Legal Affairs
space


Current Issue

 
 
 
 


printer friendly
email this article
letter to the editor


space space space
space


January|February 2004
The Trials of John Edwards By David Greenberg
Deep Impact By Daphne Eviatar
What's Your Happiness Worth? By Brendan I. Koerner
Elsewhere

The Trials of John Edwards

Why the ace lawyer became a lackluster candidate.

By David Greenberg

IN 2002, WITH THE DEMOCRATIC PRESIDENTIAL CAMPAIGN JUST UNDERWAY, the smart money was on North Carolina’s John Edwards. Although untried and relatively inexperienced, the first-term senator had a near-perfect profile. Fresh-faced and articulate, he possessed a warmth that his rivals lacked. Perhaps most crucial for Democrats seeking a nominee able to oust President Bush, he was also a Southerner. In-the-know journalists pronounced him Bill Clinton reborn.

Like Clinton, Edwards championed the kind of economic populism that has traditionally underpinned Democratic victories. As Clinton courted the “forgotten middle class” in 1992, Edwards cultivated average-income voters squeezed by the growing inequality in American society. Speaking often (if not incessantly) of his background as the son of a small-town millworker, Edwards styled himself an anti-Bush who, despite the riches he earned as a personal injury lawyer, remembered his roots.

More than a year later, Edwards had failed to catch fire. He surged to an early fundraising lead, but never gained traction with the public. By the late fall his most optimistic supporters ranked him no higher than fourth-most likely to win the nomination, after Howard Dean, John Kerry, and Wesley Clark. Pessimists placed him as low as sixth (after Richard Gephardt and Joe Lieberman as well). Unless Edwards can score a major upset in the late-January Iowa caucuses—or, less plausibly, use a South Carolina primary victory to make himself the focus of an Anyone-But-Dean movement—the experts’ early predictions seem destined to be proven wrong.

That the Washington sages miscalculated is not surprising. Every election year, the insiders fail to appreciate how outside-the-Beltway sentiments differ from their own. Victims of past overvaluations of presidential candidates include Gephardt (in 1988), Bob Kerrey (in 1992), and Elizabeth Dole (in 2000), all of whom ordinary citizens realized stood little chance of being nominated. Yet the question of why Edwards has languished remains a mystery.

Some, inevitably, will blame his campaign’s focus on inequalities of wealth and power. After the 2000 election, the panjandrums of the centrist Democratic Leadership Council ascribed Vice President Al Gore’s failure to win the presidency to his “business-bashing populism.” Never mind that according to a proper vote count Gore did win the presidency; more pertinently, attacks on corporate malfeasance played well in 2000 and, as the scandals continue to unfold, play even better today. Gore underperformed mainly because the salt-of-the-earth image he cultivated didn’t seem authentic. “There was nothing wrong with the populist themes Gore took on,” Washington Post columnist E. J. Dionne has written, “but they looked too much like campaign contrivances.” Gore spoke excruciatingly slowly, as if lecturing voters, not fighting for them, and he never overcame the inhibited demeanor that made it hard for audiences to believe he cared about defending their interests.

John Edwards doesn’t suffer from Gore’s personality defects. But if it’s not his personality or his message, why was he outpolled in one late-October survey by two probable also-rans, Carol Moseley Braun and Al Sharpton? For clues, it’s worth looking at Edwards’s new campaign biography, Four Trials.

EVERY CAMPAIGN BOOK MUST BE READ as a political document. Like the TV ads that use backdrops of undulating flags to introduce voters to candidates’ résumés and families, these memoirs exist to sketch out the most warm-and-fuzzy pictures possible of their putative authors. Blandness and superficiality are not flaws but prerequisites. To give a campaign book a bad review for containing platitudes or being one-sided is like attacking a Quentin Tarantino movie for its violence. The criticism wouldn’t be wrong, but it would miss the point.

Still, some of these books are better than others. John McCain’s Faith of My Fathers, for example, was an unusually well-received example of the genre. And for all its standard-issue rhetoric, Four Trials is preferable to Lieberman’s insipidly moralistic In Praise of Public Life or George W. Bush’s fatuous A Charge to Keep.

Give credit to Edwards—or his ghostwriter, the literary scholar John Auchard—for originality of form. Four Trials weaves together Edwards’s autobiography with stories of four cases he fought (and won) on behalf of victims of corporate negligence or greed. Ronald Reagan stationed ordinary citizens in the balcony as he recounted their heroics during his addresses to Congress; Bill Clinton offered an anecdote about a hard-working family (usually from New Hampshire) for each policy he proposed. Edwards (through his ghostwriter) adopts the same brand of personal politics by making his book a showcase of the aggrieved but quietly gallant folk for whom he’s fought.

Four Trials shifts between Edwards’s life and the tales of his clients, with each story opening a window into an aspect of Edwards himself. One chapter uses the case of E. G. Sawyer, a North Carolina man left brain-damaged and partially paralyzed because of a doctor’s error on a drug prescription, to shed light on why Edwards decided to become a lawyer. A second blends together his joy at his children’s births with the case of Jennifer Campbell, a girl afflicted with cerebral palsy because of a hospital’s negligence during her delivery—a landmark litigation that helped establish the principle of “informed consent,” which requires institutions to make sure patients know the risks of undergoing an operation. A third combines reflections on Edwards’s relationship with his father with the story of Josh Howard, whose parents were killed by a reckless trucker. Most moving of all, the final chapter tells of Edwards’s efforts on behalf of Valerie Lakey, a 5-year-old disemboweled by a defective swimming pool drain, alongside the fateful story of Edwards’s first-born son, Wade, who died at age 16 when blown off a violently windy patch of interstate while driving in his Jeep.

The passages about Wade’s death are the book’s most harrowing. And yet Edwards doesn’t dig deep enough into his feelings to complicate or deepen the image we have of him. “Until that day [the day Wade died], I had always known that mine was a happy life,” he writes. “And I admit that all along I had a secret sense that it would go on like that forever.” But Edwards’s public face remains relentlessly cheerful, and it’s hard to square with the devastation he endured. His scars remain hidden.

Still, it’s remarkable that you finish Four Trials without feeling manipulated, and that you remain somewhat interested in the book’s subject a day later. Usually when politicians use human tragedies as fodder for stump speeches, audiences cringe. But in Four Trials, Edwards is amiably direct, whether recalling his awe at his future wife’s intelligence when he first met her in a law school class, or matter-of-factly describing how a doctor paid insufficient attention to a fetus’s position in the womb, allowing a dangerous breeched birth instead of calling for a Caesarian delivery. In these passages, Edwards’s forthrightness inoculates him against his own mawkishness.

To be sure, the book contains its share of eyeball-rollers. “When my hometown newspaper called about the importance of the [Jennifer Campbell] verdict” establishing informed consent, Edwards writes, “I told them that first this case was about a six-year-old girl and her parents, good working people. Because it was.”

Still, cumulatively, these tales do not make the reader scorn Edwards as another packaged politician milking tragedy for political gain. On the contrary, you come away admiring how intimately he involves himself in his clients’ lives, counseling them in their living rooms, and years later helping the orphaned Josh Howard get into the U.S. Military Academy. You don’t doubt that he’s partly motivated by lucre, since he often prods his clients to gamble on hitting the jackpot by opting for a jury trial rather than a settlement offer. But you also feel Edwards’s outrage about the wrongs that the well-connected or well-heeled can inflict on those who are ill-equipped to seek justice.

This zeal for fairness, Edwards says, emerged early in life. He describes an essay he wrote at age 11 entitled “Why I Want To Be a Lawyer.” In that essay he asserted his wish to “protect innocent people from blind justice,” by which he must have meant the unfair vagaries of the law as often administered. For an 11-year-old to misunderstand the concept of blind justice (as it’s now used) is not embarrassing; in fact, to write about it years later is endearing. But it is discomforting when the senator confesses that his interest in the law came from watching the TV shows The Fugitive and Perry Mason—on which, in every episode, “that truly fine lawyer yanked yet another explosive confession from yet another cold, evil, and wily villain.”

Edwards’s unabashed admission of having drawn inspiration from such kitsch may not rank in the annals of banality with the stupefyingly pedestrian diaries of Senator Bob Graham, of Florida which drew attention before he dropped out of the presidential race last fall. But like those confessions, Edwards’s diminishes him. It divests him of a capacity for grandeur we want our leaders to possess. Because this admission seems sincere, we can only infer that Edwards possesses a somewhat constricted view of the law, a judgment that his occasionally Perry Masonish descriptions of his own lawyering and of his “cold, evil, and wily” adversaries help confirm.

EDWARDS’S EFFECTIVE USE OF HIS RECORD of fighting for wronged Americans raises the question of why he hasn’t emphasized that record more. It’s doubtful that he’s been cowed by the Republican whispering campaign that pretends that Bush’s team would relish the chance to attack Edwards as a “trial lawyer.” Top advisor Karl Rove must read enough polls to know that “tort reform” (as the Republicans euphemistically call their campaign against large damage awards) is, on balance, a loser for the Republican Party.

In fact, reading Edwards’s stories provokes a visceral appreciation of why potent punitive damages should remain a fixture of civil litigation. In one story, a trucking company’s policies encourage its drivers to log an undue number of miles, and when a young boy’s parents are killed by an overworked driver, an executive shrugs that it’s “a given that some lives would be lost.” Such callousness, on an emotional level at least, clinches the case.

Obviously, Edwards is presenting only his side of these stories, and to let the corporations he fights tell theirs would complicate his easy judgments. But if such spinning is forgivable, the candidate can be faulted for not making the intellectual case as well as the emotional one for the value of civil suits. Nowhere does Edwards patiently take his readers through the reasoning that would expose the flaws in tort reform arguments or explain why the sky-high damage awards that he pursues, although outrageous at first blush, may be the only tool available to deter reckless business practices.

Consider a passage about Valerie Lakey, the 5-year-old injured by a swimming pool drain whose manufacturers had not only ignored previous injuries caused by the drain but had also failed to warn purchasers that tiny errors in installing it could prove deadly. Edwards writes that some potential jurors seemed unable to understand how the drain maker might be responsible, and that others as a rule disliked lawsuits. “It’s hard to sit there,” he writes, “and listen to strangers say, ‘Lawsuits like these are what’s wrong with America!’ and then go home to your innocent daughter and her feeding tubes.” Edwards might have taken a few pages in his book to argue for the positive good of forcing strict compliance with safety regulations through steep penalties. Instead, he tugs the heartstrings by invoking Valerie, one of the “innocent people” he has long wanted to “protect.”

The feeding-tubes line is the kind of emotional trigger that might come out of a presidential debate—provided the other candidates on stage favor “tort reform.” But like him, most of Edwards’s Democratic rivals oppose changing the rules of the tort game. Perhaps he hasn’t much trumpeted the anecdotes and issues that dominate Four Trials because they work best as a way to answer attacks from Republicans rather than fellow Democrats. The book reads like a pre-emptive strike against offensives likely to materialize in a general election campaign. Edwards has built a powerful defense, but his Democratic opponents have flanked around him, leaving him dug in at his position.

It may well be the overpopulated Democratic field that has kept Edwards from breaking out. In Four Trials he repeatedly prevails in one-on-one adversarial situations that spotlight his well-honed courtroom talents. But he’s not seen competing against a field, and in the presidential primary campaign his battles on behalf of victims of injustice don’t distinguish him much from Gephardt or Dean, whose populist appeals are just as sharply honed, or from Kerry or Lieberman, former prosecutors whose records of courtroom valor are equally worthy as the North Carolina Senator’s. For Edwards there is not safety but peril in numbers.

BETWEEN THE LINES, Four Trials suggests another reason, too, that Edwards has not caught on. At one point, he discusses what he found out as a law clerk to a federal district court in North Carolina. “I learned that trials are about credibility—that if a jury is to believe in your case, the jury must believe you,” he writes. “They do not want to be manipulated, and they deeply distrust anything that makes them feel bullied—or hypnotized—into rendering a verdict.” Later on, he calls the jury “a microcosm of democracy.” As he explains, “If a candidate has not made a case persuasively enough, once the curtain on the voting booth is pulled, it is too late to make it. Believe me, when that jury door closes, you tear yourself apart.”

Edwards is hinting that he can rebut any charges of callowness should they come; his courtroom exertions can substitute for his rivals’ experience on the campaign trail. He signals that he knows what politics demands in this age of cynicism and hyperawareness of spin. As with jurors, efforts to “manipulate” voters can backfire. Amid a campaign in which the cerebral Kerry has struck many observers as too calculating, and in which Clark has seemed in danger of jettisoning his appealing quirkiness on the advice of unimaginative handlers, Edwards’s appreciation of the public’s hipness to spin is refreshing.

In one of the fall Democratic debates, Edwards invoked credibility as he has done in Four Trials. He was asked why his background should “give you any more points” than candidates who come from relative wealth. He replied:

The only relevance of your background and the way you grew up is the credibility it gives to your vision and your ideas for what needs to be done with the country. For example, when I lay out a “college for everyone” plan that allows any young person in America who’s qualified to be in college and willing to work for it to go to college, that’s personal to me. . . . If you are looking for somebody to stand on a stage with George Bush in 2004, which I intend to do, and make our case to the very group of Americans who he has to get in order to be re-elected, the working middle class of this country, that we have a more powerful case to make if, in fact, our advocate, our voice, is somebody who has grown up with it, lived with it and fought for those very people their entire lives.

Edwards himself is credible. What might be seen as Southern slickness in others comes across as affability, and his lawyerly smoothness comes across as earnestness. Yet his answer didn’t stir the crowd. He had fouled off a pitch he could have hit. No one would have taken note had not another candidate, moments later, clobbered the same pitch:
I think it is important he tell that story [of his biography] . . . . The reason is, I think it inspires young people to know that they can start somewhere in life with disadvantages and become what he’s become. And I think that that kind of intangible inspiration is good. It has nothing to do with votes. It has something to do with hope. And as someone that came out of the projects that needs to hear somebody like him say, ‘I rose from being a millworker’s kid to being a successful lawyer and a presidential candidate,’ it may mean that I will to choose a different route in life, and he ought not be criticized for that. I think he ought to be saluted.

A home run for Al Sharpton.

I wouldn’t advise John Edwards to start modeling his campaign on Sharpton’s. Sharpton isn’t concerned with credibility. (It’s too late for that.) But he intuitively understands that having lived the American Dream confers far more than simple credibility; it confers the potential power to inspire.

Edwards, however, seems hesitant to use his inspirational power, or unsure of how to do so in a way that will seem genuine and not manipulative. His ascent may have been hard, but he has made it look too easy. Richard Nixon and Bill Clinton, in different ways, inspired people in part because they conveyed a sense of carrying with them—of having been fueled by—a sense of victimization or struggle. For all the obstacles he’s overcome, Edwards admits to having never questioned the essential happiness of his life until his son’s death. Even now, he shows no outward signs of having developed a tragic outlook. The power to inspire comes not from simple optimism and amiability but from an appreciation of how to live with tragedy. Yet Edwards still strikes us as he presents himself, as a lawyer moved to enter his profession by Perry Mason.

The importance Edwards places on “credibility” goes to the heart of his troubles on the campaign trail. He deserves praise for wanting voters to see him as straightforward. But credibility is not the same thing as honesty; it’s the appearance of honesty. In his 1961 book The Image, the historian Daniel Boorstin lamented a culture in which reality already seemed to be giving way to illusion. Among the cultural shifts Boorstin noted were that celebrities were replacing heroes, that personality was being vaunted over character—and that “credibility” had come to supersede “truth.” Boorstin was prescient. In the following decade, it was an obsession with credibility—a wish to convey an appearance of American determination, rather than a genuine commitment to a policy—that kept American forces in Vietnam long after it was sane or humane. In our postmodern times, credibility, and not actual commitment, has become the rallying cry of those who happily skate on the surface of things, of those who are concerned above all with public impressions.

When Edwards said that his working-class background gave him credibility, he was pre-emptively raising the question of how electable he is. He was arguing that he could challenge Bush on issues of fairness and corporate power in ways that his rivals couldn’t. But raising the issue of electability that early in a campaign was not just a bit gauche, it was also self-defeating. Advertising your own credibility has the effect of dissipating it. The quality derives its power from being quietly noted by others, not yourself.

Edwards’s problem is that electability is, if not the raison d’être of his candidacy, close to it. Just as Clinton jumped into the race in 1991 when others feared to face George H.W. Bush, so Edwards hoped in 2002—long before Dean had become the Democratic front-runner—that a fresh-faced, articulate economic populist from the South would strike voters as well-positioned to send another Bush back to Texas. But Edwards hasn’t offered many other qualities that separate him from the pack. He remains an appealing guy, solid on the issues, who, if nominated, stands a decent chance of defeating the president. The centrality of credibility and electability to his campaign points up the underlying thinness of his candidacy.

Normally, when politicians fail because they’re unduly concerned with credibility, it’s because the public suspects they’re proffering an image to mask a darker reality. In Edwards’s case, the underlying self isn’t darker—it’s just as sincere and compassionate. Unlike almost every other candidate (including Bush), Edwards had neither honesty nor the consistency of his beliefs impugned.

The career limned in Four Trials shows a dedication to helping others, a deep reservoir of empathy for the unfortunate, and a passion for justice. But there’s the irony: In making himself eminently credible, Edwards has failed to transcend his image—which promises only limited gains in a crowded field—as the central-casting-chosen, quintessentially electable candidate.


David Greenberg is the author of Nixon’s Shadow: The History of an Image. He teaches history and political science at Yale.

printer friendly email this article letter to the editor reprint premissions
space space space












space
Contact Us