From the 'Lectric Law Library's Stacks
What at first was plunder assumed the softer name of revenue. ~Thomas Paine
I am pleased and honored to have the opportunity to speak to the Beverly Hills Bar Association, and especially at its luncheon honoring the California Supreme Court. I still remember the fear and trepidation I felt when, at the age of 40, I appeared before that august body, even though I had argued a case before the United States Supreme Court ten years earlier. My argument before the California Supreme Court was one of those exciting and memorable experiences most lawyers merely dream of. And imagine how thrilled I was when after the proceedings were over I received a letter from a Justice. I opened the envelope eagerly. Enclosed was a note telling me that I was one of the few lawyers who had ever appeared before the Court who knew the difference between criterion and criteria. Thank you once again for your vote of confidence in me, Justice Mosk.
How often speakers tell their audiences that this is a critical time. Sometimes, it actually is. Occasionally, the issue is sharp and clear, and the stakes are high. For example, few would doubt that last week's Israeli election met that standard. But most important changes in a democratic society take place in a less dramatic manner the gradual erosion of individual rights, and particularly the Fourth Amendment, that has come about as a result of our fear of crime, the increasingly adverse impact of money and the media on the American electoral process, the growing divisions between various racial and ethnic groups, fed by the callous and selfish actions of some of our most respected political leaders, and last but not least the ominous rise of religious fundamentalism at home and throughout the world. These were or are all gradual developments and it is often difficult to know just how or when to try to deal with them. By the time we realize the need to act the changes are often firmly entrenched, or even worse, intractable. In short most changes seem to overtake us before we are fully aware of the strength of the force behind them. It is sometimes difficult to see the starting point, let alone know how to bring an end to a rapidly escalating but totally debilitating decline.
Today, there is a serious erosion in the way American views two of its most respected and essential institutions -- the bench and the bar. It is these two institutions that differentiate our country from all others. Together, they enforce a Constitution that provides freedom, liberty, and equality for all, that protects democracy as we know it and ensures that we as a nation will grow in dignity and fairness at the same time we grow in population and complexity. Without lawyers dedicated to promoting our emerging liberties, without lawyers willing to fight for the rights of the poor and the disadvantaged, without judges with courage, wisdom and compassion, we would be locked into a rigid and inflexible mode of legal analysis. Our constitutional development would be stifled by a myopic view of the law, a view that disregards the foresight and imagination of our Founding Fathers, for in our Constitution those wise men established a set of broad general principles that incorporates their vision of the American spirit and that, with the addition of a few amendments, like the Fourteenth, has served as well for numerous generations.
But whatever one's view of constitutional interpretation, of individual rights, of human dignity, of the proper role of the judiciary, we must all recognize that for a variety of reasons the courts and the legal profession are now at a low point in public esteem. Perhaps the good news is so is every other institution - the Presidency, the Congress, the media, the entertainment industry, even professional athletics. But, in the long run, that is little consolation. This nation will not survive as we know it without a strong and independent judiciary, without a dedicated and public spirited bar.
First let's look at some of the causes of our fall from grace and then let me suggest a few modest if potentially unpopular steps we might take to improve our current condition.
The causes are not discussed in any particular order of importance and they certainly do not comprise an exhaustive list.
First, there are the intemperate and inexcusable attacks on the independence of the judiciary by our political leaders. Here, the blame must be shared by both political parties, although not necessarily to equal degrees. The Judge Baer episode is only the most dramatic of these incidents. Judge Baer, the former Chief Deputy Prosecutor in the United States Attorney's office in the Southern District of New York, made a fairly routine ruling in a search and seizure case. These are sometimes hard calls. Without reviewing the record, none of us is in a position to know whether Judge Baer was right when he initially decided to exclude the evidence that was seized. Similarly, without reviewing the record of the second hearing, none of us is in a position to know whether he was right the second time, when he reached a different result on a different record. What we do know, however, is that the public believes, almost unanimously, that Judge Baer ordered a second hearing and changed his mind as a result of political pressure. Not only did the newspapers announce that "fact," but Senator Hatch, the Chairman of the Judiciary Committee of the United States Senate, proudly proclaimed that Judge Baer reversed his ruling as the direct result of the actions taken by "the Republican leaders of the House and Senate." This, after the Republican candidate for President called for Judge Baer's impeachment and our Democratic President, a graduate (along with his wife) of Yale Law School, publicly hinted that he would ask for the judge's resignation if he didn't change his ruling. Not one political figure spoke out for the independence of the judiciary or even appeared to give serious thought to whether the ruling might be correct. Even Democratic Senator Daniel Patrick Moynihan, who was responsible for Judge Baer's appointment, publicly abandoned his protg. And now, we're off to the races. One Presidential candidate makes speeches identifying a number of "liberal" judges who made decisions he calls pro-criminal and the other replies, "Nah-Nah-" I can name judges appointed by President Reagan and Bush who made decisions that are just as pro-criminal - the latter from a President who doesn't have the courage to nominate anyone, no matter how qualified, if someone might even think him to be liberal. In any event, we can now look forward to a Presidential campaign that will denigrate the judiciary further and weaken both its public standing and its reputation. Out of decency, I won't even mention the Ninth Circuit's current ugly experience with high-stakes senatorial manipulation of the confirmation process in order to affect the future conduct of a sitting judge, nor the highly politicized campaign to split the circuit primarily in hopes of establishing a gerrymandered court that will free certain industries of their obligation to comply with environmental laws.
Second, we ourselves seem to value our role less. I hope that the present justices, most of whom I have not been privileged to meet before, will have long and distinguished careers on the California Supreme Court. I am certain that they believe, and rightly so, that they have reached the pinnacle of their profession. I believe that they hold an office that is one of the most important in our nation -- judicial or otherwise. The entire country used to take its lead from the California Supreme Court. But in recent years we have seen Supreme Court justices who seem to be barely passing through the system on their way to better paying jobs, either with private law firms or as rent a judges or arbitrators. It used to be that high paid lawyers or successful arbitrators would give their eye teeth to be Supreme Court justices, not vice-versa. We must make it that way once again -- and I suspect that the special guests you honor here today will do just that.
Third, we are setting up a private system of justice for the wealthy and for corporate interests. Never before in this country have we had two judicial systems - one free, one for pay. Yet, I read the Los Angeles Daily Journal regularly and see news stories, announcements and jazzy full-age advertisements telling lawyers that they can hire the famous or esteemed Judge or Justice X or Y to decide their case if they're just willing to pay the price. When some of the companies tout the extensive list of former judges they have under contract, it almost reminds one of the rivalry between Alka-Seltzer and PeptoBismol but with the addition of glamorous poster boys. I doubt that this is a healthy system or that it engenders respect for the public courts whose facilities most Californians are required to use.
Fourth, the cost of running for judicial office is out of control. That it should cost a judge nearly $50,000 simply to have his biography enclosed with the ballot pamphlet is a disgrace. That judges must raise huge amounts of money if challenged, or that lawyers seeking to run for an open judicial post must spend in excess of $120,000 in order to run is outrageous. And who is interested in contributing to judicial elections, anyway - you guessed it, lawyers.
Fifth, speaking of lawyers, they are suffering problems of their own, some of which are similar to ours and some of which are different. The American Bar Association, a venerable institution composed largely of establishment lawyers has become the target of the same politicians who have been attacking the judiciary, except that this time the President isn't involved. Thus far, at least, he doesn't seem to see any political advantage to joining the attack. Little could anyone have imagined only a few years ago that the conservative old-line ABA would become a whipping boy for the right. And the California Bar, from what I read, is having its own troubles - this time from within as well as without. When trouble starts, it indeed seems to come from all directions.
Next there are the vitriolic attacks on trial lawyers. These attacks emanate from corporate interests, public relations groups, and politicians who don't dare to go after their real targets - the people who are the victims of willful or negligent conduct, fraud, or worse - the people who suffer crippling injuries or even death. In order to try to limit the victims' recoveries, the potential defendants go after their lawyers, defame them, complain about attorneys' fees and try to make it as unprofitable as possible to represent people who can't afford to pay huge retainers. Let me say that the trial lawyers are quite capable of taking care of themselves - of fighting back - and they do, with a vengeance - but it is the bar as a whole that is diminished in the public eye; it is the entire profession that receives the notoriety and becomes the object of public humiliation and contempt.
And how could anyone talk about the loss of respect for the justice system and for lawyers without mentioning the trial of the century. I don't want to discuss here the way the trial was conducted by the trial judge. Nor do I wish to discuss the jury's performance, or its astonishing verdict. Rather, I want to note that the trial has had a profound and most unfortunate effect on American society in so many ways - from the deep racial divisiveness that it exposed and perpetuated, and that remains the trial's most visible heritage, to the unfortunate effort to try to change the rules of the justice system so as to limit the rights of criminal defendants, to campaign to ban televised trials and thus deprive the American public of essential information regarding what transpires in our courts. Fortunately, the latter effort appears not to be as successful as once seemed likely, although I must admit that the state courts are far more enlightened than the federal courts in this area, as in a fair number of others.
There is, however, one aspect of the lawyers' performance in the trial on which I will comment briefly. The rush to sell books and movie scripts, even prior to the end of the trial, was a most unseemly occurrence. Perhaps the most mind- boggling aspect, however, was how two of the lawyers who lost a case that most people had thought could not possibly be lost, and who did so through the use of some of the most bizarre trial tactics employed in the history of American jurisprudence, not only obtained book and motion picture deals that will bring them more money than most lawyers make over their entire careers, but that they now also command huge fees as lecturers. That, on the basis of this trial, they are held out as expert practitioners, role models, and examples of dedicated public servants simply defies the imagination. Once again, of course, the scorn that so many Americans feel for some of the lawyers involved - and I hasten to add that in some respects that scorn is totally undeserved - is not only directed at the particular lawyers but at the entire legal profession.
Before offering a few thoughts on what we can do I must mention two other very significant recent developments.
First is the defunding of legal services and capital appellate projects, as well as the effort to limit both the amounts paid to lawyers willing to undertake death penalty work, and the amounts available for investigative services. The assault with which I am most familiar and, to which I refer today, comes from the federal side, although I am aware that there are states that pay trial lawyers in capital cases an amount that would hardly be sufficient to compensate them for the cost of defending a speeding ticket. In this new era, the poor, and in many instances the middle class, will receive far less adequate legal services than they have enjoyed in the past, and there will be numerous instances in which their efforts to remedy serious injustices or enjoin arbitrary and unlawful governmental actions will fail for want of available legal services. A sad retreat for American justice.
Second, the changes in habeas corpus law which were a key part of President Clinton's Anti-terrorist Law, though wholly unrelated to that statute's professed purpose, are both sweeping and revolutionary. The principal objective of the drafters of the habeas sections was to prevent federal courts from overturning unconstitutional state convictions, and to a surprising extent, they may have been successful. However, this is not the place or time to discuss the specifics of the new anti-habeas provisions that President Clinton has given us or their effect on our historic concept of due process of law, anymore than this is the place to discuss the draconian asylum and deportation provisions that were contained in that same so-called anti-terrorist bill after being enacted with almost no public awareness or discussion. In fact the asylum provisions were so bad that when informed of their content Senator Hatch immediately introduced partially corrective legislation that then passed the Senate by an overwhelming vote of 51 to 49. The fate of those comparatively innocuous ameliorative amendments in the House is uncertain at best.
So where does all this leave us?
First, state courts will no longer have the same degree of comfort in knowing that federal courts are there to save them when they fail to protect the constitutional rights of unpopular criminal defendants. I say this without any irony. I have spoken with judges who must stand for election and have heard them say that they cannot afford to reverse capital convictions in cases that engender heated community passions. I hasten to add that I am not referring to California judges, though I do recall both Justice Kaus and Justice Grodin speaking publicly of how difficult it is for judges to separate a concern over reelection from one's view of a controversial, complex and highly inflammatory legal issue. We have all heard tales of the gallant and courageous Southern Circuit Court judges appointed by President Eisenhower in the 1950's. Those judges, including J. Skelly Wright, John Minor Wisdom, and Elbert Tuttle among others fought a lonely and often dangerous struggle against racial segregation, but they could not have done so without the security of life tenure. Their jobs would not have lasted one minute had they had to stand for re-election or been subject to recall. In fact, we in Los Angeles lost two wonderful state court judges, Alfred Gittelson and Paul Egly, because they tried to apply the law fairly and equally in a school desegregation case. And only recently slates were formed to try to ensure that only judges who scored high enough on a litmus law and order test would be returned to office. While that effort failed, history tells us that it could be repeated and perhaps with greater success.
One of the principal purposes of the Bill of Rights is to protect unpopular minorities against the will of emotion-driven majorities. Another is to ensure that criminal defendants, even those accused of the most heinous crimes, enjoy the full rights to which all persons brought before the bar of justice are entitled. It is the fate of judges who enforce the Federal Constitution to take positions that may be extremely unpopular with the electorate. That is the reason federal judges are afforded life tenure.
If federal courts are now to be deprived of the opportunity to make a full and independent review in order to determine whether the states have afforded their citizens the protections guaranteed by the United States Constitution, then the time may well have come to extend the protection of life tenure to state court judges. Obviously any such change would take some time because it is a matter for each state to decide for itself and, would, in most cases require amending the state Constitution. Numerous issues would need to be resolved, including adopting a fair and effective confirmation process, and in California, at least, that would mean developing different processes for different levels of the judiciary. I would hope that California would lead the way by giving serious consideration to life tenure at the earliest possible time. Surely, one side benefit that would inure to everyones advantage is that judges would no longer have to solicit campaign contributions from attorneys or their law firms.
I would also hope that California would reconsider its system of economic inducements that encourages judges to retire at the peak of their working life, take their pensions, and start a second career in private judging or private practice. California might examine the federal system in which judges are encouraged to continue to work past normal retirement age, on a reduced schedule if they wish, and thus help resolve the problems of overcrowded calendars and judicial logjams by remaining in public service. Under the present California system, too many valuable judicial resources are lost entirely or are made available only to the few who can afford them. By contrast, it is an extremely rare occurrence for a federal judge to leave the bench after the age of 60 in order to commence some other business pursuit in the field of law.
Obviously the federal system is far from perfect. But just as we can learn from state experimentation, so the states can learn from the wisdom of our founding fathers. The drafters of the Constitution concluded that the independence of the judiciary is critical to a democratic society and that life tenure is critical to an independent judiciary. Perhaps I view the judicial world from a biased standpoint, but I always have agreed with those precepts, even when I was a mere student at that outstanding institution that produced both William Jefferson Clinton and Clarence Thomas. I believe that however high the quality of state judges may now be, and in some states it is very high indeed, that quality would over the long run reach an even higher level under a system that offered judicial officers and potential judicial candidates life tenure - a system that would permanently free them of concerns over whether unpopular decisions might mean the end of their careers.
As to the lot of lawyers, concededly the practice is more difficult and in many ways less rewarding than it used to be. Perhaps the decline in public respect is inevitable as law becomes more of a business and less of a profession. The depersonalization of law, like the depersonalization of medicine reduces the human equation and breeds lack of trust and respect. Managed health care and multinational law firms leave doctors and lawyers, patients and clients, frustrated and suspicious. The family doctor and the family lawyer are a dying breed, at least in metropolitan areas. Specialization has its vices as well as its virtues. Whatever the reasons, the statement "he's a lawyer (or now, she's a lawyer) no longer evokes a feeling of awe or respect. Instead, it's more like uttering a dirty phrase.
I see no way to remedy this unfortunate decline in our profession's reputation other than to try to regain the public trust by our individual deeds and actions. Pro bono programs and extensive community involvement are essential, and they are fortunately becoming increasingly common in many firms. There simply is no substitute for human contact, for the reaching out by individual lawyers to individual clients who are in need of advice or assistance - and particularly to those clients who cannot afford to pay the cost of services. Lawyers must think of themselves as professionals and not as businessmen - as persons with a special mission and a special trust. They must recognize their obligation to the community and they must comport themselves as public citizens throughout their careers.
No bar organization or state disciplinary group can instill these concepts in the members of our profession. Nor can any external force eradicate the cynicism and disillusionment that marks the modern practitioner. Equally important, a return to our old idealism cannot occur solely within a single profession. But if it starts with us, perhaps others will follow. Perhaps, someday, individuals will once again be able to run for elective office without having to subject themselves to public pillorying by their opponents and the media, and perhaps someday their private lives and sexual proclivities will no longer be fair game for microscopic examinations by a prurient public. We would have lost a lot of good presidents and a lot of good Supreme Court justices had we always maintained our current puritanical barriers.
As lawyers we can try to lead a return to decency - every one of us. And we can influence new law school graduates, graduates like my daughter who will be receiving her degree two years from now, to view the profession with respect, if not with awe. We can give young lawyers a message that is far different from the one we have recently been offering them upon their emergence into the "real world". We can tell them that it's not just the billable hours that matter, it's not just their ability to attract business - that the height of the profession is not being a rainmaker. We can tell them that it's the quality of their performance as a professional, as a member of a group charged with a unique trust and responsibility that counts at least as heavily - that it , the amount that they give back to their communities, their nation, and their profession. This is probably all quite outdated and unrealistic, and it may even run contrary to some of the concepts of the free market economy we tend to worship so mightily these days. But I don't know what else we can do, and unless someone has a better idea, it may be worthwhile for each of us to give it a try. Thank you all very much for your patience and for inviting me here today.
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