Following news of Eastern District of Virginia Judge T.S. Ellis’ putting some pointed questions to Michael Dreeban, the prosecutor from Bob Mueller’s Special Counsel office prosecuting former Trump campaign manager Paul Manafort, a segment of the internet exploded in outrage at his disrespectful lack of civility.
“I don’t see what relation this indictment has with anything the special counsel is authorized to investigate,” he said, according to a transcript of the hourlong hearing on a defense motion to dismiss the charges. He added, “What we don’t want in this country is we don’t want anyone with unfettered power.”
Of course, this was a judge appointed by Reagan, so he must have been biased, as is assumed these days of all judges by dint of their patrons. That made his more explicit question all the more uncivil.
“You don’t really care about Mr. Manafort’s bank fraud,” Judge T. S. Ellis III said during a court hearing in Alexandria. “You really care about getting information that Mr. Manafort can give you that would reflect on Mr. Trump and lead to his prosecution or impeachment or whatever.”
This doesn’t mean the judge thinks Manafort isn’t guilty. This by no means suggests that the judge will rule against the Special Counsel. Naive assumptions, that hang on every word and are promoted by pretend-experts on twitter, fuel ignorance and get people needlessly riled up. We’re still a long way from any decision, and challenges to the government in court often are no more than that.
One of the collateral issues raised by Judge Ellis’ comments was the perpetual call for “civility.” His challenges were called disrespectful, uncivil, by the unduly passionate, and the call for civility, in discourse in general and in the law in particular, has been an ongoing theme. Judge Robin Rosenberg of the Southern District of Florida, is engaged in a program to instill “civility” in young people called “Teen Discourse and Decisions — TD-Squared (TD²).”
For our part, in the judicial branch, federal judges in the Southern District of Florida over the past six months have brought into our courtrooms more than 500 high school and college students to give them exposure to, and experience with civil discourse and decision-making practices that are not only legal skills but critical life skills.
When federal judges have decided to use their time and courtrooms to teach “civil discourse and decision-making practices” to students, it’s a significant commitment. But what is it they’re teaching? They run a moot trial and use the students as jurors.
To prepare for the deliberations, the student jurors commit to ground rules for relating respectfully while working through the issues. However, they quickly learn that civility doesn’t mean the process is devoid of emotion. On the contrary, reason is powered by passions deeply felt but constructively channeled. Through this program and many life experiences as a judge, a lawyer and a mother, I have found that, even when emotions run high, young people have an innate sense of fair play. They understand, even when they fall short, that passion isn’t a license to be disrespectful to others.
These words sound nice, and for those who have become inured to strings of jargon that go nowhere, they may even seem almost cogent. But when a judge says “reason is powered by passions deeply felt but constructively channeled,” what’s one to make of it?
It is a frame of mind that sets the stage for listening, engaging, and accepting the strongly held beliefs of others – even when we passionately disagree with their ideas or believe they are wrong.
Is she saying that, even when we passionately disagree, we should nonetheless accept the strongly-held beliefs of others? Is that what civil discourse demands of us? Would it be uncivil of me to call Judge Rosenberg’s proposition nonsensical gibberish? She’s not talking about civility, but acquiescence. There’s nothing about civility that requires anyone to tolerate, no less accept, another person’s strongly-held beliefs as our own.
To the extent that “civility” means that we disagree politely, it’s a formalism that prevents us from calling “bullshit” when our adversary makes some irrational argument, whether fueled by undue passion or because they’re incapable of logical thought. Or maybe it’s the best argument they’ve got and they’re desperately hoping no one notices that it’s inane.
But there’s a huge gap between the tone-policing aspect of civility, the piece where we are scolded for our failure to suit the sensibilities of others despite the fact that they may be
full of shit wrong and using more moderated language to express arguments. No lawyer calls his adversary an “asshole” in open court unless he desperately wants the judge to drop the hammer on him. It’s not tolerated, and shouldn’t be.
Judge Rosenberg’s argument may not be intended to suggest acquiescence to vapid beliefs, but rather to do the opposite, for the unduly passionate to chill out, listen and not let passion overcome reason. If her op-ed was speaking to the unduly passionate, then perhaps she was trying to speak their language to get them to tone down their fury and consider more rational thought.
For rational people, civility is the club used to beat them into submission. Like the pervasive misunderstanding of ad hominem, civility does not demand that you be sweet to all who voice their positions. Respect is earned, not obligated. Illogical arguments become no more reasonable when voiced in dulcet tones. Civility doesn’t compel you to accept some boneheaded nonsense so as to avoid making its utterer feel validated.
Civility is a wonderful thing, if we could all deal with each other in a way that was polite and not needlessly mean or offensive. But given that offense is taken without regard to reason, facts or the validity of one’s positions, there is a strong likelihood that any dispute will be viewed as uncivil, not because you avoided calling your adversary an asshole, but because you had the temerity to disagree with someone’s strongly-held beliefs. And, well, tough shit.
As for Judge Ellis, of course the current Special Counsel prosecution of Manafort is all about getting Trump, and almost certainly exceeds his authority. If saying the obvious, but in a way that hurts your feelings, is uncivil and disrespectful to your strongly-held beliefs, then you’re a blind fool. Note, that’s not an ad hominem.