April 2010

On April 6, Virginia Governor Robert McDonnell proclaimed April "Confederate History Month," a time to honor "the leaders and individuals in the Army, Navy and at home who fought for their homes and communities and Commonwealth in a time very different than ours today." McDonnell (pictured) declared that Confederate history "should be studied, understood and remembered by all Virginians, both in the context of the time in which it took place, but also in the context of the time in which we live." Why is the history of the Confederacy still relevant to the time in which we live today? Is it because today, yet again, white Southern leaders are urging their fellow partisans (Republicans now rather than Democrats 150 years ago) to "nullify" acts of the Federal government, and "tea party" activists are talking about secession? Is it because race continues to divide the country politically, with whites in the former Confederate states disproportionately opposed to the first Administration headed by an African American? No, according to McDonnell -- at least until the political firestorm that met his declaration yesterday forced him to backtrack and add a paragraph about slavery -- what made Confederate history relevant was "things important to Virginia" like "tourism."

Governor McDonnell has apologized, and amended his declaration with an incongruous paragraph adding that "it is important for all Virginians to understand that the institution of slavery led to this war and was an evil and inhumane practice that deprived people of their God-given inalienable rights and all Virginians are thankful for its permanent eradication from our borders, and the study of this time period should reflect upon and learn from this painful part of our history." Well, it's good to know that McDonnell is at least thankful that the institution of slavery no longer exists in Virginia. But his acknowledgment that slavery "led to" (not caused) the Civil War sits in awkward juxtaposition with his characterization of the conflict as a "war between the states for independence."

The fact is, Confederate flags and Confederate History Months and other emblems of Lost Cause nostalgia draw on an ugly strain of white political culture that should no longer have a place in a state like Virginia, a state so transformed in recent decades that it turned blue on the electoral map in 2008, and in which African American guides at Monticello point out Sally Hemings' residence on the official tour of Jefferson's estate. The romance of the Confederate soldier who gave his life for the beautiful idea of state's rights is a tired myth; waving that tattered flag dishonors the descendants of Virginia's slaves, many of whom fought for the Union, and for freedom. Memorials to the Civil War, in which so many Americans lost their lives, are entirely appropriate; shrines to the Confederacy are a throwback to the "Redeemer" era of one hundred years ago when North and South "reunited" in white supremacy and invented memories of the Lost Cause. Acknowledgment of slavery or not, we don't need a Confederate History Month. 

As any American who has read To Kill a Mockingbird should know, attacking lawyers for representing unpopular clients threatens the heart of an American justice system already weakened to the verge of collapse by the defunding of public defenders and legal aid. The right-wing tirade against the "treasonous" lawyers who represent Guantanamo prisoners was a huge shove in a bad direction. Less sensational, but at least as damaging, are a rising tide of attacks on law school clinics by those powerful interests affronted by law clinic opponents' access to pro bono assistance in any form.

Liz Cheney's misstep on terrorist lawyers was swatted to oblivion in the blogosphere, ultimately condemned by lawyers across the political spectrum. Too often, the clinics stand vulnerable and alone, leaving their young lawyers-in-training to take intolerable lessons about the limited availability of American justice. As The New York Times reported on Sunday, such attacks are as harsh as Cheney's: "We're going to tell legislators all over the state, if [the Tulane University environmental law clinic] want[s] to play hardball by trying to kneecap industry in Baton Rouge," said the Louisiana Chemical Association president Dan Borné, "then we should play hardball and kneecap them [Tulane University] with their state appropriations." Having gone through the wringer once in 1998 when elected judges supported by the chemical industry set sharp limits on the kinds of clients student attorneys could represent in court, the latest round of abuse includes a pending bill in the state senate that would block any university that receives states funds from suing government agencies, businesses or individuals or raising most constitutional challenges unless exempted in the legislation.

In Michigan, student attorneys in an innocence clinic were recently threatened with a subpoena to testify against their client in a criminal case; the case against the client was ultimately dropped. And in New Jersey, a real estate developer is trying to use the state's open records law to force a Rutgers clinic to turn over its case files for a community group opposing the developer. A survey of 300 faculty members at law school clinics across the country found that nearly 10 percent said they have been urged by their school's dean to avoid a particular case, and nearly 15 percent reported similar advice from their clinic's director.