The Responsibilities of Philosopher Kings
Drake Law Review Annual Banquet
Des Moines, Iowa
March 10, 2005
Honored members of the judiciary and other guests, faculty, and Drake Law Review staff, it’s an honor and a great pleasure to be here.
Actually, at my age it’s a great pleasure to be anywhere.
As you well know, none of us came to law schools because of our love for mathematics. We came to law school because we didn’t want to go through life asking, “Would you like fries with that?”
So I don’t claim any mathematical aptitude.
But years ago I did figure out the complicated mathematical formula for calculating the respect you will be given by others.
It turns out that the respect you receive is in direct proportion to the square of the distance you are from your home.
So you can imagine how highly regarded I was, and how much I enjoyed working in Kazakhstan – a country in Central Asia exactly half-way round the world from Iowa.
Des Moines is much closer than Almaty, Kazakhstan. But it’s far enough away from Iowa City that you were willing for me to share this evening with you and your guests. And that was before you even knew that my wife, Mary Vasey's, grandfather was a graduate of your law school.
As Bryan has explained to you, I was born and raised in Iowa, went away to college, a professional life on the west and east coasts, and returned about 25 years ago. I’m living in Iowa City, teaching at that other law school, and living in the same family house in which I grew up from 1941 through 1952.
But I keep in touch with my coastal friends. Occasionally one will ask, “Are you still teaching at the law school?” I tell them, “Yes, as much as I can remember.”
Once Bryan Dearinger discovered that I was a professor used to speaking for entire semesters at a time, he made clear to me that my remarks this evening should be limited. At first he suggested 40 minutes.
But then he got onto my Web site, www.nicholasjohnson.org, where can be found everything I’ve ever written, spoken or thought. And the more he read the shorter was the recommended time for my remarks. It was first cut to 25 minutes, then 20, and in the last email I had from him he indicated he would not be disappointed if I held it to 15.
As you know, the formula for a speech is: first you tell ‘em what you’re going to tell ‘em, then you tell ‘em, then you tell ‘em what you’ve told ‘em. Since it takes me longer than 15 minutes just to say hello I’m not going to have time for that formula. Nor do we have time for a question period.
You’ll be left like a student of mine last week after I’d been lecturing for a few minutes. “I have just one question,” she said. “What on earth have you been talking about?”
Tonight you’re going to have to figure out for yourself what on earth I’ve been talking about.
But I will give you this clue.
You have no doubt heard the observation that, “When you’re up to your waist – or any other part of your anatomy – when you’re up to your waist in alligators it’s sometimes difficult to remember that your initial objective was to drain the swamp.”
And so it is not only with practicing lawyers and sitting judges, but with law students. You have classes to attend, research papers and law review notes to write, interviews with potential employers, and exams for which to prepare.
It’s kind of hard to remember that as a consequence of your decision to enter law school you have taken on some very heavy responsibilities along with the prospect of some rewarding benefits.
And it’s some of those responsibilities I’d like to talk about.
Let me begin with a word about the judicial branch.
When I was an FCC commissioner, back about the time your grandparents were born, we had only three television networks offering us the evening news: ABC, CBS and NBC.
Today, with the technological innovations of the Information Age, we have many times that number offering us not only news but fake news as well.
And of all the fake news shows the one I find most informative and entertaining is Jon Stewart’s “The Daily Show” on the Comedy Central cable channel.
Since much of “The Daily Show’s” fake news has to do with government and politics it is only natural that the show’s writers would ultimately write a fake high school social studies textbook as well.
It is called, simply, America, and last Sunday, March 6, 2005, was its 23rd week on the New York Times Book Review Best Seller list.
They have titled Chapter 5, “The Judicial Branch: It Rules.” The chapter begins:
“Having discussed the executive and legislative, we arrive now at the judicial branch. If, as mentioned in Chapter 2, the Constitution is the nation’s owner’s manual, then the judicial branch is America’s helpful 24-hour-tech support, always available to explain how things should work. And like any good tech support, it costs extra, takes forever to reach, and you don’t understand their instructions half the time anyway.”That’s about the nicest thing they have to say about our profession. And if any of our Iowa state judges here have leafed through that chapter they’ll know what I mean when I say we can all be grateful that Stewart and company limited their graphics to the federal judiciary.
Sometimes the lawyer jokes, and the lack of respect for our legal system, take on a much more somber tone.
You probably read last week of the tragic death by assassination of Judge Barwize Mahmoud and his lawyer son Aryan Mahmoud on their way to work – ironically, at the Iraq Special Human Rights Tribunal.
It reminded me of my clerkship years. Before I clerked for Justice Hugo Black in Washington I clerked for Judge John R. Brown on the U.S. Court of Appeals, Fifth Circuit. At that time the Fifth Circuit included all the southern states from Texas to Florida. And “that time” was the late 1950s in the history of race relations in the South.
The concept of a “redneck” was not just the source of standup comedy material for Jeff Foxworthy. Fortunately we weren’t dealing with Iraqi suicide bombers, but some of our judges did have crosses burned in their lawns.a
Given the thousands of dead American soldiers and Iraqi civilians, and the daily reports of the ongoing killing, the Mahmouds’ assassinations didn’t stand out as they might have in another time and place.
And we dismiss my experiences in the 1950s South as something as distant in time as Iraq is in space.
But then, this week, we read of the apparent murder of the husband and mother of Federal District Court Judge Joan Humphrey Lefkow in Chicago.
I was certainly not looking for any more timely examples when, this morning, we learned of the shooting of Superior Court Judge Barnes in Atlanta, Fulton County, Georgia.
And we’re told that this was not unique. There were over 700 threats against federal judges and their families last year.
It turns out that low pay is not the only challenge confronting judges; that the lack of respect for law can take some pretty dramatic and deadly forms.
You and I tend to take for granted a democracy, governed under a rule of law, as interpreted by a federal judges with lifetime appointments, independent of the executive and legislative branches.
But the truth is that not everyone accepts this precious formula by which we, as our Constitution puts it, “establish Justice, insure domestic Tranquility . . . and secure the Blessings of Liberty . . ..”1
When I began my efforts to help some of the former Soviet republics and Eastern European countries rethink their legal systems in general and media regulation in particular, I made a number of assumptions.
Although I quickly learned better, at first, when they were talking about courts and judges I assumed they meant judicial systems similar to ours, with an independent judiciary. They assumed, in turn, that judges would be no more independent of the authoritarian head of state than would any other government employee.2
Needless to say, once we came to understand each other it made our conversations much more productive.
If you read Plato’s Republic as an undergraduate, or even if you didn’t, you’re familiar with many of his ideas, now 2500 years old. One involved what he called “philosopher kings” – individuals who are well-educated, wise, idealistic and unselfish, and who also possess the qualities necessary to political leadership and administrative management.
Well, whether you like it or not, whether you end up doing it well or poorly, that’s the role that’s been chosen for you as a law school graduate.
Lawyers are disproportionately represented in legislative bodies, governmental executive and administrative positions, and of course on the bench.
In part this responsibility comes to our profession by default. If not lawyers, who? Indeed, if not you, who?
But it’s not just default. It also happens that our profession is the best qualified, by education, training, experience and temperament to take on these responsibilities.
Of course, there are many ways of exercising responsible leadership as a lawyer without holding office, or a title.
You may testify before a legislative committee, write an op ed column for your local paper, or just contribute substantively to the public dialogue in discussions with your family, friends and neighbors.
Which brings me full circle round to the article all of you helped me produce for your law review, “Open Meetings and Closed Minds: Another Road to the Mountaintop.”
(Incidentally, speaking of op ed columns, you might have noticed that to further spur public debate on these issues I also wrote a summary of the article for the Des Moines Register as a 650-word column.)
You and I agreed that there was enough legal analysis in my manuscript to qualify as a law review article.
But it involved as much public policy as legal analysis. It was an effort to address how we can best build the kind of public trust in our legal system that the National Center for State Courts talks about in its Public Trust News.3
The Iowa Legislature has said the purpose of our “open meetings law” is “to assure . . . that the basis and rationale of governmental decisions . . . are easily accessible to the people.”4
That’s a worthy goal, an essential purpose; one in which all of us have a stake.
But the law as written doesn’t require that “the basis and rationale of governmental decisions” be revealed by agencies, only that they let the public and media into their board room. As a consequence, open meetings are no more a guarantee of public understanding than they are of public trust.
As I explained in the article, there are ways by which the public could come to understand the rationale behind agencies’ decisions.
The Supreme Court of the United States does not hold open meetings. It doesn’t even permit the law clerks to sit in on the justices’ deliberations. After the oral argument is over the justices disappear behind the curtain and do not reappear until the decision is announced.
So how do we create public understanding and trust regarding the work of our state and federal appellate courts? Through the use of written opinions that hopefully clearly explain “the basis and rationale of governmental decisions.”
There are not a lot of school board or other agency members who would want to undertake the writing of a judicial-like explanation for their decisions. But for those who are, why should, say, a small town school board in southwest Iowa be held to a higher standard than what applies to the Supreme Court of the United States?
However you personally come out on these open meetings issues, they are illustrative of the responsibilities we have to help build public confidence in our legal system.
We also have a responsibility to do a little thinking outside the box when it comes to public policy generally. As former U.S. Attorney General Robert Kennedy used to say, “Some see things as they are and ask ‘why’? I dream of things that never were and ask ‘why not’?”
Or as a lawyer, former governor, and president from Arkansas once put it, “We have more problems than we deserve, and far more solutions than we’ve ever tried.”
As a former school board member, and regular columnist focusing on K-12 issues5 at that time, I was very impressed with the resources on the Internet. With 15,000 school districts, there is virtually no challenge being confronted by any school district anywhere in the country that hasn’t been identified, diagnosed, and solved by a district somewhere else and then reported on the Web.
Sadly, given our nation's commitment to childhood education, all too many of those who are, or would like to be, public officials in one role or another belong to that substantial group of Americans "who can't write and won't read." As Drake Law Review staff members and editors this puts you in a rather elite group: those who can write and do read.
That alone gives you the responsibility to do so.
It’s our responsibility to do the public policy research that can help us find those solutions that we’ve never tried.
It’s our responsibility to help create the wise public policies embedded in legislation and court opinions that can serve all the people, not just the wealthy few.
It’s our responsibility to create and monitor the policies and procedures that will help to build the public understanding and trust of the legal system that is essential if America is to truly “establish Justice, insure domestic Tranquility . . . and secure the blessings of Liberty . . ..”
You have the necessary education, the analytical abilities, the energy, and skills. I will be watching with confidence what you do with them.
a. See, Jack Bass, Unlikely Heroes (Simon & Schuster 1981; paperback ed., University of Alabama Press 1990), for a history of the Fifth Circuit during the 1950s and 1960s. Front and back covers, table of contents, index, and an excerpt are available from amazon.com at http://www.amazon.com/exec/obidos/ASIN/0817304916/102-7680624-4242516.
1. The first sentence of the U.S. Constitution reads, in full, "We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America." http://www.house.gov/Constitution/Constitution.html
2. See, e.g., Honorable John L. Nickels, “The Need for an Independent Judiciary,” DCBA Brief Online [Journal of the DuPage County, Illinois, Bar Association], Dec. 11, 1998, http://www.dcba.org/brief/judpractice/1298.htm.
3. The National Center for State Courts publishes the Public Trust News, http://www.ncsconline.org/Projects_Initiatives/PTC/PublicTrustNews1.htm.
4. Iowa Code Sec. 21.1 (2003), http://www.legis.state.ia.us/IACODE/2003SUPPLEMENT/21/1.html.
to each of those columns are available at