Mr. Geidner's Unjustified, Unwise Attacks

Chris premises his column on an analogy to Martin Luther King Jr.'s admonition to the white moderate who "paternalistaclly believes he can set the timetable for another man's freedom."

From the passages Chris cites in the column, this analogy seems to hold very well for Professor Koppelman (particular the "hornet's nest" part), less so from the quote we see of Professor Miller, and it seems entirely inapt as applied to Professor Tribe.

Chris is making a fundamental error in his inability to distinguish between a statement of what IS and a statement of what OUGHT to be. This is the same error he made in his post on Professor Volokh:

Any writing -- particularly such trite conclusions -- about this [gay marriage] amendment help stoke the fires of those who would see it pass.

By writing its passage is "[q]uite likely," I would argue that Prof. Volokh -- as a public and highly respected commentator -- is taking a substantive position on the amendment that affects how others view it.

By mainstreaming its chances, he is in fact helping its chances.

This is essentially Chris' objection to the comments made by Professor Tribe. Though Tribe explicitly said that any change from the original 4-3 Goodridge decision would "disappoint" him, Chris still wants to lump him in with the "heterosexual moderates" simply because he admitted, while testifying before a state legislature, that "civil unions might be enough to flip one of the justices in the majority, in the wake of political leaders' outcry against full-blown gay marriage."

I'm not sure I understand exactly what Chris wants from Tribe. If the Massachussetts Senate asks him "Is there any chance the court will change its views?," what is Tribe supposed to do? Is Tribe supposed to lie to the state legislature? Until Chris answers this question, I'm quite skeptical of all of his explanations for the harsh criticism. What should Tribe have done when asked these questions?

Chris claims that Tribe's "cynical view betrays all who believe in the force of law." Not quite. It only recognizes that not all people, or even all judges have the same committment that Professor Tribe and Chris might like. This simple recognition that one judge on the Massachussetts Supeme Judicial Court might change his vote, even though Tribe would oppose that, is in no way an indictment of Tribe or his principles. At most it suggests he is not a blind optimist, refusing to acknowledge the power that politics might have on others.

Yet Chris twists this and attacks Tribe, saying Tribe has "put the idea [of full equality] to the side in favor of prudence and politics."

This is an outlandish claim. As Tribe's own words best demonstrate, he is simply acknowledging a reality about the unpredictablity of sharply divided courts:

I have also conceded something that one must concede if one is to be truthful and to be remotely credible -- namely, that it would be impossible to predict with certainty that not a single one of the justices in the SJC's 4-3 majority would find some sort of civil union short of marriage constitutionally acceptable. The objective of persuading the SJC not to compromise in that way -- something I am also in the midst of trying to do in an amicus brief to be filed with that court next month -- is not advanced by pretending that one knows what is inside the heads of each of the four justices in the majority and by telling them, as though one had the power to make it so by proclaiming it, that one KNOWS they WILL NOT retreat by finding some form of civil union acceptable.

Because the Boston Herald said that "Tribe has been conveying that analysis to top-ranking House and Senate leaders, who have privately sought his advice in recent weeks," Chris felt justified in assuming that "the concession has been a significant part of your analysis to legislators."

I think that's quite a stretch all by itself, but I'm particularly dissatisfied with Chris response. He concedes only that the Herald account might be inaccurate:

If that is not so, your problem should be with the Herald and I apologize for repeating their misstatement. Otherwise, I remain disappointed in advice-giving that would encourage those seeking a civil-unions compromise.

The first problem with this, as Chris ought to acknowledge, Professor Tribe can have a problem with both the Herald AND with Chris. Chris has relied on secondary sources and written a rather scathing attack on Tribe, published on one of the (perhaps the) leading Internet legal sites. If Chris has either 1) relied on bad reporting or 2) misconstrued or misused that reporting (I think the latter), he ought to apologize not just for "repeating their misstatement" but for turning that into a very hostile piece.

This is also where it all ties back to the post about Professor Volokh. In both cases, I think Chris has quite unfairly and quite sharply attacked professors for merely stating their views on the probability and/or predictability of potential legal outcomes, while simultaneously, previously, and/or subsequently stating their opposition to such outcomes. Essentially, Chris is arguing that there is some duty on the part of these professors not to acknowledge potentially negative outcomes because it might encourage the legal and political foes of gay marriage.

I think this is preposterous, and all one needs to do to see it is change the subject of the debate. It is easier for a gay rights advocate to be "disappointed" when an ally admits the possibility of a negative outcome, particularly to a decision-making body that might use that information. But what is the alternative? Lie? Not answer the legislature's questions?

Let's say a pro-life law professor is testifying before the Virginia legislature, and the legislature asks him whether the US Supreme Court would uphold a 7-day waiting period before an abortion could be performed. Now this is a question that hasn't been answered before, and particularly after Stenberg v. Carhart it is hard to say what the undue burden test really means. But let's say the professor is of the belief that, even though he'd favor such a waiting period, there is currently at least a 5-4 majority on the court that would strike it down. What should he say to the legislature? Well I think he ought to tell them it's most likely going to be struck down. But not under Chris' conception. Instead, the law professor should evade the question, or tell the legislature 'I think there are sufficient votes on the Court to uphold that."

But what would we say about such a professor? We'd say he was crazy, or that he was lying! We'd laugh and ridicule him. As Professor Tribe says, sometimes you have to admit unfortunate possibilities "to be truthful and to be remotely credible."

Why This Reaction is Unwise

Alright, I've spend enough time on why Chris' attack is unjustified. But for a moment I'd like to stipulate that the attack is justified, that there is some obligation for supporters of a legal outcome to not publicly acknowledge potentially negative contrary outcomes (or at least not on a blog or in testimony (under oath?) before a state legislature).

I still think this would be an unwise thing to encourage. At best it would sharply limit the credibility of the individual's views on the probability and predictability of any particular outcome. If you know they can't/won't acknowledge if there is a negative possibility, why believe them when they say there isn't one? How to distinguish between actual optimism and this sweeping of dirt under the rug?

Additionally, it would only make our discussions more partisan. Imagine law review articles that don't acknowledge any of the strengths of the opposing side. They don't even cite to them, for fear that the reader might go read and be persauded by the opposition, thus adding strength to the other side. This is already one of the biggest problems with politicians and the media. They highlight the stuff that supports them and pretend that there is no evidence on the other side. Chris' apparent "solution" would only make it that much easier to dismiss supporters as partisans. I can't see how suppressing honest assessment of potentially negative outcomes would do anything but irreparably damage the quality of debate.

Bringing this all back to Martin Luther King Jr.'s admonition, Chris is failing to distinguish between two very distinct points of view:

1) We shouldn't go at this with all we've got, we shouldn't ask for everything all at once, we shouldn't risk at all just to end up with nothing. Let's compromise. (This is the "white moderate" position that King was attacking, and seems to be the position articulated by Professor Koppelman in Chris' column)

2) There should be full equality now and let's do everything we can to get it. However, there may be disappointing setbacks along the way and it is important to acknowledge that.

Professor Tribe (and I think, Professor Volokh as well) seems to fit squarely in the second group. He is not setting aside his principles, not encouraging anyone to settle for a compromise, and yet retaining his recognition of the difficult path ahead. Most importantly, he retains his honesty and his credibility, thus improving the debate and making it more likely his opinions can and will be relied upon in the future.