Lawyers and judges: Mitigating public demonization and division

Our nation and our people are strongly but fairly evenly divided. Both sides claim the high ground. Too many of us irrationally despise and demonize one another, including those we have never met. Even for those of us with the mind, heart and will to do so, the challenge of helping to mitigate the division and demonization looms large. It is a daunting, but consuming task.

Judges are among those best able to help calm this social and cultural storm. Why is that so? Because judges are role models for those in and out of the legal profession, and they are our nation's neutrals, cloaked with community standing, credibility, prestige and power. I humbly and respectfully suggest we share a duty, which we can pursue in ethical ways, to leverage our temporary, lofty circumstances to help rekindle good will, common sense, and common decency among our conflicted factions.

The two foregoing paragraphs, slightly revised here, begin my preface, "A Judicial Role in Calming our Divided Nation," in the themed special issue of the Journal of Appellate Practice and Process, volume 21, issue 2, published by the University of Arizona James E. Rogers College of Law in collaboration with the National Institute for Trial Advocacy. Thanks to the shared vision and hard work of Professor Tessa Dysart, editor in chief, and Marsi Mangan, NITA representative and articles editor, this special issue will be published and placed online July 26 at https://journals.librarypublishing.arizona.edu/appellate/issues.

The theme of the special issue is "what ails and divides our people and afflicts our nation, and what we in the law, especially state, tribal, and federal appellate and supreme court judges, may do to help to mitigate, better yet, ameliorate those ailments and afflictions?"

We recruited 13 distinguished scholars to write. We did not take sides or slant our recruitment of potential authors. They are progressive, liberal, conservative, Jewish, Muslim and Christian. One of them is among the most eloquent voices in our nation and descended from both Frederick Douglas and Booker T. Washington.

While our theme targets the primary judicial audiences of the Journal, I here respectfully add to the list all of you, the readers of the Daily Journal. Everyone can help in large and small ways.

With the theme of the special issue of the Journal in mind, I respectfully suggest four questions for Daily Journal readers: (1) What is actually causing dissention and division among our people? (2) Is it possible to calm dissention and sooth division? (3) Do judges have a role to play in calming dissention and soothing division? (4) Do lawyers have a role to play in calming dissention and soothing division?

Judges may not engage in politics, but, as we ponder these four questions, it would be folly to ignore the impact of politics in initiating and aggravating divisions among our people when pondering these four questions. Indeed, Harvard Professor Edward L. Glaeser suggests, "The supply of hatred depends on the degree to which hatred makes a particular politician's policies more appealing." Edward L. Glaeser, "The Political Economy of Hatred," 4 Natl. Bureau of Econ. Research Working Paper Series No. 9171 (2002).

Lawyers may engage in politics. For those who do, a careful reading of Glaeser may be worthwhile. All lawyers, whether serving in roles cloaked with legislative immunity or not, should behave civilly and ethically, measure their behavior, and resolve not to fan the flames of demonization and division. We are still a nation and lawyers, like judges, must help lead it and our people, all of them, with common sense and common decency, especially those with whom they disagree.

However deeply divided our people may be, as judges and lawyers, we must remain among the fray. We must continue working difficult cases regardless of how deeply they may trouble or offend us. However touching and emotional the case for lawyers, they must fully and faithfully, according to relevant facts and law, outline and sum up for judges and juries, make appropriate trial objections to judges, and write and argue cogent motions and briefs to judges. Presiding in difficult, troubling, or offensive cases, judges must dispassionately respond in the same spirit, without fear or favor, and according to law.

In short, all of those of us blessed to have legal and judicial careers must always seek to do the right thing, with zeal and tenacity, while, at the same time, behaving discretely, humbly, and politely with countless judges, lawyers, litigants, journalists and members of the public, even those we may not like for whatever rational or irrational reasons.

We can leverage all that by engaging in meaningful role modeling as widely as we can, mirroring all the good things we do, in courtrooms and out. But we must be more creative and proactive. What that "more" consists of, is up to each of us.

Justice Thurgood Marshall outlined our shared duties during a 1992 presentation at Independence Hall, "We cannot play ostrich. Democracy just cannot flourish amid fear. Liberty cannot bloom amid hate. Justice cannot take root amid rage. America must get to work. In the chill climate in which we live, we must go against the prevailing wind. We must dissent from the indifference. We must dissent from the apathy. We must dissent from the fear, the hatred and the mistrust.... The legal system can force open doors and sometimes even knock down walls. But it cannot build bridges. That job belongs to you and me." 