How Progressives in Law Talk to America

By Reuben Guttman and Paul Zwier[1]

 

“Originalism is a pretext to justify an ultraconservative agenda.”[2]“Textualism is pretext to discount context.” “The appointment of Judge Brett Kavanaugh to the Supreme Court is a step toward the demise of the administrative state.”

We are progressives, and these are lines that we have picked up from like-minded colleagues over the past several months. We progressives seem to find comfort in encapsulating our views in thematic phrases or conclusions; indeed, we even collect and covet new ones that come our way.  How many of us have used the phrase “weaponizing the First Amendment” since Supreme Court Justice Elena Kagan coined that phrase in her Janus dissent?[3]

We as progressives seem to 1) view the current state-of-affairs in the Trump era as a crisis, or at least the dismal end of liberal democracy, 2) complain that the rule of law is in jeopardy, and 3) act bewildered that all Americans do not see things as we do.

Yet, perhaps this third point is precisely because we speak in a language of contempt that is only familiar to those in our “like-minded echo chamber.” And, even among those in the echo chamber, we wonder whether the words we use have either lost their meaning or do not adequately capture the principles they represent.

And who exactly is our audience?  Are we trying to persuade Trump supporters to change their minds? Or are we trying to persuade independents who voted for Barack Obama, but then voted for Trump in frustration and anger over a number of real concerns: wage disparities, failed financial products that wreaked havoc on unwitting borrowers, the ever-increasing costs of health care and education, and/or the opioid crisis? Has our rhetoric ignored the grade school and high school classrooms where students formulate their views on the role of government without understanding the difficult relationship between liberty and equality?[4]

Of course in this Botox era of quick fix solutions, how does the complexity of our beliefs compete with simple, but completely wrong and racist, quick fixes like blaming our woes on immigrants and simply summarizing our goals in the phrase “Make America Great Again”? Our striving to learn from the messaging of those who have a different vision for the world has only confused our message.

For example, we call ourselves progressive, but what does that really mean?  Does it mean that we still believe in liberal democracy —that there is room for both majority backed solutions and for liberty (that is, plenty of room for individuals to define for themselves what gives their lives meaning)? What has exactly changed in our society and its values that warrant change (progress)?  What makes us want to abandon old ways in favor of new ones? While progressives favor change, it is not for change’s sake. We worry about the unintended consequences of any policy or program. We must therefore leave plenty of room in our rhetoric for balancing the interests of individuals with different needs, experiences, and perspectives. In sum, our challenge is to work toward the more perfect provision of health care, public education and protections that afford equality of opportunity; and at the same time we must also protect personal values with regard to religion, leisure time and other liberties.

Of course, the court plays a vital role in balancing between need for change and protections of liberty. The courts balance and adjust liberty and freedom of self-determination, but also of equality and justice, including a fair chance for success, for all. However, it is in an oral adversarial process of combatting narratives where the important balancing and weighing takes place. It is up to trial lawyers to convince a jury or other body, but we must first understand our audience to do so effectively.

As trial lawyers who are in the business of convincing others, we have learned the hard way that not everyone sees the world as we do, speaks our language, or attaches the same meaning to words and phrases that we use. For us, it is an occupational hazard to not be in constant exploration of how others view the world. We confess that taxi drivers, parking attendants, the person checking us in at the hotel, and those we have represented (from salaried to professional workers) are all part of our ever-expanding and continuing focus group. Though one of us dabbles in teaching law as an adjunct faculty member, and one of us is a full-time law school faculty member, our students and clients have been our teachers.

Among the members of our focus group, one of us has been thinking about the Lyft driver who shuttled him home from the airport recently. The Lyft driver is a Navy veteran who spent ten years as a bookkeeper at the Federal Bureau of Investigations (FBI) Quantico facility and has a son who is a police officer in California. With no pension to speak of and struggling to make ends meet, surely his views on the state of the nation had to be like ours. They were not. He said that President Donald Trump’s tax bill put more money in his pocket; getting along with Russia is a good thing (so why all the commotion?); most immigrants are hardworking, but people should not be sneaking across the border; and Hillary Clinton had her foibles, so why can’t the Democrats cut Trump some slack? He was and will continue to be a Trump supporter. He is one of the people that we progressives would have to win over, and yet, I wonder whether we speak in a language that is readily accessible or relatable to him.

Still the chaos and narcissism coming from the White House make for tough sailing for progressives.  It is hard for some navigating between kindness, condescension, and contempt. Our tendency is to discuss what we believe a Kavanaugh court might mean. Or the unfairness of not letting Obama fill a seat on the Supreme Court during the last year of his term. Or the self-absorption of a president who shows little concern about Vladimir Putin hacking the 2016 presidential election, his own threat to rule of law in his tweets condemning Attorney General Jeff Sessions’ continuation of the Russia investigation, his removal of former FBI Director James Comey, and/or his insistence on “no collusion,” but that even if he colluded (that is, coordinated or otherwise assisted the Russians in interfering with the election), it is not a crime.[5]  We want to ask, “When did a Trump voter’s support turn into support for a Manchurian candidate?”  Our responses sometimes stray from concerns regarding our shared vulnerabilities, and are often unkind to the Lyft Driver and others who have graced our paths over the years. Even the legal scholars analyzing the laws that regulate us often show too little care for the public at large.  And – of course it is tempting to join the politicians who see a fix in energizing their voting base, which can boil down to bestowing benefits or promoting and assuaging fears with little regard to the facts at issue.

Among these groups, it is the progressive lawyers and legal scholars who are seemingly the best hope to play the role as honest brokers who can provide understandable insight and guidance to those who cast votes.  Indeed, there are many progressive scholars who do this well. But those who do so must do more than simply present the data, or show the illogic of Trump’s positions. Such arguments are too susceptible to the “what about” response (“What about Bill Clinton? He had an affair while he was in the White House.”) or to an anti-intellectualism that makes for an easy dismissal of the academic as being part of the elite. No, we as progressives must draw on all of our classical rhetorical skills in making the right case to the right audience.

Like any trial lawyer appealing to a jury in closing argument, political rhetoric that seeks to persuade the fair minded, or independent, citizen must pay attention to several principles.  The first principle is credibility.[6]  A trial lawyer’s job is to demonstrate credibility from the start of jury selection through the end of the trial. For the politician, it is a life-long endeavor. For the opinion writer or legal commentator, credibility can be demonstrated by modest reference to one’s careers and personal experiences with the subject matter.

The second principle is posing a balanced argument. Does the candidate recognize genuine fears and concerns that exist in the minds of the audience? What are the legitimate concerns about wealth disparity, immigration, health care, regulation, and education that need to be “heard” and restated before moving to reasonable, workable solutions based on facts? Does the argument appeal to more than one type of the authority—to the law, to economics, to predictions based in data (appropriately detailed), but also to values and common sense?  Is the argument multifaceted, so if one basis is not understood, others will be offered to satisfy everyone?  And does it build, like a John Oliver presentation—with more than just a one liner, or a “gotcha”—with a light touch, some humor, and a sincere suggestion for action?  Does it take the time to use history, or even analogies drawn from songs, sayings, and sacred texts, to make the point?

The third principle is related to passion. Is the speaker’s passion appropriate—not too shrill, not too fast, not too loud, and not too angry? Does the argument contain tactical word emphasis and variation in tone to make it interesting and keep the audience from feeling attacked, and maintain sincerity throughout its delivery, like a skilled musician performing a difficult concerto?

The final principle involves genuine displaying respect and trust for the audience. Does the final appeal respect the intelligence of the audience by not telling the audience what to do, but by asking each one to decide from themselves to do what is right, and what they will be proud to tell their children they did, some years in the future?[7]

We call on our fellow academics to do more blogging and opinion writing. At the end of the day, it is the theorists in consultation with the practitioners who will study the chaos of the Trump administration, perhaps even coining new terms to capture what is happening. They look at individual moves and acts, but see how they are part of a bigger movement or shift in theory. Is the firing of Sessions like Nixon’s Saturday Night Massacre? Is it the move toward totalitarianism, in the name of nationalism? Is it the end of democracy in favor of a dictator? What does it mean about a person’s character, who even if caught lying cheating or stealing, or personally gaining from his office, will put himself above the law?  Is it better to invoke history?  Are we like Germans living in between World War I and World War II, in stifling poverty and unemployment, ready to blame Jews for the nation’s problems? If we see these conditions, we cannot stand down or escape to our regular scholarship. We must engage and use all the tools that our legal training has provided to us.

For now, the nation is in trouble. In words progressives understand, “the rule of law is in jeopardy.” With a critical Supreme Court nomination pending before the Senate and upcoming national elections slated for November, the big question is how we get more people to understand the nation’s peril. Maybe it is just time to really listen to each other and begin to speak in a common language. Despite these trying times, we must follow the advice that Ruth Bader Ginsberg’s mother gave her as a little girl, that showing anger never advances your cause. Instead, we must remember to take the time to establish our credibility and concede the human emotions that need be conceded. We need to be both balanced and precise in the words that we use.  We need to be patient—our work is conversation by conversation, speech by speech, blog by blog. Don’t we need to continue to trust democracy—that rational discourse, step by step and case by case, will bend the arc of history toward justice?

 

[1] Reuben Guttman practices law with Guttman, Buschner & Brooks, PLLC, is a Board Member of the American Constitution Society, and an Adjunct Professor and Senior Fellow at Emory Law School; Paul Zwier is a Professor at Emory Law School and Director of the Emory Law Center for Advocacy and Dispute Resolution.

[2] Thomas Jefferson made the case for progressives against originalism in his letter to Samuel Kercheval:

Some men look at constitutions with sanctimonious reverence, and deem them like the arc of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I knew that age well; I belonged to it, and labored with it. It deserved well of its country. It was very like the present, but without the experience of the present; and forty years of experience in government is worth a century of book-reading; and this they would say themselves, were they to rise from the dead. I am certainly not an advocate for frequent and untried changes in laws and constitutions. I think moderate imperfections had better be borne with; because, when once known, we accommodate ourselves to them, and find practical means of correcting their ill effects. But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors. It is this preposterous idea which has lately deluged Europe in blood. Their monarchs, instead of wisely yielding to the gradual change of circumstances, of favoring progressive accommodation to progressive improvement, have clung to old abuses, entrenched themselves behind steady habits, and obliged their subjects to seek through blood and violence rash and ruinous innovations, which, had they been referred to the peaceful deliberations and collected wisdom of the nation, would have been put into acceptable and salutary forms. Let us follow no such examples, nor weakly believe that one generation is not as capable as another of taking care of itself, and of ordering its own affairs.

Letter from Thomas Jefferson to Samuel Kercheval (July 12, 1816) (on file with Library of Cong.).

[3] Janus v. AFSCME, Council 31, 138 S. Ct. 2448, 2501 (2018) (Kagan, J., dissenting).

[4] See Arlie Russell Hochschild,Strangers in their Own Land; Anger and Mourning On the American Right, A Journey in the Heart of Our Political Divide 9 (2016). See also CNN Politics, Exit Polls, CNN  (Nov. 23, 3016, 11:58 a.m.), https://www.cnn.com/election/2016/results/exit-polls (describing reasons Trump supporters provided for electing Trump).

[5] See Stephen Collinson et al., Trump Fires FBI Director James Comey, CNN (May 10, 2017, 9:44 A.M.), https://www.cnn.com/2017/05/09/politics/james-comey-fbi-trump-white-out/index.html; Philip Ewing, Trump Escalates Feud Against Jeff Sessions with New Sarcastic Tweets, NPR (Aug. 24, 2018, 11:23 A.M.), https://www.npr.org/2018/08/24/641543624/trump-escalates-feud-against-jeff-sessions-with-new-sarcastic-tweets; David Jackson, Donald Trump Says Collusion ‘Is Not a Crime,’ Insists His Campaign Did Not Collude with Russia, USA Today (July 31, 2018, 4:50 P.M.), https://www.usatoday.com/story/news/politics/2018/07/31/donald-trump-collusion-not-crime-no-collusion-russia/869821002/.

[6] See generally Aristotle, On Rhetoric: A Theory of civil Discourse (George A. Kennedy ed., Oxford Univ. Press 1991). Of course, Secretary Clinton was credible to a majority of the population, and maybe, however unfair, had lost her credibility not to a majority of voters in key states. See Gregory Kreig, It’s Official: Clinton Swamps Trump in Popular Vote, CNN (Dec. 22, 2016, 5:34 A.M.), https://www.cnn.com/2016/12/21/politics/donald-trump-hillary-clinton-popular-vote-final-count/index.html.

[7] See Aristotle, On Rhetoric : A Theory of civil Discourse (George A. Kennedy ed., Oxford Univ. Press 1991). While some might see these as tactics or strategies, we, along with Aristotle, prefer to see them as virtues. Id. These are the virtues of the citizen performing his or her duty in the public square.