BAEC Bulletin - November/December 2024

| November/December 2024 | BAEC Bulletin

BAEC Bulletin | November/December 2024 |

ANNUAL WESTERN DISTRICT OF NEW YORK FEDERAL COURT DINNER REMARKS BY THE HON. DEBRA ANN LIVINGSTON CHIEF JUDGE, U.S. COURT OF APPEALS FOR THE SECOND CIRCUIT September 12, 2024

our governing institutions, in particular. And advances in artificial intelligence, the authors said, together with the near exclusive reliance by some on the Internet, could further “diminish public trust [in the years ahead] as people struggle to determine what is real and what is rumor or manipulation.” In the short period that has passed since that Report issued, we now have AI- generated deep fake images, videos, even telephone or video calls to contend with. Our digital revolution, while of potentially great benefit to humanity over the long run, exacerbates political and ideological tensions today, accelerating our retreat to information silos, limiting our understanding of alternative perspectives, and prompting division over core values and goals in ways that endanger our capacity to work together on behalf of a common civic good. Justices Sotomayor and Gorsuch in recent times sounded similar themes, more specific to our judicial institutions, in a program that addressed civics education as a national security imperative. Justice Sotomayor warned that “[p]eople don’t fully understand the role of the courts.” And Justice Gorsuch expanded on that idea, noting that as to the rule of law, “we’re like [a] fish swimming in water and [the fish] doesn’t even realize it, because it’s everywhere around him . . . .” But Justice Gorsuch went on to note that when you look around the world today, the rule of law isn’t something you can take for granted. “It’s very rare. It’s very precious.” It, like democracy, only happens in special circumstances. Not that our governmental institutions, and our judicial institutions, in particular, haven’t faced such challenges before. Not long after I started teaching, Judith Kaye gave a fine lecture, Safeguarding a Crown Jewel: Judicial Independence and Lawyer Criticism of Courts, in which Chief Judge Kaye, in 1997, bemoaned that even then, technology was shrinking a complex world into readily accessed soundbites that threatened to undermine people’s confidence in the courts: “There is no time,” she said, “or taste, for anything more than someone else’s quick label, usually written in indelible ink that is impossible to eradicate.” So the problem for courts isn’t new -- what Chief Judge Kaye called the problem of “soundbite slap[s]” at judicial institutions not poised to respond -- but the digital age has exacerbated it, and in ways that are of concern to the health of our republic. Looking at the confluence of circumstances -- not only the digital revolution, but the aftermath of the pandemic, the erosion in civic education, all the many other challenges to our institutions today -- no one should be complacent that these institutions, having weathered bad times before,

will easily pass through the current digital storm. These are but some of the reasons that I think a lot about why lawyers now, as in other important times in our country’s history, must remain on call to play their special role. While, as Chief Judge Kaye mused, judges “hold up the banners of judicial dignity . . . impartiality and . . . independence,” the bar has “to hold up the other end.” Judges, she said, “do not conduct press conferences about cases; and they have no call-in radio and television programs to explain their rulings.” (We would say today, they neither post nor tweet.) But lawyers can and are needed to remind citizens about the enduring strengths of our constitutional system, and to help explain contentious decisions. For even when lawyers disagree with the ruling of a court, they differentiate, by training, between the responsible criticism that is important and useful for institutions of government and attacks that are either crudely ad hominem, or are directly intended to undermine faith and confidence in the institutions themselves. And in polarized times, it is our best and most public- minded lawyers -- lawyers who are no strangers to forensic arguments -- who are best able, setting aside their own politics and predilections, to bridge divides with contributions to the public debate that strengthen our underlying institutions by speaking, at least in some way, to the opposing concerns of fellow citizens on each side of a matter. As Dean Kronman put it, you lawyers “see facts clearly and . . . grasp the appeal of points of view one doesn’t embrace.” In so doing -- in helping citizens see past their differences and, importantly, come to understand the enduring value of their institutions -- such lawyers are the guardrails of our judicial system. Well, these are the musings of a judge who has spent many Septembers getting ready to teach a new crop of lawyers. I share them with you tonight. * * * In closing, let me return to where I began: with a thank you for your public service. The Western District of New York has a long and storied tradition. Its judges have played an important role in this nation’s history, and that role will rightly be celebrated in the upcoming year. But they couldn’t have done it -- and can’t continue to do it -- without the essential help of you, the organized bar. So on behalf of my Western District colleagues and all the judges of the Circuit, thank you for this fine evening. We look forward to working with you in the years ahead in our joint project to improve the administration of justice as stewards of our constitutional republic.

“[w]e Americans have . . . entrusted our lawyers with great powers and responsibilities and made them, to a remarkable degree, the stewards of our republic.”

Thank you so much, Chief Judge Wolford, for that kind introduction. It’s a great honor to be here tonight, with the judges of the Western District, and with all of you, esteemed members of the Western District Bar. Just a few months ago, I had the privilege, with Judges Wesley and Vilardo, to sit at the table with Terry Connors, on the night he received the Second Circuit’s American Inns of Court Professionalism Award, for his outstanding mentorship of the next generation of lawyers. It’s great to see him again tonight. And it’s great to have this opportunity to applaud tonight’s honorees. You’ve gone the extra mile in assisting the otherwise unrepresented; educating the next generation in civics and the rule of law; chairing and serving on the CJA panels and screening committees that are so essential to the Western District’s fulfilment of its judicial function. I very much appreciate your work to nurture our courts and to strengthen our country’s commitment to the rule of law. So I’m happy briefly to round out the program tonight. And I do mean briefly, because I have been made aware of the kick-off time. * * * The program tonight has put me and all of us, I expect, in mind of the special role of lawyers in sustaining our constitutional republic. I’ve taught law students for three decades now, with this thought increasingly in mind. Now, to be clear, I don’t intend to put the legal profession at the center of everything important to our country’s future in my brief remarks tonight. But at this time of year, when the seasons change and the school buses reappear, I am put in mind of how much our constitutional republic does depend on the commitment of the legal profession, in each generation, to safeguard, improve and renew our institutions and all that is best in our legal traditions. As Tony Kronman, former Dean of the Yale Law School put it, in an essay on professionalism that he wrote about 25 years ago,

The lawyers in this room are certainly aware of this stewardship. That’s why you’re here, even on the night of a Bills game. The Erie and Monroe County Bar Associations were founded, respectively, in 1887 and 1892, before the Western District had even come into being. You’ve collaborated on this dinner for more than three decades, providing an opportunity to recognize the service of your members, and to reflect on what your bar associations do to further the administration of justice. The Monroe County Bar Association takes as one of its particular missions promoting respect for and understanding of the law, and serving as the voice of the legal profession. In Erie County, your mission statement speaks similarly of achieving excellence in the practice of law and promoting respect for the rule of law. Your predecessors wanted to “elevate the standard of integrity, honor and courtesy in the legal profession and to cherish the spirit of camaraderie” among its members. And that sense of stewardship has prompted both Associations to work assiduously to promote attorney well-being, attorney education, and public access to justice. Today’s challenges to our governmental institutions can appear dispiriting. It is said that there is such polarization, that many have lost confidence not only in these institutions (including our courts) but in each other. In 2021, not so long ago, the National Intelligence Council issued its Global Trends Report, a report that it issues at the start of each new presidential administration for the purpose of assessing the global environment our country will face over the next 20- year time frame. That Global Trends Report warned, among other things, that our immersion in the digital world has increased the stress on democracies and on