Monthly Archives: June 2015


The Supremes issued a couple big opinions this week.  Then the country basically lit itself on fire.  There’s a lot of celebration, and rightly so.  There’s also a lot of hatred from the right for the judicial authority which has so finally demolished the debate.  The legal issues are done.  Gay marriage is now legal.  Full stop.

There’s a lot of talk about “activist judges,” a phrase that comes up from time to time.  The Tea Party has rehashed some old language to complain about the judges.  Ted Cruz, the great blowhard of the Senate, has even gone so far as to propose judicial approval elections be amended into the Constitution, rewriting Article III itself.

It is worth, at this moment in history, to take a look at the idea of meritocracy, to acknowledge that there is an element of meritocracy in the American government, and to celebrate the fact that we do.

Scalia’s dissent in Obergefell is off the chain, but he’s right about one basic thing.  Nine people, who have been elected by nobody, and who are not necessarily representative of the US population as a whole, may simply decide that a thing is a fundamental right, and may protect that right against anything other than a constitutional amendment.  The most powerful people in our government are not the President or the Congress; they are the Supremes.  Mostly, the Supremes try not to flex their muscle, but every once in a while they do.

And when they do, the world moves.

Abortion is legal, and part of the freedom to choose what to do with one’s own body.  Black children may go to school alongside white ones.  We are free to marry one another, regardless of race .  For over fifty years, the Court has been a major vector for social change.


This is, by no means, a new thing.

The more we reflect upon all that occurs in the United States the more shall we be persuaded that the lawyers as a body form the most powerful, if not the only, counterpoise to the democratic element. In that country we perceive how eminently the legal profession is qualified by its powers, and even by its defects, to neutralize the vices which are inherent in popular government. When the American people is intoxicated by passion, or carried away by the impetuosity of its ideas, it is checked and stopped by the almost invisible influence of its legal counsellors, who secretly oppose their aristocratic propensities to its democratic instincts, their superstitious attachment to what is antique to its love of novelty, their narrow views to its immense designs, and their habitual procrastination to its ardent impatience. – Alexis de Tocqueville, On Democracy

The judicial branch has long stood as the sole remedy against what De Tocqueville called “Tyranny of the Majority.”

Why is the judicial branch so much better at enacting social change?  Well, they’re not elected, and absent an impeachment proceeding they have the bench for life.  Once a Supreme puts on the robe, getting it off him is going to be damn near impossible.  So they give two shits about what the pundits are saying.  The 24-hour news cycle of today is policed by our politicians with a fine-toothed comb, assuaged and manipulated by press secretaries and talking heads to attempt to give us a portrayal of what we should be thinking at any point in time.

SCOTUS gives 0 shits about that news cycle.  None of the SCOTUS justices are up for election, ever again.  They do not care about public opinion.  They are placed in this position by the Constitution for this specific purpose.

There is a lot of talk out there that SCOTUS should not occupy this hallowed position.  That life tenure for justices is bad.  That the justices of the Supreme Court should, like every other wielder of power in this country, be subject to the will of the people of this great country.


The people of this country are, by and large, kinda dumb.  Collectively, I mean.  We can’t decide, as a country, really basic things like whether or not every scientist on earth is right.  We hold “debates” on the concept of evolution, as though it were even debatable at this point.  While we’ve got a government of the people, by the people, and for the people, we’ve also got checks and balances for everything.

Even the people.

SCOTUS operates to protect our liberties from ourselves.  To ensure that we are a free and equal people, even when the majority of us want to impinge on the freedom of the minority of us.  SCOTUS owes its duties to the Constitution alone, and owes absolutely fuck-all to the rest of us.  And if that were to ever change, then SCOTUS could not function for that.

You may not like everything they do.  When they protect the freedom of massive corporations to donate money to political causes, the left is not happy.  When they protect the freedom of private companies to be douchebags , the left is not happy.

And sometimes they just get it wrong.

But for the most part, SCOTUS is the one branch of government that can act as a watchdog over the political branches, holding its power like the sword of Damocles over our elected officials, protecting the minority from tyranny of the majority.

And for that, it needs to be a meritocracy, not a democracy.’

In his Obergefell dissent, Justice Scalia notes that the Court is not representative of America.  That they are more educated, and tend to come from specific geographic areas.  The geographic areas are a funciton of the Ivy League system, which has its own flaws.  But the education?  Thank whatever God or Goddess you believe in for that one.  Because that ensures we have at least a minimal bar (no pun intended) to service.

Our country is protected from mob stupidity by a group of nine educated individuals.  Agree with them or not, they are all intelligent, well-studied people.  Support them or not in any given decision, be happy that our founders put them there.  Because a little meritocracy in the middle of a democracy is, in fact, a good thing.

What’s with the sudden rage on Twitter?

Alright, I’ve gone kind of off the rails live-tweeting this horrific CLE I’m a part of.  We’re on lunch break, now, so I’m going to break my thoughts down in a form that isn’t limited to 140 characters.

The NACDL is the National Association of Criminal Defense Lawyers.  In theory, it’s an organization that exists to support those of us down here in the trenches.  It’s supposed to be a resource for us.

And it is, to an extent.  12.75 free CLE hours is nothing to turn my nose up at.  I love me some free CLEs, and I’m just tail-waggingly happy to get them.

But the actual training is excruciating.

For those of you who aren’t familiar with the public defense situation in Washington, you should know a couple of things.  First off, we’ve had some litigation concerning the fact that governments tend to underfund public defense (“I spent more taxpayer dollars defending criminals” not being the best campaign slogan ever).  This litigation is sending ripples through the rest of the nation, and we’re kind of at the epicenter.

I’m going to detour here and take a moment to talk about my experiences working the night shift at Jack in the Box.

I don’t know if anyone remembers the 1993 Jack-in-the-Box E-Coli incident.  It was one of those things that was a big deal at the time, and has since faded into our memories.  But I’ll tell you one place that, as of me assuming the position behind the grill, hadn’t forgotten:  Jack in the Box.  I’ve had a lot of friends work in various fast food places, and almost all of them say something along the lines of “Man, after seeing what goes on back there no way am I ever eating at that place.”

That’s terrifying, and thought I spent a year and a half working for Jack I wouldn’t pause to eat there.  The safety standards were impeccable, and they were impeccable because the company had fucked up so badly in the past.  They knew that, with that kind of shit on their record, they had to shape up.

Back to Washington State Public Defense.  In response to those cases I linked above, our courts have put strict standards on things like how many cases I can take during a given time period.  I cannot be overworked, now.  And if the county screws with me, I can just be all “hey, no other attorney can take more, cause state standard, yo.”  No more overloading of defense attorneys; everyone is being super-fucking-careful about that, because after what happened to Mt. Vernon noone else is willing to chance it.

Enter NACDL.

The NACDL folks have come to Washington with the very clear impression that we are nothing more than overworked incompetents.  A decade ago, that may have been true.  But they’re talking to us like we’re in fucking kindergarten, here.  We are Washington State Public Defenders, and because of that we’re obviously a bunch of racist incompetents who ignore our clients and try to plead guilty as quickly as possible.

I fight, in court.  I fight hard for my clients.  I put a great deal of effort into making sure that my client’s voice is heard, even if that voice is really stupid.  I throw down with the prosecutors time after time after time, and I do it because I take pride in doing my job well.

So the #dayofpain thing on Twitter is me venting that NACDL doesn’t think I do.  They’re being nothing but condescending and rude to those of us down here in the trenches, and I’m pretty pissed off about it.  I’d love to talk about how to deal with the racism that is inherent in the system, but I don’t need you to take an entire morning to call me a racist.  I realize that the system screws people over; help me fight it.  I’m all on board with doing a great job for my client, but telling me to stop being a lazy prick really accomplishes nothing because I am not a lazy prick.

So, enjoy the ranting.  Because a bunch of corporate-lobbyist numbnuts have me for two days, and they get to pound on me for those two days.  Then I’m heading back into the trenches, and they’ll find someone else to go be rude and condescending to.

A note:  there’s a difference between NACDL and WDA.  The WDA conference had a “we’re all in this together” feel.  NACDL is more of a “you’re all fuck-ups” feel.  The difference is palpable.

I Just Had My Ass Handed to Me By A Children’s Movie.

I’ve always been kind of a Pixar fan.  They do good films over there, and basically everyone knows it.

Up, when it came out, hit me like a truck.  I still can’t watch it again.  It’s a movie about loss, and it’s simply one of the most depressing things I’ve ever watched.  That’s not the reason for this post; that’s there to set a benchmark.  I say that to say this:

I have never had a movie kick the living shit out of me like Inside Out.

There.  I said it.  Now let me back up.

I read Howard Taylor’s review of it and (even though he put it below his Threshold) had to admit I was intrigued.  Personified emotions?  It seemed to me like you could really use that as a tool for explaining psychological development.  It could be a really neat way to interact with people who have a hard time dealing with their impulses and their emotional control.  I figured it would be a solid Pixar movie, and I was intrigued.  Then game night cancelled, World of Warcraft’s servers were overloaded, and I was bored.  So I headed down to the local theater to check it out.

In the words of Illidan, I was not prepared.

Inside Out is seriously one of the most profound works of art in our time.  Movies these days seem to be nothing more than remakes and rehashes.  As Happy Harry Hardon once told us, “All the great themes have been used up, turned into theme parks.”  So let me be clear:  I don’t know how this movie got greenlit.  I can only imagine the conversation looks like this:

Pixar:  “Hey, Disney.  Us Pixar Boys are thinking about making a movie.”

Disney:  “Great!  We tend to make a lot of money when you do that.  What are you thinking about?”

Pixar:  “Well, we’re thinking of personifying emotions.  You know, get inside someone’s head and show their emotions running around, controlling them.”

Disney:  “Sounds cool.  Could be really cute, I guess.  Happy kids movie?”

Pixar:  “Uh…yeah.  Happy.  That’s one of the five.”

Disney:  “What?”

Pixar:  “Well, you know…most emotions are important.  So there’s actually five.  Wouldn’t want to skew this.”

Disney:  “But…it’s a children’s film.  So, shouldn’t it be happy?”

Pixar:  “We were thinking of making it about growing up, and how your childhood is destroyed and replaced by less happy things as you age.”

Disney:  “Why in the hell would this make a good kids movie?”

Pixar:  “Well, it’d be a really extraordinary learning experience.  Parents and kids could talk about a wide range of emotions.  We could substantially enhance the ability of parents to understand what their children are feeling and doing by giving children a framework around which to understand it.  We could also remind all the parents how completely destroyed their once-happy childhood was, and that’ll effect them on a deep emotional level as well.”

Disney:  “So, you want to traumatize an entire generation?”

Pixar:  “As a learning experience, yeah.”

Disney:  “And you think that’ll be profitable.”

Pixar:  “We’ll throw in a cat/monkey/elephant/dolphin hybrid made out of cotton candy who powers rockets by singing and cries caramels.”

Disney:  “Why didn’t you lead with that?  Sold!”


This movie made me mourn those parts of my childhood long left behind.  It managed to dredge up every happy memory I’ve had of the past, then drive home the fact that those times are gone.  It then proceeded to destroy any hope or dreams I may have harbored about the ability to live in that kind of pure happiness again.  Not that I ever really thought that was possible, but still…you couldn’t have let me hope for it?

In short, the movie laid me raw.  I sat in the theater as the credits rolled, trying to figure out what in the hell had just happened to me.  In every other movie I’ve cried at, and there have been a couple, I’ve been crying out of empathy for the characters.  I’ve been moved by their stories, their toils, their triumphs.  Inside Out didn’t do that.  The profound, and the unique, trick of this movie was that it managed to dredge up my own personal stories and make me cry about those all over again.  I have never–never–had a work of art from any medium come at me like that.  I’m still figuring out how they did it.

If you are a parent then you need to take your children to see Inside Out.  Brace yourself to take the hit, but build a bunch of time into the schedule afterwards to break the movie down with them, see what they thought.  The fact that you will then be able to, at any point in time, ask your children which emotion is at the console, will blow your mind.  With that simple question, you now have a tool to make the child become introspective about what they’re actually doing and why.

If you are not a parent then you need to go see Inside Out.  Don’t brace yourself; you don’t need this movie as the tool for parents that it is.  Just take the hit.  Take it.  TAKE IT.  The catharsis on the other side is kind of amazing.

Hat’s off to my new favorite Pixar movie.  I have a feeling I’m going to be watching this one over and over again to figure out exactly how they did what they did.  But for now, get thee to a theater and give Pixar your cash.  They earned it with this one.

The Streisand Effect

In 2003, Barbara Streisand sued a photographer for posting pictures of her beachfront home on the internet without her permission.

The photo was part of a 12,000 photograph collection, meant for the purpose of detailing shoreline erosion in California.  It was small, obscure, and nobody cared about it.  Yet in her zealous defense of her privacy, Ms. Streisand took this company to court anyways.

The result?  Well, everyone on the internet saw the photograph.  As soon as she drew that much attention to it, it became famous, and public record.  The very thing she was trying to prevent not only happened, but happened in a much larger and more spectacular way than had she just left it alone.

This gave a name to the phenomenon.  The Streisand Effect is now a recognized term.  Don’t believe me?  Well, it is.  I’m not usually one to cite to Wikipedia, but I can at least do that much to prove that this is a thing.

Why in the hell am I talking about this?  Well, that has to do with a mistake I see indie authors making far too often.

Dylan Saccoccio didn’t like his review.  He then went to the reviewer’s Goodreads page to rant about it.  Clearly, the reviewer was out to financially ruin him.  It couldn’t be that someone didn’t like his book.  So off he went, picking a fight with his reviewer, Amy’s Baking Company-style.  The result?  Well, it got so preposterous that it’s now linked around the internet.  Now Mr. Saccoccio is branded in my head as not only someone whose books I have no interest in picking up, but also as someone who I have no interest in meeting.  I don’t want to be on a panel with this guy; I wouldn’t want to talk to him at a con, and if I were a publisher I wouldn’t touch him with a ten-foot pole.  He’s radioactive, now, and that’s that.

And all because he didn’t like a review.

If he had let the thing slide, it would have been a single bad review.  Not great, but we all get them.  Not every person is going to like any given book.  If he had let the thing slide, it would have simply sat there.  Now that he has fought the thing, put extra effort into showing us all what an ass he truly is, he has managed to do what the review itself could not.

The reviewer was not trying to ruin you, Mr. Saccoccio.  You did that to yourself.  Time to pick up another pseudonym; this one’s done.