Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Wednesday, January 20, 2021

How should Christian faith shape our political engagement?

Whether today’s inauguration causes you to feel more hopeful about our nation’s future or more anxious, I hope Christians can pause for a moment to reflect on the role that our faith plays in our political engagement. If we’re not happy with the voices that loudly proclaim direct knowledge of God’s will for American politics (often arising on the right), and we’re not ready to agree with the voices that insist faith has only a marginal role to play in our political discourse (often arising on the left), what’s the path forward?
My favorite line from Abraham Lincoln’s second inaugural address – delivered near the end of a brutal and bloody war – was his observation that both sides “read the same Bible and pray to the same God and each invokes His aid against the other.” It was a simple recognition of our shared humanity and shared faith, even at a time when we were killing each other in a conflict over the deeply immoral practice of slavery. Lincoln did not accuse those fighting for the Confederacy of not being “real Christians,” he did not claim that God had personally assured him that the Union’s cause was just, and he did not assert that God's plan for civilization hinged on the outcome of the conflict. Instead, he recognized that those on the other side were just as sincere in their faith as he was.
Did that humility weaken his resolve to win the war and end slavery? Not at all. Did his empathy for those supporting the Confederacy lead him to look the other way and ignore their support of a deeply unjust institution? Hardly. Humility and empathy shaped the way he engaged his opponents, not his commitment to the moral claims underlying the conflict.
The answer today is not, as some insist, to exclude commitments grounded in faith from our political discourse. The answer is to articulate the public relevance of our faith commitments in terms that reflect humility and empathy. Three helpful questions emerge from the powerful example provided by Martin Luther King Jr.
First, is faith being invoked as a conversation-stopper? Dr. King’s faith was inseparable from his public witness. Faith was not out of bounds for him, but his faith was not invoked to shut down dissent or signal an us-versus-them worldview. His opposition to segregation was grounded in his belief that “a just law is a man-made code that squares with the moral law, or the law of God.” However, he went on to explain that “an unjust law is a code that a majority inflicts on a minority that is not binding on itself.” King did not ask his listeners to embrace the religious foundations of his truth-telling (though many did); he asked them to embrace the resulting moral claims, regardless of how one arrived at them. He brought his faith into the public square without a trace of embarrassment, but it was the beginning of the conversation, not the end of it.
Second, is faith being invoked as a rationale for self-righteousness? Dr. King’s practice of Christian love did not always make even his own followers comfortable. He challenged his followers to overcome their fears and refused the easy path of telling them what they wanted to hear. Even within the black community of his own city, Dr. King showed that love is not passive – it pushes, it stretches. Dr. King worked to motivate the community to organize and persist in the Montgomery bus boycott, and he encountered significant resistance to his efforts initially. In loving others – friend or foe, black or white – Dr. King did the work that allowed him to see the world through others’ eyes, but he insisted that they expand their view to encompass a truer, less isolated vision of their own well-being.
Third, is faith being invoked in ways that foster hatred of our opponents? Dr. King preached and practiced love for his enemies. Loving the white man, according to King, was in part a response to the white man’s needs, for the white man’s personhood was greatly distorted by segregation, and “his soul greatly scarred.” Dr. King’s advocacy was always a call to restore the relationships that were only possible when black Americans and white Americans stood equal before the law. His invocation of faith made clear that even white segregationists were worthy of the beloved community.
If we seek to build the beloved community over the next four years, how should Christian faith shape our political engagement? If we aspire to follow the examples of Lincoln and Dr. King, we cannot accept the reflexive demonization that increasingly seems to shape Americans’ struggle for justice. Political conflict is inescapable, but authentically Christian engagement must recognize that justice is not ultimately about power – it’s about relationship.

January 20, 2021 in Vischer, Rob | Permalink

Monday, January 18, 2021

Are we willing to walk with Dr. King past 1964?

Today are we willing to celebrate the Martin Luther King Jr. of 1966, or are we unwilling to walk with him past 1964?
Dr. King offers powerful lessons for today, but those lessons may recede from view as we gradually construct a tamer, less offensive vision of him. Since his assassination, he has become almost universally admired in American society as a model of courage and dignity. Not coincidentally, he is now seen as much less threatening and disruptive to the status quo than he was in reality. We tend to focus on the Dr. King of 1964 rather than the Dr. King of 1966. By way of illustration, I’ll share a personal story.
I went to college in the south, and my roommate was from a small town in Louisiana. With the self-righteousness of an 18-year-old who had grown up in the “enlightened” north, I once started to lecture him about racial injustice in his state. He listened for a while, then he asked how many black students were in my graduating class at a large public high school in Chicago’s suburbs. I was able to count them on one hand. I knew that black people lived on the south side of Chicago, not in my suburb. So? That’s just the way it is. Now let’s get back to talking about racism in the south.
My own obliviousness to the full legacy of American racism reflects the reality that also limited the long-term impact of Dr. King’s work. As with many areas of moral judgment, we’re much quicker to point fingers than we are to engage in deep soul-searching and corrective action. Indeed, when the critical gaze turns to us, we push back powerfully.
Witness the changing public reaction to King himself. From August 1964 to August 1966, Gallup surveys showed that the percentage of Americans who viewed King unfavorably jumped from 38% to 63%.
In the years leading up to 1964, King had led the Montgomery bus boycott, spoke at the funerals of the girls killed in the Birmingham church bombing, wrote his Letter from a Birmingham Jail, brought worldwide attention to Bull Connor’s regime attacking peaceful protestors with police dogs and firehoses, and gave his “I Have a Dream” speech in which he envisioned a day when his children would one day be judged not by the color of their skin, but by the content of their character, and called out in particular the states of Georgia, Alabama, and Mississippi.
So what happened between 1964 and 1966? King publicly opposed the Vietnam War for the first time, which could explain part of the shift in public opinion against him. I think the bigger change, though, was that King shifted his gaze to northern cities. He moved to Chicago and launched his first civil rights campaign outside the deep south. I grew up hearing quite a bit about the civil rights struggle in Selma, Birmingham, Montgomery, and other southern cities.
I was an adult before I learned about the marches King led in Chicago, where he encountered what he described as the most hostile crowds of his life. Rather than target a southern society that advertised its segregation policies for all to see, he now protested deeply embedded real estate practices, such as steering and redlining, that kept blacks locked in northern ghettos. In 1965, he predicted, “If we can break the system in Chicago, it can be broken any place in the country.” He didn’t break the system, and we still haven’t broken the system.
It’s easier to like King when he helps me feel morally righteous and confident in my place on the right side of history. I would never refuse service to someone based on the color of their skin. I would never turn the dogs loose on peaceful protesters.
We’re less comfortable with King – I’m less comfortable with King – when he starts asking what I’m doing about the inequality in my own community.
I encourage us to reflect on Dr. King’s most powerfully persistent question: How will we use our gifts to help bind our nation’s wounds and build the beloved community?

January 18, 2021 in Vischer, Rob | Permalink

Sunday, January 17, 2021

In reckoning with race, history, hard questions, and our own stories matter

As we reflect on the life and ministry of Martin Luther King Jr., my friend Yohuru Williams and I have published an op-ed in today's St. Paul Pioneer-Press about how insights from our experience teaching "Race, Law & U.S. History" may help guide difficult conversations in the days ahead. An excerpt:

When we portray progress on racial justice as a simplistic good-versus-evil battle, we are setting ourselves up for disappointment. Progress requires us to recognize the scourge of racism, but it also requires our best thinking to discern what will prove most effective in addressing it in a complicated world. Cartoonish renderings of complex issues only serve to further divide rather than create the opportunity for constructive engagement around important issues that deserve not only our full attention but the best of our energies.

January 17, 2021 in Vischer, Rob | Permalink

Friday, January 15, 2021

A question for our polarized age: which riots should upset us more?

The most frequent objection I’ve seen to expressions of concern about last week’s attack on the U.S. Capitol is some version of, “Why weren’t you so outraged about all the riots last summer?” The insinuation is that those who were upset by last week’s events don’t want to talk about the riots because they are associated with a cause they support (racial justice), while the U.S. Capitol attack is associated with a cause they dislike (Donald Trump). It’s a fair question – here’s my answer.
To begin, I would not endorse a blanket assertion that the U.S. Capitol attack was “worse” or “more harmful” than last summer’s riots. If you are an immigrant who had worked for years to build a small business on Lake Street in Minneapolis, only to see it destroyed in one night by arsonists, and you then come to learn that insurance won’t come anywhere close to covering the cost of rebuilding, the U.S. Capitol attack sure doesn’t feel worse. In the Twin Cities, more than 1,000 buildings were damaged or destroyed after George Floyd’s death. The bulk of these losses occurred in neighborhoods inhabited by working-class people of color and recent immigrants. Many residents who do not own cars were left without easy access to grocery stores and pharmacies. Rioting and property destruction are wrong and should be condemned, period.
That said, the attack on the U.S. Capitol was dramatically worse in one important respect: it was the culmination of a weeks-long challenge to the rule of law by the President of the United States. I reach this conclusion for four reasons:
First, no one is above the law. The rule of law prohibits arbitrary power, which means that the lawgiver also must be subject to the law. That’s why the peaceful transfer of power is so important: by willingly stepping down from power and cooperating in the transition to his successor, the President honors the duly enacted procedure for deciding elections, thereby showing that he is also subject to the law. Yes, it’s fine to challenge the election in court, but President Trump did more than that, working to discredit our institutions in the eyes of the public in order to benefit himself. Months before the election, President Trump was already signaling that he was not going to give up power without a fight. To the surprise of no one, he is not going to concede the election or attend the inauguration. That’s not just bad manners – it’s in significant tension with the rule of law.
Second, we cannot change laws retroactively in order to maintain power. The rule of law requires that laws are prospective and consistent, which allows laws to guide conduct. (E.g., the legislature can’t punish you by passing a law criminalizing something you did two weeks after you did it.) Many of the President’s “stolen election” claims challenged practices that had been explicitly authorized by state legislatures and election commissions in order to facilitate voting during the pandemic, long before November 3. As courts pointed out, the Trump campaign had plenty of time to challenge those procedures before the election but chose to wait until after he lost. Trying to change the election rules after the results are known is not just being a poor sport, it’s violating a fundamental premise of the rule of law.
Third, words matter. The rule of law’s viability is never guaranteed; it requires the support of each generation of Americans. As such, symbolism and rhetoric matter a great deal. President Trump and his team have been claiming that our election system is corrupt, that everyone who disagrees with his fraud claims is either a coward or dishonest, and that true patriots will “fight” to keep him in office. Rallying his supporters as Congress was (literally) engaged in the peaceful transfer of power, and telling the crowd to march to the Capitol to continue the fight, that “we will never concede,” and that if they give up, the “country will be destroyed,” is dangerously irresponsible rhetoric for a leader tasked with stewarding the rule of law.
Finally, the rule of law will not last long in a country where willful ignorance is a successful political strategy. Since November 3, President Trump has let loose with a steady stream of falsehoods about the election. The “stump speech” he developed about election fraud was filled with claims that had already been disproven repeatedly. Even at the January 6 rally, he criticized Vice President Pence for not rejecting the electoral votes from several swing states. The Vice President does not have that power, and no reasonable person who understands the Constitution believes he does. Even Pence recognized that he did not have that authority (which then led people at the Capitol to chant, “Hang Mike Pence!”). If we care about the rule of law, we have to care enough to spend time learning about our system of government. The ease with which our President misled his followers is deeply concerning.
And the riots in Minneapolis this summer? Yes, they did horrendous damage to our city and the livelihoods of many residents. They did not threaten the rule of law. Our elected leaders repeatedly condemned the rioters. Hundreds of people were arrested. Law enforcement officials have spent thousands of hours scouring surveillance video, and serious charges for arson and destruction of property are still being filed. The criticism of our leaders in Minnesota is that they waited too long before intervening with significant force (criticism that I find reasonable), not that they encouraged – much less invited – the rioting.
Last summer’s riots were heartbreaking, especially to the extent that they distracted Americans’ attention from the hundreds of totally peaceful protests that urged us to take racial injustice seriously.
Last week’s attack on the U.S. Capitol was heartbreaking, especially to the extent that it is a harbinger of dark days to come for a country that may not recognize the rule of law's fragility.
In our broken world, both are unmistakably true.

January 15, 2021 in Vischer, Rob | Permalink

Wednesday, January 13, 2021

We need to talk about QAnon

It may be lost in the tumult over a second impeachment, but don’t miss this news item: a new poll shows that 30% of Republicans have a favorable view of QAnon. This is a serious problem. In fact, last week’s insurrection would almost certainly not have happened absent the rise of QAnon. It's an easy punch line, but it’s no joke – we have to talk about QAnon.
QAnon is an internet-driven movement that traffics in wild conspiracy theories, centered on a belief that Donald Trump is working to bring down a global pedophile ring run by Hollywood stars, Democratic politicians, and government officials. The pedophile ring has been trying to undermine Trump with the help of media and “the deep state,” and QAnon followers view Trump as a messianic figure who might be the “Q” figure responsible for the anonymous information drops that drive the group. A wave of arrests to bring the pedophile ring down and reveal a massive trove of secrets – i.e., “the storm” – is always predicted to be just around the corner, but it never arrives. None of Q’s predictions have come true. (If you’re aware of one that has, please let me know.)
Given how widespread it has become, QAnon has a shockingly short history. In a 2016 precursor, a man was arrested with a gun inside a Washington D.C. pizza place that was the center of an online conspiracy theory known as Pizzagate – the restaurant was supposed to be the site of a child-abuse ring run by Hillary Clinton. (Turns out it wasn’t.) QAnon itself originated the following year on the anonymous message board platform 4chan.
After a few years on the political margins, QAnon burst into the mainstream this year. During the pandemic, the popularity of its websites and social media accounts exploded. The conspiracy theories expanded beyond the global pedophile ring to encompass conspiracies about COVID, vaccines, election fraud, and anti-Semitic accusations regarding government control.
Several GOP candidates openly embraced QAnon during their campaigns, and two were elected to Congress. Q signs were popular at Trump rallies this fall, and among those who attacked the U.S. Capitol last week. The two women who died during the attack were QAnon followers. The man who led rioters into the Senate wore a shirt with a giant red, white and blue Q. As the Washington Post reports today, “the fervent online organizing seen ahead of last week's assault has begun building again,” and a “QAnon group on Gab has grown by more than 40,000 members since the failed insurrection.“
If you’re a Republican, the rise of QAnon is a serious problem. There is nothing remotely conservative about the conspiracy theories espoused by the group, and they discredit the party, much to the chagrin of rational Republicans. Many GOP stalwarts have tried to discredit the movement. After President Trump refused to criticize QAnon, Senator Ben Sasse said, “QAnon is nuts.” Jeb Bush suggested that “nut jobs” should have “no place in either party.” George W. Bush’s press secretary and Fox News contributor Ari Fleischer called QAnon supporters “a bunch of wackadoodles.”
If you’re a Democrat, the rise of QAnon is a serious problem. Even though only 5% of Democrats have a favorable view of QAnon, now is not the time for those on the left to feel self-righteous. In all likelihood, Republicans are more prone to the lure of QAnon because they feel marginalized from an increasingly left-leaning American elite (including corporations, entertainment, media, and academia), and conspiracy theories help us feel significant and in control. There is nothing to prevent similar dynamics from developing on the left in the future. This is a human problem, not a partisan one.
If you’re a Christian, the rise of QAnon is a serious problem. Though many Christian organizations such as the Gospel Coalition have denounced QAnon, calling it “a satanic movement infiltrating our churches,” the infiltration continues. A few days ago, a friend sent me a video of the pastor at an evangelical church in Minnesota talking publicly about the fact that President Trump will declare martial law this week, and that the pastor will be ready to join the coming war against Antifa, rifle at the ready. This is pure Q Anon conspiracy craziness. What struck me was the pastor's comfort spouting this nonsense in a publicly accessible video -- no effort to hide, to be anonymous; just a pastor purporting to guide his flock about what the Christian life entails. Though statistics are hard to come by, anecdotal evidence abounds that many Christians are being sucked into QAnon, which represents a betrayal of our faith’s commitment to minister to the world as it is, not as it exists in conspiracy fantasies.
If you’re an American, the rise of QAnon is a serious problem. The fact that a significant number of us have embraced conspiracy fantasies that are a stark disconnect from reality poses challenges on (at least) two fronts.
First, the most pressing issues we face in this world not only require collaboration across political boundaries, they also require a deep understanding of, and willingness to confront, reality. If many Americans are willing to believe that Tom Hanks is helping lead a global pedophile ring, we’re going to be hard-pressed to convince them that climate change or global pandemics are real.
Second, QAnon accelerates our growing tendency to view political disagreement in apocalyptic terms. Through the QAnon lens, our opponents do not simply disagree with us on tax rates or immigration policy – they are sexually abusing and selling children, then murdering witnesses to hide their crimes! What lengths would you go to in order to protect young children from being raped? As QAnon ratchets up the stakes of our good-versus-evil political battles, we will do anything to stop our enemies. That was painfully obvious last week at the Capitol.
QAnon is built on lies. It has and will continue to ruin lives. For it to have taken root in America does not speak well of our capacity for critical thinking. For Christians to be playing a central role in its rise is shameful. This is a challenge that will continue long past the Trump presidency, and we have to meet the challenge with clear vision and an unshakeable commitment to reality.

January 13, 2021 in Vischer, Rob | Permalink

Monday, January 11, 2021

Have courts been avoiding the merits of Trump's "stolen election" claims?

Non-lawyers do not routinely read or understand court opinions, and that – I fear – has contributed to Americans’ embrace of baseless conspiracy theories regarding the election. I keep seeing “Stop the Steal” proponents assert that our courts have refused to address the merits of the Trump campaign’s claims. This is nonsense. Let’s look at what courts have actually done.
Take, for example, Trump v. Wisconsin Elections Commission, a ruling issued by federal district court judge Brett Ludwig. Judge Ludwig squarely addressed the merits of the claims, though the claims may be a bit less earth-shaking than you’d anticipate given the President’s rhetoric. The opinion makes plain that the wild conspiracy claims raised by Trump at rallies and on social media are quite different than the claims raised in court filings. The reason for this is not hard to grasp: when lawyers knowingly raise false claims in court, judges sanction them.
So what were the claims alleged in the suit? Trump argued that the court should “declare the election a failure, with the results discarded,” because the Wisconsin Elections Commission [WEC] violated his rights under the Electors Clause in Article II of the Constitution. That clause directs state legislatures to appoint presidential electors in a “manner” of their choosing. In Trump’s view, the WEC failed to appoint electors in the “manner” directed by the legislature because the WEC offered guidance on 3 issues: indefinitely confined voters (i.e. voters who use absentee ballots due to age, illness, infirmity, or disability), the use of absentee ballot drop boxes, and corrections to witness addresses accompanying absentee ballots.
The court found that this argument “confuses and conflates the ‘Manner’ of appointing presidential electors – popular election – with underlying rules of election administration.” Trump’s objections, according to Judge Ludwig, represent “disagreements over election administration,” not challenges to the “manner” of the state’s appointment of electors. If Trump’s reading of “manner” was correct, “any disappointed loser” could cast doubt on the election results simply by objecting to one of the many administrative rules necessary to carry out an election with millions of voters.
But the court did not stop there. Judge Ludwig ruled that, even if “manner” is interpreted to include election administration, Trump still loses. All the issues that Trump raises “are ones the Wisconsin Legislature has expressly entrusted” to the WEC by statute. In fact, “far from defying the will of the Wisconsin Legislature in issuing the challenged guidance, the WEC was in fact acting pursuant to the legislature’s express directive.” Further, if the issues were as significant as Trump claims, the court points out that “he has only himself to blame for not raising them before the election.”
But wait! Might this simply be evidence of a judge conspiring to steal the election? Not likely. Judge Ludwig clerked for a Reagan-appointed judge after law school, practiced law at a big firm in Milwaukee, was appointed by President Trump as a bankruptcy judge, and then was appointed by President Trump to the district court bench. Not exactly a leading candidate to join a global conspiracy to steal the election for Joe Biden.
This is just one of more than 60 election lawsuits that Donald Trump lost after his lawyers made their best arguments before judges from across the ideological spectrum. His claims of a stolen election were litigated fully and fairly – and they were rejected every time. If our democracy is going to remain viable, we have to pay attention to court rulings, not to nonsense spouted at a rally or on a You Tube video. When Trump's lawyers insisted that the rule of law must be followed, Judge Ludwig responded succinctly: "It has been.”

January 11, 2021 in Vischer, Rob | Permalink

Saturday, January 9, 2021

Christian realism and "Stop the Steal"

Because so much of the “Stop the Steal” movement – which culminated in Wednesday’s deadly attack on the U.S. Capitol – has been covered with a veneer of Christianity, I think our response has to include a dimension grounded in an authentic Christian understanding of the world. Among the many heart-breaking images emerging from this week were the “Jesus Saves” banners being held by rioters entering the Capitol, right alongside the confederate flags, nooses, and Holocaust sweatshirts. This followed weeks of “Jericho marches,” prayer meetings, and rallies premised on the idea that God ordained Donald Trump to serve eight years as President, and that those who stood in the way were attempting to thwart God’s will. So let’s talk theology for a moment.
Reinhold Niebuhr was a very influential 20th century theologian whose legacy needs to be reclaimed and relearned. Niebuhr was a leading figure in a tradition known as “Christian realism,” and his work aimed at recapturing the reality and relevance of original sin. He lamented modern society’s failure to recognize that, no matter how impressive its achievements, “there is no level of human moral or social achievement in which there is not some corruption of inordinate self-love.” We all have “a darkly unconscious sense” of our “insignificance in the total scheme of things,” and we perpetually strive to compensate for that insignificance. Human conflicts are thus not simply about survival; they are, according to Niebuhr, “conflicts in which each man or group seeks to guard its power and prestige against the peril of competing expressions of power and pride.”
Niebuhr was a significant influence on Martin Luther King. In King’s words, “Niebuhr made me aware of the complexity of human motives and the reality of sin on every level of man’s existence,” including “the glaring reality of collective evil.” King was optimistic about the arc of history, but his optimism was not the sort that allowed him to sit back and watch society’s natural tendencies work themselves out over time. King credited Niebuhr’s work for helping him see liberalism’s sentimentality and false idealism. He saw that humans have an uncanny ability to “use our minds to rationalize our actions,” and he worked to keep the capacities for both good and evil in clear view. King knew that the capacity for good made his struggle for civil rights possible, but the capacity for evil made the struggle necessary.
So what insights does this hold for us today?
First, if we refuse to recognize the possibility that our political tribe is capable of evil, we are denying the reality of sin. If our initial response to news of Wednesday’s atrocities was to conclude, “Antifa must have dressed up as Trump supporters and infiltrated the protest,” we have lost sight of what the Bible teaches us about human nature. This was not a problem that just emerged out of the blue on Wednesday. When Donald Trump observed, at a campaign stop in 2016, that “I could stand in the middle of 5th Avenue and shoot somebody, and I wouldn’t lose any voters,” he was tapping into a human tendency seen clearly by Niebuhr and King: the willingness to overlook our own tribe’s evil because we seek to maintain our significance.
Second, Christians should be as committed to grasping reality as anyone. We are not called to escape to a fantasy of the world as we wish it would be; we are called to engage and minister to the world as it is. That requires us to invest time and effort in understanding reality, not a tribal narrative presented in You Tube videos and anonymous internet messages. The fact that Christians have a leading role in Q Anon and other outrageous conspiracy theory movements is a scandalous departure from the dictates of our faith.
Finally, when Christians stand up to oppose the rhetoric and behavior of “Stop the Steal” proponents, we are not being partisan. We are attempting to reclaim the real-world relevance of the Gospel. The pitfalls warned about by Niebuhr and King apply to liberals and conservatives alike. Indeed, when King wrote his “Letter from a Birmingham Jail,” he was not writing to conservatives – he was writing to moderate liberal pastors. Those pastors supported many of the goals of King’s movement, but they had urged King to be patient, to stop being disruptive, and to give white residents time to embrace the movement’s goals gradually, over time. King called out the liberals for being unwilling to recognize reality: that white people would not change the deeply unjust system without disruption. Sin is a human issue, not a partisan one. When Christians avoid speaking out about this for fear that they’ll be accused of partisanship, we are forsaking a noble tradition of speaking truth to power.

January 9, 2021 in Vischer, Rob | Permalink

Wednesday, January 6, 2021

Standing up for the rule of law

I'm sharing a message I sent to our law students tonight -- this is a crucial time to stand up for the rule of law.
Dear students,
The scenes from Washington D.C. today have been distressing, to say the least. The U.S. Capitol building was overrun for the first time since the War of 1812. Crowds have been whipped into a frenzy by leaders spreading disinformation and baseless conspiracy theories in order to disrupt the peaceful transition of power. These tactics are direct assaults on our democracy, and as the leader of a law school dedicated to the “search for truth through a focus on morality and social justice,” I condemn them unequivocally. We are an academic community committed to the free and robust exchange of ideas – from all political perspectives – but we are also committed to championing and defending the rule of law, and we must not hesitate to speak out when it is under attack.
As we navigate this unbelievably tumultuous time in our history, I think about you. I wonder how I would feel to be embarking on my legal career as our country is convulsed by a pandemic, racial injustice, political turmoil, and rampant anxiety about the future. I’d probably feel pretty stressed. I might have a hard time concentrating on my reading. I might be angry about the behavior of some of the lawyers and leaders I’m supposed to look up to.
Words of encouragement may seem hard to come by tonight, but I do know this: as difficult as the road ahead appears, our work has never been more important than it is right now. As our Model Rules of Professional Conduct remind us, “lawyers play a vital role in the preservation of society.” Whether I’m talking to seasoned lawyers or undergrads contemplating law school, when I ask what draws them to law, one answer I hear consistently is a desire to do work that matters. As disturbing as today’s events have been, I hope they also serve as a stark reminder: our work matters. As lawyers, we are called to be faithful stewards of a noble tradition. I urge you to remain hopeful, engaged, and confident in our shared vocation.
With warm regard,
Dean Vischer

January 6, 2021 in Vischer, Rob | Permalink

Saturday, January 2, 2021

We should all be disturbed by GOP senators' call to revisit election results

Those who know my politics know that I can hardly be described as a left-wing radical. I believe that a strong, healthy, and principled Republican party is good for our country. That’s why I’m so discouraged by Ted Cruz’s announcement today that he and a group of GOP senators will object to the certification of electors this week and ask for the appointment of an Electoral Commission to conduct a 10-day audit of votes, after which “individual states would evaluate the Commission's findings and could convene a special legislative session to certify a change in their vote, if needed.” This should disturb anyone who believes that facts and respect for process should matter in a democracy. A few comments:
First, the senators’ reasoning is circular. Senator Cruz’s statement indicates that the results should be contested because many Americans doubt the election’s integrity. In other words, the primary rationale offered by a group of GOP leaders for behaving as though the election was stolen is the fact that many Americans believe the election was stolen, which is a result of GOP leaders spending the last two months behaving as though the election was stolen.
Second, the senators know that this is not going to work. As my friend and election law expert Derek Muller points out, a 10-day audit would require Congress to pass a new statute to amend the Electoral Act before January 6. That’s just not going to happen. I knew Ted Cruz in law school and worked with him on the law review – he’s a very smart guy. He knows this is not going to work, and he knows the election wasn’t stolen. This is simply a political performance to curry favor with the President’s core supporters, who have been whipped into a frenzy by a constant stream of irresponsible claims.
Third, the election was not stolen. The Trump campaign has lost at least 60 lawsuits at this point, with judges from across the ideological spectrum uniformly agreeing that the claims lack merit. Senator Ben Sasse – as conservative as they come – concluded that there is “little evidence of fraud, and what evidence we do have does not come anywhere close to adding up to a different winner of the presidential election.” Instead, according to Sen. Sasse, what we have is a President and his allied organizations having raised, since Election Day, “well over half a billion (billion!) dollars from supporters who have been led to believe that they’re contributing to a ferocious legal defense.”
Fourth, if you think the election was stolen through a massive global conspiracy, please step back and reflect for a moment. Conspiracy theorists never admit to being wrong – data points that seem to undercut their theory are simply taken as evidence that the conspiracy is even bigger than they imagined. Lin Wood – one of the lawyers leading the charge on “stolen election” claims – now says that Chief Justice Roberts adopted his children through a pedophile ring and Vice-President Pence will be executed by a firing squad for his complicity in the plot to steal the election. Is this really the company you want to keep?
Finally, would I be speaking out if Democrats were pulling these stunts against a Republican candidate who had prevailed? Absolutely. And unfortunately, you may have a chance to see if I’m true to my word because the precedent has now been set. Our norms for the peaceful transfer of power – both written and unwritten – have been turned upside-down, so the path is wide open for the Democrats to do the same thing when it suits them. If you’re applauding the wild claims from President Trump, Senator Cruz, and other GOP politicians who should know better, will you still be applauding if the Democrats try this strategy in 2024 and it works?

January 2, 2021 in Vischer, Rob | Permalink

Wednesday, December 30, 2020

Coming to grips with conspiracy theories

As we close out 2020, it’s important to recognize that one contributing factor to this year’s tumult is Americans’ tendency to embrace outlandish conspiracy theories. When we can’t even agree on basic facts, it makes collaboration to address complex problems extraordinarily difficult. We’re seeing it now predominantly on the right (e.g., unfounded claims of a global conspiracy to steal the election, allegations that COVID is a hoax or that Bill Gates is using the vaccine to track people, the rise of Q Anon), but folks on the left should resist the temptation to feel self-righteous.
Conspiracy theories appeal to a deep-seated human desire for certainty in a messy world, and that appeal is not limited to one side of the political spectrum. Those on the left have traditionally been more likely to ignore scientific data in promoting claims that vaccines cause autism, for example. And polling data from several years ago found that the percentage of Democrats who suspected that the federal government knew ahead of time about the 9/11 attacks was roughly the same as the percentage of Republicans who suspected that President Obama was born in a foreign country. This is a human problem, and one that is growing more dire as many media companies contort to satisfy our demand for content that confirms the beliefs we already have.
So as a new year begins, are there modest steps we can take to guard our minds from the temptation of conspiracy theories? I’ll share three things that have been helpful for me and one that I hope to pursue more in the new year.
The first is pretty simple: I subscribe to our local newspaper. I read the paper every morning because it is one of the only non-self-curated forms of media available to me. And even though I spend much of my day reading things on a screen, I read a hard copy newspaper for the very reason that I can’t just click on the hyperlinks that appeal to me. The physical act of viewing an assortment of primarily local news that is the same assortment my neighbors from across the political spectrum are reading each morning is a small but, in my view, important step toward getting myself out of the information bubble that social media have empowered me to create.
Second, when I argue about ideas – and arguing about ideas is a healthy feature of our democracy – I try to be specific and substantive in my critiques of those with whom I disagree. Name-calling is great if we’re looking for retweets or FB likes, not so much if we’re looking to build mutual understanding. Our arguments should also be coherent. A lack of coherence doesn’t just make our advocacy less effective – it promotes cynicism, suggesting that politics is just about power, not about reason or principle. This sort of cynicism drives people to disregard our shared capacity for reason and embrace political messages premised on tribalism and us-versus-them narratives.
Third, because many of today's challenges require help from scientists, I try to remember that science cannot tell me what to value, but science can provide insights about our world that help me live out my values. I trust science to do what it does well. Disregarding the findings of science because we’re concerned about the political or religious views of particular scientists just doesn’t make sense. As Steven Pinker puts it, “An endorsement of scientific thinking must first of all be distinguished from any belief that members of the occupational guild called 'science' are particularly wise or noble. The culture of science is based on the opposite belief -- its signature practices (including open debate, peer review, and double-blind methods) are designed to circumvent the sins to which scientists, being human, are vulnerable.”
Fourth – and this is the one I hope to work on more in the coming year – I firmly believe that I should spend more time focused on local politics than on national politics. When I spend my time and emotional energy engaging on national politics, I’m talking about distant figures with whom I have no relationship, and it’s easy for me to cast them as shadowy forces in a global good-versus-evil narrative. When Americans are focused primarily on Donald Trump, Joe Biden, George Soros, or the Koch brothers, it’s no wonder conspiracy theories find fertile ground. The local is important because it’s a path to relationship. We should all have hands-on experience learning that opposing views about the presidential election do not preclude collaboration on beautifying the local park, improving our schools, or creating recreational programs to help at-risk kids. I may still disagree with my neighbor Bill’s views, but it will be much harder to dismiss his views as part of a sinister global conspiracy – he’s just Bill, and I know he loves his kids as much as I love mine. I’m not suggesting that we withdraw from national politics, but we may need to rethink our priorities.
It's a scary world, and we are caught in a downward spiral: as Americans lose trust in each other, we try to make sense of the world by believing the worst about each other, regardless of whether the belief is supported by evidence. And when we loudly proclaim those beliefs, those who disagree with us trust us even less. And the spiral continues. To be clear, we’re not going to rebuild trust and negate the attraction of conspiracy theories overnight. But if we’re hoping for a future that is brighter than the present, we have to start somewhere.

December 30, 2020 in Vischer, Rob | Permalink