Diatribes of Jay

This is a blog of essays on public policy. It shuns ideology and applies facts, logic and math to economic, social and political problems. It has a subject-matter index, a list of recent posts, and permalinks at the ends of posts. Comments are moderated and may take time to appear. Note: Profile updated 4/7/12

11 June 2014

It’s Character, Stupid!


Introduction: character and the law
How law became a business
What happened to pols of character?
Can character be taught?
Weeding out bad character
Conclusion
Coda: our Yankee blind spot

Introduction: character and the law

Lots of people like to teach law. It’s an engaging and personally satisfying profession. You get to handle both airy abstractions and real people and their trials, often at the same time. You get to teach bright, highly motivated students, most of whom are articulate and eager. There are few deadlines (beyond showing up for class and grading exams), and the only real responsibility you have is to the students you train.

Preparing for class is time consuming and sometimes tedious. But contact with students is both a daily challenge and a joy. As one colleague sagely said, “They pay me to sit in faculty meetings and grade exams. I teach for free.”

Some of my colleagues are teaching into their seventies, if their administrations let them. Some seem to want to be carried out of their classrooms on their shields.

So why did I retire “early,” at 66? There were personal reasons, but there was a more important general one. I was losing respect for my profession.

Let me repeat that. I was losing respect for the profession that I had practiced for twenty-four years—32 including law practice, and 35 including my own legal training. I was losing respect for the profession that advises every big business on our planet and that, in vast majorities, controls every state and national legislature in our country. I was losing respect for the profession in which the overwhelming majority of our political chief executives have been trained.

Increasingly, something was missing, and what was missing appeared (and still appears) to me to be a big reason for our national decline.

When I went to Havard Law School in the mid seventies, they taught us two things. First, they taught us to think about consequences—what lawyers and pols call “policy,” and what Justice Scalia now derides as not “law.” They also taught us not to leave our moral sense and conscience behind.

If we thought a client was about to do something wrong, our teachers said, we had the right, if not the duty, to say so. If the client persisted in doing something that disturbed our conscience, we had the right, if not the duty, to walk away—to “fire the client” in lawyer-speak.

We had to maintain client confidences, but we didn’t have to become accessories to clients’ wrongdoing. In extreme cases, such as a planned murder, we could even breach client confidences.

We lawyers shouldn’t have to do it every day, but when push came to shove we had a special role. As members of a learned profession with special privileges—professionals with a “calling”—we had a duty to society and to ourselves to act as a moral flywheel, restraining our society’s and our clients’ moral excesses. As members of a privileged and highly paid profession, we had a duty not just to help clients comply with the law, and often to evade it, but to distinguish right from wrong.

Lawyers don’t do any of this much any more. We apply our airy abstractions without much heed to consequences. We let bankers obliterate an otherwise well-fuctioning industrial economy, throwing millions out of work and out of their homes. We mass deport law-abiding, hard working foreigners living among us, whose only crime was seeking a better life here.

As for controlling clients, when was the last time you heard of a major law firm firing a client for contemplating or perpetrating a massive wrong? Often even major law and accounting firms go down with their wayward clients, as in the Enron scandal, which now seems ancient history.

How law became a business

Why is this happening? The answer is easy to state but not to fix. What once was a learned and sometimes noble profession—a “calling,” in now-outmoded terms—has become a business. The “customer,” who used to be a client and a willing recipient of sometimes critical advice, now is always right, at least as long as he pays the bills. Right, wrong and consequences (especially longer-term ones) take a back seat to expedience, clients’ perceived needs and lawyers’ income.

Let me give you an example. It was the height of the Cold War. A former KGB head and architect of the Soviet invasions of Hungary and Czechoslovakia (Yuri Andropov) was leader of the Soviet Union. We Yanks had a series of extremely complex laws and regulations designed to prevent our advanced technology from falling into the hands of the Soviets or their allies. And I worked in Silicon Valley.

A client that I served was ignorant of these laws and, in my view, a bit cavalier when informed about them. So I wrote my contact a memo about the laws and regulations, noting criminal sanctions for their violation.

A week or so later, my contact for that client sent me a copy of a local business-newspaper article, claiming that virtually no one ever went to jail for violating high-tech export control regulations. Shortly thereafter, I was removed from that client’s account and admonished by my firm.

Maybe my inexperience led me to exaggerate the risk of criminal action. Maybe I hadn’t yet learned the extreme smoothness and “finesse” that good lawyers have, and that still sometimes makes me uneasy.

Those are maybes. But two things were certain. First, my client wanted to know not what was lawful or right, but what it could get away with. Second, that was just fine with my firm.

I was not the only one to reach that conclusion. A senior partner of my firm retired about the same time I left law practice for teaching. He took me out for a long lunch before I left. He, too, lamented the transformation of law practice from a learned profession into a business, with a fat bottom line the chief and often the only goal. He was glad, he said, to be retiring at that time and so to distance himself from the easily foreseeable consequences of the drastic change in culture.

It took a few decades, but we are living with the consequences now. Great banks whose reputations for honesty, prudence and integrity had gone back decades, if not centuries, issued crap loans based on liars’ applications, massively violating their own credit standards. Then they packaged this excrement as crap securities and sold it to unwitting buyers (as far away as Iceland) as quick as they could. The global economy collapsed and is still recovering.

Nary a lawyer or accountant, apparently, raised a peep—at least not with any discernible positive effect. If there were a big law or accounting firm that fired a big banking client to make the point, I have not heard of it.

The moral flywheels of our society flew off their axles and lay in a corner, rusting and gathering dust. In place of a learned profession and a calling grew a business just like any other, amoral and increasingly immoral. If lawyers had once been guardians of right and wrong in our society, then, in the words of ancient Rome, “quis custodiet ipsos custodes” today?

The same thing happened with torture. After 9/11, mediocre lawyers serving more as “political operatives” than as independent professionals wrote memos justifying secret rendition and torture of people never even accused of any crime. Their memos were so poor in substance and reasoning that they would hardly have earned a “C” in any self-respecting law school. Their “clients,” including our then president (Dubya), kept their memos secret, apparently abashed at both the lack of substantive quality and morality, not to mention consideration of consequences.

Whether the lawyer authors of those C-work memos ever raised a single moral qualm, history does not record. It took an honorable hothead like John McCain, with his unquestionable Republican and military credentials, to begin to set things right.

What happened to pols of character?

Character is that indefinable quality of thinking, saying and doing right, even when no one is watching and there’s money at stake. It’s not just listening to that still, small voice. It’s amplifying it and acting on it, so it has a noticeable effect.

Character means little in good times, when decisions are easy. It comes into play when times are tough and decisions are hard. In recent years too many of our leaders, especially those trained as lawyers, have made hard decisions too easily and made them wrong.

Perhaps the hardest decision ever made was Harry Truman’s decision to drop the Bomb on Japan. That decision had terrible consequences. But what were the alternatives?

If the Bomb had not stopped the war like a deus ex machina, an incomparably bloody invasion of the Japanese mainland would have ensued. Japan was already arming fourteen-year-old boys, imbuing them with fanatic patriotism and giving them sport rifles and makeshift spears to resist invasion by a modern, mechanized army.

Would we be such good friends with Japan today if all those young boys had been slaughtered by modern weaponry? if every square inch of Honshu (Japan’s main island) had been fought over and devastated?

I like to think that Truman and other men of character agonized over these points before deciding to bomb Hiroshima and Nagasaki, smaller cities without the extraordinary economic or historical significance of Tokyo or Kyoto.

We had only two bombs, and we decided not to drop either on Tokyo, Osaka, or Kyoto, Japan’s centers of government, commerce, and spirituality, respectively. Do you think that Tojo or Hitler would have balked at obliterating Washington, D.C. or New York City if either had had the Bomb first?

The acme of good character occurred in October 1962. Three men of good judgment and cool character saved our species from self-extinction. All the while their peers and military advisers raged with ideology, anger and fear.

The three men’s names should be household words in every home worldwide, for as long as our species survives: Khrushchev, Arkhipov and Kennedy. Without their cool judgment, which is part of good character, most of us simply would not be alive.

We Yanks and the world are also lucky that, at the cusp of our and world history, we had leaders of such character as FDR, Truman, and George Marshall, who gave us and our former enemies his eponymous Plan. Truman’s character was equally on display when he fired General MacArthur for risking general war with China, and when he integrated our Army racially for the first time despite enormous pushback from our recently victorious armed forces. That was character!

Now fast-forward to our new century. I voted for Al Gore. I will go to my grave fervently believing that he would have been an infinitely better president than Dubya. Who wouldn’t?

But Al Gore epitomized our loss of national character—and much of its source—when he took “no controlling legal precedent” as his moral compass in commenting on L’affaire Lewinski. Like many lawyers, he mistook not committing a felony for right and proper conduct.

I don’t mean to rag on Al Gore, whom I still greatly respect. But if a man of generally good character like him could confuse moral rightness with the absence of criminality, who in our over-lawyered society wouldn’t? And maybe that gaffe, among others, made him fail to garner enough votes to prevent the Supreme Court from stealing the election for a man of much worse character.

That’s the predictable consequence of a society where lawyers run everything, where law schools teach parsing law into minutiae, and where lawyers’ jobs are to help their clients circumvent the law and still stay out of jail as much as obey the law’s spirit or promote its purpose.

Today law has become a game of “I’m home free” or “gotcha!” Morality and good character have vanished in a haze of strategic thinking based on formal rules. We have become a team of baseball players who would rather dispute the rules than improve our game.

Part of the problem is the way we teach and practice law. Our law schools grossly overemphasize the important of the adversary system and zealous advocacy. Representing a client’s interest—or for pols, a fixed and dogmatic ideology—becomes more important than justice, progress or even making sense.

Of course every litigant or criminal defendant deserves fair and reasonable representation. But the apotheosis of adversarial conduct has opened the floodgates to less and less reasonable argument in the courtroom, and consequently longer and longer judicial opinions. Lawyers feels they must make, and judges feel they must analyze, every argument, no matter how sophistic or unreasonable, that is not self-evidently frivolous enough to provoke sanctions under Rule ll. The spillover into our political arena should be obvious. Real reasoning, let alone good policy, gets lost in a fog of strategic thinking and strategic argument.

And so we have a vice president of the United States, later almost to win the presidency, declaring that what has “no controlling legal precedent” making it criminal is right. No wonder the Japanese and many other foreign cultures look and us Yanks and think we have too many lawyers!

Can character be taught?

The awful degradation of our national character has not gone unremarked. Law schools and sometimes even lawyers have tried to stop the fall. So we now have required courses on “Professional Responsibility” and “Legal Ethics” in law schools, and corresponding questions on state bar exams.

But these two courses don’t even influence character. The former enmeshes students in a series of complex formal disciplinary rules, just like those of any statute. For students, it’s another semester memorizing and reconciling subsection (b) of Rule 1.37[2] with subparagraph (i) of Rule 6.35(A). It’s another exercise in abstract game playing, with little, if any, real moral content.

The legal ethics course is not much better. It wanders off into philosophy and other abstractions, and then comes back to the formal rules, if only to have something concrete to test on the final exam.

Character is not like that. Everyone already has a conscience. Even many Nazis did, as recently-released extraordinary records of Nazi war prisoners’ impromptu conversations revealed. Many abhorred the Holocaust, even as they supported a government that they despised and that they feared would seal their own personal fate. Even the worst feared retribution and damnation when they thought they were losing.

Having a conscience is not character. Everyone but psychopaths does. Character is speaking out on it and acting on one’s conscience—even in the face of opposition and personal sacrifice. How do you teach that?

You can’t really teach it because you can’t reach back into a child’s earliest upbringing. Anyway, part of character may be genetic.

We Yanks tell and retell the legend of George Washington and the cherry tree, or of Lincoln’s walking miles to return a penny of excess change. These apocryphal stories have become popular legends because we all once understood that good character forms early and takes a lifetime to develop.

You can’t teach good character by teaching rules and strategic game-playing. Maybe you can’t teach it at all. Maybe you just have to find the people (fewer and fewer in our over-lawyered society) who have it and cherish them.

But we don’t do that. Instead, we idolize so-called “enterpreneurs” who exploit the “law” of big numbers to make billions, in their twenties or teens, from fads on the Internet.

Maybe that’s why Obama is President. McCain had plenty of political and military experience. Obama had little and none. But Obama’s character, apparently, appealed to more voters than an honorable and heroic hothead’s. Later it appealed more than an arrogant salesman’s with near-zero public leadership but lots of ego.

Maybe we still value things like patience, empathy, thoughtfulness, prudence, honesty, perspective, civility and moderation. Maybe we value them enough even to overcome our residual racism. Maybe our voters know something that our law schools and most pols do not.

Weeding out bad character

Maybe some day we’ll be able to put candidates for high office into a virtual environment, test their moral decision making, and give them electric shocks when they choose wrong. Maybe in this manner we can correct a lifetime of bad character and “re-educate” people.

But we don’t have that technology today. And anyway it sounds too Orwellian and too much like re-education in Red China.

So if we can’t teach character and can’t change bad character, what can we do? We can weed bad character out, at least among leaders whose bad character can do us real damage.

Not long ago, China demonstrated one way of doing that. Bo Xilai was a dangerous demagogue and an unstable, unpredictable nationalist. If you worry about war between China and Japan now, you would be insane with worry if Bo Xilai ever got his hands on real power in China.

With no formal precedent or relevant legal rules, the great Chinese party bureaucracy put him safely in jail, with little chance of appeal or release. That’s not our Yankee style. But it worked. China’s memory of Mao’s disastrous capriciousness in his later years is still fresh, and no sane Chinese leader wanted to repeat it.

In our country, we already have a much simpler, softer and gentler expedient. It’s been in place for most of a century. But in doesn’t work because we don’t take it seriously.

Every state bar in the country has a “character and fitness” requirement, which law schools are supposed to help enforce. That’s great in theory, but enforcement is a joke.

This I know from personal experience. Every year before my retirement, graduating law students would ask me to fill out one-page forms attesting to their good character and fitness to serve as “officers of the court,” i.e., licensed lawyers. When I didn’t know them at all, I would tell them so and ask them to seek other references. When I did know them well enough, even if only from acquaintance in the classroom (where they are on their best behavior), I would fill out the form, rarely with a reservation or two.

As this description makes clear, this job was mostly useless make-work. I took it seriously because I value character above all, and because I know that, in our society, every lawyer has the potential to become a leader. Only once in twenty-four years of teaching did I have a student whose character was so self-evidently bad as to warrant a negative report.

The student did not ask me for a reference. But I felt duty bound to report extraordinarily bad behavior and judgment, and my doubts about character and fitness, to the bar of the state in which this student proposed to become lawyer. If it had been up to me, there would have been no admission to any bar in the nation.

So I wrote a draft letter. As a reality check, I showed it to my associate dean, a patient and skilled administrator with good judgment. He advised me not to send it, for two reasons. First, he didn’t think bars in general pay any real attention to their “character and fitness” requirements, except when candidates have criminal records. Second, he thought that practical lawyers who administer the requirements, and who frequently adjudicate malpractice actions based on much more serious circumstances, would discount it. There are already so many bad apples in our various bars, he implied, that keeping one more out of the barrel would not be worth anyone’s attention.

In sending the letter, he told me, I would just be wasting my time. I trusted his practical judgment and didn’t even polish my draft.

This is the state of our “character and fitness” requirement for becoming a lawyer and “officer of the court.” And since law practice is a gateway to power for most pols, this is the state of our gateway to political leadership.

As long as you have no criminal conviction, you can become a lawyer, and then a prosecutor, congressman, senator, governor or president. You can pass by the gate easily, even if you have the worst character that a reasonably mild-mannered professor had seen among his students in two dozen years.

Conclusion

Democracy is a good thing. At least our species hasn’t yet figured out a better way to select leaders who enjoy popular support and have reasonable experience and qualifications. As Winston Churchill said, democracy is a terrible system, but it’s better than the alternatives.

Yet democracy sometimes goes demonstrably awry, as demagoguery influences selection. Adolf Hitler, you may recall, won a free election as Chancellor of Germany, the first time.

We Yanks have had a series of demagogues of our own, including Huey Long, Joe McCarthy, and now Ted Cruz. And lest we forget, we recently survived the inept rule of one of the stupidest presidents in our history, who got elected on the basis of demagoguery made scientific.

Would we want men like Long, McCarthy or Cruz with their fingers on the button? Would we even want an honorable, heroic hothead like John McCain? Aren’t the possible consequences—species self-extinction—a little too harsh to risk?

Experience and ideology are not the issue. We can safely trust the people to make decisions on that basis because, for the most part, inexperience and even ideological dogmatism are reversible. (Think of Nixon going to China.)

But the consequences of bad character are not. Adolf Hitler engulfed Europe and the world in our species’ most catastrophic war yet. Fifty million people died prematurely as a result. The war he started might have extinguished us, or at least Western Civilization, if he had lived to see the Nuclear Age.

Josef Stalin faked a “win” in free elections by stuffing the ballot box. He had his much better rival, General Kirov (who probably would have won without the ballot-box stuffing), shot the next day. The people of Russia suffered the Terror for several decades afterward as a result. Likely Mother Russia would have beaten Hitler much more easily if General Kirov had led it, rather than Stalin. And if Stalin had lived to preside over the Cuban Missile Crisis of 1962, instead of Khrushchev, everyone reading this post might be dead or never born.

Isn’t that a little too much risk to take for having a “character and fitness” requirement that’s a practical joke?

China can weed out such dangers easily, because its huge party hierarchy vets candidates for high national office. The decision makers are people who have known, worked with and even fought with the candidates, often for decades.

Misleading television and Internet ads don’t influence them. They know the candidates from actual and close experience. That’s probably why there appears to have been no dissent against jailing Bo Xilai from within the hierarchy, only from the people of his city. He could fool the people of his town, but he couldn’t fool the pols who knew him well.

Putting teeth into our supposedly universal character and fitness requirement for lawyers would require a transformation in law schools and state bar associations. They would have to serve as real gatekeepers, barring bad people from the practice of law and therefore likely from politics, which draws mostly from lawyers.

It wouldn’t be a perfect system, by any means. But it wouldn’t be Orwellian either. It would involve the best sort of judgment that our species can render: the judgment of mentors and peers. Screened-out applicants could still secure gainful employment: there are lots of legal jobs that don’t require bar membership. But few of them lead to political careers.

At the moment, the public rightly assumes that licensed lawyers have a certain level of attainment. It knows that most of our notable Founders, including Jefferson, Adams and Madison, were trained in the law. (Ben Franklin, the printer and scientist, was not.) So our people naturally assume that their modern counterparts are roughly equivalent.

In substantive legal knowledge, they are probably right. There is much more law today than there was at our Founding, and we teach it much more rigorously and precisely. Few of our Founders could likely pass today’s basic bar exam, let alone the parts that test knowledge of our our currently detailed, multipart statutes.

But character is another matter entirely. Law has become a business, not a profession. That business now includes lots of people of poor, intermittent or negligent character, or whose character is up for sale. It also includes a few real scoundrels, the likes of whom Colonial society barely would have tolerated.

Our system has proven itself much too vulnerable to bad character. Look at Newt Gingrich, Sarah Palin, Ted Cruz and John Cornyn, to name just a few. On the Democratic side, look at John Edwards. Cornyn may be finished, but the others (except for Cruz) aspired to the White House and came within spitting distance. Ted Cruz may still.

And look at Chris Christie, who seemed to be the Republicans’ savior before his extortionist side emerged. Would any experienced New Jersey pol who had worked with him for decades have made the same mistake? (This is one reason why I’ve urged that our parties return to selection of candidates, or at least a short list, by party elders, not by demagogable and demagogued primaries.)

Character is our system’s Achilles Heel. It’s so easy for PR experts and video ad makers to give pols impenetrable masks with which to hide their true character. Debates are now a sham, a bit of show business for the rubes. How could that not be so, when many “independent” (read “uninformed”) voters know candidates only from a few thirty-second ads, and when we devote enormous sums of money to letting those ads influence their thinking (if you can call it that) through vague impressions, without facts or thought?

If we insist on continuing a PR- and ad-driven political system, we should at least weed out the worst rotten apples before they spoil the barrel, and maybe the whole world. Stiffening the “character and fitness” requirement for entry into our state bars could be one small step in that direction.

Our Yankee Blind Spot

The foregoing essay focuses primarily on the practical consequences of our willful neglect of human morality—thinking and doing right. We were surprised when a housing bubble built on lies caused a financial fear stampede and destroyed the global economy. We were abashed when a government founded to contain the excesses of kings stooped to torture and medieval brutality because our leaders were too stupid to imagine more effective and moral responses to 9/11. We are still trying to think our way out of a political system in which money rules absolutely, and people like me are forced to pony up to publish lies and oversimplifications just to counteract the lies of the self-interested 0.1%.

The truth is, we Yanks always have styled ourselves a practical people. We don’t think much about philosophy, right and wrong or (apart from wealth and goods) what makes a “good life.” Our late, great philosopher John Rawls was and remains a total anomaly, a Yankee fish out of water.

That’s a shame. We Yanks purport to be the standard-bearers of democracy. But as a culture, we are far, far from the ancient Greeks or Romans. Our great universities and our society would puzzle and dismay Cicero, let alone Plato or Socrates, who would think we are not even asking the right questions.

We Yanks don’t think much about right and wrong. Instead, we think about the next iPhone, our stock portfolios, our quarterly profit, or how to counteract lies with more lies, all under the rubric of “free speech.”

Collectively, we mostly stopped thinking about the important questions after our Civil War, if not after our Founding. We have apotheosized our Founders as minor deities, and we revere their work as Scripture, rather than carrying on their tradition of thoughtful analysis of what’s right and wrong in a democratic society.

Yet still we have big egos. We style ourselves a “light unto nations” at the tender age of 238. In contrast, ancient Rome lasted eight centuries, and Greek democracy most of a millennium, because their leaders kept on thinking, year after year, failure after failure. (Next year, British democracy will have lasted precisely eight centuries—a point on which I have an upcoming essay.)

Forget, for a moment, about the sad consequences of our blind spot so recently in evidence. Even on an abstract, sophistic level, the notion that what is not criminal is right is fundamentally absurd.

Our society revolves around a presumption of innocence. Everyone is innocent until proven guilty in a court of law.

So in order to brand anyone a criminal, our society must surmount three high obstacles. First, we must catch the wrongdoer. And we must do so in a society that heavily values privacy and individual freedom and therefore makes police work difficult. Second, we must find evidence of wrongdoing, sufficient to prosecute successfully before a jury. Third and finally, we must find enough evidence to convince a jury beyond a reasonable doubt, despite evidentiary rules that often exclude solid and relevant evidence just because the authorities screwed up in gathering it.

Don’t get me wrong. I like our criminal-justice system the way it is. I don’t advocate a police state, especially with our increasingly oppressive high-tech snooping apparatus.

But if we accept our criminal-justice system, with all its warts, we must recognize that, in the words of the old saw, it lets ten guilty go free rather than punish one innocent. At our best and most efficient, we get only ten percent of the bad guys. And we like it that way.

And most of them, for practical reasons, we let go lightly with plea bargaining. We simply can’t afford the public trial that would brand all criminals as wrongdoers, give the public evidence of their wrong conduct, and make examples of them.

This sort of justice system is a fair compromise for a huge modern society that values freedom, privacy and autonomy above all. But it’s hardly an accurate system for distinguishing right from wrong.

From the drug dealer who goes free to catch the cartel kingpin, through the myriad evil and avaricious bankers who never went to jail or even lost money, to the GM engineers and executives who nodded at a deadly ignition switch that would have cost mere dimes to fix—there are a lot of bad people in our society whom we don’t label as criminals. That doesn’t mean they are good people, or that their acts were right.

Maybe we Yanks just have too many lawyers. Maybe, in the absence of anything resembling real philosophy, we have fallen into the cognitive trap of mistaking strategic thinking under formal rules for real self-analysis, both of our individual selves and of our society. Maybe our consciences have simply fallen asleep.

But if so, we need to awaken them soon. We need to starting thinking again, hard, about what is right and wrong, what makes a society good, and what is right conduct for citizens of a democracy. And we need to start teaching our children, not ideology or dogma, but how to think clearly about these things for themselves.

We need a modern Socrates to ask tough questions that require tough answers—someone who can force us to think about them. Without such a person, the tides of history may simply wash away our “exceptionalism,” along with the joy of living in our nation.

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