Passing Bull 251 – Comparing cases and playing the man

‘We may have made some mistakes financially, but your lot trashed the whole economy.’  This is standard fare in politics.  Playing the man – the Latin is ad hominem – is not meeting the argument.  It is a recognised fallacy.  But comparing one case to another may be revealing, and not just as showing hypocrisy on the part of the person putting an argument.  Comparing cases, and distinguishing them, is part of the lifeblood of debate and it is essential to the process of the common law.

This came to mind as I read a biography of Von Karajan by Richard Osborne.  Karajan had joined the Nazi Party and had to be cleared by the De-Nazification Tribunal.  Furtwangler faced a similar issue.  Both were attacked – in my view unfairly.

Karajan had said he made a mistake in joining the party. I don’t know why – he might have been unemployable if his ‘patriotism’ had been put in issue.  Eight million Germans signed up.  That was not in itself a crime.  Mr Osborne points out that David Oistrakh joined the Communist Party.  Does that mean he supported the crimes of Stalin?

Way back to the time when pioneering British socialists Sidney and Beatrice Webb excused the mass murder of the kulaks, the peasant landowners in Stalin’s Russia, on grounds of a pressing need for greater agricultural efficiency in the Soviet Union, there has been a long history of toleration – even on occasion justification – of ‘Uncle Joe’ Stalin’s acts of genocide that would be unthinkable in the case of Hitler’s.

That is an illuminating comparison.  As is the reference to the ‘raucous’ support of Hitler given by Karl Böhm, ‘the shrewd lawyer with the peasant’s instinct for survival.’  ‘Anyone who does not say a big YES to our Führer’s action and give it their hundred per cent support does not deserve to be called a German.’  Neither Karajan nor Furtwangler got even close to that, and if you looked hard enough you might find something unseemly in the dressing table of the ensainted Elizabeth Schwarzkopf.

Edmund Burke said ‘I do not know the method of drawing up an indictment against a whole people.’  The Nazis claimed to do just that.  Robert Jackson (later a U S Supreme Court Justice) said at Nuremberg:

We should also make clear that we have no purpose to incriminate the whole German people…..If the German populace had willingly accepted the Nazi programme, no storm troopers would have been needed….The German no less than the non-German world has accounts to settle with these defendants.

Mr Osborne tells us that Yehudi Menuhin shared this view. 

In 1949, a tour of Chicago by Furtwangler had to be called off in the face of death threats.  The President of the Chicago group issued a most dignified statement.

….I was confident however in my belief that all of us who have made great sacrifices to bring the war to a victorious conclusion had done so in the hope that our victory would above all else bring about a world attitude of tolerance.  To find that this attitude of tolerance has not yet been realised and accepted by many people , including even some outstanding artists, is tragic evidence of the fact that our victory as yet has not been complete.

The whole catastrophe started with an ascription of guilt to a whole people.  Guilt by association is the first refuge of the coward.  And we may want to reconsider our views on moral cowardice in view of the moral landslide now on show in the Republican Party.

Bloopers

Apollo said in a statement it was ‘firmly committed to transparency.’  It added: ‘Leon has communicated directly with our investors on this issue and we remain in open dialogue.’

Financial Times, 23 October, 2020

The dreamtime of a ghost-seer – III

A stream of consciousness of an ageing white male – and a member of an elite, to boot

Reminiscences of a barrister in autumn

III

So much in all our lives depends on chance.  You might stumble over something that leads you to see the world through different eyes.  In about, I suppose, 1960, I watched an interview on the ABC with Professor Andrew Boyce Gibson.  Gibson was the Dean of the Arts Faculty at Melbourne University.  He would lecture me in philosophy at Melbourne University in 1964.  He just looked to me to be wise and kind.  .  He said he had learned to speak French so that he could read Descartes in its original form.  He said that this had given him a new window on the world.  That made me wonder how much our view of the world is shaped by our language.  Later, I would ask if that was not the main question facing philosophy.  Gibson was a Christian apologist.  (As were my other philosophy lecturers in each of the next two years.)  A rather preppy young interviewer got into high flown language about the role of the Church in modern industrial society.  With great calm, this very wise man said: ‘The problem is that the whole thing began in a carpenter’s shop and has just got a bit out of hand since.’  That seemed to me then, and it still does now, to sound like true wisdom.  Kant said that some things had a ‘fancy price,’ but that each of us has a worth or dignity above price merely because we are human.  Wittgenstein said that about some things we must be silent.  He also said that during the war, trains carried a sign: ‘Is this journey really necessary?’  A Greek philosopher said that we do not live to see our own death.  For some reason, that struck a very comforting note for me.  (I am not sure whether it was he who said that you never step into the same river twice.)  In War and Peace, Prince Bolkonsky said that when we die, we either get all the answers or we stop asking the questions.  Sir Lewis Namier referred to a need of plain human kindness, and ‘restraint and the tolerance that it implies.’  Hannah Arendt said ‘Every government assumes political responsibility for the deeds and misdeeds of its predecessor…every generation, by virtue of being born into a historical continuum is burdened by the sins of the fathers as it is blessed with the deeds of the ancestors.’  Finally, in burying his grandmother, Dietrich Bonhoeffer said: ‘She came out of a different time, out of a different spiritual world, and this world will not shrink into the grave with her.  This heritage, for which we are grateful to her, puts us under obligation.’  If I was asked what proposition in our past best expresses my hope for the world, that one would take a lot of beating.  There is about it an aura of nobility.

*

Books can furnish the house as well as furnish the mind.  I collected fifty of what for me were the great books or writers either in literature or affairs that were either part at least bound in leather or fitted with a slip case.  About half of them have been rebound by Helen Williams, a local bookbinder. ( Well, that is at least some contribution to the economy.)  There are books published by the Folio Society or those sumptuous American products from people like the Franklin Library or Easton Press.  I have added three more volumes about great books, so that there are now two hundred books that stand for something that counts in my life – apart from the novels, histories, plays and poems, there are books about fly fishing, wine, Barassi, cooking, Jussi Bjorling or Maria Callas, cricket, Ferrari or golf – and so on.  They are gorgeous to look at and they almost demand to be taken out and fondled.  For better or worse, they are the evidence of my journey here, and a source of real comfort – especially since we put the Wolf to sleep.

*

It is curious that Benjamin Britten and Tim Storrier had a fascination about water.  Britten brought it to life musically in two of his operas, Peter Grimes and Billy Budd.  You can just about taste the salt water in each.  A dealer at Australian Galleries told me that Storrier dealt with the fundamental.  He did a series of paintings of the sea with ladies’ hats.  He was also fascinated with fire.  I have one of his that is a blazing pyramid.  Would that I could afford one with a television box standing before a blaze in the bush – with a picture of the sea on the screen.  I have one of his firelines and a drawing of a saddle.  He could obviously draw –as could Jeffrey Smart and Fred Williams and others whose works I have – just works on paper, but theirs.  Storrier looks to me to have a patrician streak.  I went to hear him speak at the opening of a swish new gallery in High Street, Armadale.  He said that asking an artist to open a gallery was a bit like asking a cow to open an abattoir.  The owners did their best to put on masks of affability.  I was the art partner at Blakes, and I enjoyed it immensely.  It allowed me buy stuff I could never afford – and defend the acquisition for the occasional Presbyterian Philistine.  It also gave me the chance to have some fun.  I could go into a gallery on my way to or from gym looking like a bum.  And being looked down upon.  Until I responded to their query ‘Can we help?’  ‘Perhaps.  I am the art partner of an international law firm that is leasing six floors of a landmark building in Collins Street, and I have been instructed to acquire appropriate works of Australian art.’  The response was like that described by Banjo Paterson.  ‘There was movement at the station for the word had got around…..’(Did you know that Banjo was a lawyer?  And a good looking one, to boot.)

*

When I started at the Bar in 1971, I was almost completely dependent on my clerk, Ken Spurr, for briefs.  Most of them were in the Magistrates’ Courts.  There were three main categories of briefs – crash and bash (civil claims for motor car accidents); police prosecutions – mainly traffic; and maintenance cases between husband and wife.  We are speaking of a time about half a century ago – and I suspect that nearly all of that kind of brief has now gone by the wayside.  Most magistrates then had been clerks of courts, and were firmly on the side of the police – some of whom congregated in the clerk’s office before court.  It was almost impossible to get a magistrate to make a finding against a copper.  Some of them liked to have a drink with counsel over lunch at a bar.  One of them was addicted to Autumn Brown.  The grog did not soften them up after lunch.  It made sense to me to start at the bottom, and over time I noticed a kind of aloof distraction in those barristers who had the connections or front to avoid that kind of stuff.  Those briefs were marked at about $20 each.  And I thought that if I could get, say, three of those in a week, I could keep my head above water.  You used to drive out to a suburban court, and meet the punter there at about 9.30 am.  And then you would spend your time praying that you would get on.  There was nothing worse than waiting round all day at, say, Ferntree Gully and not getting on.  There was then the dispiriting drive back to the city – without a cracker to show for all that time out of your life.  You were not helped by bromides about cab ranks or swings and roundabouts, but this was a priceless way to learn about both the lottery and the pain of litigation.  You may not have wanted to say this to the punter, but the best way to learn was to lose – and lose both hard and often.  No sane person wants to embark on this kind of public raffle, and you realise that that your real role is to get the punter out of the clutches of the process as quickly and decently as possible.  As time goes on, you could get consulted before the proceeding was issued – and you could help deal with the hurt by pointing out that the cure was likely to be a lot worse than the disease.  It appals me now to go to mediations where counsel has been involved from the beginning – and you and they are seeing the punter for the first time.  I cannot understand how counsel can say that the course the client is pursuing was only embarked on after counsel took into account all relevant considerations.  What do you do if when you meet the punter, you think either that they will not be able to bear the stress of litigation – or be believed?  Perhaps that is why I wonder why of all the libel actions I have mediated over say the last five tears, I can hardly recall one that I would have recommended –  but I can recall a lot that were obviously too dicey to chance your arm in what Sir Owen Dixon called the temple of justice.

Passing Bull 250 – Inanity writ large – and worse

One Australian newspaper today posted two comments on the re-election of Jacinda Ardern.  One was from the Economist.  From a respectable newspaper, the comment was both sensible and gracious.  That from the I P A was the direct opposite of both those qualities.  It starts this way.

Nobody skewered Barack Obama during his presidency like legendary comedian Dennis Miller.  ‘It’s not all that dramatic with me and Obama,’ Miller once told his audience.  ‘It’s not racist, it’s not classist, it’s not ideological.  It’s just that he is an inept civil servant.  He’s the guy at the toll booth who’s constantly giving out the wrong change.’

The same could be said about New Zealand Prime Minister Jacinda Ardern.  She’s a brilliant politician, but has been a grossly incompetent administrator.

That was the beginning.  We know that the IPA people cannot tolerate Democrats in the U S or anyone to do with Labor here in Australasia or the UK.  We also know that where a lightweight says that he is not being A, B or C, there is every chance that he is certainly being at least B or C.  And these comments about Obama are certainly premised on both class and ideology – in spades.  We can be as certain of that as we can be that those remarks are as tasteless as they are both revealing and inane.  It is a beautiful instance of my rule of thumb that if someone gets up the nose of people at the Murdoch press or the IPA, they are doing some good.  The revelation comes from the derision of anything Democrat or Labor.  Not many presidents get ranked with toll booth attendants.  A former IPA person who works for Murdoch said the other day that it would be a tragedy if Gladys Berejiklian lost office, and Daniel Andrews did not.  The non sequitur is painful, but the ideological antipathy is palpable.  The article concludes.

The only hope for New Zealand now is that, whatever horrifying plans that Labour has in store, Ardern is just as hopeless at actually implementing them in her second term as she was in her first.

What can you say?  It’s not that they prefer Trump to Obama and Morrison to Ardern, it’s that their inanity leaves them with no sense of grace at all.  We are left with the question that that Boston attorney – counsel for the U S army – asked of Senator Joseph McCarthy.  ‘Have you no sense of decency at all at long last?’

You will see that this is number 250 in this series on contemporary bullshit.  It’s sad that this entry is so gross.

Bloopers

Pence’s polished, reasoned and compelling performance would certainly reassure any viewer remotely inclined to support Trump that this is a substantial administration on the right policy track.

The Australian, 9 October, 2020, Greg Sheridan

The US left hates the history and institutions of America itself.

The Australian, 14 October, 2020, Greg Sheridan

Q E D.

Here and there – Rage by Bob Woodward

It may have been a mistake for me to buy this book.  We have seen it all before and it is too painful to recall.  That is, I suppose, the whole problem.  In more than 300 pages that are meticulously reported, there are probably 300 acts of this President for which the CEO of a public company would be fired.  But so what?  We have seen it all before.  But at least we are reminded  – especially the Trump supporters in this country – that it is impossible to imagine a person worse placed to hold any form of public office – let alone that of President of the United States.

So, I could only bring myself quickly to scan it.  That’s a great shame, because this is a well kept a diary of a sad national failure.

The CIA never figured out conclusively who wrote and crafted Kim’s letters to Trump.  They were masterpieces.  The analysts marvelled at the skill someone brought to finding the exact mixture of flattery while appealing to Trump’s sense of grandiosity and being centre stage in history.

I expect that Kim, like Trump, has an ego that leaves no room for God, but Kim, like a few other cold killers, could go down on his knees each day and give thanks that Providence has given him this rude, loud, weak spoiled child – whom he can walk over at will.

A devout Catholic, Redfield had gone through a religious awakening during a private 10-minute conversation with Pope John Paul II in 1989 and believed in the redemptive power of suffering.  Redfield prayed every day, including a prayer for President Trump.

We thought the Evangelicals were the problem.  The whole mess has been very bad for religion.  For that matter, so has most of the history of the U S.

‘Don’t mock Kim’, Trump repeated.  ‘I don’t want a fucking nuclear war,’ he said again.  He returned to the new nuclear weapons he had.  ‘I have such powerful weapons.  They’re so powerful you wouldn’t believe it.  You wouldn’t even put them in your book.’

Those who think Trump is not a fool might answer this question.  Could anyone but a fool have said that on the record to the most respected reporter on earth?  And it is so utterly characteristic.

You do not have to be an expert in managing people to know that about the worst mistake a CEO can make is to have someone outside the hierarchy available to counsel the CEO on how to deal with those reporting to him – behind their backs – especially if that person is very close to the CEO – like being the husband of his daughter.  The trouble with Jared Kushner is that he is inadequate enough not to see how inadequate he is, or how much damage he is doing to the structure of management.  Messrs Mattis and Fauci are faultless leaders in their spheres.  One look at them tells you that these people understand and embrace public service – in a way that the Trump family could never understand.  How could decent people like them survive dealing with someone like Trump and his family?

The book confirms my worst fears about Kushner.  Kushner told Woodward – again on the record – that if he wanted to understand Trump, he should read four texts.  One of them was Alice in Wonderland.

When combined, Kushner’s four texts painted President Trump as crazy, aimless, stubborn and manipulative.  I could hardly believe anyone would recommend these as ways to understand their father-in-law, much less the president they believed in and served.

The worst is yet to come.  You thought Trump had got rid of his best advisers.

‘And by the way,’ Kushner added, ‘that’s why the most dangerous people around the president are overconfident idiots.’ It was apparently a reference to Mattis, Tillerson and former White House economic adviser Gary Cohn.  All had left.  ‘If you look at the evolution over time, we’ve gotten rid of a lot of the overconfident idiots.  And now he’s got a lot more thoughtful people who kind of know their place and know what to do.’

Trump is a spoiled child who never learned anything better.  Those Republican grandees who have enabled him do not have that excuse.  Their time will come in the blackest pages of history.

Perhaps we should all read this book to recall why.

Passing Bull 249 – Mixed waffle

Trump is a hot but threatening politician, exuding a primitive albeit vicious power.  Biden, by contrast, is a cool politician, a decent man, but, compared with Trump, he looks weak, even fragile.  This election is a civil war over what constitutes virtue.

The Australian, 2 September, 2020, Paul Kelly

The last politician I can think of who used the word ‘virtue’ in a political context was Robespierre – and he did not meet a good end.  But if this election is between a man who is decent and one who is not, ‘virtue’ could know only one winner.  You might get more sense from Superman.

‘Our position is that our participation agreement includes a non-disparagement clause,’ the minutes say. ‘A reactive media statement will be prepared if required.’

The Guardian, 9 September, 2020

It is not surprising that they got caught.

Thales, whose roots stretch back more than a century, had come up with a statement of its purpose. ‘It is a statement that took six months to write,’ Mr Caine wrote on LinkedIn, adding there had also been six months of consultations with nearly half of the group’s 83,000 employees. The result was just seven words: ‘Building a future we can all trust.’  Staring at them, I thought, bingo! Thales had pulled off a trifecta in the corporate twaddle stakes. A group that makes everything from train ticket systems to drone software had spent hours of company time on a statement so devoid of meaning that it could have come from untold other firms.

Conservative MP Desmond Swayne claimed this week that Prof Whitty and Sir Patrick were engaged in ‘project fear’.

Financial Times, 30 September, 2020

What if there is something to be afraid of?

Dreamtime of a ghost-seer – Part 2

A stream of consciousness of an ageing white male – and a member of an elite, to boot

Reminiscences of a barrister in autumn

II

The dreadful time I had with a cab on arriving at Prague led me to a much better moment on leaving it.  I wanted to go to Lidice.  This was the site of a Czech town that Hitler had ordered to be liquidated as a reprisal for the assassination of Heydrich.  I ascertained that it was about twenty minutes on the other side of the airport and I ordered a car to take me there and then drop me at the airport.  This was shortly after the liberation following the fall of the wall, and I was given a guide as well as a driver.  The guide was a youngish woman schoolteacher.  She was just right.  I now regret not having turned to guides more often.  As we moved through the traffic outside the city centre, I said that Prague was gorgeous – ‘a chocolate box city, as it appeared in the film Amadeus.’  ‘Perhaps – but you have not been to the industrial estates where the skinheads are killing the gypsies.’

*

Blake & Riggall, where I did my articles in 1969 before going back as a partner in 1986, was a very old and Establishment law firm, almost as old as the colony that started in Port Philip.  It was of course exclusively male and Protestant, and I would have been the first partner who had even thought of voting for the party of the workers.  It was in many ways Dickensian.  During the year of our articles, Bob Paterson and I shared a room in the basement beyond the area allocated to the Titles Office clerks.  They took on a very old man from the T O, Mr Adams.  I think Mr Adams wore wing collars, but he unsettled some staff by retiring to his cubicle at lunchtime and going to sleep at the top of his desk in a foetal position.  One crusty old partner was Hubert Black.  He upbraided an articled clerk in the lift one day.  ‘Are you a Catholic?’  ‘Good God, no.  Why do you ask?’  ‘Then what are you doing with a brief addressed to F X Costigan?’  Well, we never though those days would never end and they did.  And thank Heaven for that.

*

Once in my life, I think, I had cross examined to effect and I was about to apply the death blow.  It was a difficult case of a lady who had her problems trying to set aside transactions in favour of her accountant that we said he had obtained through undue influence.  The defendant had just contradicted himself on a statutory declaration about the ownership of a motor vehicle.  Then from nowhere, the judge stopped the cross-examination and said that he wanted to warn the witness – who was represented by counsel who had just about tossed the towel in – about self-incrimination.  I could not believe it.  This was a quirk of a judge – ‘Ginger’ Southwell – who was known to advance something like the ‘sporting theory’ of justice.  The cross-examination was stopped and we lost the case.  It still riles me.  I have never forgiven the judge for doing something for no other apparent reason than that he could.  The relevant words are ‘arbitrary’ and ‘capricious’.  They are a denial of fairness or justice.  The client was very shaky – that was, after all, part of her case.  I had asked her what she might do if she lost.  ‘I will kill myself.’  I was instructed by a law clerk from England, Jim Saunders, who was straight out of Rumpole, and who had a wonderful old world charm.  He said, under his clear bright eyes: ‘I shouldn’t say that if I were you – it puts an unfair onus on counsel.’  Jim used to say that in London counsel would offer him sherry or tea.  I said he could forget sherry, but I invested in a tea-set of Wedgwood English Country Roses from which I still take my tea.  Only God knows if the poor lady carried out her threat, but I know that I had lost whatever innocence I still had about our justice system.  You can hardly tell what may happen of any case.  It is put up by real people and it will be resolved by real people.  And no real person is infallible.

*

Black Americans have produced jazz pianists that are out of this world.  Like Art Tatum or Erroll Garner.  Whitney Bailliett said:  ‘Tatum told me that he adored Erroll, and that was strange because they were so different.  Tatum was something of a stuffed shirt, while Erroll was so articulate in his street-smart way.  Erroll loved chubby ladies….He was a very generous man. I remember walking to Jilly’s with him in the sixties and I don’t know how many times he stopped to say, ‘Hey, baby’, and reach into his pocket and lay something on whoever it was.’  Bailliett said that recording tends to ‘stymie’ jazz musicians, but Garner loved them – in a 1953 session, Erroll ‘rattled off thirteen numbers, averaging over six minutes each with no rehearsals and no retakes.’  Erroll liked ‘to have his base player sit on his left, so that the bass player could see his left hand.’  Another pianist said that ‘when Erroll walked into a room, a light went on.  He was an imp. He could make poor bass players and poor drummers play like champions.  When he played, he’d sit down and drop his hands on the keyboard and start.  He didn’t care what key he was in or anything.  He was a full orchestra, and I used to call him ‘Ork’.  Another pianist said that what distinguished him ‘was his rich and profound quality of time…He was his magnificent pianistic engine.’  Bailliett ended the piece by recording the reaction of Garner when someone mentioned that he could not read music.  ‘Hell, man, nobody can hear you read.’

*

Mac, my dad, was a judge’s associate.  Norma, my mum, was a court reporter.  I was therefore brought up with stories about law and the courts.  I thought Mac and Norma wanted me to go into the law.  I resisted until my first year of arts at Melbourne University suggested that there was no assured career outside of the law.  I therefore changed to do arts and law.  After about a year or so, it looked to me that the law course was not all that demanding and that could seek to improve my education by reading legal biographies and legal history while coming to grips with the great novelists of France and Russia – while continuing to learn in both history and philosophy.  I think the first biography in the law I read was of Haldane.  It was most instructive.  I have just read a new one, and it is still full of interest for me.  The way to get into a new area is to read about those who made it.

*

I found it unsettling to appear before a judge whom my father was assisting.  It was even harder to appear in a court where my mother was the short-hand writer.  It happened a couple of times in bankruptcy in the old High Court.  In my first five years at the Bar, I had quite a practice in bankruptcy.  Mr Justice Sweeney was a model of courtesy, but he was also a master of controlling his work flow.  I cannot recall any savage contest before him.  And the most technical points could be taken.  One such occasion arose when a creditor understated the debt – understated – by one dollar.  I went armed with all the case law about inconsequential errors.  The debtor turned up expressing the wish to go bankrupt.  I still lost.  As I retreated through a packed court, I wondered whether those faces all turned on me were hiding humour or disdain.  What I do know is that most would of them have thought that this apparent silliness showed that the sooner they got out law courts in general, the better.  Happily, I don’t think that happened on a day when my mother was rostered on to that court.  It was beyond me to know why a transcript was necessary for this court.  I did not ask his Honour why while enjoying morning tea with him in his chambers on another day when the list was completed a comfortable time before lunch.