THE USE AND MISUSE OF PRAYER

Summary: on a government sanctioned day of prayer, we should remember not only how prayer, (especially of the imprecatory “I pray that God will kill you, unpleasantly and right away” variety) can be abused, but also how sometimes prayer can be powerfully prophylactic.  But at a time when all of our discourse has been debased and politicized, those who use prayer as a weapon should remember that they are giving prayer itself a bad name.

By: Paul S. Marchand

Today is the National Day of Prayer.

While, as an Episcopalian, I’m not necessarily a member of a tightly organized religion, I may know a thing or two about prayer.

I know, for example, that I have been prayed for, which can actually be a very sweet, even reassuring, thing, that I have been prayed about, and certainly that I have been prayed against.

When I was in public office, I used to receive charming e-mails from various sources informing me that my death was being earnestly prayed for, either because I was a baby killer, an agent of Satan, an unrepentant and wicked homosexual (and here I had thought I was merely fabulous) , a traitor, a liberal, or maybe I had just voted against someone’s code enforcement appeal.  Such prayers are often known as imprecatory prayers, by which the one doing the praying seeks --- often with a singular lack of success --- to call down the ill will of whatever deity is being prayed to upon the target.

Now prayer, the theologians tell us, can be answered in one of three ways: "yes," "no," and "wait."  And the one thing I can predict with absolute certainty is that at some point the prayers of those who pray for my death will indeed be answered in the affirmative; Benjamin Franklin was right when he pointed out that the only two certain things in life are death and taxes.  Of course, those who use prayer as a weapon of imprecation would be just as happy if I -- and presumably my family and everyone close to me -- were to die, right now, in some particularly horrifying way that could be presented to the credulous as evidence of a wrathful God working out His divine anger on me and those close to me.

Now the better part of a decade of having one’s death prayed for, and being on the receiving end of all manner of imprecation can have a salutary effect of thickening one’s skin.  Some of the best advice I ever got when I entered the vortex of public life was on the importance of developing that thick skin, and of never letting insults or imprecations throw me off my game, especially in a political climate where the cynical manufacture of phony outrage has become a routine staple of our debased discourse.   If I had blown a gasket every time I got an e-mail telling me that my death was being prayed for, or calling down the ill will of God on me, my family, and those close to me, I would never have been able to get any work done, either as a public official or in my private sector occupation.

Perhaps ironically, my own remedy for being prayed against is prayer itself, quiet, private, centering prayer which, pace my atheist and agnostic friends, can be a marvelously effective, powerfully prophylactic way of clearing the emotional cache and repairing the spiritual registry, so to speak.  Thus, I cannot associate myself with those who believe in a “prayer warrior” ethos that prefers imprecation to intercession or petitions for prosperity to the meditative emptying of self and ego that ought to characterize walking humbly before God (Micah 6:8).  Such an ethic of humble emptying, sadly, seems absent from those who believe that prayer is just another kind of M-16.

So, perhaps, I bristle when I hear the phrase “prayer warriors.”  Not only does the phrase call to mind an approach to the divine which seems rather out of character with the broad tenets of the faith a majority of Americans continue to profess, but also suggests a certain predisposition toward militancy that causes one to entertain a certain concern that beyond vocal militancy lies direct action.  The person who believes that he were she is God’s chosen instrument is but a step or two removed from being willing to go from prayer to provocation, being willing to take the phrase “Church militant” all too literally.

For in the end, a militant “prayer warrior” ethic that seeks to enlist God and prayer as activists for a particular temporal cause only winds up giving prayer --- and people of faith --- a bad name.  Those who call themselves “prayer warriors” would remember that we Christians confess a Savior Whom we proclaim to be Prince of Peace, not of war.
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Paul S. Marchand is an attorney who lives and works in Cathedral City, California.  The views expressed herein are his own, and do not necessarily reflect the views of any organization or entity with which he is associated.  They are not intended as, and should not be construed as either religious instruction or legal advice, although he would note as gratuitous counsel that when you kneel to pray, use a prie dieu, it’s a lot easier on the knees, particularly in middle age.

A PREFERENTIAL OPTION FOR BAKERS OVER BANKERS

Summary: On May Day (or Beltane, if you prefer) we need to remember Lincoln’s reminder that Labor is prior and superior to capital.  The bankers at Bain Capital don’t bake bread to feed hungry people.  Bakers do that, and today, we need to revive a preferential option for bakers and others who make real things over bankers and speculators who do not.

By: Paul S. Marchand

Happy Beltane.

If you didn’t know that today is Beltane, don’t feel bad; it’s a Celtic holiday that, until recently, had largely gone unnoticed in Christian and “post-Christian” Europe.

If you did not know that May 1 is Law Day and Loyalty Day in the U.S. you shouldn’t feel bad, either; you are not alone.  They are obscure observances at best, and only exist because during the Eisenhower administration, the Federal government, skittish at the “socialist” overtones of the May Day celebrations of work and workers that happen throughout Europe and the rest of the world, metaphorically called out the forces of law and order to prevent a “socialist” holiday from gaining a beachhead on the shores of the New World.

Of course, the historic irony here is that May Day, as an international day of labor, actually got its start here in the United States, to commemorate the 1886 Haymarket massacre in Chicago, where dozens of labor protesters were gunned down by police.  Nonetheless, our almost obsessional fear of “socialism” has put the United States in the company of a number of right-wing governments that, over the years, have sought to repress or eliminate May 1 as a day dedicated to workers.

Now socialism -a concept of which almost no American has even a working understanding- has been, and remains, a bugaboo to most Americans.  It is what the late semanticist (and sometime Republican U.S. Senator) S.I. Hayakawa would have called a “snarl word,” raising primitive, inarticulate, and angry passions.  Yet, in reality, most Americans would not know a socialist if bit by one. 

Names from the socialist pantheon -August Bebel, Jean Jaurès, Keir Hardie, and Eugene V. Debs, to name just a few- are unknown to the vast majority of Americans, who are taught little and care less about the social changes of the late 19th and early 20th Centuries that established the social paradigms most of society now regards as normal.

Even today, to call something “socialist” is in many quarters to define it as wrong, perverse, and saturated with nameless evil.  Ideologues of the  American Right, those Beltway Bourbons who , as Talleyrand once observed of their namesakes, have learned nothing and have forgotten nothing --- “ils n'ont rien appris ni rien oublié” --- have been remarkably persistent and effective in tarring with the brush of socialism any person or school of thought who differs from their often remarkably retrograde -thoroughly Bourbon- ancien régime views of How Things Ought to Be.

One of the fundamental truths our Beltway Bourbons seem not merely to have forgotten, but to have actively rejected, is that  “[l]abor is prior to and independent of capital. Capital is only the fruit of labor, and could never have existed if labor had not first existed. Labor is the superior of capital, and deserves much the higher consideration.”  These were not the words of a bomb throwing agitator; they were the carefully considered phrases of President Abraham Lincoln’s first Message to Congress.

At a time when the Beltway Bourbons and their Tea Party fellow travelers seem intent upon denigrating the dignity of work and workers by any means necessary, Lincoln’s words become all the more important.  The American right has busily disseminated a narrative that the Ninety-nine percent of us who do not enjoy the spectacular success of the One Percent are, at best, mere slaves to class envy, and at worst, traitors to what should be the established order.

In fact, what angers the Ninety-nine Percent is not that some in our society have enjoyed spectacular success.  Those whose skills or genius have changed the way we do things have earned their success.  What the Ninety-nine Percent correctly resent are the sanctimonious and self-congratulatory posturings of those who -- as the late Texas governor Ann Richards once put it -- were born on third base yet believe they hit a triple, and who now seek to pull up the ladder of their vicarious success behind them.

What angers the Ninety-nine Percent is not necessarily that the system, if honest, may nonetheless produce disparate outcomes, but that increasingly, the system appears to be, and is, rigged.  When it becomes clear that the deal has been crooked, and some of the players in the game have been unfairly disadvantaged by that crooked deal, those who have been cheated are justified in their anger and outrage.

On this May Day, which some in the party opposite would tar with the brush of “socialism,” or worse, we should ask the Beltway Bourbons and their useful idiots in the Tea Party what outcomes they think they should expect from their ongoing and systematic contempt for the workers who teach our children, walk our beats, fight our fires, harvest our crops, repair our cars, build our houses and offices, defend us at home and abroad, or otherwise do the work with which they themselves would not sully their lily white hands.

Eugene V. Debs used to point out that “a bayonet is a weapon with a worker at each end.”  America is what she is today because of the blood, toil, tears, and sweat of millions of workers.  On May Day, we should remember that all of the financial speculation on the floors of all the securities exchanges of all the world will never produce one single tangible, useful object.  Not any of the bankers at Bain Capital can perform the simple task of baking bread to feed hungry people. 

Today, let us remember why we should always have a preferential option for the baker over the banker.

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Paul S. Marchand is an attorney who lives and works in Cathedral City, California.  The views expressed herein are his own, and not necessarily the views of any entity or organization with which he may be associated.  They are not intended as, and should not be construed as, legal advice, though common sense would suggest that if one were marooned on a desert island, one might prefer to be marooned with the baker rather than the banker.

NO BOYS KISSING! A GUT-CHECK TO THE LGBT COMMUNITY, BROUGHT TO YOU BY YOUTUBE.

Summary: after YouTube pulled a video from gay GOP presidential hopeful Fred Karger, for allegedly inappropriate content in the form of same-sex kiss, Mr. Karger was apparently able to intervene to have the video put back up.  But in 2012, an anodyne same-sex kiss should not be so outré as to warrant being censored.  When the lives of LGBT Americans are censored, it creates an impression that we are somehow too dangerous for the body politic.  Such an impression enables bullying, violence, and a climate in which GLBT youth suicide has become endemic.  YouTube owes queer Americans an apology.

By: Paul S. Marchand

You may remember Fred Karger.

He’s the openly gay Republican running an impossibly long-shot campaign for president.  He hasn’t got a snowball’s chance in the Sahara of actually getting the nomination, let alone winning the Presidency, but his campaign has given us a few amusing moments, and more recently, a gut-check about just how much work remains before American queerfolk can be counted as first class citizens in the commonwealth.

A few days ago, Karger’s campaign released a video entitled “Sexy Frisbee.”  Like a previous campaign video, entitled “Demon Frisbee,” this one involved good-looking young people tossing a frisbee.

While “Demon Frisbee” was set in New Hampshire, the new video is set at Venice Beach, with a bunch of generically good-looking southern California young people (of the actor/model/server/rent-person variety).  What made the “Sexy Frisbee” video a little “risqué” was that it contained (OMG!) a rather chaste same-sex kiss.

Apparently, the existence and depiction of a same sex kiss in a political campaign video offended or frightened somebody in the bureaucracy at YouTube, which pulled the video for alleged “inappropriate content.”  Without a considerably greater degree of transparency at YouTube, we may never know whether the decision to pull Karger’s “Sexy Frisbee” video was the result of some management level YouTube employee’s personal discomfort, or (possibly more likely) the result of an organized campaign by homophobes to flag the video as “inappropriate.”

Apparently, Fred Karger has enough juice at Google (the corporate owner of YouTube) that the video has been put back up after he intervened with Google’s lobbyists in Sacramento.  Nonetheless, while we may celebrate a small victory for free queer speech, the fact that someone, somewhere, was able to cause a relatively anodyne political video to be pulled on account of something as minor (for 2012) is a brief, no-tongue, same-sex kiss is still deeply disturbing.

For YouTube and Google, the episode should be more than a little bit embarrassing.  Headquartered as they are in California, which --- Proposition 8 notwithstanding --- is the most diverse and inclusive State in the Union, both YouTube and Google seem not to have understood ab initio how poor the optics were of pulling a video on account of a single, transitory, depiction of same-sex affection.

Certainly, neither the LGBT community nor our straight allies would have expected either Google or YouTube to be so skittish, especially given the presence of numerous YouTube videos depicting rather more intensive same-sex interactions than anything depicted in the Karger video.

For, if nothing else, the episode reminds us that, even in 2012, the existence of queerfolk, and our participation as out people in the body politic, apparently still scares an awful lot of people.  Who would have imagined, with support for marriage equality on the rise, with LGBT people now able to serve openly in the armed forces, and with a new generation of GLBT politicians beginning to pick up the mantle of leadership from such pioneers as Barney Frank, that a simple little kiss could have been so radioactive?  Apparently, we still have a great deal more work ahead of us before we can even begin to imagine ourselves first class citizens in our own commonwealth.

With a little bit more than six months left before the general election, it is not unreasonable to foresee that as much as we have seen women, working people, people of color, the poor, the very young and the very old, and college students, among others, become the targets of right-wing rage, GLBT people will inevitably be targeted in our turn, as we were in the presidential election cycles of 2004 and 2008.

History teaches us that it is always easier to make scapegoats of groups whose existence, history, and narrative are not well known to the larger community.  Integral to much of the effort of the American right to demonize queerfolk is a concomitant effort to prevent people from knowing of our existence, or understanding that we live among our straight neighbors, and share many of the same hopes, fears, dreams, nightmares, tragedies, and triumphs.

By shunting us into a collective closet, it is easy for right wing homophobes to tar us as some kind of highly dangerous Other, engaged in all manner of secret, nameless, obscene activity.  But where there is an obvious and visible LGBT community, where our straight neighbors get to know us, it becomes much more difficult for those right wing homophobes to implant or play to fears that exist only in the imagination.

After all, proximity breeds knowledge; knowledge breeds understanding; understanding drives out bigotry.  When you get to know the two women living next door who brought you cookies when you moved in, it becomes virtually impossible to imagine them as Vampire Lesbians of Sodom.  By the same token, it’s hard to see in the gay couple who kept an eye on your house for you while you were on vacation the kind of over-the-top perverts right wing megachurch preachers dwell on so lovingly -- nay obsessionally-- in their sermons, lobbying, and radio appeals.

So, when YouTube --- and by extension, Google --- let themselves get pulled into a “don’t say gay” mindset with respect to the Karger video, they seem not to have considered that “don’t say gay” merely perpetuates a climate in which the vilest libels, calumnies, slanders, and hate speech come together to create a climate in which queerfolk are targeted, in which long-term GLBT relationships are devalued, and in which the lives of queer teens are often considered of such insignificant value that bullying and queer youth suicide have become endemic problems in school districts all over America.

Because our queer lives matter, and because in a nation conceived in liberty and dedicated to the proposition that all persons are created equal, no one should be forced to live in the shadows on account of who she or he loves, YouTube was wrong to have pulled the Karger video, and should not have taken Fred Karger’s personal intervention to get the video back up.  

YouTube not only has some explaining to do, it also owes Fred Karger and every LGBT American an apology.
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PAUL S. MARCHAND is an attorney in Cathedral City, California, where he lives and works.  He has been involved in LGBT activism for more than 25 years.  The views contained herein are his own, and not necessarily those of any entity or organization with which he is associated.  He was not scandalized by Fred Karger’s YouTube video, so there.  The contents of this column are not intended as and should not be construed as legal advice, though he does counsel those who don’t like the sight of two boys bussing to avert their eyes.

EARTH DAY AT MIDDLE AGE: RESPECTABLE BUT MORE NECESSARY THAN EVER

 (SUMMARY:  After two generations, Earth Day has become as respectable as sensible shoes and droopy cardigans.  Still, at a time when extremists on the right are seeking to undo all the progress we have made on environmental protection and sustainability in the last half century, Earth Day remains as important as ever.)


By:  Paul S. Marchand

It’s funny how something that started almost as a countercultural act of defiance has become a staid, establishment event.

Today is Earth Day.

Time was, Earth Day was associated with hippies, love beads, and the whole exploratory ethos of the latter part of the 1960s.

Of course it’s also funny how so many of the cultural references of the 60s have themselves become almost hopelessly respectable.  You know the 60s have become well and truly domesticated when the music of our youth that our parents yelled at us to turn down or turn off has become the elevator music of our middle age.  The love beads of yesteryear have become museum pieces, and many in my own Boomer generation now gravitate toward sensible flats and slightly droopy cardigans.

But if Earth Day has settled into its own kind of middle-aged respectability, it has not been because the Earth Day ethos failed, but perhaps ironically because it has been altogether successful.

40 years ago, for example, the idea of separating one’s household refuse was regarded as coming close to communism.  When he ran for mayor  in 1961, Los Angeles's Sam Yorty railed against requiring households to separate out their garbage, as had been the case under prior Los Angeles mayors.  While political wags joked that Sam Yorty had been “swept into office on a wave of garbage,” his appeal garnered him landslide support among San Fernando Valley housewives.

Today, the idea of not segregating one’s household waste has come to be well-nigh universally regarded as environmentally unsound.  We recycle almost as second nature; aluminum cans in one container, glass in another, plastic in a third, and paper in a fourth.  More and more of us have replaced incandescent light bulbs with the squiggly, spaghettilike compact fluorescent numbers that, mirabile dictu, actually do last longer (at least in my house).

Yet if many of us have internalized large parts of the Earth Day ethos, and have become more sensitive over the years to the importance of such things as sustainability, recycling, and mitigating the carbon footprint, it appears as if an ever-growing number of our neighbors would like nothing more than to return to those halcyon days when nobody worried about sustainability, recycling, or climate change.

Sadly, the American right has been astonishingly successful in fabricating a narrative in which environmentalism is a dirty word, recycling is for Commies, climate change is a socialist hoax, and the very idea of trying to walk more lightly in the world smacks of the dangerous seductions of Antichrist.  To hear some of our friends on the other side of the aisle tell it, recycling your aluminum cans is almost the equivalent, so to speak, of a comprehensive blasphemy that both denies the existence of God and the virginity of His mother.

Indeed, in the overheated climate of Obamanation that has come to dominate our political discourse, we seem to reach a point at which anything the President or First Lady may say calls forth reflexive disagreement from the GOP.  If President Obama expresses concern about fracking, right-wing columnists and bloggers immediately gush forth with paeans of praise for the process. 

If Michelle Obama takes up the cudgels against childhood obesity, and encourages parents and children to make better food choices, people like Sarah Palin wax wroth, as if to say “you’re not the boss of me; just to spite you I’m going to go and eat an entire can of Crisco, right now.”

And so it is on Earth Day.  As with such issues as contraception, the American right seems engaged in a frantic, if futile, effort to undo all the progress that has been made in terms of environmental consciousness in the last two generations, as if to repeal the 1960s.  It is as if, by trying to deny self-evident truth, or to relitigate matters that had already been considered settled and closed, America’s right wing might avoid having to face the very real challenges confronting the world at the beginning of the 21st century.

But you cannot avoid facing the realities of the 21st century by trying to retreat into the 19th.  As long as long as a large portion of America’s body politic doesn’t get that basic and simple truth, we will still need Earth Day more than ever, even if it has begun to show signs of staid, middle-aged respectability.

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Paul S. Marchand is an attorney who lives and works in Cathedral City, California.   The views expressed herein are his own, and not those of any entity or organization with which he is associated, and are not intended as, and should not be construed as, legal advice. And yes, he does separate out his trash.

RORSCHACH TEST: ON THE CENTENARY OF THE LOSS OF RMS TITANIC

(Summary:  A century to the day after her loss, RMS Titanic has become a Rorschach test onto which we project our own views and expectations.  When all has been said and done, however, perhaps the simplest lesson we can draw from Titanic is the hardest one of all for a technologically advanced race to accept:  we don't own this joint after all.)

By: Paul S. Marchand

Titanic.

 
A hundred years after her loss on a cold, moonless, windless night in April, 1912, the great White Star liner still exerts a seductive pull on the human mind.

My first encounter with Titanic came in the late 1960s, when as a young boy I helped (or perhaps hindered) my father put together a jigsaw puzzle reproducing the front page of the New York Times from the day after Titanic had gone down following her collision with an iceberg in the North Atlantic at 41°43' N 49°56" W.

Years later, I began to build, and still have not completed, a model in 1/350 scale of the lost liner (other life issues, like education and career getting in the way).  At the same time, I read, and re-read A Night to Remember, Walter Lord’s account of the sinking.

Not long before she died, my grandmother, born in Ireland in 1910, told me that she had heard as a child how her family had originally planned to travel from Ireland to the United States aboard Titanic, but a change in plans delayed their voyage from 1912 to 1913, when they made the crossing aboard a different White Star liner.

Like many Americans, I remain fascinated in an almost ghoulish way by the story of the great and ill-fated ship.  My personal library contains a number of monographs on Titanic, as well as on her sister ships, Olympic and Britannic, and my DVDs include both the movie version of A Night to Remember and James Cameron’s epic Titanic, on which a number of acquaintances worked as either cast or crew.

Neither Sophocles or Shakespeare could have written so compelling a tragedy as that which occurred on that cold night of April 14-15, 1912, when the largest moving object ever built by human beings till that time sank on her maiden voyage.

The story of Titanic has become a well-nigh universal Rorschach test for our world and our time; her loss has been interpreted in just about every conceivable way imaginable.  To some, it represents nothing less than God’s punishment upon human pride.  To others, Titanic’s loss represents an omen of the coming Great War, when all the dispensations of an old world came crashing down.  To still others, Titanic’s loss stands as a warning against excessive faith in technology.

We do not engage in such a frenzy of interpretation with any of the other great and terrible shipwrecks of our time.  Whether it be the Lusitania, sunk by a German U-boat in May, 1915 with the loss of almost 1200 souls, the Andrea Doria, the Filipino ferryboat Doña Paz (4,375 dead), or the German liner Wilhelm Gustloff, torpedoed by a Soviet submarine in the closing days of World War II, taking with her nearly 10,000 people, no shipwreck has ever commanded more popular fascination and attention than that of Titanic. 

Rorschachlike, we project onto the tragic events of the sinking of RMS Titanic all of our own fears, insecurities, and political/religious agenda.  The loss of Titanic is, in perhaps the most literal sense imaginable, all things to all people.  Even after a century, we still project on the Titanic our pet theories and conclusions.  All of us have our own personal Titanics.

The story of Titanic’s sinking, in short, has become a morality play from which, for the last century, generations of human beings the world over have drawn a whole variety of lessons, whether well- or ill-taken.  What has made the Titanic narrative so universal is that we have a relatively agreed-upon set of facts surrounding her loss; moreover, the Titanic’s loss occurred in the context of an industrialized time in which faith in the ability of humankind to dominate the uncertainties of nature was perhaps at its apogee.

Of course, some of the lessons drawn from Titanic’s loss have been useful ones, particularly with respect to the technical issues of lifeboats, communications, and iceberg avoidance.  But perhaps the greatest, and most difficult, of all the lessons we have taken from Titanic is the simplest and oldest one of all, expressed in the old English proverb “Man proposes; God disposes.”  Put another, perhaps more secular way, we may not own this joint after all.

A hundred years after that Night to Remember, we still do well to remember that we venture upon the sea at the sea’s own sufferance; we are but guests upon the bosom of the deep, whether we go down to the sea in ships, whether we walk upon the waters on surfboards, or seek to match our swimming prowess against the power of the waves.

The sea, from which our most distant ancestors emerged, still calls us; it still tempts us, and it still reminds us when we venture upon it that in fact we don’t own this joint; the ocean can still kick our ass.

Yet, as much as the ocean can be a stern taskmaster, it also can call forth the noblest impulses of human nature -the capacity for vicarious self-sacrifice, the capacity for compassion, and the capacity to learn from disaster.  After any tragedy, we pick up, we carry on, and we pray for those whom we have loved, whether as family or simply because they were our fellow human beings, but whom see no more.

So, for those who never completed their voyage aboard RMS Titanic a century ago, Requiem æternam dona eii, Domine, et lux perpetua luceat eii. Requiescant in pace. Amen.  Rest eternal grant unto them, O Lord, and may light perpetual shine on them, and may they rest in peace.  Amen.

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PAUL S. MARCHAND is an attorney who lives and works in Cathedral City, California.  He is grateful that his grandmother’s family missed their date with destiny aboard Titanic, and made the crossing on another, less famous White Star vessel.  The views contained herein are his own, and are not intended, and should not be construed, as legal advice, though one should always steer clear of icebergs.

PWNED! Eric Holder’s Adult Response to the Judicial Misconduct of the Children on the Fifth Circuit Bench

By:  Paul S. Marchand

Summary: Eric Holder “pwned” a petulant panel of Fifth Circuit judges with his lawyerly, professional, response to their outburst about the President’s comments on the Affordable Care Act, showing who was the adult in the discussion.  Unfortunately, the panel’s conduct raises issues that may need to be investigated, or even made the subject of articles of impeachment.

On Monday, the President, addressing the issue of the Supreme Court’s review of the Affordable Care Act (“Obamacare,”) urged the Court to give deference to the fact that the legislation had been passed by majorities in both houses of Congress.  Responding to a reporter’s questions, the President said "I'm confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress. And I'd just remind conservative commentators that for years what we've heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint."

As has been noted all over the mainstream media, on the Internet, and in the blogosphere, the President’s remarks apparently got under the skin of a three-judge panel of the Fifth Circuit Court of Appeals in New Orleans, hearing arguments in Physician Hospitals of America v. Sebelius.

Leading the charge, Circuit Judge Jerry Smith, ordered the government’s lawyer to submit, by noon Central Time yesterday, a letter of no less than three pages, single spaced, setting forth the Justice Department’s position on judicial review.  The court’s order was not, mind you, based on any position the government had taken in the litigation, but on the basis of an extrajudicial statement, not made in the case pending before the court, that happened to have been made by President Obama.

Yesterday, Attorney General Eric Holder responded, timely, and in accordance with the directive from the bench, to the Court’s ridiculous order.  The A.G.’s letter can be found on CNN at the following link http://i.cdn.turner.com/cnn/interactive/2012/04/us/doj.letter.pdf?hpt=hp_t2

The A.G.’s letter --written in a dry, professional, objective, legal tone-- contains an analysis that would be agreed to by all but the most hyper partisan right-wing legal scholars.  It properly defends the president, as well as his administration, while carefully avoiding even the appearance of any form of (amply justifiable) irritation at having to waste taxpayer resources responding to a petulant and childish outburst more notable for its partisanship than for its judicial restraint.

In short, Atty. Gen. Holder’s letter resembles the patient, long-suffering response of a mature adult to an adolescent outburst.  In the language (ironically enough) of adolescent computer gamers, the Fifth Circuit panel has been well and truly “pwned” by the Attorney General.  Mr. Holder’s letter, though respectful to the nth degree, nevertheless demonstrates who is the professional and who are the partisans in this transaction.

Within the legal profession, both conservatives and liberals alike were taken aback by the Fifth Circuit panel’s action.  Not only did the panel’s extraordinary order create an impression of inappropriate partisanship on the part of the three judges, especially given the Judge Smith’s use of the politically charged word “Obamacare,” and not only did it raise questions about the judicial temperament of the three jurists, but -- perhaps even more ominously -- it left both lawyers and laity alike wondering just whether there are any limits to the ability of the court to seek out and “punish” extrajudicial utterances that might in some way offend judicial amour propre.

A couple of points are worth considering.

First, the Constitution of the United States prohibits a federal appeals court from reviewing any matter “other than at common law.”  This means, first, that a federal appeals court does not set to review factual determinations, but must confine itself to the facts that appear on the record of the trial court.  Second, it should also mean that the federal appeals court does not sit to resolve legal issues that may be discussed outside of the context of the litigation before it.

In simple terms, that means the court should have no business ordering government lawyers to brief and justify the legal implications of remarks made by the President in the course of the President’s execution of his duties in that office.

Second, the power of any court to punish a contempt is strictly limited.  So far, no one has argued -- at least not seriously -- that the President’s responses to reporters questions about the Supreme Court’s review of the Affordable Care Act came anywhere remotely close to constituting an actionable contempt.  Nevertheless, without any apparent legal justification for doing so, the three-judge panel of the Fifth Circuit has apparently seen fit to engage in a new and highly dangerous form of judicial activism, that of inventing a new form of de facto “contempt.”

This is a concept which every American, whether lawyer or layperson, should consider extremely dangerous.  Does this mean, for example, that if one of the three judges on the Fifth Circuit panel were to read this blog entry and take offense to it that I, or some lawyer arguing before the Fifth Circuit who might happen to agree with me, could be forced to perform some time wasting task similar to that inflicted upon the Justice Department?

Does the court have the right, if its amour propre has been offended, to engage in activity which has a real potential for chilling otherwise constitutionally protected speech? 

Does a court have any legitimate authority, say, if a judge or judges do not like a remark uttered by the President or the Secretary of Defense, for example, concerning the prosecution of our operations in Afghanistan, to force a government lawyer to justify the President or SecDef’s remarks in a written document, and thus effectively impose judicial second-guessing on the conduct of a war?

We rely upon our courts to function as impartial “umpires,” as Chief Justice John Roberts so famously declared.  It is, in the Roberts analogy, the function of a court to call balls and strikes.   While it does not yet appear that that the entire federal judiciary has become politicized, it nevertheless does seem that the longstanding tradition of scrupulous nonpartisanship and impartiality may be disappearing from some of the most important tribunals of the federal judiciary. 
From the Rehnquist Court’s politically motivated decision in Bush v. Gore, to the Roberts Court’s decision in Citizens United, to the apparent willingness of at least four justices to overturn the Affordable Care Act on the basis of Tea Party rhetoric, Americans have seen their Supreme Court appearing to be less interested in calling balls and strikes than in throwing the game in favor of a particular political party.  Does it come as a surprise that significant majorities in polls taken on the issue believe that the Supreme Court will make his decision on the affordable Care Act on the basis of politics, not law?

Perhaps we should give the three-judge panel the benefit of some small degree of doubt; perhaps Judge Smith and his colleagues were simply being petulant.  Perhaps one of them had had a poor po’boy the previous evening, or a bad beignet at breakfast, but even so, mere judicial agita should never be an excuse for judicial misconduct.  But if their petulance was the kind of right wing rant it appears to have been, then such misconduct could certainly constitute potential grounds for investigation or even impeachment.
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Paul S. Marchand is an attorney who lives and works in Cathedral City, CA, where he served two terms on the City Council.  The views expressed herein are his own, and are not intended as, and should not be construed as, legal advice.

LITTLE SNAPPERS: SANTORUM’S SWIPE AT CALIFORNIA, PRESIDENTIAL QUALIFICATIONS, Dr. KING, AND THE MISUSE OF THE APOSTROPHE.

By:  Paul S. Marchand

Sometime Chief Justice Warren Burger used to write short concurrences or dissents to opinions of his Supreme Court colleagues.  Though most of them were never filed, he wrote them to let off steam.  He called them “little snappers.”  Sometimes, we all need to let fly with a little snapper or two.  These are a few of the things that have pressed my buttons of late.

SANTORUM’S SWIPE AT CALIFORNIA

Earlier this week, Rick “Google him” Santorum took a swipe at the University of California, and by extension at California, claiming --falsely, of course-- that he had heard somewhere that at one or more UC campuses American history was not taught.

While a number of bloggers have predicted -- and perhaps rightly -- that Santorum is actually seeking to launch a new war, this one on public higher education, my objection to the Google Man’s comments is founded on my irritation at having my state once again held up as a scapegoat for all the things the right wing considers wrong with America.

You don’t even have to be a Californian patriot to be very concerned that a man who wants to be President of all of the United States thinks it okay to attack any of the United States.  If, which God in His infinite mercy prevent, Rick Santorum is ever elected President, will he try to read California out of the Union with bell, book, and candle?

We know that many in red state America apparently feel a deep, even visceral, dislike for California, and wish us ill.  A President of the United States ought to be above such sentiments.  Santorum again disqualifies himself by playing to sectional hatred.

PRESIDENTIAL QUALIFICATIONS

In a CNN op-ed piece published earlier this week entitled “Three New Rules for US Presidents, columnist LZ Granderson proposed, among other things, requiring “military experience” as a precondition for eligibility. 

Three words come to mind: damn fool notion. 

The idea that only persons with so-called military experience should be allowed to be President would have prevented some of our greatest Presidents from ever seeing the inside of the White House.

Granderson would do well to remember that Franklin Delano Roosevelt, who led this country through the dark days of the Depression and to the brink of victory in World War II, never served a day in the armed forces prior to becoming commander-in-chief.  Granderson should also remember that neither John Adams, Thomas Jefferson, James Madison, nor James Monroe, ever served a day in uniform, yet all are counted among our better Presidents.  Indeed, so ahistorical is Granderson’s view that he tends to forget that those Presidents who have come out a lengthy military experience, such as Grant or Eisenhower, have not been ranked among America’s greatest Presidents.

Moreover, for a self identified gay man to urge the policy Granderson urges is unacceptable.  Given that we have only recently seen the end of the ban on open service by LGBT members of the Armed Forces, does Granderson seriously believe that we should build a barrier to the possibility of a highly qualified GLBT candidate going to the White House simply because he or she was deterred from military service by either 123 Words or DADT?

Sometimes Granderson gets it right, but on this one, he got it grossly, egregiously wrong, and in so doing managed to insult the queer nation of which he is a member.  He owes us an apology.

Dr. KING, 44 YEARS ON

Yesterday was the 44th anniversary of the assassination of Dr. Martin Luther King, Jr..  His shooting was one of the earliest events of which I have a clear memory.  Since then, we seem to have made a few strides in the direction of that goal he so famously articulated, of judging one another not on the color of our skin but on the content of our character.

Yet for every step forward, there seems to be a step sideways, or worse, a step back.  As I had feared, the conversation about the shooting of Trayvon Martin has begun to split along predictable red/blue, left/right lines, racially-charged.  Worse, the process of demonizing a dead 17-year-old boy with nothing worse on his record than having possibly smoked a joint at some point in his life, has become a full throated right-wing juggernaut.

As this process unfolds, we must begin to entertain the possibility that there may have been widespread, systematic obstruction of justice within the very institutions that exist to enforce the law.  Without relitigating the matter further, one must still ask why, after an admitted killing, no proper independent investigation was undertaken immediately after the shooting, why there seems to have been improper ex parte communication between law enforcement and prosecutors, and whether there has been some inappropriate communication between George Zimmerman’s father (a retired judge) and either police or prosecutors.  Something does not pass the smell test here.

Sadly, it seems that in Sanford, Florida, judgments were reached on the basis of skin color, and not the content of character.  Dr. King’s hope for a better future remains unrealized.

THOSE DAMNED APOSTROPHE’S

If you saw the apostrophe in the catchline above, and knew it was wrong, kudos to you.  Let’s review something we should all have learned in basic English grammar: an apostrophe is a punctuation mark, used to indicate a contraction, the omission of a letter from a word (as in punk’d), or possession.  The only time an apostrophe should ever be used to indicate plural when numerals or single, individual letters are being pluralized (as in 1950's or Q’s, for example).  Even then, better style is not to use the apostrophe when numbers are being pluralized.

Unfortunately, we often see the apostrophe being used to designate plural when a simple “s” will do the job: boats, not boat’s, unless of course one is speaking of something belonging to a particular boat, as in “the sailor stood at the boat’s helm,” not “the sailor saw many boat’s in the harbor.”  Yet far too often, we see the pluralizing apostrophe being used by those who ought to know better, or been taught better.

In fine, the use of the apostrophe to designate plural immediately undermines the credibility of whatever point a writer is trying to make by calling attention to that writer’s weak command of grammar and punctuation.

With that, I’ll get off the soapbox, and if there are typos (not typo’s) herein, I’ll fix my own humble pie, thank you.
 

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Paul S. Marchand is an attorney who lives and works in Cathedral City, California.  He has pet peeves (not peeve's), and while the views expressed herein are his own, and not those of any other person or entity, if you have the same pet peeves, good for you.  The views expressed herein are not intended as, and should not be construed as legal advice.