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Keeping the faith

A federal judge reflects on institutional decline

book-cover_mainFor people asking why trust in institutions is at historic lows, modern tech-driven phenomena are easy targets – think Facebook and Twitter, smart-phone addiction, big data and automation.

But in a recent memoir, 4th U.S. Circuit Judge J. Harvie Wilkinson III takes a longer view. Relying on written recollections he saved through the years, All Falling Faiths tells the story of a country that lost faith in itself during the chaos of the 1960s – and never recovered.

“The dangers didn’t dissipate with the decade. They’re here now. And the cumulative danger, I think, has been profound,” he elaborated in an interview. “I hope our institutions are repaired, but we really need to take stock. This is not just national life as usual.”

In the shadow of the 1960s

Wilkinson, raised in the highly choreographed social traditions of mid-century Richmond, was about 10 years old when the U.S. Supreme Court decided Brown v. Board of Education. As he matured, he saw that the institutions providing the moral contours of his life – schools, social clubs, churches, and public entities – were also perpetuating, through a deafening silence, unconscionable inequity between black and white Americans.

This reality was disorienting, he recalls in a chapter titled “The Loss of Home.” And he realized he wasn’t alone.

After beating back fascism in World War II and achieving global dominance throughout the 1950s, Americans in the 1960s suddenly found themselves reckoning with injustice wherever they looked. The evils of racism became undeniable. Women increasingly demanded equal participation in society. The depths of global poverty were staggering. And in the midst of it all, the U.S. government began sending millions of young men to kill and die in what many saw as an epically misguided war on the other side of the world.

At Yale, where Wilkinson enrolled in 1963, the student population was determined to right these many wrongs. “The police were bad; the banks and corporations were bad; the United States government was bad; the rich were bad; ROTC was bad,” he writes. And anyone who didn’t accept these moral truths was just part of the problem.

For Wilkinson, that all-or-nothing ideology made the ’60s “an experience in lethal blindness,” leading to a broad cultural inability to defend what should be the pillars of any society: Education, home and family stability, the rule of law, public service, national unity and, ultimately, faith in general. “When you add all of those things up, that’s enormous,” he said.

book-cover_insertIt’s a far fall for the country that produced the Federalist Papers, the Bill of Rights, and the Civil Rights Act of 1964; sacrificed beyond measure to promote a free world; and restructured its post-war economy to support middle-class families. Wilkinson lauds this history of “a nation that tried.” But one can’t miss his use of the past tense.

Wilkinson notes that, since the ’60s, Americans have great difficulty viewing their country, and each other, “in the round” – that is, acknowledging both features and flaws – the way we view our loved ones and best friends. When only the problems are salient, he said, “You deprive citizens of a sense of identity, and a sense of home, and a sense of rootedness, and you leave people without a sense of belonging. And if you don’t have that sense of rootedness and belonging, then you’re just left, I think, without much common ground.” As a result, Wilkinson writes in All Falling Faiths, “America has become too much a land of strangers.”

Wilkinson’s own generation “did a lot to fracture the country and to engender animosity,” he lamented. “But maybe we could devote our remaining finite energy to the process of healing and building bridges, before we leave life and Shakespeare’s stage for good.”

‘Passionate moderate’

“Moderation is really a lovely word,” Wilkinson said. “I consider myself a passionate moderate.” He concedes this position can be lonely. A consistent theme in his memoir is his inability to fully adopt the worldviews of those around him – and not always for lack of trying.

But it’s a reassuring quality in a federal judge, and Wilkinson’s most memorable opinions draw on it. This January, he wrote for a unanimous panel in Greater Baltimore Center for Pregnancy Concerns Inc. v. Mayor and City Council of Baltimore (VLW 018-2-002), striking down an ordinance mandating signage for pregnancy clinics. He concluded with a call to de-escalate America’s hottest of hot-button issues:

“The abortion debate in our country has a long and bitter history. Vast disagreement on the merits has led both sides to retributive speech restrictions and compulsions…. Weaponizing the means of government against ideological foes risks a grave violation of one of our nation’s dearest principles: ‘that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.’ It may be too much to hope that despite their disagreement, pro-choice and pro-life advocates can respect each other’s dedication and principle. But, at least in this case, … it is not too much to ask that they lay down the arms of compelled speech and wield only the tools of persuasion.” (Internal citations omitted.)

It’s an approach that might look like trying to have it both ways. “I just think it’s the only way we can live together,” Wilkinson said. “Your opponent is different from your enemy.”

In the abstract, Wilkinson’s political pacifism is eminently sensible. But many national controversies have become raging existential conflagrations – in part because dehumanizing speech can spread so far, so fast. White nationalists and neo-Nazis have recently had a very visible resurgence, culminating last August in chilling – and deadly – demonstrations in Wilkinson’s home city of Charlottesville. Every week, new videos circulate showing people of color harangued with some variation on “get out of my country” or violently – and sometimes fatally – subdued by agents of the state. Entire online communities are organized around the belief that women and girls should be “assigned” to men and kept out of the paid workforce. The truth is, we have real reasons not to give each other the benefit of the doubt.

Concurrently, traditional political debates take an increasingly life-or-death character, especially on issues that really do affect whether people live or die: Health care. Gun regulation. Abortion. Police actions. Environmental regulation. (But really any argument can quickly turn into a zero-sum game. “The war among YouTube vegans is some of the harshest stuff I have ever seen on that platform,” Vox journalist Jane Coaston observed recently.)

“After every incident is the rush to choose sides. Why not await the evidence? Has there been too much history for that?” Wilkinson asks in his memoir. He seems to know that the answer is a sad one.

 ‘The law needs help’

To be clear, Wilkinson’s brand of moderation doesn’t take social scourges like racism lightly. Rather, it’s a necessary ingredient in an antidote to such evils: the rule of law. Representing collective judgment, law is the best tool we have for mediating differences, Wilkinson writes.

But in a chapter called “The Demise of Law,” Wilkinson argues that the events of the ’60s crippled the legitimacy of legal authority. He saw “wonderful acts of protest,” like the march from Selma to Montgomery, overshadowed by violent riots. Worse, “people entrusted with enforcing laws were engaging in violence themselves, unnecessarily.” In this context, he recalls, arrest “became a badge of honor – the hallowed moments of the decade were those spent by King in a Birmingham jail.”

But for the rule of law to flourish in the long run, Wilkinson said, “You need citizens who respect the law and want to obey the law” – even when it doesn’t favor their side. “Law needs help,” he insisted. “Law needs help from all other facets [of society]: Communities, churches, schools, universities, families. If those institutions are weakened, then it seems to me that the underpinnings of law are weakened as well.”

Putting law to the test

Does Wilkinson overstate law’s “demise”? There could hardly be a better test case than special counsel Robert S. Mueller’s investigation of Russian interference in the 2016 election (and crimes related to that investigation), now into its second year.

Like Wilkinson, Mueller served in the military between attending an Ivy League college and earning his law degree from the University of Virginia. (Wilkinson, in the class of 1972, graduated one year earlier.) But Mueller finished at Princeton in 1966, just missing – unlike Wilkinson – the anti-Vietnam movement that soon overtook college campuses.

Journalist Garrett Graff tells the story of Mueller’s time in Vietnam in a recent article for Wired magazine. Mueller trained first at Officer Candidate School and then the notoriously intense U.S. Army Ranger School, where the political turmoil of 1968 was beside the point. He shipped out to Vietnam and overcame his fellow Marines’ initial wariness of his Ivy League background, becoming a trusted leader known for meticulous planning. The man who would direct the FBI in the aftermath of 9/11 told Graff that he never confronted anything “as challenging as leading men in combat and watching them be cut down.”

Wilkinson, who enlisted in the U.S. Army in 1968, writes that, in addition to compromising Americans’ sense of duty and service for generations, the polarized legacy of the ’60s festered in large part due to the divide between those who fought in Vietnam and those who didn’t have to. “The class divide was so deep … that it was almost like these weren’t even fellow countrymen,” Wilkinson said.

In Vietnam as now, Mueller represents an anecdotal counterpoint to Wilkinson’s broader fears of a splintering population. As an enlisted Princeton grad fighting for his life alongside midwestern farmers who didn’t attend college and involuntary draftees, Mueller’s time in Vietnam is, in part, a story about Americans from vastly different backgrounds recognizing that they’re on the same side.

Now, as a Republican appointee investigating whether other Republicans encouraged foreign election interference, Mueller has a similar task, but the stakes are much higher. History will likely judge his investigation less by the crimes it uncovers than by whether it represented – and was received as – a fair and proper execution of the rule of law. If not, Wilkinson’s title – All Falling Faiths – will be all the more apt.

The prospects can look grim: President Donald Trump regularly characterizes Mueller’s investigation as a partisan “witch hunt.” A May CBS poll reported that 53 percent of Americans (and 88 percent of Republicans) believe the investigation is “politically motivated.”

But in a speech on June 5, Deputy Attorney General Rod Rosenstein – who hired Mueller – echoed Wilkinson in a pointed speech on what it means to “keep” the rule of law. “We must have the courage to face any temporary criticism, because the moral authority of our legal process depends on the commitment of government lawyers to act impartially,” he counseled, quoting former Attorney General and Supreme Court Justice Robert Jackson. “The rule of law is our most important principle. Patriots should always defend the rule of law, even when it is not in their immediate self-interest.”

Grounds for optimism

Wilkinson’s faith in institutions, or what’s left of it, is sustained by succeeding generations. He particularly enjoys watching his law clerks become leaders. (A former clerk, Rachel Kovner, was recently nominated to the federal bench in the Eastern District of New York; his current clerk, Kelly Holt, will clerk for U.S. Supreme Court Justice Neil Gorsuch in 2019.) And he’s inspired by the fresh spirit of volunteerism he sees in high school and college students.

What is the role of lawyers in bolstering the rule of law?

“The great thing about law is that you have to listen to your adversary’s argument. You have to actually listen,” he responded. Even in non-legal settings, he said, lawyers trained and practiced in the process of civil and respectful argument have a unique ability to promote in all citizens an abiding respect for – and faith in – the notions of regular process and institutionalized disagreement.

All Falling Faiths, Encounter Books, © 2017 by J. Harvie Wilkinson III.