Gardyloo! – What Justice Kennedy’s Retirement Means For The Rule of Law In America

There’s a lot happening in the law right now, and almost none of it is good.  I believe  we are entering a time that history will judge to be a dark age in American law and society. I fear that we may be witnessing the demise of our democracy and the rise of authoritarian rule.

With today’s announcement of the retirement of Justice Kennedy, the theft of the appointment of the replacement of Justice Scalia’s seat from President Obama, the complete disregard of Democratic or progressive interests in the appointment process, the recent slew of 5-4 decisions, and punting of other important decisions, I can’t help but feel that American law as I have known it is ending.  The future may see the election of more moderate individuals to the presidency or Congress, but the Courts are likely to be in the hands of ideologues for a generation to come.  This is damage that cannot be undone with an election.

Republican obstruction created a large number of vacancies on the Federal Courts that are now being filled by Donald Trump in what is the most aggressive and politicized court-packing in our nation’s history.  The individuals being appointed largely come from the membership rolls of the Federalist Society, an elitist hard-core conservative group.  These appointees are young, predominantly male, and 90% white, with no person of color having been confirmed since Trump has taken office.  A record number of these appointees have been deemed unqualified by the American Bar Association.  Indeed, the lack of qualification has become well known through the inability of one candidate to answer basic legal questions and his admission that not only had he never tried a case, but he had never even taken a deposition on his own.  Apparently, his firm didn’t trust him to handle a case, but Donald Trump trusted him to be a Federal judge with a life-time appointment.

A couple of weeks ago, I attended the Florida Bar Conference, where more than a thousand Florida lawyers gathered to discuss changes and developments in the law.  I’ve never seen such anxiety among lawyers nor have I ever heard such pessimism.  Time and time again I heard lawyers question whether the rule of law would remain in place until next year’s conference.

For some time, I’ve clung to the belief that the Courts would stand strong against Donald Trump’s authoritarian and totalitarian tendencies, but as I look at the decisions rendered in the past week, I realize that my hope is misplaced.  To date, although lower Courts have restrained President Trump, the Supreme Court has refused to do so.  Furthermore, when faced with questions such as the Colorado gay cake case or political gerrymandering the Court has effectively declined to rule by remanding the cases on technical grounds.

I believe that what we’re currently seeing is a strategy of appeasement, led by Justice Roberts, in hopes that the Court will survive this president and congress.  Given that the Court has to deal with a president who is clearly overtly hostile to, and not at all restrained about publicly denouncing, any court that rules against him and who is now threatening to remove issues such as immigration from judicial review, the Court is understandably intimidated.  Unfortunately, Congressional Republicans, who are also clearly afraid of incurring president Trump’s twitter wrath, show no evidence that they would back the Court in a fight with the President. Thus, the Supreme Court is fighting alone for its very legitimacy and authority.  Unfortunately, one need only look at history to see that appeasing tyrants is destined to fail.  Someday, the Supreme Court will have to reckon with its complicity in the dismantling of the rule of law and justice in our nation.

Here are my predictions for the future of American law and society:

  1. Privacy and reproductive rights will be severely restricted.
  2. We will see continued expansion of corporate first amendment rights which will be utilized to disempower and diminish the rights of workers and minorities.
  3. Efforts to reform the voting process, fix gerrymandering, and remove money politics will be blocked by the Court.
  4. The Court will chip away at civil rights and the Voting Rights Act.
  5. There will be an expansion of Presidential power due to the Court’s fear of and deference to Trump and the failure of our dysfunctional polarized highly partisan Congress to meaningfully address issues or crises facing the nation. In other words, the other branches of government will shrink and cede power to Trump moving us closer to totalitarian government.
  6. There will be decreased civil rights across the board for natural persons, while rights for business and corporate interests will expand.
  7. Roe vs Wade will be overturned.
  8. Consumer access to the courts will continue to be diminished and consumer protection statutes will likely be removed or greatly diminished either by Congress or invalidation by the Courts.
  9. Gun rights will continue to expand and efforts to impose reasonable gun-control measures will be blocked by the Court.
  10. Unless the Court stands up to limit Trump’s executive authority, it will eventually become a merely symbolic institution, lacking any real authority or input into American law,and the nation’s slide into totalitarian rule will be complete

GARDYLOO – “used in Edinburgh as a warning cry when it was customary to throw slops from the windows into the streets” 

My New Love: Gatekeepers in the Bookstore

I’m not sure how my wife feels about it, but I’ve fallen in love. I know she’s aware of the new relationship and seems to tolerate it all right.  My new love isn’t with another woman, I don’t think that I have the energy for such things.  My new love is a small independent bookstore, The Writer’s Block Bookstore, on a side street in Winter Park, Florida.  In their small rooms lined with wooden shelves they don’t carry nearly as many books as my local Barnes and Nobles, and their prices are much higher than Amazon.  I like having a large selection and love to save money, but this little bookstore offers me something that is disappearing in our world and it’s the primary reason for my infatuation.  This small bookstore is very selective in the titles they stock, and I’ve found that their recommendations are excellent. A bad book is a waste of time, and I’m very protective of my time. So far, they’ve delivered great me great titles that are well worth the time spent reading. This has great value to me as I often find myself searching through book stacks or amazon search results for books that are well written and appeal to my tastes. What they offer, that I’m not getting in the big stores or online is gatekeeping. The people who work in this bookstore love books in the same way I do and they’re experts in locating and recommending great reads.

We live in time when gatekeepers are disappearing while our choices are exponentially increasing.  Many people, and with good reason, welcome the era of self-publishing, not just in books, but in almost all areas of life.  Growing up the music I heard all came through record companies who carefully selected which artists to record and market. Back then, no record company meant that you were very unlikely to have a large audience, have your records in the stores, or be heard on the radio. Today, we can create very professional recordings in our living-rooms and directly offer those recordings to the entire world through online platforms, no matter how great or poor the music may be.  This gives us more options, but I also find that I waste a lot of time searching through bad music looking for the good stuff.   People talk about this as bringing democracy to the marketplace. For news, we used to rely upon journalists who largely operated under the supervision of publishers and editors.  Today, we have news aggregators that learn our preferences and send us stories that reinforce our world view. Setting up an online newspaper or a YouTube News Channel is so easy that any teenager with a smartphone can do it and potentially draw a large audience. Our choices have expanded, but we’re no longer sure who to believe.

For me, this begs the question: What are the pitfalls of expanded democracy?  I’ve lived my life being told that everyone should have the right to vote and that all votes should be counted equally, that we should empower the people to choose, that there is wisdom in the people, and that we should expand access to the podium. Until recently, I never questioned this.  Power to the people has been my mantra.  But what if I am wrong?  Is this the right approach in all parts of our lives? I recently listened to a speech by late Supreme Court Justice Scalia in which he talked about the difficulty democracy and how easy some things become with a totalitarian government.  I think this is a good question.

Should we apply the democratic process more broadly?  If we’re flying on airplane, does it make sense to allow the passengers to vote about how to handle an unexpected thunderstorm along the flight route? If you’re on the table in an operating room and you start bleeding unexpectedly should the input of the scrub tech be given equal weight to that of the surgeon? If you’ve been arrested and are in jail, should you take legal advice from the other prisoners or your lawyer (I’ve seen this one more than once and it rarely ends well).

I think gatekeepers, people with experience and knowledge that the general public lacks, have great value and there times when we need their counsel and to empower them to act on our behalf.  Certainly, it’s a balance, but we need to be aware of the short-comings of the democratizing our society.  Not all voices are the same and should be given the same weight in all situations.

The framers of the Constitution were afraid of the popular vote, which is why we have a republic rather than a true or pure democracy.  When the Constitution was first written the vote wasn’t extended to everyone.  Only wealthy white males voted.  Yes, it was racist and sexist, but it was also elitist.  Even under that paradigm, the President was not a direct election. In the past 200 years we have greatly expanded the vote to almost all adult citizens, which I believe is a good thing.  However, our choice for President has been largely under political parties control who selected their candidates. It was virtually impossible for an outsider to run a competitive campaign.  However, the power of political parties has been diminishing for the past 50 years with the rise of popular vote primaries that took selection of the candidates out of the back smoke-filled rooms and made the party conventions more ceremonial than functional. We saw this in the most recent presidential election where Donald Trump ran and was elected as a Republican party outsider. Although most Republican party leaders feared Trump and the damage he would inflict upon our Democracy, they were powerless to stop him. Likewise, Bernie Sanders, who has historically been an independent, came from outside the party and nearly became the Democratic candidate.  The impact of Super Delegates in the Democratic party, who make up 15% of the convention votes and are not obligated to follow the votes of their state helped ensured Sander’s defeat, reinforcing the party’s role as gatekeeper.  The Republican Party also has superdelegates, but they make up only 7% of the convention votes and are bound to their state’s primary votes.

However, in our Court system, where the framers envisioned unrestrained juries and contested trials, democracy is in rapid retreat.  Civil jury trials, where we allow the average person sitting as a juror to weigh facts that decide a case, are becoming increasingly rare.  For many years most written contracts that we use for everyday transactions have included a waiver for jury trial.  More stunning is how we’re doing away altogether with our civil Courts through binding pre-dispute arbitration agreements and class action waivers that take away the right to even enter a courtroom.  What is different from the Courtroom than the ballot box?  I think it’s the fact that when the average person enters a Courtroom to tell his or her story of being wronged, they have a lawyer as their gatekeeper who knows how to tell their story in a way that’s effective.

What’s the future of democracy in America? I don’t know.  Maybe it will be that more democracy and removal of the gatekeepers is a good thing.  However, I do know that I would pretty nervous if I were on a plane where anyone could become pilot, regardless of qualifications, through a popular vote.  On the other hand, if you gave people the choice of 3 experienced, trained, and licensed pilots, I’d feel better.

No Farting In Bed and Other Unwritten Rules that Preserve Democracy

Much to my long-suffering wife’s disappointment, there is no law against a person farting in a bed occupied by two people.  However, as she is inclined to remind me, generalized unwritten rules of marital bliss dictate that one refrain from offensive emissions.  I value my wife and am quite content to stay married to her, so I do my best to treat her with respect and to restrain myself from breaking the norms of marital behavior.

The unwritten rules, norms, that govern and maintain peace in our lives often go unnoticed until broken.  For example, if I accidentally step on your toe as I pass you in a hallway, it is expected that I will say “excuse me” and offer a moment of attention and acknowledgement of your discomfort.  For your part, I don’t expect that you will sue me for battery as the result of an unintentional bump, although the law may well entertain such an action.  Instead, in most cases, my apology is sufficient.  We do this because it maintains the social fabric that allows our society to function despite the harms, insults, and embarrassments that we sometimes inflict upon each other. If either of us fails to play our part in the unwritten rules of our interaction, trust is broken and we are left with anger and feelings of being wronged.

Although I spend a lot time in conflict in my law practice, there are some unwritten rules that govern behavior between lawyers that make a big difference in preserving our sanity and our ability to civilly resolve our clients’ disputes.  First, contrary to what you may have seen on television, good lawyers don’t fight about unimportant things and we don’t insult each other.  If opposing counsel needs a few extra days to complete a response to a motion or lawsuit, it’s bad form to deny the request.  When opposing counsel makes a foolish mistake, a good lawyer will avoid humiliating him or her in front of their client.  Perhaps most importantly, we don’t lie to each other.  A lawyer who breaks these unwritten rules will soon find him or herself ostracized within the legal community and judges take a very dim view of such behavior.

Behavior norms and restraints are rapidly decaying in American government.  Harvard Political Science professors Steven Levitsky and Daniel Ziblatt in their recently published book How Democracies Die provide a detailed history and warn us that loss of democratic norms and restraints is historically associated with the collapse of democracy and the rise of  authoritarian rule.

A dysfunctional president, a bad Supreme Court Justice, or an indentured Congress might give us poor policy and temporarily strain the boundaries of our democracy, but they are unlikely to cause the demise of democracy or give rise to authoritarian rule. However, the loss of unwritten norms and restraints on our behavior towards one another increases the polarization in our society and in our government, which is measurably leading to the breakdown of democracy.

This is not a party issue or an issue of conservative versus liberal or of Democrat versus Republican. This is about whether we continue to exist as a democracy.  In the time that I’ve been writing this piece, the news has exploded with comments between two prominent politicians from different parties who are arguing about who would win a fist fight.  This type of rhetoric is ridiculous and is destroying us.  Playing “hardball” with a “the other side is the enemy who must be destroyed at all costs” mentality is what happens when democracies are failing.  We need to put a stop to calls to lock up political rivals and stop delegitimizing anyone outside our camp or who challenges an idea or tradition.  Such calls are a return to McCarthyism and have no place in our democracy.

American democracy is not going to be saved by our politicians, at least not as long as voters continue to mistake norm breaking, obstruction, and lack of restraint for vision, commitment, and leadership.  It is up to each of us to do what we can to reduce the polarization and to turn away from those who would have us depart from the unwritten norms and restraint that are foundational to functional democracy.  We have to say “enough” to the politics of obstructionism and delegitimization.  We have to reject the idea that our patriotism is measured by our political party affiliation, our religion, our skin color, our ideas of public policy, or even in what position we sing the national anthem.  I believe that true patriotism is measured by our commitment to each other and to the democratic norms and restraint that have historically allowed our nation to survive.  The choice is ours, we can continue to fart in the bed, enraging our partners until they reach the breaking point, or we can exercise some restraint and civil behavior and maintain the relationship.

Reflections on 30 Years In Tallahassee

Thirty years is a long time, unless you’re looking backwards wondering where the time went.  It doesn’t seem possible to me that it’s been exactly thirty years since I first moved to Tallahassee.  The memories of that time are some of the best I’ve collected in my time on this planet.  I was 23 years old and eager to explore the world.  I’d spent the prior six years of my life working and going to school in Pensacola, Florida, a town I never wanted to live in and that I feared being stuck in forever.

I remember that I came to town, driving my 1984 Nissan Sentra, with very little money, no place to stay, an old guitar, and Princess, my Labrador retriever puppy. I carried a small tent with me and had this idea that I would tent camp for a few nights if I couldn’t find a place to stay.  Fortunately, I had friends who agreed to let Princess and me sleep on their living room floor while I started my life in Tallahassee.  Using the print classified ads in the Florida Flambeau, I was able to locate a room in a house with two other students whose names I’ve long since forgotten, but whose antics, such as getting drunk and covering our single telephone with pink frosting, I remember all too well.

Florida State University Campus

I could only afford the tuition for two classes that semester, but I quickly fell in love with Florida State.  Each day it seemed that my world became larger and more interesting.  It wasn’t just the classes, it was the campus itself.  Every day I was meeting new people who took my mind and imagination to new places with their conversation and the stories they shared.  I worked nights as a computer operator at the Tallahassee Democrat, and this job provided me with time to consume books and fall in love with the ideas I found in their pages.

During that time, I read several books per week.  One day I wandered into Rubyfruit books and met a lovely woman who I learned could be relied upon to always recommend an excellent read.  I was oblivious to the fact that Rubyfruit was somewhat radical and identified as a gay and lesbian book store.  I just knew they carried more interesting books than the B. Dalton’s at the mall and they always greeting me warmly.

I love the natural beauty found in the Tallahassee area.

It was such an exciting time of growth, exploration, and everything that is wonderful about being young and free. I remember the afternoons spent fishing from a rowboat on lake Talquin where I would always see a huge old alligator laying in the same spot in the shoreline grass.  I remember exploring the dirt roads and trails of Apalachicola National Forest and a glorious afternoon my brother and I spent swimming in a sinkhole with our young dogs.  More than places, I remember meeting new friends, a few who continue to be in my life to this day.

To be sure, there was plenty of struggle.  Money was always short and would be for years to come.  The guitar I’d brought with me landed in a pawn shop when I hocked it to pay my rent.  My progress through school was slow and my grades were less than impressive as I spent too many hours working to support myself and pay tuition and socializing with an intensity that I had never done before or since.

If I’d never come to Tallahassee, I would have never met my friend, Howard.

Mostly though, I remember people who I met along way.  Intimate friends and passing strangers who enriched my world with their wisdom, kindness, and stories.  Jack, the hot dog guy from New York, who used to stand in front of Strozier library selling all beef hot dogs from a little stand and who always had an encouraging word for me.  I remember Virgil Goedkin, a chemistry professor, who helped me figure out a way to stay in school when money was tight and who was the first person I ever knew who died of AIDS and who was one of eight members from a family of hemophiliacs who died from the disease.  I remember Dan Borato, my clinical psychology professor, who I thought was crazy, but who I’ve since learned was so wise that I still quote him to this day.  I remember wandering into a musical theatre play while walking around campus one night, thinking it was one of the coolest things I’d ever seen, and there began a love of live theatre and performance that endures. And there is so much I could write about FSU Hillel, where I found community and deep friendships that continue to this day.

The old and new of Tallahassee, looking North from the new pedestrian over-pass on S. Monroe Street.

Many old Tallahassee landmarks have disappeared in the past 30 years.  The old dairy on Monroe street is gone, which was across the street from the Albertsons, which is also gone; the Brown Derby Restaurant was still open and located in the parking lot next to Tallahassee Mall when I came to town. Morrison’s cafeteria was in both malls and my friends and I would often go there for cheap meals.  The Barbershop in Northwood Mall cut my hair for years.  I remember great times with friends at Buffalo Wings and Rings, sitting on the second story balcony overlooking Pensacola street before it was rerouted around the stadium.  I remember the FSU Stadium as a simple steel structure and being able to simply walk in and stand on the field during a semester break.  In 1988 you should still drive down Woodward street, right through the middle of campus, and I don’t remember any parking garages at FSU back then.  When I registered for class I had to use this awful dial in phone system that was always busy, and it took hours to get through only to find the class you wanted was already full.  It’s a testament to our determination and grit that we got registered for any classes at all.   I remember when the old airport terminal was still in use and when TCC was a small unimpressive community college that my friends sometimes called “Tee Hee Hee”, even when they were taking classes there.

So Many Memories of Times Spent with Friends

It was inevitable that my life would progress and that my youth would give way to adulthood, and then to middle age.  Over the years I’ve lost a lot of hair, put on a few pounds, adopted some great dogs, and gained a wonderful wife.  I’ve had careers in law, technology and nursing as I’ve wandered the planet in search of purpose and direction.  My life has given me opportunities to do things that I never anticipated, such as flying airplanes, sailing boats, and travelling to places like Israel, Hawaii, Alaska, France and the Galapagos. So many things have happened that I never imagined back in those days.

Looking back I can see that time has taken its toll. Not all my friends survived our wild days and we didn’t all make it to middle-age, but I carry their memories in my mind and in my heart.  New friends have come into my life to fill those spaces, but never truly replacing the ones who are gone.  Jack, the hot dog guy is gone, his stand replaced by a commercial vendor in a little building. Rubyfruit Books gave way to Borders, which gave way to Amazon.   Indeed, print books now seem to be losing to digital media. The last time I was in Strozier library, the entire bottom floor was computer terminals and the upper floors, where the books are kept, was completely empty.  But for every loss, there has been something positive. Locally, I love the new Cascades Park and the St. Mark’s bike trail. T.C.C. has grown into an amazing school.  No more terrible phone registration, students now register online and even take classes online. Tallahassee now has a rather handsome, although nearly empty, airport terminal.

A reunion of friends from our days at FSU Hillel.

These days, I watch my young nieces and nephews, and the children of my friends, launching into the world, and I remember that time 30 years ago when I stepped out  into the world.  I hope that their experiences will be as amazing as mine were and that they’ll find the love and beauty in the world that welcomed me so many years ago.  I hope that they’ll find friends who share the journey of their lives with them.  For me, living in a society that often feels youth obsessed, it’s tempting to think that my time is done, but that’s not true.  There are still adventures waiting if I have the courage take the journey.  There are still friends to made, books to read, stories to shared, and life to be lived.  Someday it will be over, but right now as I live in the body of a middle-aged man, that young man who wanted to explore world is still living inside me, and he allows me to see wonder in the world and possibilities that I didn’t see the day before.

Sexual Assault And Our Lack of Trust In Women

Is it simply a coincidence that the wave of women coming forward reporting sexual harassment and other inappropriate behavior comes approximately a year after a woman, Hillary Clinton, won the popular election to the office of President of the United States, but was denied that office by the electoral college?  I don’t think it is. I think that the election became a referendum on the status of women in our society and the outcome doesn’t flatter us.

We all witnessed the infamous video of Donald Trump bragging about sexually assaulting women and getting away with.  Perhaps more stunning was how so many people were able to disregard this video and justify their continued support of Trump on the basis that Hillary Clinton was so untrustworthy that no sin of Donald Trump would ever make him a worse choice than her.

This really became the theme of the Trump campaign and has been the stock and trade of many pundits such as Rush Limbaugh and Bill O’Reilly. I remember watching one of the debates in which Donald Trump repeatedly called into question Hillary Clinton’s honesty and trustworthiness utilizing a common technique of abusers called gas-lighting.  With gas-lighting, the abuser repeatedly states blatant lies as fact, often saying things like “people are saying”, “everyone knows you’re…” in order to sow seeds of doubt regarding the victim’s credibility.  It’s a brainwashing technique that has been used by abusers, dictators, and cult leaders and is alive and well in modern American politics.

Sadly, in my life, I have seen gas-lighting used most effectively by men against women.  I’ve witnessed it time and time again in nearly every setting where a man’s power is threatened by a woman.  What is even more surprising is how often women readily join in and support the gaslighting of another woman who dares to step out of line. We need to recognize gaslighting for the form of abuse that it is, but I don’t see any signs of that happening.

Our culture has a long tradition of not trusting women.  Most Americans who are religious practice one of the Abrahamic faiths in which the very first story in the Bible is the creation story where it’s Eve who first eats of the forbidden fruit and is often blamed for our expulsion from Eden (I would strongly argue that this is not a correct interpretation of this story, but I do think it is how a majority of people read the story).  Within the creation story we see G-d seeming to endorse an subservient position for Eve: “…your desire shall be for your man, and he shall rule over you.” This preference for the masculine is reinforced in Abrahamic religions in which G-d is usually referred to in the masculine form, and in many traditions women are excluded from portions of ritual life or considered disqualified to serve as clergy. The religious message isn’t simply that women are dishonest, but that they are impulsive and have poor judgment and that when a man allows a woman to lead, it will corrupt him.

In American history the institutionalized lack of trust in women is pervasive.  Women were denied the right to vote until 1920.  In many states, married women were legally considered incompetent to contract and their property belonged to their husbands. The law did not protect women from sexual assault by their husbands. These are not ancient laws that were abandoned long ago. Such laws have are within living memory and were in force for the majority of our nation’s existence. The Florida Supreme Court wrote, as recently as the 1940’s: “The common law as interpreted by this Court does not recognize capacity in a married woman to contract.” Hogan v. Supreme Camp of Am. Woodmen, 1 So. 2d 256, 258 (Fla. 1941).

We are a product of our history and old biases and ideas that often lurk in the deepest depths of even the most educated and progressive minds.  It’s not simply that we accept “boys will be boys”.  It’s that our society carries an inherent bias against the competency and trustworthiness of women that continues to be a strong force to this very day.  It’s why voters were so easily mislead regarding Hillary Clinton and why victims of sexual assault have felt often felt powerless.

Recall the Jameis Winston case, in which the woman who claims she was sexually assaulted immediately reported the incident, but the police failed to vigorously investigate the alleged crime despite the serious nature of the alleged offense.  It is worth noting that when the alleged rape was first reported, the woman didn’t know the name of her alleged attacker, so I see this as more than just the local police trying to cover up for an athlete. I think the unspoken truth in that case is that the police simply didn’t take her seriously, and, if the case hadn’t led to a star football player, we never would have heard another word about it.

Many of the women who have come forward have said that they didn’t speak up because they were afraid that people wouldn’t believe them or take their claims seriously.  Whenever a complaint of sexual misconduct is made, we need to take it seriously and ensure there is no retaliation against the person making the report.  I’m not one to say that women never make false allegations.  I’ve done enough criminal defense law to have long abandoned that idea, but I also know that we don’t question the victim’s credibility to such a degree when it’s a man complaining that he was hit by another man.  I also know that this bias isn’t limited to men.  One of the earliest lessons that I was taught by a very effective and experienced female criminal defense attorney was to choose as many women as possible when selecting a jury for a sexual assault case with an adult female victim. She told me, women are skeptical when another woman claims she’s been raped and they don’t feel the guilt that a male juror does.

Legal scholar and Harvard Law Professor, Alan Dershowitz, wrote: “The struggle for morality never stays won, it’s always in process”.  As our society has evolved we’ve often been shocked to see what injustices we’ve turned a blind eye to and that people who we’ve regarded as leaders have become the symbols of those injustices.  I think we have to remember that while evolution can be a slow process, there also times when rapid changes occur.  I hope that this is one of those times and that we emerge as better and wiser people.

My Kol Nidre Talk

I’m currently in my second year of a two year term as president of my synagogue, Congregation Shomrei Torah.  It is customary for the synagogue president to give the sermon or “drash” on Kol Nidre, the evening service that begins Yom Kippur, what is often called the holiest day in the Jewish year.  It has been my honor to give this talk for the past two years.  I hope that I have been able to share some words that have been meaningful to people.  

Tonight, I’m going to talk about why what happens in synagogues saves lives.

You may have a noticed, we recently had a rather large thunderstorm named Irma come ripping through the State of Florida.  I don’t enjoy life much without air conditioning or internet, so I accepted an invitation from my in-laws to join them and my wife, Barbara, at their home in Cleveland, Ohio.  I loaded up my car with our two dogs, a cat, my favorite guitar, 3 laptop computers, a box of Blue Apron meals and I headed north.  I evacuated through Bainbridge, Georgia where I made the turn west towards Montgomery, Alabama and interstate 65.  At the point where I made the turn in Bainbridge I saw the most amazing thing.  This large group people was on the side of the road with tables, grills, and cookers in what looked like a big party.  Along side the road I saw signs inviting evacuees like me to stop and have a free meal.  Looking at this, I was really in awe because Bainbridge was clearly in the path of the storm, and yet here were these people giving out free cooked meals to strangers.  How awesome is that?  As I drove along, I thought about this, and wondered why we don’t see this kind of generosity and kindness when things are going well.  Why does it take impending disaster or crisis for us to be our most altruistic selves?  Why do we give away free food to refugees during times of crisis, but debate things like food stamps and school lunches during times of plenty?

Why does it take impending disaster or crisis for us to be our most altruistic selves?

This summer I read the book “Tribe”, by combat reporter Sebastian Junger, in which he tells the story of Great Britain before and during WWII.  When it became evident to the British government that war with Germany was inevitable and that the Germans were certain to bomb the British cities, there was great concern how the population would react. Never before had a civilian population been bombed.  The government feared that once the German bombs started falling, all social order would collapse, there would be mass hysteria and psychosis,  factories would stop producing goods, and the war would be lost due to public disorder.

The interesting thing is that’s not what happened. British society didn’t fall apart. In fact, the opposite occurred.  When the bombs started falling, crime plummeted, anarchy didn’t occur. In fact, conduct in the bomb shelters was so good the police never had to be called to restore order.  The more the bombs fell the more productivity in factories increased. Most surprisingly, Psychiatrists noted that patients with long-term mental disorders suddenly improved.  Suicide rates, dramatically decreased.

These phenomena generated the interest of social scientists who continue to study it and have been observed many times since during other times of crisis.  Sociologist Emile Durkheim found in his research that when European countries went to war, suicide rates dropped and that psychiatric wards emptied. The same effect also applies to natural disasters.  Researchers found that despite news reports, crime rates in New Orleans actually decreased post-Katrina and that much of the looting was nothing more than people looking for food.  In the six months following the 9/11 attacks the suicide rate in NYC dropped by 20% and the murder rate by 40%.  As a nation, we saw no rampage shootings in the two years following 9/11.

Psychologist Charles Fritz studied the impact of disasters and the resulting improvements in mental health and he theorized that while modern society has greatly disrupted the traditional social bonds of human experience, disasters thrust us back into a more natural way of being by erasing class barriers, income barriers, and even the barriers of race and replacing them with a community of sufferers that allows individuals to experience an immensely reassuring connection to others.

One earthquake survivor gave a less scientific explanation when he said that the earthquake achieved what the law promises, but doesn’t deliver – the equality of all people.

he said that the earthquake achieved what the law promises, but doesn’t deliver – the equality of all people

What about the effects of peace, stability, and affluence? As Jews living in modern America we are enjoying one of the most prosperous and peaceful times in all of Jewish history.  As Americans, we live in what is the wealthiest society that’s ever existed in human history.  Things should be good, right?

Well, let’s look at the data.  In the United States deaths for from overdose, suicide and alcohol related causes, commonly known as the diseases of despair, have increased dramatically since 1998.  For white women that number is a shocking 381% increase.  These numbers are the highest in the industrialized world and are in stark contrast to every other industrialized country where such deaths are decreasing.

The portrait of teens emerging from the data is only of a lonely disconnected generation where social life is conducted online rather than in person.

When we look at the data for our children we see some very interesting and disturbing trends.  On a positive note, psychology professor Jean Tweage, in a September 2017 article in Atlantic magazine reports that the data shows that American adolescents today are physically safer than any prior generation, are less likely to experiment with alcohol or drugs, are less sexually active, are less likely to smoke, and that teenage pregnancy rates are at historical lows. She also says that we have a generation on the verge of a mental health crisis.   She reports that rates of teenage depression have sky rocketed in recent years. Three times as many 12-14 year old girls committed suicide in 2015 as did in 2007. The portrait of teens emerging from the data is only of a lonely disconnected generation where social life is conducted online rather than in person.  Interestingly, the data stretching back to the 1930’s shows the lives of adolescents began changing in 2007 and the rate of change became exponential in 2012. What do you think happened in those years? (The iPhone was introduced in 2007, and in 2012 we reached a threshold where 50% of people had smart phones).

Modern society has perfected the art of making people feel not necessary

So, what’s the deal with us where our mental health improves in times of war and mass disasters, and deteriorates when things are good? Returning to Sebastian Junger, he postulates that “Humans don’t mind hardship, in fact they thrive on it; what they mind is not feeling necessary.  Modern society has perfected the art of making people feel not necessary.”  This same idea is found in the writing of Rabbi Harold Kushner who said: “One of the basic needs of every human being is the need to be loved, to have our wishes and feelings taken seriously, to be validated as people who matter.”

As Jews, we are a tribal people living in an age of globalism.  Globalism brings many great things into our lives, but it comes at a cost, and that cost is emotional benefits of tribal connection and the loss of struggle.  In other words, alienation.

What does all this mean for us as a Jewish community and why I am talking about this on Kol Nidre?  It’s because this is where synagogues become important and save lives.  When people find connection and community in our synagogue we help immunize them from the diseases of despair that have become epidemic in America today.

To be counted in a minyan one isn’t required to be scholarly, observant, wealthy, or good-looking

In a global world, we provide the tribal component that is missing is so many of our lives. Judaism is often referred to as a tribal religion and we see elements of this scattered throughout our rituals.  For example, when we say Kaddish or read Torah, we are commanded to have 10 adult Jews present.  To be counted in a minyan one isn’t required to be scholarly, observant, wealthy, or good-looking.  Just being a Jew is enough, nothing else is required.  Tomorrow when we recite the Al Het and confess our sins, we do this as a community, not as individuals.  We share the burden of our sin together and together we seek a pathway to redemption. I also see this concept of tribalism present in the Torah. We’re all familiar with the many lines contained in the Torah that remind us to “love our neighbor as our self”.

Congregation Shomrei is a place that is rooted in tribal connection.  When we come to this synagogue, we combat alienation and despair.  We share more than just ancient ritual, we share a tribal connection.  We do this when we come to services or events and we put away our cell phones and we share the stories of our lives, when we stand on the Bimah as I am right now and we share our Torah or our ritual skills, when we feed each other with amazing Onegs, Kiddush lunches, and Shabbat diners, when we welcome children and new parents with baby namings and bris’s, then we watch those children grow up in our religion school, we see them become Bar or Bat Mitzvahs under the watchful eye of our volunteer Bar/Bat Mitzvah tutors, when we go out into the world together when we feed the homeless at the Kerney Center, when we watch each other grow older, when we support each other in times of sickness, With our Hevre Kadisha we even care for each other after death.  This year we expanded our tribal connections when made the important choice to extend membership to non-Jewish spouses because we realized that those who share their lives with our members are an indispensable part of our community. All of these things, help us to be a part of something that is greater than ourselves. The things that happen in these walls give our lives meaning and I invite you to be a part of this experience we call synagogue life.  For a small rural lay-led synagogue run completely on volunteer labor, this Congregation is amazing and there is great beauty in our community.

Don’t separate yourself from the community

I’m told that it is customary for the synagogue president to ask you for money on Kol Nidre.  There is always a need for money in any synagogue.  To those of you how are able and have shared your financial wealth with us, I thank you. We couldn’t do it without your support, but what I hope that I have communicated to you tonight is how your support of Congregation Shomrei Torah translates into something that is much larger than mere dollars.  This really is about life in both a literal and a metaphorical sense.  For those of you who struggle financially, I want you to know you are not alone and that you matter every bit as much the big donors.  If all you have to share is your time or your stories, that’s fine.  We always need volunteers and there is always room for one more at our table.

I am going close with the words of Hillel from Piriki Avot who said: “Don’t separate yourself from the community” to which I would add, this is not just for your sake, but for mine and everyone else who is part of the Shomrei Torah Community. Our lives are at stake and you make the difference.  At Shomrei Torah we are all necessary.

Message To A Niece On Her 18th Birthday

To my wonderful niece on the occasion of your 18th Birthday:

How special it is to share a birthday with you and to reflect on how you’ve grown into the fine young adult woman who you are.  You are truly a gift in all our lives.  I regret that we cannot celebrate this occasion together.  As you mark the occasion of reaching legal adulthood, I think back on my 18th birthday so many years ago and I remember standing on the precipice of adulthood and not being sure what that meant or what lay head of me.  If I could go back, I would offer advice to that young man, but I can’t do that, so instead, I will share those thoughts with you on this special day.

Know that your life will be what you make of it.  It will never be perfect and all your dreams won’t come true.  It’s important to not be a prisoner of perfection.  Take notice of what blessings do come your way.  Happiness doesn’t come from achieving all our dreams, but in gratitude for the few that will come true and for the people with whom we get to share our lives.

Don’t be afraid.  You’re far stronger than you know.  You were built to survive and are well equipped for this life. You will sometimes fail, but failure won’t destroy you unless you let it. The lessons that have come from my failures have often been the very foundation of my future successes.  Go out into the world and explore for the simple joy of being alive. You will learn things that no classroom can deliver.  Your life is a story that only you can write.

Guard your time carefully. You only have so many days in this life. You may live to 100, but remember, not everyone gets to grow old.  Make time for the people you love.  Our parents and grandparents are mortal and time passes quickly.  Likewise, in business and love, follow the old adage to “fail quickly” and not waste time on careers and relationships that aren’t working.  Time will pass more quickly than you expect.

You will become the people with whom you surround yourself.  Seek out those who bring out the very best in you.  Be loyal to your friends and treat their friendship for the gift that it is.  Likewise, remember that your friendship has value and isn’t to be squandered on people who don’t see that.  Remember that not everyone who is nice to you is a friend, nor is everyone who argues with you, or opposes you, an enemy.  Do your best to find a mentor and then do your best to make them as proud of you as possible.  When it’s your time, mentor someone else and do your best to lift as many people as you can with you.

Forgive even when it isn’t deserved. Do this for yourself so that you can live your life as free from resentment and anger as possible. There is truth in the cliché that resentment is like drinking poison and expecting the other person to die.   Understand that forgiveness doesn’t mean you have trust an untrustworthy person or that you have to let a harmful person back into your life.  It merely means that you recognize the other people have flaws and make mistakes, and it’s about them, not you.  Don’t ever forget we all need redemption sometimes.

Lastly, live a life of balance.  Enjoy great food, but don’t be a glutton.  Be charitable, but also look out for your own interests.  Be honest, but tell every bride that she’s beautiful and every new mother that she has a beautiful baby.

With all my love,

You very proud Uncle David

Clemency Denied and a Pardon Granted: Equal Justice in America?

Florida Sends More Children To Adult Prison Than All Other States Combined

When I was a law student I worked on a clemency petition for a child who was sent to an adult prison in Florida for 9 years for her first offense.  At 12 years old, she entered prison as the youngest inmate in the Florida Department of Corrections. It is worth noting that Florida sends more children to adult prison than all other states in the country combined.  As I worked on her clemency petition I learned that in the weeks leading up to her committing the crime, robbery of her grandmother’s home, she had been examined by two psychologists who both recommended that she be given immediate in-patient care.  I also found out that the source of her distress was that she was being abandoned by her mother who had run off with a man she had met, dumping the young girl on a grandmother who didn’t want her and who communicated this to her by getting rid of the twin bed the child was sleeping on, forcing the child to sleep on the floor.  The state of Florida wasn’t there to help this child.  A prosecutor later told me there was no money for the mental health treatment she needed. Instead, the state provided her with a much more expensive 9-year prison sentence as an adult.

I argued the clemency petition before Governor Jeb Bush at the Florida State Capitol

I argued her clemency petition at the state capitol before then Governor Jeb Bush and his cabinet.  I told Jeb Bush about her history of abuse and abandonment.  How her Mother had left the country and had never once visited her in prison.  I told him about how she had earned a GED in prison and showed him her nearly flawless behavior record.  I shared with him her statement of regret.  I asked him to let her out of the prison where she had been for the past 5 years and showed him the plan for treatment and recovery that we had put in place.  As I spoke, Governor  Jeb Bush played with the pencils on his desk and rocked back and forth in his giant power chair. He didn’t seem to take much interest.  I don’t remember him asking me any questions.  When I had finished he politely thanked me for my presentation and nearly a year later sent a notice that he denied her request for clemency.

“Truthfully, I’d be happy to see many more pardons and acts of clemency coming from the President and our Governors.”

One tyrant taking care of another

As I read the newspaper reports of Donald Trump’s granting a pardon to an unrepentant former Sheriff Joe Arpaio, I think back to asking for clemency for that young woman.  Truthfully, I’d be happy to see many more pardons and acts of clemency coming from the President and our Governors.  A shift towards a more compassionate criminal justice system in our nation is long-overdue, but that’s not what this is.  Instead, it’s a move away from a more compassionate system. It’s nothing more than one tyrant protecting another.  Trump didn’t pardon Arpaio  because Arpaio made a regretted mistake or because Arpaio has shown himself to be a man deserving of mercy.  Arpaio, a man who swore an oath to uphold the law, willfully defied that law and elevated himself to the role of judge, jury, and executioner when he defied an order from a federal Judge.  Trump pardoned Arpaio as a way of weakening Judicial authority and letting everyone know that, for those who are on Trump’s team, the Courts and the laws of our nation are not a factor.

“It’s nothing more than one tyrant protecting another.”

I wish that I could say that this is an anomaly in our legal system, but it’s not.  Too many times I’ve seen the well-connected and privileged protected by the system while people like the young girl whose clemency was denied by Jeb Bush are eaten alive by the system.  It really depresses me sometimes to work in a system that so often seems unfair.  I recall the words of a cynical law professor who said that the legal system exists to maintain the class structure in all but the most extreme cases.  I fear that soon, even extreme cases of injustice will no longer find a remedy in our legal system.

A True Friend

When we were in high school, my friend, Danny, went home from school one day to find that his mother had moved. The rental house they lived in was empty, she was gone, and he was on his own. No child welfare worker came to his rescue, and no neighbors took him in.  What little he had of a childhood ended that day when he was sixteen years old.  He never returned to school and I didn’t see him again for about year until I ran into him working as a bus boy in a 24-hour diner located on the west side of Pensacola, Florida.  He told me that for a time he lived in the woods while he sorted things out and found a job.  He’s been working ever since.  Every day, he’s gone off to difficult unpleasant jobs that don’t offer a future that’s any better than the present and a paycheck that most of us couldn’t live on.

Danny isn’t simply an acquaintance. He has proven himself to be a loyal friend for so long and on so many occasions that our not being friends isn’t an option.  We’ve shared apartments, protected each other’s backs during more than one street fight, explored the streets of New Orleans together, shared adventures that will never be retold, and shared the experience of growing from boys into men, and then into middle-age.  He’s seen my very best and my very worst, knows many of my secrets, and he’s never once wavered. Saying Danny isn’t my friend would be like saying my left arm is no longer part of my body. He is my true friend.

To be poor and white is to be defective in the eyes of many

This is why I was stunned and felt betrayed when Danny told me that he voted for Donald Trump.  We don’t normally talk politics and I’d always assumed we were on the same page.  Everything I know about Danny and his life tells me that Donald Trump doesn’t reflect his values or his interests.  I asked myself how he couldn’t see that Trump offered nothing but greater hardship in his life?

Danny explained that his vote wasn’t for Trump as much as it was against more of the same. He felt injured by the Affordable Care Act because he wasn’t able to purchase health insurance, so he lost his income tax refund as a penalty.  He doesn’t closely follow politics so he wasn’t unaware that part of the difficulty he experienced trying to get health insurance was due to Governor Rick Scott’s rejection of federal assistance for people like him.  All Danny knew was he was losing his annual windfall because of something that felt out of his hands.  His employers weren’t providing insurance, and his attempts to buy health insurance were futile.  Being self-employed, I can relate. My wife has spent countless hours on the phone with our insurance agent making sure our coverage continues.

That Danny doesn’t identify with people in the progressive movement shouldn’t surprise anyone.  Working-class white men like Danny are easy targets for progressive arrogance.  To be white, male, uneducated, and poor is to be an exception to the idea of white male privilege and such people are written off lazy, morally corrupt, or engaged in some form of substance abuse.  Unworthy of either compassion or assistance, people like Danny are easily maligned, ignored, or overlooked by progressives who, at the end of the day, care more about their causes than they do the people they’re supposedly trying to save. I suspect that Danny knows this. He may be poor and he may lack formal education, but he’s not stupid, and he reads people very well.

Even if progressives took a moment to talk with Danny, I can’t imagine they’d see him as I do.  Danny speaks in what is often pejorative and politically incorrect language that instantly offends progressive sensibilities. His is the speech of people who work in warehouses, the back ends of restaurants, slaughter houses, and all the other places where backbreaking dirty work gets done. The sometimes-brash offensiveness of his language isn’t hostility or aggression as much as it’s a remaining vestige of personal power for those who live in a world where other people hold most of the power. There are times during our conversations when he gets emotional and the F-bombs start to fall during every sentence, punctuating his language and stories with a brashness that refuses to capitulate to the judgment of the world.  So many of my progressive friends explode with righteous indignation at the very first sign of anything they deem to be tinged with racism, sexism, or any of the other many “isms” claimed as their causes.  What is missed by this self-righteousness that vilifies poor working-class white men like Danny is the understanding that this is the language of the oppressed, not the language of oppression.  It’s like judging a book by its cover.  The outside might be rough and sometimes unattractive, but what’s inside the pages is pure gold.  Danny isn’t a racist, a homophobe, or any kind of hateful person.  He lives in a neighborhood and works in a workplace that are much more integrated than mine are.  His friends and neighbors come from all groups, but I don’t think he’s aware of this.  When he speaks of people, he speaks of their character, of their acts of kindness, and their ethics.  I know from experience that he doesn’t consider race, gender, or sexual orientation for a moment when he sees someone in need.  If he’s able, he helps with a full and complete heart.

The Forgotten America where people like my friend, Danny, live.

The last time I stayed over, which was a few years ago, Danny didn’t have internet or even email. The only piece of technology he had was a second-hand X-Box video game he had hooked up to his television.  Maybe it’s the lack of technology that keeps him from spending his days obsessing over 24 hour news or participating in non-productive Facebook political discussions where we seek out people who reaffirm our ideas and arguments. Based upon our conversations, I sense that Danny spends his time on concerns that are much more immediate.  Will he get overtime this week at work, or will the boss cut his hours?  How is he going to raise $1,500 to pay for the colonoscopy that his Doctor wants him to have that isn’t covered by the low value health insurance policy he’s now getting through his employer? Can he go down the street to the new company that just opened up and get a job that pays 50 cents more per hour?  With problems like these, you would think that he would fully embrace progressive ideas like better wages and better healthcare, but how much does the left really talk about such things, much less actually take action on the issues that impact Danny’s world?  Progressive activists are sure to lose his attention when they begin their tirades about renouncing privilege, avoiding cultural appropriation, and embracing intersectionality – concepts that I hardly understand after more than 7 years of higher education, concepts that all seem to heap the blame for every historical and current injustice in the world upon white males, and which seem irrelevant and ridiculous when you’re stuck on the bottom looking up.

Maybe someday those of us on the left will get over ourselves and stop reducing people to stereotypes.  Imagine the coalitions and relationships that could happen if we simply gave people the benefit of the doubt and offered them a place at the table regardless of whatever warts they might bring with them. Who might join our causes if we let go of moral and intellectual arrogance and replaced it with a sense of true kinship with our communities?  How many other Dannys are out there, sitting ignored on the side-lines?