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January 05, 2006

Are lawyers "whores"?

Prof. Balkin argues that they (we?) are, with special emphasis on government lawyers who put forth arguments justifying the government's right to "water-board" suspected terrorists.  He concludes:

I don't think it's at all surprising that we can find lawyers today who will defend the legality of torture or the President's plenary power to spy on American citizens-- or, to take Marty's point, who will argue that all things considered it's a close legal case. I don't think it's surprising because there are people in the larger political culture who will happily argue for these practices on the merits. What I am counting on is that, at the end of the day, the American public will recoil from both practices, and that is why, at the end of the day, the legal arguments made by opponents of torture and unauthorized domestic surveillance will prevail. Lest I be misunderstood, I do not mean to say that law and legal doctrine counts for nothing, and that lawyers have no independent role to play other than as political cheerleaders for one side or the other. Rather I mean to say that the law always needs help from other sources in political culture if it is to do its job appropriately. The rule of law, I would insist, is not a purely legal or professional ideal-- it is a political ideal that demands that power be checked, circumscribed and made accountable in fair and publicly knowable ways.

Meanwhile, Mike at Crime & Federalism (from whom I learned of the Balkin post) unloads on Balkin:

And you'll also note that just to the right of the post where Balkin calls lawyers who disagree with him whores, is a link to his book supporting Roe v. Wade.  Apparently, making arguments (1)-(3) makes one a whore, where as writing a book that defends the slaughter of millions of unborn babies makes one a law professor. 

What's that?  You mean that abortion is not murder? You mean that there are strong arguments that a fetus is not a living being, and even if a fetus is "alive," the mother's right to autonomy trumps all?

Like Balkin, I don't care what your counter-arguments are.  I don't have to oppose them.  Instead, I'll just start calling you whores.

Hey, if this rhetorical strategy is good enough for a Yale law professor, it should be good enough for me.  Thanks for giving us all a shining example of "our legal and political culture," Professor Balkin.

On balance, I think Mike has the better of the argument.  Given his interest in criminal defense work, I'm surprised Mike didn't rely on the example of the criminal defense attorney, many of whom would easily fall within Prof. Balkin's "whore" definition.  Furthermore, relying on external forces such as political culture to check legal arguments seems to me most likely to lead to a weakening of such matters as Fourth Amendment rights.

The notion that every person deserves a defense (see, e.g., Gideon v. Wainwright) implies the desirability of the lawyer's making arguments with only an eye toward the client's interest, leaving it to the court and jury to determine which advocate has presented the better case.  The public may well recoil from that practice -- at least, until an individual member of the public finds himself or herself on trial or sued in a civil matter.

To call that prostitution of a sort seems to me to do a disservice to the profession.

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