Is “irony” the right word?

About the time my cousin George, who converted to Judaism (יהדות) upon his retirement from the State Department, was sending me (and others) an e-mail update about his rich experiences teaching and living in Haifa, Israel, a former “Grand Dragon” was going on a shooting spree at the Jewish Community Center and nearby retirement village in Kansas City.* The shooter killed three people.** Two were Methodists and one was Catholic.

The oldest victim was a physician and a grandfather who was taking his grandson, the second victim and a 14-year-old singing sensation, to an audition at the Center. The third victim was a Catholic woman who worked as an occupational therapist assisting the visually impaired. She was visiting her mother at Village Shalom. Thankfully, no Jews were killed or injured.

To any sane person, that the shooter set out to slaughter Jews but mistakenly ended up mowing down Christians stretches the meaning of irony to the breaking point. And that is a good thing.

RGK

*According to the Southern Poverty Law Center, the shooter had gone to prison in the past on weapons charges after plotting robberies and the assassination of SPLC founder Morris Dees.

**It appears likely that the shooter will be charged federally under 18 U.S. Code § 249.

29 responses

  1. Judge, You said:

    “To any sane person, that the shooter set out to slaughter Jews but mistakenly ended up mowing down Christians stretches the meaning of irony to the breaking point. And that is a good thing.”

    Comment: Not if you are one of the Christians!

    In fact, there is nothing good about this whatsoever. It is devoid of any goodness. The existence of the irony does not diminish the injustice. You are treating irony as some sort of valuable commodity. If we value irony so as to somehow punish the wrongdoer we diminish ourselves and think that is a good thing, we are being vindictive thus bringing out the worst in ourselves.

    Dean

  2. If we need another lesson in the fatuousness of prejudice–and I don’t think we do, or at least I don’t think that another one will make the lesson stick–this is certainly it.

    But I feel compelled to point out that in a sane society this man would never have been permitted to possess a deadly weapon.

  3. Pingback: Death Plus Hate | Simple Justice

  4. The shooter killed three people whom he thought were Yiden. Only in his twisted mind, assuming he had the capacity to understand irony, would he find surprise in an unexpected outcome.

    To me, it’s a sign that Jews still need to fear that we are targets of unrelenting hatred. How many millions of Jews have been slaughtered? How many stand to be? With people like this murderer, one still respectful of the despised leader of Germany in the early part of the 20th Century, as well as one who does not stand alone, Jews can never assume we are safe.

    On this Passover day, let us remember, too, that we have an obligation to protect all who are enslaved for their looks or beliefs.

  5. I meant that I was happy that no Jews were killed. To avoid any misunderstanding, that does not imply that the death of Christians (or anyone else) was preferable.

    All the best.

    RGK

  6. I’m not sure where the irony would be here. Adolph Hitler also targeted Catholic & Protestant Christians who were devout – and therefore acted in love not hate toward their Jewish neighbors. The KKK has also long attacked any Christian who dared to associate in Love with a variety of disapproved ethnicities. Love of neighbor has been getting Christians killed ever since, well, 33 AD.

    I knew an Eastern Orthodox Christian Nun who visited the US a few years ago and was quite concerned that her traditional Christian dress (very ancient “rasa” or habit) would get her killed because someone would mistake her for a follower of Islam.

    Sadly, it is rather normal & predictable for sociopaths to be 1) ignorant of cultural & religious distinctions and 2) equal-opportunity destroyers of human life.

  7. It is particularly ironic that today is Passover, as that day celebrates one of the most barbaric acts of injustice ever purportedly committed by a Bronze Age god. In that (admittedly, legendary) tale, we are solemnly told that YHWH massacred the first-born sons of every Egyptian as retribution for Pharoah’s refusal to let the Israelites go. Not just Pharoah’s son (cf., the tale of David and Bath’sheba), but the scion of EVERY SINGLE EGYPTIAN FAMILY.

    Whereas no one–and certainly, not the Framers–would ever question the right of the oppressed to kill a tyrant in the defense of lives and liberties, is it ever ethical for a person to kill the tyrant’s child in retribution? I am thinking about the killing of Miriam Monstango by Mohammed Merah two years ago, in ostensible retribution for the killing of “our brothers and sisters in Palestine” by Jewish forces, according to the shooter. To the best of anyone’s knowledge, Rabbi Sandler had nothing to do with the situation in Israel; he was the Jewish equivalent of an innocent man of Egypt on that Passover eve, who literally had no control over what Pharoah did.

    Without trying to even stake out a position on that mess, I ask the question: Is it ethical to kill the son of a tyrant, or is YHWH an unethical god? There is no third option.

  8. I am of a different mindset on this one. The lessons of history are not unlearned easily, and we need only examine the abortive Green Revolution in Iran and the mess in Ukraine (imagine Kiev, with nuclear weapons) to understand the value of lethal force in the struggle to resist a tyrant. Imagine how different the Holocaust might have been, had German Jews been armed to the teeth.

    I would rather run the risk of being gunned down in a movie theater than have no defense against willful acts of tyranny inflicted by my government. You acquire a different perspective when you are the one on the business end of injustice.

  9. I’ve been doing battle with religious lunatics for much of my adult life, and have learned that with few exceptions, they are not the sharpest tools in the shed. A band of Arab men, armed only with a score of rental cars and a few cartons of Camels, could under the right conditions lay waste to the Colorado high country in a single day. But for some strange reason, they insist upon sporting flammable undies….

    Go figger….

  10. While stopping the body count at zero would have been preferable, stopping it at three is a relatively good thing. Easter Sunday will also be the fifteenth anniversary of Columbine. My wife and I had clients, co-workers, and friends involved, and she worked about a mile away. That one was real to me.

  11. Strictly speaking, irony is “an outcome of events contrary to what was, or might have been, expected,” (dictionary.com). In other words, when a Neo-Nazi goes on a killing spree at a Jewish organization with the intention of killing Jewish people, an outcome consisting of said Neo-Nazi killing solely Christian people is contrary to the one he or I suppose anyone expects.

    When I first heard this story, I too was struck by the tragedy and the irony of it. I think Judge Kopf’s point is that it’s a particularly horrible, painful irony. By “to the breaking point,” I took him to mean that the word sometimes implies something funny about the situation, but here there’s only tragedy.

    Very true observation that these kinds of people are frequently ignorant of cultural and religious distinctions. As with your example of the nun, it’s so easy to think we know something about a person in a glance and be completely wrong.

  12. I see it as quite probable that his intention was harm to anyone who would dare associate with Jews – especially at a highly visible Jewish organization. That has been a standard M.O. of such folks for a long time.

  13. Tough questions and no quick answers. Each year during seders, I think of a different topic to discuss. Last night it was the plagues, the last one being the slaying of the first born. The Jews were slaves at the time, economic tools. We did not develop our faith until years later in the desert. The anti-semitism we live with today, the kind that motivated the shooter does not reach back that far. It’s a hatred born and bred in Europe during the middle ages, one directed at beliefs. I struggle with your question as much as I struggle with the present day problems. Last night, on the way to a seder in the West Bank, an innocent woman was killed. Hammas said it was justified by all the harms done to Palestinians. I mourn all the dead, preferring the bloodshed would stop and peace come. In any event, Happy Passover.

  14. The bloodshed won’t stop. It can’t stop. And, I would submit, it is painfully obvious as to why.

    Injustice is the father of all violence and tribalism, its favorite mistress. In a perfectly just society, violence would never be considered necessary or for that matter, even contemplated. But whether it is Jews, Germans, or judges, the tribe always favors its members, always resulting in injustice. Or, to put the converse in the pithy words of one Judge Lorin Duckman, “more justice, more peace.”

    And this is where the rubber meets the road uncomfortably: I can’t fairly conclude that the woman going to seder was “innocent.”

    As a matter of historical fact, those Jews who didn’t flee the Jewish War in 66-70 AD were forcibly removed by Hadrian in 135 AD. They moved to all corners of the globe, and many (including some of my ancestors) ended up on the steppes of Russia. The Roman Empire collapsed, but they never returned. Over time, they intermarried with the locals, to the point where many have blond hair and blue eyes. They were Russians, Poles, Germans, and even Englishmen. And many more, like Judge K’s cousin, had no Jewish blood at all. But in their stead, other tribes took up residence, and for centuries, it was THEIR home.

    I would submit that the Ashkenazi Jews have no more of a legal or moral “right” to return to Israel than I would have to return to Dover, Edinburgh, or Warsaw. Nor is it obvious that those who can claim maternal lineage would have a more compelling claim to return than those who can claim paternal lineage. It is simply not “their land” any more.

    The Palestinians who lived there–some years ago, I met a man whilst in Australia who still had the deed to his family’s land, issued by the Crown, in what is now “Israel”–had every right to be there. And in essence, their land was stolen. Not even acquired at a mishpucha discount, but stolen, outright. (Israel warranted that it would pay reparations, but never did.)

    And unsurprisingly, they kinda want it back.

    Our nation was built upon the sanctity of private property rights. It is, as many have noted, a prerequisite to freedom. How can we deny to others what we claim as our own birthright? As R. Hillel curtly put it, “whatever is hateful to you, do not do to your fellowman. This is the Torah.”

    They kinda want their land back. ALL of it. And if we were in the same position, would we hesitate to kill those who stole it from us? They have a right under natural law to recover what is rightfully theirs, by any means necessary. And if it means killing the occupiers–including women and children–it does. After all, given what YHWH did to innocent Egyptians, you can’t really argue in a manner consistent with the Torah that to kill a member of the occupying tribe is “murder.”

    That is why I asked the question. It is said that if you ask three rabbis the same question, you will get five answers.🙂 But I have never been able to reason one out that justifies the status quo ante.

    Shalom, Lorin.

  15. Judge:
    Re: this act of racist hatred, I can’t help but recall Ayn Rand’s phrase that “Racism is merely the crudest form of tribalism.” I question how we can eliminate the former while, technically, allowing for the latter.
    Robert

  16. Robert,

    You make a very important point. While we may never be able to eliminate tribalism and thus racism, the law is supposed to protect the weak from being being preyed upon by the strong. At least to some degree, general deterrence flowing from consistent application of the law is within our reach. Don’t despair.

    All the best.

    RGK

  17. I will always stick with Hillell. I gave up law, because I had been unsuccessful in combating injustice. I have stuck with my religion, because I found Rabbis who felt the same way. Takes a lifetime to know what it means to be a Jew; I only hope that ten people will attend my funeral so they can say Kaddish. But don’t think I don’t raise these same issues with my brothers at the Bima. And, they look at me the same way the young prosecutors did when I sat on the bench.

  18. RGK: At least to some degree, general deterrence flowing from consistent application of the law is within our reach.

    Not in THIS country. America was demonstrably closer to that goal 220 years ago, and the primary culprit for this wholesale abandonment of the rule of law is the “tribe” we call federal judges. And as I have said, there are three kinds of federal judge: the Sanduskys, the McQuearys, and the Joe Paternos. And, much as Mike McQueary would not act to stop Jerry Sandusky’s debauchery for the sake of the Nittany Lions Tribe, I can’t even persuade you to declare that it is a felony for a judge to sit in judgment of his own case in a case where non-conflicted judges are available to hear it.

    As constitutional scholar (well, at least, he is regarded as one by the Right) Michael McConnell observes:

    …the essence of the social contract is that we relinquish certain of our natural rights–most fundamentally, the right to be a judge in our own case and to do violence–use violence against others–and we receive in return more effectual protection for certain of our rights, plus the enjoyment of certain positive rights–that is, rights that are created by the creation of political society. Civil rights are the rights we enjoy after entering the state of civil society. Some civil rights are also natural rights, but now enjoying the more secure protection of civil society. …[1]

    Back in the day, American courts embraced the principles of natural justice without caveats. As Justice Chase—yes, that Justice Chase—observed:

    There are certain vital principles in our free Republican governments, which will determine and over-rule an apparent and flagrant abuse of legislative power; as to authorize manifest injustice by positive law; or to take away that security for personal liberty, or private property, for the protection whereof the government was established. An ACT of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority. The obligation of a law in governments established on express compact, and on republican principles, must be determined by the nature of the power, on which it is founded. A few instances will suffice to explain what I mean. A law that punished a citizen for an innocent action, or, in other words, for an act, which, when done, was in violation of no existing law; a law that destroys, or impairs, the lawful private contracts of citizens; a law that makes a man a Judge in his own cause; or a law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with SUCH powers; and, therefore, it cannot be presumed that they have done it.

    Calder v. Bull, 3 U.S. 386, 388 (1798) (emphasis added).

    Everyone agrees that no man has a right to be judge in his own cause, as it violates the most basic principles of natural justice, even in Putin’s Russia.[2] As it is logically impossible to have a right without an effective remedy for its breach, whether you are a citizen of Australia, Bangladesh, Canada, or even Zimbabwe, natural justice is an integral part of the law of their land, and it will be enforced in their courts. E.g., Tirivangana v. University of Zimbabwe [2013] ZWSC 21 (violation of natural justice grounds for relief); Abdul Latif Mirza v Govt. of Bangladesh (1979) 31 DLR (AD) (“the principle of Natural Justice is a part of the law of this country”); see generally, T. S. Sivagnanam, “Principles of Natural Justice” (lecture to newly recruited Civil Judges at Tamil Nadu State Judicial Academy, Chennai, India), Jan. 6, 2009. While American jurists may not use the same nomenclature, they wholeheartedly embrace natural justice—or at least, as is the case with all American judges, when it takes them exactly where they wanted to go in the first place. As Justice Hugo Black, writing in dissent, cynically observes, a “collection of the catchwords and catch phrases invoked by judges who would strike down under the Fourteenth Amendment laws which offend their notions of natural justice would fill many pages.” Griswold v. Connecticut, 381 U.S. 479, 511 & fn. 4 (1965) (Black, J., dissenting). Yet, despite this avalanche of precedent, I can’t get you to even criticize such a practice, to say nothing of denouncing it.

    And in this country, the quality of the justice you will receive is a direct and inescapable function of the size of your exchequer. As Judge Gertner has admitted here, this is what it is like to be a pro se litigant in an American court. Your pleas will not be heard, your briefs will not be read, your grievances will not be redressed. In many instances, your case will never even be considered by an Article III judge, even at the trial stage. The magistrate hands his opinion to the judge, who summarily affirms the decision—apparently, without reading it—in a boiler-plate opinion, betraying no objective indication that s/he has reviewed the matter at all. See e.g., Shell v. Devries, No. 06-cv-00318-REB-BNB (D.Colo. Jan. 30, 2007); Signer v. Pimkova, No. 05-cv-02039-REB-MJW (D.Colo. Nov. 30, 2006); Baldauf v. Garoutte, No. 03-RB-01104 (D.Colo. Jul. 20, 2006). Your skill as an advocate makes no difference, whether you are a graduate of Yale and Georgetown School of Law with over forty years’ experience at bar, Cogswell v. United States Senate, No. 08-cv-01929-REB-MEH (D.Colo. Mar. 2, 2009), or a prisoner whose life is placed in jeopardy by callous official conduct. Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam reversal of scandalously incompetent Tenth Circuit “de novo” review). As Judge Gertner admitted, she was trained in how to get rid of pro se civil rights cases. No shoes, no shirt, no lawyer, no justice.

    Our federal appellate courts’ work product is so uniformly abysmal that Chief Judge Alex Kozinski of the Ninth Circuit recently described it as “sausage,” unfit for human consumption. Tony Mauro, Difference of Opinion, Legal Times, Apr. 12, 2004. A more accurate appraisal is that it smells like chicken-droppings. Our federal circuit courts have become de facto certiorari courts, wherein the review of appeals filed by disfavored litigants—and especially, pro se litigants!—generally take less than ten minutes. The result is a form of constitutional triage, where the “rule of law” is supplanted by the arbitrary and capricious rule of arrogant men. As Professor Penelope Pether writes:

    Although litigants have appeals as of right to the federal courts of appeals, what happens in a wrongly or sloppily or unsafely or arbitrarily decided case is effectively a certiorari decision masquerading as an appeal as of right based on the applicable standard of review. Many of these cases cluster in areas where deep-seated sociolegal problems produce high rates of appeals, where the government is the target of the lawsuit, and the paradigmatic governmental response … is to jurisdiction strip … [to employ] disciplinary mechanisms to encourage [judges] to decide against litigants, and to impose penalties that are designed to discourage appeals.

    Penelope J. Pether, Constitutional Solipsism: Toward a Thick Doctrine of Article III Duty; Why the Federal Circuits’ Nonprecedential Status Rules are (Profoundly) Unconstitutional, 17 W.&M. Bill Rts. J. 955, 977 (2009) (emphasis added).

    And then, there is the illegitimate doctrine of sovereign and official immunity, abandoned everywhere in the civilized world. But not here.

    Really, Judge! “[G]eneral deterrence flowing from consistent application of the law is within our reach”??? Not even if you are a young Kareem Abdul-Jabbar.

    ENDNOTES:

    [1] Michael W. McConnell, Natural Rights, Enumerated Rights, and the Ninth Amendment, Sumner Canary Lecture (Case Western U., Wednesday, Oct. 28, 2008) (emphasis added), video at http://www.youtube.com/watch?v=bLANRrZPm-k (last visited Mar. 16, 2009).
    [2] Dmitry Davydenko, On Dispute Resolution in Controlled Arbitration Courts, Russian Law Online (undated), at http://www.russianlawonline.com/content/dispute-resolution-controlled-arbitration-courts (copy of pdf on file) (“the Presidium will most likely refuse to issue the writ of execution on the basis of its contradiction to fundamental principles of Russian law, that is that “no one should be judge in his own cause” or the principle of impartiality of arbitral tribunals…”).

  19. I actually have a small glimpse of what you mean, having given serious consideration to converting during undergrad. These are tough questions, made tougher by the fact that I have lived in the Palestinians’ shoes. I know oppression at first hand.

    We both appear to be incurable idealists. I’ve read the decision removing you from the bench, and knowing what I know, I take any claims by the judicial establishment with a Gomorrah-sized pillar of salt. Having “crossed swords” with nothing but corrupt judges, I feel your pain in In re Duckman, 2006 Vt. 23. I got hit with “disrespectful litigation practices” for telling judges what the freakin’ law is. Judges are almost uniformly disrespectful of the law–I am convinced that all the unbridled power goes straight to their heads–and Judge K’s reflective attitude is refreshing, if not wholly unprecedented.

    Being on the business end of injustice changes your perspective in a way that few judges ever experience. In the vetting of Judge Tymkovich, one of his colleagues asked if he ever abused alcohol. The guy said that he once put a vintage Merlot in the refrigerator, and the investigators actually wrote it down. For the most part, candidates lived a charmed life, and have no concept of what it is like to be on the other side of the bench, with the oppressive weight of unjust authority bearing down on you.

  20. As a Jew, and someone who has spent a good deal of time studying the Holocaust (including a number of survivors’ memoirs and a visit to Auschwitz), I think I’m sensitive to the issue raised. Frankly, I don’t know that the outcome would have been much different if German Jews had been armed. Indeed, more German Jews might have perished–many of them escaped Germany to the US, what was then Palestine and Britain before the war began. Would armed resistance in Germany have prevented the slaughter of millions in Eastern Europe? That’s by no means clear.

    And analogies are always imperfect. The United States is not by any means Germany in the 1930s, and is not going to be. (And if we should get to that point, I strongly suspect that the people with most of the weapons will be hostile to me any people. Also African-Americans and Hispanics.)

  21. No way to know for sure what would have happened. Philip Roth writes that it could happen again. Me! I suggest that some resistance may have informed the world, especially the American Bankers who were loaning money to the Germans, of the genocide. We cannot forget that the reasons given for killing Jews was that they were responsible for the economic hardships in Germany, in addition to looking different, having a strange culture and producing decadent art. The world didn’t want them and no one wanted to protect them.

  22. While it is, admittedly, hard to say with any certainty as to what would have happened in Germany, six million out of an estimated 100 million or so, not counting survivors and those who fled was a lot of people, and if they were adequately armed (like the Swiss), they could have mounted a formidable resistance movement, weakened the Reich internally and in all likelihood, would have drastically shortened the war. As I understand it the death toll in HaShoah was between 60-70%; it is hard to envision a higher percentage falling.

    Afghanistan (and to a lesser degree, Iraq) is a classic example of what an armed populace can do: they were 2-0 against the two most powerful armies ever to exist. This was the bargain our Founding Fathers made, and it is difficult in the face of history to argue that it was an unwise one.

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