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Remarks by the Hon. Debra Ann Livingston NYCLA Annual Gala
New York County Lawyers Association Annual Gala
Remarks by the Hon. Debra Ann Livingston
Chief Judge, U.S. Court of Appeals for the Second Circuit
March 6, 2024
I am happy to round out the program this evening and, along with my very esteemed colleague, Chief Judge Wilson, to thank the New York County Lawyers Association on behalf of the appellate judges of the state and federal courts of New York. We very much appreciate tonight’s celebration, and all that the Association has done, over many years, to nurture our courts and to strengthen our country’s commitment to the rule of law. Since 1908, the New York County Lawyers Association has been, as its motto proclaims, the great democratic bar association of the City of New York, welcoming all lawyers who seek, through service to the profession and to the public, to fortify and uphold our judicial institutions. The appellate judges of New York have noticed, appreciated, and come to rely on your work.
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I walked over here this evening from one of our City’s great law schools, the Fordham University School of Law, where the Second Circuit’s judges were in residence today, at the School’s invitation, to teach classes and to speak with law students. Now, 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 spending a day teaching aspiring young lawyers – first-year law students, to be precise – certainly puts one 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 put it, about 25 years ago, “[W]e Americans have . . . entrusted our lawyers with great powers and responsibilities and made them, to a remarkable degree, the stewards of our republic.”
The lawyers in this room are certainly aware of their stewardship. In fact, the history of the New York County Lawyers Association is a testament to how lawyers in each generation step up to meet their civic responsibilities. At its founding, your predecessors banded together at Carnegie Hall to form a new kind of bar association, one that would better the bar itself by promoting inclusivity and pulling down invidious barriers to membership in an association. In the wake of 9/11, I expect it was a sense of stewardship that prompted members of this Association to work so assiduously to extend pro bono help to the families of 9/11 victims, and even when the Association itself had lost use of its downtown offices. And most recently during the Covid pandemic, the Association continued and even expanded programming, going online to help lawyers help their clients in the midst of that tumultuous time, and thereby also helping the courts remain open for business.
Today’s challenges to our judicial and governmental institutions are of a different sort. It is said that there is such polarization, that many have lost confidence not only in our institutions, but in each other. In 2021, the National Intelligence Council issued a Global Trends Report, a report that is issued at the start of each new presidential administration, that warned, among other things, that our immersion in the digital world has led to increasing stress and contest for our democratic institutions. Our unprecedented connectivity, while potentially of great benefit to humanity in the long run, today exacerbates political and ideological tensions, facilitating our retreat to information silos, “limit[ing] [our] understanding of alternative perspectives,” and prompting “divis[ion] over core values and goals” in ways that can endanger our capacity to work together on behalf of a common civic good.
Not that our governmental institutions, and our judicial institutions, in particular, have not faced such challenges before. I read a fine lecture by Judith Kaye last week, 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 and in governmental institutions more broadly: “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 isn’t new – what Chief Judge Kaye called the problem of “soundbite slap[s]” to 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. And looking at the confluence of circumstances – not only the digital revolution, but the pandemic, the erosion in civic education, all the many other challenges to our institutions today – no one can be complacent that these institutions, having weathered bad times before, will easily pass through the current digital storm.
But at this moment, thanks to the New York County Lawyers Association, I have the opportunity to speak, in real life, to real people. Let me now suggest to you that in these times, as in other important times in our country’s history, lawyers must remain on call to play their stewardship role. Some 25 years ago, Chief Judge Kaye mused that while the judges were to “hold up the banners of judicial dignity . . . impartiality and . . . independence,” the bar was “to hold up the other end.” Judges, she said, “do not conduct press conferences about cases; and they have no call-in radio and televisions programs to explain their rulings.” (We would say today, they neither post nor tweet.) But lawyers can, and are needed to, help remind citizens about the enduring value of our constitutional system, and to explain contentious legal 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 courts and judicial officers, and attacks that are either crudely ad hominem or are directly intended to undermine faith in important governmental institutions.
And in polarized times, it is our best and most public-minded lawyers (who are no strangers to forensic arguments) who may be best suited to help bridge divides with contributions that speak, at least in some way, to the opposing concerns of our fellow citizens. As Dean Kronman once 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 value of their institutions – such lawyers are the guardrails of our constitutional republic.
Well, these are the musings of a judge who has spent the day in conversation with first-year law students. And I share them with you.
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In closing, let me return to where I began – with a thank you on behalf of my Court for tonight’s celebration. The students today asked me what is the best thing about being a judge on an appellate court – in particular, on my Court, with its 28 judges, active and senior, appointed to judicial office by a total of nine different presidents over a period spanning some 50 years.
I said, without a doubt, that I treasure the fact that my job is a collaborative one – that I have the opportunity, and in fact the obligation, to conference with my talented colleagues to arrive at a result. To be sure, we don’t always agree – although the great majority of our decisions are unanimous. But agree or not, there is no judge on my Court who hasn’t discovered, as Learned Hand once put it, that “[t]he joint judgment of three is worth much more than three times the judgment of one.” It’s an extraordinary thing to work with my colleagues, with their broad and varied experience, their insight and learning, and their incredible commitment to getting it right, and to serving the public good. On behalf of these colleagues, thank you for this fine evening. And 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.
[1] Anthony T. Kronman, Professionalism, 2 J. Inst. for Study Legal Ethics 89, 94 (1999).
[2] National Intelligence Council, Global Trends 2040 (2021), https://www.dni.gov/files/ODNI/documents/assessments/GlobalTrends_2040.pdf.
[3] Id. at 2–3, 73–75.
[4] Judith S. Kaye, Safeguarding a Crown Jewel: Judicial Independence and Lawyer Criticism of Courts, 25 Hofstra L. Rev. 703, 705 (1997).
[5] Id. at 706.
[6] Id. at 715.
[7] Id. at 711–12.
[8] Id. at 707
[9] Anthony T. Kronman, Professionalism, 2 J. Inst. for Study Legal Ethics 89, 92 (1999).
[10] Establishment of a Commission on Ethics in Government: Hearing Before the S. Special Subcomm. of the S. Comm. on Labor and Public Welfare (June 28, 1951) (statement of the Hon. Learned Hand, Chief Judge of the Second Circuit).