Crime & Federalism

As trial lawyers, we are frequently searching for the right words to capture the theme of our cases.  How can we distill a three-week trial into fewer than ten words?  What simple phrase can become the aggregate that binds together expert witness testimony, documentary evidence, schematics, videotapes and the client?  My father and partner tried a series of products liability cases against Black & Decker in the 1990's regarding a defective guard on a miter saw:  the theme in those cases was the "no-guard guard."  The success of that phrase was that it could summarize all of the liability evidence, testimonial and physical.  As Dad had laid out the story each witness and each document would tell, "no-guard guard" was an accurate and effective summation for each point of proof.

But:  can the pendulum swing too far in the direction of simplification?  What happens when instead of unifying and tying the facts together, the theme becomes a substitute for the facts - - an excuse to not look at the facts?

Consider the tenor of debate over federal appellate and Supreme Court nominees within the last year.  Perhaps it is the triumph of the "framing" school of thought that now, citizens who couldn't tell you how many judges sit on the Supreme Court are now braying about wanting an "up or down" vote. 

"Up or down"?  What the hell?  Americans apparently cannot grasp "for or against confirmation" or even "yea or nay," it seems - - the debate has to be distilled into concepts that, literally, two-year-olds should master before turning three.  There is little discussion, in fact little comprehension of the scope of issues that an appellate or Supreme Court judge must decide.  There seems to be little questioning of how the individual would fare against the leviathan before any particular nominee.  "Up or down" does not tie together any of the arguments for or against a particular nominee's merits or demerits.  Instead, this pathetically insipid catchphrase stands in the way of those arguments, and in the way of any analysis that actually requires reading and listening.

I'm reminded of something I heard on the Colbert Report:  "I love the truth - - it's facts I don't like."  Americans are distressingly comfortable in accepting the invitation to set aside any marginally detailed inquiry regarding the suitability of a judge for the court to which he/she has been nominated, in lieu of harping, "up or down!  Up or down!" 

And worst of all, most Americans will never understand the consequences of sidestepping the debate, unless and until their own oxen are gored.  By then, of course, it is too late to explain what is passed over when senators, too, accept the exhortations of "up or down" at the insistence of their constituents.