February 05, 2019

Bridging Ideological Chasms—In Life and in the Conference Room: What Would George Washington Do?

By Deborah P. Heald

Bridging ideological divides in our increasingly hostile political environment may at times feel like a Sisyphean task. But the path forward may very well be charted by looking into the rearview mirror – examining the values that the Founding Fathers sought to instill in our government in its infancy. This was the central idea presented at this engaging and lively panel discussion, moderated by Susan S. Dautel, Assistant Deputy Clerk, New York State Court of Appeals. Joining her on the panel were Susan N. Herman, President of the American Civil Liberties Union and Centennial Professor of Law at Brooklyn Law School, and Judge Elizabeth Gobeil, who sits on the Georgia Court of Appeals.

In her introduction, Dautel painted a decidedly un-rosy picture of our polarized society – rife with strident discourse and a battle of red versus blue, with very little purple in between. She suggested that by looking at political chasms from past generations, we might find the tools to bridge our current divides.

On the hyper-partisanship in today’s political climate, Professor Herman posited that the Founders would be disappointed … but not surprised. She referred specifically to the relationship between John Adams and Thomas Jefferson – lifelong political rivals who couldn’t agree on issues such as slavery or the role of the federal government. Yet they were still able to find common ground in drafting and signing the Declaration of Independence. And even though neither man signed the Constitution, they recognized it was being framed by people, who despite their severely different points of view, worked extremely hard to create “a system of neutral principles” that would enable future generations to continue the debate.

Herman went back even further to the era of Washington, who in his Farewell Address, acknowledged his fear that the unity of government would dissipate. He foretold and cautioned against an era of blind allegiance and the rise of political parties as we know them today: “Let me now take a more comprehensive view, and warn you in the most solemn manner against the baneful effects of the spirit of party generally.”

Washington’s fears of inter-party enmity most infamously came to pass under Adams’s presidential tenure with passage of the Sedition Act of 1798, wherein the Federalist government only prosecuted those who were publishing writings critical of the president. But when Jefferson was elected, he didn’t seek revenge. In his first Inaugural Address, he acknowledged the divide, but encouraged unity by way of looking to the original framework that formed our country: “Every difference of opinion is not a difference of principle.”

In the same manner, Herman continued, the ACLU takes a cue from Jefferson and does not concern itself with partisan interpretations of the Constitution, but rather the “defense of its fundamental principles.” Referencing two Supreme Court gerrymandering cases – Gill (Republican-focused) and Benisek (Democrat-focused) – the ACLU opposed both. As another example, in Florida Amendment 4, Voting Rights Restoration for Felons Initiative, the ACLU enjoyed support from Florida TaxWatch (from an economic point of view) and the Christian Coalition of America (from a redemption point of view), suggesting that the spirit of the Constitution is not locked into one side, but rather finding common ground, “even if you don’t get there the same way.” Herman ended on an inspirational note, sharing several websites that facilitate in-person and online discussion among people of varying points of view: benfranklincircles.org, pnyka.com, and makebridges.com.

Judge Gobeil continued the discussion, focusing on the practical, rather than the historical take on bridging ideological divides. She put forth the basic tenet of choosing civility and recognizing there is a difference between what we have the right to say and do, and what we should actually say and do. Reaching back once more to the 18th century, Gobeil recounted a list of “110 rules of civility” that were handwritten by a 16-year-old George Washington. Some were amusing, some antiquated, and some both (“kill no vermin in sight of others”), but the overall impression was a focus on respect and consideration of others that has been all but lost in the “age of the selfie,” where we are increasingly self-interested.

But civility is only half of the equation, said Gobeil. We need to take time to understand those with opposing viewpoints – to get to know and understand them. Recounting a colleague’s class project at Stanford, Gobeil spoke about a group of students who were charged with finding someone with a contrary point of view on a divisive subject, interviewing them, and reporting back on their findings. When the class reconvened, the themes were consistent – interviewees supported their position for a wide-range of reasons; they were largely thoughtful and good-hearted. Students’ assumptions about their interviewees weren’t reflective of the truth they found. Gobeil acknowledged that this exercise probably didn’t change anyone’s stance – nor was that the intent – but it improved the students’ understanding of the issues and the opposing viewpoints, and also fostered feelings of empathy and respect. She took a hopeful approach to the findings: “Maybe this world isn’t quite as polarized as social and mass media would have us believe.”

Following the panelists’ prepared remarks, Dautel continued the discourse, asking specifically how the proliferation of social media has impacted the divides. Gobeil and Herman both agreed that social media fuels polarization, with Gobeil calling out its “cowardly communication” and Herman remarking that it “coarsens the tone of discourse.” But Gobeil cautioned against using social media as the true temperature of our society. She pointed to a More in Common study that found that only 14% of Americans are divided between those who identify as far right or far left, while 67% are the “exhausted majority” who are just tired. Herman added she has heard the expression, “human beings have a taste for sugar, salt, and fat,” which can explain why lies are so easily perpetuated online. She said that we have to work hard to find the “leafy green vegetables” of the Internet.

Dautel asked the panelists how we might bring these ideas, principles, and hopes into the conference room and the courtroom. Gobeil said we should focus on the rule of law and added that civility, professionalism, and building relationships promote more effective discussions. Herman pointed to two kinds of ideological chasms: one being what the law says or means; the other being the perception that judges are “politicians in robes.” She acknowledged the challenge of convincing people to believe in the rule of law.

In a light, yet poignant moment toward the end of the panel, an audience member shared his story of navigating his “politically mixed marriage.” He echoed Gobeil’s focus on civility and offered that the problem is not fundamental disagreement, but rather that “we’ve lost a consensus on manners and on civility for its own sake. We’ve all become cheerleaders for our own side of ideological debates regardless of the manner in which the news is being conveyed.” Using the example of an injured football player down on the field, he pointed out that both sides applaud in support of the player – and if we ever lose the perspective that we can applaud for the other side, “we’re lost.” Dautel quipped, “This is why you’re still married.”

Before breaking, Dautel asked the panelists what we can do as judges and attorneys, outside of the courtroom, to help restore integrity and the public confidence in a non-partisan judiciary. Gobeil pointed to some developments in Congress that could be a model for the legal community, the Civility Caucus and the Problem Solvers Caucus, both of which aim to restore civility among Congressional members and their constituents. She admitted that there is “no magic button,” but it’s a step in the right direction.

As for the initial question posited by the panel – what would George Washington do? – teenaged George was certainly wise beyond his years: “If two contend together, take not the part of either unconstrained, and be not obstinate in your own opinion.” If vociferous but respectful debate results in two people taking a single step towards one another, a chasm – as wide as it may be – will narrow by two feet. 

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Deborah P. Heald

Deborah P. Heald is a litigation associate in the Los Angeles office of Bryan Cave Leighton Paisner, LLP, where she has focused on appellate matters for the past several years. Having lived in Los Angeles her entire life, Deborah obtained her undergraduate degree from UCLA and her J.D. from the USC Gould School of Law.