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Volume 24, Number 1 (2000) reprinted by permission Legal Studies Forum FROM “PERRY MASON” TO PRIMARY COLORS: USING FICTION TO UNDERSTAND LEGAL AND POLITICAL SYSTEMS JAMES L. MCDOWELL* The author of this essay is neither a lawyer (a personal career choice), nor a politician (a decision made by voters). However, as a professor of political science, I have long been involved in the fields of law and politics. As an educator, I take issue with the aphorism that those who care about the law should not know how it is made or applied. To the contrary, an understanding of legal and political systems is essential if citizens are to function as informed participants in a democracy. In this essay I review novels that describe and explain the operation of the legal system and the functioning of the political process. justice system of a big city much like the author’s hometown of Chicago when a deputy prosecutor is incriminated by circumstantial evidence in the rape-murder of a former lover.2 Since publication of this book, a number of contemporary lawyers-turned-novelists have produced authentic, even graphic depictions of the legal system. As Grisham notes, lawyers get involved with people who have messed up their lives, and their lives make fascinating stories. Further, Grisham, who found most legal work “incredibly boring,” suggests that while “Americans distrust the [legal] profession as a whole, we have an insatiable appetite for stories about crimes, criminals, trials and all sorts of juicy crooked lawyer stuff.”3 For more than a half-century prior to Turow’s debut, however, Erle Stanley Gardner satisfied the appetites of millions of American readers, indeed a worldwide audience, for stories about crimes, criminals and trials, and provided them an informal education in criminal law. His fictional character “Perry Mason” is considered by many observers to be the most noted “lawyer” of this century. Far from being a “crooked lawyer” (although his efforts on behalf of clients occasionally were of dubious legality and questionable ethics), Perry Mason is described by Gardner as “a member of the legal profession who is fighting for human rights and liberties.”4 From the 1930s through the 1980s, Perry Mason reigned as the world’s most celebrated attorney, gaining international distinction in a variety of entertainment venues. The widespread popularity of the character has affirmed his status as “America’s lawyer.”5 Mason is considered by many to be the alter ego of Gardner, an attorney who turned to writing fiction both to supplement the income from and escape the tedium of his small-town legal practice. One observer noted that Gardner was well-equipped to dramatize legal problems, being able to “draw on his own dazzling accomplishments as a trial lawyer” so that “many of the Perry Mason stories were taken directly from Gardner’s courtroom successes.”6 Gardner’s principal biographer puts it more succinctly: “It doesn’t take much digging and delving to realize that Mason was Gardner and Gardner was Mason, dramatized and glamorized a bit, to be sure.”7 Gardner’s motivation, however, was more than monetary or boredom: he also sought to improve the administration of justice. Perry Mason would appear on the scene during the rough-and-tumble 1930s, a period when police were often as corrupt as the gangsters, and getting or aiding justice and establishing the innocence of persons accused of crimes was made difficult by the tactics of both prosecutors and law enforcement officials. Gardner wanted to create a lawyer-detective wholly unlike the contemporary crop of fictional crime-fighting heroes, a character who could combat the public’s commonly-held “contempt for law and law enforcement” and the average man’s “feeling of the law’s futility”8 of that era. Throughout his career, Perry Mason (and his creator) would advance the conviction that the function of the judicial system was to protect and preserve the constitutional rights of ordinary citizens—individuals caught up in a chain of events over which they had little control and, usually, less understanding. In doing so, Mason would assert the rights of persons accused of crime long before the U.S. Supreme Court would selectively incorporate and apply the Bill of Rights to actions taken by state law enforcement personnel and local officials. When Perry Mason began the practice of law and, in fact, until the 1950s, individual rights and the concept of “due process” were generally the domain of the states which often treated criminal defendants differentially. Mason, however, would stand apart from other lawyers, both real and fictional, from early in his career in arguing that people should “stand on their constitutional rights.” In one of his most memorable statements, Mason contended that “organized prosecutors” had convinced legislators and persuaded judges to “sweep away” the constitutional guarantees that protected individuals: When the ordinary citizen is dragged into court, he’ll find that the cards have been stacked against him. Ostensibly, they were stacked against the professional criminal by organized public servants, but actually they’ve been stacked against Mr. and Mrs. Ordinary Citizen. [I]t isn’t a question of whether a man is guilty or innocent, but whether his guilt or innocence can be proved under a procedure which leaves in the citizen the legal rights to which he is entitled under a constitutional government.9Whereas the law enforcement community would later argue that decisions of the Warren Court “handcuffed the police,” Mason would maintain throughout his career that the legal system, police, and prosecution shackled his clients. He contended that the Constitution provided a blanket protection of an individual’s rights and that an accused person was always entitled to representation and a fair trial. As he explained to one of his many faithless clients, “No matter what you’ve done, you’re entitled to your day in court and you’re entitled to competent counsel to see that your rights are protected. When I start fighting to protect a client’s rights I fight every inch of the way for every constitutional right a client has.”10 To Perry Mason, the law was “a line of demarcation between what is prescribed and what is prohibited. . . .”11 He would dramatically describe this difference to a doubting client by telling her to stand two inches on either side of the border between Mexico and the United States. Moving just four inches placed the client under an entirely different set of laws. As Mason explained it, “The lawyer sees legal boundary lines just as clearly and can readily comprehend the distinction between being barely on one side of the line and barely on the other.”12 When prosecutors labeled these “distinctions” as “technicalities,” Mason responded that these “technicalities are simply the safeguards that the law provides a defendant to prevent a defendant from being unjustly convicted.”13 Mason’s efforts to utilize these “safeguards” dramatized the complexity of the law for the average citizen and the fundamental constitutional rights persons possessed long before the Supreme Court eventually endorsed them. Raymond Burr, star of the long-running “Perry Mason” television series produced under Gardner’s close supervision, believed the show “educated many people in the country who knew nothing of the law and who did not know that you were innocent until proven guilty”“14 Lawyers also were generally supportive. The president of the American Bar Association noted in 1993 that Perry Mason had helped “educate many people who previously had not had access to the justice system.”15 While a Harvard Law School lecturer advised it would be “preposterous” to suggest that Perry Mason single-handedly paved the way for the Warren Court’s criminal procedure decisions, he also maintained it would be “equally foolish” to pretend that Mason played no role at all: “Perry Mason presented a view of police and lawyers that, for better or worse, did more to give people a sense of how the legal system operates than any law school or grade school civics class.”16 While the Perry Mason chronicles can be recognized as having an overall positive impact by making ordinary citizens more aware of their fundamental civil liberties, they also have produced some misunderstanding of the legal process. Writers of contemporary legal novels point out that the practice of law is neither so exciting or appealing as depicted by Gardner’s Perry Mason. The protagonist in Taffy Cannon’s Tangled Roots (1995) is a California bar association investigator who is fascinated “ that the general public so glamorized criminal law. Probably a reflection of TV, dating back to Perry Mason. But real-life criminal law didn’t have much to do with dramatic courtroom revelations. It was plea bargains and not getting paid and clients who were usually guilty.”17 Paul Levine concurs. An attorney and creator of the “Jake Lassiter” series which features a South Florida-based ex-profes-sional linebacker-turned-lawyer, his character notes, If you’re a lawyer in a TV show, you handle only one case at a time, wrap it up by the last pitch for Pepto-Bismol, after which you’re toting your brief case down the courthouse steps with a beautiful client congratulating you for a wonderful job. Real life is different.18Just how different? Perry Mason won his cases within the confines of the legal system, employing every resource to insure that facts were disclosed, that proper procedure was followed, that a defendant’s rights were protected. By illustrating the law for the ordinary citizen and defining the role of the trial lawyer who represents persons accused of crimes, Mason overall presented a generally positive portrayal of the justice system. In contrast to Gardner’s idealized portrait, current legal fiction provides a more realistic and less romanti-cized picture of lawyers and the workings of the judicial system. As one example, consider lawyer-novelist George V. Higgins, who has depicted the criminal justice system of the Boston area for three decades. His lawyer, Jerry Kennedy, describes lawyers in the most practical terms: “A lawyer’s not a person who knows the law; a lawyer is a person who’s learned how to find the law that’s needed in a given situation. And also how to read it, a correlative that some lawyers overlook, to the sorrow of their clients.”19 In essence, today’s legal fiction is the conventional mystery novel dressed in a new wardrobe, albeit with more complex plots and backstories. Where Gardner’s Perry Mason would go only as far as complaining that the authorities were “sullen, indifferent, or downright hostile” to persons accused of crime,20 the authors of today’s legal fiction expose the manipulations of the justice system as practiced by police, prosecutors, judges, and by their lawyer-heroes as well. Levine’s Jake Lassiter, for example, provides a pragmatic view of the “so-called justice system” as it functions, at least in South Florida. Equating a courthouse to “a huge tent with a three-ring circus inside,” Lassiter describes a system that intervenes when society has broken down; a wrong has been committed, or at least alleged: In any given courtroom on any given Monday morning, the performers are not preparing for O. J. Simpson or the Menendez brothers. Not a trial of the century or even of the week. Hundreds of everyday cases flow along the conveyor belt of justice, dozens of bored inspectors picking them off, tossing them into this or that box for handing. obligatory conspiracy to dispose of cases with dismissals, plea bargains, and reduced sentences, lest the entire system crunch to a halt.21This description might be thought of as unduly pessimistic. But consider that lawyers like Jerry Kennedy, described by his wife as “the classiest sleazy criminal lawyer in Boston,”22 regularly defend “the riffraff, the flotsam and jetsam of the human race”23 rather than the “Mr. and Mrs. Ordinary Citizen” that Perry Mason encountered. Makes no difference the defendant couldn’t tell his side of the story. The rules of evidence go out the window. All sorts of hearsay come in. Counsel can’t object. Can’t elicit testimony in his client’s behalf. There’s no cross-examination of adverse witnesses. The jury hears only the prosecution’s case. The DA makes sure exculpatory evidence is deep-sixed. There’s no requirement that the person under investigation even has the right to be present. It’s a one-way street. Christ, even the presiding judge tells the jurors they’re an accusatory body and should be guided by counsel of the prosecutor; charges them that if the evidence is unexplained or unrefuted, the jury must return an indictment. What a crock!24Juries fare no better in fiction. They certainly don’t work like the prosecutor in Turow’s The Laws of Our Fathers (1996) describes them when he asks the judge to “do what we always do”: “Bring the prospective jurors up. Voir dire [examine] them. Ask them if they’ve read the paper, and the ones who have, ask if they can put it out of their minds.”25 Lawyers do not seek “a jury of one’s peers” but a jury as favorable as possible to their side—whether prosecution or defense. Under the rules of jury selection, each side has a number of peremptory challenges which may be used to dismiss potential jurors for no reason whatsoever. Therefore, Kate Wilhelm’s lawyer “had had no illusions about finding totally neutral jurors,” and she “had dismissed several people whose eyes appeared too glittery, and one man for no reason that she could have stated. She had not liked him. Reason enough.”26 But the process of jury selection in complicated cases can be even more involved. In The Runaway Jury (1996), Grisham provides a thorough account of various devices lawyers utilize to empanel the most favorable jurors, from the use of detailed questionnaires to alert lawyers on both sides to potentially adverse jurors to the employment of highly-paid jury consultants who profess “to be able to thoroughly analyze a person through the telltale revelations of body language” by watching and waiting “for arms to fold across the chest, for fingers to pick nervously at teeth, for heads to cock suspiciously to one side, for a hundred other gestures that supposedly would lay a person bare and expose the most private of prejudices.”27 At a trial, lawyers don’t like to ask questions to which they don’t know the answers. Nor do they want their witnesses simply “to tell the truth”; thus, they engage in “coaching” witnesses before they take the stand. As Levine’s Jake Lassiter expresses it, “I’m not adverse to advising my presumably innocent client to tell me what the hell happened only after I explain what makes a better story in the eyes of the blindfolded lady with the scales.”28 In The Indictment, defense attorney Dan Sheridan must prepare an elderly witness who is “goofy and blind as a bat” by “trying to remake her into Barbara Walters.”29 After extensive rehearsal of the witness’s testimony, the lawyer can see the witness “starting to come around” although “it would take some honing.” Eventually, when the lawyer is satisfied, he assures the witness she will be “the best witness we’ve ever had.” Sheridan’s approach is “We don’t tell our witnesses what to say, only how to say it.”30 Sheridan also points out that outcome of a trial may depend on which judge is assigned to the case. Discussing what he calls “court-room roulette,” Sheridan doesn’t consider a judge to be a neutral figure—”merely the third man in the ring enforcing the rules of legal propriety”—but the person who can make or break a lawyer’s case. “Given the right judge, one sympathetic to your cause,” Sheridan notes, “you could prevail. Given one not so inclined, you were in trouble.”31 Jerry Kennedy takes the lawyer-judge relationship one step further: some lawyers and judges simply don’t like each other, which can affect both the proceedings and the outcome. Referring to a particular jurist, Kennedy noted they hadn’t liked each other “since he was first named to the bench” and that he disliked this judge particularly because he was not above “threatening the lawyer with some harm to his client if the lawyer doesn’t do what the judge wants. . . . I hate judges who take their revenge on me by coming down still harder on my clients.”32 Kennedy notes he has no desire to fight with judges because it makes his life harder and more complicated, but at times there is no other choice. Contemporary legal fiction presents a rather pessimistic representation of American justice. Grisham presents an even more cynical view of those who practice it. In The Firm (1991), a young lawyer denounces his profession to a newly-hired associate: When you were in law school you had some noble ideas of what a lawyer should be. A champion of individual rights; a defender of the Constitution; a guardian of the oppressed; an advocate for your client’s principles. Then after you practice for six months you realize we’re nothing but hired guns. Mouthpieces for sale to the highest bidder, available to anybody, any crook, any sleazebag with enough money to pay our outrageous fees. Nothing shocks you. It’s supposed to be an honorable profession, but you’ll meet so many crooked lawyers you’ll want to quit and find an honest job.33Grisham’s grim assessment of the legal profession is obviously a far cry from that expressed by Gardner’s Perry Mason. Following the conclu-sion of his initial recorded case, Mason summed up his approach to the law thusly: “The District Attorney represents the people, and he makes the strongest kind of a case he can. It’s my duty to make the strongest kind of a case I can on the other side, and then it’s up to the jury to decide. That’s the way we get justice.”34 However, with Grisham and other lawyer-novelists it is flaws in both the system and its participants that typifies the tone of legal fiction since the 1980s. Likewise, the political novel has also taken a negative course in the late 20th century, focusing now more on defects in the system than describing how the political process functions. The decline of the political novel may have been slowed or reversed with Primary Colors (1996), a roman a clef about the 1992 presidential campaign published with extraordinary commercial success in 1996. Perhaps Primary Colors flourished because it painted a factual and vivid portrait of the political state of the nation, the authen-tic-ity of a presidential campaign, and the corrupting nature of political power. It may have succeeded because of the familiarity of the thinly-disguised characters to the general public. Certainly, the controversy surrounding the identity of the “anonymous” author did not diminish its appeal.36 For whatever reason, Primary Colors appeared to reinvigorate the “political novel” genre. Exactly what is a “political novel” has been the subject of extended debate among those who have examined it. Irving Howe37 believed such works should lean to the expression of political “ideas” as the dominant feature. Tom Kemme suggested a broader definition: political fiction examines man’s ambition to acquire and exercise “power”—”the desire to influence or control people or events.”38 Joseph L. Blotner, however, was more rigid: political novels “deal with the overt, institutionalized politics of the office-holder, the candidates, the party officials, or the individual who performs political acts as they are generally understood.”39 In my view, the political novel is any novel describing, in Laswellian terms, “who gets what and how.” Whatever this definition, those who explore the political fiction genre, have usually been more concerned with its intellectual caliber than its political import. Critics fault the American political novel as falling short of the quality found in its European counterparts. For example, Blotner suggested the novels of European authors were superior due to “the wider variety of political experience presented, the greater concern with ideology and theory, and the deeper insight into individual motivation and behavior.” He did concede, however, that American authors had functioned within a relatively more stable context than Europe with its “changing, conflicting, and radically different ideologies and resultant events.”40 James F. Davidson agreed that European political novels were superior, not only because their authors drew upon a “more complex political heritage” but also because their work was directed to “a more limited and sophisticated group of readers” than the mass audience sought in the United States.41 While critics such as these have pointed out its alleged shortcomings, the American political novel does help describe and explain political behavior. Davidson had cautiously advanced this notion in 1961, allowing that “works of fiction can be used in the teaching of politics and administration to supply some vicarious experience where real experience is impossible. . . .”42 Davidson, who was attacking the emerging “behavioralist method” (or what he termed “the compulsion toward a science of politics”) argued that “political science” should not preclude the consideration of fictional writing bearing on politics: “At its best, fiction illuminates politics as it illuminates all of life. . . . If an attention to political fiction did nothing more than . . . give greater vitality to the language in which we discuss politics, it would be justified.”43 Some 35 years later, Catherine H. Zuckert suggested that Davidson’s hope may have been realized, noting that scholars studying power in the wake of the post-behavioral revolution had increasingly turned to literature for insights and enlightenment. She reported that “many political scientists have come to see that the books we read affect—as well as reflect—the way we see the world, and thus what we do in it.”44 Fiction can play an important role in mirroring public convictions, indicating public perceptions about the socio-political system, even serving as a political instrument. It is commonplace, for example, to cite the impact of Uncle Tom’s Cabin by relating the supposed reaction of President Lincoln in 1862 upon meeting the author, Harriet Beecher Stowe: “So this is the little lady who made this big war?” Other novels have depicted deplorable conditions in society and kindled the fires of reform efforts. Upton Sinclair’s The Jungle (1906) revealed conditions in meat-packing plants, leading to enactment of the first pure food laws. A muckraker and political and social reformer, Sinclair would also take on the mining and petroleum industries. John Steinbeck’s The Grapes of Wrath (1939), portrayed the plight of the nation during the Depression, etching in the minds of millions the predicament of the Dust Bowl refugees and indicting the social and economic forces he held responsible. Blotner would exclude these from the category of “political” novels: they “do not deal primarily with political processes and actions, but concentrate instead on the conditions out of which political action may eventually arise.”45 I take a broader view of view of the political novel. At least one critic contends that “the American political novel enjoyed its greatest vogue in the first decades of the twentieth century.”46 One cannot disagree that the reform spirit of those years produced pivotal works illuminating various ills of society. But the real “hey-day” of political fiction would not begin until mid-century with the publication of two novels with continuing impact on the public consciousness: Robert Penn Warren’s All the King’s Men (1946) and Edwin O’Connor’s The Last Hurrah (1956). Warren’s Pulitzer Prize winning novel presented the vulgarities, crookedness and hypocrisies of Southern state politics in a fashion imitated but unmatched by others. His depiction of the rise and fall of a ruthless politician not unlike Louisiana’s Huey P. Long,47 remains, a half-century after publication, the ultimate description of the corrupting influence of personal ambition in a political career. Likewise, O’Connor’s rendition of big-city machine politics has been copied but unduplicated. His account of the last campaign of an old-style ward politician discloses how municipal politics really operated in the generation of Boston’s James Michael Curley, the probable model for the book’s mayor. Though some may view both books as dated, they remain the premier accounts of the politics of that period in their particular geographical areas. Political corruption, boss rule and machine politics were dominant themes of the American political novel in the first half of this century. Threats to the democratic way of life, in the forms of fascism and communism and McCarthyism, would be the central focus of this category in later years. As these ideological concerns captured the attention of citizens in real life, so too the political novel seized the attention of readers with its renderings of menacing yet credible situations. The forerunner of the “Cold War” novels appeared in the 1930s and 1940s with John Dos Passos’ U.S.A. trilogy (1930-36), Sinclair Lewis’ It Can’t Happen Here (1935), and Upton Sinclair’s “Lanny Budd” series (1940-53). These-novels express American attitudes of the period and for those wishing American fiction to express political “ideas,” these novels qualify. Dos Passos, intensely political and sympathetic toward communism, laid the disintegration of the American character at the feet of capitalism. Lewis, with a character much like anti-Semitic “radio priest” Father Charles Coughlin, described the triumph of fascism in the United States. Upton Sinclair’s Dragon’s Teeth (1942), voiced his concern with fascism and communism, and was sufficiently influential to win a Pulitzer Prize. As prominent as these novels were in their day, their impact and significance pale in comparison to those of Allen Drury. Beginning with Advise and Consent (1959), also a Pulitzer Prize winner, Drury not only depicted the spirit of militant anti-communism that prevailed in the United States in the late 1950s and 1960s but also described the fear that this nation and the Soviet Union were on an inevitable collision course toward armed combat, even nuclear war. In each of the succeeding volumes of a six-book series, the author would continue to convey, increasingly more blatantly, his conservative view of the problems confronting the United States. Indeed, so there would be no mistaking his position, Drury stated his theme in “A Note to the Reader” in his third volume: Running through both previous novels, through this and through [those] yet to come—as it runs through our times—is the continuing argument between those who favor the responsible use of strength to oppose the Communist drive for world dominion, and those who hope to find in diplomatic negotiation and the refusal to employ force the surest path to a secure and stable world society.48In Advise and Consent, Drury ostensively detailed the conflicts involved in a bitter senatorial confirmation fight over a controversial book insinuated the deleterious effect, at home and abroad, of an administration perceived as “soft” on communism. Such content was, as Kemme noted, “easily and comfortably processed and absorbed into the imaginations of millions of readers.”49 Drury presented five more volumes in the series, although none as notable as his initial effort. His conservative convictions were implicit in A Shade of Difference (1962), in which the United Nations exacerbated national and international racial tensions with a negative impact on American domestic and foreign policy. His viewpoint was still more obvious in Preserve and Protect (1968). After the President is killed in a mysterious crash of Air Force One, the party’s national committee must convene to select a replacement nominee, and a bitter struggle ensues between liberal and conservative forces. Widespread rioting—condoned by, if not initiated by “liberals”—is the reaction to the interim administration’s “firm response” to Communist aggression. The new administration answers with a severe anti-rioting measure which, of course, intensifies the ideological struggle for control of the party.50 Drury concluded Preserve and Protect with the selection of a conservative presidential candidate and a liberal running mate. However, as the book ended, with the two men and their wives gathered on the grounds of the Washington Monument to accept the nominations, shots ring out. One man and one woman are killed. But which candidate, which spouse is dead? Drury leaves the conclusion to the series open ended so as to further expound his views in later writings. In Come Ninevah, Come Tyre (1973), he painted a dark picture of the consequences of unrestrained liberalism: a weak liberal President presides over a stumbling society which, unable to confront the Communist bloc, withdraws from world leadership in deference to the Soviet Union. Distraught over the situation, both the president and vice-president keep “appointments with honor”—they commit suicide. In The Promise of Joy (1975), Drury offered a sharp contrast—a bright portrait of the advantages to the nation of a courageous conservative: a dynamic, strong President who, finally and reluctantly, intervenes in an all-out war between the Soviet Union and Communist China—but only because nonintervention would upset the balance of power.51 In his speech announcing his plan, the President also takes the opportunity to attack the intellectual community, the academic world, and the liberal media which together had “consistently denigrated, downgraded, vilified and sabotaged every worthwhile impulse and effort of its own country.”52 These comments of the President sum up Drury’s approach to American politics during the Cold War era. The choice is clear: follow the liberal philosophy, as in Come Ninevah, Come Tyre, and face the possibility of a “political nightmare”; or adopt the conservative approach, in The Promise of Joy, and realize “wish-fulfillment.”53 Drury’s books were not the only political novels to attract wide audiences during this period. Americans may have been concerned about the threats of communism and nuclear attack during the Cold War, but they were more than willing to read about these risks. In the 1960s, the New York Times Best Seller List included novels focusing on political concerns for 402 weeks. Two of the most prominent published during this period appeared when American-Soviet tensions were at their highest and described two of the more harrowing possibilities this nation could experience: an attempted military coup and the prospect of accidental nuclear war. Fletcher Knebel and Charles W. Bailey II envisioned a military takeover of the government in Seven Days in May (1962). The popularity of a liberal President is at an all-time low as a result of a nuclear disarmament treaty with Moscow. Meanwhile, the chairman of the Joint Chiefs of Staff , the President’s probable opponent in the next election, has become a national favorite with his public opposition to the treaty. The military leader’s unequivocal belief in “the virtues of our form of government and the differences between the American and other societies”54 and his concern over the treaty lead him to plot to depose the president. In the end, of course, the attempted coup is thwarted and democratic government preserved. But the Knebel-Bailey novel exposed readers to how power can be acquired and exercised when the system itself is under attack. Eugene Burdick and Harvey Wheeler also treated the conflict between communism and democracy and the tensions of the Cold War in Fail-Safe (1962).55 The least “political” of the novels surveyed, it nonetheless lent credibility to Americans’ greatest fears by imagining the possibilities of what might happen if something went wrong, if “the world tottered on the brink of thermonuclear war.”56 In this case, what “went wrong” was a malfunction in the mechanism designed to prevent American planes from passing the point of no return; what “happened” was the accidental nuclear bombing and total destruction of Moscow. To assure the Soviet Premier that the act was unintentional, a tragic error, and to prevent Soviet retaliation, the President orders the bombing of New York, even though his wife is in the city. In perhaps the ultimate mea culpa, the President says, “There is no other way, Mr. Premier, that I could think to demonstrate to you our sincerity.”57 In sharp contrast to the military demeanor in Seven Days in May, the Air Force commander in Fail-Safe carries out the order: “Even if I did not understand his decision, I would not disobey the President.”58 These novels, set in the future, speculated about plausible yet remote situations. A third novel, however, dealt with the effects of brainwashing, a method of systematically altering beliefs or attitudes, widely reported during the Korean War. Richard Condon’s The Manchurian Candidate (1959) involved a communist plot to control the presidency by programming a soldier, captured and brainwashed during the Korean War, to kill the presidential nominee and elevate his stepfather (the vice-presidential candidate) to the top of the ticket. The plot is thwarted by successful American efforts to “deprogram” the ex-prisoner of war, who commits suicide after shooting both his stepfather and his mother who was the communist control agent. Dismissed as a “paranoid” novel upon publication, it gained considerable notoriety as having predicted the assassination of President John Kennedy. In the late 1990s, the Cold War has substantially thawed, if not completely ended. These novels exploring the tensions between communism and democracy of some three decades past may no longer seem relevant. However, they continue to paint a sinister portrayal of the American attitudes, fears, even phobias, that dominated that period; further, they provide a provocative portrait of American and world opinion in the 1960s. These narratives of political demagogues, backroom politics, and ideological tensions sharpened American political awareness and provided meaningful instruction in far less prosaic language than found in text-books. biggest prize. Similarly, Knebel and Bailey dramatized the forces at work behind the delegates in Convention (1964). This, too, is a wholly authentic account of the behind-the-scenes manipulations that occurred in the days when conventions actually selected the nominees. Particularly informative is the role not of the delegates on the convention floor but the powers behind the scenes. When the leading candidate opposes a new missile project, he loses the support of the unions, the defense contractors, and even the outgoing President. Knebel, in Dark Horse (1972) turns his attention to a presidential campaign to consider what happens after the nomination but before the election when a candidate must be replaced.59 His candidate in Dark Horse is selected by his party’s national committee as a sacrificial lamb with but three weeks remaining until Election Day. Viewing the choice of an unknown New Jersey Turnpike official as a “trial run for the future,” the committee conceded, “We all know he can’t win, but he gives us a chance to see how the country accepts an authentic mid-America type.”60 Edward A. Rogers, in Face to Face (1962), and Burdick, in The 480 (1964), treated campaigns rather more somberly. Rogers was concerned with all facets of the process, from pre-convention maneuvering through the roll-call vote to the campaign trail. But his principal focus was on the prospect of televised debates between the candidates and the question of whether a candidate’s image had become more important than his ability to lead.61 Further, his novel considered an attempt by a network executive to manipulate the debate production—the setting and the camera work—to favor the candidate who had promised the executive a cabinet post. Appearing just after the Kennedy-Nixon debates, the novel was not only timely but provocative. Equally tantalizing but perhaps even more thought-provoking was the theme of The 480. Nearly a decade earlier, in The Ninth Wave (1956), Burdick had detailed the abilities of a political manipulator to combine his Machiavellian approach to life (“fear plus hate equal power”) with scientific polling methods and analysis to elect a governor of California. In The 480, Burdick introduced the general public to the use of computers in politics—not to count votes and assess trends—but actually to prepackage a presidential candidate the public “wishes” to support. The “480” referred to the number of groups into which the electorate was divided, then analyzed, in order to predict their political attitudes. Once these attitudes were determined, a candidate appealing to these voters could, literally, be created. In Burdick’s novel, just such maneuvers took place. Dr. Devlin, a behavioral scientist,62 used polls to discern what “image” the voters desired in a candidate. She then employed the data to tailor a newly-emerged public hero into a candidate voters would support. But the reader never learns if the process is successful: the candidate learns he has been manipulated and withdraws his name from consideration. Whether such methods would work in the real world of politics was then, and still is, subject to considerable debate; but accounts of recent presidential campaigns would suggest that efforts such as these—targeted mailing and selective television advertising, for example—have been successful. In 1964, this concept was stunning, even appalling, to an electorate which thought it actually elected the President. But it is not the people, of course, who elect the President. Sometimes it is not even the Electoral College (when no candidate receives a majority of its votes). Sherwin Markman in The Election (1970) presents a three-way race for the presidency (with candidates reminiscent of the 1968 campaign) in which no candidate wins the Electoral College vote nor wins a clear majority of states necessary to win in the House of Representatives. Markman provided a meticulous accounting of the political bargaining and calculations necessary to yield a victor. Amid racial unrest in the nation’s capital, the candidates wheel and deal, seeking the necessary 26 states for election. Through 20 ballots, the momentum is in favor of the George Wallace-like candidate, whose victory is sealed following the beating death of a white congressman in a racial confrontation. Markman’s message was unmistakable: this could happen here. A person may also become President via another avenue: the death or disability of an incumbent. This was the subject of two strikingly different novels: Irving Wallace’s The Man (1964) and William Safire’s Full Disclosure (1977). Wallace’s book employed the then-current method of presidential succession as a springboard for his real concern: the nation’s reaction during a time of racial tension to the elevation of a black man to the White House. Although the book is instructive in its examination of succession laws and procedures, Wallace’s premise is both unsatisfactory and defective on at least two counts. With the Vice President having just died, both the President and the Speaker of the House (next in line under the law then in effect) travel to Germany to negotiate a pact on African unity. Both are killed when a 600-year-old building collapses, leaving a black president pro tempore of the U.S. Senate as President of the United States. It is possible, though unlikely, the House Speaker would have accompanied the President to an international conference at such a time. It is highly improbable, however, that a second-term Senator—race notwithstanding—would have been the selection of his party’s caucus to become the pro tem, a position which, by 1964 if not earlier, had become a largely ceremonial post reserved for the majority party’s senior member. Such fictional license was necessary, however, for the author to develop his plot: the black President first becomes the target of white Southern antagonism, then of black opposition when he is accused of becoming an Uncle Tom. Circumstances lead, of course, to the inevitable impeachment trial in which the events of 1867 (including a Tenure of Office Act and failure to convict by one vote) are updated. Wallace’s moral is made clear in the end— “The country’s learned to live with you, Doug [the black President], so now, at last, it can live with itself.”63 Within a contrived storyline, however, the author provides an informative political chronicle. The adoption of the 25th Amendment outdated Wallace’s premise (at least one hopes the President would have initiated efforts to fill the vice-presidential vacancy under its terms before departing on his trip). It also allowed Safire to contrive intriguing possibilities for application of its disability provisions: Does the inability to see make a President “unable to discharge the powers and duties of his office”? With the possibility the House will begin impeachment proceedings, a divided Cabinet declares him incapacitated. The President fights the decision “to usurp my constitutional power” and the matter winds up, as provided, before a joint session of Congress. While it takes only a majority of the House to vote impeachment, it requires a two-thirds vote to ratify the Cabinet’s decision to remove the President. A loyal member of the Cabinet has orchestrated implementation of the 25th Amendment to forestall impeachment, and the Speaker of the House has pressured enough wavering members to allow the President to win in a close vote. The powers and duties of the office are re-stored to the President who then, of course, fires the Cabinet officers who attempted to oust him. But Safire’s denouement was even more stunning: the President forces the resignation of his Vice President, then resigns himself. The simulta-neous abdica-tions result in the Speaker becoming President. Contemporary observers may dismiss the importance of novels such as these. Delegate-selection primaries not conventions now choose presidential nominees. Television debates are common-place. Sophisticated voters are aware of contemporary campaign techniques. Anyone interested in procedural politics can watch C-SPAN. Yet these novels of the 1960s and 1970s remain relevant, if only as an indication of how far we have come in a very short time. One such category might be termed the “documentary novel” in which authors use actual events, individuals and places as the backdrop for a re-creation of “what might have been” or speculation as to “what really took place.”64 Gore Vidal is probably the most prominent of these practitioners with a series he calls “an American chronicle.” Vidal’s works, including Washington, D.C. (1967), mingle historical figures and fictional creations to relate his version of American history. These historical-political novels (or novelized political history) suggest the imaginative reach of political novelists who may take considerable latitude in fictionalizing actual events. The Cold War, its beginnings and its impact, proved a popular theme for the historical-political novel. William Bradford Huie, in In the Hours of the Night (1975), provides his interpretation of changes in the America of the 1940s, from the politics development of the atomic bomb to the causes of postwar disillusionment. Robert Coover’s The Public Burning (1977) depicts the McCarthy era, focusing on the Rosenberg trial and concluding with their public execution in Times Square. James Ellroy’s The Big Nowhere (1988) also revisits this period, with his rendering of the mid-century Hollywood witch hunts. The Kennedy assassination also provided opportunity for novelists. Charles McCarry theorized in The Tears of Autumn (1974) that Lee Harvey Oswald served as an operative of a Vietnamese conspiracy to avenge the overthrow of the Diem regime rather than as an agent of either the CIA or the Mafia. In Libra (1988), Don Delillo speculates on the events leading up to the assassination but concludes that Oswald was a scapegoat in a CIA plot to stage an unsuccessful attempt on the President, a plot linked to Fidel Castro. George Bernau’s Promises to Keep (1988) takes an entirely different approach. The President is shot but not killed in Dallas. While incapacitated, he must struggle to regain his authority from the Vice President, a master politician from Texas and fierce political rival. Finally, two seminal events in the American political consciousness have been given the pseudo-historical treatment. Readers are returned to the Democratic National Convention of 1968—more particularly, the confrontations outside the hall as seen on television—in Al Morgan’s The Whole World is Watching (1972). Barbara Raskin’s The National Anthem (1977) recalls the Watergate hearings of 1974 and their impact on press and politics. These pseudo-historical novels gave way to bastardized historical-political novels in the late 1970s, as American political fiction sank to new depths. Authors frequently employed Washington and international capitals as the setting for tales of intrigue, but politics was only peripheral to their narratives. Many involved a morass of political double-dealing and the gamut of Washington’s sins—adultery, manipulation, and betrayal. Authors often placed tales of mystery and espionage in political locales. Several series by well-known and politically-informed individuals proved successful. William F. Buckley’s A Very Private Plot (1994) is the tenth in a string of spy novels set against real events that recount the adventures of retired CIA agent Blackford Oakes. Always the available agent, he was involved in the U-2 incident, confrontations at the Berlin Wall, the Bay of Pigs episode, and a plot to kill Castro following the Kennedy assassination. The series began with the most improbable of exploits, the young Oakes being seduced by the Queen of England.65 Elliot Roosevelt, son of a President, produced an equally implausible series of mysteries featuring his mother as an indispensable crime-solver who has solved murders in various rooms of the White House, from the Oval Office to the pantry, but also on an ocean liner, at Hyde Park, in the Bahamas, and in a French chateau while on a covert mission. Given an air of authenticity with political and social vignettes, actual wartime events, and the presence of real personalities, the novels strain credibility on occasion as, for example, when Mrs. Roosevelt goes skinny-dipping with Greta Garbo.66 Margaret Truman Daniel, daughter of a President, also drew on her Washington background for a series of mysteries set in and around the nation’s capital, beginning with Murder in the White House (1980). She features a pair of crime-solving sleuths, Mac and Annabel Smith, ex-lawyers who have gone on to legitimate careers. But for encountering murders in virtually every government building in Washington, the Smiths lead a more sheltered, certainly less risque existence than others in this category.67 At the same time, the paucity of significant political novels in recent years, and the types of “political fiction” which supplanted them, would appear to confirm polling data which suggest that Americans, disillusioned in the 1970s and disappointed in the 1980s, remain disenchanted in the 1990s. There is little confidence in the honesty and dependability of politicians, and we persist in questioning both how “government” functions and the ability of “government” to get things done. Indicative of these trends are satirical novels such as The White House Mess (1986) by Christopher Buckley and American Hero (1993) by Larry Beinhart. Buckley’s book is a purported memoir by a presidential aide detailing the catastrophes befalling a new administration when the previous President refuses to vacate the White House. Beinhart’s novel is even more bizarre, relating the deathbed plotting of the late political consultant Lee Atwater to get George Bush elected (suggesting that a movie director staged the Gulf War).70 Both books are wholly outrageous and have little, if any, literary merit compared to either their European counterparts of 40 years ago or even their American predecessors of a similar period. Yet they serve to reflect the contempt Americans now hold for politics. For that matter, even Primary Colors, for all its prominence, is little more than a caricature of American politics in the 1990s, allowing the reader to avoid reality for a time, to snicker as he recognizes political figures portrayed in the novel. This is not to suggest there have been no attempts at serious political fiction in recent years. Indeed, this is not the case. Among the notable efforts is Tom Wicker’s Donovan’s Wife (1992) which provides a faithful rendering of modern campaign politics, detailing the role of spin doctors, the use of dirty tricks, and the manipulation of voters with slanted commercials. Likewise, Jeff Greenfield constructed a “cautionary” but realistic account of the workings of the Electoral College in The People’s Choice (1995). Most recently, Ward Just forged a sweeping narrative of 20th century domestic politics with Echo House (1997). Just’s book may signal a return to the political novel which proved both readable and enlightening for the lay readers in the pre-Watergate era. Likewise, legal thrillers produced by Grisham and Turow among other lawyer-novelists, allow nonprofessionals an insider view of how the judicial system functions. I disagree with those who decry the fact that today’s legal and political fiction depict “systems” that don’t work. Fiction is a barometer of public attitudes and beliefs at a particular time. Earlier 20th century legal and political novels entertained and educated readers. Today’s writers are serving contemporary audiences equally well, by pointing out imperfections in social institutions that prevent them from working as well as they might. Of course, readers need to be reminded, even warned, that novelists take considerable latitude in producing their fictional accounts of legal conflicts and political contests. Nevertheless, the popularity of legal fiction and possible resuscitation of the political novel suggest both a revitalization of interest in these topics and an opportunity for those who care about law and politics to gain a better understanding of how both systems work. * Department of Political Science, Indiana State University. 1. John Grisham, “The Rise of the Legal Thriller: Why Lawyers Are Throwing the Books at Us,” New York Times Book Review, October, 18, 1992, 33. 2. Scott Turow, PRESUMED INNOCENT (New York: Farrar Straus Giroux, 1987). 3. Grisham, supra note 1, at 33. 4. Erle Stanley Gardner, quoted in Dorothy B. Hughes, THE CASE OF ERLE STANLEY GARDNER 252 (New York: Morrow, 1978). 5. The discussion of Perry Mason is based upon a paper presented by the author at the “And Justice for All” conference at the University of Nebraska at Omaha, September 6, 1996. A revised version of the paper was subsequently published as “Perry Mason: America’s Lawyer,” 36 McNeese Rev. 27 (1998). 6. Charles W. Morton, “The World of Erle Stanley Gardner,” Atlantic Monthly, Jan. 1967, 80, 81. 7. Hughes, supra note 4, at 14. 8. Erle Stanley Gardner, quoted in Francis L. Fugate and Roberta B. Fugate, SECRETS OF THE WORLD’S BEST-SELLING WRITER: THE STORYTELLING TECHNIQUES OF ERLE STANLEY GARDNER 91 (New York: Morrow, 1980). 9. Erle Stanley Gardner, THE CASE OF THE CARELESS KITTEN 216-17 (New York: Morrow 1942) (emphasis in original). 10. Erle Stanley Gardner, THE CASE OF THE FUGITIVE NURSE 107 (New York: Morrow, 1954) 11. Erle Stanley Gardner, THE CASE OF THE DROWSY MOSQUITO 95 (New York: Grosset and Dunlap, 1943) (1941). 12. Erle Stanley Gardner, THE CASE OF THE GREEN-EYED SISTER 46 (New York: Morrow, 1953). 13. Erle Stanley Gardner, THE CASE OF THE DEMURE DEFENDANT 117 (New York: Morrow, 1956). 14. Mary Murphy, “With Raymond Burr During His Final Battle,” TV Guide, Sept. 25, 1993, p. 35. 15. David Margolick, “Raymond Burr’s Perry Mason was fictional, but he was surely relevant and, oh, so competent,” New York Times, Sept. 24, 1993, A26. 16. Steven D. Stark, Perry Mason Meets Sonny Crockett: The History of Lawyers and the Police as Television Heroes, 42 U. Miami L. Rev. 230 42 (1987). 17. Taffy Cannon, TANGLED ROOTS 49 (New York: Carroll and Graf, 1995). 18. Paul Levine, FLESH AND BONES 61 (New York: Morrow, 1997). 19. George V. Higgins, SANDRA NICHOLS FOUND DEAD 41 (New York: Henry Holt, 1996) 20. Erle Stanley Gardner, THE CASE OF THE SUBSTITUTE FACE 98 (New York: Morrow, 1938). 21. Levine, supra note 18, at 157-58. 22. George V. Higgins, KENNEDY FOR THE DEFENSE 16 (New York: Knopf, 1980). 23. Id. at 52. 24. Barry Reed, THE INDICTMENT 4 (New York: Crown Publishers, 1994). 25. Scott Turow, THE LAWS OF OUR FATHERS 52 (New York: Farrar Straus Giroux, 1996). 26. Kate Wilhelm, THE BEST DEFENSE 141 (New York: St. Martin’s Press, 1994). 27. John Grisham, THE RUNAWAY JURY 19 (New York: Doubleday, 1996). 28. Levine, supra note 18, at 27 (emphasis in original). 29. Reed, supra note 24, at 175. 30. Id. at 181. 31. Id. at 244. 32. George V. Higgins, PENANCE FOR JERRY KENNEDY 13 (New York: Alfred A. Knopf, 1985). 33. John Grisham, THE FIRM 52 (New York: Doubleday, 1991). 34. Erle Stanley Gardner, THE CASE OF THE VELVET CLAWS 259-60 (New York: Morrow, 1933). 35. The section on the political novel is drawn from “Political Fiction as Political Mirror: The American Political Novel as a Reflection of the Twentieth Century,” a paper presented by the author at the annual meeting of the American Political Science Association at Atlanta, Georgia, September 3, 1999. 36. Joe Klein, then a political columnist for Newsweek, admitted he was the “anonymous” author after months of emphatic denials. His identity was unmasked following a handwriting analysis commissioned by the Washington Post. Klein maintained he had guarded his secret in the same way journalists protect their news sources. 37. Irving Howe, POLITICS AND THE NOVEL (New York: Horizon Press, 1957). 38. Tom Kemme, POLITICAL FICTION, THE SPIRIT OF THE AGE, AND ALLEN DRURY 5 (Bowling Green, Ohio: Bowling Green State University Press, 1987). 39. Joseph L. Blotner, THE MODERN AMERICAN POLITICAL NOVEL 8 (Austin: University of Texas Press, 1966). 40. Joseph L. Blotner, THE POLITICAL NOVEL 3-4 (Garden City, N.Y.: Doubleday & Co., 1955). 41. James F. Davidson, Political Science and Political Fiction, 55 Am. Pol. Sci. Rev. 857 (1961). 42. Id. 43. Id. at 860. 44. Catherine H. Zuckert, “Why Political Scientists Study Fiction,” Chronicle of Higher Education, March 9, 1996, A48. See generally, Symposium: Politics and Literature, 22 Legal Stud. F. 529-653 (1998) (Catherine Zuckert & Michael Zuckert guest editors). 45. Blotner, The Modern American Political Novel, supra note 39, at 8. 46. Gordon Milne, THE AMERICAN POLITICAL NOVEL 65 (Norman: University of Oklahoma Press, 1966). 47. Warren, who had taught at Louisiana State University, conceded that Long’s career and “the atmosphere of Louisiana” had “suggested” the story. But he denied his character Willie Stark was “a projection of Long.” Quoted in Blotner, The Modern American Political Novel, supra note 39, at 219. 48. Allen Drury, CAPABLE OF HONOR (Garden City, N.Y.: Doubleday & Co., 1966). 49. Kemme, supra note 38, at 9. 50. Interestingly, the publishers of Preserve and Protect included a disclaimer on the dust jacket pointing out the book had been completed prior to “the latest rash of political violence which overtook our country.” The note also stated that the acts of violence depicted in the book “underscore the very real malaise from which we suffer.” 51. Drury never tells the reader on which side the President intervenes. 52. Allen Drury, THE PROMISE OF JOY 439 (Garden City, N.Y.: Doubleday & Co., 1975). 53. Kemme, supra note 38, at 160. 54. Fletcher Knebel and Charles W. Barley II, SEVEN DAYS IN MAY 102 (New York: Harper & Row, 1962). 55. Burdick had earlier aroused considerable controversy as co-author with William J. Lederer of The Ugly American (1958), a stinging indictment of the management of American aid programs in Southeast Asia. Burdick, himself a political scientist, also would have substantial impact with political fiction with a domestic theme, discussed below. 56. Eugene Burdick and Harvey Wheeler, FAIL-SAFE 8 (New York: McGraw-Hill, 1962). 57. Id. at 262. 58. Id. at 267. 59. Coincidentally, this novel was published the same year—1972—that the Democratic National Committee had to perform the function described in the book by replacing its candidate for vice president. 60. Fletcher Knebel, DARK HORSE 28 (Garden City, N.Y.: Doubleday & Co., 1972). 61. The author had been Nixon’s television advisor in 1960 and was closely associated with the production of the presidential debates of that year. Somewhat surprisingly, there are relatively few novels exploring the importance of television in modern campaigns. One notable exception is John Bartlow Martin’s The Televising of Heller (1980). Martin examines the role of the media consultant in “repackaging” a candidate for a U.S. Senate campaign in Illinois. 62. Dr. Devlin is so impersonal that the author does not give her (gender is supplied) a first name. 63. Irving Wallace, THE MAN 766 (New York: Simon and Schuster, 1963). 64. Somewhat ironically, Richard Condon refers to this category of fiction as “retrospective falsification” in an introduction to a reissue of his celebrated The Manchurian Candidate. See Richard Condon, THE MANCHURIAN CANDIDATE iv (New York: Armchair Detective Library, 1991). 65. William F. Buckley, SAVING THE QUEEN 191-195 (Garden City, N.Y.: Doubleday & Co., 1976). 66. Elliott Roosevelt, MURDER IN THE EAST ROOM 95-97 (New York: St. Martin’s Press, 1993). 67. At least one critic has suggested the Margaret Truman Daniel novels are the products of ghostwriters. See Ted Gregory, “Spirited Debate: Ghostwriters wrangle with the ethics of penning books for celebrity ‘authors,’” Chicago Tribune, August 13, 1997, Sec. 2, p. 1. There also may be reason to question the authorship of the Eleanor Roosevelt books which continue to appear despite Elliott Roosevelt’s death in 1990. His publishers indicate on the dust jackets of recent entries in the series that Roosevelt “left behind a number of unpublished manuscripts to be enjoyed by readers in the years to come.” 68. Anthony Lejune, “Thrilled,” National Review, December 23, 1996, 56. 69. Levine, supra note 18, at 157. 70. Beinhart’s novel served as the basis for the 1997 film, “Wag the Dog.” |
