Email #248: “adversarial”?

“The American legal system is adversarial and is based on the premise that a real, live dispute involving parties with a genuine interest in its outcome will allow for the most vigorous legal debate of the issues.”

That’s from Toni M. Fine’s reference guid American Legal Systems. I could quote a dozen other similar texts, since the statement is a common fact. As a graduate of Washington and Lee University’s Law School, you know that far better than I do. You also practiced law as a partner in your own firm, so you understand the adversarial nature of the legal system first hand. As a defense lawyer, you argued for your clients’ innocence, while prosecutors argued for their guilt.

You must also then know first hand the difference between factual and legal guilt. Though you must have known that some of your clients were factually guilty, it was still your job to do all that you could to prevent their being found legally guilty. An effective lawyer, whether defending or prosecuting, takes no interest in determining the actual truth or guiding a jury to a moral outcome. While this sounds unethical, it’s the bedrock of our legal system. If you or any other lawyer allowed personal judgements of truth and morality to sway your actions–and so not do everything in your professional power to persuade a jury of a defendant’s innocence regardless of their factual guilt–then you would be a failure as a lawyer.

While I know nothing about your career as a lawyer before you became a Representative in 1993, I assume you were no failure. I assume you took your adversarial duties quite seriously. I assume you set aside matters of truth and trusted in the larger system to produce the best results. You simply argued your position, right or wrong, knowing your opponents would do exactly the same, and then it would be up to the jury to decide. Sadly, what made you an effective lawyer has made you a destructive politician.

You entered Congress at a turning point in American politics, when Speaker Next Gingrich changed the norms of rhetoric to foster greater division between Republicans and Democrats. While party politics was always adversarial, the approach has grown to polarizing extremes in the quarter century that you’ve remained in office. You approach political issues with the intentional blindness of lawyer duty-bound to prosecute one side and one side only. If your side of the aisle holds a morally questionable position–the denial of health care to the poor in order to reduce taxes for the wealthy, for example–you argue with the same vigour as you do when claiming a moral highground. When the facts support your position, you use those facts in your arguments. When the facts don’t support your position, you ignore and obscure them. Both truth and morality then are irrelevant if neither determines your actions.

This paradoxically is the necessary and fully ethical attitude of a lawyer. But politicians are not lawyers. They do not represent sides. They represent their constituents, all of their constituents, regardless of party. Our district does not have two Representatives who go to Washington as adversaries who together create the best outcomes. We only have you. Even looking at the Congress as a whole, Republicans and Democrats should not treat each other as adversarial lawyers battling to win regardless of right and wrong. Your excellence as a lawyer has made you a harmful Representative.