December 19, 2019 Feature

The Importance of Judicial Outreach in Our Time, and Its Connection to a Divided Past

By Mark O’Halloran, Carolyn A. Dubay, and Melissa Aubin

Abraham Lincoln’s Gettysburg Address is often quoted, but perhaps not in connection with judicial outreach. Like any speech given by a president following tragedy, Lincoln’s mere appearance for the dedication of the cemetery at Gettysburg was controversial due to concerns of politics interfering with the solemn occasion. In fact, Lincoln’s brief remarks were supposed to be overshadowed by the two-hour-long speech of famous orator Edward Everett. Most of us have never heard a single word of Everett’s speech, but many of us can recite at least a small excerpt of Lincoln’s 272 words from memory: “Four score and seven years ago our fathers brought forth on this continent a new nation, conceived in liberty, and dedicated to the proposition that all men are created equal.”1 The creation of a new nation filled with hopes of equality and committed to the rule of law only 87 years earlier was remarkable. Lincoln knew that the world was watching this fledging democratic government, which had replaced centuries of rule by monarchies and autocracies, struggle in the midst of civil war, testing the notions upon which the government was conceived and that had bonded the country together.

What few can recite but what is no less important about the Gettysburg Address is Lincoln’s focus on the sacrifices made by the martyrs of the battlefield and the obligation of the living to carry forward their legacy:

The world will little note nor long remember what we say here, but it can never forget what they did here. It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced . . . and that government of the people, by the people, for the people shall not perish from the earth.2

Lincoln reminded listeners that the grand experiment of self-rule—where a person born in a log cabin could become president—could fail if the ideas that formed the nation’s founding were not strong enough to keep it together and if the people who believed in those ideas did not fight to preserve them.

So, as Lincoln challenged us in the Gettysburg Address, “[i]t is for us the living, rather, to be dedicated here to the unfinished work” of the promise of democracy, equality, and the rule of law. Lincoln’s words resonate today with deepening divisions among our citizenry that cast aside fundamental principles of civic discourse and respect for our government institutions in a way that challenges our democracy. The task of choosing a battle to fight can be overwhelming when new skirmishes break out daily in this war of ideas, with falsehoods and conspiracy theories spreading like wildfires through social media and the dark places of the internet. But we also know that apathy, complacency, and hopelessness are common under authoritarian rule but are not American values. We sense the urgency of defending our democratic institutions, and we feel the peril of being passive observers to this moment in history. And as Lincoln’s words remind us, we must remember our nation’s past struggles and honor those who fought and died to preserve our democratic institutions. We are once again charged with upholding our founding principles.

How, as lawyers, do we heed Lincoln’s call to the living to protect our democratic institutions? Long before he gave the Gettysburg Address, Lincoln answered that question through his actions as a young lawyer. In early 1838, and admitted to the Illinois bar only two years earlier, Lincoln gave a lecture to students at a boy’s high school in Springfield, Illinois, entitled “The Perpetuation of Our Political Institutions.”3 Lincoln was concerned about lawlessness and civil unrest that led to the lynching of a black man in St. Louis and other atrocities committed by mob rule acting in disregard of the rule of law and “in lieu of the sober judgment of Courts.”4 How then did Lincoln propose to young people that they protect America from the influence of angry mobs and abject tribalism that undermine equality, justice, and democratic engagement? His answer was simple: civic education about the rule of law. As he eloquently exhorted the high school students listening to him:

Let reverence for the laws be breathed by every American mother, to the lisping babe that prattles on her lap—let it be taught in schools, in seminaries, and in colleges; let it be written in Primers, spelling books, and in Almanacs; let it be preached from the pulpit, proclaimed in legislative halls, and enforced in courts of justice.5

In that moment, Lincoln solidified the important role of lawyers in educating the public, and especially young people, about the rule of law. Lawyers involved with the American Bar Association (ABA) have long understood the need to engage in public outreach efforts to continue Lincoln’s legacy of promoting the rule of law and protecting public confidence in our public institutions. A 2019 civics literacy poll conducted by the ABA Division for Public Education underscores the need for increased educational outreach. Less than half of respondents knew that John Roberts is chief justice of the United States Supreme Court, and one in 10 believed that the Declaration of Independence freed the slaves during the Civil War.6 Lawyers and judges thus need to be both leaders in the profession and educators in their communities to help combat the civics literacy gap. Just as reading literacy in early childhood is an indicator of success later in life, civics literacy should also be considered as essential to the sustainability of a society committed to the rule of law.

While there are many outstanding ABA civic outreach programs, 2017 marked the launch of the Judicial Division’s National Judicial Outreach Week (NJOW), held annually the first week of March (now March 1–10). Unlike other ABA programs, NJOW is designed specifically to encourage direct engagement of judges with community groups. Although many judges participate in outreach efforts throughout the year, NJOW brings together judges across the country in a focused and concentrated manner with a unified message about the importance of fair courts in preserving the rule of law. With concerted efforts during a short time period, the perceptible ripples of individual judicial outreach efforts become a conspicuous wave. As it goes in the parable, if one person throws a starfish back into the ocean, it makes a difference to one, but if many follow that lead, it can create a sea change.

At its essence, the Judicial Division’s “Preserving the Rule of Law” presentation is a public education program for almost any audience about the importance of fair and impartial courts in preserving our rights and liberties. But it is more than that. It is an opportunity for judges to connect with the communities they serve in a context that is welcoming and educational. It is also a chance for members of the community to hear from a judge about what courts do to preserve fairness and impartiality when people and businesses come into a courthouse. And still more, it is an opportunity for the judiciary to remind everyone of the independent role of the third branch of government and its commitment to securing public confidence in the rule of law, devoid of the partisanship of the political branches of government. This opportunity both strengthens public trust in our institutions of government and reassures the public that America can weather the political storms of the day and emerge stronger in character as a result.

To sustain public confidence in the administration of justice and understanding of the rule of law, NJOW depends on strength in numbers. What began as a couple dozen presentations during NJOW in March 2017 grew to 264 reported judicial outreach events in March 2019. NJOW has drawn the support of the Conference of Chief Justices and the Conference of State Court Administrators, and it has fostered partnerships and support from organizations like the National Judicial College, the ABA Young Lawyers Division, and the ABA Division for Public Education, to name a few. The toolkit and speaker notes help judges prepare and make the program interactive. The lawyer and law student toolkit helps lawyers and law students inform judges about NJOW and offer the opportunity to assist judges in implementation. It now seems possible to imagine an exponential increase in participation for NJOW 2020.

As detailed in Judge Paul D. Wilson’s article in this issue, the Massachusetts model of implementation provides a blueprint for every state of our nation to include every judge from every level of the judiciary in outreach efforts during NJOW. Again, as in the starfish parable, it takes one person to take the initiative to get things started. One of the most inspiring leaders on that front is Judge Angel Kelley. An associate justice of the Massachusetts Superior Court and regional administrative judge for Plymouth County, Judge Kelley drew a national spotlight at NJOW when the ABA Lawyers Conference presented her with the 2019 Burnham “Hod” Greeley Award to recognize her tremendous outreach success. If Lincoln taught us that we have a duty to publicly proclaim our commitment to preserving the rule of law, then Judge Kelley and her colleagues in Massachusetts have set an extraordinary example of how to get an NJOW program started in our communities to accomplish that goal. Judge Kelley’s work to engage communities in conversations about the rule of law highlights a successful strategy for implementing NJOW in our own hometowns:

  1. Partner with judicial leaders who influence the public conversations about law and justice. As chair of the Massachusetts Trial Court’s Public Outreach Committee, Judge Kelley had a platform and a megaphone. In our own communities, our most important civic leaders are attorneys and judges. Share your platform with a colleague, and invite new friends to a conversation about the importance of judicial independence.
  2. Take your programs to all who are curious. For Judge Kelley and her team, that meant extending more than 2,000 invitations to middle and high schools, chambers of commerce, councils on aging, cultural groups, religious organizations, institutions of higher education, Rotary Clubs, Boys and Girls Clubs, legislators, and public libraries. Reaching out through your natural connections is an easy place to start.
  3. Keep it simple. The Judicial Division has prepared NJOW toolkits to kickstart your event, with speaker notes, PowerPoint presentations, and handouts that can be customized for any group. You’ll quickly see that the conversations you spark are as meaningful to the speakers as they are to the audiences.

Reflecting back on Lincoln’s words as a young lawyer, and years later in the Gettysburg Address urging the living to advance the “unfinished work” of our forebears who fought for a “government of the people, by the people, for the people,” lawyers and judges have a special duty to promote understanding of and respect for the rule of law and our government institutions. This duty is reflected today in the words of our codes of conduct. The preamble to the Model Rules of Professional Conduct provides that “a lawyer should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.”7 Likewise, the Model Code of Judicial Conduct provides that “the judiciary plays a central role in preserving the principles of justice and the rule of law,” and “[i]nherent in all the Rules contained in this Code are the precepts that judges, individually and collectively, must respect and honor the judicial office as a public trust and strive to maintain and enhance confidence in the legal system.”8

For any judges wary of participation in NJOW, the example of Judge Kelley also establishes that participation in the program does not run afoul of a judge’s ethical duties. A member of the Massachusetts Committee on Judicial Ethics, Judge Kelley paved the way by obtaining a formal ethics opinion in 2017 explaining how judges’ participation in NJOW aligns with and, indeed, fulfills ethical obligations under the state’s revised code of judicial conduct.9 For lawyers concerned about direct outreach to judges in their communities to participate in NJOW, a quick call to the state bar can resolve any concerns, or lawyers can partner with local bench-bar committees and local organizations to get a program started to connect with judges, or even reach out to their state judicial administrative agency to find out about public outreach events or offices for judges. As members of the Lawyers Conference of the ABA Judicial Division, we know and appreciate the value of partnering with judges on projects and providing much needed support for judicial programs that promote the fair administration of justice and public confidence in the courts. NJOW is just one of those programs, and we welcome law students and any lawyers, young or experienced, who wish to join or work with the Lawyers Conference to find judicial partners in their home states to get a program started this March.

Lincoln’s timeless eloquence shows that public engagement in promoting the rule of law is essential to preserving the fundamental principles of our democratic and constitutional system of self-governance. The world is again watching our still-young democracy to see if the United States of America is still strong enough to pass this test and hold true to our founding ideas. The consequences of failure are unfathomable, but success will require each of us to do our part. NJOW is our opportunity to nobly advance the unfinished work of our predecessors, connecting liberty’s past sacrifices to the hope of a more perfect union tomorrow. As lawyers, connecting with judges to participate in NJOW can help each of us discharge our sacred duties to promote public understanding of the importance of fair and impartial courts in sustaining the rule of law in our society.

Endnotes

1. Abraham Lincoln, Gettysburg Address (Nov. 19, 1863), http://www.abrahamlincolnonline.org/lincoln/speeches/gettysburg.htm.

2. Id.

3. Abraham Lincoln, The Perpetuation of Our Political Institutions: Address before the Young Men’s Lyceum of Springfield, Illinois (Jan. 27, 1838), http://www.abrahamlincolnonline.org/lincoln/speeches/lyceum.htm.

4. Id.

5. Id.

6. ABA Survey of Civic Literacy: The Findings, YourABA (May 2019), https://www.americanbar.org/news/abanews/publications/youraba/2019/may-2019/aba-survey-of-civic-knowledge-shows-some-confusion-amid-the-awar.

7. Model Rules of Prof’l Conduct pmbl. (Am. Bar Ass’n 1983).

8. Model Code of Judicial Conduct pmbl. (Am. Bar Ass’n 2011).

9. Mass. Comm. on Judicial Ethics, Op. 2017-01 (2017).

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Mark O’Halloran

Mark O’Halloran is a partner at Gosanko & O’Halloran in Seattle, Washington, and is past chair of the Lawyers Conference of the ABA Judicial Division and current chair of the Judicial Division’s National Judicial Outreach Week Committee. 

Carolyn A. Dubay

Carolyn A. Dubay is the executive director of the North Carolina Judicial Standards Commission in Raleigh, North Carolina, and is the current chair of the Lawyers Conference..

Melissa Aubin

Melissa Aubin is the deputy clerk of court for the United States District Court for the District of Oregon and currently serves on the Executive Committee of the Lawyers Conference.