A Time to Improvise

         “We blew them away in Chicago.”  So said Maestro Gary Greene, Esq., as he led his recently formed Big Band of Barristers to win First Place as the best lawyers’ band in the country.  Who knows … maybe in the world.  Just the day before that, I "blew it" in my August column.  But first let's talk about the band.

         The 18-piece swing band performed at the Chicago Art Institute in a competition sponsored by the American Bar Association at its annual convention in Chicago last month.  The band had to be good to win an election in Chicago.  I suppose playing “Chicago” didn’t hurt.  In two sets lasting 45 minutes each, the band caressed, enticed, pleased, tickled, mesmerized, and seduced the audience, who danced, cheered, rocked, and, most importantly, voted.

         The big band sound was brought to an appreciative audience through the hip arrangements of Jerry A. Ranger.  The tunes included “Easy Street,” "Stompin' at the Savoy," "Body and Soul,” "Jump Town," "Ballin' the Jack" ‑ sounds reminiscent of Count Basie, Benny Goodman, Artie Shaw, and Duke Ellington.

         That I am the piano player in this august assemblage of talented lawyers gives me license to take a one-eighteenth pride in the band’s accomplishment.  It was significant considering Gary Greene brought us together a mere six months ago.  And, yes, we recorded a CD, which is in the "mixing" stage of preparation for release.

         The band truly swings.  Its impressive array of legal talent is also a collection of talented musicians, many of whom had professional careers in music.  The drummer Jerry Levine, a partner at Holland & Knight, and the bass player, Robert Hirschman, a business lawyer and litigator, were on the road with top recording artists and bands before they went to law school.  We all knew one another when we were attending law school, and since then we have played together.  That's what kids do when they are having fun. 

         The band includes such lawyers as Joseph Di Giulio, alto sax; David Schorr, baritone sax; John Snell, trumpet; Gary Urwin, trumpet; Mark Eisenberg, trumpet; Alexander Plitt, trombone; Marc Sallus, trombone; Barry Goldberg, trombone; and William Hochberg, guitar.

         This all brought home to me that some of the most successful attorneys are those who have developed skills and insight into other disciplines.  Recently Gary Greene and I joined legal scholar Howard Miller and the redoubtable trial lawyer Tom Girardi on his radio show "Champions of Justice" for a stimulating discussion about this phenomenon.  A strong liberal arts education, with insight into literature, philosophy, and the arts, makes for an informed lawyer who accomplishes more for the client, more for the profession, and more for the community.  Jerry, the drummer, mentioned to me that the attention to detail and focus required of him as a musician has been invaluable in his legal practice.  And successful litigators and musicians know there is a time to think, a time to let one’s natural talent lead the way, and a time to improvise.

         What?  Now you want to know how I blew it in my last column?  I was hoping you would forget.  My column does generate e‑mails and personal letters, some even signed, and, on occasion, some with positive comments.  The ones that receive a big response are often not those that deal with monumental issues ‑ recent threats to the independence of the judiciary or the decline in professional ethics.  Cats, on the other hand, elicit a big response.  Some of the toughest litigators are the biggest suckers for their cats.  Some even admit they get on the floor with their spoiled felines, scratch them behind their ears, and speak to them in the voice of a countertenor.  So do I. 

But what prompt the most e-mails are errata.  How my faithful readers love to catch errors.  In one column, I wrote, “It is me.”  A lawyer wrote me that he was shocked that I could have made such a blunder.  True, "I" is the subject and "me" is grammatically incorrect.  I acknowledged his point, but then pointed out that no one says, “It is I.”  Fowler’s Modern English Usage points out that common usage allows for “me,” and that “I” sounds stilted.

         Unfortunately, I do not have an easy out from the error in my last column, which generated a mini-avalanche of comments.  I had written that I was in my "seventh" decade.  Of course this was wrong.  I am in my eighth decade, just like the 23-year-old is in her third decade.  That I would rather be in my seventh decade is no excuse.  I thank my readers for their attention to detail.  At least no one complained about the philosophical point of the column.  

         And this takes me back to music.  This time I draw upon the avant-garde composer John Cage.  His composition "4.33" consists of a pianist entering the concert hall and sitting down at the Steinway Grand.  He sits there for four minutes and 33 seconds not playing.  The point of the piece is to make the audience aware of the ambient noise around them, the nervous coughs and titters from the audience.  I thought about writing an opinion like that ‑ four and one-third blank pages.  Law professors would have a field day with it.  And no telling what the Supreme Court would do.

         Better yet, I should have written my last column in Cage’s style ‑ no words, just a blank column.  Then, I would not have made my error.  Cage however made a good point about error, which I recently read in The New York Times.  He said error is simply “a failure to adjust immediately from a preconception to an actuality.”  With that comforting thought in mind, I think I will listen to the Miles Davis album "Kind of Blue."

Do Not Praise Me—Please… Unless I Truly Deserve It

         I read about the discovery of the Higgs boson.  It is as comprehensible as a mortgage-backed securities case.  Einstein explained how gravity works through his theory of relativity.  Higgs boson, I think, explains or at least helps scientists understand how the universe works.  If there were no Higgs boson, there would be no mass, no anything, no us.

         I applaud the scientists for their momentous discovery.  And I praise them for their detection of “dark matter” which is reputed to make up most of the universe.  Just look at the state of the world and this discovery is not all that surprising.

         The Higgs boson discovery, and the date on which it occurred, July 4, 2012, inspired me to search for a principle that explains our moral universe.

         The boson particle is minutely small, yet it was discovered.  In similar fashion I seek to explore the small choices we make every day, the choices that explain and reflect who we are and who we choose to be.  I leave to others to explore the big life-and-death choices most of us never have to make, whether to risk one's life by rushing into a burning building to save lives or by diving into a turbulent river to save a person from drowning.

         It is ironic, if not eerie, that I embarked on this quest because of an incident that occurred on July 4th, the very day of the Higgs boson discovery.

July 4th - I ran, jogged, crawled, the annual 10K-5K race in Pacific Palisades.  I have “run” this race since its inception 35 years ago.  It’s not an easy course.  The “switchbacks” from Sunset Boulevard uphill to the polo field at Will Rogers State Park are grueling, especially if, like me, you are in your eighth decade.  With the passing years, my “time” has been progressively slower.

         But out of the 3,000 or so runners, damned few in their 70’s run the 10K.  To accommodate Father Time, I have “run” the 5K for the past several years.  This year I thought about taking a shot at the 10K.  My knees pleaded with me to drop the idea.  They presented a petition supported by my appendages and organs threatening to boycott such an attempt.  My brain took the petition under submission and opted to make the decision where the 5K wimps, I mean runners, turn back to the finish line, but where the 10K runners forge on for the next 3.2 miles.

         My brain is the most fickle, obstinate organ in my body.  It drives me and everyone else nuts. As soon as I started the race, my brain knew the 10K was not an option.  I could have immediately communicated this decision to my anxious knees, but I waited for the turnaround point to make the definitive decision - “We will do the 5K.”  So I finished the 5K in a little over an embarrassing half-hour.  But for the senior 70’s, the time was not disgraceful.  I waited for my younger jock friends to finish the 10K.

         We looked up our times.  One of my friends won a medal.  And what do you know?  I came in second for my age group.  They give medals to the top three in their age group.  The medal I had won a couple of years ago for coming in third would have company with my new medal.

         At the award ceremony, I climbed the stage at the call of my name and accepted the medal which the judges placed around my neck.  I hammed it up a bit, posed for the photo, and gleefully left the platform.  

         It was on the second or third step off the platform that my glory evaporated with the sweat on my forehead.  The announcer said something like, “And congratulations again to the winners of the 75 to 79 age group.”  But that is the group I will be in next year assuming I live that long. 

         My friends were patting me on the back.  Apparently they did not hear the announcer.  They had to restrain me from going back up on the stage where medals now were being given to the 100 to 105 age group.

         In desperation I ran into the nearby gym and found an official.  I told him I thought I had been awarded a medal that I had not earned.  He looked up my name on the computer.  He found it and immediately congratulated me.  “Good time for a guy born in 1932,” he said.  I told him I was born five years later.  “My parents had no intention of having a kid in the middle of that depression.”

         I removed the medal that hung around my neck and handed it to him.  I asked him if he could find the person who had come in third in the 70 to 74 age group, the age group in which I should have been, the age group in which I, in fact, finished 9 out of 19.  He found the guy who came in fourth in the 75 to 79 age group before I became disqualified.  That person would now receive a medal as the third place winner; the third place finisher would now be second.  I was so relieved.  I felt like I had decided a case that corrected an injustice.

         The hubris that had dissipated from deflating my earlier discovery began to experience a Lazarath-like rebirth, as the official praised me for my honesty and integrity.  Just as I was about to say “Aw-shucks,” hubris went down for the final defeat.  I thanked him for his kind words, but said that I was not deserving of praise merely because I told the truth.

         “Perhaps,” he said, “but few people these days would have turned in the medal.”  Hubris once again tried to raise its moribund head, but I kicked it back down, and then began to take pride in that accomplishment.  This could go on infinitum.  The official and I wished one another a happy Fourth of July, and I, Mr. Middle-of-the-Pack, went home.  I would have much preferred the praise I would have earned if I had come in second.

         This incident got me thinking about judicial decisions.  On occasion judges receive praise for a “courageous decision.”  I would hope that judges decide a case the way they think it should be decided according to the law.  In some cases one could argue that an appropriate break with precedent is courageous.  But even in such a case, the judge is ruling in accordance with guidelines and principles. 

         There are superb decisions, but I hesitate to call them courageous.  A judge who makes an unpopular decision with the public may be reviled.  The experience is not pleasant, but the judge knows she or he is simply doing what the job requires.  Los Angeles Superior Court Judge Anthony J. Mohr is a talented writer of fiction.  In his story “Regarding Hercules,” Judge Mohr brilliantly explores this phenomenon in the July 2012 issue of Advocate, Journal of Consumer Attorneys Associations for Southern California.

         But a judicial decision motivated only to win public acclaim earns the judge a meaningless, undeserved medal.  Trial and appellate judges usually have the opportunity to correct an inadvertent error, to turn in a medal not earned.  This opportunity is available to all of us in the legal profession.  To be conscious of our choices makes it possible for judges and lawyers to win deserved medals of recognition with the public.

         I think I just found the principle I was looking for.  It applies to all people.  It is the succession of small moral choices we make each day that make up the composite of who we are.  It leads to the recognition of our true selves from which we can draw satisfaction, not from other people’s perception of us.

         Having said this, I, like a true scientist, am still skeptical.  I cannot be certain that my principle applies in all situations.  Keeping in mind that absolute rules rarely work, it may be wise to consider my principle together with another principle expressed by Henry David Thoreau:  “Do not be too moral.  You may cheat yourself out of much life.  Aim above morality.  Be not simply good; be good for something.”

The Illusion of Independence

In two days it will be Independence Day.  But lately I am plagued by this nagging fear that the majestic adjective preceding the noun may be an illusory description.  However jaded I sound, my dismal outlook is not surprising.  What else can you expect from a judge concerned about judicial independence?

          I always had this notion that despite the tension between our three branches of government, the judiciary, like the other branches, is independent.  But this independence is not absolute.  The judiciary receives its funding from the legislative branch, and both branches have often argued about how much funding is enough.  But despite occasional skirmishes, there was never a doubt that the courts would exist and do their job.

          This was my unshakable perception.  An article in The New York Times on Sunday, June 24th, entitled The Science of Illusion, by Alex Stone, created fissures through the certainty of my perception.  The article points out that our visual perception of reality lags a fraction of a second behind what we see.  This enables the adroit magician to dupe you into believing he has placed a coin in one hand, which he hasn’t, and astound you by producing the coin in the other hand.  A skilled conjurer plays on a person’s “cognitive bias” to astound, delight or trick.

          Scientists are using some of the magician’s tricks to study our perceptions and the decisions we make that flow from them.  Experiments have led scientists to reach disturbing conclusions.   Reality and our perception of it are not always the same, and this leads to a lack of awareness about how we arrive at many of our decisions. 

For example, subjects were asked to decide which of two jams they prefer. After the subjects chose their favorite jam, through sleight of hand, the jams were switched, so that the subjects thought they tasted the original jam on a second taste test.  Apparently influenced by their original choice, the subjects invariably chose what they had considered the less favorable jam on the second taste test, even though the jams had dissimilar flavors.

          This would be a good test for all of us, and judges in particular.  It alerts us to be aware of how faulty the premises upon which we make our decisions can be.  And this takes me back to what could be my faulty perception about judicial independence.  Certainly the judicial branch carries out its responsibility to decide cases that often have important consequences for the other branches.  But that assumes the courts are open to fulfill their constitutional mandate.

          A popular song from a Broadway show in the 1920's was titled "Yes! We Have No Bananas."  So yes we have no money to sustain government as we knew it in the past, and large budget cuts are necessary.  And yes worthwhile programs are being dismantled causing great suffering among some of our poorest and most vulnerable citizens.  And yes, without doubt, the courts must bear their burden of the cost cutting even though the judiciary’s budget is less than 3 percent of the total budget.  The judiciary has dramatically cut the CCMS program, halted numerous court construction projects, and laid off countless staff.  And specific court reserve funds are being used for current expenses.  But the impending closure of civil courtrooms constitutes a serious threat to the judiciary’s existence as an independent third branch of government.

          In Shakespeare’s Henry the VI, Part 2, Jack Cade, a rebel who seeks to overthrow the king and the established order, instills fervor as he addresses an unruly mob.  A butcher yells, “First thing we do, let’s kill all the lawyers.”  I have seen this famous line enshrined on the wall of more than a few lawyers’ offices.  I suppose they were trying to convey they are tough advocates who will fight for the client’s cause at all costs. 

          But, in fact, the butcher’s comment is a brutish recognition of the importance of society’s legal institutions to resolve disputes in courtrooms instead of in the streets.  Without a full functioning system of justice, society faces anarchy.  I do not suggest that the closure of many civil courtrooms throughout the state will plunge us into anarchy, but it will have serious far-ranging consequences.  It will greatly increase the sense of hopelessness many citizens feel in the current economic climate.  Many defendants facing likely economic sanctions for a variety of civil misdeeds, whether they be large corporations or single individuals, whether they be in family law court, probate court or small claims, will have no incentive to settle, or to resolve their cases in arbitration.  The cynical rhetorical question is “Why should they?”  The sting of a righteous lawsuit is greatly reduced when the trial, if held at all, will be in the distant future.

          I have heard much about the so-called Great Depression in the 1930’s.  My parents graphically described what life was like then.  As bad as things appear today, my second-hand impression of what it was like in the 1930’s leads me to conclude we are far better off today than we were then.  Yet, even back in the 1930’s, anecdotal reports from people who are still with us today tell me that the courts were still open.

          Courts make every effort to defer to the other branches.  They seek to resolve cases on narrow grounds and seek to fairly interpret legislative intent.  This deference must work in the other direction as well.  Let us hope the ultimate funding solution for the courts will take into account the necessity that the courts remain open. A magician’s sleight of hand will not work.  Let us all take another look at the judiciary's budget so that the executive and legislative's perceptions align with reality, and that strawberry jam is not mistaken for peach.  Happy Fourth of July.

Judge Loren Miler Jr.

     It is a week after the New Year's bowl games, and I have gotten them out of my system. Well, not exactly. The Fiesta Bowl keeps haunting me. It was an exciting game, and even though I am not a Stanford University fan (what can you expect from a UCLA and UC Berkeley School of Law graduate?), I cannot get Jordan Williamson out of my mind. With three seconds left, Williamson, the much-sought-after kicker, came out on the field to kick a 35-yard field goal to win the game against Oklahoma. But much like a surefire winning case with only one more key witness to call, it didn't turn out that way. He kicked, but the ball hooked to the left and missed the goal. The score was tied, and in overtime, he once again missed a 43-yard field goal. Oklahoma won. Williamson, sobbing in the locker room, could not be consoled no matter how much his teammates tried to convince him that one person alone is not responsible for the loss, not a particularly persuasive argument in this instance.
     That Williamson’s gaffe occurred in a well-played game, and was not a matter of earth-shattering importance, is beside the point. No one likes to screw up in front of millions of people. So how does a 19-year-old freshman, or anyone for that matter, get beyond this embarrassment that he will remember for the rest of his life?
      I am not sure, but if George Foreman could get over his defeat in the world heavyweight boxing match in Zaire to Muhammad Ali in 1974, I have hope for Williamson. Foreman shook off his corrosive despair, regained the heavyweight title 20 years later, became a minister and good friends with Ali, and promoted a grill on which I have cooked vegetables and turkey burgers.
      However odd it may seem, Williamson's angst over his all-too-human goof got me thinking once again about my dear friend and colleague, Judge Loren Miller Jr., who passed away last month. The pain so many of us felt over our loss of this uniquely warm human and outstanding jurist is of a different and far more profound character than Williamson’s angst. But that is not why I thought of Loren. Loren would have known just how to talk to Williamson. I would bet he would have had Williamson laughing through his tears. Loren would have explained to Williamson that he was human and he has a lifetime ahead of him to accomplish great things and also to screw up now and then as we all do.
     Loren was a judge of incomparable ability who understood human frailty and who put cases and life experiences in perspective. He articulated his philosophy with warmth and humor. Loren knew how to talk to those whose "screw-ups" landed them in prison or jail. He had an unerring sense of what sentence to impose and did it in a manner that gave many defendants hope for the future.
     Loren played football for the University of Oregon. And just prior to the Stanford game, Oregon won their first Rose Bowl championship in 95 years, defeating Wisconsin. There were plenty of goofs during those 95 years. Good things can happen with the passing of time. Loren reminded us that even judges have to face up to their shortcomings. We have higher courts to remind us of that.
     I met Loren when he was first appointed to the Los Angeles Municipal Court. In the summer of 1975, Frances Rothschild was Gov. Jerry Brown’s first appointment to that court. I think she had just passed puberty. She is now an Associate Justice on the California Court of Appeal. On Aug. 18, 1975, now superstar attorney Elwood Lui received a call from Brown appointing him to the municipal court. It must have been a few minutes after the governor called me to inform me of my appointment to the Los Angeles Municipal Court. To this day, Elwood insists that he received the first call. The Governor refuses to shed light on the issue. Apparently, he has a few more important things on his mind.
      Justice Richard Mosk of the 2nd District Court of Appeal, then a successful lawyer, arranged to have his father, Justice Stanley Mosk, swear me in on Labor Day. I think Elwood found out about my impending swearing-in ceremony and arranged to be sworn in the day before me. He still lords it over me that he will always have seniority, even though he is a few years younger. A week or so after that, Loren was appointed to the municipal court.
      Loren, Elwood and I became close friends. I have a group photo of our formal swearing in. Pictured in the photo is Loren, Elwood, me, Justice Frances Rothschild and Presiding Justice Norman Epstein, Gov. Ronald Reagan’s last judicial appointment to that court. It looks like a junior high school graduation photo. We were all in our 30's.
     Both Loren and Elwood dared me to write a column about one of our shenanigans at California's premier Judges College in Berkeley. The college presented newly appointed judges with an intensive two-week course on a variety of subjects that were invaluable training for new judges.
     We were serious students. But after class was another matter. Loren's expertise in short sheeting was legendary, a skill he demonstrated with consummate artistry one evening. As witness to this feat, accomplished with stunning deftness in a matter of 25 seconds, I can assure you it was performed in the evening after court hours. I will not reveal the well-known judge who was my roommate and who, along with his bed, was the object of the short sheeting. The unsuspecting judge was momentarily out of the room when the skillful maneuver was performed. Because of the oath Loren administered to me, I swore not to reveal the trap that had been set. I went to bed early that night and fell asleep before my roommate quietly prepared for bed. After slipping between the covers of his adjoining bed, he swore so loudly that he woke me up. Can you believe that? Well, he got over the incident. And when he learned Loren was the perpetrator, he thought he must have deserved it.
     Loren lived to see a better world. He mentioned to me that his grandfather was a slave. His father, the renowned judge, writer, editor and lawyer, Loren Miller, won many civil rights cases, including Shelley v. Kraemer (1948) 334 U.S. 1, which abolished restrictive racial housing covenants.
     A firm commitment to justice is firmly ingrained in the DNA of the Miller family. Loren was a judge of unscrupulous fairness. He applied the law and imposed tough sentences when required, but at the same time had a heart. He was compassionate and kind. Even the most hardened felons who received tough sentences at his hand revered him.
     Loren's daughter Superior Court Judge Robin Miller Sloan and his son Michael, a public defender, and daughter Nina, a school teacher, carry on the tradition of their father and grandfather. Their father set a great example. We can take heart that Loren lives on through them and through what he has taught us. Along with his commitment to the rule of law was his recognition that judges, though charged with awesome responsibility, are simply human, and that justice and compassion are compatible.
     Good-bye Loren. We will not forget you.

The Past Provides Myth and Reality

I can’t believe it. My last two columns were about the so called Top 100 whatever lawyers, judges, taxidermists, you name it. I received more e-mails on these columns than any previous columns, except the ones I have written about cats. One cannot imagine how many hundreds of cat lovers there are in the legal profession, except for a few who find the feline species abhorrent. Well, what do you expect from judges?
I had hoped that, at last, we are done with the “tops,” and the “best,” and the “greatest,” when just last week I received the slick 47-page magazine supplement to The Los Angeles Times, “Southern California’s BEST LAWYERS-The Definitive Guide to Legal Representation in Southern California.” Let us hope that this column, Part III, will be the last in the series.
The “best” in the magazine greatly outnumber the Top 100 lawyers that I mentioned in my last two columns. Some lawyers were both in the Top 100 and Best Lawyers lists. Some made one list, but not the other. I wonder why. They all deserve praise, but the manner of selection still puzzles me despite the comprehensive explanation in a box at the bottom of page 12. The box is entitled “METHODOLOGY.” It explains that selection is “based solely on a vote of [the lawyer’s] peers.” It is a relief to know that “listings cannot be bought," and that “no purchase is required to be included.” Does this include the full page photos of lawyers in smartly tailored suits and warm engaging smiles informing the reader of the benefits they derive from the firm’s representation?
I do not doubt that the “Best Lawyers” magazine in fact does list highly competent lawyers. I just think the list of the “best” or the “top” is not comprehensive. There are plenty of first-rate lawyers who are not mentioned in either list. Whether deserved or not, the advantage to being on a list of "the best," "the brightest," "the most wonderful" is that it satisfies the ego and helps business. Lists and marketing have replaced love and marriage as inseparable.
The same principle applies to law schools. Are the best Harvard, Yale, Stanford, Berkeley Law-Boalt Hall….? If I were to rate smaller, less known law schools, I would put the Monterey College of Law on the top of the list. Two weeks ago, I journeyed to Monterey, California to participate in the law school’s Heisler Moot Court program. The yearly event, named after legendary civil rights lawyer Francis Heisler, was held in the World Theater on the Cal State campus. Several hundred people in the community witnessed a spectacular display of appellate advocacy by the students.
I had participated in this program a few times in the past, and I once again joined my colleagues, Justice Patricia Bamattre-Manoukian and retired Monterey Superior Court Judge Richard Silver to sit on the appellate panel for the 25th year of this unique moot court. What has remained constant over the years is the student's high level of competence. Their inventive professors, Joel Franklin and Michael Stamp, never at a loss to create an intriguing problem, crafted a legal case involving a national mandatory vaccination program. Does this program override the rights of members of a church, the religious tenants of which are opposed to vaccinations? And can this law run afoul of the Commerce Clause? Professors Franklin and Stamp, and the articulate students who presented both sides of the case, gave us a preview of how our National Health Care Bill may be argued before the United States Supreme Court.
My trip to Monterey also gave me the opportunity to spend some time with my friend, Blaine Gibson, whose father Phil Gibson was California’s preeminent Chief Justice. Signed photographs from Gibson’s friends, Presidents Kennedy and Johnson, including his entire cabinet, Chief Justice Earl Warren, and other dignitaries line the walls of the warm hacienda-style home in Carmel where Blaine grew up. Over wine and cheese, Blaine and I talked about what the court was like during the forties and fifties.
However more complex our society is today, I fail to see why it can take more than 70 pages to write, often in impenetrable prose, a United States Supreme Court opinion or a Supreme Court opinion of any individual state. Perhaps these courts are burdened with so many cases that time does not allow for a briefer legal analysis. Oliver Wendell Holmes' and Benjamin Cardozo's opinions were tightly written; clarity and substance prevailed.
The same can be said of opinions authored by California’s two great Chief Justices Phil Gibson and Roger Traynor. In Jackson v. Pasadena City School Dist. (1963) 59 Cal.2d 876, Gibson, writing for a unanimous court, held it a violation of equal protection for a school district to gerrymander school zones to achieve segregation. He said it in five pages. In Sei Fujii v. State of California (1952) 38 Cal.2d 718, Gibson wrote the majority opinion, striking down as a violation of equal protection the California Alien Land Law, which prevented an alien Japanese from owning land. He took a few more pages, 17 1/2, to write this historic opinion. And Justice Jesse Carter's 14-page concurring opinion eloquently refutes the dissent's charge that the majority "desire to make the law what [it thinks] it should be." (Id. at p. 738.)
Gibson was our Supreme Court's supreme administrator. He persuaded the Legislature to transfer the authority to draft rules of appellate procedure and ultimately all the rules of practice and procedure to the Judicial Council. He created the Judicial Performance Commission and wrote 670 opinions. Unlike what is de rigeur today, Gibson sought to avoid the spotlight and publicity. He did not aspire to a "best" list. He let his work speak for itself and left the court in better condition than when he joined it.
I hope I have not distorted the past through the lens of nostalgia. In many significant ways, the law has progressed, and we recognize rights that had long been denied our citizens. Philosopher and critic Marshall McLuhan posited that we romanticize earlier ages and make them into art forms. Take the “West,” for example. There may have been lonesome cowboys sitting around evening campfires giving voice to inarticulate thoughts through the mournful notes of their harmonicas. But the laconic Marlboro Man was a myth invented by characters like those in Mad Men, a creation of Madison Avenue. It is unlikely that he was the archetype for those who herded unruly cows crammed together on the dusty plain. (I probably got that image from a movie but no matter.) Instead, the Marlboro Man was on a plane en route to film a commercial that sought to sell nicotine against the backdrop of an ersatz past. Mel Brooks, on the other hand, got it right in Blazing Saddles. We know the consequences of bacon and beans around the fireside. Similar consequences often flow from giving primacy to marketing over ability.
Some aspects of the past, however, serve as a useful model for the present. Our two great California Justices Phil Gibson and Roger Traynor proved that the best can rise to the top without a list or an advertisement.