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.
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?!”
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.