Archive for July 5th, 2010

Sounds Of Silence

Before I could come to any conclusion it occurred to me that my speech or my silence, indeed any action of mine, would be a mere futility. What did it matter what any one knew or ignored? What did it matter who was manager? One gets sometimes such a flash of insight. The essentials of this affair lay deep under the surface, beyond my reach, and beyond my power of meddling.

—Joseph Conrad, Heart of Darkness

It’s too bad that Joseph Heller didn’t live to see this one.

Then again, maybe it isn’t.

The United States Supreme Court has ruled that in order for a criminal defendant to invoke and enjoy the Fifth Amendment right to remain silent, s/he must first speak.

The 5-4 decision enshrining Catch-22 into American case law was written by Justice Anthony Kennedy. Probably Kennedy once read Catch-22, many years ago. But clearly he has forgotten all about it.

Kennedy is on the US Supreme Court because of Jerry Brown. Who has now been selected by Democratic primary voters as their candidate for Governor of California in the fall. Brown, when he still had hair, already served as governor of this state. Twice.

Brown, when he had a lot of hair, failed the California bar exam on his first try. Brown’s father, Edmund G. Brown, then serving as Governor of California (yes, we have political family dynasties in this country), called upon Anthony Kennedy, then a constitutional law professor at McGeorge School of Law in Sacramento, to serve as Jerry’s personal tutor.

On Jerry’s second attempt, he passed the bar. Everyone was happy. Some years later, when a vacancy opened up on the federal Ninth Circuit Court of Appeals, Edmund G. Brown recommended Kennedy. This was back in the day when Democrats and Republicans cooperated in appointing people to the federal bench. And so Kennedy was given a seat, in 1975, by President Gerald Ford, and a compliant Congress. For helping Jerry Brown, Kennedy had received his reward.

But it didn’t stop there. Twelve years passed. Then Robert Bork crashed and burned, having unwisely decided that the way to impress the Senate Judiciary Committee with his qualifications for a seat on the Supreme Court was to come off like Torquemada. Then it was learned that Bork’s would-be successor, Douglas Ginsburg, had liked to sit around with his students there at Harvard, smoking marijuana. So they burnt Ginsburg, too. Finally, on his third try, President Ronald Reagan decided to nominate Anthony Kennedy. And Kennedy was confirmed.

And Kennedy sat up there for 22 years, before puckishly slipping into the clownshoes to insert Catch-22 into the Fifth Amendment.



When I Worked

July 2010
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