How Can You Be a Defense Attorney?

 

The question invariably arises when a fellow lawyer learns that I am a political conservative.  The unspoken assumption behind the question that a person who defends those accused of crimes must be in some sense partial to them or, at the very least, suspicious of the police who made one’s client a defendant.  In other words, one who represents those accused of crimes is expected to be leery of law enforcers, maybe not an anarchist but at least a liberal.

I certainly don’t fall into those categories, 

My succinct response to the questioner is that the Bill of Rights provides protections for those accused of crimes such as a trial by jury and the right to remain silent.  What could be more conservative than protecting a client’s constitutional rights?

There is a broad irony to the question posed by fellow attorneys (most of whom consider themselves proud liberals).  Those on the left do, indeed, tend to be suspicious of the exercise of power by government employees who are in law enforcement, including prosecutors.  They see such personnel often as agents of racial prejudice and injustice (the prejudgment by many on the left of the police shooting in Ferguson, Missouri a few years ago is an example).  Yet liberals eagerly urge other arms of the government to get involved in curing perceived social ills such as income inequality, environmental hazards and health insurance inefficiencies.

But a conservative does not accept the distinction that those exercising powers of government are to be viewed suspiciously in some aspects but embraced in others.

Human nature is a constant in human endeavors.  The fact that a person is a “public servant” who considers himself well-motivated does not grant him an exemption from reality.  The ranks of law enforcement or social service agencies, for instance, all contain people – a mixture of good, bad and indifferent.

 Power does indeed corrupt.  That appreciation is at the heart of political conservatism and the U.S. Constitution.

Our Framers sought to restrain the exercise of power, while acknowledging that government is meaningless without it.

The essential role of the criminal defense attorney is to serve as a check on the exercise of governmental power in the criminal justice system.  Require the state to prove its accusations.  Provide a forum and rules to allow the defendant to challenge them.  That is the job of the defense attorney.  The skilled defender, be he liberal or otherwise, oblivious as he may be to the fact, is playing a very conservative role.  Our society would be much better off – and certainly more conservative – if non-law enforcement sections of our government were subjected to the same degree of scrutiny confronted by those who accuse others of crimes.

I am proud to be a criminal defense attorney because (not despite the fact) I am a conservative.

Is It a “Sure Thing” That Roe v. Wade Will Be Overturned?

 No and yes.  How’s that for a legalistic answer?

But it’s a realistic – and probable – forecast of the Mississippi abortion case before the U.S. Supreme Court

Most Conservative observers, to be sure, don’t expect an ambiguous outcome.  And they have a point.  The Court’s make-up strongly suggests that 6 0f the 9 justices oppose the legal underpinnings of the fifty year old ruling – serious legal scholars - many on the left - concur.  Roe v. Wade was indeed based upon the specious conclusion that abortion was protected by the U.S. Constitution.  This view was fortified by the addition of Justice Comey to the Court, lessening the need for the support of Chief Justice Roberts who has proven to be undependable on other high-profile cases (such as Obamacare).

Yet the apparent majority may not hold on a straight up and down vote.  Why not?  It is a myth that judges consistently ignore public opinion when fashioning rulings.  This is definitely the case when courts perceive that a decision will be challenged by significant opposition.  For instance, Brown v. Board of Education, outlawing school segregation, was issued as a deceptive unanimous decision by the US. Supreme Court.  Those on the bench who would have been in the minority were persuade that unanimity would accord the decision with more legitimacy for the American public.

A perception of legitimacy mattered then as it does now – the Chief Judge is particularly attuned to bolstering that concept.  Without an aura of legitimacy, the Court’s authority will vanish and its pronouncements ignored.  Think of the Dred Scott decision of 150 years ago. 

Abortion may not inflame America in the same way that the issue of slavery did then, but it certainly generates high passions on both sides with, polls show, half of the public for and half against.

Does the Supreme Court want to contribute to the damaging politicization already affecting the country?

Of course, in a legal vacuum, the Court could reach the sound judgment and toss out Roe and its Casey modifications.  But because we are not so situated, it will not.

That’s not to say that abortion rights will survive as a reality.  They will not.  Instead, the Roberts Court will side-step the question of whether the Roe decision penned by Justice Harry Blackman improperly found state proscription on abortions to be unconstitutional.

There are several ways, I believe, for the Court to gut Roe while leaving the form in place.  Simply rule that, since that case was issued in 1973, medical science has shown that human life in the womb starts not at some arbitrary week of pregnancy (becomes “viable”), but begins at the moment the egg is fertilized.  Thus, the Court can reason, Roe is not overruled as such, it has simply become outdated.    

That approach won’t appease the abortion advocates but it should dampen the ardor of their anger.  If the Roe decision is allowed to stand, it could well be used to permit termination of the unborn baby in extraordinary circumstances, for instance, of pregnancy caused by rape or incest.  Such  exceptions are already broadly accepted.

Pro-lifers will understand that banning and restricting abortions is once again a realistic option at the state level.

That’s a decision which will serve both the law and the public in

Does the Left Hate America?

 

On a superficial level, the question makes no sense.  Having sincere left-wing views should mean you want to make a better America, not disown it.  But looking deeper, it appears that many of the Left are hostile to our nation.

Wouldn’t you be too, if you believed that America is irredeemably racist and beyond redemption?  And since such animosity toward non-whites is evil, how do you avoid hating what is probably the land of your birth?

And, of course, anyone who disagrees with your assessment must be evil as well since such a person (of whatever color or race) is perpetuating systemic racism which is and always has been at the root of what is America.  It does not deserve to survive because it is hateful.

How can those who defend it be other than enemies?

                             *                           *                           *

Does this analysis seem over-wrought?  Certainly not all of those on the Left share the attitudes recited.  But the numbers of those who do are growing.  The MSNBC cable network is an excellent barometer of far-left sentiments.  In recent years, its hosts and panelists have become increasingly strident in their denunciations of white racism, which is, of course, is termed “systemic” in America.

(As an aside, “systemic” as used by the Left is nonsense.  Yes, a system of racial discrimination used to be incorporated into law in many jurisdictions across the land.  But that was many decades ago.  Of course, racial  prejudices continue to exist among individuals – always have and, human nature being what it is, always will.) 

We hear seemingly reasonable voices on both left and right lamenting the existence of political polarization.  The Sensible Conservative, in fact, has expressed similar consternation.

Yet the increasing divide on politics did not merely spring forth on the scene by happenstance.  If the Left views the Right as occupied by enemies, not mere opponents, Conservatives will reciprocate the hostility.  And that is precisely what has happened.

Can the chasm be bridged?  Can respect for differing views replace contempt?  Can we abolish the use of racial epithets as a substitution for intelligent disagreement?  How do we as Americans begin?

But, are the pessimistic voices heard sometimes on the Right correct?  Has the divide become so wide that the deep divisions are indeed insurmountable?

It may indeed be wishful thinking to be optimistic.

An outside event, like a long-term 9/11, may be the only realistic option to unite the country on shared goals once again. 

Have we really come to that?