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Regular Order

“Settling Sam” – that was my nick-name in the mid-1970s as a young lawyer in the Judge Advocate General’s Corps of the United States Army. I spent four years on active duty at a time when the country was still engaged in the Viet Nam conflict, but most of my time was spent in the Office of Chief Trial Attorney in Washington, representing the United States Army against contractor claims before US Court of Contract Appeals.  

One of the things the Army offers young lawyers is the ability to engage in work at a young age that in the civilian world is often the exclusive responsibility of senior partners. It was exciting, and periodically frightful, to be up against named partners in big law firms, me a 25 year old kid only three years out of law school.  

I became very good at clearing my docket because I could almost always find middle ground. My philosophy then was: Why fight when you can settle? Eventually I was given the nick-name “Settling Sam.”

One day I went in the office to “sell” a tentative settlement I had reached with opposing counsel. The case was taking longer, and had been more contentious, than most of my cases. We were indeed settling for pennies on the dollar of their claim, so I thought for sure my boss would be pleased. After my presentation, he stared at me and asked “Why are you settling?” “I am paying a nuisance amount to make it go away,” I said. His response was. “Sam, you have established that they have no case. They are not entitled to anything. Sometimes you are right and they are wrong. You need to learn how to win.” When I reported back to the opposition that we would take the matter to trial, they withdrew their claim.

Today it seems that “what is right” has stopped being the standard; instead, people seek “what can be worked out.” Working things out — settling, so to speak — might be appropriate in some matters, but there are also important matters that have two sides: right and wrong. The art of the politics isn’t to split the difference – settling for pennies on the dollar – but to find where good policy – “right” – exists among different views, put together a package with those elements and take the matter to the vote.

This story comes to mind today as there seems to be a sliver of light in the stormy Washington clouds of partisan gridlock. The Senate vote to allow debate and (hopefully now) final action on a bill that would address gun violence was a breath of fresh air because it restored some “regular order” to the democratic processes of our legislature. Some in Washington are advocating for this approach — not just on gun legislation but more broadly. By “regular order” they mean individual accountability for legislation, public hearings on bills and public votes. As Congress has moved away from “regular order,” it has moved toward a concentration of power behind closed doors with only a few people deciding on what moves and what doesn’t. It is one of the root causes for the toxic environment and lack of trust in Washington.

There is still a lot of work to be done as some Senators threaten procedural tactics in hopes of “winning” by destroying the Senate’s ability to act on anything. Instead, they should be focusing on a procedure to allow all amendments to be put to a vote. Authors of the amendments would be required to argue for them in the glare of the CSPAN lights, and people would then vote on each one. As citizens of this country — a democratic society — I dare say we are entitled to those votes.

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