SPEECH
Celebrate Your Freedom: Fireworks for the Profession and the Judiciary*
Honorable Joseph W. Bellacosa**
Let me please start with a story about John Quincy Adams from the recent excellent biography by Paul Nagel.(1) Adams was scheduled to address the Massachusetts Historical Society. As was his custom, he researched and wrote feverishly for three weeks, complaining all the while that he really needed six months. On the morning of his speech, his carriage mistakenly dropped him off at the parsonage of his good friend Reverend Nathaniel Frothingham here in Boston. Adams joined a group of people gathered in the pastor's study and, as the meeting progressed, Adams realized this was not the Historical Society, but the Congregational Charitable Society.
He rushed immediately to the Historical Society location, where the scheduled audience was impatiently fidgeting. Adams began to speak at 11:20. By 1:05 in the afternoon, he took pity on the crowd and ended his remarks by omitting a generous portion of his prepared oration. The audience probably wished he had stayed with the Congregational Society.
If you think the speech story shows a tendency in John Quincy Adams for extended discourse, let me tell you of his Amistad case oral argument before the U.S. Supreme Court.(2) His portrayal in the movie by Anthony Hopkins does not do the scene justice. Adams spoke four plus hours; then the Court adjourned and one of the Justices died; upon resumption a few days later, the surviving members of the Court listened to him for another four hours and ruled in his client's favor.(3) I wonder if he just plumb wore them out. Fear not, I know I am before the right audience and I am no John Quincy Adams! Besides, your Dean allotted me fifteen minutes, and I carry a portable red light from our Court's modern argument lectern in my back pocket. It activates like a pulsating pager when my time is up.
The American Bar Association theme for commemorating Law Day this year is "Celebrate Your Freedom." I adapt and paraphrase that theme into Fireworks for the Legal Profession and the Judiciary (an intended play on the word "Fireworks"). Tonight I would like to share with you some thoughts and insights on the delights and burdens of our vocation of lawyering, as well as on the critiquing, both warranted and unwarranted, which has been directed at our Profession generally, and at the Judiciary in particular.
I have wrapped my remarks around three essential themes: (1) Honor to Our Profession; (2) Preservation of the Independence of the Judiciary; and (3) Respect for the Good of the Community, as well as for Individual Prerogatives.
A majority of us in this room are, or are about to become, lawyers. We have chosen an intrinsically rewarding career; a way of life which admits us to an array of opportunities to serve our neighbors, communities, and nation. We are the first line of defense when attacks come against the precious freedoms, presciently etched into our governing Charters by the founders of our nation--many of the words and ideas inspired and uttered right here in Boston. We are also the last hope of the weak, the injured, and the defenseless against the enormous power of government and oppression of sometimes misguided majorities. And, on a more immediate, direct, one-on-one level, we are the people that our friends and clients turn to for help in their most vulnerable moments.
Such are our responsibilities and obligations. Correspondingly, they ought also to be the sources of deep fulfillment and satisfaction. No matter how many bad lawyer jokes circulate over the Internet and around water coolers or on late night television, no matter how maligned the profession is in the press and in the polls, we have each made the choice to be part of this profession. We have reason to be proud of our choice and ourselves, and no one can cut into our self esteem--unless we make another choice, and let them do so.
There are plenty of reasons--despite some anecdotal evidence to the contrary--that we lawyers are truly and privately respected, esteemed and specially rewarded by our society. We are, after all, licensed members of an exclusive profession. So I counsel you tonight, revel in our status as lawyer, attorney, counselor, fiduciary, and barrister. Smile, even smirk, at the jokes. But do not let them drag you around and down. Besides, at times some of them are even funny and good for humility and avoidance of hubris and egocentricity. Deflect the slings and arrows to the sidelines. Instead, just enjoy going about the extraordinary entitlement of being a lawyer on the center stage of people's lives and crises. "It is where things are at," as de Tocqueville(4) observed long ago, although I am sure his phrasing sounded more elegant in French.
The fireworks salute I urge for tonight and for the days, months, and years ahead, includes lighthearted and congratulatory sparklers, brightening an enormous menu of legal services--good works is a worthy characterization--including the compensated variety, by the way. The annual Barristers' Ball you convene to celebrate Law Day captures some of this spirit. It assembles tonight in a wonderful Boston venue, with fine food, happy colleagues, friends, and professional associates. It even provides dancing, to the delight of my wonderful spouse, partner, and best friend of 37 1/2 years, Mary, who accompanied me here. I dare not keep her or you very long from the dancing and music of the night.
Now I know, on the other hand, that almost everyone in our profession loves playing Devil's Advocate. So, I do not want you to think of me as Judge Pollyanna. I am not suggesting that we plant forced permanent Smiley Faces on ourselves. We have to be realists. Our analytical training and our adversarial system celebrate sharp critics, not sideline cheerleaders. We like being skeptics and relish snappy put downs. Yet, amiably standing tall with head up and shoulders back might help to reduce some of the angst and dissatisfaction we hear and read about, especially among so many young members of the legal profession today. The disillusioned might be encouraged if more of us proclaim openly that we love what we do and are proud to display our delight and to celebrate our worth and accomplishments.
Not only as a lawyer but also as a member of the judiciary, I must remind myself and profess publicly that I am doubly blessed--but also doubly cursed. Indeed, members of the judiciary, who are first of all lawyers, are also caught in crossfires of often uninformed or worse, self-serving, critical potshots from commentators, politicians, media, and even disappointed segments of the public.(5) One disgruntled litigant recently and seriously defaced the entire front facade of our magnificent Courthouse at dawn one day this past January! For the most part, we are ethically and prudentially prevented from responding in fact or in kind to brickbats. Please do not misunderstand me; sound, principled, constructive criticism is welcome and fruitful, and is indeed absolutely vital to and constitutionally protected in a healthy, independent judiciary and system of governance.(6) Undisciplined, unprofessional, and thoughtless blasts, however, breed disrespect for the judiciary and, by association, for the other branches of government. Ironically, those branches already have enough of their own problems these days in that department.
Debasing the judiciary and the judicial process based on disagreement with particular rulings, taken out of context makes for splashy headlines. While this tactic can sometimes lead to short term smug satisfaction for populists spinning stories to expedient ends, the effects on the public's attitude toward the judiciary are long lasting and devilishly damaging. Thus far, the public has substantially retained its trust in the judicial process. But that trust is being whittled away by unwarranted attacks--and trust, once lost, is nearly impossible to rebuild. I therefore implore those who would recklessly disparage the judiciary and the judicial process to consider this: the viability and vitality of the great democratic experiment that is this nation's most valued treasure is still being tested and is under daily, visible stress. Abusing the freedoms that the judiciary and judicial process protect is a grave mistake. It places the freedoms at risk--everyone has much to lose.
"At worst, some of these 'hits and runs' engender disrespect due to the polemics and punditry of the day. Critics cherry-pick points and cases of disagreement, create tabloidal poster targets of opportunity" with sound bites (spelled with a "y" and an "i"), and sully the legitimate debate with dissonance and distractions.(7)
In my view (inescapably a bit self-serving as a judge), the episodic, superficial tactic is misguided, because it does not constructively educate the public about the complex process that serves society so well. Instead of inculcating attitudes of respect for the long and well tested process, it prefers to stir disrespect--or at least diminished respect--at a time when more respect is needed. This deconstructionist approach is perhaps a byproduct of modern times, with their relentless demand for pop expression of instantaneous views on any matter, whenever asked or pressed.
Professional talkers (public officials, commentators, talk show chatters, wannabe scholars, and media alike--John Quincy Adams deliciously dubbed this ilk in his time as "polemical porcupines")(8) ought to treat their sound bytes as dumb, not smart, missiles. I see them as self inflicted wounds--friendly fire, if you will. After all, people who fling flimsy barbs that chip away respect for the judicial branch and process may be "surprised--though they should not be--by the inevitable swing and sting of their own boomerangs."(9)
To be sure, the Judiciary and individual judges have to watch our own steps and words too, because we are not accustomed to being in public frays of recent kind and decibel level. What I mean is that as a branch of government and as an independent, individual yet collective body of public officers, we cannot become a bunch of defensive, bunkered, wagon-circlers. Nor can we remain entirely aloof either, as though in an ivory tower or sanctuaried monastery.
One of the pre-eminent values of the judicial process is to protect and foster the canon of neutral adjudication by conscientious, oath driven magistrates and objective tribunals. They must discipline themselves with flinty determination against predisposition and pigeonholing--whether self-created or draped perceptually over them by opportunistic observers. Courts and judges cannot succumb to and ought not be painted as for or against poorly defined classifications or loosely labeled alliances. They must steadfastly stand for justice and against injustice. The independence needed to fulfill that governmental mission should be complemented with an awareness by all, Judiciary included, that communitarian responsibilities must also be appreciated in the context and spirit of shared distribution of power. Society girds the Judiciary with unparalleled power derived from the Constitution and the likes of Marbury v. Madison,(10) secured for over two centuries principally on the simple but slippery bedrock of respect.(11)
We might do well in this connection for perspective, to examine the blend of independence and individuality with the obligations towards collective efforts, cohesive responsibility, and common goals. We should search for ways to protect and harmonize both independence and collaboration. If that sounds schizophrenic, it is not because we are, after all, complex human beings with concentric and interconnected, yet discrete, goals.
Let me please try to illustrate from my personal perch and experience. The New York State Court of Appeals' Conference Room has a round deliberation table, symbolizing the strength of a circle--the institutional bond and connectedness that transcends the assertion of individualized personalities. The circle of chairs around the decision table--the very place where peoples' cases are decided and their rights apportioned out and promulgated--also represents the equality of the seven voting Judges and the importance of individualized views, ultimately subordinated and fitted, however, to the larger institutional universe and purpose. The court exists for the greater good of society, not for the assertion of each judge's predilections.
When we pause, then, from time-to-time--like tonight--to celebrate freedoms, to enjoy fireworks of celebration, and to judge by what formula or standard to measure our self esteem and successes, as lawyers, judges, professors, public officers, or just plain everyday folks, we might consider a handy barometer, adopted by Chief Judge Cardozo. He found it in the works of Charles Francis Adams, the son of John Quincy Adams. Cardozo and Charles Adams thought they were doing just fine when they looked back upon the work of each day or year and found they had not made "conspicuous ass[es]"(12) of themselves. Now that is modesty, humor, and class that I can relate to from Nineteenth and Twentieth Century models. It provides a handy vision and lesson for the Twenty-first Century.
Your own renowned Massachusetts-bred Oliver Wendell Holmes alliteratively described the measure of success in a private letter to his successor on the Supreme Court, Judge Cardozo, as "'not place or power or popularity'" but "'the trembling hope'" of striving to "'come near to an ideal.'"(13) Judge Cardozo held and considered the friendship, the letter, and that message as personal treasures. We, too, can believe in, treasure, and live by that Yankee's idealistic stretch towards Olympus and the stars. Let us not forget this is a message of idealism uttered, after all, through the penned voice of a war-wounded and renowned, and even hardened realist.
Just about seventy years ago, Cardozo beautifully summarized the essence of law, lawyering, and the legal profession. It appears in lyrical words spoken to the first class of graduating lawyers-to-be at my Alma Mater, St. John's. We have come to expect majestic phrases from Cardozo and perhaps we take his words for granted by not really listening and dwelling on their profound beauty and persisting meaning. So listen with me a few more moments and hear his summons to us:
[The law] is what you and I are making it. That is the heavy burden of our calling, but that is also its unfading glory. That is the strain and the woe of it, leaving creases and scars in the faces of the veterans, but that is also the heartening appeal of it, reflecting light and joy and hope in the faces of the new recruits, eager to join the fray and fill the thinning ranks.(14)
Judge Cardozo continues that the profession of the law is moved
at times, by the ferment of high thoughts and fine ideals, and yet at times in danger of becoming sodden and inert by reason of that very mass which might make it so irresistible a power for good! How it lies with [the members of the Bar] to uplift what is low, to erase what is false, to redeem what has been lost, till all the world shall see, and seeing shall understand, that union of the scholar's thought, the mystic's yearning, the knight's ardor, and the hero's passion, which is still, in truest moments of self-expression, the spirit of the bar!(15)
We are today's custodians and fiduciaries of this spirit. It is entrusted now to us to preserve and deliver it to successors, with brighter polish and enriched value. So let the fireworks of celebration illuminate our horizons as we (1) honor the legal profession, (2) preserve the independence of the judicial branch, and (3) respect the Commonwealth, right along with individual prerogatives.
Thank you for your attention and kind invitation. I extend deepest appreciation for the privilege of your honorary degree conferral and I wish everyone an ecumenical Blessed Easter and Happy Passover.
* Keynote speech delivered at the New England School of Law's Barrister's Ball, Wednesday, April 8, 1998, Westin Hotel/Copley Place, Boston, Massachusetts.
** Judge, New York State Court of Appeals, Albany, New York.
1. See generally Paul C. Nagel, John Quincy Adams: A Public Life, A Private Life (Alfred A. Knopf ed., 1997)
2. United States v. The Schooner Amistad, 40 U.S. (15 Pet.) 518 (1841).
3. See Nagel, supra note 1, at 380-81.
4. 1 Alexis de Tocqueville, Democracy in America 280 (Phillips Bradley ed., 12th ed. 1976).
5. See Joseph W. Bellacosa, Judging Cases v. Courting Public Opinion, 65 Fordham L. Rev. 2381, 2388 (1997).
7. Joseph W. Bellacosa, Boomerangs of Dissonance, N.Y. L.J., Aug. 12, 1996, at 2.
8. Nagel, supra note 1, at 392.
9. Bellacosa, supra note 7, at 2.
10. 5 U.S. (1 Cranch) 137 (1803).
11. See Joseph W. Bellacosa, The Nature of the Judicial Process Revisited: "Three Little Words", N.Y.S. B.J., Sept.-Oct. 1992, at 14, 14-16.
12. Benjamin N. Cardozo, The Comradeship of the Bar, in Selected Writings of Benjamin Nathan Cardozo: The Choice of Tycho Brahe 422, 428 (Margaret E. Hall ed., 1947).
13. Benjamin N. Cardozo, Mr. Justice Holmes, in Selected Writings of Benjamin Nathan Cardozo: The Choice of Tycho Brahe, supra note 12, at 77, 86.
14. Benjamin N. Cardozo, Our Lady of the Common Law, in Selected Writings of Benjamin Nathan Cardozo: The Choice of Tycho Brahe, supra note 12, at 87, 95.