Blinded By The Light

Sitting next to a lovely young lady at dinner the other night, she turned to me, eyes bright with enthusiasm, to tell me what she was passionate about.  She then asked me what I was passionate about.  I resisted my typical snarky reply, “I’m passionate about never saying I’m passionate,” and deflected the question.  After all, it was a nice dinner and not a lecture, so there was nothing to be gained by being disagreeable.

The problem isn’t so much that I am a “passion” hater, but that people who are “passionate” become so deeply tied to their passion that it blinds them.  They found the light, at least their light, and love it ever so much that they see the world through only passionate eyes. That also means they can’t see the world any other way, because passion.

This was driven home in the reaction to a post here yesterday, which was noted by Judge Kopf at Hercules and the Umpire, and a coattail ride by lawprof Will Baude at Volokh Conspiracy.  All the posts addressed a Slate article by Dahlia Lithwick, but the comments and approach were so starkly different that one would never know they were addressing the same piece.  One side, supportive of Lithwick’s cause, either ignored what she wrote or excused it. The other, unsupportive, not so much. Both were guided by passion, seeing only what confirmed their bias.

Blindness in the face of conflicting loyalties has been even more of a problem with the issues of revenge porn and campus sex regulation.  Some female criminal defense lawyers have been put in the position of choosing between passions, between their role as defender of the accused and their feminist beliefs.  They know these laws and regulations are disasters, but their passion for gender causes precludes them from disagreeing with their tribe.  Most stay with their lean-in group, that being a cause closer to their heart.

A while back, my buddy, Eric Mayer, made this point at Unwashed Advocate, and I seconded the motion here.  Eric explained:

I talk to passionate people all the time. Some are clients. Some are potential clients. Many are family members–moms, dads, wives, brothers, sisters, and mistresses. Others are third-party advocates (victim, veteran, and the like). They are passionate. Often very, very passionate.

They know what they know and believe what they believe. They become flustered and angry at the thought that someone could believe otherwise. When I explain that the opposing side has a logical and (generally) accepted reason for a particular stance, I’m met with the same high-powered anger and frustration.

They blurt, “How can they possibly think that?! How can you say those jerks have solid and compelling evidence?!”

I added:

The characterization of passionate has become increasingly pervasive, mostly because lawyers think it sells.  Clients like to think their lawyers “feel” exactly as they do, are as outraged at the injustice of it all and as utterly devoted to their  self-serving perception of “justice.”  The axiom is “justice is blind,” and they believe their lawyer should be as well.

One of the key characteristics of this blindness is how “obvious” everything is to the passionate. The correctness of their view is clear and certain, and anyone not seeing its obvious merit is WRONG!   This may be fine for children and academics, but it’s the antithesis of what criminal defense lawyers (and, perhaps, all lawyers) owe our clients.  We owe them clear-eyed detachment.  We owe them reality, as best we can see it.  We owe them a view without the blinders of our politics and confirmation bias.

When the passionate belief in a cause compels us to ignore or excuse that which doesn’t match our belief system, not only do we proceed based on our personal fantasy of what we want the world to be, but we deny our clients the best possible representation because we fail to recognize and appreciate the strength of the position against us to the neutral observer.  No matter how much it may hurt our feelings, we don’t get to argue our cause to our own hallelujah chorus.  There is no guarantee that our judge or jury will share our passion, and there is a fairly good chance they won’t see the world as we do at all.

I’m reviled by liberals for being too conservative. Same with conservatives, for whom I’m too liberal.  And libertarians have no use for me at all.  Some might think that this makes me feel bad, not having a political team behind me to show their love and approval.  Not at all. This is what I choose to be, what I strive to achieve, much as it means that I may not be invited to the team parties.

As criminal defense lawyers, the constitutional rights we tend to favor are set forth in the Fourth, Fifth, Sixth and Eighth Amendments, because these are the ones that serve our clients.  Some hate the Second, because they don’t like guns. I’m no fan of guns. Some love the First when it serves their politics, and hate it when it doesn’t. Rarely do we give the Third much thought.

The point is that once we breach the barrier of honoring constitutional rights, we expose ourselves to the whims of politics, of which rights further our sacred cows (which are very important rights that must be honored), and conversely which get in the way of accomplishing our political goals, and the balance is obviously tipped against them because of people’s passion.

As Bill Doriss succinctly noted, “either we got em or we don’t.”  Either we stand for the Constitution, including those amendments that don’t mean a whole lot to us as well as those we adore, or rights become a political football.  This doesn’t mean that I suggest the Roberts Court has done well in honoring the constitutional rights overall, but that we not denigrate their strength as to some to play off their weakness as to others.

Sure, we all have favored parts of the Constitution. And sure, the Supreme Court has failed us in hiding from those issues, those rights, at risk, or worse yet, undermining those rights in its rulings.  But in the passion to complain about the Supreme Court’s failure to respect our favored rights in the way we would have them do so, don’t disparage the rights it does respect.

And if doing so means you won’t be invited to the team parties, then chalk it up to another sucky aspect of being a criminal defense lawyer.  Unlike the others, we don’t have the luxury of indulging our idiosyncratic passions like other lawyers, who aren’t entrusted with the lives of other people.


22 thoughts on “Blinded By The Light

    1. SHG Post author

      Thanks, but I fear it’s only understood by experienced lawyers and will do little more than piss off the babies, the politically-bound and the theorists.

      1. Jim Majkowski

        You’re probably right, but please don’t give up. Maybe by the nth iteration, it’ll penetrate one more mind. And that’d be a good thing.

  1. John Barleycorn

    Passionately biased tribes knowing what they know…blinded by the light?

    Everybody the aspiring and assuring shill? Before you know it even the esteemed one is warning that the proposition players may turn out to be lawyers? One and all attempting to cash in on emotion while attempting to ignore the tangled webs their “winning” systems bring, but believing all along…

    Are we to believe the esteemed one hides out in plain sight while being cited, reviled, admired all the while predicting his own scorn?

    He sits in wait eating bagels pounded by palms from the left and the right as he bunkers down for a constitution least the political storms herding sacred dairy cows injected from within, with all manner of convictions and from all quarters, taint the principles of oatmeal’s known cardiovascular benefits to life, liberty, and the pursuit.

    I don’t know? But one thing is true.

    One day hundreds of years ago a peaceful anarchist sat in hut high atop the Andes
    observing a herd of alpacas.

    Turns out alpacas don’t shit or piss where they graze. In fact they go out of their way to create distinctive dung piles within their territory that have distinctive boundaries.

    After about fifty years of watching the alpacas some villagers stumbled upon the anarchist in the hut and ever since that day the alpaca no longer wonders atop the Andes free.

    So next time you see an alpaca roaming free take note because rest assured someone else is feeding supplements to their hundred head heard far from the Andes and several thousand others are even house-training their individual “pet” alpacas.

    It just not logical, it’s just not logical at all…

  2. AB

    You seem to use this post as a means of vindicating your opinion piece that was the subject of Judge Kopf’s post, where your view didn’t go over very well (nor did your writing, for that matter). I assume you’ve seen the comments there, and they are not, to be kind, in agreement with you.

    Rather than keeping digging, why not just conceded that you misstated Dahlia Lithwick’s intent? It would reflect far better on you to admit you were wrong than just keep beating a horse that is clearly dead.

    1. SHG Post author

      In replying to some of the comments which, like yours, informed me that I was wrong, I was probably too flip and dismissive. So you know, I saw the comments that disagreed with my read of Lithwick’s article, re-read hers and mine, and considered whether I had, as was argued, misread it. I concluded that I did not, and that my position was unchanged. It’s not that I was RIGHT, RIGHT, RIGHT, and would fight to the bitter end to prove I was right, but that upon further review, I still thought my read was correct.

      Should I change my opinion based on the number of “likes” I get, whether in the comments or elsewhere? On the one hand, one of the things I love most about the blawgosphere is that it’s the greatest medium for peer review ever. And so when rational voices (even though I have no clue who they are, what their background is, or what ideology they may hold dear) disagree with me, I consider them seriously. But whether my opinion is the minority or majority doesn’t factor into my view; it is what I think it should be, even if everyone in the world disagrees with me.

      That said, I note that Judge Kopf not only understood my point, but apparently thought it was a pretty good one. So too did commenters here and on twitter, who I know to be experience and highly-regarded criminal defense lawyers who would be more than happy to correct me if I was wrong. While I appreciate their support, as it’s always more comfortable to not have everyone saying you’re wrong, it doesn’t change the fact that I, upon review, adhere to my original view.

      And finally, there is a significant difference between those who wrote that the problem with Lithwick’s post is that it was poorly written, but my interpretation was not what she “meant.” I don’t know what anyone means. I only know what they write. I give Lithwick credit for writing what she intends to write (unlike the person who suggested she was on deadline and just dashed out this insipid quickie post), and therefore criticize it for what she said. If she meant something else, then she should have written something else. This may seem a bit uncharitable toward her, but she’s a big girl, a writer, and I’m sure she can handle a little criticism. Just as I can from those who hated my view or my writing over at Judge Kopf’s place. That’s just part of the deal.

      1. AB

        So your argument is that you aren’t being defensive, but no matter how thoughtful the many people who disagree with you, you are still right, even though it’s not because you’re just being defensive and unwilling to admit you’re wrong? Got it.

        1. SHG Post author

          It’s funny, when I give a flippant response, I get a passive-aggressive reaction. When I give a thoughtful response, I get a passive-aggressive reaction. Kinda makes it look like it’s a waste of time. So, if that’s how you want to read my reply, so be it. Makes no difference to me.

        2. Michael

          Anyone not persuaded by your impressive brilliance (not to mention self-awareness) is clearly incapable of rational thought.

          Seriously, though, defending one’s opinion is inherently “defensive.” What a pathetic, whiny, sniveling criticism. Or it would be if you were making it in good faith.

          1. Rick Horowitz

            As Yogi put it, “The logical fallacies are strong in those two.”

            Apparently, if you don’t change your mind to accommodate what they believe is right, then you’re the one who is “defensive”?

            Maybe I’m glad my blog doesn’t have more commenters. I definitely no longer wonder why you get tired, irritated, and don’t give out as many tummy rubs as some people might like.

            1. SHG Post author

              I was having this discussion with another blawger, who shall remain nameless, today. It wears on you from this side of the dashboard.

    2. John Barleycorn

      Well at least you are not appeal ing to the irrelevant authority of a robed bandit from Nebraska AB.

      Neither are you guilty of equivocation although I must admit you going with beating a dead horse did bring a smile considering horse-herding being in the title of the original post.

      Genetic fallacy or guilt by association perhaps? But no, not really, not at all in fact. Even if you don’t particularly care for the esteemed ones writing style. But who could-blame-ya if you went there?

      All aboard the slippery slopes while topping everything off with a cheery atop an appeal to the bandwagon?

      I wouldn’t want to give up my cheap seats to speculate but you never know…and frankly it is more fun to put sand in the esteemed one’s gears than it is to lubricate his ego so mind you he needs no help from the likes of me especially considering he probably was an early adopter of synthetic oil decades ago.

      But all that does not prevent me from tugging on your shirt strings with some distorted and twisted ad hominem
      ABBA to mess with you just for fun does it? AB is halfway there after all.

      Nothing personal but I may never again get a chance to break the rules with an ABBA tune dedicated to “all the lovers” of the constitution.

        1. John Barleycorn

          Me? Going with Tennille and the Captain, never! Although I just might put them in play if Andean condors started circling the last wild alpaca. But if that were to be, the crocodile tears would already be swelling the banks of the Madre de Dios river on its way to the mighty Amazon and whenever that happens everything is already in play.

          But I must admit,

          “ticklin’ her fancy, rubbin’ her toes, muzzle to muzzle, now anything goes, as they wiggle and giggle”

          is indeed a timely poignant constitutional lyric that hopefully neither side of the political spectrum will ever consummate.

          But if one side or the other ever were to decisively prevail in a political orgy of sorts, I just got to be thinking they just might be listing to “do that to me one more time” during the climax of their endeavors.

          Scary and twisted to even think about it really!

          For a minute there I almost thought all this garden variety pot stirring which brought about all this hullabaloo in the first place, was going places with this particular stirring of the pot.

          It may just yet. But you will have to excuse me as I go back to eating dandelions in the spring while toing or froing ashy chinchilla rats and messing around with highland tuco-tuco’s at dawn on my viscacha hole adventures through the Andes Mountains in spring.

          P.S. I always knew the CIA was holding onto a photo of Kissinger and Queen Elizabeth dissing Tennille in the White House. That must have been what prevented Ford from appointing Captain and Tennille to a sweet ambassadorship all along and that’s probably to blame for yet another thing or two or something or another I have yet to figure out yet.

  3. The Real Peterman

    Passion is fine, but like any emotion it must be tempered by reason. A person ruled by their feelings without any reasonable introspection is little better off than a disordered personality.

    1. SHG Post author

      Passion is fine…

      What point could possibly be served by expressing this? Passion and detached reason are opposites. That’s the point. To say you can have both is to say nothing. You like something? Great, but that’s not passion. It’s meaningful to you? Great, still not passion.

      Passion is an intense and barely controllable emotion, and it has its place (love Osetra caviar, love your significant other, love you dog), but that place is not in the performance of professional services.

  4. Ted H.

    man I miseed the party. I guess abortions and voting rights are the methadone SCOTUS needs to to dry itself out…Dr. Litchwick knows best.

  5. Peter Gerdes

    I think a better response is to say you are passionate about working hard to put aside the temptation to let our infatuation with our self-image as heros fighting the good fight stop us from noticing the harm we cause.

    If you weren’t passionate you wouldn’t be blogging. The difference is simply this. Part of what you are passionate about is being extremely wary of the dangers that being passionate can produce. This isn’t incoherent. It just means that you try to force yourself to examine ways in which even your skepticism about crusaders can cause harm and that you might be doing the same thing you seek to prevent.

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