Month: May 2019

Wednesday Poetry Rendering

Wednesday Poetry Rendering

The Space Between

                    by Phil Cline

The space between is where life is, 

Where emotion is, where feeling Is,

The space

Between fists raised in furious rage, 

Held, poised, awaiting, 

Brutality’s rapture,

And 

Poor arms pale, splayed

Underneath. Weak, 

Inadequate.  

In that space

Between. 

In that, time, no time, 

Before the hit 

Where Dread resides, 

Where Fear presides,

Where all is cringed and crimped, 

Where the head’s bent down, 

Angled, bowed, covered, 

But not enough, 

It is never enough,

For the cowering 

Humiliated child,

Living, 

Trying to live,

In that small space, 

Between

                    2

The In Between of Spaces

       by Phil Cline

Like meadows of flowers

In the shadow of 

The great granite mountain,

And the seething, bubbling

Cauldron beneath 

The valley’s crusted floor,

Where air cannot offer a breath,

Where clean cannot wash tears from cheeks,

Where screams start, but sound is not yet,

Not yet

The shouted “NO!”, the “Please Don’t!” 

The “I’m Sorry!”, the “I won’t do it again!” 

The helplessness of a promise, 

An apology, for a transgression,

Vaguely understood; 

The ignorance of not knowing 

Why it happened at all

Yet it must be my fault, 

Be Wary, 

Always wary of life

In between spaces,

In the space between the evening’s fatigue 

And a favorite dish on the table,

The comfort of the smell, the way it will taste 

When the bite is lifted across

The expanse between spaces 

To be savored. 

In the new spaces 

Between your touch 

And the smiling pretty girl.

She, trouble free 

From your guilt and nausea,

The knowledge of your hurt.

Across expanses, the in between space

Between my body where I must live, 

And another being,where she must live

Among the others, 

Walking on the bridge, 

Before the touch or hit, 

After, alone yet among, 

Inviolate but a second, 

A moment.

I can see out, hear, 

But can’t touch

From my life in the 

In Between 

Of Spaces.

For more writings by Phil Cline, visit philcline.com

Cline on the Constitution – Interpretation

Cline on the Constitution – Interpretation

In November, President Trump referred to a federal District Court Judge as an “Obama judge.”  Uncharacteristically, Chief Justice of the Supreme Court, John Roberts, rebutted the President in a public statement.  He said, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges, . . . (an) independent judiciary is something we should all be thankful for.”  

Characteristically, the President would insist on having the last word.  He said, “Sorry Chief Justice Roberts, but you do indeed have “Obama judges,” and they have a very different view than the people who are charged with the safety of our country.  It would be great if the Ninth circuit was indeed an ‘independent judiciary’, but if it is why,” he asked, are so many of the cases opposing the administration’s border and safety policies “filed there and a vast number are overturned?” 

Well, whose right? And, while we are at it, why on earth do certain judges and justices decide cases the way they do?

We have a lot of interesting decisions coming out of the Supreme Court, but I thought this might be a good time for an interlude to talk about legal interpretation.  

I recently read a column by renown appellate lawyer, Myron Moskowitz.  He began his discussion by drawing a distinction in his approach to arguing appeals as between being a “legal formalist,” and a “legal realist.” Ah . . . now there’s stuff to feed every lawyer’s appetite for legal legerdemain! 

But Uggg!  Do we, you may be asking, have to go into such arcane legal terminology? 

Just wait and hang in there for a few minutes. What he was really talking about was winning.  How to win your case; how to get a judge or justice to rule in your favor. There’s something we all understand.  At its core the actual practice of law is more about winning and losing than the legal niceties contained in high-minded phrases like “due process” and “justice for all.”   

And I admit, that wasn’t the first time I’ve heard those terms in the context of winning and losing an appeal.   

A few years back, I was fortunate enough to be invited to participate in a week’s long course on appellate advocacy at the National Advocacy Center on the University of South Carolina campus. I, and prosecutors from across the nation, spent days practicing orally arguing cases to multiple panels of justices.  Some of the panelists were from state supreme courts, others from intermediate federal appeals courts.  As lawyers we were there to learn not only the formalities of how to present oral arguments, but how to be effective. In other words, how to win our case.

The most useful sessions, from an advocate’s perspective, were the debriefings after we argued our cases and the rulings were made.  In those sessions, the justices offered criticisms and suggestions on how to be more effective in the presentation of cases.  It was the first time I heard terms like Formalism and Realism applied to the nitty gritty in the actual practice of law.  

When applied to an appellate justice, the terms get to the essence of what approach on a particular case will most likely persuade a justice to rule in your favor.  Will the men or women draped in their severe black robes along with healthy dollops of self-righteousness and self-importance rule in accordance with the dictates of the law or will he or she find a way to rule so that a result the judge favors even if the logic of the law would seem to require a different answer.  

Moskovitz quoted a judge as defining “legal formalism” as treating the law “as a compendium of texts, like the Bible, and the task of the judge . . . is to discern and apply the internal logic of the compendium.  He is an interpreter, indifferent . . . to the consequences of his interpretations in the real world.  He is not responsible for those consequences; if they are untoward, the responsibility for altering them though a change in law falls to the “political branches.”” The “political branches” are supposed to be the Legislative and Executive branches of government. 

This is how law is traditionally taught in law schools.  And it is what most lay persons, unschooled in the law, think justices are doing and should be doing when they decide a case.  A judge’s job, most people think, is to apply the law and, yes, on occasion, the law can be a hard task master. But if the law needs changing it’s not a judge’s job to change it.  Changing the law is the responsibility of the duly elected representatives in the legislative and executive branches of government.  

But the reality is many, too many, justices see the law through a different prism.  

That prism is “Legal Realism”, the other term Moskovitz uses which places emphasis on “the consequences of judicial rulings.”  The justice who is inclined in this direction, pays little deference to precedent, none to the traditions of judicial restraint. What matters to them is “doing the right thing,” reaching a result that is “fair.” As Moskovitz says, “Pragmatism usually trumps over formalism.”  But to do so, a justice often must be clever. He or she ends up looking for a way to bend the words of a statute or “reinterpret” an established case precedent to get to a result they prefer. And if an advocate knows that is the inclination of the judge or justice, they fashion their arguments to circumvent the law and reach a preferred result which translates into a win.

As Moskovitz says, if you want to win in front of these justices, then dump the formalism and adopt the realism arguments. Play to what the judges want to happen, not what the law requires.

It is here I will move beyond the strategic thinking by Moskovitz to the impact of his ineluctable theory on law, justice and the politization of the judiciary.  

Beyond knowing what arguments to press in pursuit of a win, there is another problem. It leads inevitably to that result justices themselves give so much lip service to wanting to prevent, that is the politicization of the judiciary.  And the loss of that precious commodity “Judicial Independence.”  

President Trump’s statement implied the outcome of important cases could be predicted based upon which President appointed the judge or justices deciding them.  Chief Justice Roberts disputed the notion.  He contention is that federal judges are “neither Democrat nor Republican.”  

Although it pained him to admit it, Moskovitz, certainly no fan of the President, concluded “Trump is right.”  As much as I admire Chief Justice Roberts, I must agree.  The Chief’s statement, given the tendencies of the federal judiciary over the last few decades was just plain silly. 

But there is another perspective, and which adumbrated the reason the Judicial branch has become as politicized as the Executive and Legislative branches.

Just who are these Judges and Justices to decide what is fair?  What gives them such Solomonic judgement that they can ignore the law?  

In reality judges and justices are fallible human beings, just as venal, just as biased in their thinking and instincts as the rest of us and, even more dangerously, imbued with a false sense of wisdom from their robes, their rituals, their honorifics, and the deference in which they are treated in their courtrooms. The inclination of the “realism” approach is always going to be toward siding with the individual and his or her personal “rights”.  And the loss is usually to the needs for order in a society.   

And, furthermore, when the accumulation of such decisions finally undermines the confidence of the public that a judge or justice is only an impartial interpreter of the law, is it any wonder that the confirmation process for the ultimate judicial body, the United States Supreme Court has become so hard and bitterly fought?  

If it is acceptable to superimpose one’s personal views on what is fair or right on the rest of society, in spite of the law, of course the members of the political branches will fight tooth and nail to place on the court one of their own, ones they expect to rule in accordance with their political agendas. Soon, very soon, despite Chief Justice Roberts protestations, we have courts made up of easily identifiable Obama justices, Bush justices, and, yes, Trump Justices. 

There is no better proof of this than at current confirmation hearings for Justices appointed by the President.  Questions are not designed to focus on the legal and analytical skills of the candidate, but rather to glean from past writings, past clients, past positions taken in lawsuits whether they can be fair to this constituency of the party of the Senator posing the question.  

Two justices were just confirmed the Ninth Circuit Court of Appeals over the objections of the two California senators from the Democrat party.  Their objections?  One justice had written op eds back in college (not law school), decades ago, our senators viewed as “controversial.”  And as attorneys these two, whose legal qualifications to serve no one questioned, had represented clients on the sides of the cases disfavored by our Senators. They weren’t always representing the downtrodden or the current flavor of self-declared victims of society. 

One may say, that despite their protestations, the judges and justices largely brought this on themselves.  Because they arrogantly believe they know better than everyone else how to correct societies wrongs as they see them, in spite the law. 

Whence, Judicial Independence? 

It’s gone in the rise of “Legal Realism” and the death of “Legal Formalism.”

Reckless Kings

Reckless Kings

Nothingness to nothing,

Returned my King. 

Reckless his good deeds, 

Legend his evil deeds,

Augmented, layer by layer, atop

Vaults too deep for excavation, among

Rows of tombs, Subterranean 

Cellars, protected 

From jocund birds, raucous,

Gossiping in the tree tops

Amid mornings aborning. 

Returned my King,

Nothingness to nothing.

Vexed by bumps and bruises,

Staggered toward home, 

Stumbled, fallen, failed,

Weighed under packs of sin, 

Burdens of ambition, 

Unkind advancements,

Chest full of achievements 

Clutched off currents of air

Before they floated away, 

Evaporated.

Returned our king, and we cried

“Nothingness to nothing!”

For our king murdered 

His loyal soldiers 

To spite the world.

Executive Privilege

Executive Privilege

This week’s edition of Cline on the Constitution

Executive Privilege

It seems every year we have at least one descriptive term that evolves into a sacrosanct badge of being politically correct.  We’ve had “diversity”, we’ve had “homeless”, and a number of others it wouldn’t take long to conjure. The terms are over-used, frequently misused and so ill-defined they end up obfuscating reality. Their introduction into a conversation demand thoughtfulness be suspended. After a while, one develops a sense of nausea whenever the terms are uttered; truly they become an insult to the ear of anyone who chooses to not define society in accordance with numerical niceties.      

And now we have “transparency.” 

What exactly is transparency?  To some it means disclosure of all information all the time to every living soul regardless of who is hurt, what is diminished, and whether the information is accurate or complete.  Private conversations, the frank exploration of ideas, is considered anathema to the God of “Transparency”.

For anyone in leadership, especially in an executive position, whether it is government or business, there is a basic need to have private conversations with trusted staff. The ability to try out new concepts, to explore radical solutions, whether the ideas are adopted or not, is part of the creativity we should expect of leaders.  However, in these times of instantaneous opinion, the quickest death to good ideas can be “transparency.” Some conversations, some orders, some plans need to kept private, indeed they need to be kept, yes, let’s use that other much maligned term, (gasp!)“Secret.” (Gasp again!)    

This is what Executive Privilege is all about and it is recognized in the realm of constitutional law.

The President has asserted Executive Privilege regarding certain portions of the Mueller Report as well as the underlying evidence for the Muller Report.  Breathlessly certain members of Congress who demanded the information are crying out that we are, as a result, in a Constitutional Crisis.  

Well, not really.  

Let’s explore Executive Privilege and its Constitutional basis.

Article II of the Constitution vests in the President of the United States the “Executive Power.” Contrary to some loose commentary, Congress does not have “oversight” of this function.  There is no constitutional basis for an assertion that one branch of government has “oversight” over a co-equal branch of government regarding their core powers. They may investigate.  They may hold hearings. Within limits.  But they do not have “oversight” of the exercise by the President of the “Executive Power.”  

And in the exercise of the Executive Power, the Supreme Court recognizes the existence of an “Executive Privilege” over confidential material and an unwarranted intrusion upon Executive Privilege violates the Separation of Powers.

As will be shown later, however, the Privilege is not absolute, no more than any power vested in a branch of government is absolute.   However, the Privilege is entitled to “great deference” as Chief Justice Burger stated in U.S. v. Nixon.

Burger went on in the U.S. v Nixoncase to describe the basis for the Privilege:

“The valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties; the importance of this confidentiality is too plain to require further discussion. Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decision-making process.”

One has to pause and contemplate the damage to such processes done to the President by leaks of confidential conversations even with heads of state by unscrupulous government employees virtually from the President’s first day in office.  One of Attorney General’s Barr’s comments during the hearings before the Senate and his description of the motives of leakers is apropos.  It is one way, he said, for subordinates to control their superiors on matters of policy. Consider the impact on the ability of any Executive, much less a President, to carry out his policies if every word uttered in private finds its way to the headlines the next morning.

Chief Justice Burger went on to say, “The expectation of a President to the confidentiality of his conversations and correspondence, like the claim of confidentiality of judicial deliberations, for example, has all the values to which we accord deference for the privacy of all citizens and, added to those values, is the necessity of protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision making.  A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately.”  

And those considerations, Justice Burger says, provide the basis for a “presumptive privilege” for Presidential communications.

United States v. Nixon, decided in 1974, grew out of the infamous “Saturday Night Massacre.”  A special prosecutor sought tapes of conversations that occurred in the oval office.  President Nixon ordered him fired.  The Attorney general refused, and he and his assistants resigned rather than comply.  Robert Bork was third in line at the Department of Justice and he carried out the orders to fire the Special Prosecutor. A new one was appointed, but then he too demanded the material and took the matter to the Supreme Court.

The primary issue for the Supreme Court was whether the courts could decide the case at all without violating Separation of Powers. Harkening all the way back to Marbury v. Madison, decided at the beginning of the Jefferson administration, the Supreme Court ruled they could, indeed, decide the issue as a question of law without infringing on the Separation of Powers. But in reaching this conclusion they spent considerable time assessing the basis and scope of Executive Privilege. While there have been other cases which addressed the issue, U.S. v Nixon is still the leading case on the principle.  

The court used a balancing test assessing the need of the criminal justice system against the assertion of an “absolute” privilege. 

However, their ruling was qualified.  They repeatedly pointed out that the assertion of Executive Privilege by the Nixon administration was a general one and that the President had not claimed confidentiality based upon a need to protect “military, diplomatic or sensitive national security secrets.”  (There’s that word again!)

There is a clear implication that if such an assertion had been made, the court may have upheld the declaration of Privilege.  

There are two more interesting aspects to this:  First, the Court appended a proviso that a federal court would take care that the information was reviewed and assessed in camera, out of the public eye, where the confidentiality of the material could be protected.  And second, in that case the interests of a criminally accused was in play and that brought about considerations of Due Process and the other Constitutional rights of someone charged with a crime. 

As it relates to the Mueller report, there are a few distinctions:

First Congress is pursuing a civil subpoena process which takes the balancing test for criminal matters off the table.

Second, the information is actually from a Special Prosecutor.  It is not being withheld from him like in the Nixon case.  Second, a Court, not the Congress, may have the right to inspect the confidential material, assuming the President doesn’t provide justification, such as national security. In the later instance, since it is a core Presidential function, even the Court could be excluded from examining the information under the Separation of Powers doctrine.  

Lastly, regarding the Mueller report, at the very least, the Court may find that while confidential Grand Jury information may be assessed by the Court, that does not mean that a leaky Congressional Committee, where confidentiality goes to die, has any right to pierce the Privilege. 

For more articles on the Constitution and other writings by Phil Cline, visit philcline.com