Thursday, October 13, 2005

"The Best Indoor Game Since Billiards."

Attached to this post is the photo of an "allegedly" corrupt politician. Feel free to substitute your favorite corrupt politician, allegedly or not.

No, this post isn't about corruption or sex in politics. Well, not entirely ...

In 1971, shortly after being elected President of the United States, Richard M. Nixon was asked about politics and he described it as "the best indoor game since billiards." He used the same description to explain his interest in law, probably because he failed to distinguish sharply between the two. Ironically, Mr. Nixon (unknowingly) may have been the first proponent of the Critical Legal Studies (CLS) movement, which became the demonized enemy of Law and Economics in the eighties and is now pretty much interred with a stake through its heart somewhere in Harvard Law School. For CLS-types, "law is politics."

For arch-Conservative Nixon in 1971, apparently, and for many Leftist law professors since the Nixon years, "law is nothing but politics." Power entirely explains the results in the American legal system. Legal reasoning is only window dressing, bullshit for the masses, rhetoric for law students or for grade school courses in civics. This is also the view of some lawyers, who are usually highly political. I do not agree -- at least not all the time.

My guess (and hope) is that the new Chief Justice of the U.S. Supreme Court also rejects this cynical view of adjudication as only a "cruel farce." I admit that these allegations may be pretty accurate, sometimes. Probably when it comes to New Jersey all objective observers agree that law is indeed a farce. (See If this link does not work, then try Google.) I still have my hopes, even for that jurisdiction. True, those hopes are fading quickly, but I never give up.

On city street corners, patriotism is in trouble and cynicism holds sway. "It's all about who's got money." Courts are said to be rigged against poor and minority people, while government is the playground of the rich and famous. There is a lot to be said for such criticisms. You get your contracts in this Administration; I'll get mine in the next Administration. Everybody knows the cynical arguments. We hear them all the time. "Why should my kid get shot in Iraq, so Bush and his friends can get the oil?" This is what everyone says when the t.v. cameras are not around, or even when they are around.

Washington pundits pretend that people do not think or speak this way, so that they can discuss the prospects of the latest House Appropriations Bill in minute detail and bore everybody to distraction. This is dangerous. Both within the U.S. and internationally people need some "frank and honest" discussion of America's values and of "who we are," as a people, in the aftermath of 9/11.

We need to think philosophically about who we are now, at this moment in history, but also to explain ourselves to friends and enemies. There is not enough articulation of our values and ideals. I think one reason for this is that we -- politicians and people in government especially -- are afraid to say that we believe anything, that any value is true or right, because we do not wish to insult anyone or to be accused of intolerance. This is ridiculous at a time when we are at war, struggling against international terrorism, which is a form of organized crime as far as I am concerned.

When the President of the United States -- whoever he or she happens to be -- speaks of values, there will be some predictably cynical reactions from many in the fashionable corners of the media landscape. The same cynical responses will greet any talk of religion or God. This is true regardless of what the Chief Executive says. Isn't it all "relative," people ask, as they reach for the remote control? No, it isn't. So you've come to the right place, folks, because I'm going to do a little explaining of "What America means to me."

To begin with, law and the legal system are fundamental to U.S. society. The legal system is reflective of society, so that all of the social ills that we see around us will be found in American courtrooms: racism, stupidity, ignorance (sometimes including ignorance of the law in some surprising places), more rarely, even corruption and malice. Nevertheless, the overwhelming majority of people in the legal system -- including most lawyers -- are good, decent and hard-working persons, seeking to do the right thing. This may even be true in New Jersey, though I will "reserve judgment." Legal decisions are often accurate and justice is done -- even if it takes an appeal or two, or reconsideration years after the fact. It is no coincidence that every legal system has an appeal process. We sure need ours.

A client calls his lawyer to ask about the result of a motion filed on his behalf; the lawyer answers: "Justice has been done!" The client responds: "Appeal immediately!" This sort of conversation takes place nearly every day among lawyers and clients. This is fortunate for both.
I am not suggesting that the legal system consists only of highly intelligent and learned people, though there are some that I would describe in such terms. More important, however, is "good will" or a desire to "do the right thing." This is something which is impossible if you have decided that there is nothing that may be described as the right thing, even as a goal or ideal.

Most lawyers still believe that there is such a thing as getting results right. I think most judges agree. But the intellectual climate of the society (and in the profession) is hostile to such beliefs and everything in the culture seems to influence people towards a trendy ethical relativism or even nihilism, which is destructive of the legal enterprise and which I found and still find unlivable. The fundamental hope and wager of honest participants (there must be one or two left) in the administration of law is that the application of neutral principles and careful reasoning can yield right and just solutions to disputes. This is a hope -- a fragile hope, I admit -- but a hope that I share. That it is possible to do the right thing is a wager that I am still willing to make. How about you?

Before answering this question, consider the absence of acceptable alternatives. With what would you replace law in our society? As the great Italian tenor Giuseppe De Stefano once said of music critics: "It's easy to criticize. You critics sing. And we singers, we will criticize you." Being a judge or justice must be harder than it looks. If you think that you can do better, then you try it. Then we'll talk.

If we do not like the current legal system, then let's make the necessary changes. Soon. However, it is important to bear in mind that nothing can perform all of the socially adhesive functions of law in a heterogeneous society, except better laws and better protection against corruption. In New Jersey, this may require the efforts of all combined military services and America's law enforcement agencies, together with a great deal of prayer for divine intervention.

The pressures toward mediocrity in the legal work-product are too often irresistible in a system that is overwhelmed, in which hundreds of thousands of law suits are filed every year. The courts are in danger of becoming a conveyor belt, taking in and spitting out "files," not people's cases. Business pressures have all but driven out professional concerns in law firms. And yet, most lawyers want to do their best, most judges attempt to render correct legal decisions, in acordance with the law, with due humility and in service of a system that they recognize to be greater than themselves.

No legal system can function effectively without belief in its efficacy on the part of the public. That belief is close to being lost. Deservedly lost. I am willing to invest in that belief in the U.S. legal system. I think you should too. Keep your fingers crossed.

I know -- the verb "to know" is one that I use with great care -- that the American Constitution is the greatest document of its kind in the world. The U.S. Supreme Court does its best to resist political pressures and, mostly, succeeds in doing so. Bush v. Gore /Gore v. Bush will soon be recognized as a great error. The quality of legal reasoning in the opinions of the Court is always, even on a bad day, very high -- despite occasional exceptions -- and there are some opinions in almost every term that border on genius. Given the volume of work at the Court, this is amazing.

The Constitution is America's Talmud. I recently learned of James Madison's similar pronouncements concerning America's Constitution as a secular scripture. If you want to understand the values of the U.S., then your best bet is to start with the Constitution and Supreme Court, then examine the other branches of government.

I am told that my continuing faith in the U.S. and in law is naive. My opinions are "childish" in someone who also recognizes the contradictions in his society and knows what it's like to get screwed by the powerful. I am "overly idealistic" about who and what I love. Love is another word that means a lot to me. Among my loves, I include the U.S. -- and yes, law. That makes me an idiot to some people. There are days when I think they're right. I have not changed my mind on this subject. We live with, by, and for our loves.

I think not believing in (or fighting for) the society in which you choose to live and raise your children makes no sense. Is this further proof of my idiocy? Maybe. I'm not expecting to change my mind any time soon. I'd rather try to criticize constructively and contribute to making things better, however humbly, beginning by acknowledging my own faults. I have yet to see anything better anywhere else in the world. Besides, the problems of human corruption and malice seem to turn up in each and every political and legal system that we examine with some care. What a surprise. I guess the only places to find virtue is in Hollywood and the Vatican. (O.K., maybe not the Vatican.)

Both in American politics and law, money is too important and skews the results of institutions and processes in ways that the framers could not have imagined. We need campaign finance reform. There must be some effort to equalize the levels of representation in law for the poor and minorities. Perhaps one improvement is to provide greater resources for Public Defenders and a measure of respect within the profession for attorneys who do such work.

The legal profession may be the most hierarchical of all. Minority lawyers are second or third class citizens, usually, whose arguments get little respect, even when they happen to be correct, and politics is sometimes more important than evidence in deciding who wins ("take care of the Mayor's people"), because professionals always want to advance their careers, getting a judgeship or a lucrative appointment down the line. This usually means kissing the right asses. In New Jersey the right asses often belong to affluent criminals.

Placing minority lawyers in visible spots in the legal world is mostly "window dressing," not an attempt to deal with the substantive issues that I am discussing. Those minority lawyers become convenient scape goats for systemic corruption or other flaws. It's better than nothing. Minority lawyers will be as competent as any others in such positions, but the real problems exist below the level of the highest positions.

There's a lot of cronyism and "genuflecting" to the powerful in legal circles. Today, Shakespeare's "Polonius" would be a prominent member of the bar, probably appointed to a state appellate tribunal -- regardless of intellectual incapacity or inexperience -- in gratitude for services rendered. It would not hurt to have more judges come from the universities and criminal defense bar. The main qualification of too many persons in prominent legal positions seems to be nice suits and a willingness to make large "contributions" to one party or the other.

These are the concerns that will always apply to any human institutions. The problems of bias and unfair influence, corruption and politics seem overwhelming. They are the proverbial thumb on the scales of justice. Sometimes it will be necessary to break that thumb, to get rid of organized crime and corruption in legal institutions. America always has an Eliot Ness of two available for that sort of work. So we hope and pray. After all, it can't hurt to pray.

I have never met him, but U.S. Attorney Christopher Christie is fearless in going after organized crime in New Jersey, even when such figures are "protected" by (or happen to be) big time politicians. He could play it safe in that job, just skating along in order to get himself a judgeship. He has decided to do the right thing, whatever the consequences. We will live in a better society than we do now, if Mr. Christie succeeds in his efforts. Despite all attempts to intimidate or damage Mr. Christie politically, he is still fighting. For some reason, they are usually ex-boy- or girlscouts, those Eiot Ness types. Don't bet against them.

There are places where a phone call from a politician to a judge, not the evidence or anything in the trial transcript, will determine the outcome in a case, such corruption must stop.

The U.S. is trying to do the right thing internationally, and mostly for the right reasons. Terrorism is the scourge of our times and it must be dealt with now. Racism is the great enemy of justice and it must be fought against in our society, in courtrooms, boardrooms and government. And it is being eradicated, however slowly and haltingly. Watch what happens to those abusive cops in New Orleans. We will get campaign finance reform. We will improve the educational system. Eventually -- probably during the second term of President Hillary Clinton -- we will get national health care coverage. I hope. I said HOPE.

Never give up on the U.S. and don't count out the American President, whoever he or she may be ... You may have some surprises coming.

Some jurisdictions are burdened with a history of corruption that, literally, prevents people from even imagining that things might be better. ("This is how we always do things.") They can be better and they will be in America. This is the land of the practical reformer, of tinkerers, and of commitment to the "integrity of the process." The magic word in American jurisprudence is "process." (See Hart and Sacks.)

We never give up on making ourselves and our institutions better. I think this hopefulness is what my adversaries find most infuriating about me. I refuse to accept their cynicism about America and everything else. Despite my street-smart realism about the obstacles to any legal reforms, I know and share in our national idealistic hopes for law. Every American, in some corner of his or her soul, is an optimist and a practical idealist.

One way of doing that -- encouraging reform -- is by welcoming dissent and debate on all fundamental issues. I want to hear from Michael Moore and Oliver Stone, Noam Chomsky and Arundhati Roy, Gore Vidal and Norman Mailer, even more than I wish to hear from the apologists for the system. It was Duncan Kennedy, the "fearless leader" of the CLS movement, who said:

"... it is something to know what one is against. At least in a limited sense, the negation of hierarchy generates an affirmative value, even a universal one."

Wow, a radical who believes in universal values. Only in America.

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