Letter From The President of The Boston Bar Association

2007-12-01 00:00

To The Readers Of The Metropolitan Corporate Counsel:

When you step into the same shoes worn by 85 previous BBA Presidents, looking back at what prior incumbents thought and wrote about proves educational. To that end, I recently dredged up the President's Pages written by my partner Ed Barshak over 30 years ago from 1974-76. The exercise was a useful one, insofar as it is a common human tendency to feel that the issues and problems we grapple with are new or different; it is humbling to be reminded that in fact, they are not. Mindful that history does indeed repeat itself, we should not be surprised that we are today dealing with old problems, to which the need to respond remains vital.

In 1974, United States District Court Judge W. Arthur Garrity issued his now-famous busing decrees in the Boston School Desegregation case. These directly affected many Boston residents and in many quarters were met with violence and outrage. The Boston Bar Association responded in a number of ways, two most notable: first, it awarded Judge Garrity its Public Service Award. Said President Barshak in his October 1974 President's Page: "the public reaction to his judicial decrees sucked the Judge into a political maelstrom. He was vilified as if he were a ward healer who had sold out to some alien enemy. His judicial act was distorted as a raw political thrust. Public understanding of the rule of law and of the rule of the courts was damaged and endangeredBesides recognizing the Judge for his many years of judicial effort, the award was a symbolic reminder that his decrees in the Boston school desegregation case embodied the rule of law."

In another President's Page (November, 1974) President Barshak took on the condition of the courts. Among other observations, he wrote: "The delivery of justice to litigants is sometimes a strange thing. The client tries a case to a judge who is sorely pressed to handle his work-load without the secretaries, dictating equipment and other amenities commonly found in law offices." Sound familiar?The perspective that the Commonwealth's judges are too few in number, understaffed, under-equipped, and overworked has changed little since those days.

The judiciary is undoubtedly the least understood branch of government, and the one with virtually no constituency. It is an easy target, of vituperative and ill-informed reaction to what appear to be shocking orders, soft sentences, and unwarranted judicial activism. Witness the reaction to Judge Garrity's busing decrees, the treatment of now Supreme Judicial Court Justice Margot Botsford at her recent confirmation hearing by certain Governors' counselors, and the rap on the SJC's recognition of same-sex marriage. Legislators and governors perceive that they will neither gain votes by increasing the judicial budget, nor lose popularity by vetoing judicial appropriations.This threatens the ability of our courts to function efficiently and to continue instituting and advancing the reforms undertaken by the SJC and the office of the Chief Justice for Administration and Management, especially in the wake of the 2003 Monan Committee Report.

I am sorry to be tooting the same horn my partner blew thirty years ago, but we're reading from the same sheet of music. We lawyers must do more to remind the public that the court system is a crucial part of the fabric of our society, central to the smooth and efficient functioning of our economy and vital to the protection of rights and liberties. There are effective strike forces of attorneys ready to respond publicly to unfounded criticism of individual judges by the press or the public. This is important, but it is only part of the solution. All of us, collectively and individually, need to make an effort to increase the public's understanding of our judicial system's importance and of the judiciary's independence.In this way, our political leaders will perceive that there is a constituency - both in the business community and the community at large - that must be heeded when funding issues for the courts are considered.


Anthony M. Doniger