The Corner


Decency Is No Barrier to Justice or the Common Good


My mentor in the practice of law, the person who taught me more than anyone else about life as a lawyer and an advocate, is a former Marine JAG officer and former chairman of one of the largest law firms in the Southeast. His name is Phillip D. Scott, and I could write an essay full of stories about the things he taught me — mainly by example. Here’s one.

Relatively early in my career he brought me into one of the more intense cases I’ve ever litigated. Each twist and turn headlined the local papers, and it was on a rocket docket — involving multiple oral arguments compressed into two trips to the Kentucky Supreme Court. It was the kind of case that absolutely consumes your life for weeks on end. You barely see your family. You barely sleep. You just work.

One afternoon, in the middle of the legal trench warfare, we received devastating news. The Kentucky Court of Appeals had ruled against us. The decision didn’t mean we were dead, but — to quote The Princess Bride — we were just “mostly dead.” I was furious at the manifest injustice of the decision, at the looming probable loss, and (I must admit) at opposing counsel. During contentious cases, tempers can flare, and there were more than a few moments when I didn’t just want to win, I wanted to rub opposing counsel’s face in the loss.

I was in Mr. Scott’s office (few people had the stature to call him “Phil”) when we got word, and the moment after he called the client to deliver the bad news, he picked up the phone again. I asked who he was calling. It was our opponents. He was calling to congratulate them on their victory. I was flabbergasted. All I wanted to think about was the appeal. All I wanted to do was to snatch victory from the jaws of defeat. But in the midst of our apparent loss, Mr. Scott took the time to acknowledge our opponents’ work, their sacrifice, and their triumph.

It’s a lesson I never forgot — even when the Kentucky Supreme Court granted our request for review, reversed the Court of Appeals, and handed us victory in the case. He fought for our client. He fought for ideas. Yet he never forgot the humanity and dignity of our opponents, even when the stakes were high.

I thought about that moment over the Memorial Day weekend, when I saw this tweet from New York Post op-ed editor Sohrab Ahmari:

I don’t want to pick on Sohrab, but I get this sentiment quite a bit. According to some folks on Twitter, I don’t “fight.” I’m too polite for these times. I’m too much of a squish. Apparently, the lesson I learned from a better lawyer than me has been transformed into a kind of defect. A weakness.

But in the example above, what did politeness, respect, and dignity cost anyone? We prevailed in the case. We vindicated our client and achieved a just result. At the same time, we treated other human beings (in spite of my juvenile quest for vindictiveness) with dignity and respect.

In my legal career, I tried to emulate Mr. Scott’s example. Before I left the full-time practice of law, I’m pretty sure that I sued more universities for First Amendment violations than any other lawyer in America. Working with an elite team, God was gracious enough to grant us victory after victory — to the point where literally millions of young Americans can go to school more free of government censorship than they were a generation ago. More Christians are on campus now, sharing the Gospel without fear of government reprisal, because of our work.

Yet even in bitter litigation, I did my best to keep the fight to the law while treating my flesh-and-blood opponents the way Mr. Scott treated his opponents.

In more than two decades of public advocacy, I’ve taken part in virtually every significant cultural fight in the United States — none more important than the fight for life. The pro-life movement is experiencing historic success. The abortion rate is falling to its pre-Roe levels even as a wave of states are acting through legislative supermajorities to protect a child the instant its heart beats.

From the moment I joined with two friends to form a dedicated pro-life club at Harvard Law School 27 years ago, we knew a core truth. The pro-life movement advanced through love — love for mother and child. And while no one should shrink from telling hard truths, the movement does not advance through scorn. Indeed, every hateful advocate for life sets the movement back. The violent and scornful men and women were the movement’s greatest liability. When lives are at stake, you reach out to people with your whole heart.

There was another way that Mr. Scott influenced me. He had served his country in uniform. I had not. So later in life, at the age of 37, I joined the Army as a JAG officer. I volunteered to go to war, and I deployed to Iraq with the Third Armored Cavalry Regiment as part of The Surge in 2007. We had a hard deployment. I lost friends who were as close as brothers. I grieved them again this weekend. I grieve them constantly.

While I was downrange, I did my best to facilitate aggressive kinetic operations that killed terrorists and cleansed al-Qaeda from Diyala Province, next to the Iranian border. But when the men we tried to kill surrendered, I also did my best to make sure that they were treated humanely, according to the laws of war. A defeated foe is still a human being, and all human beings are created in the image of God.

Along the way — through lawsuits, deployments, and too many political and ideological fights to count — I’ve learned a few things. Or, more accurately, I’ve experienced the truth of scripture. Our battle is not against flesh and blood. Our mandate is not just to seek justice, but also to love mercy and walk humbly. We’re not just supposed to treat our enemies with respect, we’re supposed to love them. Against that standard, being “polite” is the absolute least I can do.

Over the years, I’ve developed a few rules of engagement. Among them, fight for the rights of others that you would like to exercise yourself. Here’s another — separate ideas and people. If I believe that the ideas I uphold are best for human flourishing, outside of war why would I want to “destroy” or “own” or otherwise harm another person in defending those ideas? And also, I try not to urge any stand that I’m not willing to take myself. That’s ultimately why I joined the Army. How could I in good conscience urge Americans to volunteer for a war that I (a healthy, able-bodied American) found excuses to miss?

Note well that not one of those rules means retreating one inch from fighting for your fundamental values. In a different tweet, Sohrab described my alleged “libertarian conservatism” like this:

Yet nothing about the record above describes me begging for anything. Instead, we step into the public square, demand that our rights be protected, and then choose to exercise those rights for virtuous ends.

We live in a strange time when fighting for fundamental liberties while treating other human beings respectfully is seen as a sign of weakness. One can’t help but see the outlines of a case for Trump, the insulter-in-chief, in the disdain for basic decency. Is treating other people like garbage the way to a better America?

If a person despises me for defending life, filing lawsuits to protect the First Amendment, or deploying abroad to play my own very small part in battling vicious terrorists, then so be it. That’s what some on the Left have done. Some on the new right, however, seem to despise me for not mocking my opponents, not insulting them, and not treating them as less-than-human. It’s disheartening, but we should not be discouraged.  We must vindicate our core values without violating our core values, and I don’t want any part in any “conservative” movement that holds otherwise.


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