Dan Krisch ()
I am still in vacation mode. After a week happily spent consuming equal measures of blueberry pancakes, Doris Kearns Goodwin and Rummikub, returning to work has left me with a severe case of the mental bends. And while my brain adjusts to the pain of no longer quiescing in Maine, all I can muster up are a few Random Thoughts™:
• I had planned to write about the Connecticut Bar Association gun control amicus brouhaha, but I grow more torn every time I try to make up my mind about it. So, like Arthur Balfour on tariff reform, I’ll settle for nailing my colors to the fence and I’ll hope that my agonizing will help others similarly situated to find an answer:
On the one hand, the angels of my better nature whisper that lawyers have an obligation to speak out on issues of public concern—and the issues in the Shew appeal clearly are that. To speak effectively, moreover, lawyers must speak collectively; to triumph, as Edmund Burke famously noted, “the good must associate.” We have other professional associations, but our big professional stick (you can thank Goodwin’s fascinating “Bully Pulpit” for that metaphor), our most effective voice, is the CBA. If an issue merits the bar being heard, then the bar should not stay silent even at the cost of some intramural discord. We should, like Lewis Morris when urged by his brother not to sign the Declaration of Independence, say damn the consequences and give us the pen!
On the other hand, caution counsels that the two clauses in the CBA’s constitution that, by implication, authorize it to join an amicus brief are broad and extremely subjective. Article II states that two of the association’s purposes are “to promote the public interest through the advancement of justice and the protection of liberty,” and “to support or oppose legislation and regulations consistent with the interests of the public good and its members.”
The elasticity of each clause renders it immune to any meaningful or consistent application. Which side in Shew, for example, is advancing justice and protecting liberty? No doubt, both gun control advocates and opponents claim those moral high grounds for themselves. Indeed, justice and liberty arguably stand on opposite sides of the field in Shew: justice for the victims of gun violence warring with liberty for the rights of gun owners. Likewise, the post-Newtown gun laws may be consistent with the “public good,” but not with the “interests” of the CBA’s members (and vice versa).
Shew, I fear, is just the tip of the iceberg. The CBA has set a precedent for involvement in public policy-tinged cases in which these same conundrums are likely to arise. By joining an amicus brief, the CBA—albeit with wholly noble intentions—may exceed Bassanio’s warning and do a great wrong to do a little right.
• Welcome to Boehner-ville. Bereft of an actual legislative agenda—and immune, it seems, to any sense of shame—Little John and his Band of Merry (Congress) Men voted last week to authorize the House of Representatives to sue President Barack Obama for his supposedly “selective” enforcement of the Affordable Care Act. The dubious merits of Boehner’s suit aside (when it comes to governing by executive order, Obama is a piker compared to Ronald Reagan and George W. Bush), it takes a special kind of hypocrisy to sue over the failure to enforce a law that you vehemently opposed in the first place. Not since William Jennings Bryan urged Democratic senators to abandon their opposition to annexing the Philippines because Bryan needed a good issue on which to campaign in the 1900 presidential race has a political leader so elevated cynicism over principle.
• From the Weird Local Laws Department: A town ordinance in Cinnaminson, N.J., mandates “front-in” parking in commercial parking lots. Offenders who back it in can be fined and/or forced to listen to up to 10 hours of Juvenile rap songs. (That last part probably isn’t true, but it would be awesome if it were.)
• When non-lawyers ask me what kind of law I practice, I tell them that I mostly handle appeals. After the blank stares subside, I attempt to explain the nature of appellate practice. It is a halting, laborious exercise. I have yet to find a succinct “elevator speech” (buzzword alert!) to explain my job. I sometimes quote the old adage that appellate lawyers ride onto the field after the battle has ended and shoot the wounded, but that saying sacrifices accuracy on the altar of wit. Appellate lawyers don’t actually shoot the wounded; we either shoot, or take a bullet for, the trial judge. Really, we are kin to that angry gorilla in the old Samsonite commercial. We take a judgment and shake, stomp, batter and bash it around and if it holds up, then it’s probably the just result. (Bananas, preferably chocolate-dipped, cheerfully accepted.)•
Daniel Krisch is a partner at Halloran & Sage in Hartford, where he focuses on appellate and civil litigation. His email address is firstname.lastname@example.org and you can learn more about him at www.halloran-sage.com.