Law Day & Law Month

The Federal Bar Council gathered to celebrate Law Day last week, beginning what is officially Law Month.  It has done so annually for 63 years, since 1962.

And there has never been a more important time for us to do so.

The Law Day Dinner is often our most serious event.  The Learned Hand Medal, for Excellence in Federal Jurisprudence, awarded annually at the Law Day Dinner, is our most prestigious award.  The list of recipients is a pantheon of our legal system.  And this year’s honoree, Judge Richard Sullivan, only enhances the Medal’s reputational luster.

One indicia of Judge Sullivan’s excellence is how the Supreme Court views him.  Over decades there have been judges who come to be known as feeder judges – judges whose clerks the Justices tend to hire.  In this Circuit, Judge Henry Friendly was one.  And the same was later true of then-Circuit Judges Ruth Bader Ginsburg, Stephen G. Breyer, John G. Roberts, Jr., and Brett M. Kavanaugh, to name a few.

It is rare that a District Judge becomes known as a feeder judge, particularly one who did not himself clerk at the Supreme Court.  Judge Sullivan sent more clerks to the Supreme Court than any such District Judge in recent memory.  That is no surprise, because his opinions reflect an analytical rigor, economy, precision and practical clarity that are truly Learned Hand-like.

Most in our membership are familiar with Judge Hand’s “Spirit of Liberty” speech – especially with his call for introspection, and for action: his exhortation that “[t]he spirit of liberty is the spirit that is not too sure it is right . . . the spirit which seeks to understand the minds of other[s] . . . [and] weighs their interests alongside [his or her] own without bias.”

There may be nothing more difficult than to be “not too sure that one is right,” especially when the topic is one where it seems so clear that those who hold a different view are so . . . obviously . . . wrong.

What a timely challenge for all of us.

“I AM AN AMERICAN DAY”

Less well known about Judge Hand’s speech is that it was delivered at the height of World War II – in May 1944, barely three weeks before the D-Day invasion at Normandy – at a time when anti-foreigner sentiment may have been at its peak in our nation.  And that he delivered his remarks at something called “I Am an American Day,” a national holiday created by Congress.  Historians report that more than 1 million people had gathered in Central Park to celebrate I Am an American Day, and among them were 150,000 people who were there to be naturalized by Judge Hand as new citizens.  150,000 immigrants.

In this nation, we are all immigrants.  So I find it particularly apt that our Law Day Dinner chair, Anirudh Bansal, and the judge who read the original Law Day Proclamation at this year’s Dinner, Judge Sanket J. Bulsara, are two first-generation Americans.

Unbeknownst to me when they were selected for these roles, Anirudh and Judge Bulsara actually had come to know each other as young boys, because their families were among a wave of immigrants from India who – as has been the case for generations of immigrants – navigated this new land with mutual support.  And just as with prior waves, from other countries, we look around a generation or two later, and what do we see: that Persons of Indian Origin are among the most influential contributors and transformative leaders in industry, academia, technology, science, medicine, the arts and law.

They represent the manifestation of the dream of coming to this country, living under the Rule of Law, as law-abiding citizens, and being able to say “I Am an American,” and to improve upon what that means.  That story is timeless.  And it was to support such people that Learned Hand came to Central Park that day.

That it was a judge who delivered such wisdom on “I Am an American Day” is not surprising.

EXTRAORDINARY JUDGES

Judges are often thrust into the most challenging and significant issues of the day.  And the trial and appellate courts of the Second Circuit have been blessed with an unmatched stream of extraordinary judges whose education and experiences have prepared them to address difficult issues with wisdom, fairness, modesty, and commitment to the law, without favor or fear, regardless of how pressured.  The kind of person who graduated from the most renowned college and law school, earning the highest honors, . . . who was selected to clerk on one of finest Circuit Court of Appeals and the United States Supreme Court, who chose public service by joining the Department of Justice, who rose to senior leadership roles in its premier office, who was plucked to serve in the Solicitor General’s Office, where he successfully argued multiple cases before the Supreme Court, who then in private practice rose to lead the New York City office of a major international law firm. The kind of person who, in an era of partisanship, the Senate nonetheless confirmed by a unanimous vote of 98-0.  Imagine all those attributes rolled into a single person, a single judge like the one whose resume you just read, a Judge named Paul Engelmayer.

Our bench has people like that up and down its roster – people of exemplary credentials, intellect, humanity, decency, modesty, integrity and fortitude.

In honoring Judge Richard Sullivan this year, we honor and thank all of our judges.

THE RULE OF LAW

Law Day is about the Rule of Law.  And that term means many things to many people.

I submit two lodestars.  First, recall that President Eisenhower proclaimed the first Law Day in response to the Soviet Union’s May Day, to highlight that we are a nation governed by laws, not men.  (I use the gender-restrictive term “men” intentionally, because the Politburo was not exactly gender-agnostic.)^[ii]

Second, look to our Nation’s Founding. The fact that a judge could be removed by the king was among the first grievances listed in the Declaration of Independence.  And that is because, as Alexander Hamilton wrote in Federalist Paper No. 78, “there is no liberty, if the power of judging [is] not separated from the legislative and executive powers.”

As Chief Justice Roberts noted in his 2024 Report on the Courts: our Constitution’s “creation of independent . . . courts,” may be the Nation’s “most significant contribution . . . to the art of government.”^[iii]  Before our Founding, “no . . . country had found a way to ensure that the people and the government” must follow the law.^[iv]

With courts having such power, the Chief Justice observed, it is “no surprise that judicial rulings can provoke strong . . . reactions.”

That is especially so when government appears dysfunctional and society is in tumult. And these are tumultuous times: Over the last 18 months one candidate for President of the United States came within millimeters of being assassinated.  That same candidate and the son of the other candidate were convicted of felony crimes.  The latter was then pardoned by his father.  All three thereafter sincerely impugned the justice system.

It is crucial to recognize that, as the Chief Justice observed, “informed criticisms” . . . even “from legislators” and other public officials . . . are not threats to judicial independence.”^[v] To the contrary, as Chief Justice William Howard Taft, the only person to have served both as President and Chief Justice, . . . put it: “Nothing tends more to render judges careful in their decisions and . . . solicitous to do exact justice than the consciousness that [their] every act . . . is to be subject to . . . intelligent scrutiny. . . .” ^[vi]

But, as Chief Justice Roberts also observed, not all criticism is “informed.”^[vii]  And not all scrutiny is “intelligent.”

No respectable lawyer, or person who has any real understanding of our Constitution, could honestly think that an appropriate response to disagreement with a judge’s decision is to call for the judge’s impeachment.  Appeals exist for that purpose.^[viii]

As Chief Justice Roberts has highlighted, “Public officials . . . regrettably have” been among the loudest voices “suggesting political bias in . . . adverse rulings without a credible basis. . . .”^[ix]

And – truth be told – no single person, President or political party has had a monopoly on such things.  If we are to be (and wish to be respected as) honest brokers, that must be acknowledged.

Chief Justice Roberts urged that “public officials . . . be mindful that intemperance in their statements when it comes to judges may prompt dangerous reactions by others.”^[x]

We can say it more plainly: Stop attacking judges.  Period.

“There is . . . no place for violence or threats directed at judges for doing their job.”^[xi]  That is not a political statement.  It’s not novel.  It’s not my opinion.  It’s not the Federal Bar Council’s opinion.  It’s the law.

Section 115 of the federal criminal code makes it a crime to harm a judge or to threaten a judge with harm in order to intimidate or interfere with a judge’s decision-making, or in retaliation for a decision.  Threats are punishable with up to six years imprisonment, and threats that culminate in harm are punishable with up to twenty years imprisonment and even the death penalty.

Yet, “the volume of hostile threats and communications directed at judges has more than tripled over the past decade.”^[xii]

So what are we to do?  Many say we must issue statements to show where we stand.  And for 63 years, every year, the Federal Bar Council has made clear statements in the form and content of its Law Day gathering.

The Chief Justice says: “The best antidote for combating” this “epidemic,” is “renewed emphasis on civic[s] education . . . about the distinct role of courts in American government . . . , explaining what they do and don’t do.”^[xiii]

THE FEDERAL BAR FOUNDATION

That is why I am enormously grateful to those lawyers and firms who generously support the Federal Bar Foundation, under the leadership of Seth Levine.

Through your generous support, each Summer, at courthouses throughout the Second Circuit, teams of judges and lawyers educate students about civics, the cornerstone for the Rule of Law, through the Justice For All: Courts & Community Initiative and our Judge Robert Katzmann Civics Education Grant.

We likewise – all of us together, through the Federal Bar Foundation – fund a Summer Teacher’s Institute to do the same for teachers.

During the school year, we provide support for Law Week activities, and through the Justice Resource Center, we help serve thousands of New York City students annually with court visits.

And the Federal Bar Council has long been at the forefront of judicial security efforts.

We have a deep awareness of the assassination of our former colleague Judge Richard Daronco at his home.  And that our former Chief Judge Charlie Brieant was targeted in a poisoning attack that left his wife unconscious and hospitalized for four days.  And in July 2020, our New Jersey neighbor, Judge Esther Salas, suffered a sickening tragedy in which her son was murdered and her husband grievously injured by a shooter at their family home.

At the beginning of my career, I clerked for a judge, Kevin Duffy, who had 24/7/365 Marshal protection for nearly two decades, everywhere he went, even the restroom, due to credible threats on his life.  And I was recruited to my firm by a man named Bob Merhige, who – in the 1970s – Time magazine profiled in an article entitled “A Judge Under Siege,” because of decisions he had entered.  He picked up his home telephone to hear a man snarl “You’ll be a dead man by midnight.”  Other callers just made the sound of a ticking timebomb.  Out to dinner with his family, a woman approached, called him a derogatory term and spit on him.  His dog was executed and a guest cottage on his property was burned down.  A Marshal accompanied his wife to the grocery and his 11-year-old son to school.  He considered relocating his family out of the country – not out to the country, out of the country.  His wife said: “We live with fear. But our country is changing, and this will pass.”

JUDICIAL SECURITY

Many of our judges have stories of similar threats of violence and efforts at intimidation.

Some scholars have written that every generation or so, there are calls to pack or reform the courts, there is uproar about judicial decisions, and there is even violence.  And we are certainly in one such period.

These are some of the reasons former Federal Bar Council President Jon Moses and I prioritized working with Judge Sullivan on judicial security more than three years ago.  With Judge Sullivan as the Second Circuit’s representative on the Judicial Security Committee of the Judicial Conference, and with our friend Judge Roslynn Mauskopf (who then led the Administrative Office of the Courts and who received our Emory Buckner Award two years ago), we helped drive passage of the Daniel Anderl Judicial Security and Privacy Act in late 2022.

And we will continue to vigorously support the judiciary on these issues.

That experience of seeing Judge Sullivan’s work on judicial security, and understanding its relationship to his prior work in countries where judicial insecurity had devastating consequences for every aspect of their societies, is one reason we are so honored to recognize Judge Sullivan with the Learned Hand Medal this year.

Another reason is memorialized in my notes from an early morning in January 2021, at the depths of the COVID-19 pandemic, when Judge Sullivan took time to share his perspectives with our members (via a then-revolutionary platform called Zoom).  He spoke about the “humanity” of the courts.

During his Second Circuit confirmation he explained:

The humanity . . . is palpable – you see litigants, you see lawyers, you see families, you see defendants in criminal cases, you see people and human beings who are affected by the decisions that judges make.

It is vitally important that judges at all levels remember the impact . . . that their decisions can have on people, and not always the people who are the named parties, but other people as well.

Judge Sullivan’s work reflects a description of the Rule of Law that I heard from a state court judge in Rhode Island a few years ago during an appearance: That, in the courts, the public cares far less about who wins or loses, and far more about seeing that the right thing happen for the right reasons and that the parties were heard.  To borrow from Learned Hand, that a judge took the time “to understand the minds of others, and to weigh their interests . . . without bias.”

It is extraordinarily difficult, and thus extraordinarily rare, for a person to be both great and good, as Kipling described in his poem: to walk with kings, yet not lose the common touch.

That rare combination is seen often among those who are viewed as our most outstanding judges.

Quite simply, there is no judge, no legal mind, no American, no person, better for us to honor at this moment in time than Judge Richard J. Sullivan.  And the Federal Bar Council is honored to recognize Judge Sullivan with the Learned Hand Medal for Excellence in Federal Jurisprudence.