Wednesday, November 10, 2010

Dealing with Gov Corruption and Santa Clara County

I appear to have written this in 2010 or 2012.  I am publishing it on November 10, 2015.

Here is a hilarious and useful article on dealing with government shakedowns:

All governments seem to have corrupt members, although differences exist in the degree and type of corruption. Why do governments have such difficulty eliminating corruption? Because government officials are backed by laws; laws confer power; and power tends to corrupt on some level.

Power Should be Limited when Objective Measures of Performance are also Limited

When I was younger, I believed judges and other government officials were uniformly intelligent and moral beings. Unfortunately, experience has taught me otherwise. Courts, police departments, and other government agencies are still subject to the rule of averages--there will be many people who are average, a few who are very good, and a few who are very bad.

Government agencies tend to have more bad employees because it is hard to judge someone who produces nothing tangible. You can judge a salesperson, surgeon, taxi driver or lawyer using many objective metrics--sales, financial well-being, customer satisfaction, number of accidents, etc. But how do you evaluate a police officer, government lawyer, teacher, or judge? It's much more complicated, because there isn't an obvious objective metric. For example, a good teacher could have terrible students, a bad teacher could have wonderful students, Cop A could have fewer complaints than Cop B but Cop B could still be better, etc. Remembering that power tends to corrupt, the general idea is to minimize power where possible, especially when performance is difficult to measure. (Unfortunately--or perhaps fortunately--most Americans haven't had sufficient contact with government officials to truly understand the aforementioned principle.)

Yet another problem with government officials--besides the power and objective evaluation issues--is that they are used to deference. Spending your day-to-day life being deferred to must have some effect on people. From what I've seen, receiving constant compliments and deference results in a gradual and permanent aversion to people who fail to genuflect socially. Such a result is not optimal, because the more government officials rely on deference, the more likely it is that kowtowing becomes the pathway to success, not merit. We will revisit this idea later on.

Santa Clara County might be a good example of the "Compliments Over Merit" principle. First, the level of inbreeding--i.e., family relations--is astounding. Several judges are married to each other or other county/city employees. This inbreeding means the entire family unit experiences constant deference and virtually no criticism. Is a societal/class/professional bubble welcome when judges have so much power and deal with diverse parties? After all, so much law turns on credibility. When judges are surrounded by sycophants and non-diverse coworkers, what is the result? When weighing testimony, are judges going to disfavor someone with an accent? Will judges be able to understand that an older Filipino person will probably agree with every single statement offered by them, regardless of actual veracity? Does being surrounded by zero African-American, Pakistani, and Filipino persons in power create a subconscious bias? Is one race or class unintentionally favored over others? We don't really know, because the level of transparency in the court system is essentially non-existent. (When I tried to increase transparency as a County Commissioner, the Presiding Judge apparently shot down my idea, claiming it would take up too much time and resources. My idea would have taken only a few minutes a day to implement.) In any case, it's fair to contend that the Santa Clara County Superior Court has a higher-than-average level of inbreeding in its upper ranks and little racial diversity. Why should we care?

For one thing, Santa Clara County Superior Court has so few minority judges, you have to wonder what it's like to be a minority in a place that resembles an Orange County country club. As of June 8, 2010, in the main civil courthouse, only two out of the seventeen judges were non-white (another three are Jewish). Also, of the seventeen main civil judges, only four are female. You might think such non-diversity is shameful in a county that is around 40% immigrant and presumably at least 48% female, but it turns out that the white male Irish-American judges--all of them--are the hardest-working, most predictable judges (I'm not saying they are the best judges, but they are consistent, work hard, and follow the law, which means a lawyer can tell his/her client whether it is cost-effective to do x or y). Moreover, the Caucasian/white judges are, by and large, quite good. The following judge is retired, so I will mention him by name--Judge Alden E. Danner, for example, went out of his way to assist me when I submitted an accommodation request for my hearing impairment. He didn't have to do anything for me, and if you believe new age liberals, you wouldn't think that a conservative white male would be overly helpful to someone like me, but Judge Danner was instrumental in my ability to practice law.

In contrast, the two most pompous and unprepared judges I've encountered happen to be non-white males. I have struggled to discover the reasons behind this phenomenon, and I think I've finally figured it out: basically, affirmative action has failed because affirmative action allows the majority to elevate minorities based on charisma or some other social factor, not merit. Meanwhile, the majority race--lacking an approved legal path to elevate members based on factors external to merit--elevates their own members using merit and intelligence, creating a gap in quality between racial minorities and racial majorities. [Note: I've noticed that local Latino judges tend to be independent and intelligent. There's one particularly cool, smart judge I've nicknamed, "The Messiah." I attribute this phenomenon to the fact that Latinos have sizable numbers and political representation in San Jose and Santa Clara County. As such, they may be racial minorities, but not necessarily powerless minorities, which creates a welcome exception to everything I'm writing in this post.]

Affirmative Action Results in Cloning Different Colors of the Same Culture

Why does affirmative action tend to work against independent, extremely intelligent minorities? A minority who works hard and shows an independent streak may show up his/her colleagues, which places him/her at a disadvantage when it comes to being hired. Who wants to hire someone who might show him up? In contrast, a minority who sucks up to the majority will be favored by the majority, even if s/he has fewer credentials. Thus, rather than help the best minorities get ahead, affirmative action seems to help undeserving, compliant minorities at the expense of hard-working, independent minorities. If my theory is correct, then affirmative action represents the worst of all possible worlds--it punishes hard-working minorities and elevates undeserving minorities, which causes all racial groups to be resentful.

Of course, there are exceptions to my theory, but even these exceptions prove that when the majority uses affirmative action to hire someone, they opt for a clone, not real diversity. For example, regardless of how you view him, Clarence Thomas is an example of an independent minority because his views differ from the majority of his own race. At the same time, his views are a clone of the person who nominated him, i.e., President George H. W. Bush. Thus, even when affirmative action results in the hiring of an independent racial minority, such independence tends to have a caveat: conformation to the racial-majority's views and culture.

[By the way, law clerks are a different breed--they have to produce something--accurate legal briefs and decisions--and so the above generalizations don't apply to them. Also, I've noticed that some of the best law clerks in Santa Clara County Superior Court happen to be Asian, which makes it strange to see so few Asian judges here. (As of June 16, 2010, only one of the main civil courthouse judges is Asian).]

To understand why affirmative action might be a terrible idea, we must think about how racial minorities function when they are surrounded by a single racial majority. A minority surrounded by a majority will automatically stand out, so s/he has to be non-threatening to succeed. One way to do that is to make jokes, have a sense of humor, and adapt as much as possible. It shouldn't be surprising then, that several judges may have shimmied their way to the top through charisma and playing the clown with colleagues. These judges tend to believe in kowtowing--that's how they've survived in their own jobs, and they probably believe what's good for the goose is good for the gander. In short, when racial minorities are placed in a non-diverse environment, they favor survival over everything else. As such, they tend to try to avoid a situation where they lose face, because while a majority-race judge will get the benefit of the doubt, it's possible the minority-race judge will not. Thus, to many minority-race judges, anyone who fails to show deference is viewed as a threat. You can almost hear the internal subconscious dialogue: "Who does this person think he is? I had to kowtow (or fit in) for years and conform to get to this position, and now he's challenging me?"

When I've seen lawyers fight for clients--which sometimes means disagreeing with a judge--the majority-race judges tend to take this opposition in stride. One judge--we'll call him the "Scandinavian Stud"--even tries to help out younger, more aggressive lawyers who disagree with him by starting out sentences with, "As you know, I can't give you legal advice, but..." However, two minority judges--both of whom are married to current or former government employees--tend to take any opposition as an insult. A failure to suck up tends to trigger the following subconscious response: "All right, you want to oppose me, I'll show you who's boss..."

I'm not saying some majority-race (i.e., white) judges don't have the same response. In one case, when I made a comment about African-American Oscar Grant, a white pro-police judge immediately got red-faced and combative. (More on this police-judicial connection later, but you can click on this LINK if you're interested in how this connection can affect justice in the court system.) Overall, though, I tend to notice race-minority judges being more prickly and demanding of deference.

Now, why should a subconscious, unintentional, and systemic issue of deference be a problem? Doesn't deference promote workplace harmony? First, all societies and systems do better when some criticism is encouraged. People improve through criticism, not false deference. (Didn't we all read the fable of "The Emperor's New Clothes"?)

Second, the kowtowing system disfavors hard-working minorities. If you're a minority who doesn't want to kowtow to the government or your colleagues, and you care more about working harder than fitting in, then you're out of luck. The majority-race judges are used to minorities who will adapt and fit into their culture, and God help the minority-race person who tries to do things differently.

Third, the whole point of affirmative action (AA) is to increase diversity and make minorities feel comfortable despite their lack of political representation and power. In theory, the majority benefits by showing its tolerance and also by gaining alternative viewpoints and experiences. However, if I am correct--that affirmative action favors charismatic and social minorities over more hard-working and independent minorities--then the aforementioned benefits do not exist, because AA produces under-performing clones of the majority. Under my theory, we could put some black makeup on a few majority-race employees and get the same result as our current AA programs. In short, as long as the majority is choosing who is hired or promoted based on AA, the benefits of AA are dubious.

Citizens Should Favor Ideological Diversity over Race-Based Diversity

Don't get me wrong--we shouldn't completely disavow AA. If AA leads to useful diversity, not cloning, then it makes sense. As it stands, many judges are elected by special interest groups--thereby reducing ideological diversity--which means residents and voters should seek useful diversity. In Santa Clara County, the county sheriffs and city police have tremendous influence over judicial elections. Remember our recent election? Almost every winning judicial candidate mentioned an endorsement from some public safety officer union. Since most residents are unfamiliar with the local court system and its members, they tend to rely on endorsements when voting, which provides police officers with disproportionate influence over judicial selection. As a result, the state judicial branch--which is supposed to check the executive branch, i.e., the police--no longer has the sufficient diversity to challenge the police. In fact, the public safety unions--the police officers, firefighters, and prison guards--have so much power in Sacramento, they have even affected the independence of the legislative branch. From an ideological perspective, real diversity in government seems to diminish with each passing day. If AA promotes independent thinkers and outsiders--a term that can sometimes be equated with minorities, though not always--then it serves a useful function. If, however, AA produces clones of the majority, it is not helpful to anyone and serves merely to reinforce the existing culture and majority.

You want one obvious example that AA doesn't promote the best minorities? The only African-American federal judge in San Jose, California  [as of 2010] may have lied about his brother being targeted during civil rights strife in the South. Even though the judge's lie was discovered, [as of 2010] he is still on the bench, and until a few weeks ago, he was surrounded by no other local judicial minorities--all of his colleagues in federal and bankruptcy court were part of the racial majority power structure (or look like part of the racial majority or power structure), and all of them are really good judges. (One of them, a white male judge, is probably one of the best judges in the entire country. I refer, of course, to Judge Jeremy Fogel.) Of course, the federal bench has several white judges who do "interesting" things and manage not to be singled out.  Clearly, the "prickliness" factor is not limited to racial minorities, but because racial minorities stand out more, their behavior gets noticed more, which reinforces an awful cycle of "respect ma authoritah!" (You may think I am being hard on racial minorities, but if you read carefully, you will notice I am not being hard on minorities--just affirmative action. All entities have good, average, and bad employees.)

What makes the AA selection process even more problematic is that hired minorities harm other minorities by promoting a culture of deference and the status quo, not true diversity. As such, if the majority gets out of hand due to a lack of cultural knowledge, there is little luck that minority co-workers will be able to rein in the majority. If anything, minority co-workers promoted via affirmative action may lead the charge against independent minorities in an effort to fit in and promote the status quo. As Shelby Steele states, "Such policies have the effect of transforming whites from victimizers into patrons and keeping [minorities] where they have always been--dependent on the largesse of whites." What then, is the use of having racial diversity if it is being achieved in a way that discourages useful diversity?

Are Social and Subconscious Racial Preferences Inevitable?

One judge has commented that lawyers are more social than other professions, implying that lawyers should understand that social activities and connections do not impact decisions and culture in the courthouse. I call shenanigans. When I see a judge hugging a lawyer in Starbucks, I get upset. When I see more experienced lawyers--who lack civility but get respect from the judges based on tenure--I get upset. When I see a judge being Facebook friends with active lawyers who may appear in front of him, it makes me upset. This web of social ties causes some judges to rely on reputation rather than the papers/briefs when it comes to evaluating testimony and deciding whether to overturn a law clerk's draft.

Think about it: social ties and inbreeding lead to gossip, and gossip relies on hearsay, which is usually unreliable and which corrodes the "fairness for all" legal system. Why read the briefs if you know the lawyer from your days in law school? Why bother checking the case citations if most cases settle anyway? Are you really going to contest a lawyer's interpretation of the law if you know he plays poker with a friend?

Social ties are fine for private sector workers who need to sell things and make things, but government employees cannot help but favor people they see on a regular basis. Most government workers don't produce anything tangible or measurable, so their success is measured primarily by reputation. Naturally, then, as in the private sector, someone who smiles and sucks up to them will be favored over someone less social. The solution isn't to blame an introverted lawyer or a non-conformist lawyer, but to work harder to rely on objective data when making decisions about courtroom culture and to increase transparency. Do certain judges rule against minorities more than other judges? Do certain judges favor corporations over individuals? We don't know. No statistics are kept on such issues. Useful transparency doesn't exist in the local court system. (Why do written pleadings even have the name of the lawyer or firm on them? Can't a system be developed to track the papers based on numbers or some other non-identifying status? Most legal opinions at the trial court level are written before lawyers appear at court hearings.)

Diversity can be excellent in terms of production and innovation, but it also creates challenges and leads to volatility. Legal systems ought to ensure that government employees, especially judges, do not attack or disfavor non-conformists, especially when such non-conformists are not part of the majority-race.

Our current legal system in Santa Clara County is flawed for many reasons, including a culture that crushes non-conformity. When a non-conformist understands the legal system is flawed, the natural response is to avoid the system--not to suck up to it. Also, when one judge physically intimidates a lawyer, and another judge lies to his face--and both of these judges allow unfair speculation to run rampant and allow their colleagues to unfairly suffer collective punishment--more social ties aren't the answer. Lawyers and residents should be able to rely on judges being fair and impartial, regardless of social ties. Oftentimes, the best people to expose cracks within the system are part of the system and cannot openly speak out; consequently, government entities should implement self-correcting measures before problems affect an entity's or person's reputation. As we all know, courts rely on their reputation to maximize compliance with judicial orders and judgments.

If Santa Clara County Superior Court fails to recognize its lack of useful, consumer-based transparency; its inbreeding problems; and its absence of independent minorities, the court's reputation will suffer. Once lost, a reputation is difficult to regain. One can only hope that the Presiding Judge and her colleagues understand what is at stake.

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