June 2, 2018
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by Jonathan Wallace jw@bway.net

I just had an experience, unique in my thirty-eight years as an attorney, in a highly politicized case, of having a judge decide a motion against me which was not yet before him, and to which I had not yet had a chance to respond. This astonishing denial of due process attacks the foundations of the justice system, and makes me wonder if I will be able to find fairness, despite the controversial nature of the matter, elsewhere in the system: on appeal? From another judge? I often tell new clients that out of sixty or so trials I have conducted in my career, only four led to bad outcomes inexplicable except in terms of favorism or corruption, a ratio I can live with, in continuing to believe I function in a basically just system. If I felt the outcomes were dishonestly predetermined more often than that, I could not continue being a lawyer, but would pick some other profession. I fear the nightmarishh day that I look everywhere in the system, like Diogenes with his lantern, but cannot find justice anywhere.

I believed, by the way, when Donald Trump was elected, that I would see the effect in the New York court system over time of justice leaching away. I am not sure I am not seeing those slow effects.

Similarly, at times in my own life, I have felt as if I were being washed along in a chaotic river, looking for a rock to stand on. Today, the entire country feels that way. At various times in our history, when Nixon was a chaotic gangster-President, for example, Congress and the Supreme Court provided the bedrock which preserved the system. In personal life, someone near may be the iconic influence who restores balance and integrity, a spouse or faithful friend.

I have had a nightmare a few times in my life in which things literally fall apart: buildings are no more solid than cardboard, can be punched through and knocked over. Rot spreads, and Americans have been complaining since the days of the Framers that our democracy was rotten. Here is an excerpt from my Mad Manuscript on the history of the idea of free speech:

"[Gordon S. Wood,in The Radicalism of the American Revolution (New York: Vintage Books 1991)] says the end came right away, like a beautiful romance which transforms immediately into an unbearable marriage. Everywhere by the 1780’s the revolutionary generation were complaining of the new politicians already obsessed with 'parochialism, horse-trading and pork-barreling'. P. 251 The voters 'choose a man, because he will vote for a new town, or a new county, or in favor of a memorial', and because he possesses 'the all-prevailing popular talent of coaxing and flattering”. P. 251 The “classical republican ideal that legislators were supposed to be disinterested umpires standing above the play of private interests' was dead on arrival. P. 258 George Washington lost faith in democracy before he died. Benjamin Rush, in despair early in the next century, threw all his notes for a Revolutionary history into the fire: 'We are indeed a bebanked, bewhiskied and bedollared nation'. P. 366" I could argue that the fact that Americans have been complaining for the entire life of the Republic a good sign, that this is a norm, that the balance always comes back. I argue the opposite. Some long lived pets like tortoises, which are not thriving, may take so many years to die that you don't know you haven't done a good job with them; democracies take centuries to die.

There is usually someone in the landscape in every era you can look to to be the bedrock: Benjamin Franklin, Justice Cardozo, Frances Perkins, Sam Ervin. These people stand out because able to function in a political world, yet they are a little smarter and more ethical than those around them, represent continuity and also (this is very important though I mention it in passing, so I will put it in caps:) MEMORY, and who willingly rush to the oars when needed.

Who do we have like them today? When the rot spreads far enough, there is no solidity anywhere. In my reading, I was amused to discover that an "American Statesman" series published at Harvard expressly warned, in a preface to the grudging volume it piblished on Andrew Jackson, that it would skip a number of his successors, because they were shallow political nonentities who could not be understood in any way as "statesmen". Today, John McCain, now that he has brain cancer, is already being eulogized as the "last of the statesmen", but he is not. He and Senator Feingold, who cosponsored quite ethical and solid campaign finance legislation, rode to a crossroads, from which Feingold rode on and was defeated by a Tea Party adversary; McCain got down off his high horse, ambitiously adapted to the new political circumstances by becoming superficial and Sophistic, renounced his own legislation against dark money, and gave us Sarah Palin.

We are so starved for heroes that even I fell into the trap of wanting James Comey to exist on a high ground, though the evidence, given his vain nattering which ended Clinton's bid for the Presidency, was not strong. At Harvard, I took a memorable Constitutional Law course from Archibald Cox, whom President Nixon had fired just three or four years earlier. With his bow tie, mild deafness, pleasant diction, and thousand yard stare, Cox seemed like a venerable calm elder, a man composed entirely of bedrock. Fired Comey, by contrast, signed a book contract and then went on MSNBC to say that, although he did not know for sure, he thought the President might have hired prostitutes to urinate in front of him.

When I speak of people rushing to the oars, contrast everyone deciding not to run for another term, and particularly Paul Ryan, who will probably try to run for President in a few years, like someone who aspires to be fire chief but who ran away from the last huge conflagration.

A work I will add to my list of Books That Wrote Me on the next revision, is Joseph Tainter's Collapse of Complex Civilizations. Tainter studies the fall of some famous empires and nations, and then reviews all of the prominent theories (including one that says that cold intellectual women who have a right not to have children then fail to provide the world with needed Napoleons).

Tainter comes up with an appealing explanation that collapse, rather than constituting unexpected chaos, is a controlled move by elites in the direction of less complexity. Nascent middle classes discover that Rome is taxing them too much, and providing too little in the way of roads and security, and so switch their allegiance to local barbarian kings.

However, the phenomena we are experiencing now seem to me to give the lie to Tainter, because they are not nearly so considered and cerebral. The generation of grave world wide problems by capitalism coupled with the increasing denial by the powerful that they exist, the world wide flaring of populism and hatred and the flight from democracy, the ease with which populations are decoyed into blaming the other while taking action to harm their own health, education, jobs and home ownership suggests, instead of a rational reconsideration of allegiance, a kind of public burning of values. If one wants to detect cycles in history, we seem to be in one in which the human race has a screaming tantrum and throws all its toys on the floor.

I am concerned that the rot is general, that we live in an epoch where there is no bedrock anywhere.