Meeting Maximum Bob (a bit belatedly)

Elmore Leonard is widely acknowledged as a master of crime fiction. Indeed, he’s a versatile writer who’s also accomplished in other genres, including Westerns.

I’ve enjoyed his work both on the page and in film adaptations. Over twenty years ago, I was tremendously impressed by the smooth writing and daring plot twists in the 3-novel collection Gold Coast.

On film, Get Shorty, with John Travolta and Danny DeVito, was a hoot. Out of Sight, with an emerging-from-ER George Clooney and a young Jennifer Lopez, was splendidly executed as well.

There is also a film version of Leonard’s 52 Pickup, which I haven’t seen. All year, however, I’ve been intending to pick up the book. It seemed fitting to do so, because that’s my age.

So today, I tried two places to pick up 52 Pickup. First I tried Midway Book, a venerable and well-stocked used bookstore in St. Paul’s Midway area. No luck.

Next I tried the Galaxie Library in Apple Valley, a St. Paul suburb. No luck there either.

There was, however, a definite silver lining for the independent scholar who blogs about sentencing policy. One of the Elmore Leonard titles that were on the shelf was Maximum Bob — a book whose very title points to teachable moments about judicial discretion.

Turns out there was a short-lived TV series in 1998 based on the book. I missed that entirely at the time. But ’98 was the year that I began my stint with the Iowa Legislature on its special sentencing commission. Considering that judicial discretion was a key topic on the commission, I’m surprised Maximum Bob didn’t come up during our work.

Judge Rosenbaum and the Guidelines Dust-Up

As James Rosenbaum's tenture as chief U.S. district judge in Minnesota wound down, the Star Tribune lavished considerable attention on the respected jurist. A glowing article in June 2008 lauded his wit and wisdom. A little over two years later, in August 2010, with his retirement near, the Strib sent the judge on his way to private practice with abundant praise for his Renaissance man qualities.

In the August 2010 piece, a prominent Twin Cities criminal defense attorney named Joe Friedberg recounted a story about the way Rosenbaum handled the sentencing of a defendant who was facing 121 to 141 months under the federal sentencing guidelines. Rosenbaum gave Friedberg's client an even ten years. "The last thing a defendant should have to do while doing time is divide," he told Friedberg.

Though I don't know whether this story is apocryphal or not, it does point to the most controversial episode of Rosenbaum's career on the federal bench: his dust-up with the Republican Congressional leadership over the status of the federal sentencing guidelines. For years, federal judges had been appallaed by the unfairness of the guidelines. The guidelines, or sentencing rules, were commonly thought to be mandatory, taking away judges' discretion and forcing them to impose sentences that were often terribly unjust in individual cases.

Rosenbaum was not alone in speaking out against the guidelines. But in 2002 he became a target for the Republican leadership of the House Judiciary Committee, which threatened to subpoena his sentencing records. This was a surprising turn of events for a Reagan appointee who had once been active in Republican politics. Rosenbaum's long-time colleague Ann Montgomery told the Star Trib that these were dark days for her friend, but that the experience made him a fuller, more compassionate person.

In 2005, Rosenbaum was vindicated when the U.S. Supreme Court ruled in the Blakely case that the federal sentencing guidelines are advisory, not mandatory.

Now, he's riding off into the sunset, ready for more world travel and able to command fees as an arbitrator that will help pay college tuition for his grandchildren. Renaissance man, indeed.

Oneself as Another at the Sotomajor Hearings

In a country whose president launched a completely misguided “war on terror,” maybe it shouldn’t be surprising that a U.S. Senator could engage in a ridiculous skirmish against empathy.

The senator was named Jon Kyl (R-Ariz.), and he claims President Obama is "outside the mainstream" because Obama believes that one of the many qualities needed in a Supreme Court justice is a sense of empathy.

Sen. Kyl's antics recall the charcater in Alice in Wonderland who said "a word means only what I say it means." Forunately, language is more resilient than that, and a confused and mean-spirited U.S. senator cannot single-handedly reshape a word signifying a concept central to our humanity. Without empathy − intuitive understanding, emotional intelligence, the ability to imagine oneself as another − each of us is trapped within a metaphorical prison: the prison of the self. It is a commonplace that people without empathy are otherwise known as sociopaths.

Sen. Jeff Sessions R-Alabama), one of Kyl’s Republican colleagues, seemed to realize this when he asked Judge Sotomajor at her Supreme Court confirmation hearings about the New Haven firefighters case. Trying to comply with Title VII of the Civil Rights Act, the City of New Haven threw out the results of a promotional exam for firefighters in which no blacks had qualified for advancement. In Ricci v. DeStephano, white firefighers sued, claiming racial bias. Judge Sotomajor was part of a three-judge panel of the Second US Circuit Court of Appeals that upheld the city’s decision. The Supreme Court reversed the Second Circuit’s ruling in June, setting the stage for an attempt by Republican opponents of Judge Sotomajor’s nomination to make some political hay − or at least try to.

Sen. Sessions wanted to know whether Judge Sotomajor cared about what the white firefighters may have felt when the appeals panel she served on rejected their racial bias arguments in a three-paragraph ruling. In other words, he was asking whether she empathized with them. Did Sessions appreciate the irony of this, given the overt attack on empathy made by his colleague Kyl? Good cop, bad cop: one senator says Sotomajor shouldn't be empathetic; the other says she
wasn't empathetic enough.

Capitol Hill dust-ups come and go, often leaving deeper issues unexamined entirely. For me, this one provides the impetus to connect with Paul Ricoeur’s book Oneself as Another. We cling too closely to individual identity in America, and our lack of empathy, both personally and collectively, reflects emotional impoverishment in the materially richest country in the world.

Syllogism for Sotomajor?

Major premise (Senator Jon Kyl): A sense of empathy has no place in a judge’s decisions.

Minor premise (DSM-IV): Lack of empathy for others is a characteristic of antisocial personality disorder.

Conclusion: Judges should be drawn from a pool of sociopaths.