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.