LAWYERS AS PEACEMAKERS.

• Author: Wickman, Lance B.

After decades as a California litigator in a large international law firm, I have served for twenty-five years as general counsel of The Church of Jesus Christ of Latter-day Saints. During much of that time I also served as a Church ecclesiastical officer. This unique perspective, both lawyer and churchman, has given me much to reflect on during the last quarter-century. At the outset of my service, the international Cold War had already given way to a domestic culture war. As existential threats have receded, political and cultural conflicts have become increasingly bitter. The law is often at the center of those conflicts.

I bring to the practice of law my beliefs as a disciple of Jesus Christ. They are part of who I am. A signature teaching of Jesus Christ is "Blessed are the peacemakers." (1) I believe the heart of what lawyers and judges do--or should be doing--is peacemaking. However imperfect, the rule of law, including its administration by lawyers and judges, is fundamentally about resolving conflicts peacefully--about establishing a just peace in a free society. Our heritage of law, where we are governed by precepts rather than raw power, is precious. Yet it is also vulnerable and by no means inevitable. Some would portray the rule of law as little more than a veneer for arbitrary power. The readers of this Journal know better. To be sure, the law must evolve to meet the challenges of the day; unjust laws can and should be changed to better reflect the community's sense of right and wrong. Although that may not happen as fast as partisans demand, evolution and refinement occur constantly and are inherent in the rule of law. Undermining the rule of law as our primary means of peaceful conflict resolution would be a grave mistake with terrible implications for our nation.

Never has the role of lawyer as peacemaker been more essential than in this fraught moment, for we are now critical not only in ensuring just and peaceful resolutions in particular cases but also in preserving the rule of law itself. In this article I will recount the crisis of deep national division that confronts us today and explain how lawyers and judges can contribute to healing those divisions by increasing our effectiveness as peacemakers.

1. OUR CURRENT CRISIS

   1. Americans Are Increasingly Divided over a Wide Range of Issues and Our Divisions Are Growing Wider

      America is deeply divided politically. To a degree, it is natural in a free society that we should disagree with each other. One person prefers a small government and lower taxes. Another prefers a welfare state with a more robust social safety net for the vulnerable and unfortunate. Our constitutional system gives us both the right as equal citizens to debate our differences and to elect representatives who best reflect our considered opinions. What is troubling is the noticeable erosion of trust in each other and in our public institutions. So-called "identity" politics have replaced the politics of engagement.

      The late Professor James Q. Wilson concluded that Americans are deeply riven over fundamental differences--especially political differences--and that "polarization has seeped down into the public, where it has assumed the form of a culture war." (2) Public opinion polls confirm as much. Pew Research Center reports that divisions between Republicans and Democrats on "fundamental political values" have reached unprecedented levels, and "the magnitude of these differences dwarfs other divisions in society, along such lines as gender, race and ethnicity, religious observance or education." (3)

      Long-term trends at least partly explain these deep fissures in our political life. (4) Both major political parties have purified themselves ideologically: liberal Republicans and conservative Democrats have all but disappeared. Moderates and independents are shouted down or confronted with hostile primary contests. Compromise, especially compromise on political disputes of any significance, has become a death knell for career politicians in both parties. (5) Americans more and more support a political party whose members share their lifestyle. "[T]he parties have come to represent not just diverging material interests but different kinds of people with different moral values and ways of living." (6)

      Political polarization has stoked widespread anxiety about the future. Nine out of ten Americans "believe their country is divided over politics and 60% feel pessimistic about their country overcoming these divisions to solve its biggest problems." (7) Unresolved differences are not only eroding personal relationships, but they also undermine our capacity to solve common problems. "Highly polarized citizens often refuse to engage with each other, reactively dismissing out of hand both potential flaws in their own views and potential merits of their other opponents'. Under these conditions, constructive debates are impossible and mutually acceptable policies elusive." (8) A recent book-length survey of American history concludes that "[t]he country faces a huge number of difficult problems that are not only not yet being solved, but are exacerbated by the dysfunctional condition of Washington." (9)

      Distrust is often directed squarely at the government. A global study of institutional trust concluded that

      [s]kepticism about the fairness of our current systems is mounting. The perception is that institutions increasingly serve the interests of the few over everyone. Government, more than any institution, is seen as least fair; 57 percent of the general population say government serves the interest of only the few, while 30 percent say government serves the interests of everyone. (10) Technology has deepened our distrust. The internet enables everyone to anonymously broadcast opinions in the most extreme terms without personal cost. Too often, this leads to the formation of virtual "tribes," who seek and process information from no other sources than those of like mind. Social media amplifies the volume of a single extreme opinion by making it viral. Cancel culture punishes certain opinions as purportedly outside the bounds of permissible discourse. Organized campaigns have deliberately torn down the reputations of previously respected public figures, often for trivial offenses, with the aim of ruining a person's professional life.

      Editors are fired for running controversial pieces; books are withdrawn for alleged inauthenticity; journalists are barred from writing on certain topics; professors are investigated for quoting works of literature in class; a researcher is fired for circulating a peer-reviewed academic study; and the heads of organizations are ousted for what are sometimes just clumsy mistakes. (11)

      As if these long-term trends were not enough, multiple shocks during 2020 intensified our national divisions. We have endured a once-in-a-century pandemic that prompted government officials to place unprecedented restrictions on personal liberty, led to the highest unemployment figures since the Great Depression, and killed hundreds of thousands of our fellow Americans. (12) We have passed through a presidential election whose results were contested for weeks and the outcome of which turned on multiple battleground states where less than one percent of the vote separated the winning and losing candidates. (13) And we have witnessed widespread rioting not seen in decades. The death of George Floyd while in the custody of the Minneapolis Police ignited wave after wave of protests that devolved into destructive and often violent riots in many of the nation's largest cities. (14) Brazen disrespect for the rule of law reached a shocking nadir with a mob's assault on the United States Capitol at the very moment that members of Congress were performing their constitutional duty to certify the results of the presidential election. This attack was a stark reminder that contempt for the rule of law can threaten not only the peace and safety of portland and Chicago and Kenosha, but also the very foundations of American democracy.

      In short, long-simmering conflicts between Americans appear intractable. I share the presentiment of the late Rabbi Jonathan Sacks: "[T]he politics of anger that has emerged in our time is full of danger--if not now, then certainly in the foreseeable future." (15)

   2. Too Many Americans Are Losing Faith in the Rule of Law Itself

      It is particularly worrisome that our contentious age has led many Americans to lose faith in the legitimacy of our political institutions. (16) Politicians on both sides of the political divide in recent years, most notably in the national election just concluded, have challenged without supporting evidence the legitimacy of our elections, seriously eroding confidence in the very foundation of our democracy. Some are demanding fundamental change--even revolutionary change.

      Another ominous sign is the erosion of popular trust in the judiciary. "In 2015, Gallup found that only 53 percent of Americans had 'a great amount' or 'a fair amount' of trust in the judicial branch of the federal government." (17) That barely half of the country trusts the federal judiciary is genuinely troubling. "America is a country built on the rule of law, and from as far back as the adoption of our Constitution, our faith in our judiciary has been a defining characteristic.... A loss of faith in the judiciary corrodes faith in the country itself." (18)

      Some say that the government does not consistently comply with the rule of law, as in how federal officials have conducted the War on Terror (19) or how courts have endorsed the concentrated powers of the administrative state. (20) Criticism of this kind is troubling and worthy of serious discussion. But at least these critics implicitly accept that the rule of law is an ideal that government officials should live up to.

      More challenging are critics who deny that the rule of law represents an ideal...