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Bar Journal - Fall 2006

Commentary: Objects Are Closer Than They Appear

By:

The following is an edited version of a speech delivered at the Syracuse University College of Law on Oct. 19, 2006.

I stand before you today as a graduate of the Syracuse University College of Law, separated from this spot by the passage of 32 years, but physically by the distance of only three feet. You see, I received my law degree on this stage, in Hendricks Chapel, back in May of 1974. It is a moment I will never forget, just as I know that you will never forget yours, which will be here sooner than you think.

The graduation speaker that day was George McGovern, the distinguished senator from South Dakota. It was a convulsive time in our nation’s history, with a failed war and riots and battles to establish personal freedoms. To put that day in perspective, we were graduating 18 months after Senator McGovern had lost the presidential election to Richard Nixon by 502 electoral votes, and just three months before President Nixon would resign in disgrace. As newly minted lawyers we were at a crossroads in Hendricks Chapel on that graduation day back then.

It was a crossroads in our personal lives, as we all prepared to enter the world with our law degrees in hand. And it was a crossroads on a much larger scale, as the nation prepared to enter a new generation of challenges to the rule of law.

I bring this up because I began my practice—as most of my colleagues did—in the aftermath of Watergate. When we talk about “Law in the Media Mirror,” and the impact that the mass media can have on the American legal system, no one modern event looms larger than the events and forces we call Watergate. And frankly, things have never been the same since.

In those chronicled events, lawyers were everywhere. For every lawyer who was complicit in White House crimes back then, there were a hundred-fold more in the Congress and on the courts and in the legal system who held them accountable.

And the media was everywhere, uncovering every fact and nuance and lead for a public consumed with interest, fear, and hope.

To be clear, these convocation remarks are not about Watergate, but rather about the legal world we have inherited from Watergate.

Indeed, law and process and ethics and journalism and news all met at those crossroads back then, and the confluence that resulted has shaped the American legal system we have today. So, with that personal starting point in mind, let’s begin.

Law in the Media Mirror:
Objects are Closer than they Appear
.”

I am going to use this topic today to discuss with you two or three related issues, all under one heading—”Media Mirror.” I give you that theme because it ties together so much of what I have experienced over the course of my career, dealing with challenges and opportunities that sometimes wind up in the reflection of media coverage.

The phrase “Objects are closer than they appear” comes from, of course, the lower part of your car’s right-view mirror. It provides a good analogy for just about everything I will talk about today. When it comes to evaluating the impact of the media on the American legal system, consider this about your right-view mirror:

•   There is often some distortion; and

•   We look at the image so often, we don’t even notice it’s there anymore. We just take it for granted.

The simple fact is that in today’s universe of instant and global communication, where the “world is flat” and imagination is unfettered, we sometimes accept a media that exceeds traditional notions of responsible journalism. Coverage and commentary that are seductive and distorted get our attention, especially when they are unfairly magnified. And it doesn’t take us very long to take their presence for granted.

Blogs are everywhere. Cable television dominates. Bill O’Reilly may in fact be the source for more daily news for the American public than Katie Couric. And lawyers, judges, and the American legal system are not immune. From “Perry Mason” to “LA Law” to “Nancy Grace,” we have started to take media interest in and exaggeration of what we do for granted, as a given, and that any coverage is good coverage. If they spell our names correctly, that’s good enough.

Well, it’s not. Distortion to sell a story is still distortion, even if it is quickly becoming a fact-of-life. Yet that is the present state of the “media mirror,” and that is the world you as lawyers of the future must contend with.

As a lawyer today in a general civil practice in New Hampshire, I have had more than my share of matters seen through distortion, through the right-view mirror. Perhaps it is New Hampshire itself, where we take our politics retail and our cases as we find them.

Whatever it is—from bar leadership to a state-wide impeachment crisis to nominations to the United States Supreme Court—I have had a generous opportunity to be part of our American legal system, and to see up-close and personal the powerful impact of the media on legal events, and on legal rights and obligations.

 Stephen Tober testifying before Senate Judiciary Committee

Presenting its report on Supreme Court nominee Samuel Alito to the Senate Judiciary Committee were Stephen Tober (center), and John Payton and Marna Tucker, of the ABA Standing Committee on the Federal Judiciary.


Oftentimes the impact is salutary, assuring that open government is truly open, and that minority rights are heard, and that the truth will out. But sometimes the impact is less so, giving voice to the few who would take advantage of the many, or challenging those who cannot defend themselves, or causing cynicism where none is deserved.

This is not meant to be a scorching criticism of the media. They have an incredibly important role to fill in our society, and in our “rule of law.” And they have their own disciplines and codes of conduct to abide. It is meant, instead, as an observation of how the media has become an ever-present force in how we are perceived, and how we operate, as lawyers and judges in the American system of justice. If it can reach a small law firm in Portsmouth, New Hampshire, it can reach anywhere.

I had the good fortune to chair the ABA’s Standing Committee on Federal Judiciary last year, a year that turned out to be a historic one. It has been some 35 years since there were two vacancies on the Supreme Court to be filled by two new justices at essentially the same time, and there have been 24 previous chairs of the ABA Committee before the wheel landed on my name. There is no question that I was at the right place at the right time.

The Standing Committee traces its history back to 1948, when it began advising the Senate Judiciary Committee on all nominees to the federal bench. And four years later, at the request of the White House, the Standing Committee began advising President Eisenhower.

Up until 2001, the Standing Committee’s role was in pre-nomination screening of all potential nominees to the federal bench. Names would come in confidentially to the Committee, either from the White House or from the Attorney General, sometimes with as little as 24 hours for comment. If concerns were expressed about the potential nominee’s professional qualifications, those concerns were conveyed back to the White House, which would then decide whether to proceed with the nomination or not. Often it would not.

Because the process was pre-nomination and confidential, no one really has any accurate data reflecting the number of nominations considered and dropped. On occasion, several names would come in to the Committee at once, so that the president could have a choice.

The process changed in 2001, when the present Administration took over. In March of that year, the White House announced that it would no longer submit names of prospective nominees in advance to the Committee. The Senate Judiciary Committee, however, soon requested that we continue our work, and report to them.

Which is what we do. The Standing Committee, working to preserve the process and confidences of what was started almost 60 years ago, receives the name of the nominated individual, reviews his or her professional qualifications, and reports its rating of Well-Qualified, Qualified, or Not Qualified to the Senate Judiciary Committee, the White House, and the U.S. Department of Justice.

There are strong firewalls around the Standing Committee to secure its integrity and independence. The ABA’s national officers, Board of Governors, and members of the House of Delegates are not involved in any way in the work of the Committee. It conducts its evaluations and issues its ratings free from any ABA policies or other influences of any kind. It is often said—and it is true—that the president of the ABA finds out what the ABA ratings are, at the same time the public does.

The Standing Committee is the flagship committee of the American Bar Association. It is composed of 15 experienced lawyers who represent every judicial circuit in the United States. These individuals, who volunteer hundreds of hours of public service annually, conduct a thorough, non-partisan, non-ideological peer review, using long-established standards that measure a nominee’s integrity, professional competence, and judicial temperament.  When it speaks, it speaks as the voice of the bench and bar of this nation.

So, I have been asked many times over the last year or so, “Just how did you become chair of the ABA Standing Committee, and get to do all that good stuff?” To answer that question, I am reminded of the time President Kennedy, on a trip to the West Coast, was asked by a little boy how he became a war hero. “It was absolutely involuntary, he said. They sunk my boat.”

That’s about how I feel. I guess another way to look at it is, I am a 32-year, overnight success.

When I drove away from campus back in 1974, and headed off to take the New Hampshire Bar exam, I took it as a given that should I pass, there were volunteer things to do. So I did. I was once asked in an interview, “Why do you participate in Bar affairs?” And my answer was, “No one ever told me it was an option not to.” I believed that then, and I believe that now.

So I became involved, became president of the NH Bar in 1988, and then found myself a member of the ABA House of Delegates in 1993. In the ABA I was surrounded by others who felt the same way I did. Do something for the profession that makes it just a little better than you found it. That included Bob Hirshon from Portland, Maine, ABA president in 2001, who put me on the Standing Committee as the First Circuit representative for three years. During that time I had the opportunity to review and vote on approximately 250 nominations to the federal bench. It was an enthralling and educational tour-of-duty, and one for which I am ever grateful.

It also included my good friend Mike Greco from Boston, Massachusetts, the immediate past president of the ABA, whom I have known from bar leadership for over 20 years. When the time came to appoint the chair of the Standing Committee to serve during his year of leadership, he was gracious enough to invest his trust in me.

During my 12 months as chair, starting in August 2005, the Committee evaluated and reported out on just over 50 federal judicial nominations from the White House. By the numbers alone, probably an average year. But it was not an average year, of course:  In the first five months, from August 2005 through January, 2006, virtually every day was devoted to a Supreme Court nomination. First it was John Roberts; then it was Harriet Miers, and then it was Samuel A. Alito, Jr.

A little further background is essential here. The Standing Committee’s investigation of a nominee for the United States Supreme Court is based upon the premise that such an individual must possess exceptional professional qualifications. The significance, range, and complexity of issues that such a nominee will confront on that Court demands no less. As such, our investigation of a Supreme Court nominee is more extensive than those conducted for nominations to lower federal courts, which are generally done by the individual circuit member only, who then circulates the report in confidence to all other members of the Committee.  For the Supreme Court, the process is different in two principal ways.

First, all circuit members on the Standing Committee—not just one—reach out to a wide range of individuals within their respective circuits, who are most likely to have information regarding the nominee’s professional qualifications. In the Alito evaluation, for example, Committee members initially contacted more than 2,000 individuals across the nation.

A second difference is that reading groups of scholars and distinguished practitioners are formed to review the nominee’s legal writings and advise the Standing Committee. The reading groups assist in evaluating the nominee’s analytical skills, knowledge of the law, application of the facts to the law, and the ability to communicate effectively. Again, turning to the Alito nomination, the reading groups collaborated to read over 350 of his published opinions, several dozen of his unpublished opinions, a number of his Supreme Court oral argument transcripts and corresponding briefs, and other articles and legal memoranda. It was a massive and time-consuming undertaking for them.

It is the prerogative of the chair, over the years, to assemble those reading groups, and to have them on-the-ready should there be a Supreme Court nomination. Traditionally those reading groups have come from law schools such as Northwestern, Stanford, Michigan, and Virginia. When I became chair, I sought some additional diversity, and asked two other law schools to become involved: Georgetown Law Center, and the Syracuse University College of Law.

So where does “Law in the Media Mirror” enter into all of this? In everything we did as a Standing Committee, for the full year of my chairmanship.

From the moment that John Roberts was nominated to be Chief Justice, to the nominations of Harriet Miers and Samuel A. Alito, Jr., my task was to coordinate a confidential, exhaustive, highly-sensitive comprehensive peer review—keep it on deadline—and answer unrelenting press inquiries all designed to open things up, expose some new lead, and scoop the result, on an almost daily basis. It became common to do interviews on radio shows such as NPR; return calls to newspapers such as the Washington Post; and appear before a microphone for CNN or C-Span. Whenever I spoke, I spoke only about process. Always process.

When we stepped into the Senate Judiciary Committee hearing room to finally testify—a room of gleaming granite and marble, with ceilings the height of most buildings in New Hampshire—we ran a gauntlet of media, and cameras, and tape recorders – the news media clearly outnumbering senators in the room by about 10-to-1.

And then there is the Web. Starting with John Roberts, the last three nominations to the United States Supreme Court are the first in the internet era. Prior to Justice Roberts, the previous Supreme Court nominee was Justice Stephen Breyer in 1994. These nominations—Roberts, Miers, and Alito—were the first to be additionally vetted, if you will, in cyberspace.

Unencumbered by very much—certainly not traditional journalistic restraint—cyberspace is a new and curious entry in the impact of the media on the law, and we are just beginning to learn about its power and influence.

Much of the media interest in Roberts, Miers and Alito was good. A more educated public means a more involved public. But some of it was not so good. While Chief Justice Roberts benefited from his time on-camera before the Senate Judiciary Committee, Harriet Miers never got there. She was a victim, some have said, of partisan bickering—played out in the media.

And as for Justice Alito? In a speech recently to judges and lawyers in Nassau County about judicial independence, he talked about a dangerous link between the media, and threats to the American system of justice. During his nomination process, Justice Alito became the subject of an unfounded ethics charge, when internet bloggers accused him of lying about his father having been born in Italy.

“The Boston Globe thought this was very important,” he noted, “and they hired a professional genealogist to investigate the history of my family. . . .This is just an example of some of the things that go on in the media today with nominees,” he added, “not just for the Supreme Court, but for other positions.”

And then Justice Alito hit a higher note. “This is extremely damaging. People who go into a judicial career, cherish their reputations as ethical people. . . .The media should be held responsible for the way in which they criticize judges,” he said.

And he is right. Sometimes, when seen through your right-view mirror, the actions of good people who might otherwise step forward to serve, lead them to respectfully decline. No one ever wishes to lose a good name.

But there is even more risk than just narrowing the field of those who might serve in our system of justice. Much more risk.

For those of us who have studied constitutional law and taken civics classes, it comes as no surprise that the American government is based upon a notion of balanced tension among the three branches of government.

Chief Justice Frank Kenison from the New Hampshire Supreme Court once noted, almost four decades ago, that our three branches of government are “equal, separate, and independent, but can and do function together as a working unit for the common good.” This is a simple notion — but surprisingly under attack today.

Why? Listen to the words of another distinguished jurist—Sandra Day O’Connor—in an interview with Time Magazine on September 28th:

I’ve been very concerned about the number of verbal attacks on judges—and a few physical attacks as well from time to time. I have felt that the public concern has followed the concerns expressed by various legislators both in Congress and state legislatures, concerns about so-called activist judges. I suspect when people hear legislators so often publicly denounce activist, godless judges that people start thinking that’s the situation. It’s very much a concern to me.

It matters enormously to a successful democratic society like ours that we have three branches of government, each with some independence and some control over the other two. That’s set out in the Constitution. The framers of the Constitution were so clear in the federalist papers and elsewhere that they felt an independent judiciary was critical to the success of the nation. Now you are seeing proposals in Congress to cut budgets of courts in an effort to in effect punish them for things the legislators don’t like. There’s a resolution pending to give grounds for impeachment if a judge cites a foreign judgment. You see a proposal for an inspector general for judges. You see a proposal on the ballot in November in North Dakota called Jail for Judges that would remove judicial independence and set up a mechanism to punish judges criminally and civilly for erroneous decisions. This is pretty scary stuff.

The notion that there should be three co-equal branches of government is not a new one, but it is a fragile one. It is fragile because, unlike the executive and legislative branches of government, the judiciary is charged with protecting the unpopular, recognizing those with no constituency, and reviewing the conduct of the other two branches. It does all of that, of course, without advertising, going on Sunday talk shows, or lobbying. In effect, the judiciary in the United States is not the “Least Dangerous Branch,” it is the “Least Prepared Branch,” when it comes under media scrutiny and public attack. It was Justice Thurgood Marshall who once remarked, “We must never forget that the only real source of power we as judges can tap is the respect of the American people.” Without that respect, ladies and gentlemen, the buildings of justice simply will not stand.

Six years ago my home state of New Hampshire faced a constitutional crisis, when the state legislature considered bills of impeachment against three of the then-four sitting justices on the Supreme Court. I mention it not only because I had the privilege of representing one of those justices, but because that experience may well be the canary in the mine of a deepening threat to the judiciary of this nation.

The crisis started narrowly enough, when a justice on that court resigned, after having been reported for attempting to influence the selection of judges sitting on his own divorce appeal. Thereafter, the attack on the judiciary became a snowball rolling downhill, ultimately involving seven months of bitter acrimony between the legislature and the court, and costing several million dollars in public funds.

The justices’ decades-long recusal practices next came under scrutiny, but that issue was not the end. The growing animus, in fact, included the legislature’s reaction to a politically unpopular decision in New Hampshire, striking down the use of property taxes to fund education. The “Claremont” decision became the underlying reason for an attack not only on the integrity of the three sitting justices who participated in it, but on the very standing of the third branch of government in the state.

In the end, the House impeached only one of the three justices, but even that impeachment did not result in a conviction or a removal from office. Nor did the battle change “Claremont.” That decision and its progeny are still the law in New Hampshire today.

Yet what happened in my state six years ago is a case study of what is happening on a larger scale today. On one side you have all the armament of battle, while on the other side you have none. And to add to the imbalance, the side with all the armament gets to review and vote upon the budgetary needs of the other. 

This imbalance is probably greater where judges are appointed, and not elected. Elected judges are, after all, subject to re-election at some point. But while only three states provide for lifetime tenure for judges—New Hampshire, Massachusetts and Rhode Island—so too does the US Constitution, for the entire federal judiciary. Obviously, the impact of this imbalance can be huge. 

In fact, when politics and principle collide, and the media finds a hot story in that collision, there are very, very few defenders of the third branch of government. And that’s where all of you come in.

You find yourself in law school today for a number of diverse personal reasons, but, I suspect, with one common bond: because you have been attracted by the intellectual challenges and riches of curiosity that the practice of law affords. I hope you never lose sight of those goals.

Almost 20 years ago I had the opportunity to sit at a dais next to Justice David Souter. He was then an associate justice on the New Hampshire Supreme Court, and I was bar president. We were talking about law schools and such, when he asked me what I thought the most important undergraduate class was that I had taken, in preparation for law school. Wanting to impress him, I quickly answered “fine arts.” “You too?” was his reply.

I mention this story because it underscores the message I hope these convocation remarks convey. When you graduate and become a lawyer, do not strive just to understand the law. Strive to understand the world around you, with all its intellectual vigor, and how the law fits in.

You will leave here in three or so short years, with new tools and a new perspective, transformed in ways you cannot now see. Those tools will be used to shape the law and tailor it to the needs of an evolving society, in a world unimaginable when I sat where you are now sitting. And those tools will help you to advocate for others, and eradicate continuing vestiges of social injustice. How wisely and how often you use your tools and talents will be your legacy to those who follow.

You will also become officers of the court. When you do, you will begin a career older than our Constitution and critical to carrying out the basic promises of our republic. As an officer of the court, you will owe fiduciary duties to your clients, to the profession, to the public, and to the administration of justice. It is not an easy job.

As a lawyer, you will confront cynicism from time-to-time. Dahlia Lithwick, who writes for Slate magazine, once noted the following:

The twin engines driving the legal profession are 1) the fear of screwing up; and 2) unvarnished greed. Most attorneys allocate much of their sleeplessness to fretting over the enormity of the imagined foul-up they made in footnote 35 of their Reply brief. The rest of their sleeplessness is dedicated to dreaming about the boat they’ll buy when they make partner (assuming no one ever finds out about footnote 35).

With all due respect to Ms. Lithwick, I am afraid she was looking through her right-view mirror when she wrote that piece. My experience in the practice of law, and the experience of scores and scores of others with whom I have worked, may not be recognizable to her. I do not even have a boat.

I have seen lawyers who have enjoyed financial success, nonetheless devoting themselves to securing legal services for the poor and disadvantaged, serving charitable organizations, donating legal aid to victims of natural disasters, and working to improve laws to help those who cannot help themselves. Financial success and personal enrichment are not mutually exclusive terms. One can indeed do good, while also doing well.

Ms. Lithwick’s observation is the kind of caricature you will, as a lawyer, encounter. And as a lawyer, you will always be able to laugh it off, ignore it, or answer it.

But it is also the kind of caricature that is sometimes made of the courts. Courts cannot laugh it off, ignore it, or answer it. They are simply not designed nor equipped to do so. When our system of justice is unfairly challenged; when judges are demeaned for making tough decisions; and when the press views the story angle out of that right-view mirror, the only voice that can respond is yours.

If all of this sounds a bit idealistic to you, it is. But it springs from an idealism I found here on this campus, a long time ago, and my experience since bears it out. I encourage all of you to never lose your idealism, and to embrace the possibility of great and good change.

And that brings me, finally, to the story of a New York lawyer by the name of Jacob Rouss. The year was 1912. Rouss was representing a client by the name of Eugene Fox, who was a member of the police force in New York City. Acting on behalf of Fox, Rouss entered into a deal for which a certain key witness harmful to Fox was to, as they say, “keep without the state” for a sum certain having been paid. The witness did, Fox got off, but the creative Rouss did not.

Rouss in fact wound up testifying at the trial of several members of the police department, only to find that his testimony was, in effect, a confession of guilt. The question that was ultimately presented to the New York Court of Appeals, in the case of in re Rouss, was whether his recommended disbarment was pre-empted by a then-existing immunity statute.

Rouss was correctly disbarred. And in the body of the opinion was the following oft-quoted dictum: “Membership in the bar is a privilege burdened with conditions.” The author of that opinion? Benjamin Cardozo. Cardozo would, some 15 years after writing this opinion, go on to further greatness replacing Oliver Wendell Holmes as a member of the US Supreme Court for six years, before his death in 1938.

So what did these words from Justice Cardozo mean? “Membership in the bar is a privilege burdened with conditions?”

To begin, they were consistent with his judicial philosophy of “social utility.” Membership in our profession is not a right, it is a privilege. It is a privilege that carries with it social obligations. In the case of Jacob Rouss, that social obligation was to maintain a “fair private and professional character.” Failing to do so was a breach of that privilege, for which Jacob Rouss paid with his livelihood.

More importantly, Cardozo’s “social utility” also called for a progressive use of the common law, adapting more established legal doctrine to new and changing conditions. For that, in today’s media world, he would undoubtedly be dismissed as just another “activist judge.”

I mention all of this because Cardozo is not some marginal “activist judge,” and “social utility” is not some faded, dusty judicial theory. It is, in fact, a condition that you will bear, when you are privileged to become a member of the bar, and I urge you to revisit it.

For those of you who will someday choose to follow, you will find that membership in the bar has not forgotten “social utility.”

  • You will be required to not just be an advocate for a client, but a teacher of the law as well. The law and its processes have enough enigma and mystery surrounding them. You will need to work vigorously to demystify them, and help people understand how the law works, and what the law does.
  • You will be required to give of yourselves to make things better, because you hold a special place in this nation, a nation governed—not by the rule of force—but by the rule of law. It will be essential that you find purpose in the phrase “access to justice for all,” so that it will always have spirit and meaning for those who, so easily, might otherwise be denied. And,
  • You will be required not only to understand and study the law, but to advance it as well. A good lawyer keeps his or her mind open to new thoughts and ideas. A great lawyer puts those new thoughts and ideas into action. I hope that all of you become great lawyers.

As I close, I challenge you to start now, and embrace every opportunity offered you in law school. Wring every bit out of it. Be open to new ideas and new ways of thinking, for neither the study nor the practice of law is well served by the inflexible. The legal profession and the practice of law need you and your energy, and we look forward to welcoming you when you arrive.

Author

Stephen L. ToberAttorney Stephen L. Tober, president of the New Hampshire Bar Association from 1988 to 1989, practices law in Portsmouth. He served in the ABA House of Delegates for 13 years, through August 2006. He is the immediate past chair of the ABA’s Standing Committee on the Federal Judiciary. 

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