Thursday, May 28, 2009

On My Daughter's Graduation

My daughter is graduating from high school today. Although this is but an intermediate step in her education and life, the feeling is overwhelming. Earlier in the school year, parents wrote letters to their daughters, and the letters were given to them during a retreat. To commemorate my daughter's graduation, here is my letter to her. (You will note that we never broke the kids or ourselves of the habit of calling us "Mommy" and "Daddy." Maybe we're just hanging on to an earlier time.)

September 29, 2008

Dear Tori,

Words cannot express how proud I am of you and how much I love you. You are my daughter, my first-born, and a true light in my life.

We waited so expectantly for you 17 years ago, and it seemed at times that you didn’t want to be born. Eventually, however, you emerged, a beautiful gift. Of course, even that wonderful day involved me getting in a little trouble – you were crying in the delivery room and I was talking to you, saying soothingly, “Victoria, Victoria,” but you kept crying until I said, “Gator,” at which point you stopped instantly, recognizing your pre-birth name. Sorry about that.

The 17 years since have come and gone with astonishing speed. I remember vividly how, as an infant, you loved to watch football and congressional hearings, and you loved to sleep in my arms (a confession – I loved it more than you did). Your years in day care and “Carousel” and kindergarten and St. Thecla and now Regina have flown by, although I know there were times when you thought they would never end, and there were times when we thought we might not make it to the next step. But that is all part of life and part of family and part of love – enduring, being constant, and always remembering that we are together – forever – as family.

As I think about you over the years and reflect on you now, the word that keeps coming to me is “blossom.” You are so beautiful, physically, emotionally, and intellectually, it is as though you have simply blossomed into an extraordinary young woman. I know, of course, that it hasn’t been simple, and that the years ahead won’t be simple, but I am absolutely confident that you can handle anything that comes your way. And you know you can always count on me (and Mommy) to be there for you.

As far back as I can remember, Mommy and I have stressed the importance of building a good foundation that will give you the best possible options in everything you do, and we have done our best to see that you have had the opportunities to do the things you want to do. It may not always have seemed like it, but everything we ever did, every decision we ever made, was with one question in mind – will this guide Tori in the right direction? From what I can see, you are not only headed in the right direction, you will define the right direction.

I have a post-it note on my desk from a young lady that says, “Never stop dreaming. You can do anything.” You gave me good advice there, and I hope you remember it. Tori, only you can limit your future. Never let anyone else define it for you or put any limits on it. You will go as far as your imagination and determination can take you.

As I may have mentioned before, the poet Robert Browning once said, “a man’s reach should exceed his grasp, or what’s a heaven for?” The idea is not to grab what is easily taken, but to strive to go farther than we think is possible, to reach for heaven. That thought is something to keep in mind as you go about the task of preparing for and achieving your future – push yourself, do more than is necessary, and always expect the best from yourself.

With all of its trials, life is beautiful, and the stresses of life emphasize the beauty of life’s most wonderful moments. Tori, to me your 17 years have been one of life’s most beautiful and wonderful moments, and I can’t wait to see what the future will bring.

You know, Mommy and I have tried to raise you to be independent, but there is a big part of me that is not looking forward to you leaving for college next fall. Honestly, I don’t know what I will do when you leave home. The house will seem empty, and I will miss you more than you could possibly know. And it is that realization that underscores further what an incredible young woman you are.

I don’t have any specific dream for your future, only the transcending hope that you will be happy (and a Republican, but that’s redundant). Nothing is more important to me than your happiness, but I want you to remember that happiness is the result of achieving your goals, not a goal in and of itself. There is no such thing as happiness without accomplishment; happiness is never empty. When I say “accomplishment,” I am referring to accomplishing goals of, for example, education, career, marriage, or children.

There is a book titled, “Women and Their Fathers” by Victoria (coincidence?) Secunda. In chapter one, she wrote, “When a father gives his daughter an emotional visa to strike out on her own, he is always with her. Such a daughter has her encouraging, understanding daddy in her head, cheering her on — not simply as a woman but as a whole, unique human being with unlimited possibilities.”

That is you, honey – a whole, unique human being with unlimited possibilities. I will always be here for you, Tori, cheering you on, and I will always love you, unconditionally and forever.


Wednesday, May 27, 2009

He Rejected Tinkerbell For This?

Since David Souter announced his retirement from the U.S. Supreme Court, much speculation centered on whether The One would nominate Gov. Tinkerbell to fill the open spot. Of course, the fact that she has no judicial experience, has never accomplished anything beyond getting elected (a quality she shares with The One), and has driven Michigan's economy straight off a cliff did not disqualify her from consideration. And there is the arguable point that, far from excluding her, Tink's tax problems (hat tip to Nick for some excellent reporting) gave her instant entree to the short list.

Nevertheless, despite her evident lack of qualifications, Tink was passed over for Sonia Sotomayor of the almighty Second Circuit Court of Appeals. The Second Circuit is based in New York, and it is common knowledge that, for liberals, the source of all wisdom and coolness is New York. Moreover, how could The One ignore a judge who uttered these beauties:

During a panel discussion at Duke in 2005: "All of the legal defense funds out there, they're looking for people with Court of Appeals experience. Because it is -- Court of Appeals is where policy is made."

At UC Berkeley in 2001: "I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn't lived that life."

So, courts make policy and Latina females make better decisions precisely because they are Latina females, which gives them a richer experience than others. Imagine that latter quote reversed -- "I would hope that a wise white male with the richness of his experience would more often than not reach a better conclusion than a Latina woman who hasn't lived that life." What a firestorm that would cause!

Still, one might say that this is all quibbling on the margins -- what about Sotomayor's actual performance on the bench? Uh, well, not good. She has had eight of her decisions reach the U.S. Supreme Court, and six of them were reversed. One was upheld, and one is still pending. This is a record of reversals on a par with the notoriously awful Ninth Circuit from California. For the sake of fairness, though, let's look at the latter two.

In Knight v Commissioner, the issue was whether certain fees incurred by a trust were fully deductible or deductible only to the extent they exceeded 2% of the trust's adjusted gross income. Writing for the Second Circuit, Judge Sotomayor affirmed a Tax Court ruling and held that the expenses were subject to the 2% floor, reasoning that the expenses could be incurrd if the property was held individually as well as in trust. Although the Supreme Court affirmed the result in Knight, it strongly criticized Sotomayor's reasoning, finding that it "flies in the face of the statutory language," a fact which "strongly supports rejecting the Court of Appeals' reading [of the law]."

Even though the Supreme Court affirmed Sotomayor in the Knight case, the result is still troubling because it shows she will jump to conclusions without regard to - and even in spite of - statutory language to the contrary. The fact that she accidentally careened into the correct conclusion in Knight is of little comfort.

The case of Ricci v DeStefano is currently pending in the Supreme Court, and a decision is expected in June. In this case, the city of New Haven, CT, sought to fill vacancies in its fire department. Hiring and promotions were required to be based solely on merit as determined bya competitive examination, so New Haven hired an outside testing firm to develop the exam. Despite their best efforts, however, the results of the exam were racially disparate such that all of the promotions would have gone to white firefighters, with one or possibly two going to a Hispanic firefighter. No African Americans would have been promoted.

Faced with this potential result, the city refused to certify the results of the exam, such that no firefighters were promoted. The city justified its refusal by claiming that, if it certified the results and promoted the white firefighters, it would face a discrimination lawsuit on the grounds that the test, though facially neutral, had a disproportionately negative impact on minorities (also known as a "disparate impact" claim). The firefighters who would have been promoted then sued, arguing "reverse" discrimination.

The Second Circuit affirmed dismissal of the firefighters' lawsuit. Judge Sotomayor's opinion merely adopted the District Court's ruling, without adding anything substantive. The dismissal was based on the conclusion that the city had a good faith reason for not certifying the test -- it was afraid that the minority employees who were not promoted would sue the city, claiming the test was discriminatory. Therefore, the city was justified in discarding the test results solely because of the race of those who passed.

If left standing, therefore, Ricci supports the proposition that a city may discriminate intentionally if it believes that not doing so will leave it open to a claim that it discriminated unintentionally. This, despite the complete absence of evidence that there was anything invalid about the exam.

And, oh, remember how The One wanted a judge with "empathy"? He said: ""We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges." Try this on for size, about the lead plaintiff in the Ricci case, who was passed over for promotion, a decision affirmed by the empathetic Sotomayor (as related by Emily Bazelon):

"Frank Ricci is a 34-year-old "truckie"—he throws ladders, breaks windows, and cuts holes for New Haven's Truck 4. His uncle and both his brothers are firefighters. He studied fire science at college. He has dozens of videos about firefighting tagged on a Web site he set up to recruit for the department. He is also dyslexic, which means that his high score on the promotion test was especially hard-won."

So much for empathy, or maybe the other applicants were more sympathetic. How do you measure someone's empathy-worthiness?

Eight decisions -- 6 reversals, 1 affirmance with her reasoning roundly criticized, and 1 decision on life support at the Supreme Court. Oh brother.

Sotomayor and Tink do have a couple things in common. They both claim to be Catholics and are certainly pro-abortion. And, after 5 years of Sotomayor on the Supreme Court, there's a good chance we're "gonna be blown away."

Tuesday, May 26, 2009

The Michigan GOP - A False Dilemma and A Positive Vision

An article in the Detroit News today about "the battle for the heart and soul of the Republican Party," posits the false dilemma that there is an ongoing struggle "pitting social and religious conservatives who unflinchingly tout an anti-abortion, anti-gay, family platform at the expense of most everything else, against the traditional fiscal conservatives and moderates who would rather focus on a smaller, less intrusive government that takes less from taxpayer wallets and finds ways to create jobs."

Why are these positions inconsistent with one another? Why can't we be anti-abortion and anti-tax? No reason. Can you favor traditional marriage and at the same time believe in smaller government? Of course you can. These are not mutually exclusive views. In fact, they are compatible, consistent, and extremely attractive to the average voter.

If Americans truly wanted pro-abortion, anti-family, fiscal liberals in office, why would the Democrats spend every waking minute of every campaign trying to persuade voters they are pro-family and believe in lower taxes and fiscal responsibility? They do so because they recognize, even if Republicans don't, that when one candidate is perceived as considerably more conservative than the other, the conservative wins; likewise, when the candidates are perceived as ideologically close, the Democrat tends to win.

In every Presidential election since 1968, the Republican has won when he was perceived as being significantly more conservative than the Democrat. Think about the elections won by Democrats -- Carter in 1976, Clinton in 1992 and 1996, and Obama in 2008 -- and think about their opponents. Gerald Ford was not considered particularly conservative, George H. W. Bush had squandered his huge popularity by breaking his "no new taxes" pledge, and John McCain seemed to go out of his way to avoid conflict with Obama.

Remember too that after McCain selected Sarah Palin as his running mate, his campaign surged, and he led Obama in the polls until the financial crisis hit, which McCain then bungled beyond repair.

Now think about the elections won by Republicans during the same time frame -- Nixon in 1968 and 1972, Ronald Reagan in 1980 and 1984, Bush 41 in 1988, and W in 2000 and 2004. In each case, the Republican was not only more conservative than the Democrat, but went out of his way to emphasize the ideological gap.

Here in Michigan, there is ample evidence of a socially conservative electorate. In 2006, Republican candidates for Governor, Secretary of State, and Attorney General received 42.3%, 56.2%, and 53.8% of the vote, respectively. That same year, Prop 2 on affirmative action was passed with 57.9% of the vote. In 2004, the marriage amendment passed with 58.6% of the vote.

These socially conservative proposals outpolled the Republican candidates, clearly demonstrating that there is a core conservatism among Michigan's electorate. Instead of rejecting this dimension as too narrow or divisive, we should be embracing it as a unifying force for our party.

Similarly, Gov. Tinkerbell and the Democrats in Lansing have shown us (again!) the extreme folly and disastrous consequences of tax-and-spend liberalism. Isn't that also a unifying force?

When people talk about Republican "outreach," exactly to whom are we reaching out? And how? By piecemeal "initiatives" designed to placate various constituencies? By ridiculous legislation focused on minutiae? By "moving to the center," which means nothing more than compromising our principles and values and becoming more liberal? These are prescriptions for electoral disaster. How many elections do we have to lose before we realize that being Democrat-lite will not work?

If we truly want to recover our balance and restore sanity to Lansing, we need a clear, forcefully articulated vision of life under a Republican government.

Ronald Reagan combined social and fiscal conservatism with a strong defense posture, and he did what the GOP needs to do now. He did not fall into the trap of trying to pass off a set of proposals as ideology. He created and persuasively described his vision of America, and he let the voters come to him and to the GOP, which they did in record numbers.

Social conservatism and fiscal conservatism are natural allies. Candidates who embrace both are destined for greatness. We cannot expect every Republican to be in lockstep on every single issue, but we can and should expect Republicans to share our core beliefs in individual freedom, personal responsibility, low taxes, small government, and the sanctity of innocent life.

The solution to the false dilemma is a positive vision. What exactly are we trying to accomplish for Michigan and her citizens? The candidates who best articulate such a vision will unite the party, end this talk of division, and lead us into the future.

Friday, May 22, 2009

Why Judges Matter, Part 4

Today was an unusual day in court, because I was able to compare how two different judges dealt with the exact same motion under the exact same set of circumstances with the exact same defendant and the exact same defense attorney. Not surprisingly, they rendered wildly different decisions.

First, a little background. In civil cases, the parties engage in a process known as "discovery," in which they attempt to ascertain all of the pertinent facts and documents. Written requests for information are known as interrogatories, and requests for documents are known as, well, document requests. After these requests are submitted to a party, the party has 28 days to respond. If they do not respond or do so inadequately, the next step is for the requesting party to file a motion to compel the responses. There is also a specific court rule that says, if the court grants a motion to compel discovery, the court "shall" require the party who did not answer the discovery to "pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney fees[.]"

I have two cases in which I represent two different clients suing the same defendant. The cases are assigned to two different judges. I submitted interrogatories and document requests to the defendant's attorney in each case in March. These were never answered. At the end of April, I wrote the other attorney two letters (again, one in each case) about his failure to respond. No answer. So, I filed motions to compel discovery; again, a separate motion for each case. No response. The hearings on these motions took place today.

In the first case, even though the other lawyer told me that he could answer my discovery requests within 14 days, the judge gave him another 30 days to answer and denied my request for the costs and attorney fees that, under the Court Rules, are mandatory.

In contrast, the judge in the second case gave the other attorney only 14 days to answer the discovery requests, and she ordered his client to pay my client $500 for having to file and argue the motion.

The second judge followed the rules. The first judge ignored them, apparently believing that in the phrase "the Court Rules," the word "Rules" is a verb. The problem is that there is no recourse for the first judge's blatant ignorance of the rules or his refusal to follow them. The cost of appealing is prohibitive, even if there was any prospect the Court of Appeals would agree to hear the case (it wouldn't), and a motion for reconsideration goes right back to the same judge, who will deny it, either without comment or by saying simply, "I've already decided this issue and I see nothing new here," or words to that effect.

So, two judges + same motion + same facts + same attorneys = two irreconcilable rulings. I know there is no IQ test to sit on the bench, and many of the judges I appear before are smart and/or they try to do the best they can, but it is extremely frustrating to appear before a judge who doesn't apply the rules correctly and doesn't care.

When the first judge denied my request for costs and attorney fees (without giving any reason, by the way), I asked if we could simply take the request under advisement pending the other side's compliance with the order requiring them to answer my requests within 30 days. In other words, no decision now on costs and attorney fees but, if the defendant doesn't comply, the judge can impose sanctions at that time. This is an unbelievably reasonable request on my part, so of course it was quickly denied without any explanation.

I have been practicing law for over 26 years. This experience today was, unfortunately, nothing new, but the fact that I had two identical motions pending before two different judges was unusual, giving me a control ruling, if you will, against which to judge the aberrant decision. Rarely is the contrast between competence and incompetence so glaringly obvious.

It is impossible for voters to be aware of the hundreds or thousands of rulings judges make that affect the course of litigation pending before them, so judicial campaigns devolve into contests of who-can-put-up-more-signs and who can pretend to be tougher on crime, all against the backdrop of name recognition and incumbency. No, the ballot box rarely improves the bench. The key point is to make sure that we elect a governor and a president who will make wise appointments, since these appointed judges then carry the power of incumbency.

Regrettably, our current governor and president will make and have made poor choices. When we see what they have done to our economy, we should not be surprised when they screw up our judiciary.

Wednesday, May 13, 2009

Going Home

Preparing for a trial the last few weeks, one thing I made the decision not to give up is watching my son play baseball. He pitches on his high school's freshman team, and one of the teams they faced plays its home games on the field of my old elementary school. I took advantage of the game there to take a look at the school and drive by the house where I grew up.

I went to Immaculate Heart of Mary elementary school in Detroit, graduating from the 8th grade in 1971. A Catholic school, attached to a Catholic church. There is still a mass there -- one mass-- on Sundays, but the school now appears to be a public school academy, also known as a charter school, for grades 3-5.

Looking around, I was amazed at how small the school seemed, particularly since there were eight grades when I went there, two classrooms for each grade.

The statue of the Virgin Mary has been moved from near the school to a spot near the church, about as far from its previous location as it can get. Have to separate church and state, you know.

When I attended IHM, all of the students came from the immediate area around the school. Most kids walked to and from school, some rode their bikes, and a very tiny percentage were driven by their parents. Now, I saw very few students walking after school, almost all of them leaving on several school buses. And there are no bike racks.

Driving by my old house (which we left in 1977), I was struck by how many of the homes have iron bars on the doors and windows, in a neighborhood where we used to leave the doors unlocked. I also noticed that a fair number of the trees are dead, perhaps victims of the emerald ash borer, but dead nonetheless, and the neighborhood's appearance, which couldn't take it, suffered further.

Some things were the same -- the trees by our house were still there, including the one I tried to chop down with a 7-iron when I was quite young. We lived on a corner lot, with a detached garage and a fence running about three quarters of the lot along the side. Much of the fence was gone, and the garage looked unusable. The garage windows were boarded up, I couldn't tell if the garage door was functioning, and the entry door was just gone.

One improvement that, in my mind, diminished the lot, was the side street, which had been paved. Growing up, that was a dirt road, and the opportunities for imaginative play were unlimited. When we played baseball, we drew the bases in the dirt, and the area behind my garage was the bullpen (which, unlike a major league bullpen, you had to jump the fence to get out of). We burnt leaves there, after piling them as high as we could for jumping-into purposes. We played football, marking the line of scrimmage and first down lines in the dirt, and we even had our own version of Olympics, consisting of races, high jumps (into piles of leaves), and long jumps, the results of which were also marked in the dirt.

In all, looking at my school and my home, I experienced a great sense of loss. Things that had been constants as a young boy -- my home, my church, my school -- have changed irrevocably, and not for the better. A sizable number of the homes in my old neighborhood are boarded up or burnt out, including the homes where some of my friends lived.

Is this the natural course of things? The house my dad grew up in isn't even there anymore, and my old house is on its way. Will my son and daughter see the same thing happen to the house we live in now? What can we do to stop this cycle?

Our old neighborhood in Detroit deteriorated because of crime and declining property values. People who cared deeply about our neighborhood and our neighbors moved out, replaced by people who didn't care as much. Our Catholic parish, a focal point of community life, declined in importance as the community changed. The school closed, and masses declined from 5 or 6 a weekend to one. The school now seems like just a building to be rented, and Mary's statue has been removed to a distant location.

God, family, neighborhood. These are the things that bound us together, made us strong, and made life in our corner of Detroit a wonderful thing. I knew everyone for blocks around. We rode our bikes and played baseball from breakfast to dark in the summer, all without a parental escort, cell phones, or play dates. Now, I am ashamed to say that I don't know that many of my neighbors, and my kids leave our sight under tight restrictions and always with their cell phone tethers.

I certainly don't have answers for the problems of today's neighborhoods or our impersonal, isolated existences. Mostly, I just wanted to get these thoughts down. But it occurs to me we have lost the common, unifying themes of American life -- God, family, neighborhood. In the name of diversity and tolerance, we celebrate our differences, but downplay our similarities. We trumpet our divisions, but silence that which unites -- or united -- us.

It's too bad we can't simply ignore race, creed, or national origin. These things are almost always irrelevant to any decision that needs to be made, and they are irrelevant to any consideration of the worth and value of a human being. The more we focus on them, the farther we drift from our American ideal, that all men are created equal and endowed by their Creator with certain unalienable rights.

God, family, neighborhood. Let's get back to basics and save ourselves.