Sunday, April 25, 2010

We have to rally for beliefs - by Judge Jim Gray

On April 15, my friends Sid and Carole Spinak invited me to join them at the Tea Party rally at the Plaza of the Flags in Santa Ana, just behind the courthouse. Never having attended such a gathering and wanting to see what it was all about, I agreed to go.

After all, it was Tax Day.

And it was quite an assemblage of people. From what I saw it was a grassroots movement that had almost no formal organization or individual candidate behind it. Nor could I perceive any racism of any kind. Instead it appeared to be a gathering of people joined by common views and frustrations at the direction that our great country has been taking over the last decade.

The most common themes discussed by the speakers, and represented by the handmade signs carried by those present, were getting back to limited government and away from socialism, reducing government spending and lowering taxes, and getting back to individual responsibility and away from the concept that government can do everything for us.

For many reasons, it was uplifting to see so many people willing to take the time to exercise their rights of free speech, and to show a tangible concern over our country’s present situation. Many of them carried American flags, and others carried “Don’t Tread on Me” flags, or their own handmade signs.

Some of the signs defined “TEA” as “Taxed Enough Already,” which also explained why some of the sign carriers were “TEAd off.” Other signs made their economic views quite clear by saying things like “The American Dream Is Not a Handout,” “Free Market, Not Freeloaders,” “Stop Spending,” and “You are not Entitled to What I Earn.”

My friend Sid’s sign actually won my personal contest for being the most creative and artistic. It said: “Uncontrolled Spending; Massive Debt; Unlimited Government; We do not Consent!”

Much of the attention and wrath were aimed at the new health-care legislation (I am unable to call it “reform”), such as “Obamacare: the Efficiency of the DMV, and the Compassion of the IRS.” Of course the members of Congress were also the objects of a large amount of scorn.

For example, “Want a Job? Replace Congress,” “The Servant is not the Master,” “Cadillac Care for Congress — Clunker Care for Us,” and “Next Time Read the Bill Before You Sign!”

In addition, and from what I can tell, the Tea Party movement is not just a gathering of so-called right-wing Christians, even though that is what the media tries to imply. To the contrary, there was a wide diversity of people present, and even a few signs saying things like “Dems Against Obama Policy.” I even met August Lightfoot, who has commented both favorably and unfavorably in print about my weekly columns. In fact, it was a pleasure to shake the hand of someone who cares enough to be so active.

The old patriot Patrick Henry also made an appearance, and gave a reprise of his historic: “I know not what course others may take, but as for me, give me liberty or give me death” speech. Something like this is always good for all of us to hear.

But many of the speakers were current political officeholders and candidates for political office. That really surprised me, because it is my sense that the movement tends to mock and spurn politicians. In fact I wondered how many people in attendance actually appreciated the irony of Scott Baugh, chairman of the Orange County Republican Party, being at the microphone and saying things like, “Throw the bums out!”

One of the big criticisms of the Tea Party movement was that there were similar events staged on Tax Day last year, but that nothing much had happened since. In fact, it could be that many of the signs used this year were simply left over from last year.

Well, it takes more than that because the answer is not to let your passions and beliefs be dormant. I twice ran for federal political office, once as a Republican and once as a Libertarian, and those experiences left me with the demoralizing conviction that money is much too important in our elections.

To counteract that problem, each of us must be much more active in pursuing and upholding our beliefs — whatever they may be.

So when someone knocks on your door or asks you at a supermarket to sign a petition or give your support to a candidate, thank them, regardless of whether you support that particular position or not. We need everyone’s participation in this process.

And that includes your participation as well. Educate yourself as to the issues. And no matter what your position is, find others who share it, and then hunt for and support a good candidate to promote it in public office. Our politics and economy have become a mess because We, the People, have been lazy. Shame on us!

Finally, regardless of what your political affiliation is or the issues you hold dear, I hope you agree with the person who held up the Tea Party sign “Our Kids Will Inherit this Mess.” And I also hope you agree with the person whose sign read “It Is Time to Water the Tree of Liberty.” This is an important period in our country’s history, and it is our children and grandchildren’s liberty and economic futures that are at stake!

Thus, each one of us should be doing more than carrying a sign once a year at a rally. Why? Because, once again, if our government isn’t working, we have no one to blame but ourselves!

JAMES P. GRAY is a retired judge of the Orange County Superior Court, the author of “Wearing the Robe – the Art and Responsibilities of Judging in Today’s Courts” (Square One Press, 2008), and can be contacted at or via his website at .

Tuesday, April 20, 2010

Follow the law, not hearts - by Judge Jim Gray

News flash! The Obama administration will not be nominating me, or any other Libertarian, to fill the seat of retiring Justice John Paul Stevens on the Supreme Court of the United States. Among other things, the reason is that our judicial philosophy is to follow the law, and one of the stated important qualifications for the Obama administration is to employ the concept of “empathy.” Unfortunately, this is yet another example of the movement to “politicize” the judiciary, and this movement is leading us astray.

It is clear that empathy is a fine character trait for any human, and that certainly includes judges. But for judges to employ empathy in their decision-making implies that they would tend to find in favor of the “poor,” the “little guy,” the “minority person” or whatever group or cause that happens to be the object of public sympathy at the moment, regardless of the merits of the case. And, of course, that would come at the expense of the “greedy rich,” “nasty employers,” “big corporations,” or, well, you fill in the blank.

Also under this approach it would not be a big step for judges to start supporting one favored ethnic group, religion, gender or even political party at the expense of the less-favored. And I hope everyone will see that this is not where we want our justice system, or our country, to go.

Now that does not mean that judges are not frequently in a position to reasonably determine the equities or be affected by concepts of “fairness” in some cases. Far from it. In fact, if there were no interpretations or judgment calls to be made, we could simply hand our judicial robes to computers.

But, candidly, during my judicial career there were quite a few times in which I would hear small claims or other civil cases without a jury and inwardly root for the more sympathetic party. But once the evidence was submitted, as much as humanly possible, I tried to carry out my constitutional responsibilities and issue my rulings controlled by the evidence and the law. Naturally that also meant that I was required to follow the laws and judicial precedents as best I could, even when I disagreed. And I instructed my jurors that they were under the same obligations.

From what I observed, former Chief Justice Rose Bird of the California Supreme Court would have passed the Obama administration’s empathy test. She certainly cared about people, which was fine, but she often was influenced by that caring to rule in favor of some parties, even when the facts, law and established legal precedent did not support it.

The problem with that approach is that it makes “forseeability” in the law almost impossible. Why is that such a problem? Because all disputes in society simply cannot be litigated. And fortunately they will not have to be, as long as attorneys and everyone else can, with some reasonable degree of certainty, anticipate in advance how the laws would be applied by the courts if the case actually did go to trial. This allows everyone to adjust their actions accordingly, which in turn allows society to function much more smoothly and efficiently.

Unfortunately we recently saw legal precedent virtually being ignored in the recent Citizens United case by the so-called conservative Supreme Court of Chief Justice Roberts. In that case, the Supreme Court held that corporations could spend without limits in elections for candidates or causes, as long as they spent the money separately from the political campaigns themselves.

The stated rationale was that the majority on the court felt, contrary to many prior Supreme Court decisions, that corporations should have the same constitutional rights as people. (And corporations just happen to have a tendency to finance more conservative causes.) So if I am right in my assessment, this is a political result, and thus a truly harmful way to conduct judicial business — if you believe in a neutral court system and the Rule of Law.

Of course, there are some rare occasions in which prior precedent should be rejected and new precedent established. For example, the 1954 case of Brown v. Board of Education of Topeka, Kan. broke away from the precedent established in 1896 by the case of Plessey v. Ferguson regarding the constitutionality of allowing “separate but equal” facilities for African Americans. But in that case the High Court had the benefit of the intervening 58 years of experience, which showed that the facilities were by no means equal, and also the benefit of changing times during which many people had come to realize that segregation was simply wrong under any reasonable sense of morality. But, once again, this should happen only rarely.

Having said all of this, I am proud to report that, based upon my 25 years as a trial court judge here in Orange County, I believe that most judges do their absolute best to follow the law. In fact, I am proud of our judges here and believe that you should be as well.

But at the same time I am deeply concerned to see the increasing politicization of our federal appellate courts. So I recommend that as we approach the upcoming elections, you consider only supporting candidates for Congress who convince you that they will only vote to confirm judges who, in turn, convince them that they will maintain the independence of the judiciary and follow the Rule of Law. Our country is based upon justice being independent from politics or favoritism of any kind, and each of us must do our part to keep it that way.

JAMES P. GRAY is a retired judge of the Orange County Superior Court, the author of Wearing the Robe – the Art and Responsibilities of Judging in Today’s Courts (Square One Press, 2008), and can be contacted at or via his website at .

Monday, April 12, 2010

Our brains are our strength - by Judge Jim Gray

During my recent trip to Hong Kong, Vietnam and Cambodia, I noticed that American goods and services were prominently available in each of those countries. This started me thinking that, with all of the poor economic news about our deficits, joblessness and trade imbalances, maybe we should focus more on those commercial areas where we still dominate the world and are at least fully competitive.

So, further being reminded of FDR’s comment that “the only thing we have to fear is fear itself,” we should remember that we still have lasting economic strength in much of the world’s markets. Our outlook should reflect that reality. In other words, we still have cause for optimism.

Today, among other things, American companies are dominant in the overnight package delivery business with UPS and FedEx Corp.; the credit card business with VISA, MasterCard and American Express; the fast food industry with McDonald’s Corp., KFC and Burger King; the soft drink industry with Coca-Cola Co. and PepsiCo Inc.; consumer electronics and software with Microsoft Corp., Oracle Systems Corp., Apple Computer Inc., and Google; and the entertainment industry with movies, television, news, sports coverage and popular music.

We are also highly competitive in the stock brokerage business, the hotel industry, world engineering and construction, the oil industry, the airplane industry, farm tractors and bulldozers, aircraft engines, the dental and eye care industry, and, sadly, the cigarette industry.

Furthermore, United States companies are among the leaders in the world in pharmaceuticals; heart valves, pacemakers, and hip and knee replacements; breakfast cereals and other packaged foods; aerospace, rocket control systems and business jets with companies; elevators; and venture capital.

And Nike Inc. is simply a world leader in sports shoes and wearing apparel. We also mostly lead the world with technology and inventory control with large retailers like Costco Wholesale Corp., Wal-Mart Stores Inc. and Best Buy Co.

And don’t be misled: today General Motors Corp. and Ford Motor Co. are producing some of the world’s best automobiles, vans, SUVs and small trucks. For example, the new Cadillac recently beat the BMW 5 Series in many important performance tests. And these are just some samples that I know of where American companies are highly competitive — surely there are many more.

So let’s not get carried away about how bad things look for us economically, even in these hard times. Yes, Japan, Korea and China are much more competitive now. But Japan’s economy is still struggling, and the quality of many of China’s products is increasingly seen as questionable.

Furthermore, although India has benefited from much outsourcing business, we are beginning to see some companies like United Healthcare bringing their work back here because India’s quality control is often not seen as high as we can consistently provide here in America.

We must also, of course, realize that we will probably never again compete with countries like Vietnam, Malaysia, India and China in low-cost labor. We can compete with our brains, but not our brawn. This means that those people in our country without an education who used to be able to have a reasonably good lifestyle, by working in factories and in other unskilled jobs, now run the risk of being left behind. Thus we all must help everyone to focus upon the importance of getting an education so that they can be marketable.

And then there are our universities. Although there are many good universities today in China, India and much of Europe, the United States still dominates the world in this critical area. Of course, we are not supporting our public universities nearly as much as we once were, and their quality cannot help but suffer eventually as a result. For example, California only provides about 15% of the funding for UCLA. But so far our universities are mostly holding their own.

So where does all of this leave us? We must once again focus upon the reality that businesses, whether they be small, medium or large, create the jobs that make and keep our economy strong. Thus the more we can do, within reason, to make our environment business friendly, the better off everyone will be.

For example, Intel Corp. recently left California and opened up a new plant in Oregon, and other companies are doing the same in Arizona and Nevada. Why? Because those states are seen as much more business friendly. That does not mean that we must abandon our environmental or anti-trust laws, or regulations promoting things like safety in the workplace. But it does mean that our governments and our laws must become more friendly for businesses, or they will either fold or move.

All of us can help. Elections are fast approaching for federal, state and local officeholders. So we should educate ourselves about the backgrounds and positions of the candidates. Read their materials, listen to their presentations, and ask questions — and follow-up questions — about where they stand.

If candidates favor more government regulations and controls, consider supporting and voting for someone else. California is one of the least business-friendly venues in the western United States, and we have the loss of jobs to prove it. Turning this around will largely determine whether we can continue to be optimistic about our financial future.

JAMES P. GRAY is a retired judge of the Orange County Superior Court, the author of Wearing the Robe – the Art and Responsibilities of Judging in Today’s Courts (Square One Press, 2008), and can be contacted at or via his website at .

Monday, April 5, 2010

Cambodia shows progress - by Judge Jim Gray

My recent trip to Vietnam and Cambodia with my wife, Grace, consisted mostly of a visit to Ho Chi Minh City, formerly Saigon, and a five-day boat trip up the Mekong River to the Cambodian cities of Phnom Penhand Siem Reap, near Angkor Wat. Our visit to Ho Chi Minh City was the topic of last week’s column. Today, I will discuss our trip to Cambodia.

The highlight was our visit to Angkor Wat, and they truly lived up to our high expectations. This huge complex began in the 9th century and prospered until the 13th century. Many of the statues and stone carvings that have been protected from the elements look like artistic masterpieces that could have been created last week. It is well worth a trip to Cambodia just to see Angkor Wat alone: a truly amazing, inspiring and wondrous creation!

We also visited the holocaust museum in the capital of Phnom Penh. Tuol Sleng was a high school used to imprison and torture thousands of Cambodians for — as they frequently told us — three years, eight months and 20 days between 1975 and 1979. Most of the prisoners were subsequently taken out to the “killing fields” and executed with a club to the back of the head. The victims were the so-called traitors to the revolution, as well as the nation’s educated class or “intellectuals.” They included anyone considered to have had a relationship with the West or anyone who wore eyeglasses — as well as the children of any of the above. As a result, children were callously executed by having their heads beaten in with sticks and clubs.

What I had not focused upon previously was that this genocide was influenced by Mao Tse Tung from Communist China. It happened not long after China’s so-called Cultural Revolution, and was carried out by the Khmer Rouge, which are the French words for the “Red Khmers.” And, just like in China, many from the communist guard were young teenage boys who were given AK-47s and let loose on the population.

By the time it ended, 1.7 million Cambodians, or 21% of the population, perished under Pol Pot’s regime, according to Yale University’s Cambodia Genocide Project. Thus from what I could tell, “The Killing Fields” was unfortunately quite accurate with regard to the bloodbath, although many of the Cambodians perished from starvation and disease that resulted from the KR’s radical policies.

For this reason, half the population is younger than 20. It has also made Cambodia one of the poorest Asian countries. Cambodia is also one of the worst offenders when it comes to human trafficking. This appears to be the mind set because a recent poll showed that 75% of the women in Cambodia feel that it is all right to be beaten by their husbands.

Furthermore, few of the side streets are paved, and education is not compulsory, although it is free through the elementary grades. But for many, higher education is simply not available, either because of the cost or because the children are needed to work to help to support their family. In fact, none of the nation’s three top rulers has a high school degree.

In addition, 29% of its population has access to toilets, which means dysentery is a major killer. Nevertheless, the Cambodian people, whose ethnicity is different from the Vietnamese, were almost uniformly pleasant and cheerful. It was as much of a pleasure to be with them as with the people of Vietnam.

Cambodia uses American dollars as a currency, and, as you can imagine, the cost of living there is quite low. For example, where an hourlong massage costs $12 in Vietnam, a Khmer massage (which is different from anything I have had before and is outstanding) costs $5 for an hour in Cambodia.

But one thing that really stayed with me was the times that I looked at some of the teenage girls who were living on houseboats on the river as they were watching our tourist boat go by. They would look at us in a way that expressed a deep resignation that they knew that their lives would never be any better. They would eventually get married and have children, but still live as fishermen in these same houseboats on the river.

I wish I could take some of our children here in the U.S. and impress upon them the importance of their staying in school and getting an education. So many of these young Cambodians are absolutely desperate to have the education that many of our children are simply throwing away!

But slowly things are getting better in Cambodia. There seems to be a fair amount of freedom of the press, because several of the newspapers I read included articles that were actually critical of the government. Clean drinking water also now seems to be much more readily available, and prison reform is increasing, as is access to their justice system. Religious freedom in the country also does not seem to be a problem, and at least the girls seem to have a veto power over whom they will marry. In addition, tourism dollars are increasingly flowing into the country, at least in Siem Reap, although tourists still must procure a cumbersome and expensive visa to enter the country.

It was a great trip and one that I would recommend to any semi-adventurous travelers. But, as my father used to say, the best part of any trip is coming home. Our visits to Vietnam and Cambodia further helped me to appreciate what we have in our wonderful country, even to the extent that it makes my paying our income taxes in a few weeks quite a bit more palatable.

JAMES P. GRAY is a retired judge of the Orange County Superior Court, the author of Wearing the Robe – the Art and Responsibilities of Judging in Today’s Courts (Square One Press, 2008), and can be contacted at or via his website at .