New Hampshire Bar News: Guardians of Democracy in Challenging Times

As I sit to write this column, we are two weeks from Election Day. The outcome – and all the potential unrest that may surround it – remains an anxious unknown in my mind. It is my fervent hope that by the time this goes to print, our next president has been decided, but we may be living through a time of continuing uncertainty.

Regardless of your political views, we likely agree that the political environment of this election cycle has been turbulent. Civil discourse, with basic mutual respect in the discussion of opposing views, has been lost somewhere along the way, leaving little space between openly hostile confrontations and outright avoidance of “political” topics.

We have been barraged with antagonistic rhetoric, often directly contrary to demonstrable fact. We have witnessed a rise in political violence and threats of violence. Misinformation and disinformation abound, virtually unchecked, on social media and other platforms. There is a palpable apprehension emanating from many of our fellow citizens reflecting a deep sense of distrust in our most fundamental democratic institutions and systems – in our judiciary, our regulatory bodies, and our elections themselves. It not only is deeply disheartening, but it is also unnerving. When people do not trust the very systems that allow our democracy to operate, we are indeed walking a tightrope.

We cannot ignore the signs that the foundational principles of our democracy are, at a minimum, weakening in the eyes of many. Statistics reported by the ABA’s Task Force for American Democracy include a recent Pew study finding that 51 percent of Americans are “dissatisfied” with how democracy is working, and 46 percent reported being open to other forms of government, including “rule by a strong leader.”

At the same time, the ABA notes a 2022 Annenberg Constitution Day Civics Survey finding that 25 percent of US adults could only name one branch of government, while 20 percent could not name any. It does not require much of a leap to conclude that the lack of basic understanding on how democracy works fosters an environment where misinformation and misconceptions lead to distrust in its institutions.

The ABA Task Force on American Democracy was established in 2023 by then ABA President Mary Smith to “inspire and mobilize America’s duty-bound legal profession to actively support and defend American democracy, the Constitution, and the rule of law” and to find ways to use our education and skills to educate the public on the importance of those principles. Its August 2, 2024 report, found on the ABA’s website, provides a bleak view of the issues we face, but also provides specific action items that lawyers can take to support the rule of law. As the report states: “We need to rebuild our communities by working on ways to ‘disagree better’ and return to civil and respectful ways to exchange concerns and viewpoints.”

I could not agree more.

As lawyers, we are uniquely positioned to do something – to step up and step in to educate our communities on the rule of law, to counter misinformation, and to support democracy. Not only are we specially situated for this undertaking, but we should also consider it our obligation to do so. On the day we were sworn in as lawyers, we took an oath to uphold the constitutions of the United States of America and the State of New Hampshire. Our New Hampshire Professionalism Creed begins by recognizing that we, as lawyers, are the custodians of the rule of law. The importance of this custodian role is emphasized as its first tenet, that a New Hampshire lawyer “strives to . . . promote the democratic rule of law” and “embraces the profession as a higher calling.”

I encourage all of you to take whatever steps you can to foster civil discourse, correct misinformation when you hear it, educate people about the way our justice system works, and remind people that a difference of ideas and real debate make us stronger. Now is the time to embrace our role as the custodians of the rule of law.

New Hampshire Bar News, November Issue  |  President’s Perspective