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As I begin my 49th year of this marvelous profession, I have never been more concerned about the future of the Rule of Law. And that’s a shame, because at this point, I thought I’d simply be playing the piano for a living again and watching reruns of “Cheers.” But my nagging concerns will not give me a rest.
No matter what your personal or political ideology is, you must concede this is a time of unprecedented upheaval in the United States. Shattering norms are daily events. Decorum, respect, and empathy are historical artifacts now in a society which all too often prioritizes bullies over statesmen, and demands allegiance over insight, and fiction over fact. By any standard, the Rule of Law is hanging by a thread. Most importantly, very smart people who have been entrusted as guardians (aka “guardrails”) of our check-and-balance institutions have widely failed us.
The Rule of Law is our solemn promise that we will heed the judges, obey the rules, and if the rules are not good enough, we will make better rules, but we will always follow rules. The founders envisioned the Judiciary to be the ultimate referees of disputes. Every game needs a truly fair referee. But the referees’ roles are meaningless if (a) they don’t do their job, or (b) no one listens to them. And that’s the frightening position we’re in now.
Admittedly, subverting the democratic process and institutions has time-tested techniques: Canon I. You never admit you’re wrong. Everyone else is. Canon II: There is no solution other than your solution, failing which your country will collapse. Canon III: Anyone who disagrees or refutes your rendition of facts should be attacked, rebuked and punished. And finally, Canon IV: People will believe ANYTHING if you repeat it enough.
The Rule of Law is the antithesis to deception. In an American trial, facts don’t exist by conjure and threat. Facts require evidence, not collaborators. So, despite the failure in court to prove insupportable claims used to erode our democratic processes, those same myths persist by repetition. But the Rule of Law consistently impedes their ends. Yet the weakening of critical democratic institutions continues to grow.
Undermining the Rule of Law occurs when the judges are attacked with disinformation, when civil liberties are suppressed, news sources blocked, and ideologues are moved into inside positions. Political scientists like Steven Levitsky and Daniel Ziblatt use the term “capturing the referees” with respect to appointing ideologues as Judges. Winning from inside. And if we lawyers don’t like this, we must, as a profession, raise our voices.
The legal profession has enormous influence on American society and commonwealth. The Preamble to our own Texas Rules of Conduct prescribes the many roles we have: to educate, to advise, to cultivate knowledge, in philanthropy, and to be a “special kind of citizen” with a mandate to improve society. We are commanded to make society thrive under our sacred pact to follow rules. Is there any wonder why people who regularly flaunt the Rule of Law would want to silence us? And that silencing is not only a danger. It is a reality. And that brings me to the point of this essay.
Our own State Bar of Texas has been cautioned not to countenance “political speech.” “Absolute neutrality” will be required, nay, demanded of our Bar. And that’s where the absurdity really comes in. An active and vibrant legal profession cannot be “neutral.” Every important element of the practice of law touches or concerns politics. After all, lawyers take a leading role in commenting, designing and proposing better laws. Even discussing these roles involves ideology and debate. Thus, the State Bar’s role cannot be to cover the ears of its members lest they hear speech at their gatherings that may touch or concern politics.
During my 48 years as a lawyer in many roles, I have served on dozens of projects. For a time decades ago, I served on a nationwide ABA committee investigating the backgrounds of various Federal Judge nominees. These committees have been operating since 1952, when Eisenhower requested their assistance. I was overwhelmingly impressed by the diligence, the seriousness and the reporting of those committees. That is exactly why, during the Trump I, when these committees regularly rated nominees as “Unqualified” (some couldn’t even cite the rules of evidence), the vicious attacks on the ABA began, accusing it as being a left-leaning communist plot. Nothing could be further from the truth, of course, as thousands of lawyers (of every ideology) participate and collaborate in the ABA to discuss and improve every possible area of law, and the collected wisdom of these analyses is a national treasure. But the attacks continue to intensify. Thus, refusing to allow or entertain opinions or information considered “political” is another ruse to control and defuse the influence of lawyers.
Simply put: Neutral is not normal in our profession.
Our job is to listen, investigate, research, consider all opinions, guide our clients and our communities and country to be better. That can never happen when we are ordered to be “neutral.” In “Neutral” we go nowhere. We don’t help anyone. We let our country and our citizens down. I will not be ashamed of myself by abdicating my duty as a “special citizen” just because someone doesn’t want to consider another voice. As Oliver Wendell Holmes remarked in 1919 in his support of free speech, that “the ultimate good desired [by the public] is better reached by free trade in ideas.” And which profession may best be equipped with the means to debate, guide, promote, and evaluate? I, for one, think that’s our job.
We are not neutral. We are a powerful force to be reckoned with and to make sure this experiment in democracy survives.
Please…keep that faith.