The Battle For Kavanaugh Hill

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
Due process
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.

51 thoughts on “The Battle For Kavanaugh Hill

  1. Dan

    Well said. Though there some who support Kavanaugh and also believe in due process, presumption of innocence, etc., as a matter of principle. Few, no doubt, but then there are few who oppose him and are also principled. Principled men are unfortunately uncommon on both sides of the political spectrum.

    Reply
      1. Guitardave

        When you’re REALLY on point, sometimes the obvious is all the “thinking challenged”* have to say…and we just HAVE TO say something blah blah…
        * speaking for myself, Dan.

        Reply
  2. AngryChiAtty

    The triple exclamation points convinced me of your opponents argument. Just one? I would want to hear the other side. Two? I would feel uneasy. But three! I don’t need to hear anything more on the subject. I’m sold. Sorry.

    Reply
  3. jfjoyner3

    Just want to say thank you. I’m unsure how much I agree with you but this is interesting and well written. I’ve bookmarked it to re-read over the weekend. Really, I just want to say thank you for writing something so thought provoking (for me at least) in the midst of all the incivility that has infected our national and local discourse.

    Reply
    1. SHG Post author

      It’s my general rule to trash tummy rubs, as I don’t need them and they don’t contribute anything to the discussion. I’ve decided to post yours because there’s a gaping hole for a great many people between the two sides of useful idiots where a great many people exist, thinking they’re the only ones who don’t want to fight for either side.

      Whether you agree or not is immaterial. What matters is that there are people who aren’t part of either warring faction, and that people who haven’t lost their minds to the idiocracy are not alone. Most just don’t want to say anything and be attacked for not dying on this hill.

      Reply
  4. Raccoon Strait

    Isn’t conflating principle with politics sort of antithetical? I feel certain that if the Founders wanted principled politicians they would have put something in the Constitution about it. Well, maybe they did. They said advise and consent, not toe your party line and impose your ideology. Where did they go wrong?

    (I was going to say Founding Fathers, but we don’t actually know enough about their gender identities to assign appropriate pronouns anymore). 🙂

    Reply
    1. SHG Post author

      I’m afraid I’ll have to wait for Jake to show up and interpret your comment into language I can understand. I apologize for the delay.

      Reply
  5. Mark Brooks

    Mr. Greenfield, please permit me to make a few observations. (reminder, I am the Jamaican who lives in Jamaica and am a Justice of the Peace). I find it somewhat ironic that I, a Jamaican, am very much aware of the “Boston Massacre”, yet so many in the USA seem not to know. Here we have, John Adams, an attorney of note, who was very much a Patriot, leading the defence of the British soldiers involved. The way things are going in the USA now, John Adams would be lucky not to escape being be tarred and feathered. Perhaps honour once meant something ?

    Another point I would like to add, is in regard of the comments made by Dr. Ford’s attorney, Ms. Katz. When Mrs. Keyser’s attorney put out her statement that “she did not know Mr Kavanaugh and had no recollection of being at any party with him and Dr. Ford”, Ms. Katz made a response. I think it was “That is not remarkable that Mrs. Keyser would not remember, as nothing remarkable happened to her”.

    Our Petty Sessions Court operates similar to a tribunal system. Parties on both sides in civil matters can have lawyers. In criminal matters, the Clerk of the Court represents the Crown and defendants can have lawyers. However the Justices on the bench are very much allowed to ask questions of all parties involved. I was well known to do so, sometimes to the dismay of the Clerk or lawyers !

    Should say an assault at common law come before me under similar circumstances as alleged by Dr. Ford and some attorney made similar remarks as Ms. Katz, my response could very well be this. “Do NOT attempt to insult my intelligence. Am I to believe that in a gathering of 5 people ( aside, could be 6 as Dr. Ford keeps changing the number of people), that half of them go missing and all of a sudden loud music is being played upstairs while not even the TV is on downstairs and no one would notice ? That a commotion of sorts would be happening upstairs with people jumping about and falling off beds and this might not result in any shakings or otherwise ? That someone fled and ran into a bathroom for safety and would not have slammed the door shut ? That the girl friend of the other girl suddenly left the house and she would be left there alone and not remember ? Do not try to insult my intelligence”.

    Keep up the good fight for honour and fair play Mr. Greenfield

    Cheers
    Mark Brooks

    Reply
  6. B. McLeod

    As a 501(c)(3) charitable organization, they should keep to the declared charitable purposes of the society and stop openly mucking about in federal politics.

    Reply
      1. B. McLeod

        Decades ago I was a humble legal intern working in a legal aid society. In those days, we didn’t do politics from the society’s offices or with the society’s assets or when we were supposed to be engaged in the society’s business.

        Reply
        1. SHG Post author

          To the young, that’s the entire point of their being woke, that they now understand that their lives must be dedicated to repairing the entirety of human history and experience and not piddling notions of the privileged.

          Reply
          1. OtherJay

            Please don’t forget that you have to acknowledge their lived experience, whatever that means.

            Also, no links, but “Protesters throw kegger outside McConnell’s house” sounds pretty fun. Plans later?

            Reply
  7. Jack

    “that cause isn’t the zealous defense of your clients, but to believe the woman.” No, the cause is to ‘resist’ Trump. ‘Believe the woman’ is just the weapon used in this case. The next outrage will have different rules and different weapons. ‘Trump Bad’ is the only constant.

    Reply
  8. Jake

    “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.”

    Interesting. When do you stop being a human, and a citizen…When you wake up each morning before you put on your criminal defense lawyer cape, or do you just renounce those titles when you pass the bar?

    Reply
    1. Miles

      Trying my best to take you seriously, your question is the one that an entitled, self-indulgent narcissist would ask, who puts his own values above anything else, as opposed to a criminal defense lawyer, who puts the needs of his client above his own.

      That’s the point, that young, entitled, self-indulgent narcissists cannot be criminal defense lawyers. They just can’t wrap their heads around the notion that there is a higher duty than their feelz.

      Reply
      1. SHG Post author

        In fairness, Jake’s not a lawyer and has no conception of what it means to be responsible for another person’s life. On the other hand, his question is pretty much the argument I’ve heard from many young lawyers, most of whom don’t deserve to be entrusted with a puppy.

        Reply
      2. Jake

        Scott is correct, I am not a criminal defense superhero. However, there are human beings and principles which have needs I put before most of my own. I breathe, I eat, I sleep, so I may be of service to others who I am qualified to help. I also take care of myself. I ride my motorcycle to relax. I watch TV. So I don’t lose my mind and render myself incapable of being of service. I also see to my civic duties. I vote, protest, and exercise my 1a rights as necessary. None of these things keeps me from being of service to the people I am qualified to help.

        So perhaps a better question is, where do lawyers have to draw the line? Are you able to stop being a lawyer ever?

        And please forgive me for assuming the answer is yes, as I know lawyers personally. Successful ones. Who went to Ivy League schools and have defended people you’ve heard of. And they stop once in a while. They tend to their families and unwind.

        People just like Scott, who I know drives around in a fancy car from time to time, when he’s not being a criminal defense superhero. So it’s hard to believe when he says there’s no time for participating in anything but defending his clients. People like Scott, who blog prodigiously, so it’s hard for me to believe when they argue that criminal defense lawyers should have no public opinion.

        Reply
        1. SHG Post author

          You’ve moved the goal posts again, as you have a tendency to do. Of course we have lives and interests outside criminal defense, but that doesn’t mean our non-lawyer lives compel us to be hypocrites and liars. Your friends’ mileage may vary.

          Reply
          1. Jake

            You assume the person I’m referencing doesn’t think and act just like you do.

            With regard to being a hypocrite, I can only guess you are, again, pretending the Senate’s role in confirming a presidential nominee for the Supreme Court is a criminal trial, which we both know it is not. It’s not even a civil trial, though I give Susan Colins credit for her speech today. I’m sure she’s got her shrivs on her side regardless of what standards she applies to the evidence before her.

            But, let’s say, arguendo, I, and the criminal defense lawyers you mention, and the rest of the majority of Americans who do not support Kavanaugh agree that the comforting blanket of presumed innocence protects him so completely that even further inquiry is out of the question, in spite of the corroborated witness testimony given under penalty of perjury naming him as a sex creep and a drunkard, that doesn’t excuse him for the behavior he demonstrated last week.

            But I don’t need you to agree with me. I just want you to know you that I know are making your own judgment call, like everyone else. This has nothing to do with being a criminal defense superhero. You’ve seen what this guy does under pressure. He cracks. He turns into a defiant, crying child driven by fear and conspiratorial nonsense. And you’re OK with a guy like that sitting on the highest court in the land. And I’m not.

            Reply
            1. SHG Post author

              So now you’ve give up on your second effort to spin yourself out of the hole you’ve dug for yourself, into an entirely new and different rabbit hole. You really need to learn when to stop digging.

            2. Skink

              Jake–you’ve done a remarkable thing. It might be a singular thing in the history of blogs. You’ve constructed four paragraphs where every clause is a tribute to either poor issue-spotting or incompetent rationalization. It could take days, which no one here has, to unravel all the errors.

              Congratulations!

            3. Jake

              @Skink – I do what I can.

              I don’t know how many years it’s going to take you guys to realize, I’m not eating the red pill.

              This post says: You are a criminal defense attorney and therefore you are not allowed to do anything else with your afternoon but defend your clients.

              That’s bullshit. Period. None of the lawyers at the LAS represent Kavanaugh or Trump and they are entitled to feel whatever way they want to about them both. You all can gaslight all day long, but it’s not going to work.

            4. DaveL

              Jake, you’re aware that, in the ‘pill metaphor’, the red pill represents the acceptance of truth, however difficult, whereas the blue pill represents reliance on comfortable illusion? You’re saying you choose to reject reality in favor of a comforting falsehood.

            5. jfjoyner3

              “You’ve seen what this guy does under pressure. He cracks. He turns into a defiant, crying child driven by fear and conspiratorial nonsense. And you’re OK with a guy like that sitting on the highest court in the land.”

              Maybe you folks know one another, but I don’t, and I’m surprised to read someone conflate the emotional state from being under pressure (deadlines, striving to perform optimally when a lot is at stake) and being under sustained assault (accused of felonies, stripped of the presumption of innocence, death threats, etc.) by an identifiable, organized, and powerful group. I expect confusion like that within the screaming crowds but not here (?).

            6. DaveL

              Personally, I’m kind of amused by this image of the federal judiciary as being paragons of heroic stoicism in the face of any outrage. I’m sure that’s going to come as a surprise to many a trial lawyer.

            7. Jake

              @davel

              “Jake, you’re aware that, in the ‘pill metaphor’, the red pill represents the acceptance of truth, however difficult, whereas the blue pill represents reliance on comfortable illusion? You’re saying you choose to reject reality in favor of a comforting falsehood.”

              You mustn’t be afraid to dig a little deeper. Google gave you 174,000,000 results in .74 seconds on that search.

        2. Skink

          Screwing it up again, there Jake. We can be and are humans and citizens. But when we are lawyers, we are lawyers. If the twain meets, we fail our clients. It ain’t so hard if you pull the blinders from your eyes.

          Reply
  9. MonitorsMost

    I’m so ready for this dumpster fire to be over. It’s brought the worst out in everyone. I suppose the silver lining is that this is the business and process they’ve chosen.

    Reply
  10. Fubar

    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.

    To fight Kavanaugh Hill I’ve no will.
    So when I’m in need of a thrill,
    I turn to Antoine,
    Whose memorable line
    Ineluctably will fill the bill!

    Reply
  11. AE

    What I’m getting from this, is that Squawk is gonna be in trouble again soon, for inflicting satire on those who absolutely deserve it.

    Reply
  12. B. McLeod

    To my poor, bewearied colleagues,
    A story I will tell,
    About the dreadful carnage,
    Upon Kavanaugh Hill,
    It was an awful conflict of fanatics mad and shrill,
    It was the dreadful battle,
    Upon Kavanaugh Hill.

    The hearings they had ended,
    It seemed that they were done,
    Until new accusations,
    For pune-faced Feinstein’s fun,
    Were entered in the lists,
    Tho’ by an imbecile,
    To spark a mortal struggle,
    Upon Kavanaugh Hill

    Then came forth an accuser,
    Tho’ of dubious provenance,
    And someone paid the lawyers,
    Who brought her to the dance,
    She could not say quite where or when,
    But did remember still,
    The trauma that she must report,
    Upon Kavanaugh Hill

    The nominee denied it,
    At times with sharp retort,
    And some have questioned whether this,
    Shows fitness for the Court,
    And ever in the wings,
    Ran on the rumor mill,
    As a three-ring circus soon broke out,
    Upon Kavanaugh Hill

    The ABA could not forbear,
    From joining in the fray,
    And Crazy Robert Carlson,
    Resolved to have his say,
    Inquiry by the FBI,
    He thought should fill the bill,
    But he lost a ton of dues-payers,
    Upon Kavanaugh Hill

    The issue now is close at hand,
    A vote we soon shall see,
    And on the Court this Kavanaugh,
    He may or may not be,
    Depending on who shows no sense,
    Or maybe those who will,
    ‘Tis that ’twill set the legacy,
    Drawn from Kavanaugh Hill.

    Reply
    1. Guitardave

      ! i raise my glass to you sir!…high art at this here hotel….thanks.
      PS: I hope it gets a couple more verses after the turd-storm’s over…?
      PS2: Got a tune in mind? ..i hear a minor key war march/dirge…you know
      that ‘how-many-died-in-the-massacre’ old folk song kinda groove..

      Reply
      1. B. McLeod

        There is a 19th century song called “Shiloh Hill,” which is a fanciful rendition of a battle fought not on an actual hill (much like this one). If you use that tune, it should match up pretty well. It was also used in a number of Wobbly songs (the Admiral can probably give you the list).

        Reply
        1. Sol Wisenberg

          Why yes, I had to be that guy. I thought it was a typo, but couldn’t be sure. You see, I have learned almost all of my SJW nomenclature through careful attention to your blawg. That’s how I learned what cis stands for. So, how was I to know for sure? Maybe pune meant prune, but maybe it meant pune, and maybe pune was something cutting edge—so cutting edge that it couldn’t be Googled yet. I’m glad to know about the typo. Senator Feinstein reminds me a little of my grandmother. She loved prunes. I’m not making that up. You can ask losing trader.

          Reply

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