I apologize in advance for the cumbersome length of this post :D

It's pretty common to revile lawyers in modern America. I heard a joke just recently along the lines of "the problem with lawyers is 99% of them give the rest of us a bad name!" or something along those lines.

This is socially acceptable for a variety of reasons. Lawyers can be nit-picky, they sometimes charge exorbitant rates, or bill for absurd hours, game the system, exploit personal tragedy, or defend and help the most heinous scum. As such, I can understand the dislike.

While I don't endeavor to defend all lawyers and all lawyering practice, I do hope to defend defense lawyers (to an extent), or at least re-frame the issue in what is, I think, an illuminating way. I hope to then apply those insights gleaned from looking at defense lawyers to issues surrounding a pair of Presidential front-runners, Fred Thompson and Hillary Clinton.

In Defense of Defense Lawyers

I think a lot of our disgust with defense lawyers stems from a lack of consideration for their place in the larger system of justice. That is, American courts are not like Judge Judy's, where a judge investigates the case, barks at the plaintiff and defendant, and then hands down her ruling from on high. Judge Judy is just a caricature of what are often called inquisitorial systems of justice.

The U.S., however, relies on an adversarial system of justice. That is, the system itself is predicated on two advocates for opposite ends to argue in front of an impartial judge and jury. The judge's main role is to ensure the terms of debate are fair, and the jury's main role is to determine, in effect, who won the debate.

As wikipedia helpfully explains:

Judges in an adversarial system tend to be more interested in ensuring the fair play of due process, or fundamental justice. Such judges decide, often when called upon by counsel rather than of their own motion, what evidence is to be admitted when there is a dispute; though in some common law jurisdictions judges play more of a role in deciding what evidence to admit into the record or reject.

Now why is this important? In theory, at least, it seems to elevate concerns for individual rights over concerns for effectiveness in locking away criminals. The fact that criminals will sometimes get away is a truth we accept from the get go. Making it hard to convict the defendant, and ensuring that (s)he has a devout advocate, is, at its heart, about protecting the individual from being trampled by an over-eager state. That is, I think, pretty obviously a societal good.

But it requires devout advocates for the accused. Indeed, while it's often the case that we think of someone like O.J. Simpson "getting away with it" as the grand miscarriages of justice, I would argue that we accept such outcomes from the get-go, and they keep prosecutors and police honest by demanding that cases are made in Constitutionally-acceptable manners. No, the true miscarriages of justice are when defense attorneys sleep through trials (even ones where the defendant faces death), or are so negligent that the jury doesn't even know the defendant's name.

That doesn't just call into doubt the accuracy of the decision, but also calls into doubt the efficacy of the entire system in protecting our individual rights. While the notion of profiting off the job of saving criminals from facing justice sounds repugnant indeed, we have to remember that not everyone indicted on crimes is actually guilty of crimes, and our right to defend ourself from unjust convictions necessitates the existence of those staunch advocates. You don't have to be an advocate for murder or rape to be a defense attorney, simply a believer in keeping the system of justice honest and working properly.

A Different Approach to Fred Thompson's Lobbying History

So, what does this mean for Fred Thompson? Well, Mr. Thompson's name has been in the news lately as he "tests the waters" of the Republican primary, deciding whether or not to run for President (though, presumably, that decision has been made). What is his appeal to the base of the Republican party? In large part, its the force of his televised personality. That is, his character on Law and Order is viewed as a staunch, down-to-earth Conservative, in a field where no true Conservative seems to stand out.

Rudy Giulliani, the front-runner, dresses in drag, hangs out with homosexuals, gets married a lot, etc. John McCain's whole appeal in 2000 was precisely that he's not predictably Conservative. He's a "maverick"! Cultivating that label and then verifying it by parting from the base on issues of importance (like immigration) has destroyed any amount of trust Conservatives have in him. Mitt Romney actually does fit the ideal conservative mold, only...he's a Mormon, something that makes many distrustful of him. (I also don't think it helps that he looks like a game show host, has the charm of a used-car salesman, and sounds like a robot when he does voice-overs for his political ads). So in swoops Fred Thompson, Conservative with a capital "C", to save the day.

Only, here's the thing. Fred Thompson lobbied on behalf of Pro-Choice groups in the early 90's. Or, as the LA Times, who, I believe, broke the story, put it:

Fred D. Thompson, who is campaigning for president as an antiabortion Republican, accepted an assignment from a family-planning group to lobby the first Bush White House to ease a controversial abortion restriction

That certainly screams "hypocrite" or at least "flip flopper" at first blush. But I'm wary of intuition like that.

I would argue that the system of lobby firms in Washington is, in a sense, a free-form version of an adversarial system of justice. The rules are more lax, and there can be as few as 1 and much more than 2 advocates in any given debate. However, the principle remains the same: the system only functions insofar as any given side has an advocate. The elected officials serve as both judge and jury.

As such, much like I don't think defense lawyers who advocate on behalf of individual murderers ought to be considered personal advocates of murder in general, nor do I think those who lobby on behalf of abortion rights firms ought to be considered personal advocates for abortion rights per se. Interestingly enough (and unknown to me as I endeavored to write this post), Thompson, after flat-out denying the story and then offering folksy and ultimately empty talk of "flies buzzing," actually made this argument to Sean Hannity:

Hannity served up a chest-high, 25 mph softball:

"They have attacked you, they have attacked your family, and now, they come out in the Los Angeles Times with a piece that says you lobbied for abortion rights. You say that's absolutely not true."

All Thompson had to do was say to Hannity, "You're damned right." Instead, he answered as follows:

"You need to separate a lawyer who is advocating a position from the position itself." Hmm. Then: "They will probably come at me, in 35 years of law practice, with some people, I represented criminal defendants. I was a prosecutor. I had a general practice. So that in and of itself doesn't mean anything anyway."

I think that's right. To an extent.

There are differences here, and our criticisms of Thompson ought to, I think, reflect that. The most obvious difference being that while our criminal justice system serves to protect the individual's interests from the state, the lobbies in Washington, on the whole, seem to subvert the interest of the general population in favor of moneyed interests. A defense lawyer who advocates for a murderer is defensible insofar as the criminal justice system is defensible. I'd say the same hold trues for a lobbyist. A lobbyist who advocates for a position you deem heinous is defensible only insofar as lobbying itself is defensible, which is to say, not very defensible at all.

As such, I think its a bit misguided to use the lobby record to try to call Thompson a hypocrite or flip-flopper on abortion in specific. Certainly, if you'd like to do that, there is evidence enough outside the lobbying story to make the case, like going on record in the Senate as opposed to criminalizing abortion and favoring 1st term abortions.

However, the larger and more true criticism ought to be the one that places Thompson squarely in the center of all that is wrong in Washington. The fact that he lobbied on behalf of pro-life groups doesn't necessarily suggest that he is unprincipled on abortion on a personal level. But the fact that he lobbied period suggests he lacks principle on any issue at all, as he was willing to take money to advocate for any interest group that could afford his time. We know this because we know he lobbied on behalf of clients that do not reflect his principles. He was lobbying to make money, and willing to compromise on any of his principles to do that.

That, I think, is a damning criticism that would turn off not only some in the Republican base but also most moderates and Independents in the general election. Over-focusing on abortion and trying to make him into a flip-flopper on one issue seems myopic to me, when the evidence is there to paint him in total as nothing more than an empty suit. Why chip away at the edges of his Conservative persona when you can explode the whole damn thing?

My Problem with Hillary

At this point, you're probably tired of reading my dry writing and wondering what the hell any of this has to do with Hillary. And the answer has nothing to do with her distinguished legal career.

Rather, it has to do with the fact that our system of government is decidedly Madisonian. That is, it's separation of powers and methods of election require majorities to win the confidence of minorities in order to effect change. This whole idea relies upon conflict. Our Madisonian system, at its heart, is also adversarial. But the system is set up to make passing anything incredibly difficult, which, by favoring the status quo, creates the need for broad consensus, the working out of debate via compromise. It involves both responding to and helping shape public opinion.

As such, while a Representative's constituency is his/her district residents, and a Senator's constituency is his/her state residents, their role in the government makes them vital to protecting national interests. Congressman realize this, obviously, and often times have to balance the demands of their constituents with what they think is best for the nation. They are advocates for their constituents, but their duty is to all citizens, and their job is not always to simply reflect the popular will. But certainly, much like defense attorneys have a role to fill in our adversarial justice system that is vital to it working, so too do Congressmen have an adversarial role in our system of government. One that is vital to the proper function of said government. (Edited for clarity: while the Congressman can pay fealty to their constituency by the policies they enact, fulfilling their role within the system is of utmost importance for the system to run properly. Heh, could I have made that more confusing in the preceding paragraph? Yuck.)

Much like the sleeping defense attorneys mentioned earlier, I think Hillary Clinton was derelict in her duty as a U.S. Senator in her vote to authorize military force in Iraq. I don't say this because I didn't agree with her vote then and remain in disagreement now. I don't say this because of her refusal to apologize for the vote. While I don't agree with John Edwards' vote either, I don't consider him derelict of duty (at least as much so). I say this because of the reasons she's given for voting as she did; for the way she frames the issue in general; and for what that suggests to me about her view of the government and her role within it.

First of all, she did not read the N.I.E. This, to me, is inexcusable, and the fact that so few Senators did read it is shameful. The decision to send the country to war is one of incredible weight, and the Congress is responsible for compiling as much information as possible before making that decision. That was pure negligence.

But even more so than that is her own stated rationale for the vote. As noted back in 2004,

Sen. Hillary Rodham Clinton said she is not sorry she voted for a resolution authorizing President Bush to take military action in Iraq despite the recent problems there but she does regret "the way the president used the authority."

And, what's more, this past March, Michael Crowley reported:

. First, I asked her about the influence her husband's foreign policy experience had on her Iraq vote: whether his successful use of force, even without U.N. approval, had shaped her decision. "It certainly did influence my thinking," she told me in her matter-of-fact tone. "What many of us thought was, the use of diplomacy backed up by the threat of force--that is a credible position for America to take in the world." But, she added, "there were those in the Congress who thought that the United States should never even threaten force--or certainly take force--in the absence of U.N. Security Council approval. Well, I had seen during the Clinton administration that sometimes, that's not even possible. Sometimes, it's not even possible for the president to get congressional approval to pursue vital national security interests."

And

her October 2002 speech explaining her vote for President Bush's war resolution, Hillary was clearly conflicted. She listed several reasons why war might be necessary, including the Iraqi chemical and biological arsenal--which she called "undisputed"--and her purported special perspective, as a New Yorker after September 11, on the "risks of action versus inaction." She also offered several counterarguments, including her fear that Bush might make a dangerous precedent of "preemption."

But, in concluding that she would support Bush, Clinton offered another rationale of a very different sort. She argued that she was inherently predisposed to grant the benefit of the doubt to a president asking Congress for support in matters of war. In the '90s, Clinton had watched congressional Republicans undermine her husband's foreign policy for political gain. They mocked his interventions in Haiti, Bosnia, and Kosovo--Tom DeLay called it "Clinton's war"--and they cried "wag the dog" when he launched a cruise-missile attack on Iraq in the midst of the Lewinsky scandal. "[P]erhaps," Hillary mused in her floor speech, "my decision is influenced by my eight years of experience on the other end of Pennsylvania Avenue in the White House, watching my husband deal with serious challenges to our nation. I want this president, or any future president, to be in the strongest possible position to lead our country in the United Nations or in war."

In short, Clinton was arguing that Congress should have an innate deference to presidential authority in matters of diplomacy and war. As she explained to ABC's George Stephanopoulos in December 2003, "I'm a strong believer in executive authority. I wish that, when my husband was president, people in Congress had been more willing to recognize presidential authority."

Now, I can understand why someone who has been in the White House, or someone with Presidential aspirations, would look kindly on an expansive view of executive authority. What's more, there is a long and rich legal history supporting that view, back all the way to Hamilton debating the issue with Madison. However, to me, basing her decision at least in part on that view is tantamount to a defense lawyer rolling over because she remembers that, as a prosecutor, she was often frustrated by rabid defense lawyers, and even failed to bring bad people to justice as a result.

While that may have been frustrating, and it may have hampered justice, those checks on that power are necessary for the system to work. Adversarial systems don't work when one side doesn't put up a fight out of deference to the other. Her rationale can be read, I think, in only two ways: one, as an admittance of complete negligence in her duty as a Senator to check the power of the executive; or, two, a total disavowal of that adversarial system in favor of the unitary executive approach that seems to have roots in Hamilton's Federalist Papers # 70.

I think, with Bush, we've seen first hand what it looks like to have an unchecked executive run amok. I have no desire to re-visit this experience, even if the unitary executive were a liberal, competent one, as opposed to the current incompetent zealot. Hillary's rationale for her vote to authorize force suggests either a total failure of her role in our Madisonian system, or disbelief in that system altogether. As such, she's losing any support she had from me as a 2nd or 3rd choice. I cannot forgive that type of failure, nor can I condone that Constitutional interpretation.

I don't want a defense attorney who sleeps through my trial, nor do I want a prosecutor who prefers trials that way.

After long thought, Edwards is now strongly my second choice, and Hillary is sliding to the back of the line.