Unstoppable (20 page)

Anyone in a position of some power who might be prone to pursue converging initiatives against the grain will look over such contrasts as that between Bolton and Fein and do a mental cost-benefit calculation that can indispose them to follow such initiatives. This is especially true when most of the media, programmed to limit their attention to covering clashing antagonists who are perceived as having power, rarely see start-up convergences as worthy of reporting to their audiences and readership around the country. Thus, seeds of convergence, no matter how momentous and no matter if they are planted right on Capitol Hill, have less chance of sprouting.

Why Liberals Often Fight Shy of Convergence

The liberal think tanks and advocacy groups are not without their own inhibitions. They have their reasons or excuses, ones that overlap with the foregoing list, for thinking twice. Some parallel those of their conservative counterparts: peer pressure against insidious associations with antagonistic groups and concern over their funders and key allies. The latter point may surprise readers, but bear in mind that liberal organizations receive funding from many foundations with corporate-connected boards of directors or from large donors, who may, for instance, like environmental causes but not any wayward alliances on tax loopholes, trade policies, specific foreign policies, investor power, corporate subsidies, or corporate crimes.

Small donors mainly expect a consistency of opposition to “darker forces” and might not find convergence to their taste either.
After all, don't the fundraising letters they receive feed on that expectation? Other liberal groups have one-issue orientations, with members who expect adherence to that one issue only. On the other hand, single-issue groups, such as opponents of nuclear power, can more easily converge with conservative organizations, which share their focus—ones, for instance, that are opposed to government subsidies and guarantees, a convergence we saw took place in the anti–Breeder Reactor victory. Moreover, there are liberal writers who may agree with some convergence but reject it overall as a bad strategy because they do not want to give any credibility whatsoever to the ad hoc convergent partners from the Right.

Routes to Convergence

I've observed at close hand these restraints over the years and have tried, with limited success, to overcome some of them by urging that the overall reform must be kept in mind. I tell possible joiners of the convergence movement that there is no need to compromise or weaken their position. To create a convergence that will work and endure, at the onset those from the Left should have a take-us-or-leave-us stance, indicating they are not ready to compromise their principles but will work with any good-faith conservative who shares this one goal. This is what the other, conservative side would want for themselves as well.

Ask the Cato Institute's willing, veteran, free market conservative/libertarian Ed Crane about prospects for convergence, and he replies, “Alas, it ain't happening.” What Mr. Crane is reflecting is the fundamental polarization between two political-civic forces arrayed against each other over perceived contrasting public and moral philosophies about how the world should conduct itself from the top all the way down to communities and neighborhoods. The worldviews have been bundled into starkly contrary images that come out of our educational, literary, economic, and
political systems. Crane seems to recognize that any alliances based on avoiding these rigid binary mentalities can deplete customary emotional mentalities, unsettle strong views, and upset a person's balance, which can only be maintained by adherence to the images.

The escape from this constricting matrix of demarcation can possibly be found in an organizational change. Take staff and resources from existing multi-issue convergers, which have agreed to merge their strength, and move them to a separate new organization or task force where the convergent mission is their only one. This separation, this spinoff, would help the staff shed many of the inhibitions that keep convergence from happening. A similar organizational approach would serve donors who wish to start or support new groups “without the baggage” of old Left-Right conflicts.

Even though corporate welfare has been denounced by the Progressive Policy Institute, Common Cause, Heritage, and Cato—in detail and more than once—individually these groups have gone nowhere because their focus is not on that issue. Were they to join resources, apply for additional ones, and start a new advocacy entity devoted singularly to opposing and discrediting this massive redistribution of taxpayer monies, forces would be set in motion toward making this a compelling subject that neither the lawmakers, nor the candidates, nor the media could ignore. The unusual credibility of this convergence would likely make this effort quite successful.

Justice O'Connor and Convergence

One of my favorite examples of convergence begins with the continual passion (going for twenty-one years) on behalf of legal services for the needy being pursued by Supreme Court justice and Reagan appointee Sandra Day O'Connor. Years ago, the speeches and writings of this widely and highly regarded conservative jurist astonished me. Now that I know more of conservative philosophy and its own respect for due process and rule of law, I am no longer so astonished. But still, her cutting so clearly through the fog of
the power structure that many conservatives allow to mar their public image is still an eyebrow raiser.

Here is Justice O'Connor, speaking for herself before the annual meeting of the American Bar Association in 1991:

While lawyers have much we can be proud of, we also have a great deal to be ashamed of in terms of how we are responding to the needs of people who can't afford to pay for our services. . . . There has probably never been a wider gulf between the need for legal services and the availability of legal services. . . . Every day, all over the country, people lose their homes or apartments when the law says they should keep them, and people can't feed their children when the law says they should be able to feed them. People don't know the rights they have; even if they know the rights they have, they don't know how to enforce them. And it all has one cause—many people desperately need legal services, but can't afford to pay.
⁵

She said that she found that “nearly one quarter of all poor people each year have a civil legal problem deserving a lawyer's attention. But publicly funded attorneys can handle only twelve percent of the load. According to the ABA, eighty percent of poor people's civil legal needs go unmet.”
⁶
That amounts to tens of millions of Americans. Her basic message, grounded in numerous studies, is that when lawyers represent these clients or when they can educate people about how they can invoke the law themselves, far fewer Americans would be evicted from their homes, fewer families would go hungry, fewer people in need would be denied benefits (like Medicaid), and fewer consumers would be gouged.

Justice O'Connor put forth three proposals. First make
mandatory
law school clinical programs to provide legal services for the poor under the supervision of professors.

Second, educate the potential clients themselves. “Often,” O'Connor said, “knowing where to go, who to talk to, and which
documents to bring will enable someone to solve their problem without the assistance of an attorney.” She added, “But our legislation has outpaced our education. . . . This is the kind of project local bar associations are well-placed to organize.”
⁷

Third, she strongly urged that “a significant percentage of the more than 750,000 practicing lawyers [now more than a million] take on
pro bono
work as a regular part of their practice.”
⁸

The Justice found the absence of legal services to be shocking, telling her audience of attorneys that “the legal needs of poor people involve the most basic necessities of life, needs like food and shelter.” Legal services are even more needed at the present time, with more poor families and more homeowners in the midst of foreclosures.

Progressive jurists and lawyers have long stressed the need for free legal services for the deprived. That is why public defender groups were established early in the twentieth century, and in the sixties the federal Legal Services Corporation was created. It now retains four thousand attorneys to serve the poor. These legal service initiatives were distinctly liberal creations, while later gaining the support, for example, of the American Bar Association as a result of the persuasiveness of Edgar and Jean Cahn, then young progressive graduates of Yale Law School, who drafted the original legislation.

So when conservative Justice O'Connor encouraged a movement to greatly expand pro bono legal services, an opportunity for convergence sprang forth, which could be especially nourished after her retirement from the Supreme Court in 2006. She was freer to advocate this cause more persistently.

A national organization is needed to activate the bar associations, to educate potential clients, and to get more of the 203 law schools in the country to require a place in the curriculum for pro bono legal services.

When Justice William Brennan retired, his scores of law clerks, turned successful lawyers, established the influential Brennan Center
at New York University Law School, now with a multimillion-dollar annual budget. Justice O'Connor has a sizeable group of former clerks and supporters in conservative circles around the country who believe in the supremacy of civic values over parochial economic gain in this important area and who could start an O'Connor Center.

Certainly, Justice O'Connor maintains her keen sense of justice. In 2010, she politely chided the majority of the Supreme Court justices in their 5–4 decision known as the
Citizens United
case, with these words: “The Court has created an unwelcome new path for wealthy interests to exert influence on judicial elections.”
⁹

Foundations or enlightened super-wealthy Americans, whether lawyers or not, able to overcome the obstacles I have outlined in this chapter that discourage coalitions can make possible a new breakthrough in convergence—one grounded solidly in conservative and liberal principles—by recognizing the critical role of the rule of law irrespective of the ability to pay. Given the modest will-power of Justice O'Connor's law clerks and admirers, such a needed institution in short order can become a reality for the long run.

7

Who Owns America? A Light from the 1930s Illuminates Now

The Robust Conservative Vision of the Thirties

Recovering lost knowledge of our history's justice-sensitive forebears both informs our judgment and motivates further our determination to shape the future.

There was a time in the Depression of the 1930s when conservative thought sprang from the dire concrete reality of that terrible era, not from abstractions. They did not use the word “conservative” very often, preferring to call themselves “decentralists” or “agrarians.” Eclectic in background they were: columnists, poets, historians, literary figures, economists, theologians, and civic advocates. In 1936, Herbert Agar, a prominent author, foreign correspondent, and columnist for the
Louisville Courier-Journal
and Alan Tate, poet and social commentator, brought a selection of their writings together in a now nearly forgotten book:
Who Owns America? A New Declaration of Independence
.
¹

In his 1999 foreword to the reissued edition, historian Edward S. Shapiro called
Who Owns America?
“one of the most significant conservative books published in the United States during the 1930s”
for its “message of demographic, political, and economic decentralization and the widespread ownership of property” in opposition “to the growth of corporate farming, the decay of the small town, and the expansion of centralized political and economic authority.”
²

It is not easy today to convey the intense belief of many activists and intellectuals in the thirties concerning the necessity and inevitability of radical change. Among the best known are the different advocacies that swirled around Roosevelt's liberal New Deal years. They ranged from calls for a strong federal government, with centralizing economic planning, to the ideas of Norman Thomas, the Socialist Party's frequent presidential candidate, who was pushing FDR toward government health insurance, unemployment compensation, Social Security, and labor union rights. Then there were the “spread the wealth” movements of popular figures like Senator Huey Long and radio personalities like Father Coughlin and, in contrast, the Wall Streeters' own challenge: the attempt to save capitalism from President Roosevelt, whom they called a “traitor to his class.”