Dershowitz on Dershowitz

THE OPEN MIND
Host: Richard D. Heffner
Guest: Professor Alan Dershowitz
Title: “Dershowitz On…Dershowitz”
VTR: 10/14/90

I’m Richard Heffner, your host on THE OPEN MIND, where my generally bookish, rather heavily intellectual guests aren’t often media stars, too. But today’s guest certainly is. For if one is to credit his official c.v., he has been seen on just about every television public affairs or talk show extant, and has, at one time or another, been interviewed, celebrated – even excoriated – in just about every newspaper, news magazine or journal of opinion worth thinking about.

He also seems to write and to be quoted everywhere…and to say what he thinks constantly. So that the peripatetic Alan Dershowitz, professor at Harvard Law School and appeals attorney of last resort for so many well-known persons on trial is well-known, too…a fact his critics seem to deplore more than anything else about his magnificent legal gadfly.

Now, my guest has already recorded a program with me on THE OPEN MIND discussing free press issues and journalistic ethics in the Jeffery Masson-Janet Malcolm case. So now I want Alan Dershowitz to talk with me about…Alan Dershowitz…and I would ask the good professor just what he thinks the most important point is to make about our subject today.

Dershowitz: (Laughter) What a question!

Heffner: What a question!

Dershowitz: When I think about…I always…whenever I do an argument in the Court of Appeals, I always try to anticipate what the hardest question the judges will ask. Well, I think one of the points that I like to make is whether you can really stand out there and defend the Bill of Rights without exposing yourself to the kind of criticism that you rightfully say I’ve been exposed to. My own feeling is that lawyers have been far too elitist, that we talk a strange, funny language. That liberals, particularly, for many years, the legacy of the Warren court, I think, was a message to liberals…if you can just persuade nine men in robes that your point is right…you don’t have to persuade the American public. And I’ve always taken the opposite view. I think if the Bill of Rights is going to survive somebody has to be out there persuading everybody in this country that it’s for them, and that’s why I don’t turn down opportunities to be on television shows that reach a general audience. That’s why I don’t turn down opportunities to write in the popular media. That’s why I don’t limit myself to law journals and to The New York Times, because I think you’ve got to be out there persuading everybody the Bill of Rights is for them. And so my question is, can you do that in this society without being accused of kind of pandering and being a self-promoter?

Heffner: Well, you know, it’s interesting because I had picked out in this…I find most fascinating book The Best Defense, which is not your newest book now. You say, “As I laid out the arguments pro and con…”, and this had to do with the Deep Throat case, “it became clear that a decision on this issue could go either way. There were plausible arguments on each side. In the prevailing mood against obscenity, I could not afford to place all my reliance on a technical, legal argument. We had to persuade the media, the public and the courts that the conviction of Harry Reems was an outrage. Before this case could be won in court, it first had to be won in the public mind”. And I gather that’s what you’re saying about each of the arguments that you would make in defense of the First Amendment and other liberties that you hold dear.

Dershowitz: I think that’s right. I think almost…you know, the most interesting issues are always close ones. We don’t argue about issues that aren’t close, that couldn’t go both ways…at least I certainly don’t spend my time doing that. And on close issues…the mood, the atmosphere, what the public thinks, is very, very important. Yes, the Justices do read the election returns, and yes, the Justices do go home to their friends and their spouses and they have to justify whet they’ve done. And if the Justices do it, surely the judges, and the jurors and the legislators…so it’s very important to try to create an atmosphere and a mood of receptivity toward our freedoms and our liberties.

Heffner: But, Professor Dershowitz isn’t this one of your prime criticisms of the court, for instance, and I don’t mean just the highest court…that the judges do follow the election returns?

Dershowitz: Yes, and indeed, I both criticize it…abut I won’t sit back and accept the wrong results if my criticisms aren’t listened to. I would love to operate in a system where the nine Justices were the nine most brilliant lawyers in America, and I could argue abstract legal theory to them and understand that I was going to win or lose on the merits of my argument. There are few courts in the world where that is true, but they use a very different selection mechanism. That’s not the United States Supreme Court. The United States Supreme Court not only does not contain the nine best lawyers in America, it’s not even a close question. If you listed the thousand best lawyers in America, you might find, at most one or two of them on the United States Supreme Court. Maybe it…at its best…three or four in the United States Supreme Court. The Supreme Court has been a place where very mediocre lawyers have spent long periods of time having enormous influence on the American public. And the more mediocre they are, the more likely they are to be influenced by just the kind of things we’re talking about. And so it’s important not to simply make abstract arguments to the courts.

Heffner: If you took that point of view that you’ve just expressed, would you say, let’s accept its validity? Would you say that is good or that has been bad for the development of this nation, that you do not have, by and large, on the Supreme Court of the United States, the best legal minds in this country?

Dershowitz: Sometimes it’s been good and sometimes it’s been bad (laughter).

Heffner: Oh, come on.

Dershowitz: Because some of the best…not, it’s true. Some of the best legal minds in this country, Justice Taney, Justice Storey, have been terrible in terms of human values. Just because you’re brilliant doesn’t mean you have to have compassion for humankind. On the other hand, Justice Earl Warren, you know, was not one of the brighter Justices to serve on the Supreme Court, certainly understood the role of the Court as being there to vindicate the rights of the disenfranchised, those who have no power, those who don’t have access to the other branches of government. So like most things in life, it has some good and some bad aspects.

Heffner: Now you have been enormously critical of the judicial process in this country. Do you think to good ends?

Dershowitz: Well, I certainly have, I think, made the average American who’s had an opportunity to hear me somewhat more skeptical of the judiciary. I think we…I think I’ve helped contribute to looking behind the marble pillars and the oak bench and the black robes and to understand that the nine people on the court and the several hundred judges in the Circuit Courts of Appeals, and thousands of other judges are just human beings with passions and prejudices and bias, and we shouldn’t attribute to them any great wisdom or brilliance beyond that which other people have. They are… they are right not because they are wise, but they are right because they’re final. And I think it’s had some impact. In a democracy that’s good, to shake faith in any institution of government. I would hope the media would do more of that, and I think the media hasn’t played an important enough role in exposing the judiciary.

Heffner: Let me ask you about what you just said. You said, “In a democracy…”

Dershowitz: Yes.

Heffner: …”shaking faith…”

Dershowitz: Yes.

Heffner: …”in public institutions is a good thing”?

Dershowitz: Right.

Heffner: Now, I would imagine, and I can’t give you chapter and verse, I must admit that and maybe this is not true, but I would imagine that Alan Dershowitz at the time…though he was very, very young, at the time of President Nixon’s near impeachment, when he left office, under pressure and at the time of many, many, many other actions on the part of our government said, “Doggone it, these people are undermining the public’s faith in its institutions and this is not good”. Now what’s the difference?

Dershowitz: Well, I think it’s generally good to undermine the public’s faith in institutions.

Heffner: Why?

Dershowitz: I’m a skeptic. And I brought up my children and I brought up my students to be skeptics. My favorite T-shirt that my kids gave me several years ago said “Question authority, but raise your hand first”. I don’t ask my students even to raise their hands. Given a choice between too much respect for institutions and too little, I much prefer to have too little respect for institutions.

Heffner: But why do you make it a choice? Why do you make it a choice between too much and too little? Is there no balance?

Dershowitz: Well, I think the balance has to be struck and the balance should be struck in favor of everybody being critical of institutions, being critical of churches, being critical of governments, being critical of the press, being critical…you know, there are…obviously when you’re bringing up children, you want to make sure that they have faith in institutions, up to a certain period of time, but in a democracy I think a certain degree of cynicism, a certain degree of distrust is probably a good thing.

Heffner: Oh, well, look, distrust, skepticism, cynicism and the inquiring mind…they’re really not all the same thing, are they?

Dershowitz: They’re not, but when it comes to government. We’re talking again about the most powerful force that we have unleashed on this planet. Governments have done so much good and so much harm and I think the idea of citizens being skeptical of institutions particularly the government is a very, very healthy thing. If more citizens had been skeptical of Nazi Germany, if more citizens had been able to be skeptical of Stalin’s Soviet Union, I think we’d have been better off. And you asked about Nixon. If more of our people had been skeptical of any administration, I don’t want to focus only on Nixon because what Nixon did other administrations did before and since, but haven’t been caught. The idea of skepticism of institutions is a very healthy thing in a democracy. And for years we had been skeptical of most branches of government, but not the judiciary. My good friend Anthony Lewis in his brilliant book Gideon’s Trumpet wrote just a great, great, positive song to the Supreme Court, and a generation of students, I think, in reading that book have come away with a view of the Supreme Court which, I think, was somewhat unrealistic.

Heffner: Well, no one has as yet, thought I’m sure there are some who would, consigned you to drink the hemlock. But as an intellectual gadfly have you no concern as Socrates did at the end there, that perhaps you are undermining more than you would wish to undermine? Has that thought ever crossed your mind?

Dershowitz: It has, and it’s a very hard balance to strike. Remember, I teach at the Harvard Law School, which is in itself an institution, whose integrity…not integrity, but whose power I like to undermine with my students as well. I think that when you think of my students going into a profession where they adore judges, where they adore the Constitution, where there is a sense of the tradition of Harvard, teaching them a little bit of skepticism is a very healthy thing. You ask about hemlock. Yes, I’ve been consigned to that. I was up in Canada not so long ago, and I made a talk about why even Holocaust deniers and people who make outrageous statements should have the freedom to express their views and an old judge of the Supreme Court got up and he said, “A man like you shouldn’t be allowed to teach students”, that don’t I have any faith in institutions? And my answer is, in my private life I have a lot of faith. In fact I’m a religious person. In fact, I do love the Pledge of Allegiance. In my own personal life I suspend sometimes my, my disbeliefs. But when I’m teaching and when I’m in my more public situation, I really think that instilling a sense of distrust, in stilling doubt is a very important role for a teacher to play.

Heffner: Alright, but when you’re in your private incarnation, but dealing with public issues…

Dershowitz: Yes.

Heffner: …dealing with public issues, is there a point at which we can read “Here Dershowitz draws the line”?

Dershowitz: No. I, I don’t…I don’t think I draw the line. I don’t think there is an institution that I wouldn’t want to see subject to more criticism than it’s now being subject to, certainly if it’s any kind of a public institution. I would prefer to see more criticism rather than less criticism, more skepticism rather than less skepticism, because I think we live in a world where people worship institutions, where people have enormous faith and far too much faith in institutions eve though the pubic opinion polls show that, you know, lawyers are not particularly trusted and government officials aren’t particularly trusted. I do think too may people kind of abdicate their individual responsibility and place trust in institutions.

Heffner: But you know it’s interesting to me that you said…you expressed, gave expression to the very question that I was going to ask you. How about the public opinion polls? In every indication in our society that there is less faith and less confidence and more questioning…not even questioning, rejection of institutions. Aren’t you fighting an old, old battle?

Dershowitz: Maybe. Maybe there isn’t’ even enough skepticism about public opinion polls as an institution.

Heffner: (Laughter)

Dershowitz: We ought to look at those also. Yeah, of course, it’s an old battle. I mean you, in a flattering comparison, whether you intended it as such or not, mentioned Socrates. I think the role of philosophers and teachers, from the beginning of time has been to challenge institutions, and we, we, we who challenge always understand that the institutions will always have their cadres of support. There will always be those who stand up for institutions. There will always be those who say, “But the church can’t be questioned”. Or “the State can’t be questioned”, or “the media can’t be questioned”. And then there are those of us who will always say, “Question. Question. Question. Question”.

Heffner: Is there any concern on your part that as has happened to so many gadflies before you, that as the years go by, we will find you to be less and less of a questioner and more and more of a person who feels there is increasing value in belief and faith in these institutions?

Dershowitz: The years have gone by. I’m 52 years old.

Heffner: You’re a child, you’re a child.

Dershowitz: I hope there will be more years to question. I think I’ve become more of a questioner rather than less of a questioner. As I become more comfortable financially and in terms of success, I find that I have uncomfortable feelings about that. My own “Why should I be successful? Why should I be so comfortable?” I kind of react by questioning even more so that I doubt that we’re going to see this gadfly become a comfortable man who looks to institutions. Again, make the distinction in my own private life. In my own private life I maybe question a little bit less, maybe there’s a little bit more that’s done on faith. Maybe there’s a little bit of a return to some traditional values and to some religious values. But all of that’s consistent with a public posture of criticism.

Heffner: How so? That puzzles me because certainly the drive to question, to question authority in every respect must have been the same in its origin in your personal, private life as in your public life.

Dershowitz: But it doesn’t have to follow through in the same way. For example, I have myself chosen family values. My children are very important to me. I have a very happy marriage and a very nice family and a little baby and I personally strongly believe in my own life, in family values. On the other hand, I‘m out there every day defending the rights of gays, defending the rights of people with alternative lifestyles. I challenge the concept of family when I hear it from Republicans. I challenge conventional values though I live myself with conventional values. I don’t have difficulty separating out my own choice…my own self…I have my real doubts about abortion for example, real doubts about abortion. On the other hand I’m out there defending any woman’s right to choose to have an abortion. So, I can separate out the public skepticism and criticism because I think I understand, I hope I understand the role of individuals in the large society. Remember, too, we live in the most heterogeneous, diverse society in the history of humankind. We have nothing in common. That’s why we made such a fuss about our flag when people started to burn it. Nothing holds us together. We have no views in common, and we live in a government that is very powerful, and would impose views on differing minorities. I want to fight that. But in fighting that I want to maintain my right to choose the most conventional life values that I’ve chosen.

Heffner: In choosing those conventional life values, certainly the matter of personal security looms large. Personal security of your family…

Dershowitz: Yes.

Heffner: …your elders and the younger ones…

Dershowitz: Right.

Heffner: …then are you still as convinced as you always have been that the criminal must go free if the constable blunders?

Dershowitz: You’ve put you finger on, for me, what is one of the hardest problems. I very strongly believe that in relation to government our criminal justice system has to lean over very far backwards to make sure that the guilty are, are convicted, but that the innocent are acquitted, and that we resolve doubts in favor of acquitting even if we sometimes acquit the guilty occasionally. I always think we have to lean over very far to make sure that the police and prosecutors are honest. As a private citizen, I root for the good guys. I’m always in favor of the cops. I always love to see guilty people captured and given strong sentences. If I were ever a judge and I don’t want to ever be a judge, I think I’d be a pretty tough sentencer. You know when the Ginsberg story broke a couple of years ago, people were shocked to learn because I mention it…I have never used a drug in my entire life. I may be the only person of my generation…I don’t break the law. I don’t believe in civil disobedience as an individual. I believe in retribution, and I am very tough on criminals. Yet, I…as a public figure I very strongly make sure that the government has to remain honest. And I don’t see any contradictions.

Heffner: And if you were a Presidential candidate and the same question were put to you by a newsman, in a so-called Presidential debate, as was put to Governor Dukakis, still your Governor in Massachusetts, would you have been just as reticent about the issue of whet you do with a criminal?

Dershowitz: No. No. I know, God forbid if anybody in my family were ever hurt. I know what my feelings would be. My feelings would be to go out and do harm to that person, to do something terrible…revenge is one of the most primitive and basic instincts everybody has. And I would have said that, and I would have then said “That’s why I would be disqualified to play any role, that’s why institutions and government don’t allow people who have a partisan stake to sit in judgment…others whose own family hasn’t been affected…the ones who have to sit in judgment. But the few times that my own children have been hurt, once several years ago, my own child was beaten up while selling newspapers in Harvard Square and beaten up pretty seriously. When they caught the kids I was in favor of the death penalty for these 17 year olds. But, then again, I couldn’t play any role, and rightfully so, because my own family had been hurt. I was acting more like a jungle animal protecting his young than a member of society trying to do justice in an abstract sense.

Heffner: When do the two then come together? When does the angry justice-seeking, justice-seeking in terms of a primitive concept…

Dershowitz: Yes.

Heffner: …of justice, individual, when does he join with the public persona?

Dershowitz: Well, you asked the question very, very well earlier. When I think about crime, that’s to me the cutting edge because I’d like to see crime reduced significantly in our society. I think it’s a scandal, how much crime we have. And yet on the other hand, I’m part of the problem. I am making it harder for police to break into people’s homes and search them at will. I’m making it harder for police to get confessions from people. If I strongly believed that that really contributed in a major way to the crime problem, I would indeed have conflict. I think that’s a cop-out for the most part, that crime is caused by a variety of factors that don‘t relate to civil liberties. Those civil liberties may incrementally cause some crime, and yet, I have no problem. I vote for the civil liberties, and if the result is that we have incrementally more crime in our society, that’s price we have to pay.

Heffner: You know your critics say you see things in black and white only. As I’ve read you, and as I listen to you, I don’t believe that for a moment. And particularly in terms of what you’ve just said. You said, “I’m part of the problem”, and then I think you realize the way I would use that in the next question, and you stuck to the notion that to some degree, yes, you are part of the problem…

Dershowitz: Yes.

Heffner: …and the question of civil liberties is part of the problem.

Dershowitz: Yes. Well, you say my critics say I see things in black and white. In 25 years of teaching, I don’t think you’d find a single student, whether they like me or don’t like me, who has ever said that I see things in black and white. Indeed, that’s the criticism of me as a professor. I n ever see things in black and white. Everything is shaded, every question has another question. The only critics who see me in black and white are critics who haven’t read me or haven’t listened to me.

Heffner: I won’t call that self-serving…

Dershowitz: It is, but it’s true.

Heffner: Okay. But let’s go back to this “I’m part of the problem”. It’s the matter of where do you draw the line? How willing are you to remain, to keep your ideas and what you advocate, and you are a powerful advocate, how willing are you to continue to heap problem upon problem, or part of the problem upon part of the problem in terms of this matter of safety?

Dershowitz: Well, obviously if we lived in a society where things were totally out of control, where we had to think about declaring martial law to restore any degree of civility to the streets one would have to re-consider.

Heffner: When do you think we’ll be at that point?

Dershowitz: Well, I don’t think we’re close…

Heffner: If we’re not there now?

Dershowitz: …I don’t think we’re close to that point. I think the greatest dangers to American society still don’t come from individuals who commit crimes. I think it still comes from the potential of big government taking our liberties away from us. But we may be close and we may be getting there, and there may come a time when we have to say to ourselves, “Are we really prepared to continue to free ten or a hundred guilty people for fear that one innocent may be wrongly convicted?” I don’t think we’re there yet, and I’m certainly not going to give into the hysteria about crime. If we ever say “we’re there”, we’ll never get out of it. It’s one of these things you can’t ever reverse. You go back and you read the newspapers in the 1850s and 60s and they’re talking about crime waves. You go back in the 1920s and 30s and they’re talking about crime waves. Every time we see a few criminals commit crimes, it’s a crime wave. I think that we can do a great deal about crime that we’re not doing. We have to have a policy relating to drugs that’s a lot more rational than the one we now have, a policy relating to guns that’s more rational than we now have. And until we start dealing with those fundamental causes as well as other, more traditional causes, like unemployment and the difference between wealth and poverty in our society, the last thing I want to do is compromise on civil liberties.

Heffner: Yes, but I’m aware of the fact, Professor Dershowitz, that you are being Professor Dershowitz here,,,

Dershowitz: Yes.

Heffner: …and that you are doing just exactly what you say you always do in the class, you’re indicating the level of problems that are associated with the question. I’m asking you now, at the minute or so left, what is your own, personal projection as to what the future will bring. Not a wish list, but indeed, what do you think is going to happen in this area of crime and punishment?

Dershowitz: I think that unless we do something dramatic we will see an increase in crime. We will see the drug problem getting totally out of hand because, you know, even if we control every drug that’s brought into this country from abroad, ten years from now, most of the drugs will be manufactured in our homes, and guns will be available to everybody. So I see a potential disaster to civil liberties from increasing crime. That’s why I want to see the crime problem addressed rationally, and I don’t think there’s a candidate out there for high office who is willing to be honest about the crime problem, because honesty about the crime problem will result in making all kinds of unpopular, politically unpopular choices relating to drugs and guns and other issues that the American public just won’t sit and tolerate.

Heffner: If you’re right in our prophecy, then the next point is that we are going to lose those civil liberties.

Dershowitz: I think they’re in great danger and I think they’re in great danger by our politicians’ unwillingness to do something serious about crime. And liberals take the blame for it, and I think some of it belongs to liberals. Much of it belongs to conservatives. If you want to solve the crime problem everybody has to compromise with their strongest beliefs…

Heffner: Even civil liberties beliefs?

Dershowitz: Even civil liberties, but those should be the last to go because those contribute the least to crime…drugs, guns, poverty play a far greater role than any civil liberties.

Heffner: Alan Dershowitz, thank you so much for joining me again…

Dershowitz: Thank you.

Heffner: …on THE OPEN MIND.

Dershowitz: Thank you.

Heffner: And thanks, too, to you in the audience. I hope you’ll join us again next time. And if you care to share your thoughts about today’s program, today’s truly fascinating guest, please write to THE OPEN MIND, P.O. Box 7977, FDR Station, New York, NY 10150. For transcripts send $2.00 in check or money order. Meanwhile, as an old friend used to say, “Good night and good luck”.

Continuing production of this series has generously been made possible by grants from: The Rosalind P. Walter Foundation; The M. Weiner Foundation of New Jersey; The Mediators and Richard and Gloria Manney; The Edythe and Dean Dowling Foundation; The New York Times Company Foundation; The Richard Lounsbery Foundation; and, from the corporate community, Mutual of America.