Tips for the truce

Over at Purple Wisconsin, Alex Runner invokes the famous Christmas Truce of 1914 as a way to think - just a little - about our political wars. If combatants in one of the most brutal and perplexing wars in human history could manage to treat each other as human beings, why can't we?

I've endorsed the sentiment on a number of occasions, what strikes me as more difficult is describing how we might go about a kinder and gentler debate.  While our political differences are not as stark as they might seem to be, they do matter.  And I understand that, while 30 years as a lawyer have taught me how to go out for a drink with someone I've fought with all day (it's in the game), others are not as acclimated to staying between the white lines as lawyers are trained to be.

But here are a few ideas.

If you think that your political opponent is evil, you are probably wrong. Most liberals are not fanatical communists or amoral libertines. Most conservatives are not heartless and greedy or censorious  prudes. People differ in the priority that they place on often competing, but commonly shared, values - say liberty v. equality - and in their judgments on the way that the world works and what must be done to serve those values. Beware of responding to a cartoon that you have created, as opposed to real people and the arguments that they make.

If you think that your political opponent is corrupt, you are probably wrong. Here's how I know. Most on the left believe that wealthy conservative donors are out for the main chance; motivated solely by the desire to keep what they have and get more. In fact, most of these people are well beyond personal concern about what American politics can do to them.  What motivates them is a sincere belief that certain policies will harm, while others will help, their country. I'll assume - until I'm shown otherwise - that the other side is similarly sincere.

Resist the desire to destroy your political opponent.  One of the most treacherous developments in our politics is the irresponsibility with which certain people have attempted to criminalize political differences. (Yes, I am talking about the John Doe, but conservatives are not without sin here.)  Another is to place the most uncharitable - and often unreasonable - interpretation on something that a person is said in order to label them as "racist," "homophobic," "un-American" or "pro-criminal."  Most of us are none of these things. Cut it out.

Acknowledge when the other side has a point.  The left, in my view, overstates income inequality and does not have a strong set of ideas to address the inequality that does exist. But concern for middle class progress and for the poor is not "anti-conservative" or even incompatible with free markets and economic liberty. But addressing how this can be so requires acknowledging the problem to be addressed.  Liberals who assume away the difficulty in presuming that government actors are somehow more virtuous or prescient than private persons acting in markets have essentially skipped the debate.

Understand why these things are hard. Two reasons. We are all subject to confirmation bias. I am far more likely to see the flaws in the other side's arguments and assume the worse about my opponent's motivation. I can't prevent that but I can minimize.  More fundamentally, political enmity and aggressiveness are phenomena that feed on themselves. If my opponent treats our fight as no holds barred, I can hardly abide by the Marquis of Queensbury rules.  If you do unto others, others will have no choice but to do unto you.

Take things in stride.  Even a kinder and gentler argument is an argument. People will take positions and say things that may make you want to take offense. Try not to. If you want to add a little zest now and then, accept it from the other side. As I say, it's in the game.

Be realistic.  I don't expect to dislike lawyers on the other side or carry our battles outside the litigation. But I do expect to have a battle. Just as clients really have opposing interests, our political battles reflect real differences of opinion about things that matter and cannot be dismissed as mere "partisanship." Respect does not imply agreement. It is simply not the case that, if we put "politics" aside, we'll magically agree on things.

Cross posted at Purple Wisconsin.

One Wisconsin Now: Nelson Mandela's South Africa Assaults Voter Rights

Brian Fraley points out that One Wisconsin Now has been caught in an embarassing bout of cluelessness.

OWN used the occasion of Nelson Mandela's death to make a cheap political point, praising Mandela as a champion of democracy and contrasting him with Governor Walker and his supposed "assault" on the right to vote; presumably a reference to the requirement that voters present a photo ID and proposals for stricter registration rules.

Mandela was a champion of democracy but South Africa requires voters to have an identification card to vote and has far more stringent registration rules than Republicans in Wisconsin have ever proposed. 

To get an identification card in South Africa, you must submit two identical color photographs and "[a] certified copy of your Birth certificate or reference book or a copy of the old Transkei, Bophutatswana, Venda or Ciskei homelands identity or travel documents." Having to obtain a birth certificate to get a photo identification card is, of course, regarded by OWN and other opponents of voter ID as tantamount to fascism. Who knew that Mandela's South Africa was so Republican?

But OWN isn't the only one to suffer from foot in mouth disease on this.  Jesse Jackson made the same blunder. 

It would have been a tad more classy to mark the passing of a great man without trying to turn it into a sophmoric talking point. Maybe next time.

Cross posted at Purple Wisconsin

Recusal and Investigations

My column on recusal and the reported John Doe proceeding can be found here. (Subscription required.)

Let me revise and extend my remarks.  The question is presented is whether justices on the state supreme court would have to recuse themselves in a case involving their supporters - in this case, conservative justices whose campaigns may have benefited from issue advocacy by conservative advocacy groups who may now be under investigation for activities undertaken in other elections. 

it is black letter law that recusal is not required simply because a litigant has contributed to or engaged in independent expenditures that may have benefited the campaign of a justice.  My view is while recusal in such circumstances may be required in extreme cases - say when there has been extraordinary and pivotal support fromm a non-ideological organization with a significant matter pending before the court at the time that the support is given - an aggressive approach to recusal on a collegial law developing court of last resort is inconsistent with the idea of judicial elections.  Because we are committed to electing judges in Wisconsin (almost everyone agrees that any proposal to abolish such elections would be dead on arrival), we can't take an expansive approach to recusal.

Lest you think I am adopting this position because the immediate question involves the recusal of conservative judges in a John Doe investigation rumored to be targetting conservative advocay organizations, I first developed this position in a law review published several years ago.  Insomniacs can find it here.

There are two problems with the argument for recusal. The first is that it has no stopping point. If justices who have benefitted from the activities of, say, conervative advocacy groups must recuse, then why wouldn't those who may be harmed by those activities also be required to recuse themselves.  If judges supported by a group like WMC must step down in a case involving WMC, then why wouldn't judges opposed by the group also be required to step aside.

What is good for the goose is good for the gander. Why should those justices who have traditionally benn supported by public employee unions, for example, sit on cases involving challenges to Act 10.

Second, it is no good to say that you want everyone to recuse as long as we have judicial elections and a First Amendment that protects the right of persons to be heard on the issues and candidates involved in those elections.  Judicial elections are predicated on the notion that our desire for judicial independence must be balanced agains the need for judicial accountability and that we trust both the public and judges to, on the one hand, choose wisely on the basis of legitimate issues and, on the other, to cease campaign mode when it is time to assume the bench.

You may disagree with those notions but, if you do, the answer is not to advocate for aggressive recusal standards, but to seek a different method of judicial selection.

Cross posted at Purple Wisconsin.