
Good morning. I was delighted to
be asked to speak with you today. Chief Justice
Rogers, Associate Justices, distinguished
members of the bench and bar, thank you for
having me here to celebrate Law Day with
you.
For 220 years, the judicial branch has been
an anchor in the friction and abrasion of what
Abraham Lincoln called “the race of life.” The
nation’s judicial landscape is replete with
examples of how our courts consistently
administer justice with steadfast honor and
unwavering independence.
Though we are
separated by
geography, all
of us are tied
together by the
shared thread of
public service
and united by a
common mission –
the
administration
of equal
justice.
You know, even though there are
30,000 state and federal judges in our nation’s
civil and criminal courts – including about 200
state judges here in Connecticut – sometimes it
is hard to look at the road ahead and not feel
isolated, overwhelmed by the challenges that
seem to wait around every bend. It is the
loneliness of command, which I am sure many of
you have felt. There is never enough money,
there is never enough time, there is never
enough help. And yet, there are so many waiting
at our doors, seeking refuge in the shelter of
justice. Some days it is almost impossible to
see how we can take care of all of them – simply
to “do” justice. And with 10,000 lawyers in
Connecticut, I am not sure you have enough. Can
we get a few more admitted to the Bar or what?
We hear lots of talk about
“caseloads,” but we should all understand that
our decisions have an impact on real people’s
lives. I don’t know whether you’ve noticed, but
this whole task of judging revolves around
courage – your courage. The key questions of the
judiciary have been: Who has political courage?
Who’s willing to fight? Who has the resolve to
lead in challenging times?
As we
celebrate this year the bicentennial of Abraham
Lincoln’s birth, I must tell you that, for me,
he has always exemplified the foundations of our
society: character, leadership, justice and a
commitment to excellence in whatever one
endeavored. He was imbued with political
courage.
We live in an increasingly negative culture.
We cannot allow the detractors and the naysayers
to undermine the delicate balance that has been
crafted among the branches of government.
As Lincoln
said to the Congress and the American people
during the Civil War, “It is not can any of us
imagine better. But can we all do
better? … The dogmas of the quiet past are
inadequate to the stormy present. The occasion
is piled high with difficulty, and we must rise
with the occasion. As our case is new, so we
must think anew and act anew.”
Lincoln would have made a great judge. In
fact, as an attorney he often filled in for a
judge on the old Eighth Judicial Circuit, a
common practice back then when judges were
called away. One of the few lawyers to consider
Lincoln as a judge, author John J. Duff, noted
in A. Lincoln: Prairie Lawyer,
[Lincoln’s] “intellectual integrity; his
capacity for analysis and balanced decision; his
practical, hardheaded approach to legal
problems; his ability to strip away trivia and
get to the heart of a matter; his sensitive
consideration of others and his profound insight
into the deep recesses of the human mind and
heart, coupled with the gift of expressing
himself in plain and pointed and unequivocal
language, were precisely the essentials for
success on the bench—in Lincoln’s day or any
other day. And if ever the expression ‘judicial
temperament’ applied to anyone, it was Lincoln,
whose simple dignity and infinite patience, even
under great provocation, were impressive
credentials. Judges like this don’t grow on
trees.”
I think most
people fail to
make the
distinction
between law and
justice. The
distinction
should not be
lost, or
mistakenly seen
as quibbling
over mere
semantics. Law,
after all, is
merely those
rules written by
the legislature.
Justice is based
on the
relationships
among people,
and is certainly
not just the
rules.
One who understood this was the
late U.S. District Judge Frank Johnson. Raised
in the northern hills of Alabama, Judge Johnson
did much to see to justice in an era where his
part of the South clung to the prejudices of the
past. He once reflected on this era by saying:
“The civilizing function of a judge has been
defined, I think, as ‘the removal of a sense of
injustice.’ I have come to the firm conclusion
that the American people revere the concept of
justice, and their conscience tells them to obey
the law once they understand what it is.”
Lincoln’s law
practice
reflected his
Whig philosophy,
which preferred
settlement of
disputes in the
interest of
community order.
He believed in
alternative
dispute
resolution
before that
phrase was
coined. A
colleague stated
that he heard
Lincoln tell
would-be clients
again and again:
“You have no
case; better
settle.”
In fact, about
33% of Lincoln’s
more than 5,500
cases were
dismissed and
many of those
can be
attributed to
settlement or
mediation.
He learned to
detach himself
from the issues,
and, like every
good negotiator,
seek out a
middle ground
between
adversaries.
This attribute
would prove
immensely
important during
his presidency.
Lincoln’s philosophy of
settlement in the interest of community order,
applied time and time again throughout his legal
career, manifested itself in his second
inaugural address. After four years of bloody
and costly war, he asked the nation to treat the
South during the impending peace “[w]ith malice
toward none, with charity for all … to bind up
the nation’s wounds, to care for him who shall
have borne battle….”
Moreover, he demanded liberal treatment of
vanquished Confederate forces. We are reminded
again of his second inaugural address: “…let us
judge not, that we be not judged.” And it was
General Robert E. Lee himself who commented, “I
surrendered as much to Lincoln’s goodness as I
did to Grant’s armies.”
As a practicing attorney, Lincoln
was also well known for his honesty and
integrity: remember the nickname “Honest Abe.”
He once declared, “… I mean to put a case no
stronger than the truth will allow.” In one
instance, after meeting with a potential client,
Lincoln told the man, “Yes, there is no
reasonable doubt but that I can gain your case
for you; I can set a whole neighborhood at
loggerheads; I can distress a widowed mother and
her six fatherless children, and thereby get for
you six hundred dollars which you seem to have a
legal claim to; but which rightfully belongs, it
appears to me, as much to the woman and her
children as it does to you. You must remember
some things that are legal right are not morally
right. I shall not take your case—but I will
give you a little advice for which I charge you
nothing. You seem to be a sprightly, energetic
man, I would advise you to try your hand at
making six hundred dollars in some other way.”
In another instance, the trial was proceeding
poorly for Mrs. Goings, charged with murdering
her abusive husband. Her attorney, Abraham
Lincoln called for a recess to confer with his
client, and he led her from the courtroom. When
court reconvened, and Mrs. Goings could not be
found, Lincoln was accused of advising her to
flee, a charge he vehemently denied. He
explained, however, that the defendant had asked
him where she could get a drink of water, and he
had pointed out that Tennessee had darn good
water! She was never seen against in Illinois!
The case illustrates that ethics,
like sand, keep shifting over time. Lincoln
couldn’t have done what he did with Goings
today. When we judge history or historic
individuals, we need to look at the events and
the persons within the context of the times in
which the events occurred and the individuals
lived—and not through the wrong end of the
telescope. With no rules of professional
conduct, the lawyer’s priority was to DO ALL for
the client. Yet Lincoln was not oblivious to
ethics. As he so eloquently stated, “resolve to
be honest at all events; and if in your own
judgment you cannot be an honest lawyer, resolve
to be honest without being a lawyer.
As it turned out, the charge
against Mrs. Goings was dismissed nearly one
year later on the state attorney’s motion.
Above the bench of the Rhode
Island Supreme Court is a Latin inscription that
translates as “Not under Man but under God and
Law.” It is a reminder that our system of
justice operates on the rule of law, not in
response to a “gotcha” news media or on the
basis of public opinion or personality.
Commenting on the power of colonial lawyers
at the time of our revolution, Edmund Burke
declared: “This study [of law] renders men
acute, inquisitive, dexterous, prompt in attack,
ready in defense, full of resources. No other
profession is more closely connected with actual
life than the law. It concerns the highest of
all temporal interests of man—property,
reputation, the peace of all families, the
arbitrations and peace of nations, liberty, life
even, and the very foundations of society.” It
was from this mold that Lincoln was formed.
Burke understood the interplay of legal training
and political practice. Lincoln’s life
perfected the mold. There is much evidence for
celebrating Lincoln as a triumphant lawyer and
wartime president.
Thank you.
Remarks by Chief
Justice Rogers