Opening Statement: How President Trump Made Lawyers Popular Again: And Five (Nonpartisan) Ways to Keep it that Way

Lawyers as Good Guys

It was the lawyers who responded first to the turmoil of executive orders on immigration, which threatened to separate families, exclude green card holders, and strand those following their dreams of the promise of America.

Lawyers rushed to the airports. They popped up law offices in terminals and waiting lounges. They worked for days, around the clock, for free, to protect the vulnerable. They also rushed to the courthouse, filing actions requiring the courts to review carefully this exertion of executive authority before its exercise could occur.

Lawyers also stood up for conscience, speaking their truth to power. Federal and state government lawyers, and judges, refused to enforce exclusion orders they concluded were unconstitutional. Countless other attorneys voiced their views to the politicians, the press, and the public, that it was the rule of law and the Constitution, not the edict of any executive, that control.

As protests (e.g., Berkeley, Seattle) became violent, it was the lawyers and the courts that provided the alternative: a reasoned, resolute process consistent with our democratic institutions.

And the public understood. One Internet meme urged, “Hug a lawyer today; they’re the first responders.” Videos showed airport crowds chanting, “Thank you, lawyers”—an unprecedented departure from the public’s stare decisis. I wasn’t at any airport. But at my annual physical evaluation a few days later, the physician’s assistants could hardly stop thanking me for what “all the lawyers” were doing, just because I was associated with them. Wow.

It’s often repeated that few people fully value legal representation until their own rights hang in the balance. That saying is validated by the times we live in and the stakes on all sides—including national security and basic human rights.

Five Steps to Sustained Popularity

Our profession now has the opportunity to live up to our promise. If we follow five nonpartisan principles, we can justify, and perhaps even sustain, this evanescent popularity.

Uncompromising support for the rule of law. America is, at first principles, a nation of laws, not men. This is the bedrock of our democratic model. It is what we must live up to every day.

These moments brings the sharpest inflection in governing institutions in our lifetimes. That’s why lawyers must stand strong. As ABA President Linda Klein told the ABA’s 2017 Midyear Meeting, our mission is “To hold power accountable. To insist on fundamental respect for our laws and the people they protect. . . . We protect the rule of law. We defend the Constitution. We are lawyers. We took an oath and these are our values. We will never give in. Never, never, never, never.”

Under the rule of law, there is no room to condone violent or illegal protests. Our rights to petition peacefully and vocally provide adequate recourse. There is likewise no room to condone conduct by any government officer that defies the law or the courts’ interpretation of it. Our training and our oath as lawyers give us a unique responsibility. We must forcefully call out any such improper actions, pledging our own “sacred honor” to the peaceful preservation of a representative democracy.

Uncompromising support for the judiciary. In the 214 years since Marbury v. Madison, the doctrine of judicial review has defined the limits of government power. The courts counterbalance executive and legislative power, holding the final word in construing what the Constitution requires. Continuing adherence to the rulings of the judiciary is therefore indispensable to the allocation of power not only between the branches of government but also between the government and the people.

For this reason, support for a fair, balanced, and independent judiciary is the corollary to adherence to the rule of law. Again quoting President Klein, “the independence of the judiciary is not up for negotiation.” “Make no mistake, personal attacks on judges are attacks on our Constitution.”

And again, we lawyers have an essential role to play. For one thing, judges are constrained by their ethical codes from entering public debate over the matters before them. We lawyers must step forward to defend judges who are unfairly criticized or individually pummeled in the media. See Laurence Pulgram, When Attacks on Judges Go Beyond the Pale, 43 Litigation No.1 (Fall 2016), at 4. And by the way, defending against “bullying” has never been more popular.

Our defense of judicial authority must also use our profession’s powerful collective voice. Things are different now from when President Jackson famously scoffed—in response to judicial orders prohibiting the dispossession of the Cherokee Nation—“John Marshall has made his decision; now let him enforce it.” Today the United States has over 1.3 million lawyers. That’s 1.27 million more than in 1832. Should even a fraction of that number speak out, they will not be ignored.

Commitment to the values of the Bill of Rights. Litigators in particular provide a bulwark for the residual rights that no branch of government may usurp. They are the guardians of due process, equal protection, jury trials, right to counsel, protection against illegal searches, the right to bear arms, and more. When any branch of government undervalues these rights, who but the litigators are there to defend them?

This goes double for the First Amendment’s protections: freedom of the press, speech, petition, assembly, and religion. We have seen too many weaker nations dissolve into autocracy through the suffocation of dissent, from the mass lockups in Venezuela to the dozens of assassinations in post-modern Russia. Not for nothing has the American Civil Liberties Union recently seen a multifold spike in contributions. The new president has highlighted the critical importance of dissent that may lie in the balance.

Commitment to civility and truthfulness. While our advocacy must be fervent, we must also never tolerate name-calling, deception, or sharp practices. Does (and should?) the public countenance ad hominem attacks by lawyers any more than by politicians? We build trust in our courts—and in ourselves as officers of the courts—by building cases based on legitimate facts, not fake ones.

Commitment to serve the underrepresented. Perhaps the greatest cause of the rise in lawyers’ popularity is that many of them have been seen serving others for free. Lawyers are flocking to represent people they’ve never met out of commitment to principle over pocketbook. Lawyers are standing up for the Legal Services Corporation, with bipartisan resistance to defunding representation of the needy. At our best, that is what we as lawyers do—ensure access to justice for all, not only the well-heeled. We return to (or, for some, never stray from) the reason why so many of us went to law school: to help the people who really need it.

When we do that, it can be no surprise that we strike a chord with the public at large. The same chord resonates in our own hearts.

Want to retain this newfound popularity for our profession? Remember where we started, what our profession stands for, and our fidelity to the rule of law, the judiciary, and the Bill of Rights. A little popularity can’t hurt us. Especially if we earn it.