As some of you may know, I have been splitting my time between two states this year. This has allowed me to observe legal and political discussions from two very different geographical vantage points. Massachusetts is distinctly East Coast in viewpoint. Western Pennsylvania is the gateway to the Midwest . However, in each place I have discovered a common trend which I find disturbing.
It is the coarsening of political discourse and the unwillingness to listen to or acknowledge the possible value of differing viewpoints. Public debates all too often consist of attacks on the good faith of the opposing parties and a need to exclude the ideas of opponents as extremist and morally and intellectually bankrupt.
We can see this in the discussion of judges. The open hostility toward judges who decide matters according to existing law but different from those wanting to change the law, fosters disrespect toward our legal system. Some top members of the federal government and state governments have labeled these judges as “judicial activists”, as if disagreeing with their own view of the law is in itself extra-judicial, and evidence of bad faith. The immediate prominence given this kind of message by the 24/7 media, seems to me to tell individuals and interest groups that it is acceptable to denigrate the motives of, and exclude opposing views of others who are seeking to contribute to the common good.
Some have suggested that this disrespectful “us or them” attitude increases the incidents of violence against judges. What message does it send when a ranking member of the Congressional leadership says that the judges who failed to order Terri Schiavo’s feeding tube reinserted must be made to pay? We are all aware of the shooting deaths of a Georgia state judge and the mother and husband of a federal judge in Chicago . These are the tip of the threat problem against judges. I fear that if the language is not tempered our most qualified judges and attorneys will no longer be interested in serving as judges. Why would they wish to subject themselves and their families to such risks? In the end it will be all of us who suffer as our legal system deteriorates.
Another prominent example of this coarsening of the public dialogue is the divide and conquer approach to public policy issues. For instance, in the debate surrounding Social Security changes, those over 55 years old are told not to worry, nothing will need to change for you, while those in their twenties and thirties are told that Social Security won’t be there for them so they need private accounts.
If Social Security is truly in trouble, why should those over 55 be exempt from a solution that ensures it will be there for younger workers? Conversely, why should younger workers be encouraged to withdraw from a system that created a compact for all generations, and has dramatically reduced the level of senior poverty? Most all of us will be seniors some day, and it is the seniors who have produced and care about the well being of the younger generations.
Another example is the debate over tort reform. The need to cap medical malpractice award is described as necessary to ensure that doctors can afford the cost of malpractice insurance. However, testimony before the Pennsylvania Legislature revealed that studies show states with caps have higher medical malpractice rates than those without caps. By framing the issue as one of “greedy tort lawyers” against doctors, one profession is pitted against the other. Not only are insurers and their profits and procedures thereby shielded from scrutiny, but doctors are encouraged to malign the motives of lawyers and our profession.
I could continue on with a lengthy list of examples such as these, but I believe these illustrate the ultimate problem here. From our public leaders on down, we are approaching volatility and change with a divisive, all or nothing attitude that is pushing our society and its legal institutions apart.
I believe that all of this is telling people that they do not need to learn about other viewpoints, they do not need to consult with those holding other points of view, and they do not need to give a little for a greater societal good. I hope I am wrong, but I am asking each of you to look around. If you see what I see, please work to moderate this trend in your future debates and communications. Let others know of the need and advantages if they do the same.
his is not a plea for us all to just get along. Nor am I saying that the best way to get along is to go along. Disagreements are a necessary and valuable part of life. What we as attorneys know is that a good disagreement can advance the resolution of problems, but we need to listen carefully to the other position and we need to work to find common ground where possible. We also need to treat each other with respect, so that at the end of the debate we can resume our roles as colleagues and fellow citizens, and drop our roles as adversaries. Whether as judges, government leaders or fellow citizens, we will all benefit.
Carol L. Reiter