The Fixer

Every so often, news emerges that explains the mixed esteem in which lawyers are held, and the news that Michael Cohen has been Donald Trump’s “fixer” is the latest.

According to Merriam-Webster, a fixer is “a person who intervenes to enable someone to circumvent the law or obtain a political favor.” The less prestigious Wordnik, citing The American Heritage® Dictionary of the English Language, 4th Edition, capture more of the connotations: “A person who uses influence or makes arrangements for another, especially by improper or unlawful means.” Wiktionary, again via Wordnik, goes further: “A person who arranges immunity for defendants by tampering with the justice system via bribery or extortion, especially as a business endeavor for profit.”

Apparently it is “nice work if you can get it.” Michael Cohen says he had just three clients last year: Donald Trump, GOP fundraiser Elliott Broidy and Sean Hannity (who insists he paid no fees).

The most offensive thing is how fixers beslime the legal profession, the true ethos of which is helping clients achieve their lawful objectives by lawful means. (That’s pretty close to the Merriam-Webster definition.) My Fair City’s rumored legal fixers were not held in high esteem by judges and lawyers.

Or maybe the most offensive thing is how the existence of fixers proves that some people, if rich enough, can live “above the law” for a substantial while, and how others, if base and shrewd enough, can get rich facilitating life above the law. How many zillionaires so lived, and died unexposed to any but God, is not known.

I would not trade places with any of them for so parlous and spiritually debilitating a life.

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Reality is that which, when you stop believing in it, doesn’t go away.

(Philip K. Dick)

The waters are out and no human force can turn them back, but I do not see why as we go with the stream we need sing Hallelujah to the river god.

(Sir James Fitzjames Stephen)

Place. Limits. Liberty.

Some succinct standing advice on recurring themes.

Where I glean stuff.

Sins of the fathers

[T]he public debate about how Congress ought to respond to this latest mass shooting is guided by two broad principles. Dubious on their own, they are even more witless when combined. The first is the idea that the most important thing is to “do something.” The second is that we ought to look to high-schoolers for the answer.

This in no way diminishes the barbarity of what happened to the Parkland students. It is, however, to insist on the obvious: As terrible as their experiences were, the attack gives them no special insight into the complex array of public policies that might have prevented the slaughter.

… Is it really so unreasonable to insist that those pushing specific legislation or regulations provide evidence that the something they want done will in fact produce the results they claim?

It’s not just conservatives who have doubts. In an October 2016 article in GQ, the Guardian’s full-time gun-politics reporter conceded she was “shocked by how little evidence there was behind some of the most prominent gun control policies.” The year before, right after the San Bernardino killings, the Washington Post fact checker backed Mr. Rubio’s claim that gun laws would not have prevented any of the major shootings the nation had seen in recent years.

(William McGurn, Our Childish Gun Debate, Wall Street Journal)

I agree with every word of that, but I’ve been disturbed for years by the anti-legislation trope that, in effect, “there’s nothing effective we can do because there already are so many guns out there.” A case against gun control by David French took substantially that tack:

  1. Do people have a right of self-defense?
  2. Does that right include that the self-defense be effective?
  3. If so, you mustn’t ban AR-15s because they are in common use, only law-abiding citizens will yield them up in compliance with a ban, and such a citizen, defending against a criminal’s AR-15, is relatively ineffective if they’ve got something less.

The logic speaks for itself. Few deny the right of self-defense. The whole premise of trying to ban AR-15s is that there are so many of them and they’re so lethal. So only by denying the right to effective self-defense can most people support such a ban.

[Aside: If anyone from the left coast is reading this, I’d also caution you that people who live far from the police station in flyover country, not to mention those who live in rural areas and need to deal with varmints, will not be amused by a ban. Remember “bitter clingers’? Now they’re known as Trumpistas.]

I have no solution to the conundrum, but I now have a convenient myth to explain how we got here (“here” being zillions and zillions of guns protected by the Second Amendment): America’s original sin got us here. It’s especially convenient since, unlike the demonization of the NRA, it’s plausible:

The real reason the Second Amendment was ratified, and why it says “State” instead of “Country” (the Framers knew the difference – see the 10th Amendment), was to preserve the slave patrol militias in the southern states, which was necessary to get Virginia’s vote. Founders Patrick Henry, George Mason, and James Madison were totally clear on that . . . and we all should be too.

In the beginning, there were the militias. In the South, they were also called the “slave patrols,” and they were regulated by the states.

In Georgia, for example, a generation before the American Revolution, laws were passed in 1755 and 1757 that required all plantation owners or their male white employees to be members of the Georgia Militia, and for those armed militia members to make monthly inspections of the quarters of all slaves in the state. The law defined which counties had which armed militias and even required armed militia members to keep a keen eye out for slaves who may be planning uprisings.

By the time the Constitution was ratified, hundreds of substantial slave uprisings had occurred across the South. Blacks outnumbered whites in large areas, and the state militias were used to both prevent and to put down slave uprisings. As Dr. Bogus points out, slavery can only exist in the context of a police state, and the enforcement of that police state was the explicit job of the militias.

(Thom Hartmann, The Second Amendment was ratified to preserve slavery. H/T Lindsey Nelson on Facebook)

It’s tempting to “go full Jeremiad” and revert to Jonathan Edwards’ “Angry God” as the proximate cause of the gun plague and school shootings.

But I don’t know that we need that hypothesis. Sin ramifies. Sow the wind, reap the whirlwind. Poetic justice.

Pick your proverb. The dots connect intuitively for me, even if it’s difficult to articulate.

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Some succinct standing advice on recurring themes.

Where I glean stuff.

Bringing closure

In Hidalgo County, Texas, an 85-year-old ex-Priest has (finally) been convicted of murdering a beautiful and accomplished Latina, Irene Garza, in 1960. The Washington Post story ritually pronounces “closure” before probing “why so long?”

What is this “closure” that gets trotted out in news and commentary after every murder conviction?

It’s some relief that I’m not the only one asking, though until I Googled it, I feared I was. Here’s one exploration:

The idea of closure is powerful. It’s something Arkansas invoked in an April 15 motion that tried to fight a temporary restraining order that McKesson Medical Surgical, Inc., has used to block the use of its drug vecuronium bromide in state executions. (The drug is typically used as general anesthesia to relax muscles before surgery).

“The friends and family of those killed or injured by Jason McGehee, Stacey Johnson, Marcel Williams, Kenneth Williams, Bruce Ward, Ledell Lee, Jack Jones, Don Davis, and Terrick Nooner have waited decades to receive some closure for their pain,” it read.

But even when executions take place, a surviving family’s pain doesn’t disappear with the perpetrator’s pulse.

Death penalty advocates and politicians, including Arkansas Attorney General Leslie Rutledge, argue that when the state executes a person who has committed a terrible crime, the act brings closure to victim’s family. But it’s not that simple.

If you ask murder victims’ families, “closure is the F-word,” said Marilyn Armour, who directs the Institute for Restorative Justice and Restorative Dialogue at the University of Texas at Austin. She’s researched homicide survivors for two decades. “They’ll tell you over and over and over again that there’s no such thing as closure.”

Hypothesis: “Closure” is something politicians and society generally invoke to mask revenge (maybe there’s a better word) as altruism.

Alternate hypothesis from Mrs. Tipsy: It brings closure only to journalists, who don’t have to report on this case any more. (I should solicit her thoughts more often.)

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I would a thousand times rather have dinner with secular liberals of a certain temperament than with a group of religious conservatives who agreed with me about most things, but who have no sense of humor or irony.

(Rod Dreher)

Some succinct standing advice on recurring themes.

Masterpiece Cakes thoughts

The consensus, with a few dissenters, is that the oral arguments Tuesday portend victory for Jack Phillips, proprietor of Masterpiece Cakes. I’m going to assume that for purposes of this blog.

What worries me now is how he will win. There are a number of options, but I’ll just mention three.

  1. The Colorado Civil Rights Commission (or whatever they call it) was biased against Phillips and its decision can’t stand. This has the benefit of being true; the bigotry of one commissioner was manifest. But by the time a case gets to the Supreme Court, who wins this particular case is barely relevant; the case now is about principles that are going to govern cases nationwide. The court never would have taken the case if it was only about Jack Phillips and the Colorado commissioners. It would be terrible if the only result of this case was “commissioners shouldn’t utter their bigotries aloud.”
  2. The Colorado Civil Rights Commission has applied its facially “neutral law of general application” (terms of art) with “an evil eye and uneven hand” (anachronistic terms of art), so the law is unconstitutional as applied to Phillips’ bona fide religious scruples. In other words, he wins under the free exercise of religion clause. This result would be mildly surprising, but the evil eye and uneven hand appear to be there. A provocateur asked another baker for a bible-shaped cake with some of the “clobber passages” inscribed on it. The baker refused. The provocateur filed a discrimination complaint, which he lost, partly because the baker had served other Christians (proving he’s not anti-Christian), though the Commission ignored that Jack Phillips served other homosexuals. (Transcript of Oral Arguments 58-59) This tends de facto to negate “general application,” so a subtle escape route of Employment Division v. Smith opens for Jack Phillips (and presumably for others in Colorado). I’d still hope against this outcome, which would sort of be limited to Colorado, with a cautionary note to other states to enforce their law equally, across-the-board. It’s an invitation to lots more litigation and to set-ups like the Christian provocateur with his clobber passage cake.
  3. Jack Phillips reasonably believed that Craig and Mullins were seeking one of his custom-designed wedding cakes, and the Colorado Civil Rights Commission denied him discovery from Craig and Mullins to prove that. A wedding cake is primarily a festive, celebrative central ornament in wedding receptions, only secondarily food. An artist or artisan cannot constitutionally be compelled to create fruits of his artistry in celebration of something he chooses not to celebrate for any reason. In other words, he wins under the free speech clause (which protects against compelled artistic expression).  This has seemed Phillips best shot since I first learned of the case. It was in the first sentence out of Kristen Waggoner’s mouth on Phillips’ behalf (although she noted that his objection to speaking was religious). One of the little ironies is that free speech has become a powerful protector of dissident Christians who may have weak free exercise cases thanks to our brother, the late Justice Scalia, who took leave of his senses one day and penned Employment Division v. Smith (which turned out to have some escape routes, so it wasn’t as bad as initially feared). The “problem” here is Justices agonizing, some probably insincerely, about “where to draw the line.” That will be the interesting analysis if Phillips wins on free speech/freedom from compelled expression, which I think is the best analysis, but then I’d probably draw the line very, very protectively against compelled speech—maybe further than most of my readers.

Update: I regret rushing this blog, because it made me forget my favorite way Jack could win.

The court could decide that Jack did not refuse service to anyone because of their sexual orientation, but because they wanted him to adorn a same-sex wedding reception (with a custom creation, Jack believed).

Like Option 1, above, this has the virtue of being true. But Colorado equated that with discrimination on the basis of sexual orientation because same-sex marriage is really, really closely correlated to sexual orientation. Thus did it refuse categorically to recognize a vital distinction, thus extending the legislature’s law beyond what it may have intended and setting up this constitutional clash.

There’s some reason to think that may be where pivotal Justice Kennedy is headed.

MR. COLE: … the public accommodations law does not say you must treat everybody; it says you cannot discriminate on the basis of protected categories.

JUSTICE KENNEDY: Well, but this whole concept of identity is a slightly — suppose he says: Look, I have nothing against — against gay people. He says but I just don’t think
they should have a marriage because that’s contrary to my beliefs. It’s not -­

MR. COLE: Yeah.

JUSTICE KENNEDY: It’s not their identity. It’s what they’re doing.

MR. COLE: Yeah.

JUSTICE KENNEDY: I think it’s – –  your identity thing is just too facile.

(Transcript of Oral Arguments 86-87)

I like this possibility because it seems to me that:

  • It leaves intact the core protection of persons against discrimination because of their sexual orientation. (I’ve never been convinced that’s more that a vanishingly rare problem in the realm of public accommodations, but if it is a problem, this covers it.)
  • It gets to the nub of Jack Phillips’ objection and validates it. Jack’s sincere professions of willingness to serve all people, and history of serving all people, got lost in the politics of this issue, with him getting branded just another Christianist homophobe. That was false and, yes, facile. Jack deserved better.
  • It avoids all the parade of horribles and slippery slopes that attend the “what’s artsy enough and what isn’t?” questions. Nobody, artist or not, is discriminating against persons as person if they decline to help provision an event they find objectionable.

Yes, in a few corners of the country, it may be hard for same-sex couples to get vendors for their celebrations, as an amicus argued. But custom cakes, floral arrangements, wedding invitations, photographers and such are “not goods or services like lodging or transportation necessary for full participation in public life,” as Rabbi Dovid Bressman argued in a friend of the court brief.

That gets us back to the heart of this case: the couple’s sense of entitlement. I don’t think that sense commands validation men and women of goodwill.

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I would a thousand times rather have dinner with secular liberals of a certain temperament than with a group of religious conservatives who agreed with me about most things, but who have no sense of humor or irony.

(Rod Dreher)

Some succinct standing advice on recurring themes.

 

Monday, 12/4/17

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Okay, I suppose. If you insist:

2

Caveat: David French is a skillful lawyer and an excellent pundit. So far as I know, his opinions on football rank right up there with some random guy sitting next to you at a bar.

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I would a thousand times rather have dinner with secular liberals of a certain temperament than with a group of religious conservatives who agreed with me about most things, but who have no sense of humor or irony.

(Rod Dreher)

Some succinct standing advice on recurring themes.