Within the Scope

Blogging on Administrative Law and the Public Sector

Sunday, December 20, 2009

Heat and Light in Saint Paul this Winter

On Wednesday of this past week, a panel of the U.S. Court of Appeals for the Eighth Circuit heard oral argument in the case of Wersal v. Sexton.

As readers of these pages will recall, in February of this year, Judge Ann H. Montgomery of the U.S. District Court for the District of Minnesota, turned away a civil rights suit challenging the provisions of Minnesota Code of Judicial Conduct.

Golden Valley attorney and sometime candidate for election to the Minnesota Supreme Court, Gregory F. Wersal, earlier claimed that he would like to seek election to the Minnesota Supreme Court, and announce his support for the election of Tim Tingelstad (to judicial office) and Michele Bachmann (to the U.S. Congress), during his candidacy. Rule 4.1 (A)(3) of the Minnesota Code of Judicial Conduct forbids judges and those running for judicial office from making such endorsements. Judge Montgomery upheld this restriction of the Code on the grounds that “a legitimate impartiality concern is created when [Wersal] endorses a candidate who may come before him in a judicial capacity.”

The most provocative claim made by Wersal is his contention that the prohibitions on judges endorsing other candidates for elective office are not meant to disentangle judges from political bias, but rather, are designed to prevent these biases from being revealed. Wersal argues: The “restrictions on judicial speech could undermine public confidence in the judiciary, [because] there is a danger that silence on the part of judicial candidates could inspire the suspicion that they are hiding their views to mask their partiality or bias.” Implicit in this charge, is that the Code’s ban on candidate endorsements is meant as an incumbent-protection mechanism; with the government deciding to shield clumsy office-holders from later being rejected at the polls because of those candidates' actual views.

To my mind, this is a far more sophisticated, nuanced and potent argument than the threadbare claim that judges are simply indistinguishable from others who enter the public square. Indeed, I think that Wersal’s arguments have their greatest force (and the Board of Judicial Standards is at its weakest) when the inquiry centers on the benefits that accrue to incumbent office-holders under the regulations.

Courtesy of Minnesota Lawyer, Judge Montgomery’s February 2009 analysis is accessible here.

An audio file of the Eighth Circuit oral argument – and the very fine job done by the advocates, James Bopp, Jr. and Deputy Attorney General Steven M. Gunn – is accessible here.

Friday, December 11, 2009

Twenty Years Ago – A Great Miracle Happened Here

When I was in Israel in April, I set out to find and purchase some Israeli dreidels. As readers of these pages may know, dreidels in the United States (and other places outside of Israel) are different from the ones that are found in Israel.

In the United States, the Hebrew letters that adorn the four sides of a dreidel – נ-ג-ה-ש – form an acronym for the phrase “Nes Gadol Hayah Sham;” a great miracle happened there. In Israel, however, the fourth word of the acronym is different. For Isrealis, the great miracle of the Chanukah celebration happened “here.” Thus, the Israeli dreidel reads נ-ג-ה-פ for “Nes Gadol Hayah Po."

In fact, while I was searching for the Israeli versions of the spinning tops, I had a heated dispute with a Jerusalem vendor who wanted to sell me sham driedels with the letter representing “sham” on them. I determinedly pointed to the ground and declared in my very Americanized Hebrew: “Nes Gadol Hayah Po!” (A great miracle happened here!) This, the merchant was obliged to concede.

I was reminded of that here and there story when an official of the Chabad Lubavitch wrote to me this week about the twentieth anniversary of the U.S. Supreme Court’s decision in Allegheny County v. ACLU. Twenty years ago, the Chabad won an important victory when the High Court turned away an Establishment Clause challenge to Alleghany County’s hosting of an 18-foot Menorah outside a County office building. Like the Chanukah story itself, the story of this smaller-size miracle bears repeating; particularly on the anniversary of the decision.

The County permitted the Chabad to place its oversized Menorah in front of the building and next to the City's 45-foot Christmas tree. Also nearby was a sign with the following inscription: "During this holiday season, the City of Pittsburgh salutes liberty. Let these festive lights remind us that we are the keepers of the flame of liberty and our legacy of freedom." The inscription appeared under the name of the Mayor of the City of Pittsburgh.

When a suit challenging the hosting of the Menorah on government property was filed, the City and County were inclined to remove the display. Recalled Rabbi Yisroel Rosenfeld, of Chabad Lubavitch of Pittsburgh, “they weren’t going to follow through. That’s when we got involved. We felt, based on what the Rebbe said we should pursue it.”

“What the Rebbe said,” is a reference to a statement circulated six years earlier by Rabbi Menachem M. Schneerson, the Lubavitcher Rebbe, on the importance of publicly lighting Chanukah candles. The Rebbe wrote:

The Chanukah Lights remind us in a most obvious way that illumination begins at home, within oneself and one’s family, by increasing and intensifying the light of Torah and Mitzvos in the everyday experience, even as the Chanukah Lights are kindled in growing numbers from day to day. But though it begins at home, it does not stop there. Such is the nature of light that when one kindles the Chanukah Lights are expressly meant to illuminate the “outside,” symbolically alluding to the duty to bring light also to those who, for one reason or another, still walk in darkness.

If the Menorah was not in the town square, reasoned the Chabad of Pittsburgh, some light might not reach those still walking in darkness. They had no choice; they were in the suit to win.

Fortunately for the Chabad, Allegheny County and those who enjoyed the Menorah, Justice Blackmun simply did not believe that the oversize lights were meant to dispel any moral darkness. He wrote:
In this country, the tradition of giving Chanukah gelt has taken on greater importance because of the temporal proximity of Chanukah to Christmas. Indeed, some have suggested that the proximity of Christmas accounts for the social prominence of Chanukah in this country. Whatever the reason, Chanukah is observed by American Jews to an extent greater than its religious importance would indicate: in the hierarchy of Jewish holidays, Chanukah ranks fairly low in religious significance. This socially heightened status of Chanukah reflects its cultural or secular dimension.
More significantly still, the happy accident that the Menorah was placed beside a colossal Christmas tree that year meant that other, later Menorahs could do their illuminating work somewhat shielded from Establishment Clause claims. As Rivka Chaya Berman of Chabad Lubavitch Headquarters reflected on the decision, “the experiences of Chabad representatives across the United States reveal just how useful or not the landmark decision has been in bringing Chanukah’s light, message of peace and religious liberty to the public square. From Montana to Mumbai, from the Western Wall to the Great Wall of China, Chabad’s public menorah lightings number in the thousands.”

For Jews who have suffered religious persecution in this country, and others, being able to undertake Jewish rituals prominently, in the open, and in safety, is a big deal. Nes Gadol Hayah Po. Mistakenly, or providentially, twenty years ago, a great miracle happened here.

Happy Chanukah, everyone.