Not Since Law School

So I’m in court, doing an eviction. The tenant gives a sob story and indeed breaks down, sobbing. It’s a heart-wrenching and depressingly credible claim of a recent medical challenge in her family. She’s just begging for some time. I get a nod from my client and offer to give the lady three extra weeks to move out.

That’s when I hear someone hissing.

Lawyers and law students will recognize this instantly. It is the signal made from the back row of a law school class when one student morally disapproves of what another is saying. I’ve not been hissed at since law school because attorneys are supposed to be mature enough to understand when a brother or sister attorney is just doing his job.

I’d been hissed at enough in law school that I pressed on and got my client his judgment (and gave this woman, who I genuinely felt sorry for, the three weeks my client agreed to). But it was one of those times I wanted to just stop what I was doing, turn around, and say, “Really?

Monday Trivia #49

Seventeen states — Alabama, Alaska, Colorado, Delaware, Florida, Georgia, Hawaii, Idaho, Iowa, Massachusetts, Mississippi, Missouri, Ohio, Oklahoma, South Dakota, Texas, and Utah — lack something that the remainder of the states in the U.S.A. possess. What is it?

Bitter Hospitality

In his powerful biography of Peter I Romanov, Robert Massie puts words in the mouth of the czar: “I will drag you, kicking and screaming if need be, into the modern world.” Peter could do that to his own people because he was one of them. By our standards, Peter was a hereditary monarch, a military dictator. But by the norms and culture of his own people, he was the man the Russian people recognized as their legitimate ruler.

We cannot make a similar claim to legitimacy over Afghanistan as Peter could over Russia. And it’s high time we recognized that.

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Clearing Out The Clippings, No. 30

In the autumn of the preceding year, I had form’d most of my ingenious acquaintance into a club of mutual improvement, which we called the JUNTO; we met on Friday evenings. The rules that I drew up required that every member, in his turn, should produce one or more queries on any point of Morals, Politics, or Natural Philosophy, to be discuss’d by the company; and once in three months produce and read an essay of his own writing, on any subject he pleased. Our debates were to be under the direction of a president, and to be conducted in the sincere spirit of inquiry after truth, without fondness for dispute, or desire for victory; and, to prevent warmth, all expressions of positiveness in opinions, or direct contradiction were after some time made contraband, and prohibited under small pecuinary penalties.

– Benjamin Franklin

Clearing Out The Clippings, No. 28

When your biology changes, so can your decision-making and your desires. The drives you take for granted (“I’m a heterosexual/homosexual,” “I’m attracted to children/adults,” “I’m aggressive/not aggressive,” and so on) depend on the intricate details of your neural machinery. Although acting on such drives is popularly thought to be a free choice, the most cursory examination of the evidence demonstrates the limits of that assumption.

– David Eagleman

Radical Liberal Judicial Activist Usurps Democracy; Foundations Of Republic Itself Threatened

U.S. District Court Judge Jeffrey White today ruled in favor of the plaintiff in the case of Golinski v. Office of Personnel Management. Karen Golinski is a research attorney for the U.S. District Court of Appeals for the Ninth Circuit. Her colleagues with opposite-sex partners may enroll their spouses in the health insurance program that she, as a Federal judicial employee, enjoys, so she attempted to enroll her wife, Amy Cunninghis. And was denied, with the Office of Personnel Management citing the Federal Defense of Marriage Act (“DOMA”) as justification. So she challenged DOMA under the Federal Equal Protections Clause.

The Attorney General refused to defend the law, so a defense of the law was proffered by a group called the Bipartisan Legal Advisory Group of the United States House of Representatives (“BLAG”) offered the defense on the merits. BLAG attempted to argue that the law was subject only to the deferential rational basis review, and suggested four reasons why DOMA survived that review, and Judge White offered three more he thought up all on his own: 

  1. Congress might have wished to encourage responsible procreation and child-rearing by providing or preserving a special status for heterosexual marriage;
  2. Congress could legitimate hope to defend and nurture the cultural institution of traditional, heterosexual marriage;
  3. Congress is entitled to defend traditional notions of morality, which do not sanction same-sex marraiges; and
  4. Congress could believe DOMA is necessary to preserve scarce government resources.
  5. Congress might have wished to preserve the “traditional” definition of marriage while the several states dealt with the issue of same-sex marriage according to state laws;
  6. Congress could have chosen caution as a prudent path in the face of social divisiveness; and
  7. Congress might have wanted to provide a uniform rule applicable to all the states that created consistency in the implementation of Federal law.

BLAG sort of won the first round of the fight — instead of strict scrutiny, Judge White applied a “heightened scrutiny” but not a strict scrutiny standard to all of these potential justifications to DOMA. Under this standard, a challenged law is valid if the law is “substantially related to an important governmental objective,” provided the objective is actual and not merely theoretical. And then Judge White found that DOMA could not meet that threshold on any of these seven potential theories. Rather, he found that the law was motivated by Congress’ moral disapproval of homosexuality and noting that in the floor debate over DOMA, homosexuality was called “immoral,” “depraved,” “unnatural,” “based on perversion,” and “an attack upon God’s principles;” according to DOMA’s proponents in Congress, “Allowing for gay marriages would be the final straw, it would devaluate the love between a man and a woman and weaken us as a Nation,” while in the Senate the stakes were described as “the moral and spiritual survival of this Nation.” In short, open animus against homosexuals was the primary motivation behind DOMA.

Judge White proceeded to analyze each of the seven grounds proffered, and found them both wanting in relation to the arguments actually considered by Congress when debating DOMA, irreconcilable with objective reality, and not congruent with reason and logic. He issued an order prohibiting anyone at OPM from refusing to enroll Amy Cunninghis, as the wife of Karen Golinski, in the insurance or other benefits programs on offer to employees of the Ninth Circuit.

Judge Jeffrey White was nominated to the United States District Court for the Northern District of California by President George W. Bush on July 25, 2002. There was no roll call vote on his confirmation.

Clearing Out The Clippings, No. 27

Credit should go with the performance of duty, and not with what is very often the accident of glory.

* * *

Of course those who stayed had done their duty precisely as did those who went, for the question of glory was not to be considered to the faithful performance of whatever was ordered; and no distinction of any kind was allowed in the regiment between those whose good fortune had been to go and those whose harder fate it had been to remain. Nevertheless the latter could not be entirely comforted.

– Theodore Roosevelt