WFLS Awards Homer E. Moyer, Jr., with the Harry LeRoy Jones Award

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Below is the acceptance speech of Homer E. Moyer, Jr., of Miller & Chevalier, who received the Harry LeRoy Jones Award at the Washington Foreign Law Society’s Annual Dinner Gala on Tuesday, November 15, 2016.  Mr. Moyer was the co-founder and chair for twelve years of the American Bar Association’s Central European and Eurasian Law Initiative (CEELI), which provides technical legal assistance to emerging democracies of the former Soviet bloc.  Former Attorney General Janet Reno called CEELI “the worthiest pro bono project that American lawyers have ever undertaken.”

He also founded the CEELI Institute, headquartered in Prague, Czech Republic, and has served on the American Bar Association’s Rule of Law Initiative’s board since its inception.  He served in the U.S. Department of Commerce as a political appointee of presidents from both parties and he has been a major driving force behind Miller & Chevalier’s preeminent international law practice.

Following a heartfelt introduction by Mark Ellis, Executive Director of the International Bar Association, Mr. Moyer delivered uplifting remarks:

REMARKS BY HOMER MOYER

Washington Foreign Law Society

Tuesday, November 15, 2016

Mark, thank you for your exceedingly generous introduction.  Renaud and Susan, thank you also for your kind remarks.  And to Stu and Jay for hosting this wonderful event.  And thanks so much to all of you – it’s a great pleasure to see so many old friends, colleagues, and distinguished guests.

As a first order of business, I would like to recognize some of the many folks who deserve to be here on the dais with me, but who are not.  At the top of the list are my wife, Beret, and our four children, all of whom have been swept up in my various legal escapades, taken from time to time to far reaches of the world, and inconvenienced on countless occasions, but who have provided love and support, as well as occasional free counseling.

Miller & Chevalier, my extraordinary law firm, is a firm that is both insistent on providing world-class legal services and supportive of pro bono, public service work.  Without Miller & Chevalier’s support of my work with CEELI and the CEELI Institute, there would have been little for Mark to say.  More importantly, the pro bono work of thousands of lawyers depends on the support of scores of public-spirited law firms, such as Miller & Chevalier and Covington & Burling, one of tonight’s sponsors and the firm where I first practiced law and first saw the combination of world-class work and strong pro bono commitment.

Accolades must also go to Sandy D’Alemberte and Mark Ellis.  Sandy, who cannot be here tonight, has been an innovative, creative force throughout his career, in private practice, in the Florida legislature, as dean of Florida State’s Law School, as president of the ABA, as president of Florida State University, and as the other co-founder of CEELI.  Sandy is an inspiration to Mark and me, and to many others.  Mark Ellis, CEELI’s first Executive Director, guided CEELI through its first decade with both substantive and political skills, and for the last 15 years, he has been the constant driving force in transforming the International Bar Association into the influential “global voice of the legal professional,” as it likes to call itself.  Mark, what you have done is extraordinary.

Most of all, this stage should be crowded with the thousands of lawyers and judges who served without pay as CEELI and ROLI volunteers in scores of countries around the world.  They, and their local counterparts fighting to establish the rule of law in their countries, are the real heroes.  They are the virtual honorees of tonight’s event — young lawyers, mid-career lawyers, lawyers on sabbaticals, senior lawyers, and retired lawyers, from law firms, corporations, U.S. Attorney’s offices, public defender offices, NGOs, academia, and courts, the Supreme Court included.  They represent the best of our profession and embody the public service ethic that brings great credit to the legal profession in our country.

So with them in mind, I would like to say a few words about the rule of law, and I would like to do so from the perspective of someone in private practice — from the perspective of all of us who are neither Supreme Court Justices nor Secretaries of State, but who believe in the rule of law.

In the last generation, this phrase, the “rule of law,” has been popularized almost to the point of becoming a cliché.  Although now ubiquitous, the phrase has proved difficult to define precisely.  The World Justice Project convened scholars and laureates to produce a definition, one that is quite good, if a bit lengthy.  But others have written entire books on the topic.  And there is at least one bookmark on the subject – it contains Justice Kennedy’s succinct three-part definition of the rule of law. Copies are on your tables.  However, when countries like China and Russia profess loyalty to the rule of law, they have in mind quite different definitions.

And if we lawyers can’t agree on a definition, we can hardly expect our non-lawyer friends to have a crisper definition.  My favorite comment about the public’s understanding of the concept comes from Lord Bingham’s wonderful book, entitled The Rule of Law, in which he said that most members of the public “are inclined to think that it sounds like a good thing rather than a bad thing, . . . wonder if it may not be rather important, but . . . are not quite sure what it is all about and would like to make up their minds.”

What seems easier is defining or recognizing the absence of the rule of law.  We all recall Potter Stewart’s infamous definition of pornography, namely, “I know it when I see it.”  The rule of law analog may be “We know it when we don’t see it.”

This is not altogether inappropriate because for anyone who has lived without the rule of law, the concept is neither ambiguous nor abstract.  For those who lived in the countries that emerged from the Soviet Union in the early 1990s, rule of law issues were personal, passionate, immediate, and sometimes existential.  The absence of the rule of law allowed brutal repression, the suffocation of basic freedoms, Kafkaesque justice, and destroyed lives.

Today’s failures of the rule of law are no less horrific, from ISIS’s systematic extermination of religious communities through beheadings and executions; the mass incarceration of hundreds of lawyers in China and thousands of judges in Turkey;  territorial aggression in the South China Sea and Ukraine; the abduction, trafficking, and sexual exploitation of school girls in Nigeria; the theft of billions of dollars by heads of state who have made their countries “kleptocracies”; war crimes on both sides of the Gaza conflict; and more, including from time to time issues here in the United States.

Today’s rule of law failures range from unthinkable atrocities to low-visibility abuses visited on individuals who have no recourse.  It is these types of issues that CEELI, ROLI, the CEELI Institute, the IBA, and courageous individual lawyers around the globe are tackling.  The need and demand for their work reminds us that as a global civilization, we still have a way to go.

How does all of this relate to us, lawyers practicing law in law firms in our nation’s capital, working long hours on behalf of clients with complex, sophisticated legal problems?  One way is that the thousands of CEELI and ROLI volunteers have all been lawyers, just like the rest of us.  While not everyone is in a position to move to the other side of the earth for a year to work without pay helping to build the rule of law, the opportunities to make a difference come in many different shapes and sizes.

The magic of CEELI and similar projects is that they tap into a spirit that inhabits our profession – an instinct for public service and a desire to make the world a better place.  Not everyone who goes to law school does so because she or he wants to improve the world or work for a non-profit, or become president of the United States; but those motivations run deeper in our profession than in any other.  It is part of the DNA of the legal profession.

But strengthening the rule of law is not just pro bono work or government service.  It is also the work that lawyers in private practice do.  For example, we lawyers in Washington work every day with regulatory regimes, ranging from workplace safety to managing communication band widths.  We typically think of government agencies as the enforcers of those regulations.  However, the reality is that enforcement agencies are but a small tip of the enforcement iceberg.  It is, in fact, the private bar – the thousands of lawyers who advise clients on a daily basis – who guide compliance and ensure enforcement of laws and regulations.  We miss a fundamental reality if we assume that it is just judges and government lawyers who are custodians of the rule of law.

Each of us is a custodian, every day, guiding clients, helping them access legal processes, participating ethically in adversary proceedings, enabling clients to get their “day in court,” and ensuring that private parties and the government get an equally fair shake.  Our adherence to the rule of law may sometimes be imperfect, but our daily commitment to implement it fairly, effectively, and honorably is a responsibility we all share.

Finally, let me ask what we have learned and come to appreciate about this concept, the “rule of law.”  The experiences of CEELI and the CEELI Institute and ROLI and the IBA demonstrate that establishing rule of law is not a short-term project.  The rule of law, we have come to appreciate, is a lofty aspiration and a demanding standard.  Most important, perhaps, is understanding that the phrase “the rule of law” is short-hand, a simple phrase for a multi-faceted, challenging ideal.  Although the phrase may glide easily off the tongue, even Justice Kennedy’s succinct three-part test is jammed with challenging demands.

His first is that the government itself and its officials must themselves be accountable under the law and bound by it – a notion that remains a distant aspiration for many societies around the world.  Likewise, an independent, honest, incorruptible judiciary – essential to the rule of law – is not yet a reality in many parts of the world.  And if the judiciary is corrupt or can be manipulated or compromised, then there is no court of last resort.  When there is no recourse in court for failures or abuses elsewhere in a government, the rule of law becomes just a discretionary courtesy.

We in the United States may be able to say that we do a respectable job of holding the government and its agencies to account under the law – that is, after all, what many of us in this room do on a daily basis.  And we also have a judiciary that is widely respected, whose decisions are routinely honored, with judges who, almost without exception, are dedicated, talented public servants — Judges like Judge Pat Wald and Judge Tom Griffith, both of whom are with us tonight.

But keep reading — because virtually all definitions of the rule of law talk about equality and equal treatment under the law.  We need not look very far to appreciate that this is a tall order.  It is an ideal for which we in our country have been striving for more than two centuries, and we are still in the thick of that struggle.

Our wonderful Constitution, noble as it is, was flawed from the outset.  For nearly 100 years it accommodated slavery, denying slaves freedom, citizenship, and the right to vote.  140 years passed before women were given the same right to vote as men.  By the time the Civil Rights Act and the Voting Rights Act were adopted, adding starch to the 13th, 14th, and 15th Amendments, our Constitution was about 180 years old.  Equal treatment and non-discrimination on the basis of sexual orientation is just our most recent challenge.

As we in the United States are frequently outspoken advocates for the rule of law, and sometimes its merchants, we must acknowledge and address our own shortcomings.   We can of course take pride in the fact that our country has taken historic steps to strengthen the rule of law, but we must also know that implementing such a noble ideal is a constant, ongoing enterprise.  And we, as lawyers, must know that the rule of law imposes unique responsibilities on us.

Today, In our country, we are one week into a period of profound uncertainty.  There may be surprises to come all around, possibly even some that could implicate the rule of law.  To be sure, the rule of law is not everything.  It does not tell us whether our income tax should be flatter or more V-shaped, or how to optimize national health care, or how best to protect our environment.

But the rule of law and the values it embodies are deeply woven into our national fabric.  They define who we are and what we stand for as a nation.  So if a time should come when our government officials put themselves above the law, or when the human rights of all persons are not being protected, or when the law fails “to respect and preserve the dignity” of all persons, it is we, members of the legal profession, custodians of the rule of law, who must be the first responders in defending and protecting values that have generated admiration and respect for our country around the world.

With these obligations in mind, it is appropriate here tonight to salute those lawyers and judges who, through their work with CEELI, the CEELI Institute, and ROLI have made lasting contributions to the rule of law in the world.  But it is equally important also to honor all of the individual lawyers who advance and protect the rule of law in small and inconspicuous ways, in the daily practice of law.  Regardless of the various roles that we lawyers play, the phrase “the rule of law” is our phrase, and we are its trustees.

To all of you, thanks for being here.  Thanks for thinking about how big ideas and aspirations fit into the small, personal spaces of our everyday lives.  And thanks for taking a few moments to appreciate why we in this country, in this city, in this profession are a privileged lot who share special responsibilities as protectors and custodians of the rule of law.

Posted November 16, 2016 in: General News