Updated: Jun 18

When listening to Brooke Williams speak at her uncle’s funeral about laws already in place for African Americans to fail, Justice Thurgood Marshall came to mind. Along with Sherlock Holmes, he is a role model of mine. Of the two men, one is a fictional character and in spite of this difference the similarity between them concerning invented stories is quite revealing.

Holmes is the imaginary figure, yet during Justice Marshall’s 24-year tenure on the United States Supreme Court many viewed his legal decisions as make-believe. I’m convinced they chose to willfully avoid the wisdom contained within them. Marshall is well known for his dissenting legal opinions on the erosion of the 4th Amendment protections, and welfare policy. These cases were decided in the latter part of 80’s and point to a precise moment when racial inequality and discrimination develop into hard-core, systemic problems in America.

It happened under our watch. We had a chance to move our country into a more compassionate direction. It was on track in the 1960’s under the constitutional revolution of Chief Justice Earl Warren. His court ruled in favor of desegregation, and individuals being informed of the “Miranda” rights upon arrest. To better understand what made us go off-course, we must look at William Rehnquist who is the ideological opposite of Thurgood.

In similar fashion, Rehnquist also wrote many dissenting opinions as an associate justice on the more liberal Burger Court, and was known as its most conservative member. He voted against a woman’s constitutional right to an abortion in Roe v. Wade, and had to recuse himself in United States v. Nixon because of his connections to a number of Watergate conspirators. Two of them were Attorneys Generals. In 1986 as the Supreme Court’s Chief Justice, Rehnquist had the opportunity to bend the US toward a more conservative worldview.

I had an opportunity to argue before Justice Rehnquist in United States vs. Dominguez-Benitez on April 21, 2004. Although prevailing in the Ninth Circuit Court of Appeals to have Mr. Benitez’s guilty plea invalidated and his signed plea agreement tossed out, the Supreme Court unanimously ruled against us. The late, Justice Antonin Scalia wrote a separate concurring opinion with an often cited quote; “Such ineffable gradations of probability seem to me quite beyond the ability of the judicial mind (or any mind) to grasp, and thus harmful rather than helpful to the consistency and rationality of judicial decisionmaking. That is especially so when they are applied to the hypothesizing of events that never in fact occurred. Such an enterprise is not factfinding, but closer to divination.”

The week following my oral argument were the last hearings for Justice Rehnquist. At the end of the 2004 term, he retired after serving for 35-years. By the time I appeared before the court, Thurgood Marshall had long since passed away. His time as an associate Supreme Court Justice was when the American paradigm shifted from identifying with an individual’s due process and human rights to seeing property rights as more crucial to determining fairness and who justice served. During Rehnquist ‘s conservative reign, first as an associate and then it’s Chief Justice, we saw our 4th Amendment rights against unreasonable search and seizures get eroded, and a distain for those in poor and minority communities.

While doing research for this blog post, I came across a Pace University law review article titled, ‘Thurgood Marshall's Dissents in Defense of the Poor’ by John T. Hand who was Director of Litigation, at Westchester Putnam Legal Services and Adjunct Professor, Poverty Law, at Pace University School of Law. Here is a relevant quote from Hand’s 1993 piece about prior ideals: “[T]hat welfare benefits are uniquely important entitlements and that people can receive assistance yet retain their dignity and responsibility to make independent decisions about how they will live. These were themes of the civil rights movement and of several federally sponsored programs of the late 1960s which sought to empower the poor as well as to feed, clothe and house them. They are also themes which lie at the heart of Thurgood Marshall's dissenting opinions in welfare cases. Over the past two decades, the trend in American welfare policy has been to make the poor live on less money by standardizing allowances and failing to increase payments in relation to the cost of subsistence needs. At the same time, governments have been imposing systems that-closely monitor the poor and require recipients to obey increasingly stringent eligibility rules. Against these trends, there are few voices being heard. The poor are poor in power; they are easy targets for legislative and administrative action based upon racial and class stereotypes and prejudice.”(Id. at pgs. 305-306)

Path We Share

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It’s irritating. This skin of mine feels too short. Ready to get out of it, become something new. Many are thinking the same thing. Squeezing out of the old could have, should have been delightful. But it’s been a forced push. Change is upon us and the transformation is confusing and even scary. From deaths due to the coronavirus to people peacefully protesting for equal justice getting tear gassed for the So-Called President of the United States’ photo-op, we are truly in some weird times.


So what is the new normal? Or can we only hope for nearly normal. Even though we don’t yet know, each of us can find a sense of balance. For me, the Torah is a teaching that instructs us on how to resolve the inherent disparities of life. For example, the Tree of Knowledge of Good and Evil is a concept consisting of diametrically opposed notions. Our sense of spirituality includes non-rational aspects, inherent conflicts, and outright paradoxes. It requires the seeker to decouple from, or dispense with our everyday way of viewing the world. In other words, it pulls the rug out from what is considered normal and requires a more poetic way of seeing to achieve understanding.

Then you have to apply what you comprehend. We live in a real world and not just what we think about it. You have to manifest your desires and thoughts. The time to do so is always now.

Take for example the term ‘social distancing’. At first blush, applying it in our daily lives seemed counterfactual, and caused uncertainty and unease. It implied being in the physical company of others, yet staying at least 6-feet away from them. Without some sound advice, the requirement by our state governors and city mayors was perplexing. Yet communities creatively adapted. Of course, a determination about our national wellbeing and guidance on how to stay healthy was warranted to achieve a balanced approach, especially in high population density areas such as New York and Seattle. However, three and half years into his occupation of the White House, the cognitive dissonance set up by Trump is overwhelming. Although he wants to portray himself as caring, his recent publicity stunt before a church, crudely holding a bible for a photo-op after his secret police on horseback tear-gassed peaceful protestors, is more proof he is unfit to lead.

I came across this tweet by HowardinDC, “Explains why MAGAts create all the Trump "porn" - like a muscular Trump standing on a tank: it must alleviate the cognitive dissonance they feel when they realize their 'hero' is actually a draft-dodging, mind-bendingly incompetent, cowardly bully.” A September 2019 article in the Sonoma Index-Tribune about why Trump’s lies don’t affect his standing in the polls noted something similar, “People who believe in someone will believe almost anything he or she says, also refusing to believe almost anything negative about them.” According to the Oxford dictionary, cognitive dissonance concerns circumstances involving “conflicting attitudes, beliefs or behaviors. This may result in feeling mental discomfort, which can cause you to alter one of the attitudes, beliefs or behaviors to decrease the discomfort and find balance”.

I purposefully wrote ‘My Random Death’ to not come across as a know-it-all, new age guru. Rather than a self-help book, my memoir is a guide for self-discovery, to live life in your own way. I encourage people to pay attention to the meaningful coincidences in their lives, learn to trust their intuition and follow its inner guidance to find your own sense of poise, and the self-confidence to move forward in the ‘real’ world.


Path We Share

There is a bit of history between him and me. The homeless guy recently pitched a tent underneath the big magnolia tree. It's located at the edge of the park next-door to my apartment building. For the past year, he and his dog hung out there during the daytime. A few months ago, I noticed he was handcuffed and police officers were questioning him. A couple of weeks ago, I found a lost driver license and recognized his face in the photo. Of course, he was thrilled to get it back. Last week, I got curious and decided to speak to him, and find out why he gets to sleep overnight in the park. It’s usually forbidden.

Now that he is my neighbor, my ulterior motive for talking to this man was to tell him to keep the noise down during night. I was polite about it. With social distancing intact, the homeless guy told me he needed to sleep in the park because he has nowhere else to go. He was born here but the city won’t do anything that encourages homeless people to come to the area. Consequently, there was no plan for the poor to shelter-in-place when the coronavirus hit us. The homeless guy told me the city of Ventura is putting people like him up in motels, but not here, in Santa Barbara.

“I feel like a loser,” he said.

Based on my many years as a federal criminal appeals attorney, which you can read about in my memoir, My Random Death, I told the homeless guy the police wouldn't allow him to sleep in the park if they didn't think he was a good person. This was especially true considering he was arrested not too long ago. If the police wanted, he would be gone now. Instead, they are making an exception for him and he should feel good about himself. My pep talk seemed to cheer him up.

Of course, I gave the homeless man some money. My spiritual practice includes daily prayers to be a generous person. And then actually doing it. I remember attending a lecture by Rabbi Lew, who almost became a Buddhist monk. He spoke about cherishing his alone time on walks because his companion was God. The rabbi always kept a dollar in his pocket, just in case he came across someone in need. “It’s a simple act,” he said.

Meanwhile, certain famous and not-so-famous American preachers appear to believe in the opposite. Instead of having a giving spirit, they are inclined to fleece their flock. A recent ‘Church and State’ article noted the prosperity gospel, “is a religious doctrine that encourages poor people to send specific amounts of cash (usually in the hundreds of dollars) to charismatic preachers, an act the preachers characterizes as “seed giving” — and the preachers promise that God will reward these gifts by making the givers rich.”

Trump even pulled one of these evangelist-types into the White House to work in a spiritual advisory capacity. Richard W. Painter, who served as the chief ethics lawyer in the President George W. Bush's administration, suggested this religious leader was committing "fraud" and running a "Ponzi scheme." He noted, “Paula White is using her position to make a ‘sales pitch’ that “tests the boundaries between 'religious freedom' and criminal mail fraud and wire fraud with her message to send her money and God will make you rich.”

At the general assembly of ‘Caritas Internationalis’, the Vatican-based federation of national Catholic charities, Pope Francis celebrated Mass on May 23, 2019 and reminded people that faith "is a path to follow together, always together, with a spirit of trust," he said. "Seek in others the presence of God, who does not dwell in the greatness of the things we do, but in the smallness of the poor we encounter."

Even school children know the Bible says we are created in God’s image. This theological doctrine is in Judaism, Christianity, and the mystical branch of Islam, Sufism. The concept has an even deeper meaning then just what our face looks like. Recently, a Republican lawmaker foolishly gave this as a reason for not wearing a face mask in public. Currently, I am studying The Zohar, an ancient Kabbalistic text and using Daniel Matt’s Pritzker Edition translation and commentary. Volume 1, footnote number 718 states, “Generosity is inherent in the makeup of humanity, the clearest sign of our original divine nature.”

Garden of Eden

 

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