Diversity in Practice: Pro Bono Perspective – The Lee Monument Matter

In this episode of Diversity in Practice, MoFo Pro Bono Counsel Dorothy Fernandez is joined by Joe Palmore, co‑chair of our Appellate and Supreme Court practice and managing partner of our Washington, D.C. office, and Washington, D.C. litigation associate Adam Sorensen, also a member of the firm’s Appellate and Supreme Court practice, to discuss the amicus brief they filed on behalf of award-winning historians David W. Blight and Gaines M. Foster, supporting Virginia Governor Ralph Northam’s order to remove the statue of Confederate General Robert E. Lee from Richmond’s Monument Avenue. After the podcast was recorded, the Virginia Supreme Court upheld the removal order, in a decision that recognized that “the Lee Monument was erected as a symbol of defiance to Reconstruction, and as an unapologetic statement regarding the continued belief in the virtue of the ‘Lost Cause’ and in the Confederacy’s pre-Civil War way of life, including the subjugation of people of African descent.”

Transcript

Speaker: Welcome to MoFo Perspectives, a podcast by Morrison & Foerster, where we share the perspectives of our clients, colleagues, subject matter experts, and lawyers.

Natalie Kernisant: Welcome to the Diversity and Practice Podcast, a part of MoFo Perspectives. My name is Natalie Kernisant, and I am the Chief Diversity and Inclusion officer for Morrison and Foerster. This podcast series is designed to provide a space to discuss a wide variety of issues related to diversity in the law and to introduce you to some of our talented, diverse attorneys, their areas of legal expertise, and the work that they and their MoFo allies do in furtherance of diversity, equity, and inclusion. It’s also our hope that by sharing D and I best practices, wherever possible, we can help make the legal industry a more inclusive place for those who are, in the words of our MoFo Former chair, Bob Raven, just a little bit different.

Dorothy Fernandez: Hello, my name’s Dorothy Fernandez, and I am a pro bono counsel in the San Francisco office of Morrison and Foerster. In this role, I work with community partners to identify areas where there is a need for pro bono help. And internally, I try to find meaningful pro bono opportunities for our attorneys. Joining me today are Joe Palmore, co-chair of our appellate and Supreme Court practice and managing partner of our Washington DC office, and Adam Sorenson, a litigation associate in the Appellate and Supreme Court practice and also resident in our Washington DC office. Joe, Adam, welcome to the podcast.

Joe Palmore: Thanks for having us.

Adam Sorensen: Yeah, thank you. It’s a pleasure to be here.

Dorothy Fernandez: I must say I’m really excited to have you both join me today to talk about the Amicus brief you filed on behalf of award-winning historians, David W. Blight and Gaines M. Foster, supporting Virginia governor Ralph Northam’s order to remove the statue of Confederate General Robert E. Lee from Richmond’s Monument Avenue. But before getting to that, I was hoping we might get to know each of you a bit better. Can you both tell us a bit about your practice and how you came to be at Morrison & Foerster doing the work that you do now? Joe, why don’t we start with you?

Joe Palmore: Thanks, Dorothy, I co-chair the Supreme Court and Appellate practice here at Morrison & Foerster, and I’ve been here for six years. I came to the firm after a long stint in government. Right before I joined Morrison & Forester, I was in the Solicitor General’s office in the Department of Justice. And that’s the part of the department that represents the United States before the Supreme Court. So I was doing appellate and Supreme Court litigation for the United States, and now I’m doing appellate and Supreme Court litigation at the firm. Adam, you want to give your story?

Adam Sorensen: Sure. It’s somewhat similar, quite a lot shorter. I clerked after law school, and then I did a one year fellowship in the office of the Solicitor General where Joe had previously worked. And, during that time I figured out that I really enjoyed appellate practice, so when I started asking around about good practices in D.C., MoFo really stood out to me, not just for its excellent work, but also for Joe and Deanne and Brian’s reputations as really kind and generous people to work with, and that’s important to me, and it’s what has made my time here so far really enjoyable.

Dorothy Fernandez: So Joe, as co-chair of the firm’s Appellate and Supreme Court practice, you have tremendous responsibility for selecting the matters the firm takes on. You talk a little bit about how those decisions are made?

Joe Palmore: Sure, and I’ll focus in particular on pro bono matters since that’s the subject of today’s podcast. And these can come to the firm and to the appellate group in a variety of different ways. There are a number of issues that we as a firm have a longstanding interest in and have worked on for many years. And I’m thinking of issues like voting rights, veteran’s issues, reproductive rights, LGBTQ equality. And so we do pro bono work in the appellate group in all those areas, but there’s also a tremendous amount of flexibility in the firm’s pro bono practice and in the appellate group’s pro bono practice to pick up matters in cases that are of interest to the attorneys. And that’s how Adam and I got involved in this particular case.

Dorothy Fernandez: Great. Let’s delve into today’s topic of discussion. Along with paralegal Chad Boardman, you and Adam filed an Amicus brief in the Virginia Supreme court in April in support of the Commonwealth’s decision to remove a statue of Robert E. Lee from Monument Avenue in Richmond. Joe, can you share a high level overview of the case? I assume the firm has a number of appellate matters it can take on, but what is it about this case in particular which spoke to you personally?

Joe Palmore: I should say at the outset that while this brief, as you mentioned, was for Professors Blight and Foster, anything Adam and I say on this podcast, we’re speaking for ourselves only. But just to give the backstory of this case, this statue has been in Monument Square in Richmond since the 1890s, and Adam is going to discuss the history in a moment, but there has been increased attention to these Confederate monuments in recent years, both nationally and in Virginia. In particular, in 2017, there was the violent so-called Unite the Right Rally in Charlottesville, which focused on a different Robert E. Lee statue there in Charlottesville that the city was endeavoring to take down. Then, of course, with the murder of George Floyd in the summer of 2020, there was even more focus on these monuments and a growing sense that they really needed to be removed. Last summer, Governor Northam, the governor of Virginia, ordered the removal of the Lee statue from Monument Avenue. It is on state land there. And then the Virginia state legislature subsequently passed a law also directing the removal of the statute. Several private lawsuits were then filed and they really boiled down to, essentially, property law claims. This land was deeded to an organization which then transferred the land to the State of Virginia in the late 19th century, and the plaintiffs in these lawsuits, one of whom is a descendant of some of the original land owners and the others are neighbors, argue that there are deed restrictions that require this land to be used for this statute of Robert E. Lee basically forever and that these deed restrictions disable the state from taking down the statues. Those claims were rejected in the lower courts in the Virginia state court system. The plaintiffs appealed to the Virginia Supreme court, and that’s the case that is now pending. And Dorothy, you also ask what it was about this case... That kind of spoke to me personally, and I guess that there are a couple things about it. I’ve long been very interested in history. I got my law degree actually at the University of Virginia, but also got a master’s in legal history at the same time, and my thesis was about railroad segregation in the south in the late 19th century up through the 1930s and 1940s. So I’ve long been interested in this period, and I actually have an even more personal connection. My great-great grandfather. So my grandfather’s, grandfather fought and died for the Confederacy. His name was Robert Washington Palmore. He was in the Alabama infantry and he was killed in action at the Battle of Chickamauga in 1863, and it’s something that I kind of was aware of growing up, although it’s not something we talked about a lot. But especially as I’ve gotten older and became more interested in history, it’s something that I’ve thought a lot about, this idea of Confederate memory, which is very much at issue in this case and in the brief that we filed.

Dorothy Fernandez: Oh, thank you for sharing that bit of your personal history. A lot of attorneys don’t have personal connections like that to the work that we do. Adam, can you tell us about the arguments presented in the Amicus preview submitted? Why was it important to make those points and how are they responsive to the other side’s arguments?

Adam Sorensen: Sure. I think, more than anything else, the brief really recounts the story of the Lee monument and what it really is, what it’s not, and what it stands for as a symbol, and always has stood for. So the opening, the brief talks a lot about the two decades or so immediately following the Civil War, you know, and about 2% of the entire population of the country had died in the war. So I think everywhere, including the south, just spent that period of time really grieving the loss. And it was at this time that these monuments to Confederate veterans started going up, but those early monuments looked absolutely nothing like the ones I think of when people say Confederate monument and certainly the Lee monument in Richmond. So these were mostly built in cemeteries. They were fairly nondescript, often obelisks or pyramids, or they might be draped with a shroud, and they had very simple inscriptions like to the Confederate dead. And there were Memorial Day speeches mourning the dead, but this was not, in any way, celebration of the Confederacy. This was really about grieving. There’s actually a picture in our brief that you can see if you look it up of one of these typical early monuments and it’s striking in just its simplicity and really conveys a message of mourning, which I think makes sense given where the country was at the time, but around the time that the Lee monument in Richmond was unveiled, there was this sort of dramatic shift, and it sort of went away from mourning the dead and more toward celebration, really. And this was white southerners celebrating their victory over reconstruction and reasserting their political control and sort of stating their defiance against black suffrage and black political participation in the south. So, part of the story of the Lee monument is there were these competing committees raising money to put it up and who they were and what they thought. But I think the key move that the brief makes, the most important moment, is that it pushes back against this notion among some modern defenders of Confederate monuments that the effort to take them down is all some form of political correctness or cancel culture. And I think that what Professor Blight’s and Professor Foster’s and others works really shows is that could not be further from the truth. The Lee monument was seen at the time it went up both by proponents and of critics as a symbol of white supremacy. And it was really important to us to include some historical black voices in the brief stating what they felt when this first went up. And there’s this amazing line from John Mitchell Jr., who was a former slave who became a Richmond City Councilman and a newspaper owner, who witnessed unveiling ceremony. And he says the entire enterprise, including the Confederate soldiers marching through the streets and this huge grandiose monument of Lee on his horse, that it all handed down, quote, to generations unborn, a legacy of treason and blood. And I think it was really striking words and it proved incredibly prescient. I mean, the last part of the brief just talks about what that legacy of the Lee monument really was and how he became an icon of the lost cause movement, sort of rewrote history in an effort to make the narrative of the civil war not about slavery, but about state sovereignty or defending homes or something entirely different. So, it’s interesting. I think that the Lee monument really took on a life of its own, along with the lost cause movement, and became a rallying cry for Jim Crow laws and the Ku Klux Klan in the early 20th century and more recently white nationalists in places like Charlottesville. So just explaining that whole story was important, I think, to Professors Blight and Foster and other historians, and I hope that it will help the justices understand the full context in which the statute was put up.

Dorothy Fernandez: I really appreciated the history and the brief. As Joe mentioned that the monument issues have been in the news quite a bit for the last few years, but they really only touched the surface of the history of the issue. So I thought that the in depth look and the brief was quite informative. I realized that not many folks know the immense effort and time put into preparing an Amicus brief, so I’d like to take a moment to ask you both to talk a little bit about the journey of how the brief went from ideas to being filed with the Virginia Supreme Court. Joe, I’ll start with you. How is it different to represent historians regarding their positions in an Amicus brief than how folks usually think about representing clients in, say, a litigation matter before trial court?

Joe Palmore: This was an unusual brief. We didn’t cite a single case. We didn’t make legal arguments in this brief. We were citing historical sources, and that was the point of the brief, really, to provide critical context to the court when it was deciding these legal issues. The deed restriction that I mentioned earlier said something like that this land shall be held and used for the monumental purpose that is intended. So we felt it was critical to explain exactly what that purpose was at the time it was enacted, and as Adam said, how it was understood at the time that that statue went up, not only by black Virginians, but by others, as well. So the sources that we cited were historical books, including some by our clients, but also first person accounts and other historical evidence about what this statue meant at the time it was erected and what it meant in the decades following.

Dorothy Fernandez: Adam, what role did these particular clients, Blight and Foster, have in crafting this brief?

Adam Sorensen: So we had a long conversation early on with Professor Blight, where he gave us his vision for what he wanted to say and pointed us toward important sources and books that we could mine for useful material. One of the primary sources that we relied on was a book by Professor Foster. And I think that his work in Professor Blight’s work has really been central in this area. The professors gave us comments after we worked up a draft, but really a lot of this, the task of drafting the brief, was condensing down and explaining the important work they had already done in this area in form of books and articles and turning into something that would hopefully be useful to the justices.

Dorothy Fernandez: Staying with you for a moment, Adam, if you can, please also talk a bit about the research and drafting. What role did you take as an associate on this piece?

Adam Sorensen: So, normally the role of the associate on a brief, at least in my practice, is to start off doing the deep dive research and move on to the drafting. But I was really lucky here to have our fantastic paralegal, Chad Boardman, to help me on this. He’s a history buff, and he really dived in and took ownership of this project and was a huge part of its success. So I don’t want to take any credit for his great work, but I did some research, too, and a lot of reading. And as an associate, as I said, I’m also the primary drafter, so I had a lot of fun stitching together the research here into a narrative. I think this particular topic and the source material was really rich. And I enjoy writing generally, but this one was particularly pleasurable to put together.

Dorothy Fernandez: Joe, any thoughts on how this shakes out with the Virginia Supreme Court? And when can we expect a decision?

Joe Palmore: I suspect that we’ll get a decision sometime this year. I don’t want to hazard a prediction on how it’s going to come out, but I will observe that the Commonwealth and Governor Northam did win in the lower court, so they have momentum going into the appeal, and they also have a number of different ways that they could win. They argue, most basically, that the law that the Virginia legislature passed really defeats all of plaintiff’s claims, because it states the public policy of the State of Virginia and public policy can trump deed restrictions. And they also have a number of more technical property law type arguments. So there are a number of different ways the Commonwealth could prevail in this case, but we don’t know it exactly how it will turn out. I will also observe that there was another case in the Virginia Supreme Court recently involving the Lee statue in Charlottesville, which we discussed earlier. And the Virginia Supreme Court unanimously held that Charlottesville had the authority to take that statue down. Now the legal issues are different, but the subject matter is obviously very similar. So there’s one data point there and a recent decision.

Dorothy Fernandez: Switching gears a bit, I’d like to talk a little about the foundation you both have in pro bono and public service and the impact it’s had, if any, on your career trajectory and the work you’ve both chosen to do today. Adam, your commitment to pro bono goes back at least as far as your time as a UVA law student, where you were a pro bono volunteer for the Legal Aid Justice Center. Did that commitment influence your decision to specialize in appellate law?

Adam Sorensen: I wouldn’t say it led directly to appellate law, but I would say that it’s always been an important part of legal practice to me. I felt very lucky to get to volunteer for a great organization in law school and work on interesting projects. And it’s something that was important to me when looking at different places in terms of private practice, and I am very grateful for all the opportunities I’ve had to work on a really broad range of pro bono cases here at MoFo.

Dorothy Fernandez: Joe, are there any connections between matters you worked on in the government and the pro bono you’ve done at MoFo?

Joe Palmore: I think there are. Taking a step back as a kind of a broad matter, early in my career, I had the incredible honor and good fortune to clerk for Justice Ginsburg on the Supreme Court. And before she was a judge and a justice, she was one of her generation’s preeminent advocates in the appellate courts, in particular on issues of gender equality. And so that ethic of service of hers was something that I deeply admired and have tried to emulate in my own very small way. And in terms of connections to my work at the Department of Justice, one of the major matters I worked on for many years was the defense of the Affordable Care Act that led to the decision of the Supreme Court in NFIB versus Sebelius. I worked on those cases from the time they were in the district courts, which started literally the day that President Obama signed the statute. There were lawsuits filed and then up through the courts of appeals and then in the Supreme Court. And I’ve continued that work in and around the Affordable Care Act and healthcare issues here at Morrison and Foerster. I’ve filed Amicus briefs for law professors in the current case that’s pending at the Supreme Court, which involves yet another challenge to the constitutionality of the statute. I’ve also represented the American Cancer Society and a number of other major disease groups in litigation about other provisions of the Affordable Care Act, including the anti-discrimination provisions of the Affordable Care Act and efforts by the previous administration to deny healthcare discrimination protections to LGBTQ patients. That’s been a thread for me between my government service and my time here at MoFo.

Dorothy Fernandez: Having practiced for over two decades, you’ve witnessed how appellate rulings often disproportionately impact communities of color. According to the appellate project, over 30% of students enrolling in law school are students of color, yet very few end up in appellate practice. Too often these students like the information, resources, and confidence, they need to pursue appellate opportunities. The appellate projects goal is to change that. Can you speak to what compelled you to get involved with the project and what you hope to see accomplished over the next three years?

Joe Palmore: Yes. Deanne Maynard, who co-chairs the appellate group here at MoFo and I are both really active with the appellate project, and the Morrison & Foerster foundation has also been a significant donor to the appellate project. And I think it is critical, really for the reasons that you said Dorothy, that appellate decisions can be hugely consequential for everyone, but in particular, many of them are hugely consequential for people of color. When you look at the appellate bench in this country, you don’t see that representation there. And when you look at the appellate bar, the people who are arguing in the Supreme Court and arguing before the appellate courts, you also see a real lack of representation from affected communities. The appellate project is trying to change that and is having great success at doing so. And one of the ways that it is operating is by working with law students. Beause as you said, over 30% of students enrolled in law school are students of color, and many of them may be first generation students. They may not be aware of what the appellate practice is and may not be plugged into clerkship networks. And the appellate project is meant to kind of break down those barriers and provide mentoring, provide advice, encourage students of color to clerk, because really the clerkships are kind of a gateway into appellate practice, whether it’s at law firms or government or public interest. And then those appellate practitioners are often tomorrow’s judges. So, it’s critical to get that flow going right out of law school so that we can do something to rectify that lack of diversity on the appellate bench.

Dorothy Fernandez: To any law students listening, especially law students of color, what advice do you both have for them about how to pursue a career in appellate work? How about we start with you, Adam?

Adam Sorensen: So, I think as Joe said, there’s a serious representation problem in the appellate bar. So I think the first thing I would say is just to know like that this is for you. Don’t think that because there is not enough representation in the appellate bar does not mean that this is walled off. It is not. I think that the path to appellate practice is fairly well-tread. I mean, you know, there are a lot of boxes to check on things like clerking that Joe mentioned is really important, but also the precursors to that, which is participating in journals while at law school, doing research assistants and getting to know your professors helps lead into that pathway. So, doing those things and working hard with law school and just remembering that this is for you, even if you don’t necessarily see yourself widely represented in the bar, you can do this and you can make it.

Dorothy Fernandez: Joe, do you have anything to add?

Joe Palmore: I mean, I agree with everything Adam said, and I think it’s really critical to look for mentors, formal and informal, and to just talk to people and get advice. I think that appellate practice has a reputation for being fairly clubby, and some of that reputation is justified. At the same time, however, I’ve found that the vast majority of appellate practitioners are very friendly and accessible. And I think just reaching out to people or asking for an introduction if your professors know someone who practices in this area. Again, it doesn’t have to be at a big firm. It could be at a small firm. It could be at a public interest organization. It could be for government. If this is something that’s of interest to you, find people to talk to who do it and ask them how they got there and what advice they might have. I have those conversations with law students and young lawyers all the time, and I encourage anyone listening who wants to reach out to me, please, don’t hesitate to do that. Another piece of advice, which is kind of at a different level, there’s a really thriving group of appellate lawyers who are very active on Twitter. I’m there, and a lot of folks are, both who practice in government and in firms, and even some appellate judges, are also on Twitter. I mean, even if you don’t want to be active and tweet, just following some of these folks and seeing what they say and what they’re up to, what articles they tweet out, is just a great way of immersing yourself in the practice and learning about it. So I think the key thing is just to knock on doors, and I think you may find that many of them open.

Dorothy Fernandez: Thank you both for this engaging and informative conversation. And I hope everyone will take a few minutes to read the brief that will be linked to this podcast episode. It really is a great read. It provides great historical context that you might not get anywhere else on these issues. Thank you.

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