Sunday, November 5, 2017
by Margaret Drew
This post is part of our Scholarly Voices series. We are exploring how our conditions have changed one year after the Trump election.
The short answer is: we are better lawyers. Past generations of lawyers were challenged to find courage in order to continue fearless advocacy. The McCarthyism of the fifties and the civil rights movement of the sixties and seventies tested lawyers’ commitment to the rule of law. In the past year, lawyers of our generation are being tested in much the same way. The difference is that McCarthyism and the brutality with which civil rights demonstrators were met left no room for moral or legal ambiguity.
The challenges lawyers face today are not as conspicuous as earlier times. Today’s threats to lawyering and to law are happening more quietly. In single instances, lawyers are being threatened by the government. For example, last week US Marine Corp Brigadier General John Baker was placed under house arrest in Guantanamo. As one report noted: “His offense was standing up for the rule of law.”
Baker heads the Guantanamo defense counsel and he disbanded a defense team claiming that the team could not ethically represent the defendant because of government surveillance of attorney-client communications. The judge hearing the trial ordered Baker to reinstate the team, based upon his opinion that Baker had no authority to take the action he did. After Baker refused to do so and refused to testify, he was sentenced to 21 days house arrest. Before a federal court could act on a habeas petition on Baker’s behalf, the Guantanamo judge released Baker. Courage comes in many forms. This time it came from a military lawyer.
Since last November, lawyers and judges have been on the frontlines of protecting due process and other fundamental rights. Lawyers and law students responded en mass to represent those affected by the travel bans. Other lawyers responded to appeals, whether through direct representation or filing amicus briefs. Judges courageously stayed the travel ban and other executive orders. What remains to be seen is what role SCOTUS will play in efforts to preserving constitutional protections.
Surely, there is more to come. But we are ready. An unintended consequence of the election: lawyer mobilization.