BY ANDREW KALLOCH
An NBC news poll released last week found that nearly 70% of Americans are hopeful for the future under President-elect Barack Obama ’91. While Obama’s magnetic personality and President George W. Bush’s historic unpopularity are undoubtedly factors in this wave of optimism amidst a sea of falling stock prices and global uncertainty, the hopefulness of Americans for Obama’s term has another more fundamental basis: the hope for a polite politic.
For decades, American politics has been defined as much by mudslinging and mischaracterization as it has by progress and maturity. However, if the 2008 election is any indication, Americans may finally be ready to embrace the politics of discourse rather than the politics of discord. Voters across the political spectrum rallied behind Obama’s rejection of the red/blue state dichotomy. The failure of divisive politics was clear, evidenced by North Carolina voters’ sound rejection of Senator Elizabeth Dole’s ’65 (R-NC) shameless, desperate advertisement linking her opponent, Kay Hagan, with a group called the Godless Americans,Of course, in both the political and judicial realms, endless promises of bipartisanship and compromise have been little more than hot air. Chief Justice John G. Roberts Jr. ’79, speaking at commencement at Georgetown in 2006, stated, “There are clear benefits to a greater degree of consensus on the court…The rule of law is strengthened when there is greater coherence and agreement about what the law is.”
However, in the Chief Justice’s first full term on the Court, the number of 5-4 decisions, split strictly along the Court’s traditional liberal-conservative fault line (with Justice Anthony Kennedy ’61 floating between the blocs), soared. 24 of the 72 opinions were decided by a 5-4 margin, a ratio not seen in at least a decade, according to data compiled by Tom Goldstein, partner at Akin Gump, and founder of scotusblog.com. Professor Lawrence Tribe ’66 astutely remarked that such division led careful observers of the Court to conclude that it had become, “almost entirely a political body.”
One must wonder, of course, why we see the value in the polite politics of consensus-building, but not in a polite law. In courtrooms across the nation, the adversary system produces foes of friends, and creates conflict instead of common ground. One of the most distressing unintended consequences of an adversary system, whether in law or politics, is that we begin to compartmentalize our “opponent” and resist ascribing humanity to him that, in our more rational moments, we acknowledge as inviolable.
No matter how many stories you hear about prosecutors and defense attorneys sitting together at bars as friends after the doors of the courthouse have closed, the cognitive dissidence of fusing friend and foe remains strong. I have heard public defenders call prosecutors whom they barely know outside a five-minute motion session the vilest names, and I do not doubt that the same is true of prosecutors’ descriptions of their least favorite counterparts.
This cognitive dissonance, when confined to certain arenas, makes for great theater. For example, great rivalries on the football field are built on fierce competition (some may even say hatred) between two similarly situated groups of athletes who just happen to wear different colors. Indeed, my high school, Hamilton-Wenham Regional in Hamilton, Mass, shared a rivalry with the neighboring town of Ipswich.
The children who attended these schools were similar in every way except what side of a three-century-old line they were born on. As a result, some became the closest of friends, while others developed fierce rivalry. We think little of this phenomenon because the rivalry is contained to the fields and floors of competition-safe spaces in which the very event requires a combative (albeit sportsmanlike) stance.One team must win; the other must lose.
In politics, however, as in law, there is not invariably a winner and a loser, but rather a spectrum of compromise along the path toward truth and justice.
Obama campaigned on the promise of reconciling different constituencies with diverse views and building a new coalition for change. If rumors of a bipartisan cabinet with varied intellectual viewpoints are true, there is reason to hope Obama will follow through with his bipartisan pledge. May we seek to remember that the interests of justice would be well served if we brought the same civility and compromising countenance to our chosen profession.