Warning in America: Lawyers and Judges Organizing over Authoritarian Concerns

Attacks on judges have increased in recent months, alongside scathing criticism from Trump and his cabinet members over court rulings. In response, a group of lawyers and judges have formed a coalition, Speak Up for Justice, to educate the public on the current risks to our justice system and to warn against silence and capitulation.

Paul Kiesel, a leading plaintiffs’ lawyer with a track record of wins in environmental and consumer cases, started the movement with Judge Leo Gordon, a Senior Judge with the U.S. Court of International Trade. It has since grown into a national movement with an international perspective on the consequences of an authoritarian government systemically dismantling the rule of law. Their upcoming forum features perspectives from judges in Venezuela, Poland and South Africa who are speaking out and fighting back against the erosion of this critical democratic institution. They will be joined by retired U.S. Supreme Court Associate Justice Anthony M. Kennedy.

"Global Threats to the Justice System: A Warning to America,” will be live online on June 26. The goal is to express how quickly democracies can fall when the legal system is undermined. The movement aims to engage lawyers, judges and the public to collectively speak up for the protection of the courts and the Constitution. Find more information and watch past forums here.

Lawdragon: Tell our readers about Speak Up for Justice. Why did you form this group?

Paul Kiesel: I represented the Austrian Jewish community in the Holocaust restitution negotiations back in 2000. I did a lot of studying about the history of Austria and Germany. The people I represented had fled Austria, they left behind property, and this was all about recovering what they had lost in restitution. But what I realized was that they saved their lives because they left Austria when things became fragile. One of the first signs of fragility was that Hitler fired over 850 judges and disbarred every Jewish lawyer in 1933.

Three months ago, I saw this process beginning here. There was an attack on the justice system, an attack on law firms. And it reminded me of working for the Austrians 25 years ago. The real dagger in the heart of the judicial system was that no one spoke up or out for the courts, for the lawyers, nothing. They were muted by Hitler.

I’ve been alarmed by a similar response to the attacks on judges here. For example, after Judge [James] Boasberg issued his decision on Abrego Garcia stating that the government violated due process with his deportation, the administration called for his impeachment. No one was really responding to that. Big Law firms were taking a knee to the administration. And I realized, we have a responsibility as lawyers in the community, as advocates, because we’ve basically taken an oath to the Constitution. We needed to speak up for justice. What didn't happen in Germany, I wanted to happen here in the States quickly before it became too late. I approached Judge Gordon, who was involved in the Federal Judges Association, and he adopted the concept.

LD: What were you able to achieve for the Austrians in your Holocaust restitution work?

PL: We were able to assist families in recovering artwork that had been confiscated, provide compensation to families who lost property and had their businesses and their assets taken from them.

The court system is the only guardrail that remains for our democracy at the moment because they're willing to make the tough calls.

LD: What are your goals or initiatives with the Speak Up for Justice movement?

PL: The goal at the moment is to maintain a nonpartisan view and educate the public on the risks to the judicial system through either silence or capitulation. The effort is to engage people. Much like the recent No Kings rallies across the country – I love the fact that it is a grassroots movement that created this dynamic. I'm hoping for the same grassroots efforts broadening as we start with a very small group of lawyers and judges and intellectuals and expand it to the country.

LD: Tell us about the speakers you have for the upcoming forum, “Global Threats to the Justice System: A Warning to America.” What perspective are these judges bringing to the conversation?

PL: We have put together an incredible group. I’m honored that our featured speaker will be former Supreme Court Associate Justice Anthony M. Kennedy. Justice Kennedy brings a perspective after having served on the Court for over 30 years on the importance of speaking up and protecting our legal system and thereby protecting our democracy. We also have the past president of the International Academy of Trial Lawyers, Karen Burgess.

Then we have several judges bringing the international perspective. Richard Goldstone is a justice of the South African Court, a legend in the field. When the apartheid regime asked him to become a judge, there were 200 judges, and he was one of only eight of who were opposed to apartheid. Yet the apartheid regime allowed him to sit as a judge. Justice Goldstone is considered to be one of a few judges who issued the rulings that undermined apartheid. Justice Goldstone made the Group Areas Act – under which nonwhites were banned from living in “whites only” areas virtually unworkable by restricting evictions. He was instrumental in helping to deconstruct the apartheid regime.

Then we have Eleazar Saldivia, former federal judge of the Anzoátegui State Circuit in Venezuela. Venezuela had a constitutional democracy just like we did. It had a legislature, it had a president, it had a judicial system. Hugo Chavez came in, took apart the judicial system and became a dictator. It was literally taking down the court system that gave him the opportunity to acquire power. When Judge Saldivia began to issue decisions contrary to the regime’s point of view to security detail was removed there were threats to his life and he had to flee Venezuela and seek asylum in the United States.

From Poland, we have Judge Dorota Zabludowska from the District Court Gdansk-Poludnie. Poland is really interesting. It is still very much in the fulcrum of a constitutional crisis. In 2015 when the Law and Justice party came to power they implemented significant judicial reforms designed to take apart the judicial system. The European Union stepped in and said, essentially, abandon your judicial reforms or risk losing any economic support from the EU. And so a thousand judges in January of 2020 marched on the streets of Warsaw with 29,000 citizens in support of restoring the rule of law and Poland. Unfortunately, in the most recent election, Karol Nawrocki, a conservative candidate backed by the Law and Justice party won the election. There is significant fear among judges in Poland that it might take place again.

LD: If you’re paying attention, it’s scary. But it’s also easy to fall into this feeling of, “it can’t happen here.”

PL: This is why we’re calling it ‘A Warning to America.’ People need to understand what's happened, certainly around the world, in order to see what’s happening. People living in Germany in 1931 thought things looked pretty good. It was an open society. There were no racial divides. All of that within a matter of five years was just gone.

The real dagger in the heart of the judicial system in 1930s Germany was that no one spoke up or out for the courts, for the lawyers, nothing.

LD: Let's talk about the emergency TRO that California filed, in response to the federal government sending in the National Guard and the Marines. Why is this pushback from the governor important in California, and also nationally?

PL: It’s critical, because what happened is with the stroke of a pen, Trump federalized the National Guard of the state of California and ordered them, thousands of them, to descend upon the streets of Los Angeles. But here's what most people don't realize. The Commander in Chief of the National Guard in every state is the governor of that state, not the President of the United States.

Then he dispatched 700 active-duty Marines to leave their barracks to come to Los Angeles. Marines may not perform any police functions in terms of arrest or detention. The Army is, generally, not permitted to perform “police” functions in the United States, absent a very, very few number of exceptions. And none of them existed here.

It’s troublesome because if a sitting president can do this here, he can do it in Kansas, he can do it in Seattle, he can do it in New York City, he can do it in Athens, Georgia.

The district judge in the matter is Judge Chuck Breyer. It could not have gone to a better, more thoughtful judicial officer in the northern district than Judge Breyer. He issued a 36-page decision in which he concluded that the president violated Title 10, Section 12406, which was the basis upon which he federalized the National Guard. And he concluded that the president did not follow the proper steps in federalizing the National Guard, and therefore his decision to do so was unconstitutional.

However, he allowed there to be a stay of the temporary restraining order to allow a three-judge panel at the 9th Circuit to weigh in, which they are currently doing.

LD: I’m not sure if this is a legal argument, but Trump’s response was, "If I didn't send in the National Guard, Los Angeles would be burnt to the ground by now."

PL: Well, if that was the rationale, every time a football team lost the Super Bowl or the World Series, you'd have to call the Army out because the city is at risk for riots and therefore you need to protect the city. Untrue, unnecessary, a huge overreaction in violation of our own governor's wishes. Governor Newsom did not order the National Guard out. The mayor did not request federal assistance. Historically that has happened before you call out any force beyond the local law enforcement community period. It becomes an issue of a dictator who starts calling out the troops when he or she decides it's appropriate.

LD: Bringing the military against his own citizens. Textbook authoritarian move.

PL: Correct. And the only guardrail for that is the court system. The court system is the only guardrail that remains for our democracy at the moment because they're willing to make the tough calls.

And what's been the hallmark of this country is the executive branch's willingness to listen to and respond to and respect the decision of the judges. I do not get the sense that this White House is prepared, and this is the scary part, to accept the decision of even the Supreme Court of the United States.

LD: What’s been the reception of this Speak Up for Justice movement in the legal community?

PL: We’ve been getting a really positive reception from lawyers and the community at large, people who are happy and relieved that there's an effort to speak up for the judges who are at risk. There’s a lot of support, and people want to know how they can help.

The Wall Street Journal has been writing about how the law firms that “took a knee” to the administration are losing clients. These clients are saying, “Wait a minute, you're going to fight for us, but you're taking a knee yourself? We want a strong law firm to represent our interests. If you're going to capitulate for this, what are you going to do for us?" These firms are also losing partners and associates.

For the next forum, I put up on the website a ten-minute documentary called The March of a Thousand Robes. And it's incredible. It's just 10 minutes of what happened in Poland and the judges that came out to support the justice system. That's the effort we need to build in this country, to have that level of support, so that judges know that we've got their backs.