May 1, 2019 Letters
In regards to Santo DiGangi’s April letter on taking paternity leave, what a difference two states make. In California we have a statutory requirement for 12 weeks of parental leave (not based upon gender). But my experience here differed. When my child was born, I told my employer (a government agency, which you might think would follow the law), that while I needed parental leave, since I was a lawyer I would be available 24/7 but would not come in to work. The employer took advantage of that, even calling me in the labor room. But after seven weeks, I was pressured into returning to work.
Seeing that I would not be afforded the time to raise my child (having made the decision to be a parent, I resolved that that was the priority in my life), I sought employment elsewhere. I found it, and arranged again to be available 24/7, but not always in the office, so I would be a parent.
Unfortunately, after some years, the employer reneged on the agreement. At that point, being unable to obtain employment elsewhere, I gave up my career as a lawyer and became a full-time parent.
To paraphrase Robert Frost, at each stage, two courses diverged. And at each stage, I chose the path less followed. And that has made all the difference in the world.
I encourage you to speak up no matter the headwinds. That is the right thing to do.
Like my esteemed colleague, George Waas, I too “have to smile” when people say they want judges to interpret the Constitution (or any other legal text) according to “how judges want the law to be.” Mr. Waas (whom I have faced at trial and appellate levels and for whom I have the utmost respect) appears to wholly disregard the most important and unique aspect of our beloved Constitution: the separation of powers.
Essentially, Mr. Waas’ argument for the “living Constitution” approach is simple: interpret the law according to contemporary conditions or circumstances and avoid relegating written law to “horse-and-buggy” days. If this is indeed the preferred method of interpreting legal texts, why should we continue to employ a legislator at all? Why have a written constitution if the words on paper cannot be interpreted and applied until some unknown time in the future when the judges know how the law should be applied (and only after review of “contemporary conditions or circumstances”)? More importantly, if [federal] judges are to say what the law is by applying contemporary conditions or circumstances, why would the few (judges) making decisions for the many (the people) not be elected by the many?
When judges apply contemporary meaning to words written, intentionally written, in noncontemporary times, the will of the people is invariably cast aside and our democratic system is rendered mere form without substance. Why? Because our Constitution specifically, and intentionally, removes federal judges from the political process so as to permit judges to base their rulings on the law and not fear of the ballot box. This is the very reason we do not confer life tenure on elected officials of the other branches of government; because those branches are in place to be the voice of the people and the people have a right to vote out of office those who do not carry out their will. I cannot speak for Mr. Waas, but the thought of nine unelected lawyers making result-oriented decisions or allowing personal/policy preferences to seep into judicial decisions that will bind the country at-large is absolutely cringe-worthy. We vote other people into office to hear and consider the whims of the people and enact law accordingly. If we do not like the laws, we have the most powerful recourse available to us: removal from office (whether by way of impeachment or a trip to the ballot box). When a federal judge, cloaked in life tenure, makes an unpopular or undesirable decision, the decision (and the decision maker) are virtually untouchable by the ballot box as the only recourse of the American people is impeachment (of the judge) or amendment of the Constitution itself.
Our system of government simply was not designed to allow the types of shortcuts that occur when judges bypass Congress in creating new rights that were neither included in, nor contemplated by, our founding document. For nearly 70 years, the prefered path to obtaining “new” rights has been not the path dictated by the Constitution (see 10th Amendment), where the people seek change via Congress or constitutional amendment; but by bypassing Congress, going straight to federal courts and pleading “this should be a constitutional right!”
Once this occurs and law is created by judicial fiat, the people have lost all of their power. Judges are simply too far removed from the people to know, much less consider, the wildly scattered and varying views of more than 300 million people as to what the law should be. The textualist approach is the only effective way to maintain consistency in the law and preserve the democratic process.
I respectfully dissent.
Military Spouse Rule
I find it interesting that the Supreme Court has adopted a rule, with the support of the Bar, which allows non-Florida Bar members to practice law in Florida.
In a press release the court stated: “It is our hope that the adoption of these new rules will assuage some of the hardships associated with service in the U.S. Armed Services.” There are hardships involved with spouses of any number of Cabinet-level positions who move here, unaddressed by the rules.
This is a laudable goal, but it sets precedent for any number of government employees, many of whom are as vital to the security and economy of the U.S. as the military are, to seek equal treatment.
As we know, all militaries are about 20% “tooth” and 80% “tail.” Supply chain and logistics, intelligence, and related functions that could be done from just about anywhere in the world are vital, but so are many other government jobs.
An argument can be made for the spouses of USPS, DHS, Department of Agriculture, and state employees who ensure the mail moves, travel is safe, our food is safe and wholesome, and relations with other countries are properly maintained and furthered, also deserve equal treatment. The employees of most Cabinet-level operations employees are arguably at least as important as a non-combat, office-level person in the military.
I respect the military and honor their service, yet at some level, there are equally important roles in government service that are fundamentally no different than the vast majority of service members. I’m not convinced there’s much of a difference between the roles played by back office employees, and this potentially sets a precedent for tens of thousands of new lawyers, unfamiliar with the vagaries of law in Florida to start practicing here.
For what it’s worth, our son volunteered to serve as a combat paratrooper in the Israel Defense Force, and served in a forward position on the Lebanese border for two years. Thankfully he never fired a shot in hostilities.
Paupers Make for Poor Clients
I have written in the past about what seems as the destruction of the middle class and how it bodes poorly for our profession.
If half of our future clients are semi-destitute how can they hire legal counsel?
In Osceola County, 63% of kids are on free or reduced lunch, 2,000 are living in motels, and one half of all Osceola infants are born on Medicaid. Our jury panels are filled with folks who have no stake in the outcome of their service. They live an unjust existence and have little concept of citizenship since they have no hope of bettering their lives or those of their children.
The Bar needs to face this disaster head on and send lawyers to the first grade in all low-income public schools so the profession can see first-hand the gathering twilight of our republic.
Forcing us lawyers to come face-to-face with the reality of pauperism may open our eyes and endorse real wage inequality reform and steps to end educational futility.