JUDGING CRIMES

This is an almost-embarrasingly old-fashioned style of rhetoric (it dates from the 1920s), but it pretty much captures the obeisance paid to the Supreme Court by the American legal profession:

None of us desires or is able to dispute the judgments of the Supreme Court. The Court in the last analysis is always right, because the Court is the single constitutional instrument given to the American people for the solution of its basic problems. ...  One can be right only with the Court, and through the Court, for the Constitution has no other way of being in the right. The English have a saying: “My country – right or wrong.” With far more historical justification we may say of the Supreme Court, whether we agree with its decisions in individual cases or not, it remains our Court ...  And if the Court reaches a decision which one or another of us thinks unjust, he will say: just or unjust it is the Court, and the Constitution, and I shall support the consequences of the decision to the end.

Justice Jackson made the same point much more pithily, and with far greater wit (the 1924 speaker was reputed to be totally humorless): "We are not final because we are infallible, but we are infallible only because we are final. "

Of course, Trotsky wasn't really talking about our Supreme Court - I've retouched his speech about fealty to the Party.   The block quote links to an old Trotskyite essay with the title, "Trotsky on substitutionism," and substitutionism (of which the 1924 speech is cited as an example) is something very familiar to American lawyers.  The mode of thought signified by that unwieldy name is drummed into us in law school, and few lawyers question it thereafter. 

According to Yigael Gluckstein / Tony Cliff, 

 Quite early in his political activity, when only 24 years old, Trotsky prophesied that Lenin’s conception of party organisation must lead to a situation in which the party would “substitute itself for the working classes”, act as proxy in their name and on their behalf, regardless of what the workers thought or wanted.

Lenin’s conception would lead to a state of affairs in which “the organisation of the party substitutes itself for the party as a whole; then the Central Committee substitutes itself for the organisation; and finally the ‘dictator’ substitutes himself for the Central Committee”.

Stalin, of course, proved Trotsky right.

American lawyers do it differently: we substitute "majority opinions of the Supreme Court" for "the Constitution."  In practical terms, we accept the Court is the Constitution: the meaning of the Constitution really does change with each new opinion coming out of that mausoleum-shaped pile of marble - even when accepting the legitimacy of the new doctrine means accepting the illegitimacy of the Court's previous doctrine.   The Court is serially infallible.

Each of the state supreme courts has similarly, if less-convincingly, tried to meld its identity with that of its state's constitution.  And lawyers, like the surviving remnant of Stalin's Central Committee, are sufficiently intimidated that we act as though we really think Chiffon is butter.

The cultural illiteracy of lawyers, a highly-educated and hyper-articulate lot, is a mystery to me.  How can  intelligent people know so much and so little at the same time?   Take, for example, Chief Justice Rehnquist quoting Iago, literature's greatest lying defamer, to demonstrate the preciousness of reputation. 

Shakespeare thought he was being ironic, making the groundlings shout, "Don't listen to him!", and demonstrating how overblown rhetoric can contribute to a sensible man losing his senses.  (Who honestly believes his or her purse is "trash"?)  But our Chief Justice proved as gullible as Othello himself.

The latest example comes from an ABA Committee: "A criminal conviction is, in a very real sense, a 'mark of Cain,' which sets its bearer permanently and indelibly apart from the rest of society."   The committee's sole cited  source for that allusion was a newspaper article by blogger Webb "I shoulda stayed a judge" Hubbell (whose notoriety, it might be argued, makes his experience a wee bit atypical among convicted felons, and whose credibility, one might have thought, would be relatively low among lawyers, in particular). 

The committee didn't cite to the other, better-known source for the phrase: 

 And the LORD said unto him, Therefore whosoever slayeth Cain, vengeance shall be taken on him sevenfold. And the LORD set a mark upon Cain, lest any finding him should kill him.

Or, if Tyndale is too 16th-century for your taste, here's the New International Version:

Then the Lord put a mark on Cain so that no one who found him would kill him.

The Contemporary English Version (a/k/a Today's English Version) may win the award as the clearest of all:

So the LORD put a mark on Cain to warn everyone not to kill him.

The "mark of Cain" was placed upon its bearer to protect him, not to cast him out from society.  The protection was necessary because he was already set apart from the rest of society ("a fugitive and a vagabond shalt thou be in the earth"). 

So when the ABA committee said that a criminal record is "in a very real sense, a 'mark of Cain,'" it was saying the opposite of what it meant.   Furthermore, since the original mark was, you know, a mark (here's a variety of translations of 'owth from the Hebrew), the committee was using "in a very real sense" to mean "figuratively speaking" - a wordier version of the illiterate use of "literally" as an intensifier. 

The committee's proposal was to seal all criminal court records, in defiance of the sixth amendment's guarantee of a public trial:

The commission wanted the ABA to favor legislation at all levels, "to the extent permitted by the First Amendment," to restrict access to records of dismissed or acquitted indictments, and records of past convictions after a period of time, to law enforcement agencies only.

Now, even someone as commercially-inept as myself can see that if the government records were sealed after initially being made public, a private market would instantly develop.  The committee's proposal would  make criminal records as unreliable, as difficult to correct, and as routinely relied upon as credit reports are today.  (Hey, but you could hire a lawyer to clear up the misunderstandings!)

But its absurdity is the least-interesting thing about the proposal.  Like Whitman, it contained multitudes.   It was  an anthology of the modern American judiciary's greatest hits.  First, there's the preference for constructed reality over truth.  The whole point of the proposal, after all, was to prevent people from discovering truthful information, and instead to trick them into believing in an alternative reality - exactly what criminal court judges do to juries when they suppress or otherwise exclude relevant evidence.  Truth is not a legal value.

Second:  But above all else, truth about the legal system is to be tightly-controlled.  The people shouldn't be told more than is good for them.  It's more important for the judiciary to have a good reputation than to deserve one.  (See post 272 and post 287.)   So information about what actually goes on in one-third of the government needs to be parceled out on a need-to-know basis.  And, tcha, you know what? - you don't need to know.

Third: There is no reality outside of the courtroom.  If a person is found not guilty of embezzlement, that means the person didn't embezzle.  Therefore, if a prospective employer declines to hire the acquitted embezzler to keep the company's books, it's "unfair discrimination", and drastic steps must be taken to ensure that future decisions are based on less information. 

Fourth:  The job of the legal profession, whether acting through its judges or its trade associations, is to control the behavior of non-lawyers.  Specifically, its job is to prevent people from acting in ways that the people consider rational.  That's why, for example, relevant evidence is concealed from juries - to prevent them from drawing rational conclusions from it.  (See post 40.)  So if a person hiring a bookkeeper would think it rational to consider whether the applicant had a history of arrests for embezzlement, then the legal profession's job is to prevent the person from becoming aware of that fact.

Fifth:  So long as you profess your noble intentions, unintended consequences are of no concern.  Since the committee wanted to stop one type of discrimination, and stopping discrimination is good, therefore it simply didn't matter what other effects its proposal would have had.   In the same way, allowing a person to get away with raping and murdering a child, for example, is trivial in comparison to the glory of advancing an important principle - even if the principle in question had to be invented on the spot.

Sixth:  All decisions of significance to the legal system are made by legal professionals.  If a decision is made by anyone else - say, a prospective employer or landlord - then, by definition, it's not something the legal system needs to respect.  That's what the committee was saying when it proposed that the records be sealed "to the extent permitted by the First Amendment."  They meant: to the extent permitted by judges interpreting the first amendment, which is the same as saying: to the extent permitted by judges, period. 

The ABA tells us: "A study in Washington and Arizona found 19 percent of lawyers suffer from alcoholism, and another 3 percent are addicted to cocaine and other drugs—a cumulative 22 percent rate of addiction."  The article continues: "These numbers are staggering."    The Oklahoma Bar pegs the addiction rate at 15%, while the Ohio Bar says it rises to 25% after 20 years in practice (insert rude Cleveland joke here) (or, perhaps, Oklahoma Baptist joke ...).

One theory is that the high rate of substance abuse in the profession is related to lawyers being constantly bombarded with depressing statistics about the profession.  Another theory, which I first encountered in a Steven Brill column in American Lawyer probably about 18 years ago, is that the sort of people who do exceptionally well in biology class get streamed into medical school at a young age.  But the sort of people who do exceptionally well in English and history get streamed into ...

Well, if they're smart and lucky, or find a sympathetic mentor, or have a real gift for brown-nosing, they might get to spend four years teaching undergraduates for almost enough money to pay the interest on their student loans.  At some point in their grad school careers, they look up from grading English 101 papers long enough to realize that the only well-paid profession in which their skills of research, writing and passing oral exams might actually be useful is ...  (Cue the quavering violins and cut to picture of sinister clouds scudding across the full moon.) 

So a whole bunch of bright, high-achieving people, used to being the best in the class at whatever they do, wind up in a field they have essentially no interest in.  No wonder studies show law students start the first year in a relatively normal state of mind, and finish it with rates of depression several times the national average.

Of course, there might be a connection to the fact that the law is the only profession in which entering students are subject to hazing by the teachers.  They can tell us it's the Socratic method all they want, but they still don't remind anyone of Socrates.  It's ritual abuse - hazing by another name.

My first-year contracts teacher at the University of New Mexico, where I began law school,  liked to ask, "Clear as mud?  Good."  He told us "consideration" was such a difficult concept that we would have to wait for an advanced class to approach it.  Now, for those spared the misery of first-year contracts classes, I can tell you that "consideration" means nothing at all except giving something of value in exchange for value received.  It's what distinguishes a sale from a gift.   The concept takes longer to explain than to grasp.  The teacher was just bullying us, enlisting us as unwilling extras in his private fantasy life, the one in which he possessed a formidable intelligence.

Years later the professor went into private practice in Albuquerque.  I knew a lawyer who briefly worked for him.  She said he was constantly upset with her either for (1) doing things without permission, or (2) failing to anticipate what he wanted her to do.  If she turned right, she should have turned left.  If she looked up, she should have looked down.  After a short and no doubt depressing time, she realized she was living in a permanent first-year contracts class, a hell remarkably similar to that imagined by Flann O'Brien in The Third Policeman.

But after hearing a talk by the phenomenal saxophonist James Carter - who can do everything that's ever been done with a saxophone, and quite a bit more besides (he channels Hendrix through his tenor) - I think I may have found another theory about the chronic unhappiness of so many lawyers.

Carter said that he believed there was no divide between music and life.  They are one and the same.  Lawyers, by contrast, are trained to think in categories, to slice up reality into chunks.  Most legal argument isn't reasoning, although judges call it that, but categorization: the issue is not this, but that.  The important fact isn't that, but this.  (See post 137.)  The lawyer's job is to argue on behalf of others, which means trying to be convincing even when saying what we don't believe, or even know is false.  (See post 180.)  None of it has much to do with real life.

The best advice I received as a young associate was to leave my professional skills at the office.  When you catch yourself cross-examining your spouse, you've got problems.  So does your spouse, but his/her problem requires only another lawyer's touch to solve.

Listening to Carter, a genuine musical genius who also comes across as both funny and approachable, it occurred me to that perhaps the deliberate dis-integration of the legal life, the consciously-willed submergence of identity, might go a long way to explain all those pickled lawyer livers.