The practice of law is about building relationships in an environment where various positions and perspectives are paramount. I can think of no other profession built upon a divergent discourse, where we are applying the same set of facts to sometimes polarizing ends of a spectrum. While predictable and familiar, the human creation of dichotomy where all is categorized into either a political left or right and the splitting of perception into black or white, is hurting lawyers, harming judges and the judiciary, and threatening the rule of law and our democracy. I write this opinion today as a call for the legal community to consider the spectrum in its complexity and entirety, instead of splitting it into a binary of black and white, or political left or right.
As lawyers we are educated, trained, and committed to representation of these divergent positions. We are sworn to uphold a principle under which all persons, institutions, and entities are accountable to laws that are equitable and consistent with international human rights principles1 while concurrently sharing the responsibility to be collegial and cooperative with one another, the judiciary, and the community. Collegiality is at a crossroads, and we have been here for a while. In 2013, Rep. John Dingell (D-Mich.), who served in the House since 1955, was quoted by The Hill saying that “lack of collegiality, refusal to compromise [and] absolute reluctance to work together” make it difficult for lawmakers to achieve common goals. Rep. Dingell was spot on: we have become so committed to the left or to the right that we have buried our common goal: the securing and strengthening of our democracy by upholding the rule of law.
We have seen an increasingly vicious tone in battles over judicial selection and personal attacks on members of the judiciary. I agree with Ed Meese and Kelly Shackelford in their Wall Street Journal Opinion of May 16, 2023, that “…[t]here’s no greater threat to our form of government than attacks on the Supreme Court and the judiciary’s legitimacy.”2 Sadly, my agreement ends with my edit of the Lede to the Opinion, which removed “The Left’s War on the Rule of Law” from the title. In fact, the Opinion of Meese and Shackelford is that the left is coordinating a planned attack on the Supreme Court and its Justices and, in some way, the calls to hold them accountable to a Code of Ethics is one element of this planned attack. Perhaps the bigger threat to our democracy is the relegating of position, perspective, and discourse to either the political left or right, or splitting the spectrum into black and white.
The vicious tone and personal attacks are not confined to the selection of the judiciary or its role in the administration of justice. They are made more acceptable because we are confining ourselves to “sides” rather than a collective of people representing myriad experiences, Indigenous and diaspora among them. The promotion of diverse and collegial bar membership will require dismantling the binary of a political left and right, male and female, Black and White, able bodied and not. Restricting the diversity of our community to exist in such limited categories weakens our center (our shared goal). We must make way for a collective that amplifies our diversity.
Diversity is not just about race, religion, or our belonging to one polarized political group. Diversity is about community identity and other social dynamics, and requires us to be equitable, transparent, and actively minimize the disproportionate experiences, power dynamics, and lived experiences that divide us. Diversity works to dismantle the binary, and decentralize power, resources, and opportunities. But diversity and access to justice are merely the first step in ensuring the well-being of our association, the justice system, and our democracy. The next steps are to create a sense of belonging for the Indigenous, the diaspora, women, persons with disabilities and the non-binary. When people belong, they engage. When engaged we make way for systemic change and improved access to meaningful justice. An active and diverse community is necessary for the KCBA to successfully broaden our expertise when engaging in public policy. How do we create tangible steps to belonging?
Some have theorized that the required steps to belonging are so flawed that it warrants removal from the diversity and inclusion schema altogether. See Bloom Blog from September 10, 2020, where the author writes that the concept of belonging is nearly impossible to act on.3 The reasons provided in support of elimination are the difficulty to act on feelings of belonging, belonging doesn’t scale, and belonging is hard to measure.4 Fair enough, but Bloom Blog’s nearly is my not impossible. How we might measure KCBA’s success in amplifying the positive, mitigating the negative and measuring the totality of these qualitative experiences using quantitative scales is difficult, but not impossible.
Bloom Blog suggests that we replace belonging, an individualized subjective concept, with equity, an objective and measurable metric.5 I am uninterested in a system that replaces subjective lived experience because it cannot be measured. Nor do I believe in objectivity — not when everything we feel, see, hear, and speak finds its relevance in our language and our cultural identity. Why can we not have both? Objectivity should be aspired to in creating inclusive systems paving a path to access to justice. But access does not go far enough. To be meaningful, access to justice is only a first step in achieving justice. To be a part of justice requires that we belong within it, that the system considers us, and that it reflects us.
We have much work before us to reach a system of justice that reflects the Indigenous, the diaspora, women, the non-binary, those with disabilities, and all the community identities not mentioned here. This work requires us to amplify the unique voice and wisdom of each, and the remaining myriad of experiences and identities not mentioned here. I suggest what we must do is focus on both the individual belonging and our belonging to the systems promoting access to justice and the adherence to rule of law and our democracy. We can achieve both individual and collective belonging if we practice compassion and refrain from punitive and vicious dialogue confining us to the binary of a political right and left and splitting the spectrum into black and white. The binary is a human derivation, and we must accept the discomfort required in its dismantling. Belonging may be subjective, but the allyship and compassion, inquiry and space given to our varied lived experience and the value that should be given it, is not.
1 https://www.uscourts.gov/educational-resources/educational-activities/overview-rule-law#:~:text=The%20courts%20play%20an%20integral,who%20may%20hold%20minority%20opinions
2 https://www.wsj.com/articles/the-lefts-war-on-the-rule-of-law-constitution-democrats-ethics-reform-kavanaugh-gorsuch-abortion-5f7b2b61
3 https://bloomcollective.medium.com/its-time-to-replace-belonging-in-the-diversity-and-inclusion-conversation-f9f4fff9f90d
4 Id.
5 Id.
