MY FRIEND PENNY GAINES
When you entered the courtroom of the Honorable Pendleton Gaines
of the Superior Court of Maricopa County, you saw heritage: James
Madison’s painting, a map of old Virginia, replicas of the Constitution
and Bill of Rights. He seemed to be a judge from an older, better time—
polite, genteel, but at the same time efficient.
In his court, you had the vague sense that this is what going to court
was meant to be. The chipping Formica bench and walls of the Maricopa
Any number of times he
ruled differently than I asked.
But after the dust settled,
most often he was right. We
agreed far more than not and,
most importantly, on the
basics. He had the two qualities most admirable in a
judge: fierce independence
and scrupulous restraint.
And, he did it all with a
devilish wit. Being a powerful
judge in the context of a county bureaucracy was often incongruous. In
the dark days of master calendars, crushing county attorney policies,
deputy sheriffs who couldn’t get detainees to court, and budget cuts, he
remained, well, funny! After all, what’s the point if you can’t be whimsical about the irony of life?
Penny had friends who mourn him deeply. For my part, I mourn the
loss of many fine conversations that will not happen. And many will miss
the nice pause in the hustle of trying to practice law in Maricopa County
where you would bump into Penny, who would generously share a
moment of wit and grace.
Penny reviewed my manuscript on the history of The Bill of Rights.
He took it on as a labor of love, bringing to bear his knowledge of history and religion, not to mention the finer points of grammar. (As my
8-year-old boys would say, I got “schooled” in comma placement.)
There is scarcely a page of the book that is not better because of him.
Did Penny perhaps put more fine effort into it because he knew that his
time might have been limited? It sounds like he did that in many aspects
of his life.
Maybe that’s the lesson Judge Pendleton Gaines still teaches: Live life
with quality—both the quality he showed at the end, and the quality he
always gave us.
will not happen.
Judge Pendleton Gaines
had friends who mourn
him deeply. For my part, I
mourn the loss of many
fine conversations that
—Bob Mc Whirter
ACTIVE VS. RESTRAINED
What is the sound of one hand clapping? That is how much applause I
wanted to give Clint Bolick’s February “Last Word” column on “judi-
cial activism” vs. “judicial restraint.”
He deserves kudos for pointing out what should be obvious, but is
often overlooked: The judiciary’s most important function is to invali-
date unconstitutional laws. And Bolick is clearly correct that both liber-
als and conservatives condemn this func-
tion as “judicial activism” when a court
strikes down a law they like, but embrace it
when it produces the opposite result.
—D. Stephen Wallin