Good morning, everyone. Father Leahy, Dean Rougeau, thank you for that very generous introduction. Faculty members, family and friends of the graduates, and members of the 2016 graduating class of Boston College Law School – congratulations to all of you. [applause]
You can all relax – I'm not going to talk about the election. But I am so honored to be here to celebrate with you.
Dean Rougeau mentioned that I used to work at that other Boston-area college, across the river. During my time there, I really came to appreciate and respect BC Law as a unique institution, proudly rooted in its Jesuit heritage, with renowned programs in human rights, social justice and public interest law. One of my Senate predecessors from New Hampshire, the late Republican Senator Warren Rudman, was a graduate. He was a lion in the Senate and I think he exemplified some of the proudest principles and traditions of the education that he received here.
During my time in the Senate, I’ve had the privilege of working with many BC Law alumni in Congress, including Ed Markey, John Kerry, Mike Capuano, Paul Hodes, Bill Delahunt, and Stephen Lynch. Now, it may be just a coincidence that they’re all Democrats. Not going to comment on that.
My first choice for a topic, today, was to speak out against a grave and outrageous injustice perpetrated by the federal judiciary. I’m speaking, of course, of the U.S. Court of Appeals decision to reinstate the four-game suspension of Tom Brady. [applause] An outrage, don't you think? However, my staff suggested that not everyone in the audience would appreciate that topic. Most of us do, though.
Instead, I want to address a serious matter that truly is at the heart, I believe, of America’s democratic system.
For more than two centuries, the foundation of our democracy has been our independent judiciary and our impartial legal system?—?judges, courts, and law enforcement that are above partisan politics, insulated from populist passions, shielded from the influences of money. But, today, these independent institutions face clear and present dangers.
This is a threat that has been building for years?—?and now it is reaching a crisis stage. Exhibit A, of course, is the unprecedented refusal by the majority party in the United States Senate to even hold hearings on the president’s nominee to the Supreme Court. That has never happened in the history of this country.
But the threat goes far deeper than the fate of Merrick Garland. The majority party in the Senate has also refused to allow a vote on 20 nominees who are waiting to serve on federal courts. Since last year, just 17 judicial nominees have been confirmed. By contrast, in the last two years of George W. Bush’s tenure, a Democratic Senate confirmed 68 judicial nominees.
We have seen isolated attempts to politicize the judiciary in the past. The most brazen example, as I'm sure you know, was in 1937 when President Franklin Roosevelt was frustrated by the Supreme Court’s 5–4 decisions striking down his New Deal programs. He retaliated by threatening to pack the court with liberal justices. The swing vote, Justice Owen Roberts, reversed himself?—?which history remembers as “the switch in time that saved nine.”
What we are seeing today is different. It is not an isolated episode. Refusing to vote on the President’s nominee for the Supreme Court and scores of nominees for lower courts threatens to politicize the federal judiciary systemically. Equally important, this kind of partisan gridlock further undermines citizens’ faith in the institutions of our democracy.
In recent months, we have also seen threats to the independent judiciary on the presidential campaign trail. One candidate proposed a constitutional amendment to subject Supreme Court justices to periodic judicial-retention elections. Others have suggested litmus tests of various kinds for judges on various policy issues. This would turn Supreme Court justices into de facto politicians, mindful of public opinion, and running for reelection. But as former Justice Sandra Day O’Connor said: “If Americans start thinking of judges as politicians in black robes, our democracy is in trouble.”
Fortunately, we have sterling examples of judges who have stood courageously for judicial independence?—?often at great personal cost. One striking example is a federal judge who, sadly, has been almost forgotten by history – Waties Waring. Waring was born in 1880. He was raised in Charleston, South Carolina. The son of a Confederate soldier, he accepted the system of Jim Crow segregation. Then, in 1942, President Roosevelt nominated him to serve on the U.S. District Court in Charleston, where he later became chief judge.
Judge Waring proceeded to end segregated seating in his courtroom. He appointed an African-American bailiff. Beginning in 1944, he handed down decision after decision breaking down segregation in South Carolina. He ruled in favor of equal pay for black teachers. He declared the all-white Democratic Party primary unconstitutional.
Judge Waring received death threats. Crosses were burned in his yard. He was ostracized and vilified across the South.
Then, in 1951, in a landmark school desegregation case that later was the basis for Brown v. Board of Education, Judge Waring wrote that segregation is inherently unequal. He later said that he was touched by the huge turnout by African-Americans to hear oral arguments in the case. He wrote: “They’d never known before that anybody would stand up for them, and they came there because they believed the United States District Court was a free court. . . . It was like a breath of freedom.”
Of course, it’s not only judges who defend the independence of our judiciary and legal system. Historically, attorneys have also played powerful roles.
One of the most famous examples took place in Boston in 1770, following the Boston Massacre. A grand jury indicted the British soldiers blamed for killing five colonists and injuring six others, But the soldiers couldn’t find a lawyer to represent them in court?—?until John Adams stepped forward. Although he knew the dangers of mob violence and the threat to his law firm as well as his wife and children – after all, it was the beginning of the revolution. But Adams believed strongly that every accused is entitled to a fair trial and equal justice. He won the acquittal of six soldiers, and leniency for two others. Years after serving as second President of the United States, Adams wrote that his defense of the British soldiers was “one of the best Pieces of Service I ever rendered to my Country.”
As we all know, John Adams and our nation's Founders created three co-equal branches of government. They did that so there would be checks on one another. One purpose of the judicial branch was to check the two elected branches. Judicial independence was seen as the Constitution’s main protection against a tyrannical majority.
This is true in other countries as well. As a member of the Senate Foreign Relations Committee, I have observed how many post-Soviet countries in Eastern Europe have tried their best to establish legal systems with independent judiciaries as safeguards of democracy.
I was recently in Ukraine, where people are deeply frustrated by corruption, including in the justice system. Reformers are up against corrupt law enforcement, corrupt prosecutors, and highly placed officials doing the bidding of powerful oligarchs. The reformers have had some success, including creating new police forces in 23 cities. In fact when we were there, we were talking to some residents of the Ukraine about whether things had improved, and one of the people I talked to said, "Well, the last time I got stopped by police, they didn't try and bribe me." But the prime minister and a key anti-corruption prosecutor were recently pushed out.
As in many other countries across Eastern Europe, the old order is determined to suffocate any independence in the judiciary and legal system. Russia under Vladimir Putin is an egregious case in point. In 1991, when Russia emerged from the ruins of the Soviet Union, its new constitution promised an independent judiciary. But, today, Russia’s judiciary is best known for staging political show trials and crushing Putin’s enemies.
In 2007, a 35-year-old attorney named Sergei Magnitsky dared to stand up to Russia’s rigged criminal justice system. He filed complaints against government agencies for stealing hundreds of millions of dollars from Russian taxpayers that had been paid by an American company based in Moscow. Magnitsky was arrested and jailed without trial. Over the next 358 days, he was tortured, denied medical treatment, and finally killed.
But Sergei Magnitsky, today, is an inspiration to pro-democratic forces in Russia and across Europe. His memory is honored in the United States in the Magnitsky Act, a law that I was proud to co-sponsor to sanction those responsible, Russian officials and other human rights violators.
Okay, so what does all of this have to do with you, freshly minted graduates of this great law school?
The late United States Representative Tom Lantos, a Holocaust survivor, said: “The veneer of civilization is paper thin. We are the guardians and we can never rest.” Likewise, the fabric of our independent judiciary and our legal system is fragile. It is under assault, and it must be defended.
Those of you who will be sworn into the bar here in the Commonwealth of Massachusetts, you will pledge to serve?—?and I quote?—?“with all good fidelity as well to the courts as my clients.” You will become officers of the court?—?stewards and guardians of our judiciary and our legal system.
As law students, you have been trained to avoid challenging the impartiality and integrity of courts. As lawyers, you must not tolerate those who do.
BC Law has equipped you with something perhaps more valuable than a diploma. It has equipped you with good values and a social conscience. Here, you have been taught to be “men and women for others.” You have been taught to stand for social justice, economic justice, and a system of justice that is worthy of the name.
So I have a charge for you today, as soon-to-be attorneys and officers of the court. I urge you to stand for and defend our independent judiciary and legal system?—?judges, courts and law enforcement that are above partisan politics and shielded from external influences.
I'm sure that many of you have seen the movie “The Big Short.” It’s the story of how Wall Street lost its way, violating every ethical and professional standard, ending in a spectacular crash in 2008. You may remember that at the end of the film, two young investors stand in the headquarters of bankrupt Lehman Brothers, which is deserted and covered with trash. One of them asks: “What did you think we’d find?” The other answers: “Grownups.” Indeed, as Wall Street was corrupted and brought to its knees, where were the grownups?
So, graduates, as you leave this campus, remember: Today, another great institution is under assault, one of the pillars of our American democracy, our independent judiciary and our legal system. Like Judge Waring and John Adams and Sergei Magnitsky, take a stand. Because now you are the grownups! And we’re counting on you!
Congratulations! I wish each of you the very best!
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