The Ginsburg/Scalia Initiative
The Ginsburg/Scalia Initiative honors the relationship between late U.S. Supreme Court Justices Ruth Bader Ginsburg and Antonin Scalia. This initiative celebrates respectful engagement and our constitutional tradition’s call on each generation to serve as stewards of our democratic republic and the rule of law. To discuss how we advance this work, the Attorney General Alliance/Conference on Western Attorneys General brought together a group of Attorneys General and thought leaders from around the country on February 4th through 6th in Avon, Colorado for a valuable set of conversations.
Author and social scientist Arthur Brooks began the conference with a keynote address reminding the audience that difference itself, and the ability to have conversations based on mutual respect across difference, is the source of America’s strength. He posited that the current toxic political atmosphere finds its root in contempt—the act and language of treating those with different views as worthless—and can only be remedied through acts of courage and love. “Our country needs more individuals to act with moral courage by standing up to people you agree with on behalf of those you disagree with. This does not mean you do not defend your positions, but instead means you do so with a posture that actively counters the culture of contempt,” he stated. He also urged the audience to remember that finding agreement and compromise across difference is not a sign of weakness, but rather reflects one of America’s most laudable historical virtues—the competition of ideas.
Delaware Attorney General Kathleen Jennings introduced the first panel, focusing on the state of American politics and the opportunities to heal and rebuild. She highlighted how Attorneys General regularly find opportunities to compromise and highlighted important ways that Attorney Generals from both sides of the aisle come together when important work needs to be done. “We cannot allow angry rhetoric to destroy that practice,” she urged. Idaho Attorney General Lawrence Wasden echoed her sentiments, celebrating some of his experiences of Attorneys General collaboration. These collaborations stemmed from good communication and “a willingness to listen. When we encounter disagreement, we have to take the opportunity to listen and be willing to hear and understand the other side, as opposed to simply defending our position.”
The first panel discussed how, without the willingness to listen and learn from different points of view, the fundamentals of the rule of law are at risk. “The rule of law is just an idea that is ultimately sustained in our collective belief in it and our collective responsibility to uphold it,” explained Colorado Supreme Court Justice Monica Márquez. “Such responsibility is grounded in individuals’ commitment to collaborative problem solving, a willingness to compromise, and to making sure everyone is and feels heard.” She shared how her experience on the Colorado Supreme Court provides an inspiring example of these values lived out in practice through the dialogue and cooperation among the Justices.
During the next session, panelists reflected on the legal norm of respectful dialogue. District of Columbia Attorney General Karl Racine highlighted that Attorneys General embody this norm when they commit to being Attorneys General first and remember that “true leadership knows no party.” The panelists then discussed how to encourage respectful dialogue as leaders. Attorney General Bridget Hill of Wyoming shared that she is committed to building communication practices in her office that help “break down barriers that make people feel uncomfortable to speak the truth or share their ideas.” Relatedly, Rachel Brand, Executive Vice President of Global Governance, Chief Legal Officer and Corporate Secretary at Walmart, discussed the importance of the “culture of candor” and true inclusivity that calls for a culture where those on both sides of any issues feel like they can safely speak. Hew Pate, Vice President and General Counsel at Chevron, shared that, in his experience better dialogue results when the speaker understands and responds to the personality of the listener, reflecting also that to facilitate dialogue more broadly we “need to understand the difference between things that we can remain in collegial disagreement about and the things we need consensus around.” To promote dialogue as a society, “leaders have to help people see the good in each other and find common ground,” said Brad Smith, President of Microsoft. And from there, he explained, leaders can better facilitate compromise. “There is no progress without compromise,” he added. “Compromise is a principle and a value in and of itself.” Craig Silliman, Executive Vice President and General Counsel at Verizon, agreed, stating” “If you measure your success by winning or losing, we become more tactical than strategic. The only good deal is where both sides walk away feeling like they got something.”
Over dinner, Colorado Attorney General Phil Weiser and Vanita Gupta, Associate Attorney General at the Department of Justice, discussed one of the principles of the Ginsburg/Scalia Initiative—people who view the world differently can engage in respectful dialogue with one another, learn from those with different views, and find common ground. A core to productive relationships, said Weiser, is “finding common ground without sacrificing principle. It is important to underscore that moderation in temperament—and tone—is different than moderation in philosophy.” In reflecting on her work as a civil rights lawyer Gupta discussed the importance of using “empathy in our discourse” and emphasized that taking the time to create personal connection and relationships across a wide spectrum of stakeholders, including in law enforcement is a key ingredient to crafting workable policies.
On Saturday, panelists reflected on the legacy of the relationship of Justices Ginsburg and Scalia. Former Justice Ginsburg clerk and current Professor of Law at the University of California, Berkeley School of Law, Amanda Tyler, shared that what was most compelling about the relationship between the Justices was its authenticity. “They took each other’s view seriously and genuinely enjoyed engaging with each other,” she reflected. “Justice Scalia forced her to engage with her arguments more deeply.” Similarly, former Justice Scalia clerk and current Professor of Law at University of Virginia School of Law, Aditya Bamzai, emphasized how much Justice Scalia cherished his relationship with Justice Ginsburg, noting that “Justices Scalia and Ginsburg were very good at letting things go, which allowed them to be friends over time.” They attacked each other’s ideas, not each other as individuals.” Jason Ravnsborg, Attorney General of North Dakota, commented on how the Justices set an example of true professionalism noting that they “set a standard to live up to.” He conveyed concern that our current political moment discourages friendships across party lines. Attorney General Doug Peterson of Nebraska too celebrated the Justices relationship as a model of finding commonalities. He commented that “like the Justices, there is a lot Attorneys Generals can work together on, such as our mutual work in anti-trust, consumer protection, and human trafficking. Attorney Generals can continue to do this work together as long as we do not build walls and instead keep talking.”
The erosion of civil discourse and rise of the insulated information “bubbles” is tied to the increased role of online speech platforms, such as Facebook and Twitter, in shaping our news consumption said Joshua Tucker, Co-Director of the NYU Center for Social Media and Politics during a panel focused on the challenges of moderated online content and misinformation. He emphasized that “if we want to understand how these platforms impact society, we have to make sure people outside of the platforms have access to the data generated on the platform.” Tucker went on to argue that increased data transparency coupled with research interpreting this data is critical to crafting appropriate targeted interventions. Paul Ohm, Professor of Law at the Georgetown University Law Center, went on to describe how these platforms “are designed based on incentives.” Kate Klonick, Assistant Professor of Law at St. John’s University Law School cautioned against the unintended consequences of some proposed solutions, noting, for example, that traditional anti-trust remedies may actually exacerbate concerns related to managing misinformation, not alleviate them, as it might be harder to monitor the conduct of smaller companies.
The conference also focused on some of the proposed solutions to current road-blocks to civil dialogue. Michelle Sobel, COO of Unify America, previewed the work of Unify America and America Talks, which facilitate one-on-one online conversations between Americans who come from different backgrounds and experiences and who may think differently. She highlighted the partnership between the Attorney General Alliance, Unify America, America Talks, Colorado Attorney General Weiser, and former Secretary of State Wayne Williams to host a “Unify Challenge for Colorado” where Coloradans from across the political spectrum will talk through issues that matter most to them like “public safety, mental health, housing, and environmental challenges. Coloradans may sign up for this opportunity here. The ambition of the Unify Challenge for Colorado is to encourage Americans to “bust out of their bubbles, build civic muscles, and work together to tackle our country’s biggest challenges,” Sobel said. “These types of solutions” said Attorney General of Oregon Ellen Rosenblum, “are necessary first steps towards the re-imagining of a more perfect union for our times.” “Some solutions are purely relational” said Guam Attorney General Leevin Camacho. In reflecting on conversations he observed throughout the conference, he was “encouraged by the depth of commitment to working together among Attorneys Generals from across the aisles.” Mississippi Attorney General Lynn Fitch also emphasized how Attorney Generals’ posture towards constituents is a critical aspect of modeling civil discourse. “Our role is to listen and respond with respect and empathy,” said Fitch. “Our efforts to engage meaningfully with our constituents is an opportunity to model the type of discourse we are discussing here today.”
The conference wrapped up with a poignant conversation between former United States Secretary of Labor and Justice Scalia’s son Eugene Scalia and Colorado Attorney General Phil Weiser. In reflecting on his father’s relationship with Justice Ginsburg, Scalia reminded the audience that the Justices were friends in part because of their differences, not despite them, because they recognized that the exchange of ideas honed their views and deepened their understanding. Ginsburg and Scalia had the type of relationship that showcased the commitment to discourse and progress through dialogue, listening, and reflection. These principles animated America’s founding, said Scalia. “We should celebrate the founding for the extraordinary government the Framers designed and for their inspiring vision of liberty and equality. It’s part of our history that we’ve fallen short of the ideals the Framers espoused, but it’s those ideals which have guided us to become an ever better nation.” Weiser and Scalia reflected on recognizing this necessitates reinforcement of the norm of free speech and rule of law. Their conversation echoed what was recently noted by David French: “I value free speech, not so much because I’m right and you need to hear from me, but rather because I’m very often wrong and need to hear from you. Free speech rests upon a foundation of human fallibility.” To protect these principles, we need to embrace as a country a “norm for engagement that starts not with attributing bad motives or questioning the good will of those who might see things differently, but rather with empathy, interest, and humility,” Weiser stated.
Among the many critical themes that emerged from the conference, the importance of relationships as a basis for constructive dialogue came up repeatedly. Where trusted relationships exist, it is more difficult to demonize and easier to listen and evolve. To build such relationships, we need to continue working to create opportunities for dialogue between those who view the world differently, which is both harder and more important than ever.