Monday, May 15, 2017

Pardon The Interruption

     A recent article in the New York Times by Adam Liptak reported on a 15-year study concerning oral argument at the United States Supreme Court.  The study, soon to be published in the Virginia Law Review, was conducted by law professor Tonja Jacobi and law student Dylan Schweers, both from Northwestern University.  They conclude that so-called “conservative justices interrupt liberal justices at significantly higher rates than liberal justices interrupt conservatives.”  And I guess conservative justices interrupt their conservative colleagues less often than they interrupt their liberal colleagues.  For the sake of discussion, I suppose these easy labels have a measure of legitimacy. 
         What a revelation.  I thought this interrupting phenomenon as it occurs in the general public was the other way around.  At least that was my impression when I was a law student at Berkeley in the sixties.  I and all my like-minded liberal friends spent most of our time interrupting one another.  I soon discovered that this practice did not foster learning.  When bullhorns made their appearance on the Berkeley campus, I began losing my hearing and my mind.  The din foreclosed reasoned discourse.  The Free Speech Movement restrained my speech.  The cost was so high, it drove me out of Berkeley.
         Professor Jacobi told the Times that “interruptions are generally considered an aspect of dominance, and the conservatives feel dominant over the liberals.”  Jacobi points out that “conservatives have dominated the court for the past 50 years.”  Looking back at the court some 60 or so years ago, I wonder if Justices Warren, Black, Douglas, Brennan, and Marshall interrupted their less liberal colleagues more than the other way around.
         Jacobi and Schweers land another shocker in the April 11, 2017 edition of the Harvard Business Review.  Reader discretion advised:  “[M]ale justices interrupt female justices approximately three times as often as they interrupt each other during oral arguments.”  The study covered not just the current Supreme Court, but the court in 1990, when Sandra Day O’Connor was the only woman on the court.  The court’s practice then, and in 2002 and 2015, reflects a pattern of male justices consistently interrupting female justices at a far higher rate than they interrupt their male counterparts.  And as the years progress and the number of female justices increases, so too have the number of interruptions by male justices. 
         The authors believe that Justice Gorsuch will fall within the current pattern based on his senate hearings.  The authors write: “He could not help repeatedly interrupting the liberal female senators.” 
         Speaking of Justice Gorsuch, his name came up during a casual conversation at the El Tovar Hotel at the Grand Canyon this past January.  I was having dinner in a private dining room with the singing group “Singers In Law.”  We were celebrating the birthday of attorney and singer Linda Hurevitz who came up with the catchy title.  The other members of the singing group are attorneys John Blumberg, Ken Freundlich, and Barbara Gilbert, who is not an attorney, but is married to a judge, and sometime ago was a court reporter.
         None of us knew it at the time, but the Singers In Law would sing the Star Spangled Banner before thousands of cheering fans at the L.A. Kings game at Staples Center on April 2nd.  Justice Gorsuch may have had something to do with it.  So while we were having dinner, Philip Anschutz, who has an ownership interest in the Kings, Staples Center, the El Tovar Hotel, and a few thousand other enterprises, walked in and said, “Excuse me, but did you know that Teddy Roosevelt once dined in this room?”  He then introduced himself.  We had a nice chat with him and his charming wife Nancy.  Our convivial conversation covered the history of the Grand Canyon.
         He asked me if I knew a good friend of his on the 10th Circuit, Judge Neil Gorsuch.  “Gorsuch? Mmm, don’t know him.”  Funny how quickly things change.  Anschutz asked about us, and there you have it. 
         The Star Spangled Banner is a tough song to sing, especially a cappella. The Singers In Law brought the house down.  And people of widely differing political beliefs cheered.  Might be a good foundation for reasoned discourse without interruptions.
         Enough wishful thinking.  Getting back to Justice Gorsuch.  After his senate hearings, I read the case for which he was given heat for his “cold” dissent, TransAm Trucking v. Admin. Review Bd., U.S. Dept. of Labor (2016) 833 F.3d 1206.  An employee was fired by his trucking company employer for disobeying an order of the employer.  The employee was transporting cargo in a tractor-trailer for his employer in the late evening hours “when the brakes on his trailer froze because of subzero temperatures.”  (P. 1208.)  At the employer’s direction, he waited several hours for help to arrive.  The heater in his cab was not working.  He fell asleep and then awakened when he received a phone call from his cousin.  His torso was numb and he could not feel his feet.  He called his employer who told him to either wait or “drag the trailer with its frozen brakes.”  (P. 1209.)  Instead, the employee “unhitched his truck from the trailer and drove away, leaving the trailer unattended.  He was terminated for abandoning the trailer.”  (P. 1208.)
         The majority agreed with the decision of the Administrative Law Judge and the Administrative Review Board of the Department of Labor that the driver was terminated in violation of the whistleblower provisions of the Surface Transportation Assistance Act.  The majority discussed relevant statutory definitions of “operate,” but also discussed provisions of 49 U.S.C. § 31105(a)(1)(B)(ii), which make it unlawful to discharge an employee who “‘refuses to operate a vehicle because . . . the employee has a reasonable apprehension of serious injury to the employee or the public because of the vehicle's hazardous safety or security condition.’”  (P. 1211.)
    The dissent expressed another point of view.  Gorsuch wrote:           “A trucker was stranded on the side of the road, late at night, in cold weather, and his trailer brakes were stuck.  He called his company for help and someone there gave him two options.  He could drag the trailer carrying the company's goods to its destination (an illegal and maybe sarcastically offered option).  Or he could sit and wait for help to arrive (a legal if unpleasant option).  The trucker chose None of the Above, deciding instead to unhook the trailer and drive his truck to a gas station.  In response, his employer, TransAm, fired him for disobeying orders and abandoning its trailer and goods.
    “It might be fair to ask whether TransAm's decision was a wise or kind one.  But it's not our job to answer questions like that.  Our only task is to decide whether the decision was an illegal one.  The Department of Labor says that TransAm violated federal law, in particular 49 U.S.C. § 31105(a)(1)(B).  But that statute only forbids employers from firing employees who ‘refuse[] to operate a vehicle’ out of safety concerns.  And, of course, nothing like that happened here.  The trucker in this case wasn't fired for refusing to operate his vehicle.  Indeed, his employer gave him the very option the statute says it must:  once he voiced safety concerns, TransAm expressly -- and by everyone's admission -- permitted him to sit and remain where he was and wait for help.  The trucker was fired only after he declined the statutorily protected option (refuse to operate) and chose instead to operate his vehicle in a manner he thought wise but his employer did not.  And there's simply no law anyone has pointed us to giving employees the right to operate their vehicles in ways their employers forbid.  Maybe the Department would like such a law, maybe someday Congress will adorn our federal statute books with such a law.  But it isn't there yet.  And it isn't our job to write one -- or to allow the Department to write one in Congress's place.”  (PP. 1215-1216.)

         I wonder if Judge Gorsuch interrupted his colleagues during oral argument. 

A Perfect Layup

     We all have favorites‑favorite office holders (fewer these days), favorite uncles and aunts, favorite judges (the most evanescent category), favorite judicial opinions.  Oh, I almost forgot, favorite columnists.  Let’s narrow the field to Daily Journal columnists‑all favorites. 
         Columnists cannot be sure who reads their column.  That is less the case when it comes to judicial opinions. Attorneys and judges on all courts are compelled to read them.  Readers can fume privately or publicly about the merits of the opinion, but generally they read under compulsion.  It’s different with columnists.  We may have what is called a “readership,” and we do get our share of emails or missives of praise or criticism.  The latter I try to handle with equanimity.
         When one is a columnist for a professional legal journal like the Daily Journal, one expects the readers to be in the field of law.  I mean how many entomologists read my column or any other column in the Daily Journal?  I have heard, however, from a few etymologists.  The experience was not all that pleasant.
         But one never knows.  Take basketball star Kobe Bryant, for example.  Several years ago I was at the local car wash waiting in line to pay my bill.  Even though I was looking straight ahead, I became aware of a looming presence behind me.  I turned around and found myself face-to-face with a belt buckle.  I craned my neck upwards and had to bend backwards to see that it was Kobe Bryant. I wasn’t going to bother him and ask some silly question that a star struck fan might pose.  I turned around and tried to act nonchalant despite the Tower of Pisa leaning behind me.  I paid my bill, went outside, and sat on a stone bench while I watched the energetic employees work on my car. 
         As it turned out, Kobe sat next to me.  He spread his “things” out next to my “things.”  Not sure why I put “things” in quotes.  What should I say, “paraphernalia”?  Naw… too… formal.  And “stuff” too… informal.  “Things” means… well, things, like cell phones, a pad on which to jot thoughts… for maybe a column, a small case in which to put whatever.  I detest “whatever.”  Just sharing with you the “things” columnists worry about.
         So I moved my things out of the way to make room for Kobe’s things.  In doing so, our eyes met.  Of course my head was tilted as far back as it could go and my chin was thrust in an uncomfortable upward position.  It seemed at that point appropriate to say something.  At that time Kobe was building a palatial home on a hill in the neighborhood.  The local papers had reported that the plans called for a full size basketball court in the basement.  For some reason beyond my ken, some neighbors objected to the basketball court.  Their view would not be obstructed because the house was on the top of the hill with nothing to obstruct.  So I said, “So how’s the house going?”  Kobe smiled, and said it was a pain or maybe “a pain in the ass.”  We chatted briefly about trivial things, what semanticists refer to as “pre-symbolic” language.  His car was ready and he said goodbye.  Hmmm, it just occurred to me that I was in line first, but his car was ready before mine.  Oh well. A group of kids gathered around him and he signed a few autographs and left.
         The reason I mention Kobe Bryant in the middle of a column about favorite columnists is that it never occurred to me to ask Kobe if he had ever read my column.  In fact, I never ask anyone that question.  But were I to ask such an obnoxious, self-centered question, I would not pose it to, of all people, Kobe Bryant.
         Neither would I pose that question to his rival and one-time teammate, Shaquille O’Neal.  Last week at Staples Center, the Los Angeles Times wrote about the unveiling of a bronze statue of Shaq.  It is 9 feet tall and weighs 1,200 pounds, a replica close to the actual person.  And Kobe was there to wish him well despite their past rivalry. Age mellows… sometimes.  By the way, I forgot to mention.  Shaq read my column.  I cannot say he reads my columns, but I know for sure he read one. 
         It happened years ago when the Lakers lost one of their games to the Sacramento Kings at the Western Conference finals. After the game, Shaq, who was unhappy with questionable calls from the referees, said that the only way to beat the Lakers “starts with a C and ends with a T.”  So, of course, that reminded me of footnote 2 in People v. Arno (1979) 90 Cal.App.3d 505, 514.  I wrote about this in a column in 2002 and suggested that Shaq’s word game reflected a poor loser.  I said the answer to the puzzle was not what Shaq intended, but what I thought was more appropriate, “Cheap Shot.”
         Of course, I wasn’t worried that Shaq would read the column and come to Division 6 and dribble me around the courthouse.  But one morning during our conference prior to oral argument, my colleagues placed before me a large manila envelope.  They watched me open it and, as I recall, took a picture of my reaction to what was in the envelope.  It was a copy of my column about Shaq.  Written above the heading was:  “Gilbert J., what makes you think I don’t read your column?  Shaq # 34.”
         The truth is that Shaq read the column because it was given to him.  My friend and colleague Justice Elwood Lui at that time was a lawyer and a member of the Harbor Commission.  Shaq, who has an interest in law enforcement, was then a reserve officer in the Harbor police department.  He wanted to get together and have lunch with Justice Lui and me.  Our lunch never took place.  Before we could agree on a date, Shaq left for the Miami Heat. 
So to my Daily Journal fellow columnists (who I read regularly and admire ‑ Chemerinsky, Hoffstadt, Balabanian, Kessler, Moskovitz, Kanner, Lawton, Connor, Berger, and others, whom I will recall after publication and kick myself for not mentioning), you never know who will be reading your insights and wisdom.  It could be someone from an entirely different profession or line of endeavor.  It could even be someone like Shaquille O’Neal, who as I already mentioned, read one of my columns.  Of course it’s not a big deal or anything… but I wonder… you think maybe he gave my column to Kobe?

And farewell to friend John Van de Kamp.  He used his considerable skills to help others as a public office holder and lawyer. John set the standard for the person we yearn to have in government, a legacy that will endure.

What Does Principle Have To Do With It?

     Compromise.  It is ubiquitous.  In last month’s column, I discussed the law students at NYU who refused to represent the county opposing an adoption sought by a gay couple in a moot court case.  The law school, lacking backbone, backed down and did not insist the students carry out the assignment.  The school unwittingly helped the students deprive themselves of the opportunity to learn how best to represent a gay couple with the same issue in the real world.  Wonder whether those students took the same position when they became lawyers, with clients to serve and bills to pay. 
          But this poses a legitimate question all lawyers must face.  Are they selling out if they take cases for causes they find inimical to their cherished values?  Does the principle that everyone is entitled to representation override such values?  How many criminal defense lawyers have to deal with the question put to them at dinner parties, “How can you represent someone you know is guilty?”  When such annoying questions are posed to me, I cite the example of the ACLU representing the National Socialist Party, whose members sought to conduct a parade in Skokie, Ill., wearing Nazi uniforms and displaying swastikas.  It usually gets me nowhere.
          Set against this troubling backdrop is Business and Professions Code section 6068 regarding the duties of an attorney.  Subdivision (h) provides, “It is the duty of an attorney . . . :  Never to reject, for any consideration personal to himself or herself, the cause of the defenseless or the oppressed.” 
          This tension is no less a matter of concern for judges than it is for attorneys.  I have friends who seek my advice on applying for a judicial appointment.  One such potential applicant told me he was opposed to the death penalty.  I told him that if he received a judicial appointment, it was likely, at some point, he would be given a criminal assignment.  He also was “unalterably” opposed to the statutes prohibiting prostitution.  I told him these concerns should not be a problem provided he followed the law and did not let his personal views influence his rulings and judgment.  I emphasized that it would be unacceptable to recuse himself from those cases, because he would be forcing his judicial colleagues to take on assignments he found distasteful.  And even trading cases with other judges would not be appropriate, unless a recusal was necessary because of a circumstance a particular case presented‑‑knowing a witness, for example.
Code of Civil Procedure section 170 provides, “A judge has a duty to decide any proceeding in which he or she is not disqualified.”  Section 170 was the driving force behind Canon 3B(1) of the California Code of Judicial Ethics which provides, “A judge shall hear and decide all matters assigned to the judge except those in which he or she is disqualified.”  ABA Model Code of Judicial Conduct (Feb. 2007) Rule 2.7 provides, “A judge shall hear and decide matters assigned to the judge, except when disqualification is required….”  This involves personal bias against a party, witness or attorney, knowledge about the case or personal friendships with parties in the case.  The comment to Rule 2.7 says:  “The dignity of the court, the judge’s respect for fulfillment of judicial duties, and a proper concern for the burdens that may be imposed upon the judge’s colleagues require that a judge not use disqualification to avoid cases that present difficult, controversial, or unpopular issues.” 
          My friend did not apply for the bench.  He never told me whether my informal admonition influenced him.  I do believe, however, he was quite capable of doing what the job required of him. Perhaps he thought it would be too much of a struggle. 
          I read recently in the Washington Post an article by Derek Hawkins about a Social Security Administration judge in Texas who took a defiant stand, perhaps without an inner personal struggle.  The judge refused to watch a lesbian, gay, bisexual and transgender (LGBT) video as part of his mandatory diversity training.  He asserts his right not to have to watch the video because it subjects him to a “religiously hostile work environment.” The judge claims he will suffer “irreparable harm” unless a court prevents the agency from disciplining him or forcing him to watch the video.  If he prevails, his religious beliefs may be superior to those of businesses who balk at doing business with the LGBT community.
          The tension between conscience and duty will be heightened in a proposed presidential executive order called “Establishing a Government-Wide Initiative to Respect Religious Freedom.”  I heard about this initiative on NPR last week.  The Investigative Fund, a non-profit corporation dedicated “to improving the scope and overall quality of investigative reporting in the independent press and beyond,” and the Nation Institute published an article by Sarah Posner on February 1, 2017. 
          “The draft order seeks to create wholesale exemptions for people and organizations who claim religious or moral objections to same-sex marriage, premarital sex, abortion, and trans identity, and it seeks to curtail women’s access to contraception and abortion through the Affordable Care Act.”
          Of course we have no way of knowing whether this proposed “order” will see the light of day.  But if it does, it is the judiciary who will be deciding, among other things, its First Amendment implications.
          I will resist the temptation to offer solutions to the troubling issues presented in this column.  Instead, I leave to you, dear readers, some questions to ponder, a kind of test. 
          Freedom to worship is one thing, but freedom to exercise and to practice one’s religion is another.  How does this distinction affect how we view the position of the administrative judge in Texas and the reach of the Initiative to Respect Religious Freedom?
          What is a religion?  Does the term “religion” apply only to “established” religions? 
          Can a set of unique religious principles created by a small group of people constitute a religion?  Do numbers matter?  Does it matter whether this number is 150,000 or 150?
          Do  judges who render decisions that protect religious practices for those charged with violating statutes that prohibit those practices help to establish religion? 
          My view?  Bring me a case to decide and I will do my best to provide a principled and coherent answer.  I know many of you are not shy about sharing your answers or impressions with me.  That is your option.  But not to worry, I grade on a curve.

Post Script- Judge Joseph Wapner, a principled judge who consistently decided cases with impartiality, fairness and dedication to the rule of law, was my friend and colleague.  He passed away last week.  Whether he decided a civil case involving complex business transactions in the Los Angeles Superior Court, or decided whether a pet store negligently dyed a French poodle blue instead of pink on “The People’s Court,” Judge Wapner was the nation’s quintessential fair judge.  Unlike many of his television successors, he treated litigants with dignity and fairness.  It was easy for him, because he was just being himself.  He showed the nation what the judiciary is at its finest.  Goodbye, Joe, and thanks for providing the standard we all strive to achieve. 

In The Nature of an Oymoron

     The Beverly Hills Bar celebrated its 85th birthday on Saturday evening, Jan. 28th.  There was a big party. I was there and played in the Big Band of Barristers conducted by Gary Greene.  The night before, the bar’s dynamic Executive Director Marc Staenberg was honored at a black tie dinner. 
         Eight-five years ago, minorities were not welcome in most bar associations.  The Beverly Hills Bar was created to remedy that injustice.  It opened its doors to all lawyers, regardless of their race, or ethnic and cultural background.  So I was happy to be there.  During a break, I mingled with the guests and met a Chinese immigration lawyer.  She looked me over and informed me this was the Year of the Rooster.  I asked if there was something about me that reminded her of roosters.  She gave me a second look and mumbled “not really.”  I was concerned because a sizeable number of short guys often act like roosters to make up for their shortcomings.
         She then asked what year I was born.  I took a few seconds, and figured it out.  I hesitated, but did not want egg on my face.  So I told her, even though it was nothing to crow about.  Instead of remarking how good I looked for my age, she looked off into space and began calculating.  I think she used her fingers.  After a minute or two, her eyes focused on me.  “You were born in the Year of the Ox.”  The what?  I was convinced she was mistaken.  I thought for a moment about china shops (pardon the reference), but oxen don’t go into china shops.  Are oxen stubborn?  No, mules are.  An ox is large; I am slight.  I protested, but she maintained her calculations were correct. 
         I checked with my friend and colleague Justice Elwood Lui, the first Chinese jurist appointed to the California Court of Appeal.  He consulted charts and graphs on a special app on his cell phone and concluded I was definitely born in the Year of the Ox.  He asked if my parents called me “Babe” and if I had an affinity for lumberjacks. 
I was about to protest, when it hit me like a pickax.  I realized the calculation was correct.  Quite apart from favoring the color blue, I had interpreted the Year of the Ox too literally. I am more in the nature of an oxymoron.  (Please do not emphasize the last two syllables.)  Scholars and charlatans agree that my columns are an exercise in oxymoronic prose.  The multiplicity of themes speaks to doubtful certainty.  I was overcome with bored excitement.
The oxymoronic theme reminds me of some law students at NYU some 26 years ago.  They were what I call “refusing advocates.”  With apologies to Lord Tennyson, they were “falsely true” to their beliefs.  The students refused to participate in a moot court competition when they were assigned to argue against the petition of a lesbian couple seeking custody of a child. 
The students and I agreed upon one point.  It is unacceptable to deny relief to the otherwise qualified petitioners because they are lesbians.  But that is why we need lawyers.  Lawyers protect all points of view, however offensive.  The Bill of Rights was enacted so that politically incorrect points of view could be expressed.
         At that time, I wrote in the Daily Journal:  "If lawyers become intimidated by the enforcers of correct thought, then we are in big trouble.  The students who refused to participate in the moot court competition because they disagreed with the principle they were assigned to argue unwittingly sabotaged the very principles they professed to support.  When certainty of the correctness of your position causes you to silence the opposition, you have undermined your own position.  You have become like your enemy.”
         Nat Hentoff in his book “Free Speech for Me, But Not for Thee:  How the American Left and Right Relentlessly Censor Each Other” (Harper Collins 1992) also expressed his dismay about the refusal of the students to participate in the moot court competition.  He wrote:
 "The presence of self-appointed enforcers to compel the expression of the politically correct point of view can have a devastating effect on the law profession.
         "If lawyers forget this, we will ultimately have a society where ideas are crimes.  Fahrenheit 451, Brave New World, and 1984 will have been written in vain.
         "Those who fight for minority rights, whether they be the rights of gays, blacks, Jews, women, or atheists, should be particularly sensitive to preserving the right of others to be heard, no matter how loathsome the point of view.
"By allowing the free expression of bad and even offensive ideas, we insure that good ideas flourish. It is this way that we preserve the American freedom of mind and spirit.  It’s something law students must learn, and lawyers must never forget."
Hentoff quoted extensively from my column in his book which proves that the Daily Journal has a wide circulation.  But it meant a great to me because as a kid in high school I became a Nat Hentoff devotee.  He was an influential jazz critic when I had the absurd notion of becoming a jazz musician.  My passion for that career was not sufficient to overcome my aversion to crowded, smoke-filled night spots and late hours.  And I was not all that thrilled about starving to death.  Can you imagine that during a break on a gig, the musicians were so poor that they were forced to share a cigarette?

For years Hentoff wrote for the Village Voice covering a variety of subjects that included jazz reviews and social commentary.  He was a wonderful writer and incisive critic on subjects that included civil liberties, politics and political correctness.  A mutual friend and writer had planned to introduce me to Hentoff.  I looked forward to the three of us having a lunch or dinner and engaging in lively conversation.  That will not come to pass.  Nat Hentoff passed away last month.  He was a congenial provocateur.