There’s a perpetual love/hate relationship between a blawger and the comments received to a post.  For the most part, they either express their agreement or disagreement, going further to inform that the blawger is either brilliant or moronic.  Orin Kerr had some fun with this in two brief posts.

Orin first noted how brilliant people agreed with him.

One of the consequences of confirmation bias is that we are overly impressed by ideas that we happen to share. It’s a natural instinct, if not watched carefully. If you read something that reflects or resonates with your own views, you’ll agree with it. Upon agreeing with it, you’ll think it is highly persuasive. And if it’s highly persuasive, it’s probably brilliant. You see this often in the blogosphere when bloggers link to someone’s “superb” and “extremely insightful” post. You click on the link, and you’re underwhelmed by the post. But you realize it is strikingly similar to what the original linker thinks about the topic. It’s possible to take our blinders off, or, more realistically, to minimize them. But it often requires some work, and the amount of work that different people give varies considerably.

Orin then offered the flip side, that people who disagree are arguing in bad faith .

I explained before why brilliant people agree with me. I want to talk about the other side of the picture. I’ve come to the realization that people who disagree with me are just arguing in bad faith. How do I know? Well, when I get into an argument, no one who disagrees with me ever says anything I find persuasive. They never even come close. It seems to me that if a person who disagrees with me were smart and acted in good faith, surely he would say something that persuaded me (even if only a little). But since that never happens, people who disagree with me must be either stupid or acting in bad faith. I’m a generous person, so I won’t assume the other guy is stupid. And that leads me to conclude, reluctantly, that people who disagree with me are arguing in bad faith.

I, of course, am above all of this, as demonstrated by my appreciation of Orin’s thoughtfulness even though he’s wrong much of the time. 

To criminal defense lawyers, much of what appears here is consistent with our belief system, our shared sense of fairness and our daily efforts to stem the tide of government overreaching.  Sure, there are some whose ox I’ve gored who tend to disagree just because I’ve proven myself a lousy team player, but that’s more about me than the ideas and positions that appear here.

Other lawyers, those who either practice in different niches, big firms, or for the prosecution, lack the shared experience of criminal defense and either can’t accept the implications that criminal defense lawyers take as a given, or find it flies in the face of their belief system.  Often, people leave comments that leave me with the sense that we’re talking apples and oranges, and I wonder why they feel compelled to bring their apple to my orangefest.

But the biggest issue, when it comes to having a conversation, is that people don’t want to discuss the subject matter in rational terms, but rather to let me know what they feel.  They prefer chocolate to vanilla and chocolate is better, dammit.  This was very evident in my recent post about the Manhattan mosque, where disagreement was expressed by a patriot, a Muslim hater and mourner. all of whom vehemently disagreed with me.  My position wasn’t that I favored building a mosque on Park Place, but rather that the substance of the debate was flawed and that there is a strong belief amongst those of us who worked in the area that the best way of dealing with 9/11 was to rebuild as quickly as possible and get back to life.

No one, myself included, is likely to convince anyone else that vanilla is more delicious than chocolate.  There’s no right or wrong answer to the question of which flavor one prefers.  There are right or wrong answers as to whether the two blocks between Park Place and the Site makes the implicit connection between the locations fatuous, but that doesn’t seem to impact the emotional reaction.  The same can be said for those in Des Moines who still maintain that what happened off Vesey Street gives them property rights and a vote.  They feel it should, no matter how attenuated their claim.

As Orin notes, there are psychological factors at work here that go beyond any individual post or comment.  The best we can hope for is to express views that have some basis in fact behind them and reflect some modicum of thought.  Criminal defense lawyers tend to view their cases through the prism of the police and prosecution, much to the chagrin of our clients. 

We don’t care about their deeply felt expressions of innocence or victimhood.  We care about the evidence the prosecution has in hand and how we can beat it to a pulp.  Don’t be fooled by pandering assertions of empathy.  That’s just a means of making the client feel that we understand so they like us better.  The truth is that any competent criminal defense lawyer fights to win, and that’s based entirely on our ability to build a defense to the prosecution’s case.  No one wins cases by stroking fevered brows.

This allows criminal defense lawyers, more so than any other discrete group, to see the strength of our opposition’s position clearly.  While we have our personal beliefs just like the next guy, we also have professional experience seeing the basis for our adversary’s beliefs through cold, calculating eyes.  Who cares if we prefer vanilla; the question is how we destroy our opponent’s argument in favor of chocolate.

There’s no arguing with emotion.  It’s not rational and needs no basis.  When it comes to choices among equals, the chocolate/vanilla debate, no reason is necessary for one’s preference.  When it comes to debate over issues that are subject to facts and reason, it’s not your agreement or disagreement with me (or anyone else, for that matter), but the strength and clarity of your argument. 

It’s not important that you agree with my position, but why.  If you can’t explain why, in unemotional, objective terms, then your opinion doesn’t matter.  Bear in mind that everyone is not entitled to an opinion.  You may be right, that I’m either brilliant or a moron, but if you want a vote, you better have a reason for your position.