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The Florida Bar Journal
September/October, 2018 Volume 92, No. 8

Page 86

Gorsuch: The Judge Who Speaks for Himself
by John Greenya
Reviewed by Gary S. Gaffney
Author John Greenya has penned several books on Washington politics, and collaborated on a handful more, so this short, 200-page look at the youngest Supreme Court nominee in a quarter century is right in his wheelhouse. Indeed, not without coincidence, Greenya actually coauthored a book in the 1980s with Gorsuch’s mother, Anne Burford — the controversial head of the EPA during the Reagan administration — with whom he remained friendly until she passed in 2004. Greenya actually notes, “the book is about Neil, but it is also for his mother.”

Born in Colorado, in the late 1960s, Associate Justice Gorsuch remains somewhat of an enigma to Democrats and Republicans alike. Many folks focused more on the refusal of the Republican Congress to acknowledge President Obama’s appointee, Merrick Garland — and its use of the so-called “nuclear option” in the Senate to effect his confirmation — than to the judge himself. But in a noticeably flattering effort to help illuminate some of the more important aspects of Justice’s Gorsuch’s life, Greenya’s book fills that void.

Much of the source material for the book comes from interviews Greenya conducted with folks who know Justice Gorsuch, and via newspaper articles and other periodicals (from which Greenya quotes quite extensively). The format is essentially chronological; the text is neatly segmented into 10 relatively short chapters — all easy reading. He begins with Gorsuch’s early childhood, then goes on to discuss his education, his clerking, his work as a lawyer, his year at the DOJ, and a decade on the federal bench. In this way, Gorsuch illuminates the justice’s more significant legal (and political) influences: family, education, and career.

Chapter 7 provides but a brief glimpse into Gorsuch’s record on the 10th Circuit. Unfortunately, Greenya spends much of this chapter discussing Colorado v. Simpson, a case in which the court merely reversed a summary judgment (via an opinion Judge Gorsuch did not even write), and which, in fact, later settled. With some 3,000 cases from which to choose, one would think there was a better case to display Gorsuch here. Greenya also mentions two other cases (that Gorsuch himself presented at the hearings): Yellowbear v. Lambert (a prison-religious-freedom case), which most lawyers would agree, “could not have turned out any other way”; and the 10th Circuit’s treatment of the infamous Hobby Lobby case (an opinion that, again, Gorsuch did not pen, but merely concurred). While such sparse treatment might satisfy the lay-reader, one would think most lawyers will come away unimpressed by the breadth of “legal” coverage here.

Another chapter attempts to illuminate the similarities (and differences) in judicial philosophy that exist between him and Justice Scalia. As expected, Greenya explores concepts both jurist champion, like “originalism” and “textualism”; with perhaps the best distinction he draws coming between Gorsuch’s inherent “politeness,” and the unnecessary crassness and disrespect for his colleagues that Scalia sometimes incorporated into his writings.

The final chapter on the confirmation hearings describes the four-day process through transcript blurbs, quotes culled from a few senators, and articles quoted from the Washington Post, New York Times, Washington Times, and PoltiFact. Greenya essentially brushes off the great “filibuster” dispute (i.e., and the rule change effected by the Republican majority in the Senate permitting the favorable vote), quoting rather extensively from Mitch McConnell. To be fair, Greenya includes several opposition voices, including one correspondent who claimed that the rule change places the Court “in a position of institutional peril.” But again, the book does not dwell long on these issues.

In fact, throughout the text, Greenya offers relatively little critical analysis. Rarely commenting in first-person, he down plays Gorsuch’s alleged “plagiarism” (i.e., in his own book on assisted suicide) and does not personally criticize (nor endorse) Gorsuch’s infamous dissent in the otherwise polarizing “frozen trucker” case. He rather generically notes how a senator asked Gorsuch, “we need to know what’s in your heart” — but fails to mention that Senator Hirono, who was perhaps Gorsuch’s toughest interrogator, did not utter that comment fondly, but with serious concerns over his views on minorities and women’s rights. After remarking how Gorsuch “rarely seems to find in favor of the little guy,” she had mused, somewhat apprehensively, “we need to know what’s in your heart.”

Still, taken at face-value, the book is a useful resource, this despite the fact that others have criticized Greenya — perhaps justifiably so — for his all-too-favorable treatment of his friend’s son; because his primary research consists of common periodicals and a handful of personal interviews; and because the book includes a great deal of “quoted” material — rather than critical analysis. But the fact is, Gorsuch is not intended as a comprehensive treatment, Greenya is not a lawyer, and the book is more an informational brochure than a definitive biography. Viewed this way, Gorsuch offers something the confirmation hearings did not — an easily accessible backstory to our newest Supreme Court justice. And the reality is — now that he is on the bench — far more comprehensive tomes are coming. Stay tuned.

Gary S. Gaffney is a board certified real estate attorney in Delray Beach, and a long-time member of the Journal’s Editorial Board.

A Court of Refuge, Stories from the Bench of America’s First Mental Health Court
by Judge Ginger Lerner-Wren with Rebecca A. Eckland
Reviewed by Carol L. Zeiner
This skillfully crafted book is a page turner. Judge Ginger Lerner-Wren and co-writer Rebecca A. Eckland weave a wealth of information into gripping stories of real participants (defendants) (names and details altered to protect confidentiality) in the first mental health court in the U.S., located in Broward County.

We are drawn into the lives of Roger, Rosemarie, Beatrice, Larry, Margaret, and others as they suffer loss of self to untreated mental illness. Many become homeless; many attempt to ease their emotional pain by self-medicating with street drugs, only to make matters worse. Now, they have been arrested for a misdemeanor brought on by failure to conform to “normal” conduct. For those with families, we feel the anguish of parents, siblings, and spouses who shoulder the burdens of caring for mentally ill relatives. Most have struggled, unsuccessfully, to access scarce community mental health services for their disabled loved one.

This court, born from the activism of Broward County citizens, demonstrates an alternative to the criminalization of mental illness. It aims to break the cycle that fills court dockets, packs jails, exacerbates suffering, and produces loss of future wellbeing. The cycle: people with untreated mental illness sometimes cannot conduct themselves according to accepted norms. They are arrested, typically in the beginning with low-level misdemeanors like nuisance or possession of drug paraphernalia. Many deteriorate in jail while awaiting trial, unable to pay even a small bond. A significant number cannot comprehend why they are there. Incarceration is particularly dehumanizing for the mentally ill, many of whom suffer illness because of prior trauma. Incarceration re-traumatizes and exacerbates their illnesses; they are targets of victimization in jail. If convicted, they can face more jail time. Corrections officers sometimes interpret behavioral manifestations of illness as intentional misconduct; ill inmates are subjected to further sanctions. Upon release, the person is worse off. The cycle continues, and can escalate because deepening illness can trigger worse behavior.

In traditional criminal justice, those convicted take responsibility for their actions by undergoing punishment. In Broward’s mental health court, mentally ill participants who agree to participate take responsibility, but in a different way. They become the key players in their recovery, but with treatment and services that enable success. Participation is totally voluntary. Participants are not required to admit to wrongdoing, and can opt-out at any time. The court sets a welcoming, informal tone, infused with hope because mental illness is treatable. Guided by the theory and practices of therapeutic jurisprudence, the court strives to enable participants to regain dignity by giving them a voice, and the validation that comes from genuinely listening. Clinicians use each participant’s input to formulate a treatment plan and connect participants with appropriate treatment and services. Some participants are not successful and we share their pain along with the judge; many attain the lives they had hoped for.

Much is learned from the engrossing stories: the history and funding of mental health care; the criminalization of mental illness, and its self-perpetuating cycle. Readers learn of “sanism” that discriminates against people with mental illness. Despite gains in other subject matter, outright prejudice, and stigmatization can remain socially acceptable reactions to mental illness. Readers learn of false assumptions made by society and the legal system about people living with mental disabilities. Readers are introduced to therapeutic jurisprudence, an interdisciplinary field of philosophy and practice that examines the therapeutic and antitherapeutic properties of laws, public policies, and legal processes.

This court, designed by Judge Lerner-Wren in our Florida legal community, has become an exemplar throughout the U.S. and abroad. Even therapeutic jurisprudence has Florida roots, being co-founded by law professors Bruce J. Winick of the University of Miami, and David B. Wexler of the University of Arizona/University of Puerto Rico.

This good read is equally accessible to experts in mental health law and those new to the topic. It is a “must read” for practitioners and students in mental health law, social work, criminology, and psychology. Judge Lerner-Wren’s description of how therapeutic jurisprudence can be used productively in mainstream courts makes this an informative read for judges as well.

Carol L. Zeiner is a member of The Florida Bar, and a professor of law at St. Thomas University in Miami.

Locking Up Our Own: Crime and Punishment in Black America
By James Forman, Jr.
Reviewed by C. D. Rogers
“All of us in the public defender’s office fear the Martin Luther King speech.” Forman’s first line in this winner of the 2018 Pulitzer Prize for Nonfiction begins our challenging read. His last challenge is this: “Mass incarceration, as we have seen, was constructed incrementally, and it may have to be dismantled the same way.”

In 1995, “one in three young black men were under criminal supervision.” This resulted from the tough 1970 approaches to crimes. Our nation with “5 percent of the world’s population held 25 percent of its prisoners.” And invoking “Dr. King while locking up another young black man was perverse.” This occurred even in an all-black court in Washington, D.C., from judge, prosecutor, and court reporter.

“How did a majority in a black jurisdiction end up incarcerating so many of its own?” Foreman, current Yale law professor, focused on finding the answers: 1) Devastation of black communities from crime violence, heroin — later crack — and homicides was “the worst thing to hit us since slavery.” 2) The black communities chose to protect their communities. 3) Policies focused on communities’ needs, but “racism shaped the political, economic, and legal context” in which politicians were elected. No communities’ Marshal Plan appeared. 4) Although mass incarceration harmed black America, the major victims came from the “poorest and least educated blacks,” incarcerated for drugs and stigmatized for a lifetime.

Fear of crime crossed racial identities. Nationwide, gun laws were touted. And as Atlanta’s Mayor Maynard Jackson said, “‘We are living in an armed camp — an illegally armed camp.’” Getting rid of guns, however, faced barriers including the tradition to bear arms: both a tool for black “self-defenses and a symbol of black determination,” wrote Forman and referencing Nicholas Johnson’s “Black Tradition of Arms.” “‘I keep a shotgun in every corner of my bedroom and the first cracker even look like he wants to throw some dynamite on my porch won’t write his mama again,’” asserted one SNCC 1960s member.

Would more black officers help? But black officers remained unequal. Miami, for example, until 1962, had two criminal justice systems: “one for whites and one for blacks.” Separate arrangements for black officers, police station, black judge, and bailiff were never equal from social to economic. Black officers clarified their interests: “Police work was a good job — stable, secure, with good benefits, representing “a step up from their parents’ achievements.” The black officer changed few police policies. Nationwide, even the well-intended policies often led to worst of all possible worlds

Forman recommends two major sources for achieving change: 1) the public by focusing on treatment rather than prisons, “funding public defenders adequately,” “restoring voting rights to those who have served their sentences, building prison’s public schools, “welcoming — not shunning and shaming” — those released from prisons, and redoubling efforts at both state and local levels. 2) “Personal challenges matter too.” We each have power “to push back against the harshness of mass incarceration.”

C. D. Rogers is a member of The Florida Bar.

[Revised: 08-23-2018]