In defense of old White men – A vanishing breed. On second thought – good riddance

Lately I have been forced to publicly proclaim in similar fashion what courageous people do at A.A. meetings: "Hello, my name is Arthur Gilbert and I am a white male, or, to be precise, an old white male." There you have it, in writing. I have rationalized that I am not responsible for this affliction. But recent experiences have led me to believe that like K in Kafka's disturbing novel The Trial, I am somehow... guilty.

With the recent easing of pandemic restrictions, I have been asked once again to speak and appear at live events. At a hearing before a commission of which I was a member, a speaker, praising the achievements of a highly accomplished nominee, mentioned that in the past, the nominee was appointed to a position that had previously been held by... did she say "old white men," or just "white men?" No matter. To my ear the tone was tinged with derision. I tried to shrink my slight, elderly frame into the grain of my big leather chair. People averted my gaze. I jokingly agreed to retire and got a forced laugh that said, "Please do."

The week before, I was asked to speak and present an award to one of my colleagues. At the beginning of the event, light from outside streamed into the room infusing it with a warm pleasant glow. By the time I was to speak, it was dark and the lectern and I were enveloped in what could best be described as dusk on a cloudy day. I am not suggesting that my being at the end of the program was a slight because of my race and age. But is it not well known that elderly people have dim memories? And did anyone consider that I might not be able to read my notes in the dark? Should I get out my cell phone and shine a light on my barely decipherable notes? Turned out I didn't need my notes. I jot them down, but rarely read them.

But what was truly bizarre, the audience was flooded in light from the bulbs in the ceiling. I knew immediately there was something wrong with that. I am not trying to be a showoff, but I have been to the theater. This includes London, Stratford-upon-Avon, New York, and Los Angeles. I acknowledge that when I first walk into a theater, and this includes movie theaters, the lights are on in the auditorium... before the show starts. And the stage is dark. That makes sense. If the auditorium were dark, people would not be able to find their seats. They would be bumping into one another. The theater would have to hire more ushers with flashlights requiring higher ticket prices. Or the theater goers might use their cell phones to find their seats. Then they would forget to turn them off during the performance and you know how embarrassing that could be. But when the show starts, the process reverses, n'est pas? I can tell you straight out that I got through the ordeal. Sometimes one must overcome afflictions and get the job done as they say. And just maybe my age and race had nothing to do with the lighting.

Speaking of lighting, my spirits lit up about four years ago when I thought about retiring from the court. Time to give others an opportunity to write dissents. Although I love my work, my colleagues took me to lunch and asked me to stay. I was deeply touched and agreed to stay provide they let me know if... when, I become senile. The problem with that arrangement is that when they tell me, I won't believe them. For all I know, they already told me.

I thought I was losing my mind when I was asked to write a blurb for a book on the law that I thought was excellent and would be of great value to the legal profession. I knew the Canons of Judicial Ethics prohibited my writing a blurb in or on the cover of the book. Nevertheless, I looked up the Canons just to be sure. What I discovered sent shock waves of panic that rattled my psyche. (Refuse to use cliché adjectives about my bones). What follows are excerpts of my email to the California Supreme Court Committee on Judicial Ethics Opinions (CJEO):

Dear whoever reads this email,

Hope you are well. My research on the problem I put before you is not encouraging, but I want to be sure. Here is the problem: Two law professors have written a textbook. They asked if I could write a blurb for the book. I told them I doubted it. I knew that it was permissible for me to tout, I mean promote, my own two books, Under Submission and Under Submission Volume II. They are law related, and Judicial Ethics Advisory Opinion No. 65 states that "a judge who has written a law-related article, treatise, or book may use his or her title in promoting the writing, but "cannot promote or critique a legal or nonlegal book written by another." (Insert #1- Yikes!) That I have never done so with the books I have authored and that all proceeds from the sales go to unnamed legal charities, I suppose, are beside the point. (Insert #2 - for readers of this column.) So to be safe, please do feel constrained to even think about purchasing any book I have authored, and if you do purchase any such book, I don't want to know about it.

Continuing with missive to Ethics Committee:

So, it appears that I have answered the question concerning the law professors, but the second part of Advisory Opinion No. 65 sent chills down my spine. I have written over 300 columns for the Daily Journal. In the past, on occasion, I have written about books and law review articles. If I praise a book that I think is of benefit to the legal profession, it appears that I am in violation of Advisory Opinion No. 65. Really? Is that too literal a reading?

Sorry for the length of this email. Your thoughts and advice would be most appreciated. If your advice is to stop writing my column, you may be doing a great service to the public.

The Committee responded with an expedited advisory opinion. Let's save time and jump to the conclusion. "Judicial officers may review, critique, and comment on legal education books in legal publications for educational purposes consistent with the advancement of the law, the legal system, or the administration of justice." And we just better make sure we do so in a manner that is consistent with "the integrity or impartiality of the judiciary." What a relief. Let me add this opinion does not necessarily reflect the views of the California Supreme Court or any other entity. (Cal. Rules of Court, rule 9.80(b); CJEO rule 1(a)).

So technically I may not be out of the woods, to use a hackneyed phrase. So I will avoid the path not taken, and opt for the "path taken?" Is there a difference, Mr. Frost? I still shall continue to write about, praise or criticize articles and books and articles about the law, and hope I will not violate the law. So I now praise a recent book by fellow columnist Myron Moskovitz, Strategies on Appeal (CEB, 2021). In 14 chapters he tells you everything you want to know about appealing a case, even what to do about losing. You expect me to go into detail about the book? Not a chance. l leave it to Myron to further elaborate on the multitude of facets in appeals and practicing law which he does in clear concise prose as well as in his columns. And I advise everyone, not just lawyers and judges, to pay attention to Chapter 6 on writing the appellant's opening brief, "Keep It Concise."

I will not criticize the drafters of Advisory Opinion No. 65 who were compelled to interpret the Canons of Ethics. I hope they were not old white men. Does it matter? The old white men I know will soon be disappearing. What a relief. But... it just occurred to me, they... we... will be replaced by other old white men. That means... the title of this column may be misleading. The very thought of old white men is tiring. Think I will have a cup of hot tea and maybe take a nap.