Who Will Be Democracy’s Heroes? Who Will Save The Rule of Law? Trial Judges? Lawyers? Citizens?

Who Will Be Democracy’s Heroes? Who Will Save the Rule of Law? Trial Judges? Lawyers? Citizens?

We are in a Constitutional Crisis. The current Administration has no respect for the Rule of Law and takes actions on a daily basis that are specifically directed to undermine our American Democracy. Even the Attorney General, Pam Bondi, a lawyer, who once upon a time (supposedly) swore to uphold the Constitution, engages in absolute lawlessness, blatantly ignoring Court Orders,  which is not only undermining our Democracy but is eroding it daily. As a lawyer who took the same oath, what I am seeing on a daily basis is disheartening, frightening, shocking and scary. Every day I ask: What can we do to stop it?  I also have found myself asking: Who will be the Heroes?  Who will be the Heroes of Democracy who will, in the end, be the ones who can honestly say their actions saved our Country?  Will it be the judges?  Will it be lawyers?  Will it be ordinary citizens?

Trial Judges-

The first persons who are in the position to stop this attack  on our Democracy are Federal trial judges, in District Courts. This is because the lawsuits being filed to stop the attacks on our Constitution and our Rule of Law are being filed in Federal District Courts. Unlike many other government actors, many (but not all) Federal District Court Judges have shown, through their Orders, a willingness to put an end to the Administration’s shenanigans and say “the buck stops here” by issuing injunctions that prohibit unlawful, unconstitutional Executive Orders from having any force or effect. Examples of these trial judges are Judge Paula Xinis, United States District Court of the District of Maryland, who issued an Order barring the Trump Administration from deporting Kilmar ABrego Garcia until he has due process through a hearing and that the Administration is prohibited from “removing him from the Continental United States until further order of the Court.” U.S. District Judge Charles Breyer just held that Trump’s use of thousands of federalized California National Guard members and U.S. Marines to provide protection to federal agents during an aggressive immigration crackdown in the Los Angeles area violated Federal Law, the Posse Comitatus Act, a 19th Century law that generally prohibits the use of troops for domestic law enforcement purposes.  Judge Breyer wrote in his opinion: “President Trump and Secretary Hegseth have stated their intention to call National Guard troops into service in other cities across the country, thus creating a national police force with the President as its chief.” Judge Sparkle L Sooknanan, a Washington Federal District Court judge,  ordered an emergency halt to a plan by the Trump administration to deport a group of nearly 700 unaccompanied Guatemalan children back to their home country after immigrant advocates lawyers called the plan “illegal”.  These judges are heroes, and there are many other examples of District Court Judges towing the line and not being complicit in the erosion of the Rule of Law.

Lawyers-

Lawyers are uniquely posed and motivated to protect our Democracy.  We are the only ones who have the power to issue subpoenas through the judicial process, we can compel someone’s attendance at court, we can sue lawbreakers, we can make a bad actor have to respond for his conduct in front of a judge.  As Georgia Lawyer Emmet Bondurant has often said, because we, as lawyers, have this unique ability that non-lawyers do not have, we must use it for good and devote time to important endeavors like saving Democracy. The American Bar Association stood up for the Rule of Law by filing suit against the Trump Administration for its Law Firm Intimidation Policy, in which the Administration sought to prevent certain law firms from representing clients the Administration didn’t like or who the Administration felt had hurt its feelings. The suit asks a federal court to declare unconstitutional the Trump administration’s ongoing unlawful policy of intimidation against lawyers and law firms and to enjoin the government from enforcing the policy. As the ABA correctly pointed out: “Attacks on the legal profession are uniquely destructive because of the critical role that lawyers fulfill in the constitutional system of our country, the lawsuit notes. Without skilled lawyers to bring and argue cases, the judiciary cannot function as a meaningful check on the executive branch. ”

Two more examples of lawyers stepping up are two non-government entities who have decided enough is enough and have rolled up their sleeves to take action to prevent the destruction of our Democracy and to stand up for the Rule of Law. One is the recently formed Georgia Lawyers for the Rule of Law (GLRL), created by Georgia Lawyers Seth Kirshenbaum and Lynne Borsuk. Seth and Lynne will be our guests on our podcast See you In Court next month.  Part of GLRL’s mission is to speak out against lawless efforts to erode our Democracy. GRLR states:  “Laws are the foundation of a civilized society. In order for a nation to function in a civilized and effective way, there must be rules of conduct. All citizens are bound by these rules for the greater good. This principle is known as the Rule of Law and ensures that we are a nation of laws, not of men.  In order for a nation to function in a civilized and effective way, there must be rules of conduct. All citizens are bound by these rules for the greater good. This principle is known as the Rule of Law and ensures that we are a nation of laws, not of men.”  So true. If you are a lawyer, I strongly urge you to join this important group of Georgia Lawyers and roll up your sleeves and join this righteous fight.

Another organization doing real work to preserve the Rule of Law is Lawyers for Good Government (L4GG). Its mission:  “L4GG is a community of 125,000 lawyers, law students, and activists fighting to protect equal rights, ensure equal justice, and create equal opportunities for every person. We identify where lawyers can make the greatest impact and mobilize them to defend democracy and the rule of law, protect civil and human rights, and advance environmental justice for all Americans.”  L4GG provides experienced attorneys with the infrastructure and support they need to serve as primary counsel or co-counsel on high-impact constitutional litigation.

Professor Steve Vladeck, Professor of Law at Georgetown Law, is a scholar of the Supreme Court.  He appeared on our podcast, See You In Court, where we discussed the shadow docket of the United States Supreme Court and whether he thought we were in a Constitutional Crisis (which is a question he gets relentlessly).  His advice is for lawyers to educate the public about what is happening, to speak out and make everyone aware and knowledgeable. Professor Vladeck is doing just that with his newsletter “One First” (named after the street address of the United States Supreme Court) and even on Tik Tok. I urge you to follow Professor Vladeck on Tik Tok and to subscribe to One First.

Citizens- 

This week a grand jury in Washington, D.C. refused to indict a man who threw a ham sandwich at an ICE individual. These ordinary citizens said, in the only way they could and holding more power than any District Attorney, put a stop to outrageous, petty retribution for a silly “offense” that should not offend an individual wearing full battle regalia.  Poor Baby!!  His feelings were hurt!  So the District Attorney said let’s indict him!  We’ll show him and anyone to doesn’t agree with the deployment of the National Guard and ICE to our Nation’s Capital. And the Grand Jury, ordinary, everyday, walking around citizens, said “No. Enough.” Way to go, D.C. Grand Jury!

Another example of a citizen leading in this time of crisis is Dr. Demetre Daskalakis, who was director of the National Center for Immunization and Respiratory Diseases at the CDC. He said that his resignation was due to the fact that recent policy changes threatened lives and there had been an “intentional eroding of trust in low-risk vaccines.” He said he’s “unable to serve in an environment that treats CDC as a tool to generate policies and materials that do not reflect scientific reality and are designed to hurt rather than to improve the public’s health.” In his resignation letter, Dr. Daskalakis said  “The nation’s health security is at risk and is in the hands of people focusing on ideological self-interest. I wish the CDC continued success in its vital mission and that HHS reverse its dangerous course to dismantle public health as a practice and as an institution. If they continue the current path, they risk our personal well-being and the security of the United States.”

Maybe it will be citizens who protest in public and  march with others in unity to stand up for Democracy that will save our country. We have good friends, Michael and Craig, who never miss an opportunity to walk with others in a protest march, carrying signs in full exercise of their 1st Amendment rights and who will always speak up and speak out to right an obvious wrong. They are not idly standing by while Rome burns. Some citizens in California shouted “Shame! Shame! Shame!” as they marched back ICE goons who were trying to illegally kidnap people.  They stood up to this illegal police/military force.  Ordinary citizens include our religious leaders. Reverend Dr. Bryon Thomas, Senior Pastor at Glenn Memorial United Methodist Church, uses his pulpit to urge action among us. He has said:

“God’s Word is designed to inspire us to fight against evil, to inspire us to speak truth against unrighteousness, to create communities of solidarity with the oppressed and dispossessed, to undo systems of exploitation, to fight for peace when the blood thirsty and the greedy and the powerful seek to promote and profit from war under the guise of Patriotism. To cultivate an atmosphere where the Beloved Community can bloom and to echo again and again and again those words of the prophet Amos to “let Justice roll down like water and Righteousness like an ever-flowing stream.”

Reverend Dr. Thomas said this about this times we are living in right now:

“We are in destabilizing times, times that seek to neuter our legal system, and usurp Congress and vanquish agencies that are responsible for oversight, that use the Justice system as a personal law enforcement to carry out political agendas and vendettas, that falsify crime statistics and deploy the military for the purpose of addressing manufactured crises. It is a time when intimidation and bullying and coercion have become normative and there is the not-so-subtle effort to rewrite history to eliminate the contributions of others not realizing that just because you do not write about the Trail of Tears doesn’t mean the Trail of Tears didn’t really happen. There seems to be an outright war on public health and how immigrants and others are being treated is nothing short of immoral. This is not an enemy from the outside. This is something that is occurring from within. It happens when the moral fiber of a Nation becomes weak and part of when the moral fiber of a Nation becomes weak is when a church allows itself to be co-opted so that it no longer gives voice to that which is right and Holy and moral and just.”

Fortunately, we haven’t seen this attack on our Democracy so much here in Georgia. And if we do, I have a strong feeling our trial judges and our Supreme Court Justices will not permit it to go very far. Chief Justice Nels Peterson said in his investiture as Chief Justice this about the Rule of Law:

“Throughout history, there have been only two ways of resolving disputes. The first? The bigger guy with the bigger stick gets what he wants. The second? We establish a body of rules that everybody has to obey. And that neutral standard that applies to everyone is what we follow and what wins in a context, as opposed to the one who is strongest, richest, or most powerful. That is the rule of law. Because of it, everyone is on an equal playing field. Because of it, we get equal rights in this country, and historically disadvantaged groups get a seat at the table. Because of it, no matter what your circumstances, there is one place you stand equal to all other citizens, and that is a court of law.

[T]he rule of law will still require defending. It always has.

The judicial oath calls Georgia judges to do equal rights for the poor and the rich – in other words, for the weak and the powerful. Of course, the rule of law is rarely tested when the powerful win in court. Outcomes that go the other way can sometimes be a different matter.

The rule of law has always been fragile, because by its very nature it requires the strong and the rich to accept outcomes in favor of the weak and the poor. It requires popular majorities of all kinds to accept outcomes in favor of small, unpopular minority groups. And it requires the most powerful of all – the government – to accept and obey limits on government power.”

What are you prepared to do?

Here are some suggestions from Chief Justice Peterson:

“Each of you must do your part to defend the rule of law, whatever that might be.

• • • If you don’t have anything to do with the legal system, you still have a part. If you get jury duty, do it – don’t try to get out of it. And when you hear about judicial decisions whose outcomes you don’t like, don’t reflexively question their legitimacy. It’s ok to disagree – even protest – but the rule of law cannot survive a public that views as illegitimate any judicial decision with an outcome they don’t like.
    • If you’re a lawyer, follow the rules. But also be prepared to represent unpopular parties or causes that need representing, even if doing so risks your reputation and practice.
    • And if you’re a judge, stay in your lane. But within that lane, have the courage to fulfill your oath, to be truly independent, and to decide cases without fear, favor, or concern for public opinion.”

Who will be Democracy’s heroes?

If you ever wondered what you would have done if a Fascist dictator attempted to take over America, to eliminate the Rule of Law and install Military Law instead, to eliminate due process of law and eradicate the United States Constitution and your undeniable rights under it, to destroy the concept of equal rights under the Law… now is that moment. You’re doing it right now. 

 

Robin Frazer Clark is a trial lawyer who pursues justice for those who have personal injury claims as a result of being injured in motor vehicle wrecks, trucking wrecks, defective products, defective maintenance of roads, premises safety, medical malpractice and other incidents caused by the negligence of others.  Ms. Clark was the 50^th President of the State Bar of Georgia, a Past President of Georgia Trial Lawyers Association, a Past President of the Lawyers Club of Atlanta and has practiced law in Georgia for 38 years. She is a Board Member of the International Society of Barristers, a Fellow of the American College of Trial Lawyers, a Fellow of the International Academy of Trial Lawyers and a Fellow of the American Board of Trial Advocates. Ms. Clark is listed as one of the Top 50 Women Trial Lawyers in Georgia and is a Georgia Super Lawyer. Ms. Clark is the co-host of the podcast “See You In Court.”

Robin Frazer Clark ~ Dedicated to the Constitution’s Promise of Justice for All.