Friday, January 20, 2006

"I'm Your Lawyer. Here's Exactly What You Want To Hear."

In what seems to be a soft-sell of the Alito nomination, Michael Kinsley argues that his anti-Roe memos should be taken as his providing the President with a legal basis for views the President already held:
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.
If he truly believes that, his piece should be titled "Why lawyers are useless" instead of "Why lawyers are liars". Now I will grant that there has been some real hackery in the Bush II White House, with lawyers presenting the most attenuated arguments to defend the indefensible, but those opinions were meant to provide the Bush II administration with plausible deniability when it was caught breaking the law. "Our lawyers said it was okay." It's something else entirely to suggest that a lawyer writing a memo in relation to existing case law should advocate the desired outcome rather than educating his bosses as to the actual state of the law. Kinsley continues,
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."
But there is a big difference between a lawyer's private thoughts and advice to a client, and what a lawyer might do or say when advocating for the client in court. A good lawyer will privately tell the client the state of the law, how to conform to the law, and the risks of trying to skirt a law - including considerations which weigh against what a client wants to do - but in court will present the strongest possible argument on behalf of his client, interpreting the law in the light most favorable to the client. The role of a lawyer who is advising a client is different from that of advocating for the client.

Kinsley reminds me of this lawyer joke:
A businessman was trying to choose a lawyer, but was being very careful about it. He scheduled appointments to interview three lawyers.

At the first lawyer's office, after an initial exchange of pleasantries, the businessman said, "Okay, let's get down to business. I have an important question for you, and I want you to think carefully before answering. How much is two plus two?"

The lawyer raised his eyebrows. "two plus two is four." The businessman thanked him for his time, and proceeded to his next appointment.

The second lawyer, who was also a CPA, seemed a bit more particular than the first lawyer. After an initial discussion, the businessman again announced that he had a very important question, and asked, "How much is two plus two?"

The second lawyer went over to a computer, and entered figures into a spreadsheet. "According to my calculations, two plus two is approximately four." The businessman thanked him for his time, and proceeded to his next appointment.

The third lawyer sat behind a big mahogany desk, and smoked a cigar. He seemed rather self-important as compared to the other two, but at the same time appeared to be much more successful. The businessman again announced, "I would like you to answer a very important question for me, before I decide whether I should use your services. How much is two plus two?"

The lawyer pulled the shades, locked the door to his office, and asked in a hushed voice, "How much do you want it to be?"
Kinsley is essentially arguing that the third type of lawyer is the norm and not the exception. Maybe Alito really does place himself in that third category, in which case Kinsley has convinced me that Alito does not belong on the Supreme Court.


  1. Uhhh... Don't you think there was more than a little irony and sarcasm in Kinsley's op-ed piece?

  2. I hope so. I would have to leave it to Kinsey, though, to clarify if he is describing the profession as many seem to actually perceive it. To me it seemed less an exercise in irony than a criticism of the legal profession (or at least that substantial portion of it that Kinsey sees as behaving as he described). And you know what? There are lawyers who behave exactly as Kinsey described, quite possibly including Rehnquist and Alito.

  3. Yes and yes again, whyz.ache.err, I'll own up to it. There is a ton of personal animus in my campaign to get the "smirking chimp", also known as "dum'ya botch", impeached. It's not at all like I don't have cause. For one thing, what he's peddling as, get this, "terrorist surveillance" ain't Shinola.

    I'm hoping you'll grant me the small favor of patience. I would like you, at first, to read straight through to the end of this text, without clicking on any of the enclosed hyperlinks.

    In case, you'd like to know, the hyperlink to your blog, specifically, "The Stopped Clock", is found at the third hyperlink on the list below ... ah, please remember, no clicking until AFTER reading the entire text.

    Perusing your blog, I believe I arrived at what is a reasonable inference. That is, both you and your readers concur with my interpretation of "terrorist surveillance". Wood'ja (?) buh-leave! A civilian like me, and up to his ears in credit card debt, could come up with a game plan to snag Osama bin Ladin.

    As for my plan for capturing Osama, again I should like to ask to refrain from clicking on any enclosed hyperlink, until AFTER you've read the entirety of the text.

    The hyperlink just above this sentence leads to my game plan. If you've gotten this far on the first read, without clicking on any of the enclosed hyperlinks, congrats!

    Whatever the case, remind or prepare, please keep in mind that it's a good bet that everything else to snag bin Ladin has already been tried. I think it's time we tried drawing on one of the few activities Americans do better than any other national group, music and pizza delivery being among those few activities.

    oh, yeah, and here's the third hyperlink:

    .he who is known as sefton

    oh, yes, surely, you've heard about the government "requesting" certain records about internet activity. oh, br'dah! ... cynical and skeptical lil'ole me, I'm smelling a rat in all that. Quite candidly, I have cause to suspect that more than compiling statistics on access to pornographic websites is involved.

    oh, yeah, right after Hitler came to power, the German people were assured that, if they were innocent of untoward activity, they would have nothing to worry about ... yeah, right.

    Incidentally, the second hyperlink leads to a piece that relates to governmental eavesdropping WITHOUT a warrant.


Note: Only a member of this blog may post a comment.