After the Election, What’s Next? – by John S. Kiernan

John S. Kiernan

President’s Column, November 2016

One of the defining characteristics of our shared national personality and heritage is the willingness to accept peaceful transitions of presidential leadership after an election. That willingness has been a matter of consensus across all reasonable factions of all political parties.

Another defining value that should equally cut across political lines, and that equally warrants celebration, is the value of unreserved solicitude for and protection of the rule of law, the Constitutional and other rights of all, the needs of individuals and groups who are unable to protect themselves and the fair, efficient and orderly administration of justice. While the political process has recognized substantial room for debate about how these interests should be defined and balanced and how public resources and governmental priorities should be allocated in support of them, support for these basic values at their core should equally be a matter of consensus among all reasonable factions of all political parties. The City Bar has consistently believed that advocacy in support of these values, especially if they appear to be challenged by proposed executive, legislative or judicial action, is entirely consistent with its institutional commitment to non-partisanship and inclusiveness of the full spectrum of political views. As an association of lawyers, we must be champions of the law.

During this transitional period following a particularly bruising election season, as the rhetoric of campaigns transmutes into the sometimes very different agendas, priority settings, compromises and other adjustments associated with finding points of achievable agreement and governing, the City Bar will initiate a process it traditionally has pursued following the election of new presidents (and governors and mayors). The first outputs of that process will be transitional memoranda presented to the new President and congressional leadership. Based on past experience, these memoranda likely will serve two purposes. Some will identify matters of long-identified importance in the City Bar’s advocacy agenda, and will urge attention to those agenda points and thoughtful consideration of the City Bar’s position. Others will be the product of consultation with committees that began immediately after the election results were known, and will be directed to addressing particular issues perceived as likely to be high priorities on the President-elect’s agenda and subjects of close attention in the short or intermediate term.

The City Bar has always treated its advocacy and recommendations to elected officials, regulators and courts as among its most important and serious activities, recognizing that it is speaking on behalf of a pluralistic membership and believing that its credibility is dependent on maintaining a highly thoughtful and inclusive process for development of Association positions. No report or recommendation emerges as the City Bar’s position until it has been the subject of discussion in one or more relevant sponsoring committees – each of which has been constructed to include leaders in the committee’s substantive discipline and to include a multiplicity of viewpoints. The product of the committees’ deliberations is then presented for comments to any other Association committees with overlapping subject matter coverage, then vetted and critiqued by experienced senior staff, then reviewed and approved by the City Bar president (in consultation as necessary with the Executive Committee).

This process does not always result in consensus. The exercise of exposing proposed positions to committee members representing a wide range of perspectives sometimes yields areas of common agreement that should carry extra weight because the inputs have been inclusive, but also sometimes yields impasse because positions cannot be reconciled. When agreement cannot be achieved, our most common institutional response is to expose the debate to fuller airing, by organizing a program and inviting members of the Association, other lawyers and the public to come hear the different points of view. But our Association has never believed that unanimity was a categorical prerequisite to its formulation of and advocacy for all positions that it presents externally. Any such requirement would ultimately be paralyzing to the Association’s ability to advance its mission. Instead, after identifying and hearing the competing points of view and attempting to harmonize them as much as practicable, the Association tries to resolve differences by reference to its longstanding mission of advancing the rule of law, the rights of all, the needs of those who are unable to represent themselves, and the fair, orderly and efficient administration of justice.

Our transitional memoranda to new Presidential administrations have included expressions of encouragement and support for some elements of the incoming administration’s agenda, proposed tweaks or modifications for other elements and expressions of concern (sometimes including urgent concern) about still others. The perspective of these memoranda is that of lawyers, seeking to contribute to the debate as an association of professionals trained in and dedicated to the law, and believing that the City Bar should be viewed – and in many quarters is viewed – as a leading rule of law think tank representing the best thinking of both the legal and the commercial establishment. Our ambitions are that our contributions speak effectively for our membership and our mission and become a constructive component of discussions about how to proceed.

The just-finished political campaign has been distinctive for the presence of rhetoric that indicated opposition to (and in some instances apparently intense rejection of) several matters of longstanding City Bar policy, and even matters that reach beyond policy and implicate fundamental values that have animated the City Bar over its entire existence. Commentary on those subjects going forward, and even passionate advocacy regarding some of the ones closest to the heart of our mission, seems not only consistent with our institutional commitment to non-partisanship but also essential to our institutional identity.

The City Bar’s focus going forward will not be on the rhetoric of the campaign but on proposed actions and policies of the governing agenda that present opportunities to work constructively with the new administration or that implicate Association policies or fundamental Association values.

The City Bar was founded in 1870 in substantial part to serve as a watchdog for the law. Its functions have expanded widely over the intervening century and a half, but that original function has remained intact. That mission necessarily requires the courage to advocate passionately in support of core values. That isn’t acting in a partisan manner; that is just protecting the rule of law, as an association of lawyers is particularly responsible and especially suited for doing.

We strongly encourage our members to engage with the City Bar in this process, and warmly invite non-members to become members, attend programs, join committees and participate in the development and articulation of positions.

John S. Kiernan is President of the New York City Bar Association.