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February 04, 2022 Appellate Issues | Winter 2022

Courage: The Seminal Virtue in Advocacy and Judging

By Jana L. Knott

The final day of the 2021 AJEI Summit began with what was arguably the most emotionally impactful session of the conference. The session was titled “Courage: The Seminal Virtue in Advocacy and Judging.” The panel was moderated by the Honorable Samuel A. Thumma, who has served on the Arizona Court of Appeals , Division One, since 2012, serving as Chief Judge in 2018-2019.

The panelists included the Honorable Elizabeth T. Clement, Justice of the Michigan Supreme Court. She was appointed to the Court by Michigan’s Governor, Rick Snyder, and joined the Court on November 17, 2017. Immediately upon joining the Court, she began preparing for the 2018 election, which turned out to be more eventful than anticipated.

In Michigan, state supreme court justices are elected to eight-year terms. Justices are nominated by political parties through partisan primaries or conventions and then elected by nonpartisan ballot. In July of 2018, Justice Clement, joined the majority in a 4-3 decision to allow a proposal to create an independent redistricting commission to appear on the ballot in the November election. She faced immediate backlash from the Republican party, including being “fired” by her campaign team.

She was asked by the party not to put her name in for the nomination and not to attend the convention. She was deliberately left off of campaign literature and shut out of campaign fundraising by the Republican party. But Justice Clement proceeded forward with her reelection bid, finding independent supporters and raising all of her own campaign funds. She focused her campaign on judicial independence, integrity, and doing the right thing whether you win or lose.

She attended the Republican party convention where she was booed when her name was announced and prohibited from going on stage. She, and even her children, were harassed and bullied during the convention. However, the Republican party unable to find an attorney or judge to run against Justice Clement, and she appeared on the November 2018 ballot, where she was the top vote getter and was reelected.

When asked during the panel how she wrestled with the possibility that the “anti-gerrymandering” decision would not be easy, she said that to make decisions as a judge you have to be willing to lose your job and even your friends; you have to be willing to be unhappy with certain decisions that you make because if you like every decision you make then that means you are probably not following the law.

She stressed the importance of taking back and de-politicizing the phrase the “rule of law,” and reminded us that whether we are lawyers or judges, we are members of an incredible profession where we have the ability to impact people’s lives on a daily basis. She suggested that if (or when) we get so connected with being right instead of doing what’s right, then it’s probably time to move on to something different.

The Honorable Marsha Ternus next told her story of courage in judging. Justice Ternus is the former Chief Justice of the Iowa Supreme Court and was the first woman to ever serve as Chief Justice of that Court. She was appointed to serve on the Iowa Supreme Court in 1993 by then-Governor Terry Branstad and served on that Court until the end of 2010.

In Iowa, justices of the state supreme court are appointed by the Governor, who selects from three names sent to him or her by a judicial nominating commission. Once appointed to the Court, a regular term of office for a justice is eight years. Justices must sit for retention on a ballot, which is a nonpartisan, up or down vote. Before 2010, no justice of the Iowa Supreme Court had ever been not retained under this system.

In 2009, the Iowa Supreme Court issued a unanimous decision finding that Iowa’s ban on same-sex marriage was unconstitutional. The Court faced immediate backlash, and a campaign ensued to unseat the three justices who would appear on the 2010 retention ballot, including Justice Ternus. Justice Ternus recalled that money poured into the state for the campaign to unseat the justices and focused on fear-mongering. The campaign to defend the justices was meager, and the justices failed to garner the necessary votes to be retained.

When asked how she wrestled with the possibility that the decision would not be easy, she said self-discipline as a judge is crucial. A judge has to be able to separate the legal analysis from the possible scrutiny the decision might garner. She also suggested that a judge must be willing to lose his or her job to properly do the job.

Justice Ternus explained that lawyers who practice in a state with retention elections have an obligation to behave in a way that upholds the concept of a non-political judiciary. Lawyers must have basic decency and integrity and have to understand that they can unwittingly change the tenor by the way they talk about the courts. Justice Ternus then reminded us to always keep in mind that lawyers are a part of something much larger than their court, their firm, and the court system. Lawyers must remember to keep in mind the purpose of the judicial branch—a respected, independent judicial branch is critical for the survival of our democracy.

The Honorable Steven H. David, Justice of the Indiana Supreme Court then told of his experience as the Chief Defense Counsel at Guantanamo Bay. Before being appointed to the Indiana Supreme Court in 2010, Justice David served in the Judge Advocate General’s Corps of the United States Army (active duty and then Reserves), where obtained the rank of Colonel.

In 2007, Justice David was nominated to serve as Chief Defense Counsel at Guantanamo Bay. At the time he was appointed to serve, Guantanamo Bay was the #1 legal mission of the United States government. Justice David oversaw the defense team and also personally represented detainees labeled terrorists by the United State government. He recalled the extraordinary pressure everyone was under and remembered contemplating “what happens when the rule of law meets fear of the rule of law and the unknown.”

He explained that his father expressed concern to him about the appointment and told him: “don’t work too hard but do your duty.” Justice David recalled feeling like this was his own personal Belva Lockwood moment. When he returned from the appointment, Justice David expressed concern about the procedures employed at Guantanamo Bay and the lack of resources available to properly defend the prisoners.

When asked how he wrestled with the possibility that his decision to go to Guantanamo Bay would not be well received, he said he asked himself “what’s the worst case scenario?” He allowed himself to struggle and express his emotions to his family and friends and relayed that the “people who matter don’t mind, and the people who mind don’t matter.” To close, Justice David told the audience that when he returned from Guantanamo Bay, he wrote a letter to his local bar association, the Boone County Bar Association, to tell the lawyers in his community that he had never been more proud to be a lawyer and member of this profession than during his time in Guantanamo Bay because he chose to stand up for the rule of law.

The panel closed with a standing ovation from the conference.

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Jana L. Knott


Jana L. Knott is an Attorney at Bass Law, P.C. in Oklahoma City, Oklahoma. Her practice focuses primarily on appellate litigation, advocacy, briefing, and consultation. Prior to joining the firm, Jana worked for seven years as a staff attorney to the Honorable Noma D. Gurich, Justice of the Oklahoma Supreme Court. Jana also co-hosts and produces “Oklahoma Appeals: The Podcast,” where she and her co-host discuss new cases published by the Oklahoma Supreme Court and Oklahoma Court of Civil Appeals and interview guests on all topics related to civil litigation at both the district court and appellate court levels.