Cruz and Dildos: A lawyer's response to my request

A lawyer represents his client.

Peter Sage's Introduction of a Guest Post.

I received my first response to my request for comments on the Cruz/Dildo matter from Florida attorney Robert Guyer, who responds with a defense of the legal profession, one of several approaches I had thought Cruz might take.  (Please note the previous post, where I ask for comments.)  

The issue here is whether it is in the Democrats' interest to attempt to force Ted Cruz to talk about his defense of the State of Texas' law banning dildos.   My premise is that any time Democrats can force an opponent to talk about dildos the better for them.

How should Cruz do?   He could respond with dignity, my Guest Post suggests.

Robert Guyer reaffirms the dignity of fulfillment of duty of a lawyer to his client.  It is the most principled argument because it avoids sensationalism, avoids discussing the merits of the case, and it asserts the primacy of rule, order and professionalism.  

Is it the politically optimal approach?  It would probably allow Cruz to respond without saying "dildo", which is a matter of practical value.    I suspect it would re-affirm the notion as Cruz as a disciplined lawyer obligated to duty--acting not as a politician but as a professional.   It would resonate with people with strong respect for authority: policemen, military, and more generally voters who perceive Trump as unruly and undisciplined and "unpresidential" and see Cruz as the alternative.  It would re-affirm the Cruz brand, but might not expand it.   I think the argument has the virtue of being honorable--which may be sufficient.  Surely, even this year, a brief, principled argument has some merit.

But it has the disadvantage of not countering the Democratic attack meme: that there are red state conservatives out there attempting to tell people they cannot buy a fifteen dollar item to use in the privacy of their own bedroom, another example of Republican over-reach for them to cite. And by responding to the attack Cruz dignifies it as a matter worthy of issue, a dangerous path, since it allows cable panel debates:  Dildo, lawyer, dildo, duty, dildo, professionalism, dildo.  

Robert Guyer is a lawyer in Florida whose practice has moved primarily toward teaching citizens how best to influence legislation, with a book and seminars presented nationally.  His website,  http://learn-to-lobby.com  describes his approach for helping citizens be effective in shaping legislation.

Guest Post by Robert Guyer

Robert Guyer: Guest Post 

As our grandfather - criminal lawyer, mayor of Cleveland, and known as the “boy-millionaire” in the 1920s – taught Thad and me as children, “It’s not for me to judge the guilt or innocence of my client, but to represent him to the best of my ability.”   This is the star to which we were taught to navigate. 

At the University of Florida law school I was taught in jurisprudence class that we lawyers are the “new priests” of society. People would no longer look to religion for behavioral guidance but to us lawyers. We lawyers had the power to create “rights.”   In our constitutional law textbook one author commented that the expansion of rights seems to be endless; there being no genesis beyond lawyers speaking them into existence. Rights are unknowable only awaiting lawyerly discovery.  

Lawyers discover new moralities hidden in penumbras, evolving standards of decency, and without  “even a thin veneer of law.” Lawyers give congregants anomie in place of moral consensus because lawyerly established rights largely come from shattering cultural consensus, mores, and the law itself. Ted Cruz knew all of this when the dildo case was his to argue. 

He also knew that not only is there no constitutional right to use a product, there is no constitutional right to manufacture or operate a business selling  them. Absent a constitutional right, then the will of the people as expressed through their enactment of laws must prevail. If the people want to allow or ban a product they can, whether the product is marijuana, bath-salts, or didoes.  

I represented corporations and industry associations before legislatures and regulatory agencies. Some of my principles’ positions were idiotic and even self-destructive. However, after I gave my counsel it was theirs to accept or reject. I recall at times fierce rebuff of my advice. However, if I was going to be their advocate it was my duty to the best of my ability to achieve their legal goals; while I was guided by law, morality, and legal ethics. If I didn’t give my best for them I would have violated the most fundamental duty of all attorneys and that is zealous representation of our clients.  (Restatement of the Law (Third) of the Law Governing Lawyers. §16  Lawyer’s Duties to a Client–Generally American Law Institute. (2016))

I can’t speculate on attorney Cruz’s mind as he received the dildo case. Maybe he didn’t take to the priest role. He may have believed the people - not lawyers - have the right to structure their social order as they think best. However, I can say without a doubt that he had a duty to represent zealously his client – the citizens of the state of Texas. He did it and did it well. He has nothing for which to be ashamed. Rather, he should be admired as a lawyer faithful to his profession and his clients.