Kendal Q. Binmore: A cacophony of silence: ground of the Triumvirate: 1. Suzuki’s judicial satori


A cacophony of silence:

the personal journals of the Suzuki Court


Kendal Quetzalcoatl Binmore


Department of Literature and Literary Criticism, Yale University

William Blake Chair in Fine Arts, California Institute of Technology, Traditional Campus




Carter Endeavor for Peace, Jimmy Carter Foundation

Dharma Seal for East/West Transmission, D. T. Suzuki Society

Merton Citation For The Exploration of Faith, Thomas Merton Society

Mitland Medal, American Society of Legal History



For those who overcome success


When growth stops, lies begin

Benjamin Suzuki

when Appellate Judge for the State of Oregon



The Ground of the Triumvirate




1. Suzuki’s judicial satori

2. Henry Mitland’s absence of God

3. Anthony Pau Cabrales’ release to God

4. Traveling awhile with Justice Holmes

5. Cabrales’ God

6. Ghandi’s failure, Suzuki’s hope

7. Judicial satori and the Founding

8. God without canon

9. Micah 4:1-5 and fractured monotheism

10. Trespass into Islam


        1. Suzuki’s judicial satori

Satori: that space where the self was

Zen Journal of Benjamin Suzuki


           Lebensraum–space in which to live. Convenient to have the Nazi regime safely tucked in history, condemned for espousing the necessity in us all. We are our space; if we condemn the Nazis we condemn our own, unlimited, growth. Condemnation which is not just self-restraint. Condemnation which defines the self by restraint. Condemnation which defines the self through its removal. Such condemnation was Benjamin Suzuki’s zen, his satori, his jurisprudence. Condemnation which said the Nazi’s got it right, we must struggle to get it wrong, to find a different right.


           All of those zen seekers, traveling from master to master, testing the understanding of the host, testing the understanding of the guest, host nothing without guest, guest nothing without host, guest and host beyond the understanding they would test. The disciple is not as important as the explosion which hurtles the seeker away from the master. Satori, enlightenment of a kind, is there–in the explosion, in the absence of disciple/master relationship, in the hurtling lebensraum these two create. Lebensraum which would not be if the explosions cease. Here the mistake of the Nazis, here the mistake of so many enjoying the Nazis’ defeat in comfort, a mistake never seen, let alone admitted: lebensraum is not a coalescence; it is the perpetual destruction of those relationships which would make a self. But this is possible only if those relationships may be formed. So the master, found in all abodes of livelihood, must be; so disciples must be. Whatever happens in these explosions is dependent on the existence of those unwilling to risk explosion, unwilling to risk alienating entry into oblivion.


           Satori, enlightenment of a kind. Not nirvana, a perpetual state of nonbeing embarrassingly akin to heaven. Not nirvana, the cessation of suffering, which would deny all selves, not just that of the seeker. Save all beings–a grandiose conceit. The cessation of suffering would be the elimination of all–an ideal identical in outcome to that of the Nazis. An ideal identical in outcome to Apocalypse, Christian or Muslim. The collapse of all into One.


           Satori, enlightenment of a kind. Not enlightenment complete of a Buddha, that odd spatially located nothing, who battles his very words, this the mechanics of his non-being, and close to satori. Imagine a collection of (as yet undefined; marvel of mind, that words may be used undefined, perhaps nothing really defined) satori instants arranged miraculously as a world line, as a corporal entity–that is Buddha. A fiction, for the precise reason that satori, an explosion of relation, cannot be unless the relations exist: satori cannot be ordered as distanceless instants; it comes manifest as the end point of a material quantum, each inherently isolated from the others, alone and lonely, no feat of Euclid possible for salvation. Satori is perpetual striving, the antithesis of enlightenment, for release from relation, each release seeding strife anew. Each release necessitates fresh, incipient dilemma. Anticipation, with perpetually fulfilled hope and struggle.


           This is Chief Justice Suzuki’s zen, as best as I can glean from his journals and occasional public utterances. It is not zen. But cursory exposure to zen material reveals him mainstream in this: zen is possessed, or at least espoused, never known in an invariant, absolute way. The explosions of zen are not unique to Suzuki. What is unique, or a least understated elsewhere, is the locus of exploding relations: books, text. The text of zen, the text of law. And text is supposed to be something I understand.


           Text was once expansion, creating more that it was. Reading literacy was not writing literacy; the written word produced oral readers who produced audiences beyond all literacy. Relationships formed altered the spoken text through emphasis, selective repetition, understatement, omission. The text as experienced was negotiated, manipulated in presentation. A skillful writer, attendant on readings, might intentionally place ambiguity or down right contradiction, distanced by pages, into his product; perhaps as price of market entry.


           Text, though socially expensive, was malleable–and often anonymous. Identity was not so much in the author but in repeated presentation. And the expense of copying invited alteration or addition, amendments built out of audience reaction and discussion. Audience was no jury thumbing up or down; it was the user of text, hodge-podge on the fly tinkerer of what was given. What was given, what created endurance of audience. Text heard more often than written gave bond, a theater of hope and exploitation, a theater of opportunity which subsumes both. Livelihood in new form, endurance of old forms, escape from the vast ocean of ineffectuality–this transmitted from text.


           When the text closes, when canon comes, then creation is hobbled. Oh, it will continue–it is the assured terror of creation that it cannot be stopped in toto–dragging itself forward, a self defined forward, its beauty tenuous, scarred, overlooked. Canon comes as the ability to write grows, as variant texts come to cross one another, encounter creating rivalry and its unavoidable consequence, supplantation. Canon is frozen supplantation, final victory, most human need. The assurity of canon bridles creation, creation still present in the audience, but more fettered than before. Canon controls audience, hopes to enslave audience.


           In our world the vista promised by text has been replaced by fortresses of minutia. “Universal” literacy is no cause for freedom, but control. There are too many of us, our voices creating a wave of sound inundating creation’s genesis. Our common belief that we should be heard leaves us all deaf. So we abide in clear tone, in irreducible quanta. In this small space of being no one may enter save each of us isolate. We abide in triviality, in the assurance that each of us can be replaced, this our ultimate defense against the too loud voice. Stability is a product of triviality.


           An exaggeration, but then I am a literary critic, living off profundity found. I emblem of my time, able to brush grandly because easily forgotten. Forgotten because there is no sustaining audience; something will come along to replace me, rapid sequence of video scenes our minds crave to numbness. Which is why I am given my brush freely. The clear tone quanta will survive my great change, my new perspective–and the future, fresher me’s to come. Perhaps this the price of being, to vanish so others may come, permanence antithetical to being, yet we fight so hard in our quantum for permanence of moment. Ah, dead Suzuki, I progress, conjoining opposites to find profundity. A saleable profundity, my clear quantum tone. Forgive me my soliloquy of isolate, unseen importance; let me work it back to you, satisfying my job description yet once more.


           Satori is canonless, a controlled vanishing where audience reigns, a liberation of space, an act not simply of removal of self, but a change in the perspectives of others which this removal creates. Only save all beings–no, not that. But satori shifts the relational base of the others which created this temporarily extinguished self. Salvation? A more modest aid? Coarse manipulation? I cannot tell. All I know is that, in what I think is Suzuki’s zen, satori shifts the world which created the prior self, allowing the tools of creation–the others who anchor our relations–to move. In his confirmation hearings Suzuki quotes an aphorism capturing this satori:


I am the space amidst you all, shifting so you move, ever dying, ever born, ever unseen. (Nomination Hearings, Fifth Session)


He elaborates:


Without that space we would collapse upon one another, contending for dominant single identity. This happens among us quite often, locally–more or less. Sometimes we call it repression; sometimes atrocity; sometimes genocide; sometimes victory; sometimes destiny. But distance [space] insulates from collapse. The greatest atrocities fail of perfect consumption. So Justice always recovers. Consumption produces greater distance, greater space. So Justice is continually born of the ever minor collapses in the world. (Ibid)


We can add that satori, producing space and so distance, is then a kind of justice, consequent of a “minor collapse in the world.” The staying of repression, atrocity, victory, destiny need not always be an inefficiency of “perfect consumption”; it can be an act of satori, a minor preservation of plurality, assumed voluntarily. Suzuki’s satori is social; as he was created by others, so his momentary extinguishing creates others. These others–both “others”–are not just individuals, but the relationship of individuals to text. Short hand, we can say the others are text themselves. In jurisprudence, short hand becomes reality: satori becomes unbinding of text, or the loosening of interpretive strictures on text.


           The previous extract is followed by this exchange between Senator Mary Talbot of Nebraska and nominee Suzuki:


Talbot:        There is no stability in this…


Suzuki:       Senator, there is no stability in jurisprudence.


Talbot:         People need stability. They strive for it their whole lives.


Suzuki:       Exactly, Senator. Stability is a measure of individuals, not of people in the world.


There is no stability in jurisprudence because the relational set on people is inherently unstable; rather, this instability permits an instability in jurisprudence, revealed through judicial satori. When either Justices Breyer or Scalia evoke stare decis, they impale one relational set to favor another, price of all ink, price of all words halted to finality. The only question, says Suzuki, is who impales; his answer, not me, I hope. Ok, we can laugh now.


           Laugh. Few reveal their inner calculus. Suzuki did not. This post-mortem of his zen journal is a professional guess, one he wanted made, I think. We know he left the Court to let his principles vie without him. His zen journal reflects not his jurisprudence but the emotional calculus underlying that jurisprudence, a calculus more important than the principles he fledged. He wanted to regenerate what created his jurisprudence; not a new Suzuki, but a ghost living in the world which might, obscure hope, come to challenge his principles degraded.


           Laugh. Then listen to nominee Suzuki’s hint as to what he will find once confirmed:


Suzuki: The Bench weights with instantaneous truth. We judges emerge proficient yet paralyzed. Rights approach naked, alone; we receive them with all our past decisions, all of those faces, looking over our shoulders, urging different replies to the plight of the unclothed.


Senator Werren of Vermont: But the Bench, that forge of decision, does it not prepare you to make the hard choices?


Suzuki: I wish I could say it did. The Bench is as likely to blind as reveal. Senator, we have to live with ourselves. Doubt, uneasiness find relief in legal necessity. You see, Senator, sometimes we’re relieved when an appellate court says we are wrong. That means we don’t have to be right anymore. (Ibid, Fourth Session)


The hard choices are beyond legal necessity. Right has no prop when fatigue comes. Satori, the release of space anticipating fresh occupation, a pivot away to allow justice to enter; satori, terrible, meant to disturb, a creative act which is not creation. Laugh. Then ask why you laugh.


           A Suzuki journal entry written while on the Oregon Appellate Court anticipates judicial satori, albeit with the ineffectuality attendant of his then life station:


Jurisprudence is a mosaic of lies. The lie not in the piece, but in the cut, in the seamless fusion of piece to piece. A necessity: histories grow of themselves, uncaring of their fit with their fellows.


Cut to seamless fusion? No. Grow until mutual encounter makes a seamless fusion. We do not cut, make our jurisprudence. We remake pieces; we chip pieces already placed. The remaining pieces shift in the tumult–and grow to fill the spaces consequent. That is where truth lies, in the growth. Where growth stops, lies begin.


Let us chip away to sustain the ever incomplete. The truth will come, unbidden, only to squeeze out other truths. That’s when we chip somewhere else on the mosaic beyond reason.


A State appellate judge chips; a United States Chief Justice explodes. There is less control in the latter; that is Suzuki. But explosions are temporary.


           Suzuki’s judicial satori explodes text–decisions, statutes, constitutions. These explosions of space can only be filled with text, text migrating where previously excluded. Satori cannot control the inward migration which fills emptiness, save for the strategic decision where and when to explode. One’s relational set determines the efficacy of satori; so this study of the personal journals of the Suzuki Court. Suzuki’s resignation was an act of satori; if there is a why to that when it resides in those journals. More important was his ability to produce satori among varying Court majorities, to make judicial constraint an act of satori enabling text outside the Court, foundationally expressed in the Right to Bear Arms Cases. That decision removed the Court from the judicial creation of rights as liberty interests, opening a confusion of State populism still unabated. The Court became a referee of extra-judicial rights formation, recurring to the chipping of appellate judge Suzuki.


           An explosion is but a moment, not a life. Satori is not enlightenment. Satori binds the creating life as well as those surrounding it, the surest defense for those refusing this path: the satori life must live with what it makes. And to live is to chip. Defense against satori is not proactive; it is part of satori itself. Small solace for those detesting explosion; these would have a world secured, but there is no security in the other’s pursuit of happiness. Judicial satori is the sporadic removal of zero sum games as the only support for the pursuit of happiness generalized.


           Right to Bear Arms placed the pursuit of happiness into the judicial lexicon proper, expanding rights formation by allowing the demise of rights. Not those enshrined in the Bill of Rights, of course. But any addition is purchased through the vulnerability of its later demise. An ideal ephemerality perhaps unnoticed in a single lifetime, perhaps the only way to distance the pain of birth which causes us to so fear death–place them in separate, disjoint, lives. A slow motion enactment of one of Suzuki’s “haiku,”


shadows on wind:

calligraphy arising as it’s lost

no record the only record


Leafed branches write shadows on the ground, lost as formed; only the process of writing endures. The Suzuki Court made historical ephemerality central to jurisprudence, the substantive Constitution not living but potentially rebirthed without end. The Founders become parents, their final gift release from the old definitions of need. If we are willing to chance that gift. If we are willing to affirm process over substance. No record the only record.


           Satori, destructive of the moment, is nothing but process. Destruction which flames substantive war, which forces a new writing in the sand. Culture wars are never finished, so says nominee Suzuki in his confirmation hearings:


Suzuki: I do not believe the Court can decide culture wars.


Chairman Allred of Montana: My thought exactly.


Suzuki: Maybe not. The Court should flame those wars to higher pitch.




Allred: But you say the Court can not decide culture wars.


Suzuki: No. But it can channel them. Well, perforce it is going to channel them anyway. I think it should do so with more self awareness.


Allred: I am not interested in abstract discussion of the interplay of values. I am interested in my values, the ones that placed me in this seat.


Suzuki: I know.


Allred: There has been erosion of the family in this country for decades. The values which sustain us through life have been attacked by the Court too long.


Suzuki: Values are always, everywhere eroded. There has never been a record of history showing otherwise. But values are also ever being regenerated. So your presence here, Senator. (Confirmation hearings, Third Session)


Shadows on the ground, never lost, never sustained; yet replicative boundaries can be discerned. Lebensraum, unending yet contained.


           There are uncounted deaths in all of this, a market of culture without souls. Souls are no fashion to be discarded; they are never erased. Yet a parent knows its child will somehow differ from it. There is a soulless death in that, our hope of enduring the unending battle called culture. Satori does not deny the soul, only the permanence of victory; satori appeals to the bittersweet loss of the parent, loss trivial paradox essential for the transmission of some, but not all, values.


           I arrive at the great insight of this literary critic. Parenthood is sacrifice, an attenuated suicide of hope, expectation, memory. An attenuated suicide necessary for growth. Here is Suzuki’s satori, no esoteric goal of profound effort, but daily tool of ordinary life. Silently applied, that which created us. Biologists speak of parental investment, as though the parent calculates the best way to have the best child, way and child the same. But such investment may entail existential sacrifice, as the mechanism which propels the adult to reproduction becomes hindrance to growth of the child. That sacrifice is real and blindingly uncertain to one who secured its days in efficacy now gone wrong. Sacrifice is contoured by the need for growth; the individual must reform, reconstitute, as parent. We do not fear this sacrifice in others; we expect it. There is nothing so satisfying to the marketplace than a parent in need of employment. It is the generalization of this sacrifice which unnerves, for a generalized parent has only generalized offspring; prediction, so comfort, slip away.


           Yet satori must reconstitute its individual, and an individual is but its relational set with others. In this there is security and fear. Security in that the options available to satori must allow recovery of the individual, albeit changed; fear in that one’s own relational set may be significantly altered by another’s satori, changing oneself. Satori threatens not corporal death but situational death, a violent act on relations, not bodies, as manipulative as corporal violence.


           Satori denies frozen creation, of success or failure. There is no heaven or paradise to secure, nor Armageddon to precipitate. Suzuki’s satori holds Armageddon an abomination; so too paradise. And constitutions as well:


A constitution is a frozen war; really, multiple wars, frozen. It is absurd to think its provisions unanimously or even predominately agreed. Democracy operates on the principle that policy may be overturned. Constitutions seem to forbid this. Well, at least the Federal Constitution seems to. But the war does not thereby vanish; it takes other forms. I venture to say your presence here, Senator, is one of those forms. Mine as well. If there is a present constitutional dilemma, I would say it is the mechanism by which culture wars are transformed and directed. (Confirmation Hearings, Second Session)


Institutions, including constitutions, are unavoidable error; they freeze success and failure, and so must be continuously challenged. Suzuki’s jurisprudence, his judicial satori, enabled continual challenge against the constitutional status quo, forcefully in the Right to Bear Arms and the abortion altering Doe v Dawkins of the Superior Court of Alaska, equally if arcanely in the common law and jury control cases. In all of these the Court did not detail fully formed procedure, rather using procedure to produce an open ended articulation of substance beyond itself, recurring to the ambiguity of the Founding as a positive political act. The Founding, coupled with ratification of the first ten amendments, seeded unending satori; sly indeed our creators were, having neither word nor concept.


           These seeds (notably Article IV, Section 2, Clause 2; the Bill of Rights, especially the 1st, 5th-10th Amendments; the 13th and 14th Amendments) were consequent of war, Revolutionary or Civil. Their fruition was also a consequence of war, beginning with the abominable finality of 9-11-2001. No majority of the Suzuki Court sat that day. But the event propelled introspection in members present and future, cumulating in the lesser suicide of satori. Only by traversing the labyrinth of Suzuki’s zen journal have I come to see judicial satori as a proactive defense against corporal suicidal attack, a defense not against men but the social relations which produce men.


           There is an apocryphal graffiti, said written on the temporary wall enclosing the collapsed towers of 9-11: Lord, save us from those who believe in you. Absolute faith the only protection against absolute faith, absolute faith fearing itself. Another reading: not in professed faith, but as a bystander to absolute faith, asking not for belief but for compassion, for pity, for the staying of righteousness.


           What can defeat an iron will but an iron will? This a koan, riddle of steel, the whole purpose of zen. Satori an answer, better, a tactical response: a lesser suicide to combat the greater suicide. A lesser suicide without finality against the greater suicide, without assured victory, victory even in the moment; for this is what is contended: finality itself. The staying of victory the only defense against Armageddon writ small. A lesser suicide of divergence, of no control, of birthing through one’s absence something foreign, no different in temper than what a parent faces, save this: there is no object to be cherished at the moment of sacrifice–only possibility. What faith could have greater risk of failure, faith grounded in that risk. Satori, lesser suicide bounded by the necessity of personal recurrence, final parry against suicidal attack. Personal recurrence: the outstretched hand, outstretched toward the foreign consequent of satori, outstretched to recreate the bundle of relationships called self.


           I stretch words beyond sense, hoping others will go beyond my fall, only my fame releasing these words to print–my satori. I know not if these words capture what I think I see in the zen journal. I know not if what I think I see was intended. In my nighttime hours of scribbles I have sometimes paused to wonder if the arcane sentences confronting me are not designed to produce absurd possibility, propelling me into experiments unadvised, Suzuki retired, writing, trying to produce through me unknown events this world will not have:


Leap–knowing all distances are possible, if only in fairytale. … Leap in hope of the unknown grasp, told in rumor, never seen, tale lost from sight, embellished in fantasy, which makes talk worthwhile. …Fairytale fantasy which makes talk worthwhile. In small probabilities freedom thrives. (Suzuki’s personal journal, in retirement, Douglas, Illinois)


Then Gandhi, Suzuki’s Gandhi, comes to mind, a man who should not have been, a man who must have been a cheat, a cheat like Martin Luther King, Jr. and his women. Suzuki’s Gandhi who placed himself as pay for the mistakes of religion and love, who failed totally, confirming the nature of the world. Suzuki’s Gandhi who comes assembled as the utterances of decades, no man of the moment so no man. This Gandhi pulls out a sheet from his body and hands it to me, places it on my darkened desk where the world will not go:


These acts [of nonviolence] cannot be done mechanically; they must come out of conviction and love or pity for the other. Nor need you work out all the apparent implications…if you do, you will come across blind alleys. (Harijan, July 13, 1940)


To reason what I say is to find fault, so inaction. Is this Gandhi, is this Suzuki in his journal, honest charlatans hoping honesty adequate lure?


           You will come across blind alleys: this the staying of final victory, this satori which does not predict but lets others come, its only prediction that others will come. Not quite true, of course; the environment of satori, the relational others sundered, shapes probable consequence, or at least the faint hopes of stories which raise their heads in the quake which is satori. A great quake is, not was, 9-11, and stories awoke to hound us that day. Let us admit we have no story which is not dishonest in its certainty.


           The story before the minds of the Court to be was God. Easily dismissed, it never leaves. It recurs in the faces of those we need with the necessity of the next paycheck. It abides in the abstract empathy we hope defines the human, yet the hands which reach past picture into life are so often said to be God’s, not man’s. It is the ground never felt, the crutch never seen–until someone says it is not there. It is a monstrous love we fear and hate yet fear makes us need. Reality or myth, it will not let us be; it cannot be escaped–only loved, detested, respected.


           Members of the Court to be were chosen in no small part for their stance on religion. But stance is not movement of the mind; that needs an outside world to make dance. 9-11 made this Court not a barrier to religion but catalyst, a catalyst to faith apart from substance. Faith untethered, to travel with us all, no longer privileged to doctrine, including belief in God. God lost its privilege, science lost its superiority, faith their common engine of creation. The task began by wrenching faith from God–a reasonable response to 9-11.


           In a pre-Court journal entry, dated not earlier than 2003, Suzuki wrestles not with God but with the shackles we place on God; unfetter God and faith is freed:



They settle into being handsome and unafraid…they learn that death is a shadow and go about living their lives accordingly. When they learn that, they become more beautiful than even God could imagine.

Edward P. Jones, The known world (2003)


Why do we constrict God to perfection? Omnipotence knows no boundary; it is, may be, anything. Creation may be surpassed, surprised. The goal of creation may be surprise, surprise to itself. Talk of God is tool to chain or free; or log in hearth to cozy in a world forever beyond. We accept the God of others to keep them on steady ground; we use the God of others to break the boundaries of faith.


There freedom lies–in the breaking; be grateful for your custodians, for their denial is your quantum of freedom. After its over, look about you; you’ll want to retreat into the moment of denial. This is where rights are–forever in the moment of denial. Not of a single person–there lies not even insanity, but oblivion; not of a single person but of people, denial sprouting in short heyday this where and that.


This a use of God. God lets us use God. Perhaps this his only function, to be used as word to break boundaries and then rechain. More beautiful than even God could imagine: not blasphemy, not meaningless juxtaposition of words; but an admission that omnipotence has no rule; perfection is a trick of men.


God is a wild card which does not multiply what we have but changes the game. No wonder so many strive to keep this word well shackled in unending discourse. God can destroy us, God can free us. Perhaps the difference is not too great. (While on the Oregon Appellate Court, at home, Salem, Oregon)


Be grateful for your custodians: some two years after 9-11, Suzuki has no condemnation for God. God is neutral; faith is neutral. God, faith both bind and break boundaries; they consolidate what is made through breakage, thereby binding anew. Satori without personal destruction, so no satori. God is a wild card which …changes the game: so was 9-11, so was Gandhi, so was King. Suzuki’s stance is procedural, as will be his jurisprudence. To condemn God is to condemn the world we have made, the world we make daily. To break boundaries and then rechain: creation is self-imprisoning, the only escape pluralism. Again:


This is where rights are–forever in the moment of denial [breaking boundaries]. Not of a single person–there lies not even insanity, but oblivion; not of a single person but of people, denial sprouting in short heyday this where and that.


Escape is societal, not personal. So his closing remark during confirmation:


[A] judge, in each act, each decision, is a failure of potential, a failure hoping to keep the potential of others afloat. It is the contending world which comes to court which is the hope and envy of the judge. I want to be your Justice. Somewhere out there, ever beyond my sight, is the reason why. (Confirmation Hearings, Fifth Session)


Here we have the denial of 9-11, the denial of apocalypse–there can be no ending:


I would strive to carve a space where many minds may stand–if they will but stay the final battle. (Suzuki to Senator Mary Talbot, Confirmation Hearings, Fifth Session)


Here our solace while trapped in our creative prisons: we can endure. Death is a shadow: part of the image we make in being of the world. Faiths become shield against faith: Lord, save us from those who believe in you. We reach Suzuki’s judicial satori upon returning from God.

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