Has Ben Shapiro Been Watching Too Much Judge Judy?

Ben Shapiro is one of a number of conservative journalists recently bent on assuring us we're at liberty to disregard due process of law in formulating our verdict on Roy Moore.  We have his permission, he tells us, because we're deciding on political issues whose disposition won't result in sending anyone to jail.  But this misunderstands what due process is and strips us of much needed protections.

Protections? you may ask.  Wherefore do we need protections if the state is not involved in our decision to, say, condemn someone we feel has been proven to our satisfaction to be a child-molester?  Simple.  We need the institutional model of due process as a reminder to shield us from brow-beating rhetoric like Shapiro's that would structure our choices for us and insult our morality and intelligence if we don't acquiesce to its forced conclusions.

There are many reasons due process is relevant to our responses to the allegations against Roy Moore.  But first, contrary to popular portrayals, let it be said that due process is not a "concept."  It is an umbrella term referencing a constitutionally derived bundle of rights and time-proven procedural requirements that shape any governmental process of judgment that may deprive an individual of life, liberty, or property.  It is a threshold matter, not one factor in a series, as depicted in Shapiro's list of arguments.  This means it predetermines what fairness will look like and binds equally all parties to a dispute to its prescribed standards.

How fundamental due process is was brought home to me, ironically, only after many years of practicing Big Law.  When I became a solo practitioner, I was in the unaccustomed position of counseling individuals and micro-businesses.  A shocking question was put to me by many of my clients: if my adversary sues me in court, how will I know about it?  What guarantee do I have that he won't go before a judge and persuade him before I get a chance to tell my side? 

My clients were not naïve, mind you.  They were successful and educated.  They had simply never been involved in a legal dispute before.  Since I took for granted (and regarded as a pain in the rear end) the extraordinary number of detailed rules relating to "notice" to the other side that apply to each and every action taken before the bench, I hadn't until then given a thought to their anxieties.  Nor had I appreciated how well the law's safeguards address them and their right to be heard.  Our insecurities run deep, with good reason.  So before Mr. Shapiro dismisses the intelligently designed architecture of restraint associated with due process, before he miniaturizes its principles, he might pause to give thanks for the ways it erects a bulwark between us and brute power.

Speaking of brute power, there is something even more troubling here, and it resides in Ben's very left-sounding admonitions that if we don't give the right answer to the questions as he has posed them, we're condoning "by default" terrible crimes or doing an injustice to the accusers.  There is something grisly and familiar about his attempt to intellectually boss us around, to bully us into believing, on his authority alone, that his version of complete knowledge ("here's what we know so far") must command our deference.  Those who insist in this fashion that they are in possession of the truth, even in the active presence of emerging contradictory facts and counter-interpretations, aren't just displaying a lack of humility.  They are caricaturing the legal process.  They are self-appointed triers of fact whose air of importance is parasitic on the gravity of the law. 

In other words, people who talk at us as though they're delivering a closing statement at a trial are playing at being both jurors and prosecutors.  Why else the hectoring gestures and language ("It's a yes or no question!") that might have been cribbed from a script of Law and Order?  In pronouncing pseudo-verdicts, such people are attempting to shut down doubt by vesting in themselves the dignity and consequentiality that comes with being officers of the court, which is what jurors are.  Thing is, they do all this without assuming any of the duties.   

Don't get me wrong.  Discovering that Al Franken is the creep I always felt he was is deeply gratifying.  Hearing Democrats repent of their support for Hillary Clinton and (what I would call) her accomplice liability in her husband's abuses of women doesn't get any better.  Revisiting Nina Burleigh's attempt to equate feminism with procuring for powerful men (What man would believe he should perform sexual favors on a political leader whose agenda he supported?) affords bittersweet relief.  If nothing else, now is not then.  Burleigh's frisson over being cruised by a lascivious president stands revealed for the piteous vanity it is.  She used the "Women's Movement" to self-deal, trading ideological favors for the benefits of aligning with the powerful and letting women who weren't so lucky or simply had more integrity to pay the cost. 

There were other female bagmen.  She wasn't alone.  Some of us remember what it was like to have our indignation overridden by "feminists."  The Roy Moore question is not that.

But, hey, weighing in on scandalous revelations can be fun.  Why not?  Maxine Waters's staging around the filing of articles of impeachment against the president is pure show biz.  Heck, the excuse to hold a Las Vegas-style extravaganza, with herself in the role of Celine, may have been the point of filing the articles in the first place.  (How else to publicly play out your fantasies if you're not Al Franken?)  Likewise playing TV jurors.  On a healthier note, mimicking the drama of the truth-seeking process gives vent to our indignation, exercises our powers of deduction, and promotes interaction.  It may even result in actual valuable discussion and engagement. 

I can dig it.  But let's not lose sight of how far the court of public opinion falls short of the real thing.  The least we can do where someone's reputational assets are in the balance is acknowledge that without the discipline of law, our confidently delivered judgments may well be...how shall we put it?  Narcissistic?  Not for nothing did Edmund Burke, foreseeing the pitfalls of excessive self-love, warn that "individuals do better to avail themselves of the general bank and capital of nations."

The usual response to this from non-lawyers is, But the law is not infallible.  It is time-consuming and expensive.  It allows the culpable to get off on technicalities (such as the fact that the statute of limitations has run on many of these allegations).  The guilty sometimes go unpunished.   

And so they do.  And so the law recognizes its own imperfections by imposing finality on its adjudications and the ability to seek recourse anyway.  And so it protects us from coercion (including the coercion of totalitarian rectitude) even though sometimes we must live with ambiguity and the possibility that suffering goes unredeemed.  

Get used to it, Ben.

Ben Shapiro is one of a number of conservative journalists recently bent on assuring us we're at liberty to disregard due process of law in formulating our verdict on Roy Moore.  We have his permission, he tells us, because we're deciding on political issues whose disposition won't result in sending anyone to jail.  But this misunderstands what due process is and strips us of much needed protections.

Protections? you may ask.  Wherefore do we need protections if the state is not involved in our decision to, say, condemn someone we feel has been proven to our satisfaction to be a child-molester?  Simple.  We need the institutional model of due process as a reminder to shield us from brow-beating rhetoric like Shapiro's that would structure our choices for us and insult our morality and intelligence if we don't acquiesce to its forced conclusions.

There are many reasons due process is relevant to our responses to the allegations against Roy Moore.  But first, contrary to popular portrayals, let it be said that due process is not a "concept."  It is an umbrella term referencing a constitutionally derived bundle of rights and time-proven procedural requirements that shape any governmental process of judgment that may deprive an individual of life, liberty, or property.  It is a threshold matter, not one factor in a series, as depicted in Shapiro's list of arguments.  This means it predetermines what fairness will look like and binds equally all parties to a dispute to its prescribed standards.

How fundamental due process is was brought home to me, ironically, only after many years of practicing Big Law.  When I became a solo practitioner, I was in the unaccustomed position of counseling individuals and micro-businesses.  A shocking question was put to me by many of my clients: if my adversary sues me in court, how will I know about it?  What guarantee do I have that he won't go before a judge and persuade him before I get a chance to tell my side? 

My clients were not naïve, mind you.  They were successful and educated.  They had simply never been involved in a legal dispute before.  Since I took for granted (and regarded as a pain in the rear end) the extraordinary number of detailed rules relating to "notice" to the other side that apply to each and every action taken before the bench, I hadn't until then given a thought to their anxieties.  Nor had I appreciated how well the law's safeguards address them and their right to be heard.  Our insecurities run deep, with good reason.  So before Mr. Shapiro dismisses the intelligently designed architecture of restraint associated with due process, before he miniaturizes its principles, he might pause to give thanks for the ways it erects a bulwark between us and brute power.

Speaking of brute power, there is something even more troubling here, and it resides in Ben's very left-sounding admonitions that if we don't give the right answer to the questions as he has posed them, we're condoning "by default" terrible crimes or doing an injustice to the accusers.  There is something grisly and familiar about his attempt to intellectually boss us around, to bully us into believing, on his authority alone, that his version of complete knowledge ("here's what we know so far") must command our deference.  Those who insist in this fashion that they are in possession of the truth, even in the active presence of emerging contradictory facts and counter-interpretations, aren't just displaying a lack of humility.  They are caricaturing the legal process.  They are self-appointed triers of fact whose air of importance is parasitic on the gravity of the law. 

In other words, people who talk at us as though they're delivering a closing statement at a trial are playing at being both jurors and prosecutors.  Why else the hectoring gestures and language ("It's a yes or no question!") that might have been cribbed from a script of Law and Order?  In pronouncing pseudo-verdicts, such people are attempting to shut down doubt by vesting in themselves the dignity and consequentiality that comes with being officers of the court, which is what jurors are.  Thing is, they do all this without assuming any of the duties.   

Don't get me wrong.  Discovering that Al Franken is the creep I always felt he was is deeply gratifying.  Hearing Democrats repent of their support for Hillary Clinton and (what I would call) her accomplice liability in her husband's abuses of women doesn't get any better.  Revisiting Nina Burleigh's attempt to equate feminism with procuring for powerful men (What man would believe he should perform sexual favors on a political leader whose agenda he supported?) affords bittersweet relief.  If nothing else, now is not then.  Burleigh's frisson over being cruised by a lascivious president stands revealed for the piteous vanity it is.  She used the "Women's Movement" to self-deal, trading ideological favors for the benefits of aligning with the powerful and letting women who weren't so lucky or simply had more integrity to pay the cost. 

There were other female bagmen.  She wasn't alone.  Some of us remember what it was like to have our indignation overridden by "feminists."  The Roy Moore question is not that.

But, hey, weighing in on scandalous revelations can be fun.  Why not?  Maxine Waters's staging around the filing of articles of impeachment against the president is pure show biz.  Heck, the excuse to hold a Las Vegas-style extravaganza, with herself in the role of Celine, may have been the point of filing the articles in the first place.  (How else to publicly play out your fantasies if you're not Al Franken?)  Likewise playing TV jurors.  On a healthier note, mimicking the drama of the truth-seeking process gives vent to our indignation, exercises our powers of deduction, and promotes interaction.  It may even result in actual valuable discussion and engagement. 

I can dig it.  But let's not lose sight of how far the court of public opinion falls short of the real thing.  The least we can do where someone's reputational assets are in the balance is acknowledge that without the discipline of law, our confidently delivered judgments may well be...how shall we put it?  Narcissistic?  Not for nothing did Edmund Burke, foreseeing the pitfalls of excessive self-love, warn that "individuals do better to avail themselves of the general bank and capital of nations."

The usual response to this from non-lawyers is, But the law is not infallible.  It is time-consuming and expensive.  It allows the culpable to get off on technicalities (such as the fact that the statute of limitations has run on many of these allegations).  The guilty sometimes go unpunished.   

And so they do.  And so the law recognizes its own imperfections by imposing finality on its adjudications and the ability to seek recourse anyway.  And so it protects us from coercion (including the coercion of totalitarian rectitude) even though sometimes we must live with ambiguity and the possibility that suffering goes unredeemed.  

Get used to it, Ben.