The arguments have been made, and made again, repeating truths and falsehoods as necessary, and usually ending in the same place.
The core problem behind all of this is a complete breakdown in the legitimacy of our public institutions. The Supreme Court is no longer a place where justices dispassionately rule on the Constitution. It’s a place where they cast predictable party-line votes. Therefore, senators no longer deliberate on nominees. They cast predictable party-line votes. The members of the public no longer reason with one another. They fall into predictable party-line formation and then invent post-hoc, bad-faith rationalizations to give cover to their ideologically driven positions (Drank too much! Bad temperament! Bad yearbook entry!).
The sky has been falling for quite a while now, even if it’s never actually fallen, and so the unduly passionate are certain that Kavanaugh is a hill worth dying on. Spare me the arguments why he is, as they only go in circles and that’s not the point. Whether he’s terrible for a litany of reasons or wonderful for the same reasons, the warriors in this battle have included my tribe, criminal defense lawyers, and revealed the lie.
For years, younger, more woke, occasionally more hysterical and irrational, criminal defense lawyers have tried to make me understand why I should embrace their social justice vision, dedicate myself to identity politics. They’ve failed, but only because I suffer the ignominy of principle, that no amount of vapid rationalization changes the value of principles based on which identities I’m supposed to love or hate. Yesterday, the lie collapsed around me.
A memo was sent out to the lawyers of the New York City Legal Aid Society telling them that there was something more important to be done in the later afternoon, a protest at Trump Tower. It included two hashtags: #CancelKavanaugh and #BelieveWomen. There was no #DefendClients hashtag to be found.
The slide from zealous defenders to social justice warriors has been chronicled here, to some extent. The rationalizations have been made, pretending that the one duty somehow meshes with the other if one shrieks enough, murders enough words and moves the goal posts from defending the accused to fighting racism and sexism. It’s not that racism and sexism aren’t evils worthy of a fight, but that they’re not the evils criminal defense lawyers are sworn to fight.
To the intellectually squishy, these causes seem close enough, if not completely aligned. After all, doesn’t the system crush black men disproportionately? Indeed it does, but that’s conflating correlation with causation.
Here are some of the principles upon which our system is based:
Presumption of innocence
Burden of proof
Rules of evidence
And they still pay homage to these principles, but with a caveat, that adherence is limited to the identities they favor and precluded when it ill-serves their favored identities. You can’t #BelieveWomen and zealously defend a man accused of domestic violence. You can’t fight junk science and believe polygraphs prove truth.
But what, cry the voices of passion to us unwoke, about the Kavanaugh supporters seizing upon these principles for their own purposes? They’re liars. They’re insincere. They don’t love presumption of innocence or due process, except when it serves their nefarious purposes. And besides, it’s just a job interview, not a criminal trial, so every principle we’re supposed to believe in isn’t mandated by the rules!!!
Of course they’re insincere. Tomorrow, they’ll go right back to loving their cops, and assuming all black guys are dangerous criminals. But they’re not criminal defense lawyers, so their unprincipled usurpation of our principles provide you no cover for your unprincipled rejection of them. It suits their purposes to love due process? It suits yours not to. It suits their purposes to argue that Kavanaugh hasn’t been proven guilty of sexual assault? It suits your purposes to believe Ford, an accuser.
Their abuse of principle doesn’t excuse yours. Their sudden and transitory discovery of the presumption of innocence doesn’t mean you get to reject it. So what if they’re hypocrites. That doesn’t entitle you to be hypocrites in return. They’re not criminal defense lawyers. You are.
What difference does it make if the complaining witness is black or white, male or female, fat or thin, gay or straight? What difference does it make if your defendant is a man who is accused of stalking and beating a woman? Your job is to defend. You’ve been telling yourselves lies for years, that you can believe in social justice without sacrificing your oath to zealously defend your clients. And now, staring death in the face on Kavanaugh Hill, you are ready to die for the cause. But that cause isn’t the zealous defense of your clients, but to believe the woman.
You can wrap up your feelings in whatever vagary makes you feel superior, dignity, respect, oppression, morality, or, god forbid, justice. You can weigh your values against your duty, and decide that there is a higher calling than to defend your clients if it comes at the price of your morality. But then you aren’t a criminal defense lawyer. You can’t be.
There remain some lawyers at the Legal Aid Society who remember why they joined many years ago, to defend the accused no matter what his identity might be or how passionately they prefer the accuser. But they are now pariahs, to be re-educated, grieved or expelled from the sisterhood of the woke. It’s not that LAS won’t defend the accused, but that they will do so provided they can put their cause ahead of their duty.
Many have, and will, die on Kavanaugh Hill. Some of them will claim to be criminal defense lawyers, but they’re not. No criminal defense lawyer would sacrifice principle this way. Principle is the only hill a criminal defense lawyer is willing to die on, Kavanaugh or not.