May 2002

Letters

In the April edition of Bar News (Letters, p. 7) Arthur D. McGarry challenged some of the assumptions made in Lisa M. Stone's article titled "The Glass-Ceiling Survey." I am writing to challenge what I see as Ms. Stone's most problematic assumption.

Ms. Stone stated that "one way to systematically increase the participation of women and people of color in private firms would be to formalize work distribution to ensure that all attorneys have the chance to undertake high-level, lucrative work, rather than leaving it to chance." She also stated that women's increased presence in private firms could "spur further improvement in their professional status, financial security, and sense of personal satisfaction and achievement."

The assumption made is that high-level, lucrative work, professional status, and financial security lead to personal satisfaction. I suggest that neither the pursuit nor the achievement of status and money will lead to personal satisfaction. I am suggesting a different hypothesis: personal satisfaction cannot be obtained until the pursuit of it is abandoned. Begin by totally abandoning the desire for status and money.

With horrified fascination I read Mr. Arthur McGarry's recent letter to the editor. Several thoughts came to mind but were quickly censored as rude and unprofessional. However, Mr. McGarry raised some interesting issues related to balancing work and family life as well as the drive for success and meaningful work versus full-blown workaholism.

Assuming Mr. McGarry believes it is valuable for the human race to continue, who should bear the children? My impression is that Mr. McGarry believes women attorneys should either choose to not have children, or else face the glass ceiling. It doesn't seem to bother him that men are not forced into such a position.

In fact, Mr. McGarry notes that highly successful male attorneys often have as many as four wives. May I conjecture that the duly noted wives were taking care of the home and the children so that these men were free to work incredibly long hours? It reminds me of a comment innocently made to me by a male friend in law school. Frustrated by the heavy demands of school as well as daily household tasks, he said, "I need a wife." Cynically, I replied, "So do I." Unfortunately for most women, this is not an option.

An excellent recent article in Bar News concerned workaholism. As a former mental health professional I learned that workaholism is the most highly socially sanctioned of the addictions, if not the only one. Yet it takes a terrible toll on physical and mental health and family life. In addition to losing spouses (the successful workers in Mr. McGarry's letter had a series of wives), there is research indicating that workaholism more adversely affects children than any other addiction manifested by their parents.

Mr. McGarry's final paragraph stating that women who are discriminated against can file lawsuits on a case-by-case basis struck me as the last blow. I could laugh, or scream, or perhaps both. From my experience, gender discrimination is rampant and often insidious. After all, have you ever heard complaints about an "old girls' network"? I don't think so. From a legal and historical perspective, when the founding fathers of the Constitution wrote that all men are created equal, they meant only white landowning men. It really hasn't been that long since women and minorities gained the right to vote.

To say the least, Mr. McGarry's letter was thought-provoking.

What a diversity of views!

On page 24 of the April issue, authors Miller and Bernbaum start off with "September 11 was a major failure of American efforts to protect the country from foreign terrorists." On page 15, you (Editor Panitch) castigate President Bush, who, when addressing some troops and referring to the war on terrorism as a "crucible," said, "If you're not with us, you're against us."

I cannot agree with you, as I don't think being anti-terrorist is being anti-American.

I thought Bar News was a more or less professional magazine for the legal profession in Washington. But find of late, under the leadership of Mr. Panitch, that it's the political mouthpiece for the alliance of certain trial-lawyer groups with the National Democratic Party. Since we are now reduced to political hyperbole, one diatribe deserves another.

In good trial-lawyer fashion, without much regard for historical accuracy, Mr. Panitch sets up one straw man after another to make his case that the Bush administration is fostering policies that are "legal vampires waiting for troubled times" to "[mess] with our principles of due process, such as warrant-based arrest, lawyer-client confidentiality, [and] humane treatment of prisoners." How better to demonize your political opponents than setting them up as vampires and inhumane tormentors of prisoners? Does Mr. Panitch have some evidence that these nefarious crimes are being committed by the Bush administration, or are these serious charges simply made up?

Panitch Myth #1: The Florida election. This is transparently the most egregious of his falsehoods. Candidate Gore lost by "deferring to legal process" (Panitch's emphasis) while the Bush camp "never deferred, never conceded and…never compromised on anything." A "strategy…obviously successful…[to create] an administration that seeks to create a new paradigm…to transfer [these tactics] to the world at large." Absolute rubbish! Both sides had plenty of lawyers jockeying for advantage. If you will remember, it was Gore who at first conceded the race, and then withdrew the concession on the advice of William Daly, his campaign manager who devised a plan of Chicago-style politics of legally attacking the election results in only selected precincts where their strategists thought they would have the best chance of overturning the election. We can debate this one forever, but only an extreme partisan would propose that the Gore side deferred to legal process while the Bush side pursued uncompromising hardball that somehow has become a "new paradigm" for foreign policy.

Panitch Myth #2: Military tribunals. The Bush administration "announced… secret military tribunals…to try foreign

nationals accused of being terrorists," but was frustrated by young government attorneys who "actually know — and care — about what [the Constitution] says."1 Is this simply a total fabrication, or does Panitch actually have some source, no matter how weak, to support such a silly assertion? It was Secretary of Defense Donald Rumsfeld who made public on March 22 the 16-page rule book that implemented President Bush's November 13 order authorizing the tribunals for noncitizens accused of war crimes and related offenses. These rules were drafted by an authoritative body comprised of Secretary Rumsfeld's staff and an ad hoc committee of well-known lawyers, including former Federal Communications Commission Chairman Newton Minow. Their measure for coming up with these rules: what would be fair if our guys were the prisoners? Senator Patrick Leahy (D-Vt.) has said that he is pleased with the product. President Bush employed a deliberative process to come up with these rules, and Panitch creates the fantasy that only idealistic young lawyers have somehow saved our civilization.

We might go on, but I've made my point. Mr. Panitch in the past has made much of the low esteem in which lawyers (particularly plaintiff lawyers) are held, even to the point of criticizing defense lawyers for not vigorously voicing their opposition to private jokes about plaintiff lawyers. If Mr. Panitch's writings and reasoning are the new paradigm (to use his phrase) of lawyer mentality, he deserves to be a joke.

Mr. Panitch might dismiss this letter of complaint as part of the vast right-wing conspiracy. However, I voted for Bill Clinton (twice), and simply propose to Bar News that extreme political partisanship is not appropriate in your publication.

Finally, since President Bush's approval ratings continue to exceed 80 percent, while trial lawyers struggle to maintain any margin over used-car salesmen, Mr. Panitch might want to look at the example of Mr. Bush as something to be emulated rather than attacked. One characteristic of Mr. Bush is that he is plainspoken, direct, and easy to understand. This reputation for forthrightness that Mr. Bush enjoys was once enjoyed by lawyers, but no more. An example of his directness that the American people appreciate is this quote from March 21, 2002:

The evil ones didn't know who they were attacking. They thought we would ...roll over. They thought we were so materialistic and self-absorbed that we wouldn't respond. They probably thought we were going to sue them.

I don't care about the politics of Mr. Panitch, but I have been a member of the Washington State Bar Association for 33 years and am frankly dismayed with the political partisanship of Bar News. It reflects badly on the profession, and particularly on all the individual lawyers and law firms mentioned in your pages. Please, if this is to be your policy, next time put in a right-wing nut as editor so I can write more letters and restore my reputation as a good liberal.

1. It's not clear that Mr. Panitch knows what the Constitution says. He states, for example, that "Article 6 of (the Constitution) creates a system of courts and judges."

Bar News Editor Mark Panitch "doth protest too much" in his April 2002 column. He states that he "would never suggest that one administration's political policies are superior or inferior. That would be straying too far from the mandate of this magazine to cover legal matters." In fact, his statement is only half right. He is expressing his opinion on his political preferences, something he does with some frequency. Indeed, by my count this is the third "Two Cents' Worth" written by Mr. Panitch that attacks Bush administration policies for one reason or another. Mr. Panitch correctly acknowledges that it is wrong for him to do so in this magazine, but it doesn't stop him from doing it anyway.

First, he mischaracterizes President Bush's comments during his recent visit to Alaska. When the president said, "If you are not with us, you're against us," he was not talking about domestic or legal issues. Instead, he was referring to our relations with other nations. Neither the president nor his administration has ever suggested that people inside the United States cannot dissent from the government's policies on terrorism, or any other issue. Instead, he is simply restating a policy supported by the overwhelming majority of Americans — that foreign governments that sponsor or shield terrorists will be treated just like the terrorists themselves.

Second, he repeats as received truth Jeffrey Toobin's conclusions about the Florida recount and Bush v. Gore, without acknowledging that there are alternative views. In the interests of full disclosure, I was a small part of the Bush Florida recount team, so perhaps I'm biased. However, that also means I was present for some of the events recounted in Toobin's book and repeated in Mr. Panitch's piece. From my perspective, Mr. Panitch's description (and Toobin's book) is factually inaccurate. Vice-president Gore was anything but deferential to the legal process. Instead, the Gore campaign engaged in every possible tactic to win, at virtually any cost. Toobin is an entertaining writer, but if you want to get an unbiased and scholarly view of what happened, I submit that Judge Posner's book Breaking the Deadlock is a better read. And by the way, virtually every post-election recount by various news organizations found that President Bush did in fact win Florida. See, "Florida Recounts Would Have Favored Bush," Washington Post.

Finally, Mr. Panitch attacks the administration, implying that it is looking to curtail civil liberties in the name of the war on terrorism, with the proposal for military tribunals as the main example. Of course, events have shown Mr. Panitch to be dead wrong on this issue as well. The draft rules for military tribunals make it clear that defendants will have virtually all of the due-process guarantees that we see in civilian courts. These include a right to counsel, a right to remain silent without any adverse presumption being drawn as a result, a presumption of innocence, and that guilt must be proved beyond a reasonable doubt.

I have no objection to Mr. Panitch, or anyone else, setting themselves up in opposition to the president or his policies, war or no war. He is entitled to his opinion. However, I do object to his expressing his political opinions in articles on the Editor's Page in a publication paid for with my mandatory Bar dues, particularly when so much of the article is based on mistakes of fact or sheer conjecture.

In the past 46 years I have often thought about writing to Bar News, relative to the content that is published on behalf of the Washington State Bar Association.

Looking at the March 2002 issue I am really interested to know why the editor thinks an article on "Federal Protection for Vessel Hull Designs" is worthy of statewide dissemination as something of general interest to the Bar Association and lawyers comprising the Washington State Bar.

Washington State Bar News is an excellent medium by which to inform lawyers throughout the state of new laws, issues, and matters that are substantively and procedurally important to the Bar. I cannot help but think that there must be numerous other subjects worthy of note that could have been included.

Unfortunately, when articles like this appear in a statewide journal of general applicability to all lawyers in the state, I must confess that Bar News joins the ranks of other unread periodicals that cross my desk. I can appreciate the fact that articles may be hard to come by, but please — give us a break.

Again, I am not attacking the author, but I am challenging the judgment of the editor in selecting this type of article for the statewide Bar journal.

I just finished reading the April Bar News and wanted to send in three cheers:

1. I am really sorry I missed the Goldmark Award Luncheon on February 21 and hearing Judge Dwyer's daughter read his (posthumous) acceptance speech for the Legal Foundation's Award. (I was tied up in a settlement conference and could not get away — pro bono as it was!) His remarks were right on; I get immeasurable rewards for my pro bono work just from the gratitude of the clients served.

2. Mark Panitch, you are also right on with your warnings about the current administration's direction(s). Some may castigate you because they believe those remarks are beyond the scope of "our" publication (that would not be new, would it?), but we are lawyers, after all, and you write on issues that do or at least should concern us more than the average citizen. Keep up the good work!

3. And Jeff Tolman ("Modest Dreams," p. 48), you write (and have written) the way I frequently think. I read your articles with my head constantly nodding agreement! Yes, I often think about the fact that I am not a "captain of industry," that I am not a renowned and respected Supreme Court justice, that I have not gotten a "jillion dollar verdict" and been inducted into the (what is it? sanctum sanctorum Circle of Advocates, or something like that). But you know what? I've got a plethora of happy, pleased clients who would go miles for me because they know I did for them, and that's worth one heckuva lot more than those other material items! Thanks again for the reminder!