[Mb-civic] Why Lawyers Are Liars - Michael Kinsley - Washington Post Op-Ed

[William Swiggard]

Why Lawyers Are Liars
Apparently, It's All In a Life's Work

By Michael Kinsley
Friday, January 20, 2006; A17

As a loyal member -- well, as a member -- of the District of Columbia 
Bar, I am aware of the tension between advocacy and honesty. But until 
the recent controversies over Supreme Court nominees, I was unaware of 
the scope and depth of my professional obligation to avoid telling the 
truth. It apparently spans an entire career in the law.

Suppose you start your career as a Supreme Court law clerk. Chief 
Justice John Roberts clerked for his predecessor, William Rehnquist, who 
had clerked for Justice Robert Jackson in 1954, the year of Brown v. 
Board of Education . Rehnquist wrote Jackson a memo saying, "I think 
Plessy v. Ferguson [the precedent upholding racial segregation] was 
right and should be re-affirmed." Asked about this at his own 
confirmation hearings, Rehnquist said he was just writing what Jackson 
might say if Jackson favored upholding racial segregation, which Jackson 
did not and neither did Rehnquist, according to Rehnquist. This 
established the principle that you don't need to really believe anything 
you write as a Supreme Court clerk. The only alternative principle would 
be that Rehnquist was against Brown and a liar to boot.

So life goes on, and now you're a young lawyer applying for a job. Let's 
say you're in the Justice Department, and you want a promotion to deputy 
assistant attorney general. It's 1985, you're Sam Alito, and Ronald 
Reagan is president. You write that "the Constitution does not protect a 
right to an abortion," and you tout your past efforts to overturn Roe v. 
Wade . You say this is work "in which I personally believe very 
strongly." A non-lawyer might leap from this to the conclusion that in 
1985, at least, Alito opposed abortion and wanted to overturn Roe . But 
that is not the case at all. He told skeptical Democrats 20 years later 
that he was just "seeking a job." The scope of this "seeking a job" 
exception to the general obligation to tell the truth is not clear. Does 
it, for example, cover a nominee "seeking a job" as a Supreme Court justice?

Even when not seeking a job, it appears that Justice Department lawyers 
have responsibilities far weightier than telling the truth. Roberts also 
served in the Reagan Justice Department and wrote briefs taking the 
conservative side on a variety of hot issues such as abortion. He signed 
a brief declaring that Roe v. Wade was "wrongly decided and should be 
overruled." But, as the conservative Committee for Justice reassured 
liberals during Roberts's confirmation, "Roberts, as one of several 
attorneys on the brief for the government, was simply arguing the 
position of the United States, his client." Alito, in a similar job, 
described himself as a "line attorney," invoking an image of lawyers 
along a conveyor belt, tightening an argument here and adding a 
precedent there to whatever legal and moral claptrap came along.

Legal briefs filed for a client are one thing, but internal memos to a 
client are another. Or so you might think. But I'm afraid not. Roberts's 
defenders -- his defenders -- insisted during his confirmation that 
memos he wrote to his boss when he worked in the White House itself 
should not be taken seriously as a reflection of his true beliefs. The 
memos gave the appearance of urging the Reagan administration to take a 
more conservative line on issues such as school prayer and employment 
discrimination. But White House press secretary Scott McClellan revealed 
that these were actually Reagan's views already. "I think what those 
files show is a young White House staffer helping to provide legal 
analysis in support of the president's agenda, President Reagan's 
agenda." In other words, Roberts supplied reasons for views Reagan 
already held. Roberts was just a repairman, fixing views he didn't 
necessarily own.

When do lawyers become free to have their own agenda and say what they 
really think? Not when they leave the government and enter private 
practice. Roberts told the Senate Judiciary Committee that "the 
positions a lawyer presents on behalf of a client should not be ascribed 
to that lawyer." While true, this is a point that does not bear 
excessive emphasis. If the average potential juror knew that lawyers 
actually take pride in not believing what they say it could wreck the 
whole system.

What if that practicing lawyer should be appointed as a judge? Alito 
warned senators not to assume that the decisions of a lower federal 
court reflect a judge's true beliefs, because lesser judges are bound by 
rulings of the Supreme Court. And if that lower-court judge is nominated 
to join the Supremes? We all know that in the confirmation process, 
etiquette, if not ethics, requires evasion, if not outright lying, 
because to reveal any actual legal view would amount to "prejudging" 
potential cases.

And, finally, even Supreme Court justices are bound to some extent by 
the doctrine of stare decisis , which is the judicial equivalent of 
papal infallibility. Rulings lose the mystical authority they depend on 
when people start to get the idea they can be reversed at will. The 
actual power of stare decisis in restraining Supreme Court justices from 
saying and doing what they believe is unclear. The capstone untruth of a 
successful legal career is promising, under stare decisis , to suppress 
your true beliefs more than you really will.

http://www.washingtonpost.com/wp-dyn/content/article/2006/01/19/AR2006011902509.html?nav=hcmodule
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