During the past couple of months, when I have traveled outside of Wisconsin or talked to colleagues and friends outside of the state, I have been asked what is going on here. With protests in Madison, the Packers winning the Superbowl, True Grit in the movie theaters and Hair on stage, I think it is 1968 all over again. But a New York Times Op-ed piece yesterday reminded me that it might be more like 1954 when attorney Joseph Welch asked Senator Joe McCarthy “Have you no sense of decency, sir, at long last?” McCarthy, then the junior senator from Wisconsin, exhibited the same aggressiveness, self-certainty, and indifference to contrary views that Wisconsin’s new governor, Scott Walker, seems to be employing in his first few months in office. And with Walker’s public opionion poll support slipping while his fellow Republicans in the state senate are facing the possibility of recall elections, the final results may be similar.
Lawyers, through their bar associations, have been discussing ways to combat and reduce incivility in our profession for many years. The broader business community and society in general now seem to be looking for ways to do the same thing. The legal profession is built on an adversarial model, where aggressive investigation, prosecution, cross-examination and defense tactics are the norm. Even in alternative dispute resolution proceedings, we see attorneys zealously representing their clients’ interests to the exclusion of competing interests. But in the legal arena, there is some kind of referee—be it a mediator, arbitrator or judge—to oversee the combat and keep the parties in line. In the political arena, no one seems to be in charge. And the U.S. Supreme Court has recently held that the First Amendment protects people’s rights to be indecent and uncivil in their public discourse. In Snyder v. Phelps, the Court said that because religious picketers near military funerals expressed their views at a public place on a matter of public concern, their speech was entitled to “special protection” under the First Amendment. But that protection extends to legal action in the courts of law. In the court of public opinion, I suspect that the Westboro Baptist Church is making very few friends.
Likewise, in civil litigation and disputes, one must ask how successful incivility and indecent tactics are. Governor Walker succeeded in getting the legislature to pass his bill restricting public employee collective bargaining. But the legislation is now tied up in the courts and the Republican majority in the state legislature could be challenged at the polls much sooner than expected. If the legal or political challenges succeed, they might provide the kind of reality check that attorney Welch delivered in 1954. Proving once again that what goes around, comes around.