An Exception to the Rule

The Preamble to our Constitution speaks of forming "a more perfect Union."  I read that scientists are perfecting DNA manipulation to make us more perfect human beings.  I suppose that would go a long way in achieving the Preamble's goal. But even the "framers" knew that absolute perfection is an impossible goal.  "More perfect" suggests something short of perfect.  Making what is perfect more perfect may be perplexing, but in Lane County v. Oregon, 74 U.S. 71, 76 (1869), the U.S. Supreme Court clarified the phrase:  "The people, through [the Constitution], established a more perfect union by substituting a national government, acting, with ample power, directly upon the citizens, instead of the Confederate government, which acted with powers, greatly restricted, only upon the States." 

Ignoring for a moment the logical hurdle in making people "more perfect," if DNA management could make judges more perfect, they likely would not be reversed by higher courts. Of course that assumes that the DNA of all judges on lower and higher courts was managed to produce "more perfect judges."  I have a few U.S. Supreme Court justices in mind. And I might include a state Supreme Court justice now and then.     

        And if lawyers were subject to the same DNA management, they would not bring frivolous or even "doubtful" cases.  And because people would be less likely to be negligent in their professions or daily conduct, we could dispense with courts. That would free up at least 1.4 percent of California's budget.  And we might even have a Congress that works to achieve something other than its own destruction. 

        I know this all sounds far-fetched. That is because it is.  Our perception of what is best, or who is best, can change course and direction like a flock of feral parrots, or a school of sardines.

This sudden shift in direction occurs even with our perceptions about ourselves.  If you are like me, what appears certain at one moment may be uncertain at the next.  It's called changing one's mind.  And this in turn calls to mind my recurrent refrain‑‑ certainty is … uncertain.  But changing one's mind implies that one has not figuratively or actually lost one's mind.

        Often I ask, "Where is it?"  The inquiry refers to my mind or my cellphone.  At least there is an app, "Find My Phone."  No app to find my mind.  Apps don't work when one's mind is in outer space, let alone another galaxy. Even when my mind is nearby, like when it is hiding under the desk, it is hard to hold on to when discovered.  I will grab it, but it squirms and wiggles out of my grasp.  Now and then I have questioned whether it exists.  But even when all minds are in place and, for the sake of argument, "intact," what they perceive can be far different than the reality behind the appearance.  Plato wrote about this phenomenon in The Republic.

Our perceptions about public figures can change when we learn more about the real person behind the exterior persona.  And no one can be at the top of his or her game all the time.  One big mistake can quickly shatter a person's positive public image. 

        William Mulholland is largely responsible for the creation of Los Angeles as a large metropolitan city.  He built the 233-mile aqueduct that brought water from the Owens Valley to Los Angeles.  A winding road called Mulholland Drive separates the "Valley" from the rest of Los Angeles is named after him.  I can attest that at night this "drive" was extremely important to teenagers in the 1950's.

        Mulholland was an international star for his engineering achievement.  He was asked to run for mayor of Los Angeles.  He refused with a statement that is one of my favorite quotes: "I'd rather give birth to a porcupine backward."  Mulholland's reputation plunged (pardon the expression) from super star to pariah 12 hours after his assessment that the St. Francis Dam was safe.  That is when the dam collapsed.  Six hundred people died.  Mulholland was an expert until he was not. 

        On a lighter note, A.A. Milne created Winnie-the-Pooh, my favorite teddy bear.  Pooh was also the favorite teddy bear of Milne's son, Christopher Robin Milne.  Can you imagine that such delightful characters as Winnie, Tigger, Eeyore and Piglet could later be involved in copyright and licensing litigation?  Yes, I guess you can.  Pooh characters became a multimillion dollar business.  My dear friend, the late Federal District Court Judge Florence-Marie Cooper, decided the case, ruling that the Disney Corporation had trademark and copyright rights, but was obligated to pay royalties.

        One might think that Milne's son Christopher had an idyllic, happy childhood and a warm loving relationship with his father.  But that did not happen.  Christopher had an unhappy childhood and wrote that his father was aloof.  Christopher is reputed to have said that his father's "heart remained buttoned up all through his life."  

        Around 15 years ago I wrote about John James Audobon and his seven volumes of paintings titled "Birds of America." 

He brought joy to countless bird lovers who named their society after him.  They trek through the countryside with their binoculars to glimpse the endless variety of birds soaring above them. 

Have you ever wondered how Audubon could paint in such fine detail this vast variety of birds?  How did he get close enough to a bird to even outline its beak before it flies away? My research revealed that the passionate bird lover Audubon shot the birds dead.  Into the bodies of the lifeless birds he inserted wires that he manipulated to make them look like they were flying.  Audubon killed birds to illustrate them alive.  I offer this story neither to praise nor condemn Audubon's "artistic" practice.  I offer it merely to illustrate (again pardon the expression) how perceptions about people are not always accurate.  Our judgments about people we know only through reputation and the media are best formed with a dose of uncertainty, if not skepticism.  

        This takes me to judges. Predicting how they will rule on cases is a good guessing game.  During the mid-1960's when I was in practice, I appeared in a few cases before the federal judge  Charles "Charlie" Carr.  From the bench he would lean into the microphone and lament in a thundering stentorian tone that the Warren court was leading us "down the primrose path to extinction." 

I expected Judge Carr to be highly prosecution oriented, but that was not necessarily the case.  I recall one Monday when he was presiding over a trial setting hearing on a criminal case.  He told the defense attorney the trial would be on Thursday.  The defense attorney asked, "Thursday of what month your honor?"  Judge Carr replied, "next Thursday."  As the attorney was about to faint, he stammered, "but…but…"  Judge Carr had already turned to the deputy U.S. attorney, who had been a classmate of mine.  "Take defense attorney up to your office right now, open your files, and show him everything."  "Everything?" blurted out the U.S. attorney.  Judge Carr had already called the next case.  A few days ago, some 50 years later, a State Bar panel is "pursuing a requirement that prosecutors turn over exculpatory evidence to defense attorneys."  See Daily Journal Oct. 26, 2015.  I now think of him as the prescient Judge Carr.

Justice Scalia often writes scurrilous dissents deriding his colleagues with ridicule and scorn.  One might expect him be to be disagreeable, unpleasant and unlikeable.  I met Justice Scalia several years ago and we spent about 10 minutes together. I experienced what others have said about him when he is off the bench.  He is warm, charming and engaging. 

This teaches us not to jump to conclusions about others, an important point for all judges and lawyers to keep in mind.  No person is always what he or she seems.  Our heroes can fall at any moment.  I apply this rule to everyone with no exceptions…. well, one exception comes to mind.  And that in turn invokes a conflicting rule: the rule that there are always exceptions to rules including those that have no exceptions.  Oh I almost forgot to mention to whom the exception applies: Justice Ruth Bader Ginsburg.  Anyone know of a good tattoo parlor?