Coxe: Lawyers must protect courts’ independence
A country once had a constitution that guaranteed its citizens free speech, freedom of religion, separation of church and state, freedom to circulate any idea, freedom of conscience , and even guaranteed universal free education.
What it didn’t have was an independent judiciary to protect those ideals, so under that Soviet constitution of 1918 and 1924, Joseph Stalin murdered millions of Soviet citizens.
In this country, the independence of the judiciary, and by extension the independence of lawyers, is under attack and lawyers need to do what they can to support the third branch, according to former Bar President Hank Coxe.
He was the speaker at the Criminal Law Section Selig I. Goldin Award/Criminal Procedure Rules Committee joint luncheon at the Bar’s Annual Convention.
“You take where we are in this country now and you hear more and more about what I describe as this need to be a federalist to be a success,” Coxe said. “What does that mean? It’s my belief. . . that we have more and more people in this profession who profess to be federalists without ever having read what it meant to be a federalist and what our Founding Fathers wrote.”
Quoting Federalist Paper #78, Coxe related that its author, Alexander Hamilton, argued that the judiciary was the weakest of the three branches of government since it had neither executive power, set the rules, or controlled the purse, but that it was also the one best able to protect citizen rights “and that all possible care is requisite to enable it to defend itself against attacks.”
Quoting Montesquieu, Hamilton went on, “‘[T]here is no liberty if the power of judging be not separated from the legislative and executive powers.. . . ” The complete independence of the courts of justice is peculiarly essential in a limited Constitution.’”
The message, Coxe said, is “somebody has to be out there defending that independent judiciary which has no power, except the power of judgment.. . . That’s why more than ever in this country, I think our judiciary is free and remains independent and that depends on what the people in this room do along with the rest of the lawyers.”
Coxe said when he grew up, political differences didn’t lead to personal disputes but that has now changed in a deeply polarized country. He saw the seeds when he was Bar president in 2006-07 when a deputy secretary of Defense criticized volunteer lawyers, some from top national firms, for defending Guantanamo Bay detainees.
The official said the lawyers were “as guilty of treason as the people they’re trying to help.
“I got a call from the president of the New York bar and he said, ‘Are we going to let it happen?” Coxe recalled. “So we co-signed a letter to the president of the United States which essentially said, ‘Look, we represent two of the largest. . . bars in the nation and we urge you to repudiate what he said on behalf of the United States of America.”
They never heard back, he said, but they hadn’t expected a reply but instead wanted to make the point the official’s statement “was intolerable because that goes to the heart of what lawyers do and if it goes to the heart of what lawyers do, it goes to the heart of that independent judiciary.”
Coxe said that attending the recent memorial services for former ABA and Florida State University President Sandy D’Alemberte reminded him that people, and particularly lawyers, need to occasionally “look over their shoulders” to evaluate their choices and things they have done.
“If you have a chance, look over your shoulder and say, ‘I can help,’ because there are so many different ways to help,” Coxe said. “If this judiciary loses its true independence, there isn’t anyone in this room. . . who is safe in their legal life.”