Confirmation Chaos

I haven’t watched very much of the Senate confirmation hearings of Supreme Court appointee Judge Kavanaugh.  The few minutes that I did watch were so awful that I had to turn away and get my mind someplace else.  The confirmation hearings have degraded into a side-show spectacle of partisan politics that are undermining the legitimacy and authority of the once majestic United Supreme Court which is supposed to sit above politics and be an institution of reason that our nation can turn to with its most important and difficult legal questions.  In order to serve its role, the Supreme Court must be a court of all the people – Republicans, Democrats, Conservatives, Liberals, Progressives, Capitalists, Socialists, Black, White, Asian, the Religious and the atheist.  It is clear that many Americans, including many of our elected representatives, no longer see, and maybe no longer desire, an apolitical court.

I don’t know much about Judge Kavanaugh or whether he’d be a good Supreme Court Justice.  The truth is, it’s impossible know how well a Justice will perform until the robe is put on because, once on the bench, Supreme Court Justices often surprise us.  Consider that the most famous dissent in Supreme Court history was written by Justice Harlan in Plessy v. Fergusen, the case that, in a 7-1 decision, upheld segregation and created Jim Crow based upon the decision that “separate was equal”.  Most scholars and historians now view it as one of the worst decisions in the Court’s history.  If I had lived back then and looked at that Court, I doubt that I would have expected Justice Harlan to have been the lone dissenting voice of reason.  Justice Harlan was a supporter of slavery prior to the civil war and had grown up on a farm that owned slaves, yet he was the lone dissent in Plessy and other cases where the Court denied equal rights for Black Americans.

Also, it might surprise some to learn that when Justice Ruth Bader Ginsberg was going through her nomination process, there were those who were concerned that she might pose a threat to the decision in Roe v. Wade based upon statements she had made criticizing the decision during a speech.  Justice Ginsburg had commented that she thought the reasoning was incorrect, and that, although she agreed with the outcome, she felt the case should have been decided on equal protection grounds rather than on privacy.  These concerns did not cause great disruption in her appointment and she was confirmed by a 96-3 majority in a Congress that only had a slight majority of Democrats. Also, it’s important to note that it was Justice Scalia who recommended that President Clinton appoint her to the Court.

Speaking of Justice Scalia, it is well known that he and Justice Ginsburg became very close friends while on the Court together.   Justice Scalia, despite his clearly Conservative jurisprudence, was confirmed in a unanimous vote by the Senate that was composed of only a slight majority of Republicans.

Supreme Court appointments have become far too political and we’re seeing the result of this with this awful disgraceful confirmation hearing where  we see open warfare being waged between Senators who insult each other and many Americans in their comments. Part of the problem is that politicians are making promises to appoint judges who will produce politically favorably outcomes to hot button topics such as abortion.  This damages the process because it undermines our faith that we can come to our Courts and receive a fair hearing before a neutral judge.

The other issue that is lingering in the background of all this is Democratic anger and resentment over the Republican refusal to give a hearing to President Obama’s appointment of Merrick Garland.  Keep in mind, it wasn’t just Merrick Garland, the Republicans also refused to hold hearings on many of President Obama’s appointments to the lower Federal Courts, leaving many judicial positions unfilled.  Adding insult to injury, since gaining the Presidency, the Republicans have been basically packing the Courts with appointments of individuals, largely drawn from the ranks of the uber Conservative Federalist Society, who some feel are patently biased or unqualified judges. This unprecedented obstruction of a President Obama’s appointees, followed by gleeful court packing, has  greatly deepened the political divide in our government and our nation.  Furthermore, it undermines the dignity and the moral authority of our Judicial system.  I fear that it will take a generation before this wound is healed, provided the political divide does not consume our democracy and the rule of law before the healing can take place.

Lastly, as I listened to the Senators speak about each other, I felt a great sense of loss.  Senators spoke about each other and their political rivals as if they were discussing a foreign enemy rather than fellow Americans.  As I watch the rule of law being weakened by a profoundly dysfunctional government and witness a nation that it is tearing itself apart from within, I cannot help but feel that we at great risk of losing all that ever made America great.

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” 

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.

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.

American Law – A System of Justice or Oppression?

Is justice being erased in the United States?

The American legal system is in grave danger of becoming a system of oppression used by the powerful against the weak.  When our courts are no longer accessible by the average person, when there is no mechanism for payment of lawyers who enforce the rights of those without economic or political power, when funds to legal services programs are cut or abolished, when laws are written that increase the procedural burdens and burdens of proof required when the average person challenges the wealthy and powerful, when the right to trial by jury is consistently nullified by boilerplate contract language, when judges are increasingly selected for their ideology and political alliance rather than their jurisprudence and temperament, when the legislature and corporate-drawn contracts of adhesion take away the right of the average person to use our courts, when the legislature passes laws prohibiting working-class people from bringing their often modest claims as a class-action lawsuits in our courts and forces them into expensive individual arbitrations, when the legislative and executive branches of our government seek oversight of our courts and underfund our courts to a degree that renders them incapable of performing their function in our democracy, you no longer have a system of justice, but a system of oppression wherein the law is used as a weapon against the weak.

Sadly, I see all of these things happening at ever-accelerating rate, based upon a fictional claim that the system is broken and over-run with frivolous claims by greedy consumers and their lawyers.  If one looks at how our civil ccourts are actually utilized, the falsehood of these claims becomes readily apparent.  Consider that, for the week of March 3 – 12, 2017, there were 126 civil cases filed in the Leon County Florida Civil Courts. Here is the breakdown of those cases by type:

Case type                                                              Number Filed
Auto Accident                                                                  6
Debt Collection                                                               60
Residential Foreclosure                                                10
Premises Negligence                                                      1
Medical Malpractice                                                       1
Discrimination                                                                4
Products Liability                                                           1
Inmate lawsuit                                                                6
Residential Eviction                                                      20
Misc Other                                                                       9

Of the cases filed last week listed above, 48 were filed in small claims court, which is supposed to be “the people’s court” due to relaxed pleading standards deigned to allow a less formal process than Courts that deal with higher dollar or more complex cases.  Sadly, small claims courts are increasingly the place where the wealthy and powerful bring cases filed by their lawyers against poor people who in the vast majority of cases have no access to lawyers.  Of those 48 small claims cases filed last week in my local courts, 40 of those lawsuits were not claims brought by individuals, but were filed by companies who purchase defaulted debt, usually credit card debt, and were suing individuals and families.  Most interesting, of those 40 cases, 20 were filed by a single company, Midland Funding, a company who has never once been willing to go to trial in any of the cases where I’ve appeared on behalf of a consumer who they were suing.  Unfortunately, most consumers are not able to secure representation by a lawyer and so they either settle or the court enters a default judgment when the consumer fails to show up for court.

Politicians, supported by corporate donations, are quick to raise a cry of alarm that we are experiencing an epidemic of lawsuits. They say tort lawsuits are out of control, but is this claim in any way reflected in the numbers we find above?  Do we really need to limit medical malpractice lawsuits when they constitute less than one percent of all the lawsuits filed? Why do debt collection lawsuits, evictions, and foreclosures constitute 75 percent of our civil cases? Where is the epidemic really? Where is reform really needed?

I fear that justice is about to become much more elusive in our legal system. There are a number of new laws being considered at both the federal and state levels that will only increase the one-sided nature of our legal system.  Most alarming to me is the current federal legislation entitled “Fairness in Class Action Litigation Act” that is purposefully designed to kill class action lawsuits. The American Bar Association and a large number of consumer rights groups have issued statements opposing the law. Consumer claims are often unfeasible when brought individually due to the small amounts of damages that often represent huge profits for the dishonest business when spread over thousands of customers.  I understand that some people either don’t understand or are philosophically opposed to class action lawsuits, but no other mechanism is as important or as potent for maintaining integrity in our marketplace as the class action lawsuit.    Class action lawsuits are going to be even more important in an era of reduced government oversight as we see the disappearance of important consumer protection laws such as Dodd-Frank, and the restraint, if not outright elimination, of administrative watchdogs such as the Consumer Financial Protection Bureau, Environmental Protection Agency, Food and Drug Administration, and the Federal Trade Commission.

Another misguided bill is the “Lawsuit Abuse Reduction Act” which is aimed at lawyers representing individuals and families, and would require federal judges to impose sanctions in the form of costs and attorney fees against lawyers who file lawsuits that are deemed “frivolous” by the court.  Such a law would have a chilling effect upon the development of new legal theories or reinterpretation of the law.  It’s also notable that this law would not impose any risk for the lawyers on the other side who raise frivolous defenses.

Lastly, and I admit self-interest here, we are quickly reaching a point where lawyers like me who seek to protect the rights of individuals and families are going to be unable to continue our work. Ending class-actions, capping attorney fees, forced arbitration, complex and onerous pre-suit notice requirements, under-funded courts that charge excessive filing fees, making consumer lawyers vulnerable to one-sided sanctions, and the repeal of consumer protection laws will effectively put me, and many of my colleagues, out of business.  I know there are some who will celebrate getting rid of lawyers with a cheer of “kill all the lawyers”, ignorant of the roots of that statement and what an America without lawyers representing individuals and families will look like.  As for me, it’s a frightening future, one devoid of real opportunities for justice, where the masses live their lives subject to the whims and will of their corporate overlords.  We will no longer have a justice system; our legal system will be nothing more than a system that maintains the current power relationships in our society.  It will be a system of oppression.

You Shall Not Oppress The Stranger: My Call for Respect and Dignity for Transgendered People

I don’t know what it’s like to be a transgendered person.  I’ve always felt that my body and gender are one and the same and simply who I am.  That’s not true for everyone, which I think some people view as suspect since they’ve never experienced a disconnect between their body and gender.

I’m certainly no expert on this subject.  When the terms cis-male came up in a recent conversation I had to ask one of my friends what that meant (a cis-male is a non-transgendered male). However, I have encountered a few transgendered people and I’ve gotten some glimpses into their lives that have shaped my thoughts.

My first memory of encountering a transgendered person was almost 20 years ago when I was working nights as an Emergency Room volunteer at Tallahassee Memorial Hospital.  A biological male dressed in women’s clothing was brought in after having been physically attacked when leaving a bar.  The beating was vicious.  The police brought him in, but it was clear to me that they had no interest in finding the people who attacked this person. I remember one of the nurses making a derogatory statement about how he should have expected the beating. I remember that when the man was discharged, nobody offered him fresh clothes and nobody came to pick him up and carry him home.  He was left to walk out through the waiting room with his bandaged face and wearing the blood stained and torn dress he’d been wearing when attacked.

A short time later, a woman who was transitioning to being male came to work at the computer center where I worked during the evenings while I was in school. The way I understood the story, he was a state employee who worked as a computer programmer.  None of the state agencies wanted him and our director had offered him a position.  He wasn’t allowed to work in the cube farm with the other programmers, but was kept isolated in a small windowless former storage room.

My next encounter with a transgendered person was when I represented a young effeminate black teenager who had been expelled from the Leon County school system after getting into a conflict with his school principal over his wearing skirts to school. The young man was in foster care, living in a group home, because his mother wouldn’t stop beating him with a belt in order to stop him from being such a sissy.

When people discuss the rights and protections of transgendered people, I think of the transgendered people I’ve known, the difficulties they’ve faced, and the harms they’ve suffered.  As a result, I am absolutely certain in the moral righteousness of providing whatever legal protections are necessary to allow transgendered people to live their lives with dignity and without fear of harm or persecution.  The bathroom issue gets no traction with me.  To limit someone’s bathroom choice based upon their birth gender, rather than the gender in which they live their life, is not rooted in protection for anyone, but in a denial of the reality of transgender issues and the hardships transgendered people face.  Simply put, it’s rooted in ignorance and xenophobia.

Throughout history people have attacked those who live outside the mainstream. Those who are different are so often used as the scapegoats upon which society focuses its fears and prejudices.  Transgendered people are the proverbial strangers in the mainstream where most of us exist, which makes it sadly ironic that so many who seek to oppress and reject them claim to be religious people. Repeatedly, the Bible tells its readers not to oppress the stranger, but to protect the stranger.  Not oppressing the stranger is the most repeated Biblical commandment. It is the central message of Western religious thought. Refusing someone the right to use the bathroom consistent with their identity is oppression, even more so when one is talking about school children.  Sadly, those who hold power in the United States today have missed this fundamental lesson of religious and historical morality and are using their power to incite hatred and abuse upon the most vulnerable members of our society.

 

Happiness in An Unhappy Profession

Associate Attorney is the Most Unhappy Occupation

I’m a happy person working in a profession that includes what some have called the most unhappy job in America.  According to an article published on the Above The Law legal blog, the most unhappy job in America is associate attorney.  To be fair, I’m not now, nor have I ever been, an associate attorney.  An associate attorney is a lawyer who works in a law firm as an employee.  The closest I’ve ever come is the almost two years I spent working as an assistant public defender immediately after law school. I loved the Public Defender’s Office.  The work was intense, I was in court every single day, and my co-workers were great.

I really love being a lawyer despite what the researchers say.  Sure, it’s a lot of difficult hard work. Being a self-employed lawyer is risky with lots of ups and downs.  Sometimes it’s heartbreaking because I don’t always win and I argue from the heart.  It always hurts when a judge or a jury rejects an argument that I’ve spent days researching and crafting. I’ve had to learn to pick myself up, shake off the damage, and keep going.

I’m not wealthy, and my income is very modest compared to most lawyers, but I don’t feel at all impoverished. Instead, I feel incredibly fortunate.  I get to work at home a lot where I sit at my desk in shorts and a comfortable shirt with my dog at my feet and my cat occasionally interrupting me with a jog across my keyboard.  I get to work with my wife, who challenges and supports me in every way.  I chose my clients and the cases on which I want to work.   I have complete control over the tools I use from the pens we buy for the office to the software we use.  I even get to choose my working hours and I can take off as much time off as I’d like and can afford.

I don’t really understand being unhappy as a lawyer because I find what we do to be so incredibly interesting.  Legal cases are stories, often imperfect, always fascinating, and always teaching us something about ourselves and the world in which we live.   When I step into a courtroom on behalf of a client, I am privileged to tell my client’s story.  Each case gives me an opportunity to change someone’s life, and sometimes I can even change the rules by which we all play.  I’ve gotten to stand next to people who came to me feeling that no one was listening or cared and I’ve shown my clients that they have a voice and are worthy of respect.  Sometimes I can even persuade people to care about someone they’d overlooked.  My arguments don’t always work, but sometimes, when I’m in the right court, with the right facts, and the right argument, I get to change the world.  To do that once in your life is amazing, but to get the opportunity to do that every single day, is a priceless gift to me.

Public Interest Lawyers Work Hard, But Have the Highest Happiness Rankings

According to the New York Times, another study indicates that the happiest lawyers are public interest lawyers, those at the lowest end of the lawyer pay scale. Public interest lawyers make only a fraction of the earnings of firm associates, and are paupers compared to firm partners, but they’re the happiest of all lawyers.  Clearly, more money isn’t the key. The article speculates that the reason for this difference in happiness is:

The problem with the more prestigious jobs, said Mr. Krieger, is that they do not provide feelings of competence, autonomy or connection to others — three pillars of self-determination theory, the psychological model of human happiness on which the study was based. Public-service jobs do.”

I think there is truth to this speculation. I love the opportunities for self-determination and autonomy that my work provides.  Most valuable of all to me is the connection my work creates for me with my clients, other lawyers, the judges before whom I practice, and the community in which I live.

I didn’t consciously chose the pathway to happiness when I started my legal career.  My life is really a product of happy circumstance combined with what I often see as a somewhat selfish tendency to choose experience over monetary benefit.  I would rather scrape by in a job that I feel makes a difference, than do unfulfilling work that pays a lot of money.  I am also aware that I’m very fortunate because I get to make that choice. So far, I’m happy with the outcome, so I guess I’ll just keep on doing what I’ve been doing.

 

 

A Flawed Democracy

We’re in jeopardy of losing our democracy.  This past week the Democracy Index, an international ranking of the health of democracy in world’s nations,  downgraded the United States from a “Democracy” to a “Flawed Democracy”.  University researchers recently concluded in a study that the United States is an oligarchy, that is we’re dominated by the rich and the average person lacks meaningful political power. Despite all of our pledges, flag waving, verbal accolades regarding the wonders of democracy, and declarations of defending freedom to the death, American democracy is on the ropes.  No, Donald Trump is not the cause.  He may be a symptom, but there is plenty of reason to be concerned about American democracy apart from Donald Trump’s authoritarian fascism.

Our government is a system of checks and balances between the three branches: the judiciary, the legislative, and the executive.  In theory, no branch is greater than the other and each operates to keep the other in check.  Only the legislative branch is subject to direct election on the federal level, although on a state level both the judiciary and the executive may also be directly elected.  The federal judiciary is insulated from the electoral process by virtue of lifetime appointment of federal judges by the Executive and confirmation by the legislative branches.

However, recent years have witnessed an accelerating decline of this system of checks and balances. Instead, we are witnessing the rise of what I call the “super legislature”.  Certainly, there has been a lot of scrutiny paid to the use of Executive Orders by the President in the face of congressional gridlock, but if you pay attention to what’s happening at the state level, and then look back at the federal level, you’ll see that it’s not the presidency with which we need to be concerned. It’s the legislative branch, which have become increasingly single party nationally and whose members dominated by big money, where we see the most blatant attempts to overturn our system of checks and balances.

For example, according to the Florida Bar News, there is currently a bill in the Florida legislature, introduced by Republican Julio Gonzalez, to amend the Florida Constitution to allow the Florida legislature to overturn any Florida Supreme Court decision that rules any law to be unconstitutional.  This bill, should it become law, would remove the Florida Supreme Court from its traditional role of having the final say regarding the Constitutionality of our laws.  In other words, the legislature, not the Courts, would get to review the constitutionality of the laws it passes.

In North Carolina, the Republican dominated legislature recently passed laws severely restricting the power of the Governor following the election of a Democrat to that office.  Fortunately, this law was struck down by the Courts. However, I suspect that the North Carolina legislature will engage in a war of obstruction, similar to what President Obama experienced, designed to thwart the will of the voters by making it impossible for the Governor to effectively govern.

On the Federal level we have witnessed years of obstruction culminating in the absolute refusal of Republican Senators to hold a hearing on President Obama’s nominee to the United States Supreme Court. This refusal was not based upon an objection to the nominee, but as a mechanism to prevent the President from performing his duties.

I see this happening in other areas too.  For example, through binding consumer arbitration clauses, the legislature has removed jurisdiction from our courts for the majority of claims arising from consumer transactions with banks, credit card companies, car dealerships, employment contracts, etc.  The profound impact of this was recently seen when the lawsuits of consumers who were defrauded by fake accounts created by Wells Fargo found themselves unable to sue due to arbitration clauses in their account contracts and a federal statute called the Federal Arbitration Act.

I suspect that underlying all of this is a fundamental nationwide deficit of civics education.  According to a study by the Annenberg Public Policy Center, only 36% of Americans can name all three branches of our government.  This lack of even the most basic civics education and understanding leaves voters vulnerable to misinformation during elections and campaigns such as when an ad claims that a presidential candidate is going to raise or lower taxes. (Taxing and spending is controlled by Congress).  Indeed, it often appears to me that most voters ignore candidates for all offices except president, whom they seem to believe is some sort of temporary all-powerful king.

I don’t know how to solve this problem.  It’s always seemed to me that patriotism should demand more than flag waving. It should demand that we educate ourselves and our children regarding the structure of our government, the people we elect, and the work in which our politicians and bureaucrats are engaged.  True patriotism should demand more than claim that all politicians are crooks, because they’re not.  I ran for office a few years ago and it was an eye-opening experience. While I did not agree with the ideas of some of the candidates, I found the majority to be decent people who were interested in the issues and improving the lives of citizens.   Money in politics is certainly a problem, but voter ignorance and apathy is an even bigger problem.  Additionally, partisan voters, who have given over their minds in exchange for allegiance to a political party that they follow like lemmings, make campaigning based upon ideas extremely difficult, because so many minds are absolutely closed and people vote blindly according to party.

In closing, I want to say that whatever the problems we have in our system of government, we need to be careful and to stay true to democratic principles above all else.  If we’re not careful, we can lose this democracy, and I believe that what comes next will be most unpleasant.

The Wind Beneath My Wings At the Florida Bar President’s Pro Bono Award

It was too late when I realized that the suit I’d chosen to wear had a hole in the bottom of the left pocket rendering the pocket useless. I only own 3 suits and they’re all several years old and coordinated with the pair of brown wing-tip dress shoes that constitute my only pair of dress shoes. I’d already discarded one dress shirt as being too threadbare which cost me time and I’d spent a lot of time trying to find the new tie I wanted to wear that suddenly went missing after being in my hand. I eventually located the new tie hiding out in my sock drawer with no idea how it got there. My wife was handing me a collection of things she wanted me to carry since she had no pockets at all. Her cell phone, a lipstick, her ID in a little plastic case, her keys,… it turned out to be a lot of stuff.  I struggled to find places for all the items. My working pocket bulged and I feared that I would soon have no working pockets at all. I also wondered when my wife decided that my role in life was to be a pack mule?

Barbara Takes My Picture on the Steps of the Florida Supreme Court

We were headed to the Florida Supreme Court for a ceremony in which I was one of couple dozen lawyers who were being honored for our pro bono work.  Thanks to a nomination by Legal Services of North Florida, I was to receive the Florida Bar President’s Pro Bono Award for the Second Judicial Circuit. The entire Florida Supreme Court, less one Justice who was recovering from surgery, would be there along with the president of the Florida Bar.  This was my first time inside the Florida Supreme Court and one of the biggest honors I’ve ever received.  My close friend, James Cook, who is one of the best lawyers I’ve ever known, won the award last year, and the list of previous recipients included the names of several other friends and noted lawyers for whom I have great respect and admiration.

I was very honored to receive the Florida Bar President’s Pro Bono Award for the Second Judicial Circuit

The award ceremony was very nice.  It was dignified without being stale.  The presentation of awards to deserving recipients was punctuated by heartfelt sincere speeches on the importance of pro bono work that held my attention without going on too long or becoming too preachy.  I sat with the other award recipients on cushioned benches inside the well, the area between the railing that separates the spectators’ gallery and the bench where the Judges sit.  When the time came for me to receive my award, they called my name and I walked to the podium where I was presented with a large certificate by the Florida Bar president.  He said some nice words to me, and then shook my hand while a photographer took our photo. As I posed for the photographer I could see my wife, Barbara, camera in hand, directly behind him. As previously instructed by the organizers, I went and stood in front of the bench where the Supreme Court Justices were sitting and waited while they presented the other awards. I breathed a sigh of relief that I managed to get through the process without stumbling or forgetting to zip up my pants.

After the ceremony, there was a photo session with all the award recipients that made me feel a bit like a rock star. There were big complex looking cameras wielded by serious looking photographers. There was Barbara too, with my little Olympus, making sure she documented the experience for me. When everyone was done taking pictures, I joined the crowd of guests in the rotunda area where an incredible reception awaited.  I was especially delighted to see that had those little spanakopita bites that are a favorite of mine. Barbara was waiting for me there and proudly introduced me to a gentleman from St. Petersburg, Florida as her award-winning husband.

Later that night, when the festivities were finished and the routine quiet of our lives had once again returned, I thought about the experience of winning this award. It occurred me that the pro bono cases for which I was honored weren’t only my sacrifice.  In every single one of those cases, my wife Barbara, was by my side every single step of the way. She proofread pleadings, helped me strategize, attended Court hearings with me, encouraged me when I was discouraged.  It’s important to note that although they give you awards for the cases you win, there were other pro bono cases we’ve done that we didn’t win, yet she was always there right by my side.  Losing for me is devastating, but she helps me pick myself up every time. She could have objected to my pro bono work since it takes me away from the money-making cases that we depend upon and there have been many times when we’ve had to pinch pennies to get through.  Contrary to what the insurance companies and their paid-for politicians tell you, the vast majority of trial lawyers are not millionaires.  Most of us live precarious lives, investing our own money while taking on other people’s causes as our own, hoping for a fair judge or jury and the skill to navigate the procedural hurtles required to be allowed to tell our clients’ stories.  Such a life wouldn’t be possible for me without the unwavering support of my wife, Barbara, who remains confident in me even when I start to doubt myself.

I hope that I was able to honor my wife and the other women in my life by marching with 14,000 other people in support of women’s rights.

It occurred to me again on Saturday as I marched through the streets of Tallahassee for Women’s Rights in the rain, one person among a crowd of 14,000, how much I owe in my life to the women who have been part of it.  My wife, mother, mother-in-law, step-mother, sister-in-law, nieces, aunts, sisters, cousins, friends, teachers, nurses, doctors, classmates, clients who trust me to be their lawyer,…the list is endless. So much of my passion for justice on behalf of working-class families comes from growing up in a female-led single parent home.  I’ve witnessed the struggles of the women in my life for equality and justice, and I know that while education and economic well-being provide some protection for women, the inequality never completely goes away.  I also know that I wouldn’t be who I am today, or able to do the things I’m able to do today, without the many women who have given me their love and support throughout my life.

I didn’t get to give a speech at the award ceremony, which was probably a good thing.  I don’t think that I could compete with the great words that were offered.  However, I do want to say something, and that’s thank you to my wife and all the other women who have supported me, trusted me, and helped me to pursue my dreams.  Words simply cannot express my respect and adoration for you all.

Trump and Putin – A Grave Constitutional Crisis

What could be the gravest political and constitutional crisis faced by the United States since the Civil War is emerging with the news that the Russian government tampered with the recent U.S. Presidential election for the purpose of aiding the Trump campaign.

The question in my mind is, what happens if evidence is discovered that strongly suggests that Donald Trump was the knowing beneficiary of Russian interference?  What if that evidence shows a coordinated effort between Putin and Trump to engage in criminal activity of email hacking in order to rig or influence the election in favor of Trump? The outcome of such a revelation, and the ensuing conflict, is almost unimaginable to me.  I am not certain that the United States as we know it today would survive such a scenario.

What's next on the chalk boardSadly, Trump does not seem to be at all concerned about the appearance of impropriety in his ascendency to the presidency.  He brushes that entire matter off as ridiculous and instead denigrates the intelligence community as being completely incompetent.  His responses raise my level of suspicion and concern even higher.

It is interesting to note that the founding fathers were concerned about other nations meddling in the elections and the political life of the United States.  This is one of the reasons the electoral college was created.  Consider the writings of Alexander Hamilton in the Federalist Papers 68 where he discusses the need for the electoral college as a protection against a hostile entity orchestrating the election of an incompetent person to the presidency.

“These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils. How could they better gratify this, than by raising a creature of their own to the chief magistracy of the Union?”

Many states have neutered the independence of the electors by passing laws requiring that they vote in accordance with the outcome of the popular vote in the state.  My cursory review of the limited case law on these statutes leaves me with the impression that the Supreme Court hasn’t seen this as cause for concern.  After all, the electoral college in this day and time is regarded largely as a bizarre artifact whose design and purpose is a mystery to most of us.  Never, in our 240-year history, have we needed the electors to examine the soundness of the voters’ choice. However, we are now facing a situation where it is possible that the electors may need to act to prevent the very harm that concerned Hamilton i.e.: a foreign power controlling the American President.

Of course, there is an incentive for many Republicans to wait until after the electors cast their ballots to deal with this crisis.  Once Trump is in office the remedy changes to impeachment, such as what happened to Richard Nixon during Watergate (note the interesting parallels of criminal election activity in both the current crisis and the Watergate scandal).  Impeachment would remove Trump, but would put Pence into the White House and continue Republican control of the presidency.

The problem is finding a solution that preserves the integrity and confidence in the American presidency.  I believe that the electors should refuse to cast their votes until this matter is resolved, and if the evidence continues to show Russian interference with Trump being more than an innocent beneficiary, then they should refuse to cast their votes for him.

This crisis is bigger than political parties, it’s bigger than policy differences, bigger than the differences that have so recently caused a deep divide between so many Americans.  All eyes are going to be on us as we try to sort out this mess, separating truth from fiction, and determining a pathway forward.  Without great leadership and deep integrity, I fear that the loss of faith in our government will not be survivable for the nation.  Let us all hope that I am incorrect in my analysis.