Lost Causes

For those readers who, unlike me, never experienced childhood in the American South, let me preface this post with a brief explanation of the Lost Cause. Wikipedia's summary will do:

The Lost Cause is the name commonly given to a literary movement that sought to reconcile the traditional society of the Southern United States to the defeat of the Confederate States of America in the Civil War of 1861–1865. Those who contributed to the movement tended to portray the Confederacy's cause as noble and most of the Confederacy's leaders as examplars of old-fashioned chivalry, defeated by the Union armies not through superior military skill, but by overwhelming force.

I quote again from Wikipedia in summarizing the tenets of the Lost Cause:

• Confederate generals such as [Robert E.] Lee and Thomas "Stonewall" Jackson represented the virtues of Southern nobility, as opposed to most Northern generals, who were characterized as possessing low moral standards, and who subjected the Southern civilian population to such indignities as [William Tecumseh] Sherman's March to the Sea and Philip Sheridan's burning of the Shenandoah Valley in the Valley Campaigns of 1864.


• Losses on the battlefield were inevitable due to Northern superiority in resources and manpower.


• Losses were also the result of betrayal and incompetence on the part of certain subordinates of General Lee. . . .


• Defense of states' rights, rather than preservation of chattel slavery, was the primary cause that led eleven Southern states to secede from the Union, thus precipitating the war.


• Secession was a justifiable constitutional response to Northern cultural and economic aggressions against the Southern way of life.

Pickett's Charge, the pivotal moment of the Battle of Gettysburg and the subject of the romanticized painting depicted above, epitomizes the place of the Lost Cause in Southern cultural memory. No one, and I mean no one, expresses the sentiment more vividly than William Faulkner [from Intruder in the Dust (1948)]:

For every Southern boy fourteen years old, not once but whenever he wants it, there is the instant when it's still not yet two o'clock on that July afternoon in 1863, the brigades are in position behind the rail fence, the guns are laid and ready in the woods and the furled flags are already loosened to break out and Pickett himself with his long oiled ringlets and his hat in one hand probably and his sword in the other looking up the hill waiting for Longstreet to give the word and it's all in the balance, it hasn't happened yet, it hasn't even begun yet, it not only hasn't begun yet but there is still time for it not to begin against that position and those circumstances which made more men than Garnett and Kemper and Armistead and Wilcox look grave yet it's going to begin, we all know that, we have come too far with too much at stake and that moment doesn't need even a fourteen-year-old boy to think This time. Maybe this time with all this much to lose than all this much to gain: Pennsylvania, Maryland, the world, the golden dome of Washington itself to crown with desperate and unbelievable victory the desperate gamble, the cast made two years ago.

As I write these words in Louisville, Kentucky, a city that is to the American South as the Free City of Danzig was to the Weimar Republic, this insight comes to mind: Die sogennante «Lost Cause» ist unsere Dolchstoßlegende.

All this, as I have said, is prologue ─ das Vorspiel, if you will, to the final chapter of a tragic trilogy focusing on the South Carolina bar exam scandal (see part 1 and part 2). The State, South Carolina's newspaper of record, has dutifully reported that the South Carolina Bar has meekly accepted the statement by that state's Supreme Court regarding the admission of twenty candidates to the bar by court order rather than bar exam performance:

The South Carolina Bar appreciates the candor and responsiveness of the Supreme Court in its recent statement regarding the bar examination grading error. The Bar recognizes that the Court had no obligation to explain its decision. Indeed, judicial independence and impartiality require the Court to be deliberative and to render opinions apart from external considerations. However, in making the additional statement, the Court has put to rest any speculation concerning the facts. The Statement further exemplifies the conscientiousness with which the Court addresses all the important matters that come before it. The Bar is confident that the Court has and will continue to maintain the integrity of the bar admissions process.

And so the leading body of lawyers in South Carolina retreats, as defeated as the Army of Northern Virginia on July 4, 1863, from its confrontation with the South Carolina Supreme Court.

Unlike its predecessor in Southern history, this Lost Cause has merit. Legal professionals, in South Carolina and the rest of the nation, have every reason to question the Supreme Court's decision to mint 20 new lawyers who, by every account, flunked South Carolina's July 2007 bar exam. They have reason to doubt the high court's outlandishly illogical explanation. This sort of thing has happened before; now it is being reinstitutionalized anew. Not Very Bright's timeline leaves no room for doubt: this was a hamfisted, naked power play by South Carolina's judiciary, carried out at the expense of that state's bar and larger public. Yet, like many observers who are far closer to South Carolina than I am, I too expect this scandal to fade from public view as attention turns to Thanksgiving and this weekend's Clemson-Carolina football game. Panem et circenses, indeed.

The simple explanation is, as usual, correct and complete. South Carolina's lawyers, by my informal survey, are horrified by the Supreme Court's abuse of power. They rue how this episode will resonate for years, even decades, as yet another generation of South Carolinians learns that power, not prowess, that pedigree, not performance, holds the key to success. They cringe at the thought of outsiders consigning this most quintessentially Southern of Southern states to perpetual cultural irrelevance in the American pageant.

And yet they do nothing. I know why. They are afraid. Here is a brief sampling from my conversations and correspondence:

• "[In South Carolina,] retribution from the powers-that-be can be swift and brutal. That's not paranoia. It really is how things work here. There are no checks and balances, and if a megalomaniac rises to power, it's lights out."


• "[Chief Justice] Jean Toal can have you electrocuted if you cross her."


• And this gem from a commenter on FITS News for Now: “I’m embarrassed to be an attorney in South Carolina right now. . . . First it was the Court’s decision, now it’s the Bar Association bending over and taking it. No attorney is ever going to go on the record and say this, but the entire episode is disgusting, disgraceful and discouraging for everyone associated with this profession. Everyone knows so, everyone thinks so, but (the Justices) hold so much power no one dares to say anything, to say nothing of trying to hold them accountable for it.”

On the eve of Thanksgiving 2007, MoneyLaw will memorialize this episode. As soon as I finish writing this post, I will take pains to place what I am going to call my South Carolina bar exam trilogy in this weblog's sidebar. What happened here was disgraceful. It was scandalous. As a Southerner and a lawyer, I am ashamed.

I have spent enormous energy on this issue because it is personal. As I've confessed on MoneyLaw's sister forum, Jurisdynamics, "I have reached Dante's proverbial mezzo del cammin di nostra vita, only to realize that I burned the first half in pursuit of professional goals for which I was thoroughly unsuited" and, consequently, paid and will continue to pay a steep personal price.

But sunk costs are just that: sunk. The only person "worth being is the solitary and unseen you that existed from your first breath and which is the sum of your actions." At this stage, I have reduced my life's ambitions to two lofty goals: teaching other people's children well, and doing the same for such children as I might have someday. The former goal, at any rate, is progressing well enough. I strive to make the University of Louisville School of Law a place where first-generation and second-chance students can transform themselves for good, to lead an uncommon school for common people. By and by, mayhap, I might even get a chance to make an entire university, preferably one that is Southern and public, a place where locals and outsiders alike are proud to attend. These ambitions are merely my own idiosyncratic expressions of a Lost Cause held dear by me and by many other Southerners (especially but not exclusively those of us of humble origins): making our beloved region whole again, so that slavery, secession, and segregation are not our eternal curse, but rather the beginning of lessons learned and redemption earned.

South Carolina's bar exam scandal is a blow to those of us who believe, perhaps against all that we have observed and absorbed as Southerners, that our region might yet overcome the politics of corruption and the culture of complacency. So much for my institutional voice. Perhaps relief lies in speaking personally.

Far be it from me, a childless middle-aged man, to give parental advice ─ nur wer die Liebe sowie die Sehnsucht kennt, weiß was ich leide ─ but I do have a suggestion for the fathers of Catherine Harrison and Kendall Burch, the two well-pedigreed young women who were the focus of news coverage and private speculation surrounding the July 2007 South Carolina bar exam. Gentlemen, if you should ever have occasion to counsel another child or grandchild who has flunked the bar on her own merits, try the following alternative to encouraging your child to win admission to the bar by court order:

Catherine, Kendall, listen to me. You flunked the bar. Fair and square. Even for those born to prosperity and privilege, life deals bad breaks. The "hard work" you need to do is cramming for another shot at the bar exam. Those things you don't earn ─ they don't belong to you. The technical term for enjoying those things that don't belong to you is "theft." This, too, and more is covered on the bar exam, which you will retake and (God willing) pass on the second try. This is the lesson I most want to teach you, because I love you.