28 Oct Lawyers Rule America
As a former attorney, I must admit I kind of like the idea of lawyers running things. We are smart, logical, well-educated, level-headed, and good looking. (Well, maybe not all of those characteristics fit all of us.)
But a country can get overwhelmed by legal investigations, grand jury indictments, criminal charges, multi-billion-dollar lawsuits, injunctions, appeals, and general politicization of the judicial system.
When I saw a media headline – like the one above – saying that attorneys “rule” our country, it sounded like bad news. It is.
The Judge’s Job
I want to say up front that judges are not to blame for being involved in approving or stopping political action, or for presiding over cases involving politicians. I don’t even really think “judicial activism” is much of a thing. Judges rule on issues that are brought to them for decision. They certainly do not rule the way you or I want them to in every case (believe me, based on 32 years in courtrooms), but the judges are not the ones who decide whether cases are filed or which issues are presented for decision.
It is not even the lawyers per se who are solely responsible for the problem that is political litigation. It is the individuals who commit crimes and must be charged, or the politicians who demand that charges be brought, or the plaintiffs who file lawsuits, or the defendants who breach their civil duties and must be sued. That is who is to blame for the scourge of political litigation.
The Problem with Unnecessary Litigation
Why do I say all of this is a problem, a scourge? It is because imprudent or excessive litigation reduces the credibility of, and trust in, everyone involved in the process. The great idea that is the United States of America depends on mutual respect for our laws, our prosecutors, the defense, our judges, jurors, and all three constitutional branches. Unity is required.
In my experience as a courtroom lawyer, nobody ever found unity in a courtroom. None of my cases were criminal and only a few involved the feds as a party, but I seriously doubt that togetherness is promoted through investigations, indictments, impeachments, injunctions, and impossibly-large-damages claims launched by or at federal politicians.
In the U.S. Supreme Court alone this year, decisions will need to be rendered about the legality of tariffs, the ability to sack heads of independent agencies and the Federal Reserve, the abolishment of birthright citizenship for everyone born on U.S. soil, racial gerrymandering, and campaign finance limits, among other politically charged disputes. This is where our country needs the high court to be respected, and trusted to weigh the facts and law impartially and thoroughly.
Congress Needs to Legislate
Political litigation often results when the U.S. Congress fails to do its job. As I wrote in “Infant to Congress, the Word is Legislate” (Jan. 17, 2023), our senators and representatives should focus less on investigation and more on drafting, debating, approving (or rejecting), and repealing actual laws. It is the Legislative Branch, after all, as described in Article I of the U.S. Constitution.
Why is it best when each branch of the federal government does its job? First, for reasons too numerous to enumerate here, federal action is so much more democratic (with a small d) when taken in a 535-seat capitol building than in an egg-shaped office or a judicial bench with one chair (or even a three-person appeals bench or the Supreme Court with nine seats). Remember, none of the federal benches are assigned by the voting public.
The second rationale asks which sounds more trustworthy: (A) Congress passes a law and the president signs it; or (B) the administration takes (or announces) action, largely through executive orders or on social media; the administration immediately gets sued; lower courts temporarily halt the action; the administration appeals on procedural grounds; and both sides declare “victory” at various points along the way? Meanwhile, the public has little idea what, if anything, really happened that was substantive.
Lawfare
In addition to the quantity of litigation, there is the problem of the motives behind political litigation. Lawfare, which is a newish term popularized during the criminal cases against President Trump, is legal action as part of a partisan campaign.
The first political “case” of any kind that I recall is the Watergate impeachment of Richard Nixon. That was followed by the impeachment proceedings against Bill Clinton. Next was Al Gore’s attempt to reverse the 2000 election count in Florida – hanging chads and all that. Another impeachment case followed in 2020, based on a phone call from President Trump to Ukraine’s president requesting an investigation into the Biden family. Soon, we saw the many lawsuits Donald Trump brought to challenge the 2020 election results. Those cases were followed quickly by yet another impeachment in 2021 after his actions and inactions related to the January 6 attack on the U.S. Capitol Building. Which of these cases were “lawfare” is in the eye of the beholder.
We also have another genre of political litigation, which is when a president initiates legal proceedings. This includes President Trump’s personal lawsuits and the use of the Justice Department as “his” lawyers to do his bidding. For example, in a recent social media message to Attorney General Pam Bondi, the president wrote: “What about Comey, Adam ‘Shifty’ Schiff, Leticia?? They’re all guilty as hell, but nothing is going to be done. …They impeached me twice, and indicted me (5 times!), over nothing. Justice must be served, now!!!” Indictments followed.
Enough already.
Written by Quentin R. Wittrock, founder of Principle Based Politics.
Look for his periodic posts, as this blog and Extremely Non-Extreme explore and promote the ideas of principles and non-extremism in politics.
Principle Based Politics does not endorse or support any particular political candidate or party.
Gary Russell
Posted at 14:29h, 29 OctoberQuentin – great summary and I liked the podcast with Judge Pinski. Open and frank discussion.
Not being a lawyer or perhaps even a scholar of constitutional history, I prefer when the country is run by experienced leaders. Our “better” presidents have usually been governors. They know how to lead large organizations effectively.
I may be in the minority on this – but I like the idea of the federal government being run like a business – including balanced budgets (P&L) with the people serving as the overall Board of Directors who have the power to oust the CEO at the end of the term (saving congressional impeachment only for high crimes against the state). This is why Ross Perot and Carly Fiorina were appealing candidates.
I mentioned this in previous posts here – but it’s fascinating to watch what’s going on right now. The electorate voted for someone to “speed things up” – considerably speed things up without congress. The founders set up our legislative branch to intentionally have things be adversarial, with lots of dissent and specifically to go slow so that only the “best” ideas got enacted. Then, along the way, we looked to Gov’t to solve pain points in the name of “public good”. The New Deal and all the agencies created during FDR probably is where the most damage happened and now it’s hard to reverse it. To me, this is what 2016/2020/2024 have all been about – starting perhaps with the Tea Party back in the 2008-ish timeframe.
Trump and MAGA are effectively telling everyone to “get out of the way” while they dismantle things. Some are probably worth dismantling and others are harder to watch because they have been part of our fabric for so long. Throw in the obnoxious tone that rides along with all of this and you get massive division and strong protests.
No matter which side one falls on this debate, it’s a major test of the American Experiment we have seen – perhaps ever. I am curious what will survive the demolition. Not the east wing – but the institutions that have been built.
Quentin
Posted at 20:28h, 29 OctoberGood analysis. The resort to litigation and criminal charges to resolve the conflict is part of the same overriding “tone,” “speeding up,” and “tearing down” trauma. Litigation is an act of desperation.
DKnight
Posted at 18:42h, 29 OctoberWe need more libertarianism. Many republicans will disagree with me–But–we have too many cops, too many lawyers, too many criminal laws, too many laws in general, too many prosecutors, and, too many people–especially too many minorities–in jail/prison. Serious crimes against the person and repeat offenders must be prosecuted. The death penalty is fine for some thugs. Still, we prosecute too many people. Agree–litigiousness is caused by the litigants more than the lawyers. Yet, lawyers can definitely be part of the problem. Disagree about judges. There are activist judges and unwise judges all over the place. I have not litigated as much as you, but many years ago, I did handle a fair amount of business litigation. In my experience, judges are often clueless and defensive when handling business disputes. I occasionally still assist or consult in property and business disputes–and often encounter judges and mediators that have no idea about how the business or transactional world actually works. (I recently spent hours explaining a complex commercial loan during a mediation, to a retired judge who was the mediator in a case–and he seemed lost.) There are many high profile examples of bad judges. Judge Merchan in NYC should never preside over a case again–ever. I suspect you are too close to the “club”–where lawyers and judges hesitate to criticize or acknowledge incompetency or bad conduct. Supreme Court Justice Roberts has this problem–he gets upset when judges and lawyers are criticized. Give me a break–constructive criticism is essential to maintaining proper systems. Lawfare–I listened to your podcast with the former judge–and checked your post above. The approach of you and the judge is one-sided. The Dems/Garland/Biden/Director Wray/Jack Smith–and all those ridiculous cases against Orange Man helped him get elected. Lawfare is worse from the left than the right. Why? Because the leftists leverage government for power–and Jack Smith & Co–were the government power under Biden. Obama started this corrupt approach and Biden followed suit. Should Trump direct prosecutions?–no. The justice department should handle those decisions with professionalism. But Trump did not start this–and his administration is winning in court a lot more than they are losing. Hopefully lawfare can cease from both sides. Good luck.
Quentin
Posted at 18:53h, 29 OctoberCertainly there are “bad judges” in that they make mistaken rulings. My point was that they don’t pick the cases and they aren’t as “activist” as both sides accuse them of being after they have lost.
I agree with you that the Democratic lawfare against Donald Trump backfired badly. To this day, Republicans stand by him, excusing his angry, selfish, corrupt words and actions as justified by the way “they (referring to Democratic prosecutors) mistreated him.”
Gary Russell
Posted at 19:40h, 29 OctoberAgree with Darren’s “libertarian” comment although many would see it as a shock to the “public good” aspect of what we’ve become.