A Look Back

Remarks of the Honorable Raymond J. Lohier, Jr.
in Response to the Award of the Learned Hand Medal
for “Excellence in Federal Jurisprudence”

Federal Bar Council Annual Law Day Dinner
Cipriani Wall Street
New York City

Thursday, May 2, 2024

Thank you, Sharon and Hallie, for your very kind words and terrific introduction.  And thank you also to the remarkable Aja Stephens for her help this evening. 

I once told a colleague who described how humbled and surprised he was to be given a very prestigious award, “don’t worry, you’ll get over it.”  But this really is a hugely humbling and surprising honor for me and I’m not sure I’ll ever get over it.  When I consider the list of past recipients of this award, I’m baffled to think that my name might be on it.  And I know there are probably some people in the audience who are just as baffled as I am. 

It’s a special privilege for me to have had some connection to so many of those past recipients, including the four most senior colleagues with whom I’ve have the great honor of sitting on our court: Bill Feinberg, Jon Newman, Amalya Kearse, and Ralph Winter, who combined represent over 150 years of brilliant service to the Second Circuit.  As a young law clerk in the early 1990s, I met the 1964 recipient, Chief Judge Lumbard.  The 1989 recipient, Morris Lasker, presided over my first trial when I was in my 20s and, let’s just say, took some pity on me.  And I see listed other friends and current colleagues who’ve more recently and much more deservedly received this award, including as you’ve heard, last year’s recipient, our Circuit Justice Sonia Sotomayor, whose lucky seat number 13 on our bench I was honored to inherit. 

Of course, it’s especially meaningful to me that this award is bestowed by the Federal Bar Council.  For those of us involved in the administration of justice, the Council plays a crucial role in support of the federal judiciary through its constant public engagement.  It’s also great fun.  I’ve had the pleasure of participating in Federal Bar Council conferences and seminars both here and abroad.  My family and I enjoyed memorable trips with council members in Hawaii and in Costa Rica, where, I might add, some members gasped as they watched me ziplining upside down and backward on a stupid dare with my two young sons.  I have no idea what I was thinking.

It’s also particularly gratifying to me to receive this award on the 100th Anniversary of Learned Hand’s elevation to the Second Circuit from the Southern District Court of New York, although I appreciate that some District Judges here will want to describe it as the anniversary of Hand’s demotion, not elevation, to the Circuit. 

So let me just say a few words about my own personal ties to Learned Hand himself, as improbable as that might sound. 

As you’ve heard, I’ve been variously described as a Haitian-Canadian-American or a Canadian-Haitian-American.  My mother grew up in a town in the north of Haiti where the first large scale slave rebellion in the western hemisphere began, and the first successful slave rebellion in history prevailed.  Before the Haitian Revolution, that same town supplied black soldiers to fight for American Independence in the Revolutionary War during the Siege of Savannah, Georgia.  My father comes from the south of Haiti.  60 years ago he witnessed the end of the last remnants of Haitian democracy, found himself on the wrong side of an autocrat, and fled.  My parents met in Montreal, where I was born.  Our family then moved to the United States when I was six years old and settled in Philadelphia.  (For the New Yorkers in the room, that is a city in Pennsylvania.)

Now, contrast my family with that of Learned Hand, who graced the federal bench for 52 years, from 1909 until 1961.  Hand was from an old, very prominent upstate New York family steeped in the legal profession.  His father served briefly on the New York Court of Appeals, and his cousin Augustus served with him on the Second Circuit.

So what connection could there possibly be between the scion of a great American family and the immigrant son of an exile?  Our first connection is through my Professor and mentor at NYU Law School, the great legal philosopher Ronald Dworkin, who was Hand’s law clerk in 1957, and whom Hand once called “the Law Clerk to beat all Law clerks.”  It was Ronald Dworkin, not any casebook, who first made Hand come alive for me.  He once told me a snippet of a story about Hand that he eventually retold more fully in an article for the New York Review of Books.  Here’s what he said:

After Law school, I clerked for a year for Learned Hand.  One evening I had to drop off a memo at his house, and I asked a young woman whom I had just met, and who was having dinner with me, to come along because it would take only a second.  But when Hand answered the door, he invited us in, made dry martinis, and talked to my friend for almost two hours . . . about art history, . . . the state of Harvard College, New York politics, the Supreme Court, and much more.  When we left, walking down the brownstone steps, she asked, “if I see more of you, do I get to see more of him too?”

My second connection to Judge Hand is through Judge Robert P. Patterson Jr. of the Southern District District of New York, for whom I clerked in the early 1990s.  Judge Patterson’s father himself served briefly on the second circuit and became extremely close to Hand – so close, in fact, that Hand would routinely vacation with the Patterson family rather than with his own family.  That’s another story; read the biography.  In any event, it was on those vacations that Learned Hand would take young Patterson Jr. to go fishing with him, singing tunes along the way and using, as Judge Patterson would retell it, very “colorful language.”  Those of us fortunate enough to clerk for Judge Patterson remember working under the watchful gaze of Hand’s photograph hanging in chambers.  And in candor, 30 years later, I still sometimes feel Judge Hand gazing over my shoulder as I do my work.  So Happy 100th anniversary, Judge Hand.

There’s another important anniversary this year that I feel compelled to mention.  70 years ago this month, the Supreme Court decided Brown v Board of Education.  We sometimes forget that the road to Brown was paved here in New York.  Many of the remarkable lawyers who drove that case did it from here in the Second Circuit.  They practiced, taught, and eventually became judges here.  Future Judges like Thurgood Marshall, Constance Baker Motley, Robert Carter, Jack Weinstein, professors like Charles Black, Louis Pollak, and Jack Greenberg, even a future cabinet secretary, William T. Coleman, and many, many others. 

When the decision came down in May 1954, despite genuine underlying differences among members of the Court, it took up a mere 9 pages and was unanimous.  Historians tell us that each Justice understood that in such a big case where public opinion varied widely, speaking with one voice mattered. 

It’s now black letter law that Brown announced that racial segregation in public schools is unconstitutional.  But it actually did much, much more than that.  It promised racial and ethnic equality as a fundamental constitutional requirement across the board.  What does that mean?  It means that basic issues of racial and ethnic equality, and now other forms of equality, must be removed from ordinary politics and decided based on core values rather than parties, principles rather than polls.

If you believe, as I do, that a principal purpose of our constitution is to create an enduring democracy that can and must always be improved to make a more perfect union, then Brown is a high-water mark in service to that end.  If you also believe, as I do, that we can never really understand our Nation without also understanding the Constitution, how it’s succeeded, how it’s failed, and how it can, over time, be improved, then Brown again is an expression of our highest ideals.  In my view, The United States started to become a true democracy only when Brown was decided and enshrined the principle that every citizen counts as an equal regardless of race, ethnicity, religion, national origin, or gender. 

I say that we only “started” to be a true democracy with Brown because it took a long time for it to be widely accepted.  According to a Gallup poll in December 1954, 6 months after Brown was issued, only 52 percent of Americans approved of the decision.  By 1984, 87 percent of people polled approved of Brown.  But that still meant that millions of Americans opposed it.  And, today, tragically, there are millions of people who in 1954 supported segregation, protested outside of segregated high schools, spat on black students, their white allies, and federal marshals, and who may never accept Brown’s promise of equality. 

But we know that the promise of equality has never been self-fulfilling.  The project we call democracy is never complete; it can always be “more perfect.”  In spite of significant public backing in recent years, genuine racial integration has been extremely hard to achieve.  A few years ago, for example, it was reported that New York was the most segregated state for black students in the country.  That said, it’s also true that the public discourse is improved in the sense that Brown’s core principle is at least publicly uncontested.  We might debate the means, but, for the most part, not the end itself.

Let me say that Brown also serves another purpose for me.  It not only gives me hope but provides us with a roadmap for preserving judicial independence and maintaining judicial courage in 2024 and beyond.  

Almost as soon as Brown was decided, it came under withering attack.  Public officials started trying to limit the power of the federal courts.  They condemned the lower court decisions that followed Brown, threatened to proceed with mass impeachments of the Justices and other federal judges, defied federal court orders, and introduced bills and formed study groups to abolish life tenure on the Supreme Court.  Sound familiar?

I’ve always admired the fact that federal courts back then refused to buckle and instead continued to do their jobs, asserted their independence, and reasserted the supremacy of federal court orders.  But they could never have accomplished that without the help of the federal bar.  Today, as much as ever, the federal courts need the federal bar; we need organizations like the Federal Bar Council to protect our independence when it’s under siege, to continue to be publicly engaged, and to be forever watchful.  We need support for our civics education programs in order to get the message out to all who’ll listen that the true and independent administration of justice really is the firmest pillar of good government. 

As many of you know, that work is already underway.  Thanks to so many lawyers, and judges, and administrators in this room, and thanks also to the leadership of Judge Bianco and Judge Marrero, and others, we have the Robert A. Katzmann Justice for All Civics Education program in our circuit.  Among the many things it does, the program teaches everyone, especially young people, that judicial independence is a non-negotiable feature of our democracy.

          So let me turn briefly to judicial courage.  In the years following Brown, federal judges and their families in the south were not only vilified but threatened with physical harm for issuing desegregation orders.  In the North, in my lifetime, local governments in Yonkers and New Rochelle openly defied desegregation orders issued by judges of the Southern District, while protests over Judge Garrity’s school desegregation orders in Boston turned violent.  But I draw hope and inspiration from these unsung judicial heroes who stayed true to Brown’s promise, who continued to issue decisions that they knew would be unpopular, and who never wavered from their duty or their oath. 

I find it tragic that we’ve recently seen a recurrence of “escalating violence and threatening rhetoric directed at judges who render unpopular decisions.”  The rhetoric comes from all sides, with a powerful propulsive element called social media added to the mix.  But that’s not deterred today’s judges, my colleagues, from doing their jobs, upholding their oath, and rendering their decisions fairly and in good faith, just as our predecessors did.  I also appreciate the fact that many people in this room and elsewhere have worked so hard to enhance our security precisely so that we can render our decisions without fear of personal punishment.  I have in mind judicial colleagues like our amazing Chief Circuit Judge and Chief District Judges, Judges Sullivan and Cronan, and our many state court colleagues, including Chief Judge Wilson of the New York Court of Appeals, the many outstanding executives and clerks of court within our circuit, as well as members of the Federal Bar Council.  Your work makes it a little easier each day for judges like me to speak and write with courage. 

Let me end by thanking a number of people to whom I owe a great debt of gratitude for their help and support and love in my personal and professional life.  In their own way, they’ve given me the independence and the courage to go on. 

First, let me thank my many, many friends, classmates, and former colleagues who are here and who’ve been with me every step of the way, stretching back to college and NYU Law School, to every job I’ve had and every organization I’ve been blessed to be a part of.  Judge Patterson’s chambers; Patterson Belknap, Cleary, Gottlieb, the Civil Rights Division, the U.S. Attorney for the Southern District of New York.  You’ve all made me a better lawyer and an even better person.

Let me also thank my court family.  First, thank you to my truly remarkable judicial colleagues.  You will never fully know how proud I am to be your colleague.  I’ve learned so, so much from each of you.  And to borrow a phrase from the late Judge Feinberg, you’re “a nice class of people.”  I also thank our wonderful court executives and staff, who keep everything running smoothly every single day.  I’m not sure how they do it, but they always do it well. 

And I extend a very special thanks to my superb judicial assistants who’ve kept me out of trouble over the years, Patrice Parris and Dominique Welch, as well as my extraordinary law clerks.  My law clerks are so good, and have raised the bar so high, that I’m afraid to say that not even Ray Lohier could be Ray Lohier’s law clerk right now. 

Most of all, I owe a great debt to my family.  First, to my parents, who made the American Dream a reality for me and for my brother.  I thank my mother for teaching me to be tolerant — to see people for who they are, not what they look like, how they sound, or where they come from.  She also told me that it’s better to be rich.  Obviously, I didn’t listen.  I also thank my late father, an exile, who could have taught me to be bitter but instead taught me to be empathetic. 

I thank my two sons, William and John, who are in school right now, for humbling me and keeping me in my place literally every single time I speak with them.  And, in this year of anniversaries, let me mention a final and very special one.  NYU law school did many things for me for which I’m forever grateful, but the best thing was to put me in the same class as my future wife.  Donna is, as one of our sons once put it, the “bomb.”  Without her, I wouldn’t be here.  In fact, I don’t doubt for a moment, and all who know us well will agree, that if she had married another man instead of me twenty-five years ago, he, not I, would be here speaking to you this evening and accepting this wonderful award.   

Thank you all very, very much for this award and for the many blessings you and this country have given me.