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Debate Club

A trial Lawyer for Vice President?

Lawrence Lessig debates William Tucker.

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Champion of the underdog or shark in a suit? In the 1990s, John Edwards sued corporations, cities, and hospitals, achieving national prominence with a string of courtroom victories and settlements that earned his clients and himself millions of dollars. Edwards has spun this story into a stirring stump speech and a popular book about redemption for the downtrodden.

On the other hand, tort reform has been a popular element of President Bush's agenda and anti-trial-lawyer jokes drew thunderous applause from the audience during this summer's Republican Convention and in less partisan venues. "Bring on the ambulance-chaser," proclaimed then White House Spokesman Ari Fleischer when Edwards announced his candidacy for president last year.

Now, Edwards has been brought on as John Kerry's running mate. How has his former profession been playing so far in the 2004 campaign, and how will it affect voters in November?

Lawrence Lessig is a professor of law at Stanford Law School, and the author of
FREE CULTURE (Penguin, 2004). William Tucker is a fellow at the Discovery Institute. His book on trial lawyers, Civil Lynchings, will be published next year.

Lessig: 9/20/04, 09:20 AM
The Republicans hoped America would recoil from a "trial lawyer." It turns out Americans are not so simple. A Time Magazine poll found that being a trial lawyer has helped Edwards' standing with voters more than it has hurt, and that over 55% believe his experience shows that he "fights for the average person." That's still a virtue for most Americans. Most are moved by those who defend victims against those who have made them victims. They see a difference between Dewey, Cheetam, and Howe and Erin Brockovich (ok, but she became a lawyer).

What's surprising is that the Democrats haven't used this fact more aggressively. Americans believe in right and wrong. They believe that those who do wrong should be held accountable.

Yet accountability is just what this Administration wants to erase. More than 150,000 people die each year from healthcare mistakes. The Republican solution to this problem is to increase immunity for those who make those mistakes. More than a year after the search began in earnest, no weapons of mass destruction have been found in Iraq. The
claim they were there was just false. Yet the President's response to this "mistake" is to praise our intelligence service as "the best in the world," and quickly airbrush the justifications for invading another country. And months before we knew anything about the torture of prisoners by American soldiers, we now know that Rumsfeld knew. Yet all is forgiven; the risks to American soldiers in the future created by these crimes, forgotten. Accountability throughout is erased. Bad happens everywhere, yet no one (powerful) pays any price.

Edwards is a natural for making this charge. He's a nice guy, but he didn't win his cases by charming defendants into submission. There are strong reasons why this Administration is a failure: the war, the execution of the war, the economy, the deficit, our increasingly polluted environment. But those reasons will only persuade the jury that votes on November 2 if they can be tied to a passion about right and wrong.

This is the skill of a trial lawyer. It is the elixir that the
Democrats need. The mystery is therefore not why America likes this trial lawyer so much; the mystery is why the Kerry campaign doesn't.

Tucker: 9/20/04, 09:59 PM
The real puzzle of this campaign relating to John Edwards the trial lawyer is, "What ever happened to him?"

At first it appeared Edwards might take the country by storm. Handsome and charismatic, he fired up the Democratic convention and seemed to breathe life into John Kerry's rather wooden profile. Photos of the two families doting on Edwards' telegenic children dominated the news for several days.

Yet now that we are deep in the campaign, Edwards has all but disappeared. Occasionally I read a two-paragraph article saying he addressed a crowd in Missouri defending Kerry's Vietnam War record, but that's about it. Conventional wisdom says that even the best vice presidential candidate can do little to help the top of the ticket and in this case the conventional wisdom may be right.

But it is more than that. The plain fact is that, far from the claustrophobic confines of the Democratic base, Edwards' message resonates very little. Winning elections, it turns out, is not the same as swaying juries.

"The Two Americas"—that's Edwards' campaign theme. What are the two Americas? That's hard to say. If you draw the line between "rich" and "poor," then by any conceivable standard Edwards and Kerry are on the wrong side of the fence. This is the richest ticket that has ever run in a Presidential election.

But that's not important. The real purpose of the "Two Americas" is to divide the country between "us" and "them." "Us" is easy to define. It's "us"—the little people, the folks who never get what they want, the good people, the hard-working, those frustrated by everyday life. "Them" is the big guys who—as Edwards puts it—"get whatever they want whenever they want it." That obviously includes George Bush, Dick Cheney, Colin Powell, Condi Rice, Enron, the billionaires—there must be a few more of them out there somewhere. They're the ones who make it hard for the rest of us and this election is our chance to pay them back!

Now this may seem a bit demagogic, but that's exactly what trial lawyers do in arguing before juries. Trial lawyering is an updated version of old-fashioned rural Populism. That's why it's no surprise that a huge chunk of the most successful plaintiff lawyers—Edwards, Ron Motley, Dickie Scruggs, Jere Beasley, Wayne Reaud, John O'Quinn—have made their fortunes in the rural South.

The secret of winning multi-million-dollar civil trials is to portray your client as a "little person like you and me" fighting a huge impersonal corporation that "does whatever it wants whenever it wants." A jury verdict is the chance to "send them a message" and "show them we don't tolerate that sort of thing down here." This is why first rural Alabama, then Mississippi, and now Madison County, Illinois, have become the "trial lawyer capitals of the world," flooded with out-of-town plaintiff attorneys eager to drag the corporate giants before pliable small-town juries. It's also why Michigan—the home of many of those corporations—is one of the worst places in the country for trial lawyers to do business.

"Us-versus-them" works in a small-town venue, but taken to the stage of a national election, it begins to wilt quickly. People know we are One America. They know we are now facing an enemy whose savage cruelty can only find its reference point in long-ago centuries. They know that dividing ourselves into "us-versus-them" only weakens the country and increases the chances that we will do something foolish to harm ourselves.

That's why John Edwards has been almost completely invisible in the current campaign.

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Lessig: 9/21/04, 02:17 PM
Bill is confusing form with message. There are great trial lawyers defending powerful corporations, just as there are great trial lawyers defending their victims. What makes these lawyers great is not the message. It is the method of the message. Great lawyers tie facts to reason, and then charge the result with passion. A jury is captured according to a simple formula—(facts + reason) * passion—whether the message is populist or the most conservative corporate clap.

This form of message is precisely what the Kerry/Edwards campaign needs just now. So far the campaign has spun upon the character issue: rightly or wrongly, the Bush campaign has succeeded in characterizing Kerry as a waffle; it has succeeded in painting the President as firm and resolved. This is indeed the President's most appealing feature: he does not appear calculating; he does not betray those whom he trusts. He learned (or Karl Rove taught him) the single most important feature of Ronald Reagan's success: that Americans yearn for a leader committed to his own values, even if those values are not Americans'.

I don't know John Kerry personally. Those who do tell me the Bush spin on Kerry is as true as WMDs in Iraq are plentiful. But it is probably too late to change that view among voters. And even if it is not too late, there is still an important role for a trial lawyer to play, beyond the character game that is this campaign so far.

For the most astonishing thing about this campaign so far is the utter irrelevance of facts to the debate. Though most Americans would disagree with President Bush's policy in a wide range of areas—from its limits on medical research, to its opposition to the right to choose, to its opposition to environmental protection, to its support of a tax policy that shifts the tax burden from the rich to the not-rich—that disagreement has not translated into support for Kerry. This is because in the character game, facts don't count. Resolve does, and only the President appears resolved. So if the Kerry/Edwards campaign is to get beyond the character game, it must make facts count. And this is precisely the skill of a trial lawyer.

It may be that Kerry can't win unless he beats Bush at Bush's best game. But that still leaves to Edwards this important role. It is Edwards who is trained to get a jury to see how the facts support the reasons that he would advance; it is Edwards who has the gift to then charge that reasoning with an unmatchable passion.

I saw this first hand when I first saw Edwards speak. I had thought myself immune to the power of such persuasion. I didn't think there was any politician who could move me. Yet at a small fundraiser, standing just a few steps above the crowd, Edwards told a story the way only a trial lawyer can, capturing his audience with his reasoning, and inspiring us with his passion. We all knew that this Administration was a failure. But until that moment, I, at least, had not felt it. Yet when he finished, there were more than a few wiping tears from their eyes. I looked around the room, astonished. He had done what the best lawyers do very well: he had used a story, rich with facts, to convince us of an argument; and then he tied that argument to his own passion, moving many to believe.

This campaign will only succeed if it unleashes such power widely. Americans want Presidents who are great, not right. But showing them that the current President is wrong is an important first step to getting them to see that his opponent is great.

Bill Clinton did not defeat Ronald Reagan. He defeated George H. W. Bush. Bush the Elder was the waffle then ("Read my lips."). And in a contest between waffles, Americans like the fresh over the old.

But when the President is seen to be committed and strong, an opponent can win only by first proving that the President is wrong. Convince America that it is stubbornness, not principle that guides this President, and you convince America to look for a new President.

Convince—through facts and reason. If I were a campaign manager, I would hire a trial lawyer to do that: a David Boies, or a John Warden, or especially, a John Edwards.

Tucker: 9/21/04, 07:04 PM
So far this discussion seems to be about why the Democrats haven't unleashed John Edwards' talents to convince the American people of the obvious truth that the Bush Administration is a failure and should be replaced by John Kerry.

Leaving aside the partisan aspects of this argument, I would like to return to the original topic of whether a successful plaintiff lawyer such as John Edwards can make an effective candidate in a Presidential election. I believe the transformation presents serious problems. Moreover, I think Larry's anecdotes reinforce my point.

Larry describes an experience "at a small fundraiser" where Edwards told a story that "captured his audience with his reasoning and inspired us with his passion." "We all knew that this Administration was a failure," he adds, but "until that moment I had not felt it."

Edwards plays very well before such small, partisan audiences. This is, in fact, why he got the nomination. He did poorly in the primaries (winning only South Carolina) but made a subsequent tour of the country speaking before the party faithful. Word filtered back that the rank-and-file loved him and wanted him on the ticket.

But national elections are not just about rallying the party faithful, as the Democrats are finding out. You have to have a vision that resonates with the majority. So far Edwards has failed to make the adjustment.

The reason isn't hard to find. Take a look at Edwards' acceptance speech where he introduced his major campaign theme, "Hope is on the way."

Tonight, as we celebrate in this hall, somewhere in America, a mother sits at the kitchen table. She can't sleep because she's worried she can't pay her bills. She's working hard trying to pay her rent, trying to feed her kids, but she just can't catch up.

It didn't use to be that way in her house. Her husband was called up in the Guard. Now he's been in Iraq for over a year. They thought he was going to come home last month, but now he's got to stay longer.

She thinks she's alone. But tonight in this hall and in your homes, you know what? She's got a lot of friends. We want her to know that we hear her. . .

So, when you return home some night, you might pass a mother on her way to work the late shift, you tell her: Hope is on the way.

This is a typical jury summation, a melodramatic portrait of a lone individual up against mysterious dark forces (in this case the Bush Administration) that intend her harm. The woman has a husband, but he is introduced only to get him over to Iraq and out of the picture. She has no family, no friends, no religious or community organizations to offer support. Instead, she sits all alone waiting for someone—in this case the entire Democratic Party—to come to her rescue.

Most folks simply don't think of themselves this way. They have friends, family, neighborhood and community groups to offer them support. If they have a close relative in Iraq, they correspond with them frequently and probably support the effort. If they want the government to help them, it is only in the form of sending a check or lowering their taxes. Despite what Edwards would like to think, there only so many Erin Brockoviches out there.

While this kind of melodrama plays well in a courtroom, it doesn't do well on a national stage. Precisely because Edwards' message is too personal and emotional, it falls flat. Most people are not waiting to be rescued by trial lawyers—or by politicians for that matter. If anything, they seem to prefer the Republican vision of strengthened families and community organizations to help them get through tough times.

John Edwards's trial lawyer vision is not resonating. That is why he is having such a minor impact on the election.

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Lessig: 9/22/04, 11:23 AM
I don't think anyone in this campaign is free of the charge of melodrama—certainly the President is not. And I don't think there is any candidate, for good or for ill, who refrains from the style that Bill identifies.

But that style is not the form of a trial lawyer. No doubt it is part of any summation, but it works as a summation only if the groundwork has been laid before. That groundwork is argument—marshalling a case by drawing together facts that weaken the claims of the other side.

We don't get much of that in our politics today. In part, that is because of the form of politics today. To make an argument requires attention-span. But there's no way to hold the attention of a television audience today for more than a few seconds. Any message must be collapsed into a sound bite if its to be repeated. And if it is repeated, it does not do the work of an argument.

A speech can do that. The form that I described before was not the sound bite rhetoric of a 15 second campaign ad. It was instead the slow building of an argument over the course of a talk. In that case, it was an argument framed by a simple injunction: "Think of how much we have lost," Edwards asked of his audience. And then, as the very best trial lawyer would, he walked us through these past four years, and the changes, or the losses, that America has suffered.

Now obviously, and again, as a great trial lawyer would, he targeted his message to the audience. The backsliding in environmental protection was important to us. The weakening of the enforcement of civil rights was important as well. And no doubt, in the list of eight or ten topics, the most powerful was the reflection upon our standing in the world. From the moral height of September 12th, when we commanded the respect and allegiance of every nation in the world, we have fallen to a place where we are no doubt feared, but where respect and allegiance are qualities of our past.

The power in this—for those for whom it was powerful—was not so much the populist rhetoric. It was the argument. And that same power comes through not just in a speech, but especially in a debate. For Edwards did not do "poorly" in the primaries. He was number two in a many-man field. And his real strength in climbing over the many who fell behind was his power in the debates.

That will be important again. For if anything can crack the current equilibrium between the President and his opponents, it will be these debates. And again, if I were a campaign manager, a successful trial lawyer would be a very valuable asset to be able to deploy.

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Tucker: 9/23/04, 07:42 AM
I think Larry's points are well taken because he's arguing that ultimately style won't triumph over substance. That is exactly what we are seeing in this election.

It doesn't do any good to complain about 15-second sound bites and people's attention spans because we're living in a busy world. People's most precious commodity is their time. If you don't believe that, try getting someone on the phone these days.

Candidates, their speechwriters and press agents all know this and everybody plays on the same field. President George Bush has long been mocked for his tongue-tied style of speech, but in this election he has crafted a clear, precise message: 'We are threatened by terrorism. We invaded Iraq to stop terrorism. We will stick with the job until it is done.' Any trial lawyer would be proud.

John Kerry has had a much more difficult time, not because he is ineloquent or lacks subtlety of mind, but because he has not been able to make up his own mind where he stands. First he was the warrior and Vietnam hero. Then he was the war protestor. He was both for and against almost everything. All this confused and alarmed the public.

Finally in New York this week he settled down to his campaign theme. He is the peace candidate. Iraq was the wrong war at the wrong time and he will bring the troops home in six months. Fine. This was the position of Howard Dean during the primaries and General George McClellan, another former war hero who became the peace candidate in 1864. It will garner Kerry a solid 45 percent of the electorate—exactly what McClellan got but probably not enough to win the election. (Bill Clinton did win in 1992 with 43 percent.) As trial lawyer will tell you, lay your story out at the beginning of the trial and don't change it.

John Edwards, the premier trial lawyer, may be the most eloquent and moving candidate in the campaign, but he has got a bad case. Unfortunately, he has very little experience in foreign affairs. (In his book, Four Trials, his major international venture is climbing Mt. Killimanjaro.) His position on the war is the same as Kerry's—I was for it, but I'm also against it, I wish France and Germany would come along, and after that I'm not sure where I stand.

Lacking any international heft, Edwards has chosen a domestic agenda, which is where his strength lies. The question is how much these issues resonate with the public. Edwards in his fund-raising performance chose a theme: "Think of how much we have lost." As Larry paraphrased,

The backsliding on environmental protection. . . the weakening of the enforcement of civil rights . . and no doubt the most powerful, the reflection upon our standing in the world. From the moral height of September 12th, when we commanded the respect and allegiance of every nation in the world, we have fallen to a place where we are no doubt feared but where respect and allegiance are qualities of our past.

Now the truth is, not many Americans see "backsliding on environmental protection" as our biggest setback of the last four years. There are those who do and they will certainly vote for Kerry/Edwards, but they are not many. The same holds for the "weakening enforcement of civil rights," whatever that means. (If it means not letting terrorists run loose while the FBI and CIA play keystone cops, then a majority probably approves.)

And so we come down once again to September 12, the day when we stood as victims of an unprovoked attack but before we started doing anything about it. It was a situation that trial lawyers relish. Although physically wounded, we had moral superiority.

Unfortunately, the world is not a courtroom where such sympathy can win large judgments and produce damage awards. There is no world body to hear the case and none to enforce the verdict even if it did. In situations such as this, the world is not a courtroom, it is a battlefield. That's why George Bush, who is willing to acknowledge this, is making such headway with the public while John Edwards, the preeminent trial lawyer, is having so little impact on this election.

Lessig: 9/23/04, 01:54 PM
Bill writes "[f]irst [Kerry] was the warrior and Vietnam hero. Then he was the war protestor. ... All this confused and alarmed the public." The same is said about Kerry's position on the war on Iraq: first he was for it, and then he was against it. The flip-flopper. A man who can never makeup his mind.

I doubt there is any single example of the pathology of our politics that depresses me more than this argument. Because of course, if you took one minute to think about it, the claim is absurd.

As with most Americans, at the start, Kerry supported the war in Vietnam. Unlike almost all Americans of privilege (see, e.g., George Bush and Dick Cheney), Kerry demonstrated his support by volunteering to serve in that war. But after his experience, he—as almost all Americans—came to believe that war was a mistake. Our government had lied to get us into the war; it had lied about its prosecution of the war. Based upon the facts, he changed his mind.

The same is true about the war on Iraq. As with most Americans, Kerry supported giving the President the authority to go to war. As with most Americans, Kerry expected the President would exercise that authority in a way that did not unnecessarily put America at risk. But after his experience, he—as with most Americans—came to believe that war was a mistake. Most of us believe our government lied to get us into the war; most believe it has lied about its prosecution of the war. Based upon the facts, Kerry is now critical of a war he supported at the start.

This is not flip-flopping. It is evidence of a functioning brain. When you learn that the premise of your action was false, you should rethink your action. When you learn that the premise of a war was false, you should rethink the justification for the war. Being stubborn in the face of reality doesn't make you principled. It makes you Chairman Mao.

Yet the Bush campaign makes this criticism of Kerry because it recognizes that the voters it needs to win won't take the 60 seconds to see the absurdity in its argument. It, and its allies, are expert in flash-bulb politics. The swift boat campaign, which will be more significant in this election than Michael Moore's film, is a perfect example of the general point: lie in the right rhythm, and you can destroy just about anything.

Bill excuses us for this. "[W]e're living in a busy world," he says. No doubt that's true. But the question isn't whether we can add an hour to the day so that people can focus upon the facts. The question is why instead of spending 10 minutes focusing on the facts, people spend hours watching "Survivor," or "The Apprentice." We're busy, of course. But the criticism is about priorities, not laziness.

So in fact, my argument is not that "ultimately style won't triumph over substance." Indeed, precisely the opposite. If it were substance that decided this election, then we would be facing the biggest landslide since Clinton trounced Dole. Most Americans disagree with the President on the substance of his administration. Most disagree with him on the environment. Most are pro-choice. And most now believe (54%) that the war was wrong. Yet Bush remains high in the polls, precisely because this election is being decided on style, not substance.

If the Kerry/Edwards campaign is to change that, it needs the trial lawyer's skill. That is my argument. As any great trial lawyer would, this campaign must begin to get America to focus on the facts. It must get America to recognize the relationship between the facts and its own current beliefs. Kerry doesn't need to change anyone's mind about what good policy is. He need only show the people that their current views are not reflected in the President's current policies.

This strikes me, contrary to Bill's claim, as a very good case for Kerry and Edwards. We may have more weapons that we did four years ago. But on every metric that counts, we are weaker in the world. We may have successfully deposed a dictator. But we did so with such colossal diplomatic ineptitude that three generations of extremist violence will be directed against us alone. We may have "invaded Iraq to stop terrorism." But as absolutely every commission that has considered the matter has concluded, Iraq had absolutely nothing to do with the terrorism that excited our nation into action. The facts are against the President. Let's see if this trial lawyer can help America to recognize that fact.

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Tucker: 9/24/04, 07:33 AM
If there's anything that depresses me it's this endless trope that "we were lied to" whenever a war we have been fighting goes bad. It not only offers people an out for their own earlier support, it diverts attention away from the simple question, "What do we do next?"

I never bought the argument that "we were lied to" going into Vietnam. I think we went in there, first, because we thought it would be an easy conflict and second, because at that point there had been a war in nearly every generation and it seemed only natural there should be another.

Vietnam became a quagmire because we underestimated the enemy and because we were fighting in the shadow of the Cold War. We started out making "body counts" -as if we could outlast the Orient's vast numbers-and suspecting every villager to be the enemy. By the end we had learned to blend in with the populace and were actually doing fairly well-except the war had lost popular support. When the task proved more difficult than everyone imagined, along came the Pentagon Papers to prove that "we were lied to." That gave people a graceful excuse for changing sides.

Nobody "lied" about Iraq. Everybody thought Saddam had weapons of mass destruction-even Saddam thought he had weapons of mass destruction-and it's still not clear that he didn't. But that doesn't matter. His presence was a threat to the entire region and since we were attacked on September 11th, what happens in the region became our business. Go watch Michael Moore's Fahrenheit 9/11 and you'll see a nice argument that we should have attacked Saudi Arabia instead.

The American people may eventually wear down from all this but so far that hasn't happened. Everybody now acknowledges, for example, that we made a mistake by not taking Fallujah last spring-although there was still good reason to be diplomatic at that point. Instead, it has turned into a vipers' nest that radicals are using as a home base to disrupt the rest of the country.

Now imagine if we were to abandon Iraq at this point! Wouldn't the whole country turn into a vipers' nest that radicals used to disrupt the whole region? And wouldn't we inevitably be drawn back into the conflict on a much less advantageous basis?

We began talking about John Edwards and his skills as a trial lawyer and I think this is a good point to come back to it. Even the best lawyers will admit that there are some cases any lawyer can win and others that no lawyer can save. It's the narrow range in the middle that separates the good lawyers from the bad.

John Edwards is a good lawyer and in an ordinary election he might have made a strong candidate. Instead, he's arguing an essentially unwinnable case. You can see that in Larry's anecdote about the fundraiser. "Think how much we've lost in the last four years," Edwards intoned and then went on to list "backsliding on the environment" as a prime example.

Is there any American who will look back at the last four years and say "backsliding on the environment" has been the most important grievance we have suffered? My response is, "What planet have you been living on?"

We were attacked on our own soil for the first time in 190 years. We lost more people on September 11th than we did at Pearl Harbor. And yet Democrats seem to think that if we just use our lawyerly skills, convince the world that we're the victim, appeal to the sympathy of some imaginary jury, then we will win our case.

Even women are turning away from this argument-one of the most significant developments of the campaign. The turning point seems to have been the massacre of schoolchildren in Russia. Is this George Bush's fault? Can anyone honestly argue that we hadn't gone into Iraq this atrocity wouldn't have happened? Or is it simply true that there are real enemies out there who mean us harm?

We're living in a big world-much bigger than the cozy confines of the trial lawyer's world. Undoubtedly some Democrats are thinking right now, since foreign affairs have become the central issue, wouldn't John Kerry have done much better choosing General Wesley Clark as his vice president? Maybe during Al Gore's populist 2000 campaign the skills of a trial lawyer would have had an impact. But in this election John Edwards has become the invisible man.

Lessig: 9/24/04, 03:46 PM
Bill asks, "Is there any American who will look back at the last four years and [think] 'backsliding on the environment' has been the most important grievance we have suffered?"

Well here are some of the facts. As Scientific American reports this month, because of changes in rules governing pollution controls by electric companies, and the abandonment of over 70 investigations into violations of the Clear Air Act, there will be "thousands of premature deaths every year." The people most affected are those who live "downwind of the power plants" —for example, "residents of the areas around Cincinnati, Pittsburgh, and Charlestown, W. Va., which have some of the worst levels of particulate pollution in the country." (And also happen to be swing states.) The total savings to industry created by these changed rules is estimated to be $73 billion over 20 years. The total additional health costs caused by the increased pollution will be over $1 trillion in the same period.

Thus, more people will die of this change in regulation than died in Pearl Harbor and 9/11 combined. And I doubt anyone would think that the health care system can easily bear $1 trillion in additional costs, just so electric companies save $73 billion. Once again, the story is the same: this administration benefits the few by burdening the many.

But is this the "the most important grievance we have suffered?" Of course not, and neither I nor Edwards said so. There are many Bush abominations that compete with this astonishing fact, and some are clearly more pressing. For example, the War on Iraq—which has led to the death of over a thousand Americans, between 13,000 and 15,000 Iraqi civilians, and will cost America anywhere between $200 billion and $1 trillion by the time it is over. This is a much more important grievance, but just one important grievance among many.

Bill complains we spend too much time arguing about the justification for this war, thus "divert[ing] attention from the simple question, 'what do we do next?'" But this is an election about whether to return to office a man who has demonstrated profoundly bad judgment. He took us into war—perhaps the most important action a President can take. It is obviously relevant to this election to ask whether his reasons were justified.

It is at least clear that his reasons were false. There were no WMDs. There was no tie between Iraq and the terrorism of 9/11. Those were the reasons given. As they were false, they don't justify the war.

Were they "lies"? That's a harder question, the answer to which I think we don't know. But I said that many believe they were lies. And I had thought everyone knew that the government had lied in Vietnam—but never mind. My point was simply that if one went to war believing the war was justified, and then after seeing the war, and understanding the facts better, came to believe the war was unjustified, then changing one's mind about that war would not be flip-flopping. Admitting error is just the sort of courage this Administration has never been able to muster. And that is precisely the reason we should not trust our nation to its control for another four years.

No one is arguing that we should "abandon Iraq." No one denies that "there are real enemies out there who mean us harm." The argument against this administration is that it has created burdens for us alone that it need not have created, and that its essentially unilateral actions have made us the sole target of the fury that the next three generations of terrorists will deliver.

The charge is bad judgment. And the plea to America is to hold accountable those who made these bad judgments. Clinton demonstrated bad judgment in his affair with an intern. The Republicans believed that offense merited the extraordinary remedy of impeachment. I suggest the bad judgment that has led us into this quagmire, and especially the refusal to accept responsibility for that judgment, merits at least an early retirement.

But as I said the first day: The single most important feature of this administration is that it doesn't believe in accountability—not for itself, not for its intelligence officers, and not for those who cause harm to others. President Bush wants for the nation the life that he himself once knew: free to do whatever it wants, never having to face the consequences.

It is an odd meme for conservatives. But I continue to believe that if we could focus on the facts, then poor judgment will be the verdict.

There will be one sure context in which such a focus will be achieved—when this trial lawyer gets to demonstrate the skill that turned his simmering campaign into a rocket at the beginning of the year: the debates. John Edwards will crush Deferral-5 Dick Cheney. With the facts, and the simmering outrage that these facts evoke in anyone who considers them.

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