Judge Barkett - The Independence of the American Lawyer

BEDELL LECTURE

The Independence of the American Lawyer

June 23, 2017

Rosemary Barkett

 

Even though this lecture has been given since 1986, and others have lauded Chester Bedell each year for some 30 plus years—including those who actually knew and practiced with him—I am not going to skip the opportunity to do so once more. 

His legal ability and integrity are well documented. He has been called the “quintessential trial lawyer” and “a lawyer’s lawyer” by his peers.  

But one of the most remarkable measures of his greatness is that he has inspired members of one of the greatest Bars in the world to stop for a few minutes every year to think about what is meant by that phrase: “the independence of the American lawyer.”

Out of all the tributes he received, I think Chester Bedell would have been most proud to know that he had moved us to talk about the issues raised in the lectures of the past.

Those lectures all express the common thought that in preparing for it, lecture, each speaker has been forced to contemplate the meaning of that phrase.

Some spoke of the need for lawyers to be independent from the power of governmental influence, or the institutional public, or from the influence of clients who push for unethical conduct.  

Some spoke about the need to develop and maintain access to courts; others, about defending the poor and the need for a brave and independent judiciary in addition to independent lawyers.

Several quoted Louis Brandeis’ concern that too many lawyers were simply tools of great corporations and neglected to use their powers for the protection of the people. 

Sandy D’Alemberte warned about the unbridled discretion of prosecutors and the uselessness of mandatory prison terms which achieved astronomical costs but never the goals they sought to accomplish.

Judge Perry talked about the flaws in our criminal justice system when he noted 292 post-conviction DNA exonerations while he served on the Innocence Project.

Two years ago, when I was asked to give this lecture, almost every one of these topics came to mind, and I do think that we must continually reflect on the progress made—or not—on each of these issues as we seek to achieve a more “just” society and a “more perfect union.”

But, perhaps, because of who I am and because of the time in which we now live, my focus landed on the fifth word of the topic of this annual speech: The Independence of the American Lawyer and what it means to be an independent American Lawyer in our constitutional democracy.  And I especially thought about what I thought it meant to me—a Syrian, Mexican immigrant.

I was born in Mexico of Syrian parents. My family came to Miami when I was six, and I grew up in a time and place where immigrants were proud to be immigrants and extremely proud to have become Americans.

Then as a lawyer and a judge, studying the Declaration of Independence and our Bill of Rights and applying them to actually enforce the principles upon which this country was founded made me even prouder to be part of this great experiment in government—a government that was built by immigrants, for the remarkable and actually expressed purposes of “establish[ing] justice” and securing the “blessings of Liberty to ourselves and our Posterity.”[1]

From the time of our revolution in 1776 to the present—well, the almost present—we have continuously and publicly recognized that we are, uniquely, a land of immigrants and refugees dedicated to welcoming those from different nations, creeds, and cultures and protecting their rights to life, liberty, justice, and equality.  George Washington said in 1776:

“The bosom of America is open to receive not only the Opulent and respected Stranger, but the oppressed and persecuted of all Nations and Religions; whom we shall welcome to a participation of all our rights and privileges. . .”

One hundred years later, the poem of Emma Lazarus’ inscribed on the Statue of Liberty remarkably echoes George Washington’s words promising a “world-wide welcome” to the tired, the poor, and the masses who were seeking to “breathe free.”

President Lyndon Johnson noted: 

“Our beautiful America was built by a nation of strangers. … The land flourished because it was fed from so many sources—because it was nourished by so many cultures and traditions and peoples.”

George W. Bush articulated the same thought when he said:

“Nearly all Americans have ancestors who braved the oceansliberty-loving risk takers in search of an idealthe largest voluntary migrations in recorded history. . . . Immigration is not just a link to America’s past; it’s also a bridge to America’s future.”

Today, our obligation to care for immigrants and refugees derives from much more than just tradition.  In 1968, we signed the 1967 Protocol to the United Nations Convention Relating to the Status of Refugees,[2] which was developed to assure that a country cannot expel or return a “refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, political opinion, or his membership in a particular social group.”[3] 

And then in 1980 Congress gave effect to this treaty and the international legal obligations we assumed by passing the Refugee Act.[4] Thus, pursuant to our laws a person has the legal right under both international law and our domestic statutes to ask for asylum and to receive due process protections to effectuate that right.

The United States also ratified the United Nations Convention Against Torture[5] which prohibits any country from returning, extraditing, or repatriating any person to a state “where there are substantial grounds for believing that he would be in danger of being subjected to torture.”[6] 

Thus, we have passed laws and signed Treaties, which our Constitution defines as part of the Law of the Land,[7] enshrining our original ideals into law to welcome “the poor”, the “homeless,” and the persecuted.

Which brings me back to the concept of being independent, American, and a lawyer—especially one who was welcomed into this country in the historic spirit of the ideals of our Founding Fathers.

Senator John McCain recently captured the essence of our international role as Americans and America in an Open Letter titled “Why We Must Support Human Rights”.[8] He said:

In the real world, . . . the demand for human rights and dignity, the longing for liberty and justice… the hatred of oppression and corruption … is reality...

We are a country with a conscience. We have long believed moral concerns must be an essential part of our foreign policy, not a departure from it. . . .

Our values are our strength and greatest treasure. We are distinguished from other countries because we are not made from a land or tribe or particular race or creed, but from an ideal that liberty is the inalienable right of mankind and in accord with nature and nature’s Creator.

Senator McCain’s eloquence reflects how I have always felt as an American.  But, having ideals does not blind us to the fact that we are also human and, thus, we know that upholding ideals is never easy.

No matter how good we are or try to be, history shows that we will be tempted to ignore our fundamental principles and our laws, or to bypass the ideals we may sometimes think are too hard to observe, especially in the name of public safety.  It is the continuing effort to acknowledge and correct mistakes that makes a person or a country great.

Our continuing effort to rectify errors can be seen throughout our history in examples of great legal achievements that occurred, but only after astronomical failures.  For example, Brown v. Board of Education[9] was preceded first, by three abhorrent decisions: First, Dred Scott v. Sanford,[10] in which the then Chief Justice declared that all blacks—slaves as well as free—were not and could never become citizens of the United States;  Second, The Civil Rights Cases,[11] striking down the Civil Rights Act of 1875 and permitting racial discrimination in businesses and public accommodations, even after the 13th 14th and 15th Amendments were passed; and, finally, Plessy v. Ferguson,[12] upholding state segregation and leading to decades of Jim Crow laws. 

I could add the history of the lengthy failure to grant women human rights—including the right to be free from gender violence as well as several other examples of failures in other areas throughout our history.

We were not great when we made and/or supported those positions.  But our history also tells us that when we have erred, we have worked hard to correct the error.

And we have become a greater country, not because we have succeeded in achieving our goals of equality and justice—which we obviously have not yet done.  We achieve greatness when we do not discard the ideals of our Founders after every failure, but rather continue to cherish those ideals, recognizing our shortcomings, and working harder to achieve the justice and equality we have sought from our very beginnings. 

Thus, we look to our history, as well as to our future, not only to remember and renew the ideals of our Forefathers, but also to avoid the mistakes of the past. And today, my focus is on working to assure that our immigration and refugee policies reflect our values, ideals, and legal obligations and not reflect the lapses that have sometimes occurred in the past.

We have, for example, previously precluded entry to the United States based only upon fear and racism.  For the first 100 years of our history we had open immigration. Then, in1882, Congress passed the Chinese Exclusion Act,[13] the very first restriction on immigration into the United States, which prohibited the immigration of all Chinese persons.  The Act was supported and advanced by entities like the “Supreme Order of Caucasians,” whose primary focus was to evict the Chinese from the United States for no other reason than that they were Chinese.  And the Act passed—notwithstanding the efforts of the anti‑slavery/ Republican Senator George Hoar who described the Act as “nothing less than the legalization of racial discrimination.”[14]  It took until 1943 for the Chinese Exclusion Act to be finally repealed.[15]

There were other periodic attempts to use immigration laws to implement racism and bigotry. For example, the Emergency Quota Act of 1921[16] and the Immigration Quota Act of 1924[17] restricted immigration by implementing quotas based on national origin.  These laws aimed to reduce immigration from outside the Western Hemisphere, specifically targeting those from Southern and Eastern Europe, especially Italians and Eastern European Jews, and virtually closing the border to anyone from Africa and Asia.[18]  

The caps imposed by these Acts were the legal basis the United States cited in 1939 to reject the ship carrying approximately 900 mostly Jewish refugees, fleeing Nazi Germany and begging for asylum in Miami, Florida.[19] These Acts too were later repealed, but not in time to assist those refugees. When repealing the quota systems some forty-years later,[20] Lyndon Johnson recognized we had gone too far, saying “for over four decades the immigration policy of the United States has been twisted and has been distorted by the harsh injustice of the national origins quota system under which families were kept apart . . . .”[21]

And I can think of no clearer consequence of the abandonment of values and ideals than our appalling seizure and captivity of Japanese Americans and immigrants during World War II. The Supreme Court’s decision in Korematsu v. United States[22] baselessly upheld the authority of the Government to imprison people arbitrarily and indefinitely solely on the basis of national origin. It took us until 1988, with the passage of the Civil Liberties Act,[23] to formally recognize that the internment was meritless and based solely on “race prejudice, war hysteria, and a failure of political leadership.”[24]

And now, although our own historical values coincide with our treaty commitments to grant asylum and to provide refuge to those who fear persecution or discrimination or death in their own countries, we are not meeting our obligations in either regard.

Today, many asylum seekers are subjected to expedited removal or are indefinitely detained, effectively depriving them of their due process rights.  Others are not even given the chance to request asylum in our country.

And the problem of accepting and housing refugees has generated a worldwide crisis which cannot be ignored, simply because it may not be in our direct line of vision here in the United States.

The magnitude of the problem for refugees fleeing death and terrifyingconditions in war-torn countries or dangerous in other ways, cannot possibly be exaggerated.  Nor do I minimize the problems faced by countries attempting to balance liberty, justice and equality with the safety of their citizens.

In Lebanon, one in four people are refugees, the highest ratio in the world.  Lebanon’s infrastructure, barely adequate before the refugee crisis, is overwhelmed with the tremendous and unexpected influx of massive numbers of refugees. The biggest burden of the influx of refugees is being borne by the countries least able to assist them.  And on the other hand, countries with the greatest excess of wealth are hardly doing enough—or are impeding refugees and asylum seekers from finding the sanctuary to which they are entitled.

I wish I had the time to paint a clear picture, for example, of the thousands and thousands of children, who have crossed alone into the United States, many of whom are entitled to asylum or refugee status, but are completely precluded from or cannot maneuver through the complex system we have established in order to obtain the legal remedies to which they may very well be entitled.

As lawyers, we have a distinctive vantage point and opportunity.  We can combine our historical appreciation for inherently vulnerable classes, our unique knowledge of law, and our access to the fora of legal change to raise these issues and fight for them and/or support those who do.

I know many here are neither uninformed nor inactive, and I applaud you for your example and your pro-bono efforts and the example and efforts of scores of lawyers and their supporters who recently volunteered, collectively, hundreds of hours at airports assuring the due process rights of those entering the country.

As an American, immigration and the treatment of immigrants is a topic that is very meaningful to me. As a Mexican and Syrian immigrant, the face of two of the Peoples that have been recently maligned and defamed, it is even more meaningful to me.  I hope that I, and my family, can serve as a reminder that being Mexican or Syrian or a member of any religion, does not automatically make one a terrorist or a threat to any country—and that Mexicans, Syrians, or members of any other ethnicity can become extremely good citizens of any adopted country.

Let me end the way John McCain ended his Open Letter saying:

To view foreign policy as simply transactional is more dangerous than its proponents realize. Depriving the oppressed of a beacon of hope could lose us the world we have built and thrived in. It could cost our reputation in history as the nation distinct from all others in our achievements, our identity and our enduring influence on mankind. Our values are central to all three.[25]

I have loved the identity and reputation this country has held throughout the years—not because of our “might”—but because we were created to establish justice and were made from an ideal that liberty is the inalienable right of mankind.

We have promised in many ways to assure that liberty to those who face persecution, torture or death in their countries. 

I think we should keep our promises.

Thank You.

 

 



[1] U.S. Const. pmbl.

[2] UN Protocol Relating to the Status of Refugees, 31 January 1967, 606 U.N.T.S. 267.

[3] Id. at art. 33.

[4] Refugee Act of 1980. Pub. L. 96-212. 94 Stat. 102. 17 March 1980

[5] UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, 1465 U.N.T.S. 85.

[6] Id. at art. 3.

[7] U.S. Const. art III, § 2.

[8] John McCain, Why We Must Support Human Rights, N.Y. Times, May 8, 2017, at A21.

[9] 347 U.S. 483 (1954).

[10] 60 U.S. 393 (1856).

[11] 109 U.S. 3 (1883).

[12] 163 U.S. 537 (1896).

[13] An act to execute certain treaty stipulations relating to Chinese, Pub.L. 47-126, 22 Stat. 58 (1882) (repealed 1943)

 

[14] Roger Daniels, Coming to America: A History of Immigration and Ethnicity in American Life 271 (2002).

[15] The Magnuson Act (An Act to repeal the Chinese Exclusion Act, to establish quotas, and for other purposes), Pub.L. 78-199; 57 Stat. 600 (1943).

[16] Emergency Quota Act of 1921, Pub.L. 67-5, 42 Stat. 5 (repealed 1965)

[17] Immigration Act of 1924, Pub.L. 68-139, 43 Stat. 153, 154-55 (repealed 1965)

[18] See John A. Scanlan, Immigration Law and the Illusion of Numerical Control, 36 U. Miami L. Rev. 819, 823–26 (1983).

[19] See Voyage of the St. Louis, United States Holocaust Memorial Museum, https://www.ushmm.org/wlc/en/article.php?ModuleId=10005267 (last visited May 15, 2017). In May 1939, approximately 930 refugees, most of them Jewish, boarded the St. Louis in Hamburg, Germany to escape Nazi persecution.  The refugees had applied for American visas and planned to stay in Cuba until the visas were approved.  However, Cuba permitted only about 30 passengers to disembark and enter.  The St. Louis then continued to the Florida coast requesting entry for the refugees.  After being denied entry in Florida, the St. Louis continued to the Eastern coast of Canada, which likewise denied entry to all of the refugees on board.  The refugees were finally returned to Europe and accepted by Belgium, the Netherlands, the United Kingdom, and France.  During the Holocaust, approximately 250 of the refugees that had returned to continental Europe were killed.

[20] Immigration and Nationality Act of 1965, Pub.L. 89-236, 79 Stat. 911 (1968).

[21] President Lyndon B. Johnson, Remarks at the Signing of the Immigration Bill (Oct. 3, 1965).

[22] 323 U.S. 214 (1944).

[23] Civil Liberties Act of 1988, Pub.L. 100-383, 102 Stat. 904

[24] Commission on Wartime Relocation and Internment of Civilians, Personal Justice Denied: Report of the Commission on Wartime Relocation and Internment of Civilians. (Tetsuden Kashima and United States, 2011).

[25] John McCain, Why We Must Support Human Rights, N.Y. Times, May 8, 2017, at A21. This sentiment echoes Dean Acheson’s speech in 1951 wherein he likewise eloquently concludes

“The greatest asset we have in all the world—even greater than our material power—is the American idea. No one needs to tell an American audience all the things that this holds for us. It is so much a part of our everyday lives that we do not stop to define it, or to put it into packages for export. But throughout the world, wherever people are oppressed, wherever people dream of freedom and opportunity, they feel the inspiration of the American idea.”

 

MAIN OFFICE
3000 Biscayne Blvd, Suite 400
Miami, FL 33137
T 305-573-1106
F 305-576-6273
E-Mail: info@aijustice.org

WASHINGTON D.C. OFFICE
10 G Street NE.
Suite 710
Washington, DC 20002
T 202-248-5080

About Us:

AI Justice is an award-winning non-profit law and advocacy firm that protects and promotes the basic human rights of immigrants. In Florida and on a national level, we champion the rights of unaccompanied immigrant children; advocate for survivors of trafficking and domestic violence; serve as a watchdog on immigration detention practices and policies; and speak for immigrant groups who have particular and compelling claims to justice.