In the heat of forensic battle it is hard to recognize when a concession — even a huge one — has been made. I tell this to my students in Trial Advocacy all the time, especially when they practice cross-examination. I tell them: listen to the witness’s answer and know when you have won. Then stop. Bank it for your closing argument. Move on to something else, or just sit down.
This comes as news to my beginning students. They keep jabbing at the witness, mauling him or her if given the chance (and, sometimes, even when not). These students mistake the process for the result. They think that the point of cross-examination is precisely to be tough, harsh, combative, as if they get points for being, well, cross. The point of cross-examination is, however, to get what you need from the witness in order to make the closing point you have already decided to make. If the witness serves it up to you on a platter, be glad. It’s a good day. Don’t act like you have been robbed of your birthright, of your one chance to go ten rounds with the champ.
Barack Obama has just handed a great gift to conservatives. He is now on record (with Wolf Blitzer, if that counts) as saying about the Supreme Court that in “5 percent of cases or 1 percent” the law won’t be clear. Obama is thus conceding that there may be as few as one case each term in which a Justice would have to resort to his or her own “moral bearings” to decide the matter. ONE CASE!!!.
This gigantic concession to law’s determinacy will shock the consciences of Obama’s teachers at Harvard Law School, who surely gave much wider berth to the vision thing in matters constitutional. Too bad for Laurence Tribe, who might now want to re-shoot his fawning television commercial for Obama. But, for conservatives, it is very good indeed. It is not time to bicker and argue with Obama about the content of judges’ worldviews, and about the proper scope of judicial deference to legislators in the annual limit case. It is time to stop. Sit down. Kick back. And pop open the bubbly, for Barack Obama has just announced his conversion to the conservative legal movement.