not know what I am talking about.
         But the maitre d's harangue got me thinking about judges and lawyers.  Yes, lawyers usually do most of the talking in court, but when the judges speak, is their tone or manner similar to the maitre d'?  I certainly hope not.  But judges and lawyers, vis-a-vis waiters, I mean servers, bear striking similarities.  Please indulge me in the following analogy.  Lawyers serve up to judges the ingredients of justice.  And if the lawyers break the rules, like breaking the china, they have to pay in the form of sanctions.  Get it?  So I promise to try my best not to speak to the lawyers in the same manner in which the maitre d' spoke to the waiters, I mean servers, or whatever… unless they really deserve it.
         But then, come to think of it, judges are also servers, but that is not all.  They are also chefs.  So I am stretching the metaphors a bit, but stay with me on this.  "Why are they chefs?" you might ask… if you are still reading this column.  They are chefs (I prefer "chefs" to "cooks") because they prepare a decision or opinion from a portion of the ingredients supplied by the lawyers.  And this, the judges serve to the lawyers, the litigants and the public.
         But do not think that judges are immune from insults or rudeness… even Supreme Court justices… United States Supreme Court justices.  Take, for example, United States v. Windsor (2013) 133 S.Ct. 2675.  The majority opinion written by Justice Anthony Kennedy held, among other things, that the section of the federal Defense of Marriage Act (DOMA) which defines marriage as a legal union only between a man and woman is unconstitutional.  To quote Justice Kennedy, "The liberty protected by the Fifth Amendment's Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws."  (Pg. 2695.)   
         In that portion of Justice Antonin Scalia's dissent on the merits of the majority decision, he refers to the majority's "disappearing trail of its legalistic argle-bargle …."  (Pg. 2709.)  That is pretty strong language.  I objurgate such an expression.  It sounds so brummagem.  
      Sorry, I don't know why I said that.  Wait a minute.  I think I know.  In a recent interview in New York magazine, Justice Scalia said he believed in the Devil.  I bet the Devil made me do it.