Gardner Culpepper is an Atlanta commercial litigator who got worried by President Trump’s attacks on the judiciary, the media, so he sat down to write a letter. He ended up with a powerful, but measured missive to Georgia’s two Senators asking them to reflect on some of the President’s proposals and “their potential synergistic impact on our democracy.” He told the Daily Report that he had never been actively political before, but he shared the letter with a few dozen lawyer friends, and within a few days, hundreds of Georgia Bar members had signed on.
In an email to Dissent NewsWire, Culpepper explained how important the civil libertarian, pro-democracy voice is in this debate:
“I really think so many lawyers of all political stripes have a feeling that at least some of the tactics that the President uses are damaging to our democracy and constitutionally worrisome. Coming up with the list of tactics that the vast majority of lawyers would agree upon as wrong, even if they ultimately support many of the President’s substantive policies, is hard. But I really believe that there is such a list. For example, I would venture that calling the press the enemy of the people qualifies. I have the sense that lawyers are having a hard time finding a way to voice their concerns in an apolitical way. The ACLU and ADL are fine organizations but, rightly or wrongly, have the taint of the political and will not bring lawyers of all political persuasions together. There is a searching going on among lawyers, I think. Rank and file lawyers, I hope and truly believe, are trying to find themselves, others, and their voice. There is great unmined potential there. The problem, in my view, is that many of the groups speaking the loudest complain about the tactics that are damaging to our constitution and democracy in the same breath that they complain about substantive conservative policy. When activists conflate the two they normalize the former, feed the sore loser narrative and damage the chances for a unified coalition that would stand up against those things that truly tear at our American civil religion. Judge Gorsuch (who I respect, having once worked with him), tax reform and healthcare policy are NOT the same thing as calling the press the enemy of the people and imposing a religious test for entry into the country. Any victorious Republican might well have done the former; no President in my life time, no matter the party, would have ever done the latter. I hope so badly that lawyers are a demographic that can find a way to put left and right aside and focus on firm and civil opposition when very core American values are at stake. That is why, for the first time in my life, I drafted a letter to my Senators asking them to be a moderating force and why I suspect so many signed it. There were many who enthusiastically helped.”
The full letter outlines six concerns and is available here. The first three points of the letter are shared below, along with the conclusion:
Dear Senators Isakson and Perdue:
Like you, Georgia lawyers swear an oath to “support and defend the Constitution of the United States.” We are also guided by the State Bar’s Aspirational Statement on Professionalism, which calls on us to use “appropriate methods of effecting positive change in our laws,” comment “publicly upon our laws” and strive “to improve our laws and legal system.”
Mindful of these obligations and aspirations, we write now to urge you both, as our Senators, to please carefully reflect on some of the policies and positions being advanced by our President and their potential synergistic impact on our democracy. We are deeply concerned that the values and constitutional ideals upon which this country was founded are suffering.
1. The President’s disparaging and dismissive language regarding the judiciary is damaging to our country. His reference to a “so-called judge” and his policy advisor’s statement, made in frustration over a court ruling, that the President’s authority in matters of national security “will not be questioned” are not merely partisan political remarks. They erode public confidence in our judicial system. When these attacks are let to pass with neither remark nor opposition from our political leaders, they start to become accepted by a desensitized public. History tells us that undermining public faith in the courts is a potential first step down the path to forms of government much less appealing than the representative democracy we now enjoy. We urge you to exercise whatever influence you have to stop our country from taking any further steps down this path.
2. We ask you to vigorously and publicly oppose any law that is enacted for the purpose of imposing a religious test for entry into our country. Any such law is either unconstitutional or so antithetical to the values underlying the First Amendment that it cannot be justified. We are also depending on you to help us all guard against a general sense of fear being used to dull our constitutional reflexes on this point. In September of 2001—days after 9/11 and in a time of great insecurity—former President George W. Bush made the following eloquent remarks regarding the quest to balance our fears and needs for security, on the one hand, with our constitutional and democratic national values, on the other hand:
“America counts millions of Muslims amongst our citizens, and Muslims make an incredibly valuable contribution to our country. Muslims are doctors, lawyers, law professors, members of the military, entrepreneurs, shopkeepers, moms and dads. And they need to be treated with respect. In our anger and emotion, our fellow Americans must treat each other with respect. Women who cover their heads in this country must feel comfortable going outside their homes. Moms who wear cover must be not intimidated in America. That’s not the America I know. That’s not the America I value. I’ve been told that some fear to leave; some don’t want to go shopping for their families; some don’t want to go about their ordinary daily routines because, by wearing cover, they’re afraid they’ll be intimidated. That should not and that will not stand in America. Those who feel like they can intimidate our fellow citizens to take out their anger don’t represent the best of America, they represent the worst of humankind, and they should be ashamed of that kind of behavior. This is a great country. It’s a great country because we share the same values of respect and dignity and human worth.”
When our current President promotes laws, policies and ideas that disregard and diminish these values in the name of fear or security, we all depend on other political leaders to remind him that leadership requires a balancing of values and security but never an abandonment of values.
3. The foundation of our representative democracy is the First Amendment, which limits the power of the government to disrupt the marketplace of ideas. It is this marketplace—occupied principally by the press—that supplies all of us with the information we use to make decisions when we vote. If the government controls or interferes with that marketplace, our foundation crumbles. The President is entitled to criticize and disagree with the media. And all media sources are prone to some biases. But there is a difference between criticism (especially that leveled on the campaign trail) and Presidential attacks designed to wholly discredit the reporting of facts. When the President uses his office to label not just certain stories but entire news organizations as “fake news”—as if these organizations are equivalent to those that falsely reported the existence of a child pornography ring in the basement of a restaurant—the highest ranking government official in our land is disrupting the marketplace of ideas. In so doing he may not breach the First Amendment, but he scrapes harshly at its philosophical underpinnings. We recognize that the line between acceptable criticisms of, versus unacceptable attacks on, the media is sometimes difficult to discern. As your constituents, we are relying on you to exercise exactly this kind of judgment and to speak out when the line is crossed.
Undermining the courts and the press, nurturing fear of certain religions and immigrants, and disregarding the truth and the principles of open government are the beginning ingredients of a non-democratic way of life. We are very worried that recent events will be judged in the future as the beginning of an unwelcome part of our American history. Please carefully consider not just the impact of any one single act taken by our President but also how his actions in aggregate are negatively impacting our democracy. As our Senators, we depend on you to defend our most core constitutional and democratic values and to speak loudly when they may be threatened. You are our voice.
Thank you both for your service and for protecting our country.