Friday, June 17, 2016


One of the things that makes me me is my ability to compartmentalize my life.  Most of the time, we lawyers are spending our time getting paid to deal with other people's problems.  I don't think I could do my job without the ability to separate what I'm doing, when I'm lawyering, from the other things that I do.

And when I have other responsibilities or problems or tough times, if I can't do something about a bad thing right away, I tend to push it out of my active thought pattern until I can do something.

Just don't think about it.

The same goes for events.  Although the case could be made that these times we live in are the greatest times for humans of all time, and I certainly believe that the best for us is yet to come (and my only true regret in life is that I won't live long enough to see what we become), sometimes bad things happen.  And I have to go on, somehow.

Just don't think about it.

A very bad thing happened late in the night last Saturday.  A gunman who apparently had delusions of being affiliated with ISIL, who was a Muslim (although I'm not sure that it's entirely relevant to what happened), and who very probably was fighting some personal issues regarding his sexuality, armed himself with a high-powered rifle, went to a gay bar in Orlando, and opened fire, killing 49 people and wounding 53 others before he was killed by police.

I don't know how to deal with that emotionally, so I haven't.  I've just pushed it back.  That's my process.

 Just don't think about it.

Instead, I've spent more time over the last week than I usually would explaining, yet again, why we need to make some changes to our laws and our processes to try to keep this kind of thing from happening again.  I also wrote a blog entry, which you can read, expressing my frustration with people whose first, and usually only, inclination when hearing this horrible news is to hop onto social media and make sure that everybody sees they are #prayingfororlando.

But I haven't written or spoken publicly about the deep sadness I feel for what happened.

Now, with some space, I have to think about it, and to write about it.

I have more gay friends than I would have thought possible 25 years ago.  I have always considered myself liberal and open-minded to a fault, but for a long time I had a blind spot when it came to homosexuals.  I was for their freedom in theory, and I certainly respected their right to exist without persecution.  I was for gay marriage long before it became legal anywhere in the world.  But on a personal level, I felt uncomfortable around homosexuals.  My immature brain told me that if I wanted a political career--something I considered long before--it would be better not to get too close, to distance myself from people who were pariahs in our society.  If I ever wanted to be elected to high office, it would be better not to have any whispers about my being close with gays.

When I look back on that me, even though I understand the logic behind my rationalization, I very nearly don't recognize myself.  As a general proposition, I've always thought that the best way to act was to be nice to everybody, even the people nobody else is nice to.  Especially the people nobody is nice to.  I never had a problem applying that principle to people who didn't have as much money as I did, or who weren't as smart as me, or who had physical or mental disabilities, or who were of a different race, or who just weren't popular.  But I had a blind spot when it came to homosexuals.  That was something to snicker about, to make cutting remarks, to tease.  I'm sure the work "fag" escaped my lips on more than one occasion.  I really don't know why I was like that.  But I am deeply ashamed of it.

When I came to realize how wrongheaded I was, I changed.  Now, my 40-year-old self doesn't care what people think about me.  I count many gay people as friends, some as close friends (and I wish I had more). Somewhere along the line I began to recognize that if you have any hope of being a good person in this world, you have to be a friend to others first.  If wealth or power or status flow from that, it's great.  But being wealthy or powerful or famous is meaningless if you treat people poorly on your road to getting there.

When I think about what happened in Orlando, I think about N and J and T and D and C and B and E and T and A and R and L and P, and about so many more, some of whom are out and proud, and some who stand with one foot in the closet.  I think about them having fun in a place that is supposed to be safe for them to be, where they can be themselves, not hiding from a society that still treats them as second-class citizens. 

And I think about the violation of their safe space. 

And I weep. 

I almost never cry; I'm not wired that way; but this is an exception.

Just don't think about it, my brain pleads.  I ignore the request.

It could have been any of them.  And for someone out there like me, it was one of them. Or 49 of them. 

It makes me angry.  I'm full-on livid, in fact.  You see, we're not done yet.  We're on a long journey toward equality.  We've taken a few really big steps, but the road ahead of us is perilous and filled with obstacles. I can see the future we are working toward, and it is beautiful.  And 49 people who should've had the chance to see it, won't.

And it reminds me that I am mortal.  I will not see how it turns out.  None of us will.  And that is my sadness.

But we can't stop.

Monday, June 13, 2016

Don't pray. Act.

I'd like to think that I need to know about humanity can usually be gleaned from my Facebook feed.

But lately I've been giving some consideration to turning it off for a bit.

It was predictable, you see.  A horrible thing happened over the weekend in Orlando.  The most visible reaction on my Facebook feed was "Prayers for Orlando."  Sometimes it was styled with a hashtag:  #prayersfororlando.

I try really hard to accept that as the response people have to a tragedy.  There are many well-meaning people who want to express their sorrow, their grief.  For some, it is merely to say, "I'm thinking about you, and I acknowledge the grave thing that has happened to you."

If you are a believer, I suppose it's a rational response.  I accept that those who offer it are entirely pure-hearted about it.

But when I read it, or hear it, I get this terrible heavy choking feeling in the pit of my stomach.  It's a physical, visceral response to these stimuli, like all my internal organs are being squeezed and shunted to the side as the hurt and the anger and the sadness wash through me.  It is terrible and disgusting, like a vomit that won't come out. 

See, I've heard it before.  Yesterday it was "Prayers for Orlando."  Before that it was "Prayers for the Netherlands."  And before that it was "Prayers for Paris."  And "Prayers for San Bernardino."  And Prayers for Oregon."  And "Prayers for Charleston." And "Prayers for Paris" again.

Lots of prayers.  Poor return on the investment, mostly because—and I recognize that this is an uncomfortable truth—prayer is, for many people, what you do when you can't, or won't, or don't want to, do anything else.

So, don't pray.  Don't pray for Orlando.  Don't pray for anywhere else in the world that has suffered this kind of violence.  Don't pray for war-torn areas, for refugees fleeing the destruction of their homes, for famine-stricken areas, for those suffering from disease.  Because all of those prayers are meaningless if all you're going to do is pray.  They mean nothing if you're not going to back them up with action.

Give blood.  Donate money.  Volunteer.  Ask someone who's hurting what you can do to help.  Advocate for better laws.  Vote. 

When you hear someone say that the people killed or injured in Orlando deserved it because of their lifestyle, speak up and say no--no one deserves this.

Write. Speak. Spend. Vote. Give.

Then grieve.  Then resolve to make the situation better, and do something else that moves us toward that.

And once you've done something, if you want to pray, go ahead.

But not before.

Tuesday, June 7, 2016

You be the judge

Once, when I was a young attorney handling a big case by myself, I had a hearing in front of the judge on some matter.  Although my presentation was on point and I thought I had the better end of the argument, the decision went the other way, as happens sometimes.  It was disappointing, to be sure.

I mentioned this to my mother soon after getting the bad news, and her reaction was to ask if the judge had been bought off.  I laughed.  "No, that doesn't seem likely," I said.  While I appreciated her being my advocate, the truth is that most judges aren't crooked at all.  They're human beings, and they come to the job with certain prejudices and experiences that creep into the decision-making process.  Almost all judges work hard to look at cases objectively and to render fair decisions.  It's an extremely difficult job that's easy to get wrong.

Knowing what I know about judges, and about federal judges in particular, I was made very uncomfortable with the comments made by GOP presidential nominee Donald Trump about the federal judge who's overseeing a case in which Trump and one of his companies are defendants.  Trump is the defendant in a class-action suit brought on behalf of people who were allegedly defrauded into paying Trump thousands of dollars as part of "Trump University."  Trump University was a seminar series, the stated primary purpose of which was to teach people how to make money by investing in real estate.

Trump's customers, or perhaps the better term is "marks," paid his company between $1500 and $35,000 per course and received...well, not much by way of actionable education.  There is a substantial chance that they were duped by Trump's public persona as a high-flying billionaire who transforms everything he touches into gold (maybe even literally) into thinking that Trump is some sort of financial guru.  It's possible that Trump isn't even actually a billionaire (much less being worth the $10 billion he claims), and his current financial standing, whatever that might be, is primarily the result of being handed his slumlord father's real estate empire and managing not to bungle it entirely away over the last 40 years.

I can't imagine paying anyone $35,000 to tell me how to make money (because, among other things, there is a substantial chance that the advice is going to be something like "get people to pay you $35,000 to tell them how to make money"), and I'm not sure how much sympathy I have for people who bought into the Trump myth.  Legally speaking, however, the fact that a fool and his money are soon parted doesn't mean it isn't fraud when you part a fool from his money.

Which brings us to this class-action case in California.  The judge in that case, Gonzalo Curiel, recently ruled that the case could go forward to trial (and will sometime later this year, after the election).  Procedurally, this was simply the denial of a motion for summary judgment.  Civil cases can be ended early, without a trial, if it is clear that one side or the other cannot raise enough of a dispute about the facts to justify putting those facts to a jury.  Juries decide which side's version of the truth is more likely than not and give a verdict for the plaintiff or the defendant.  The judge decided that there was enough meat on the bone, so to speak, to allow the plaintiffs' case to proceed to trial.

By the way, that's a perfectly normal thing to happen.  Summary judgment happens a lot in weak cases, but the defendant asks for summary judgment in almost every case, and it's denied in every case that actually goes to trial.

The disturbing comment on this situation was this:  Trump accused the judge of bias against him because the judge is "Mexican."  This is a superficially attractive argument.  After all, Trump has a long history of outrageous comments about Mexicans in particular.  Early in the campaign, he indirectly accused most Mexican immigrants to this country of being "rapists."  He has made the building of a huge wall along the U.S. border with Mexico--at Mexico's expense, no less--the centerpiece of his campaign.  So you might reasonably expect a Mexican judge to be justifiably biased against Trump.

Here's one problem with that:  Gonzalo Curiel's parents were (legal) Mexican immigrants to this country.  He was born in Indiana.  He is an American. He is not a Mexican.  You might refer to him as Hispanic, or as Latino, or as "having Mexican heritage."  But he is just as much an American as anyone else who was born here.

But that's not even the worst problem with Trump's comment.  Trump's whine about bias is off-putting, and it smacks of sore-loserism.  But when you flip it on its head, it is overtly racist.  What Trump is really saying is that only a white judge is capable of being fair in this case.  After all, the only things we really know about Judge Curiel, from Trump's perspective, are that (a) he's "Mexican" and (b) he made a decision in the case that Trump didn't like.  The implication is that a white judge would've made a different decision because he wouldn't have been biased.

In case you might be thinking that this assessment of Trump's comment is somehow unfair, you should also be aware that Trump later doubled down by saying that he would have similar problems with a Muslim judge.  (Trump has proposed barring Muslims from entering this country--a sort of religious test for immigration and tourism.) Again, the implication is that only a judge that looks like Trump is qualified to decide whether Trump committed fraud or not.

Defendants whine about "unfair" judges all the time—they'll do anything to excuse their misconduct or to justify why they shouldn't really be held to account for what they did.  But the way Trump has chosen to handle this, the point he's decided to make, the hill he's decided to die on, illustrates that he is perfectly comfortable in the clutches of overt racism.  And that's not what we need in the White House.  We can barely stand having it in the country at all.