Essay

Judges and Lawyers “Making a Difference”

By Pete Eikenberry

     As advocates, we litigators work with the huffings and puffings of the justice system.  Yet, as Justice Sotomayor observed in a letter on March 4, 2010, “I tell many people that justice is accomplished not only in the courtroom, but in the struggles of many to effect change outside the courtroom.”  Lawyers often take responsibility to advocate justice outside the courtroom by speaking out or otherwise working to “make a difference.”

    Writing in the Georgetown Journal of Legal Ethics, Second Circuit Judge Robert Katzmann stated:

    My subject is a pressing one, the unmet legal needs of immigrants … too often immigrants are deprived of adequate legal representation, essential if they and their families are to live openly and with security.  This failure should be a concern for all of us committed to the fair and efficient administration of justice.  My views are shaped by experience as a judge on the U.S. Court of Appeals for the Second Circuit.… I write, I should emphasize in an individual capacity, not as an official representative of my Court.

    In our legal system … [t]he lawyer’s function is grounded in role morality, the notion that special obligations attach to certain roles- in the lawyer’s case, to serve justice.

    Thereafter, Judge Katzmann brought together a study group whose members, under his leadership, inter alia, have ensured representation for every detained New York City resident facing deportation.  Recently another judge, Jed Rakoff of the Southern District, also spoke out for justice in his “individual capacity” writing in the New York Review of Books:

    In many respects, the people of the United States can be proud of the progress we have made over the past half-century in promoting racial equality.  More haltingly, we have also made some progress in our treatment of the poor and disadvantaged.  But the big, glaring exception to both these improvements is how we treat those guilty of crimes.  Basically, we treat them like dirt.  And while this treatment is mandated by the legislature, it is we judges who mete it out.  Unless we judges make more effort to speak out against this inhumanity, how can we call ourselves instruments of justice?

    Judges Katzmann and Rakoff felt responsibility for the deficiencies in achieving justice in the U.S. of different classes of individuals.  They spoke out without waiting for an appropriate case to come before them.  As lawyers, we have been trained as advocates for our clients, yet our training also permits us to recognize that justice is often missing in the lives of whole classes of people even in our democratic system.  Thus, perhaps, do we have some special, or at least moral, obligation to live, in part, a life dedicated to justice and to eliminating its obvious flaws?

    As for judges speaking out (in the context of a court proceeding) I read with interest the recent Second Circuit opinion authored by Judge Gerard Lynch declaring a data collection scheme of the government illegal.  The court observed:

    The very notion of an individual’s expectation of privacy may seem quaint in a world in which technology makes it possible for individuals and businesses (to say nothing of the government) to observe acts of individuals once regarded as protected from public view.  On the other hand, rules that permit the government to obtain records and other information that consumers have shared with businesses without a warrant seem much more threatening as the extent of such information grows.
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    [T]he bulk collection of data as to essentially the entire population of the United States, something inconceivable before the advent of high-speed computers, permits the development of a government database with a potential for invasions of privacy unimaginable in the past.
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    Because we conclude that the challenged program was not authorized by the statute on which the government bases its claim of legal authority, we need not and do not reach these weighty constitutional issues.  The seriousness of the constitutional concerns, however, has some bearing on what we hold today, and on the consequences of that holding.

    Although the court deferred to prospective congressional action to remedy the constitutional issues, it did address those issues in detail.  Should the Congress not “do the right thing” in extending or replacing the law, the court still will have jurisdiction of appeals from the district court to which it remanded the action.  It appears that the court is prepared to do justice on the constitutional issues if the legislative process does not allay its concerns.  The court was, perhaps, bold in the cause of justice in going beyond what was required to determine the action.  

    As lawyers, we do not subject ourselves to fatal consequences for speaking out for justice, yet Abraham Lincoln, lawyer and President, did.  Lincoln gave his last speech in 1865 – 150 years ago – two weeks after Appomattox and addressed black suffrage:

    We all agree that the seceded States, so called, are out of their proper relation with the Union; and that the sole object of the government, civil and military, in regard to those States is to again get them into that proper practical relation.
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    The amount of constituency, so to speak, on which the new Louisiana government rests; would be more satisfactory to all, if it contained fifty, thirty or even twenty thousand, instead of only about twelve thousand, as it does.  It is unsatisfactory to some that the elective franchise is not given to the colored man.  I would myself prefer that it were now conferred on the very intelligent, and on those who serve our cause as soldiers.

    In the audience John Wilkes Booth observed to a fellow conspirator “that means n[***] citizenship … that is the last speech he will ever make.”  Three days later Lincoln was dead by Booth’s hand.

A Fair and Just System

    Speaking out is, of course, not the only way to “make a difference.”  In our area of the country, we have the example of powerful lawyers who did not merely write a check, serve on a board, or do some pro bono, but who stepped forward proactively to attempt insure that all of us practice law in as fair and just system as possible.  As an associate, Orison Marden organized other associates in large firms all over the city to annually collect funds for the Legal Aid Society.  The late Schulte Roth & Zabel partner, Brooks Burdette, was determined to be the best board member ever for the Lawyers’ Committee for Civil Rights under Law.  Justice entrepreneur Michael Posner founded the NGO now known as Human Rights First and has participated in at least dozens of human rights missions abroad.  Judge Denny Chin and his wife, Cadwalader partner Kathy Chin, spend their vacations developing scripts for which they arrange public presentations depicting the effects of the prejudices in American society against Asian immigrant populations.  In 1992, Barry Scheck and Peter Neufeld founded the Innocence Project committed to exonerating innocent people through the use of DNA testing.  Its efforts have resulted in the freeing of over 300 innocent people with new Innocence Project chapters addressing other justice issues as well.  

    As lawyers, we are “citizen soldiers” for justice (as my friend Chip Grey once remarked) and by our advocacy training we are able to give leadership to correcting injustice.  There may not be a duty for lawyers to work towards resolution of the great issues of the day, as Judge Morris Lasker suggested in accepting the Council’s Learned Hand Award in 1989, but we will be a more just nation as more of us do.