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The Legal Profession Wants to Help Heal America's Divisions

Lawyers and judges have been mostly quiet during the current struggles over race, politics and diversity. Now, the legal profession is speaking out on how to bring the nation together.

If there is one thing that Americans can agree on, it is that we are profoundly divided as a nation. According to a poll last year, “85 percent of registered voters describe Americans as being greatly divided in their values.” A 2019 poll found that “83 percent of Americans believe the country is divided by race and ethnicity.”

Americans would also agree that healing the divisions in our country will take significant work. It will take the combined efforts of elected officials, community leaders, civic organizations, religious leaders and educators. And, although we do not often think of them in this way, judges and lawyers can play an important role in easing the divisions in our country.

In July, The Journal of Appellate Practice and Process addressed the issue asking, “What can judges and lawyers do to ameliorate the divisions in our country?”  In a series of prefaces and articles, experts try to answer that difficult question. For example, Kenneth B. Morris Jr., a descendant of Frederick Douglass and Booker T. Washington, gives insight into what his ancestors might think of the challenges our country faces today. He notes that although Douglass and Washington were not lawyers, "they saw America’s path out of the darkness through the touchstone of the fundamental ideals enshrined in the Declaration of Independence and Constitution and believed earnestly in the America espoused therein. Key to this hopeful vision was an unwavering appeal to those in positions of power and a particular duty to advance the cause of liberty while upholding, preserving and defending these ideals and actively champion them in their communities."

Guided by history, Morris emphasizes the importance of collaboration between the judiciary and other groups to “restore faith, increase understanding and promote public confidence in the integrity of our system of justice and fairness.” He invites judges to partner with his organization, the Frederick Douglass Family Initiatives, to help address this very challenge. Undoubtedly, there is a role for state and local government in those efforts.

Likewise, Kari C. Kelso, public education and community outreach administrator for the United States Court of Appeals for the Ninth Circuit, and Professor J. Clark Kelso discuss the need for civic education, stating that the “overall reduction in the public’s knowledge and understanding of basic principles of government and democracy has led to a virtual collapse in practices of civil discourse over the last several decades.” They see judges and courts playing an important role in civics education, especially given their nonpartisan role in our system of government. They share several examples of ways courts can participate in civic education, including outreach to K-12 classrooms, something that inevitably requires coordination with local government.

Dean Erwin Chemerinsky offers a suggestion that could be implemented at the state level — a merit system for selecting judges. While Dean Chemerinsky’s article is aimed at the federal judicial confirmation process, his reasoning also applies in states that lack a merit system for selecting judges.

These three examples are just a snippet of the thoughtful discussion and solutions presented in the issue. Some of the solutions, like that of Dean Chemerinsky, would involve significant structural changes to set institutions or practices, like that of selecting federal judges. Others, like the simple solution — “be kind to your neighbor” — are ones that we can all institute.

Ameliorating the divisions in our country won’t be easy, but it can happen, as history has shown. Doris Kearns Goodwin’s excellent biography, Team of Rivals: The Political Genius of Abraham Lincoln, recounts how Lincoln brought together his rivals for the 1860 Republican presidential nomination to form a diverse, strong cabinet that was ultimately capable of bringing down slavery and reuniting the union. And while Lincoln’s Cabinet was decidedly male and white, Lincoln also formed a friendship with and sought the advice of Frederick Douglass. Goodwin recalls a time when Douglass and Lincoln were meeting to discuss several issues. While they were talking, Lincoln was interrupted by a messenger telling him that the governor of Connecticut wanted to meet with him. Lincoln replied that the governor could wait because he wanted “to have a long talk with [his] friend Douglass.” Douglass later told a friend, “He treated me as a man; he did not let me feel for a moment that there was any difference in the color of our skins.”

The special issue of The Journal is available free on our website.

Tessa L. Dysart is the assistant director of Legal Writing and clinical professor of Law at the University of Arizona James E. Rogers College of Law. Since July 2020, she has also served as the editor-in-chief of The Journal of Appellate Practice and Process. She is the co-author of the third edition of Winning on Appeal: Better Briefs and Oral Argument and the co-editor of Law Teaching Strategies for a New Era: Beyond the Physical Classroom. Although her work post-law school has been largely federal in nature, prior to law school she worked at both the county and state government levels.

Governing's opinion columns reflect the views of their authors and not necessarily those of Governing's editors or management.
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