Of big bands and a big man

Justice George Nicholson serves on the California’s Third Appellate District Court of Appeal. Our post on the occasion of Artie Shaw’s birthday earlier this week prompted the following message from Justice Nicholson:

I just read your post on Artie Shaw. We lost a remarkable jurist, Presiding Justice Robert K. Puglia, a few weeks ago to cancer. Too soon! Justice Puglia was a Big Band expert. He maintained a collection of thousands of discs. He had a photographic memory, of the law, of the Civil War, and many other things, including the Big Bands. Shaw was one of his favorites.

When Bob was diagnosed in January of this year, he was in robust health. He rode his bike 20 miles a day, on a river trail near his home, several days a week. He was gone but two months later. In that short period his health, his strength declined, precipitously and quickly. He was unable to accept visitors. We decided to visit him, through the radio, with his Big Band music. We had discreetly inquired of him what were some of his favories. His children then “borrowed” the discs that contained the 13 songs we used.

Bob was a Boalt Hall alum, but the joy of his undergraduate years at Ohio State and his devotion to the Buckeyes continued to his death. So we asked Jerry Healey, the “voice” of the Buckeyes for many years, to host the radio show. Thirteen of Bob’s friends, including U.S. Supreme Court Justice Anthony M. Kennedy, and California Supreme Justice Janice Rogers Brown, spoke to him briefly and each introduced one of the 13 songs. Bob heard and tearfully enjoyed the program about a week before he died.

You may listen and, perhaps, post a link to the Big Band Tribute to Presiding Justice Robert K. Puglia for your readers, by going here.

Ours is a unique legal community. We take care of one another and aid those among us who need help. Justice Puglia was the best among us at that. He was a mentor to lawyers and judges, especially his colleagues on the Third Appellate District, for more than the quarter century he served that court as presiding justice. He was my mentor for decades. More importantly, he was Justice Janice Rogers Brown’s mentor. She wrote and delivered the most compelling eulogy to him I have ever heard. She was in tears as she delivered it. So, too, were the 1, 500 of us who attended the memorial service. (You will be especially taken by the references to Atticus Finch and to Justice Puglia [in Justice Brown’s eulogy]. The tears became torrents as Justice Brown closed.)

Justice Puglia’s final, major public address was delivered on Law Day, 1998, the year he retired from our court. He called it Freedom is Not Free. (The final paragraph is a treasure.) In it, and while delivering it, we all felt we were in the presence of one of America’s brightest lights, as a jurist and a man.

Justice Brown’s eulogy is worth a look for the light it sheds on her as well as Justice Puglia. Here it is:

Justice Robert K. Puglia was described—not too long ago—as “a treasure” to Sacramento’s legal community. It is no exaggeration to say that his wit and wisdom will be irreplaceable. Justice Puglia once referred to himself—with the self-deprecating humor that was so characteristic—as “a dinosaur.” At his retirement dinner, I ventured to say that he was “not so much a dinosaur as an ancient artifact. Like the Rosetta Stone. A text from which we could decipher the best of our past and—if we are lucky—find our way back to the future.”

We are here today, much too soon, to celebrate his life, his legacy to us. The Library and Courts Building was his home for nearly 30 years. He worked there as a newly minted lawyer during a brief stint as a deputy attorney general in 1958 and 1959, and returned in 1974 when he became a member of the Third District Court of Appeal, a court where he served as the presiding justice from 1974 until November 1998. In 1994, after a reception welcoming me to the court, we stood on the steps of the court building and looked across the circle toward Office Building 1 at the words carved on the pediment: “Men to Match My Mountains,” a fragment from a poem by Samuel Walter Foss called “The Coming American.” Justice Puglia gave me the sidelong, sardonic glance, which I already recognized as a sure prelude to some outrageous comment. Giving an exaggerated sigh, he said: “I suppose we will have to sandblast those words and come up with something more politically correct. Perhaps—”People to Parallel my Promontories.” We both laughed. In its fuller exposition, the poem is a paean to the westward expansion of the country:

Bring me men to match my mountains,
Bring me men to match my plains;
Men to chart a starry empire,
Men to make celestial claims.

* * * * *

Men to sail beyond my oceans,
Reaching for the galaxies.

* * * * *

These are men to build a nation,
Join the mountains to the sky;
Men of faith and inspiration…

In retrospect, it occurs to me that although Justice Puglia was inordinately proud of his Buckeye roots, like Norton Parker Chipman, the first Chief Justice of the Third Appellate District, he was also a citizen of California who filled a larger-than-life role. He was one of those men who matched her mountains.

As a young lawyer who did appellate work, I quickly came to admire Justice Puglia’s jurisprudence. His opinions were intelligent, wise, witty, clear and completely accessible. He did not write in the dry, dull, bureaucratic style of most modern judges. His thoughts, clearly and eloquently expressed, were sometimes impassioned. Indeed, he made passion respectable. His opinions exude the rare sense of style and unique voice that Posner tells us is “inseparable from the idea of a great judge in [the common law] tradition.”

Justice Puglia deserves a place in the pantheon of great American judges. He completely understood the role and relished it. He exhibited the classical judicial virtues: impartiality, prudence, practical wisdom, persuasiveness, and candor. He demonstrated complete mastery of his craft. He had a keen awareness of the ebb and flow of history, and of the need for consistent jurisprudence, and, above all, self-restraint. It may sound odd to describe a judge as both passionate and restrained, but it is precisely this apparent paradox—passionate devotion to the rule of law and humility in the judicial role—that allows freedom to prevail in a democratic republic.

The generation that fought in World War II has been labeled “The Greatest Generation” for their courage and selflessness, but that sobriquet belongs as well to their younger brothers who fought in Korea. Their attitudes were shaped by many of the same pivotal moments in American history, and Bob Puglia exemplified the best of his generation. He was born on the cusp of the Great Depression and came of age during Word War II. He became a devoted student of history, and perhaps that is why he seems to have had an instinctive appreciation of valor, duty, and sacrifice.

He scorned political correctness, but he treated every human being with dignity and respect. Whether he was dealing with the janitor or the Governor, he never saw people as abstractions, proxies, or means to an end. He saw them as individuals and took them as he found them; expected the best of them; and never demanded more of anyone than he demanded of himself. His sense of fairness and justice applied to everyone, but his sense of humor was irrepressible. In one memorable case where a defendant filed an appeal quibbling over the deprivation of a single day of credit, Justice Puglia agreed with the inmate in a brief unpublished opinion. He found the court had miscalculated, and ended the opinion with the cheery admonition to “have a nice day!”

In my youth, I admired and respected him and wanted to emulate him. As I grew older and had more opportunities to get to know him, to become first an acquaintance, then a colleague, and a friend, I came to love him. I do not think there is one person within his orbit who was not the beneficiary of his wisdom, encouragement, and generosity. He gave us his “Rules to Live By” to amuse us. But, the way he lived his life inspired us. He was devoted to his wife Ingrid and endearingly proud of his children. Indeed, he had a disconcerting tendency to adopt any of us when he felt we needed guidance.

He taught us that character counts and integrity is personal. He never allowed cruelty or deception or hypocrisy to go unchallenged. He did the right thing even when he would have benefited from doing the expedient thing. Freedom is not free he would often remind us, but, in Justice Puglia’s view, it was worth the price—however dear.

His life experience and his understanding of history produced in him a certain toughness—the power of facing the difficult and unpleasant without flinching; discipline and intellectual rigor; physical courage; and, even more importantly, the courage to be different. Never one to follow the herd of independent minds, his was a unique voice. As California’s Chief Justice has ruefully acknowledged, Justice Puglia was “a strong personality. . . not shy of stating his beliefs, nor about challenging others to justify theirs” but surprisingly willing to listen and modify his views. He was, as his long-time colleague Justice Blease noted: “formidable” and “intimidating,” but he had a “heart of gold.”

There are so many themes and threads that run through Justice Puglia’s life and the history of the Third District Court of Appeal that I do not think it can be mere coincidence. Norton Parker Chipman had stood on the battlefield at Gettysburg when Lincoln gave that memorable speech. Justice Puglia was a student of history—especially the Civil War era. He could speak of Andersonville and Robert E. Lee and the battles of that terrible war as easily as other people recite the latest baseball scores. There are similarities in the descriptions of Justice Puglia and President Lincoln that are striking.

In a speech in 1906, Norton Parker Chipman recalled that his friend Abraham Lincoln was “firm as the granite hills,” yet capable of great patience and forbearance. Carl Sandburg described Lincoln as “both steel and velvet . . . hard as rock and soft as the drifting fog.” Reading these words caused a shock of recognition, for I had been seeing exactly this sort of paradox and contradiction in the life of Justice Puglia.

Seeing these parallels, I have come to understand that this flexibility is neither paradox nor accommodation. It is just the opposite—a sense of sure-footedness and balance that is often the defining trait of people of great character and impeccable integrity. It is precisely this quality which makes the honest public intellectual, a man like Bob Puglia, so extraordinary.

In his first message to Congress in 1862, Lincoln warned that we might “nobly save, or meanly lose, the last best hope of earth.” Lincoln, of course, was referring to the Union. Justice Puglia felt that same sense of fierce commitment to the rule of law. The preservation of the rule of law and of the equality of all people under that rule was, in his view, the core principle of liberty and the only reason America might qualify for such a grand epithet.

My favorite movie scene is in To Kill a Mockingbird. It is the scene where Atticus Finch has argued brilliantly and raised much more than a reasonable doubt, virtually proving the innocence of the accused, but the jury still returns a guilty verdict. Most of the spectators file noisily into the street, gossiping and celebrating. Upstairs, relegated to the balcony, another audience has watched the proceedings and remains seated. As Atticus Finch gathers his papers and walks slowly from the courtroom, they rise silently in unison. The Black minister, Reverend Sykes, taps Scout on the shoulder and says: “Miss Jean Louise, stand up. Your father’s passin’.” To me, this silent homage to a good and courageous man, who respects and believes in the rule of law—and is willing to defend it even at great personal cost—is the most moving moment in the whole film.

Justice Puglia was just such a man. And he was not a fictional character. Most of us have risen to our feet many times to mark his passage because he was a judge. Court protocol required us to show respect for the robe and what it represented. But Justice Puglia was the kind of man who earned and could command our respect by virtue of his life and character. In a way, the robe was superfluous.

We have had the great good fortune to know this extraordinary man. We can remember what he taught us. We need not be fearless to have courage. We can be tough and tender. We can do the right thing—and face the bad that cannot be avoided unflinchingly. We can laugh. And we must sing—even when people frown at us and advise us to keep our day jobs. We can care for the people around us. We can be generous. We can make our way, against the tide, without rancor or bitterness. And when we are tired and overburdened and feel we are not brave enough to go on, we will hear his voice in our ear. Hear him say in that quiet and steely tone: “Yes, you can. You can.” And we will know that we are being true to his legacy. The legacy of one who loved liberty. We will know that we are standing up…because Justice Puglia is passin’.

Here is the “Freedom is Not Free” speech that Justice Puglia gave to the San Joaquin County Bar Association:

The cataclysmic events of our century have caused many to lose faith in the survivability of a society governed by the rule of law. Some skeptics believe that a government organized on that principle is too antiquated and cumbersome to meet the challenges of modern times. Fortunately, most of us disagree with these doomsayers. But it is important that we publicly renew and witness our faith in the system that has served us so well for 200 years and will certainly endure indefinitely.

More than anything else, the rule of law is what sets us apart from the rest of the world. It has played a significant part in all that is good about America, in all our successes as a nation, and in the creation of a way of life that is the envy of the world. And it bears no responsibility for the undeniable dark side of our less than perfect national life. In fact, some of our national shortcomings can reasonably be ascribed to our sometime inability to abide by the rule of law. But it cannot be gainsaid that America under the rule of law is a beacon to troubled, suffering humanity the world over, encouraging, where possible, the emulation of our form of government, and beckoning many to our shores.

Every day we reap the benefits of our constitutionally guaranteed freedoms of speech, religion, assembly and association, and freedom from unreasonable and arbitrary government actions against our persons and property. These freedoms are all enshrined in our basic charters, the Bill of Rights of the federal Constitution and parallel provisions in our state Constitution. Though solemnly guaranteed in writing, these freedoms depend for their continuing viability upon the rule of law. Without that, they are not worth the paper they are printed on — they are no more valuable than the showpiece constitution of the late, unlamented Soviet Union, which contained similar guarantees that, in the event, were consistently flouted and ignored.

In Washington, D.C., on the mall near the Lincoln and the Vietnam War memorials, is a new memorial dedicated two years ago to the Americans who fought in the Korean War. Inscribed prominently on the granite wall at the center of the memorial are these words: “Freedom is not free.” Thus are we reminded the blood and treasure we expended in that conflict are inextricably bound up with who we are and what we stand for as a nation.

Unhappily, the Korean War was not an isolated threat to our freedoms. Four times in this century, the United States has sallied forth from its insular sanctuary to confront armed enemies that presented a direct threat to everything we hold dear. I recognize that not everyone will agree the very integrity of our nation was imminently threatened in each of those conflicts. Nevertheless, for much of this century, as the world was being rapidly shrunk by modern technology, freedom and tyranny engaged each other in a winner-take-all, global struggle. Our recent success in that struggle should not lull us into a false sense of security. The game is not over. In fact, this game is never over. It has been said the price of liberty is eternal vigilance.

One may reasonably ask, if we have vanquished all external enemies who threatened our existence, against whom or what must we remain vigilant?

I maintain there are internal conditions that constitute a greater potential threat to our freedoms than any foreign enemy we have faced or are likely to face. History teaches that great civilizations are usually dispatched to the dustbin by contradictions from within. The coup de grâce may have been administered from without, as for example when Alaric and the Visigoths brought down the Roman Empire. But the Empire had already been rendered helpless by the rampant corruption of its rulers and the alienation of its people. To ignore the internal threat is to fiddle while Rome burns.

If the internal threats to our system are ever arraigned for judgment, they will acknowledge their true names are ignorance, apathy and cynicism.

How can it be then that so many of our fellow citizens are ignorant of or take for granted the rule of law? They do so at their peril. The history of this country demonstrates the rule of law is no stronger than the willingness of Americans to fight for it.

I’ll venture that few who read this have not heard of at least one random poll of citizens in which a majority of those asked declared that, if given the choice, they would not adopt some of the basic freedoms that are already their birthright. Were it not so dispiriting, this might make hilarious grist for late night talk show monologues.

In a republican system such as ours, ultimate sovereignty resides in the people, who are either directly responsible for or only one step removed from truly fateful decisions.

A properly functioning democracy requires not only the formal education of its citizens but continuing education on the emerging issues of the day.

How confidant can we be that we are educating the coming generation to assume this crucial role or, indeed, that those who educated the present generation — us — did such a great job?

It has become increasingly difficult to acquire the necessary basic knowledge from a media obsessed with sensationalism, and partisan reporting. Even so, ignorance can be overcome by putting the mind to the task.

The apathetic present yet another problem. They must somehow be invigorated with an appreciation that what happens in their government and community matters to them, and an understanding that what they do or do not do about it will affect what happens next. To paraphrase Senator Phil Gramm, who applied the epigram in another context, it’s time the apathetic stop riding in the wagon and get out and start pulling it.

Then there are the cynics who are neither ignorant nor, like the apathetic, deadened in spirit, but whose spirits instead are warped and whose eyes are jaundiced. To the cynic, the system and everyone associated with it is either feckless or corrupt or both, and there is nothing that can or should be done about it because that is simply the way the world works. Thus the cynic remains utterly indifferent to real incompetence and corruption. The cynic’s world view is a warped one that will yield only to proof that his or her assumptions are false.

Those assumptions are utterly inconsistent with a society governed by the rule of law. In its truest form, the rule of law is the destroyer of special privilege and class distinctions, the passport to the social, economic and spiritual good life.

To the litany of ignorance, apathy and cynicism, let me add another dynamic that has the foreboding potential to shape our national destiny: powerlessness. I do not refer to disenfranchisement. Powerlessness can affect those who have the right to vote, who are neither ignorant, apathetic nor cynical, but who honestly perceive that their vote is meaningless — meaningless because many of the decisions properly confided to the electorate have been co-opted by non-political elites. For those who are unfamiliar with this coded reference, non-political elites are the politically unaccountable parts of government — the judiciary and bureaucracy. If there is still anyone who doubts the capacity of bureaucracies to abuse power, I remind you of the one-liner most likely to evoke a knowing snicker: “I’m from the government and I’m here to help.”

Like the extensive bureaucracy, the judiciary is frequently accused of co-opting political issues which are uniquely the province of the people and their representatives. Some judges willfully usurp the people’s prerogatives by assimilating these issues to constitutional doctrine and relying on the province of the judiciary to interpret the Constitution.

The judiciary in a democratic system must be independent and it must interpret the law as handed down by the legislative body or the framers of the Constitution. The judiciary is not a policy making body. Policy is the exclusive role of the legislative branch.

We all recognize there are some judicial activists on the bench. The problem is we are not in total agreement as to who they are. It has been said that a judicial activist is a judge who decides a case contrary to the way you would have decided it. Yet, however defined, judicial activism can contribute to a sense of powerlessness, which leads to alienation and, ultimately, to withdrawal from the political process.

The freedoms in the Bill of Rights were bequeathed by the Founders to their posterity. They have been maintained intact by our forebears, and it is our solemn obligation to pass them on unsullied to those who succeed us. Keeping them intact requires eternal vigilance, an ethic of informed citizen participation in public affairs and, on occasion, the expenditure of blood and treasure.

Thomas Jefferson said: “The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.” A few hundred yards from the Jefferson Memorial in our nation’s capital the same sentiment is expressed somewhat less starkly: “Freedom is not free.” The freedoms of which we speak are guaranteed by the Bill of Rights. They are limitations on the power of government. If we are not to descend into anarchy, we must live under government. But government represents concentrated power and, if government is to respect our freedoms, it must be subject to some check. The check on government is, of course, an independent judiciary which implements the rule of law.

The rule of law relies on a fragile consensus, which remarkably has endured and allowed us, uniquely among the nations of the world, to live as free people for more than 200 years. It is the guarantor of our freedoms. It emits the glow that illuminates the shining city on the hill, the glow that is never so brilliant as when contrasted to the ominous shadows cast by the brutal tyrannies which have threatened our national existence in this century. More than anything else, the rule of law is at the heart of American exceptionalism. That is the unique place that America occupies among the community of nations.

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