The 2009 Marver Bernstein Lecture “Restoring Trust in the Justice System: The Senate Judiciary Committee's Agenda In The 111th Congress”
Click here to view the video of the full program on the Georgetown University website.
It is great to be back at Georgetown. It was at the Law Center in December 2006 that I first outlined the Senate Judiciary Committee’s agenda for the last Congress. It seems fitting to return to the University at the start of the 111th Congress to take stock, and to look forward. I thank Judge Katzmann for the opportunity to present this Marver Bernstein Lecture.
What an exciting time to be an American, or to be a student, or to be a student at a great university in America’s capital city – or all three. To those of you inspired by the presidential election of 2008, I feel a special kinship. It was John Kennedy, another young President almost 50 years ago, who inspired me to public service. I also had the privilege of meeting his brother, Attorney General Robert Kennedy, when I was a law student at Georgetown.
When I spoke two years ago at the Law Center, America was slogging ever deeper into the difficult challenges that we face today. For awhile the pace was incremental. Today, as the seriousness of these problems has become ever present in every American’s life, the pace has quickened. But for the first time in a long time, there also are competing currents of hope and possibility.
When I spoke at the Law Center two years ago we were a nation at a crossroads, and we are still repairing the damage from those dark days. I spoke then about the erosion of Americans’ privacy, and the need for us to restore our constitutional values and the rights of ordinary Americans; about the importance of repairing a broken oversight process and instilling greater accountability, and about renewing the public’s confidence in our justice system. Over the last two years, that is what we have begun to do.
Our work included a steadfast inquiry into the U.S. Attorney firing scandal and politicized hiring at the Department of Justice. We exposed the partisan excesses and illegalities of the Gonzales regime that so degraded the Justice Department.
We fought for access to the secret legal opinions of the Bush-Cheney-Gonzales Justice Department by which they bent the law to excuse illegality, from warrantless wiretapping to torture. It was in connection with a Senate Judiciary Committee hearing that the infamous 2002 torture memo was withdrawn. Journalists like Jane Mayer and Charlie Savage, and alienated former insiders like Jack Goldsmith and James Comey, helped give the American people an outline of what had taken place in the secret governing processes of the Bush administration.
This year is different. I was at the White House two weeks ago when President Obama signed into law the Lilly Ledbetter Fair Pay Act. That bill corrects the overreaching by activist members of the United States Supreme Court who misinterpreted the law and granted license to companies to discriminate against women employees, so long as those employers concealed their illegal actions for a mere six months. The checks and balances in our system of government finally worked last month to correct that harmful error. But it took two years during which a filibuster led by Senate Republicans prevented corrective action. Instead of the presidential veto promised by former President Bush, our new Senate was able to do the right thing, and our new President proudly signed this restoration of civil rights as the first legislative bill of his presidency.
Already this year we have considered and confirmed the historic nomination of Eric H. Holder Jr. to be the Attorney General of the United States. I hope that the manner in which it concluded, with a strong bipartisan vote to confirm him, is a good sign.
Attorney General Holder certainly is a welcome change. He is committed to restoring the rule of law and, as President Obama said in his inaugural address, “to reject as false the choice between our safety and our ideals.” Attorney General Holder understands the moral and legal obligations to protect the fundamental rights of all Americans, and to respect the human rights of all. The Nation was reassured when, in answer to my first question to him at his confirmation hearing, he declared that “waterboarding is torture” and that no one is above the law.
The confirmation of Eric Holder is a marker of how far we have come as a Nation. We have come from a time many years ago when a United States Attorney General believed that the Constitution did not allow African Americans to be considered citizens, to the day when an African American now serves as our Attorney General. It was, after all, a former Attorney General who authored the Supreme Court’s Dred Scott decision denying the humanity of slaves, former slaves and free men. That is not what the United States Constitution said. That is not consistent with the promise of America. We have come from a time, within the lifetimes of some of us in this room, when Washington hotels denied service on the basis of race. And we have also come from a time, just five decades ago, when the Senate Judiciary Committee was the place where civil rights bills were sent to die, to a day where it is the place where we work to fulfill the promise of equal opportunity in our Nation’s founding documents.
The Attorney General, however, is only the first of 28 leadership positions that need to be confirmed by the Senate to help revitalize and restore the Justice Department.
We also have more than 60 vacancies in our Federal courts. We are lucky to have Judge Katzmann serving, and I hope that he takes advantage of his lifetime tenure to serve many more years. But for the existing vacancies and those that will arise in the Judicial Branch, the Judiciary Committee has a vital role. Sometimes our work is widely known by the public; more often it is not. But it is always bears directly on the quality and temperament and public trust in a justice system that has long been the envy of the world. I believe this President’s appreciation for the courts will motivate him to nominate people of the highest caliber and qualifications. I have long supported a comprehensive judgeship bill, which is already 12 years overdue. We need to restore judicial pay and to honor the role that Federal judges play in our independent judiciary.
The Judiciary Committee has a full docket with matters ranging from review of expiring provisions of the PATRIOT Act, and reforming our patent laws in order to help revitalize our economic engine, to passing personal data protection legislation and strengthening our anti-corruption and anti-fraud laws. I hope that this year we can also strengthen penalties for violent crimes motivated by prejudice and hate. The President has already moved to increase transparency in government, but we can make even greater improvements to the Freedom of Information Act, and we may finally be able enact a media shield law. These are all issues that you will be hearing about in the days, weeks and months ahead.
The President is right that we need to focus on fixing the problems that exist and improving the future for hardworking Americans. I wholeheartedly agree and expect the Judiciary Committee and the Senate to act accordingly. But that does not mean that we should abandon seeking ways to provide accountability for what has been a dangerous and disastrous diversion from American law and values. Many Americans feel we need to get to the bottom of what went wrong. We need to be able to read the page before we turn it.
We will work with the Obama administration to fix those parts of our government that went off course. The Office of Legal Counsel at the Justice Department is one of those institutions that was hijacked and must be restored. There must be review and revision of that office’s legal work of the last eight years, when so much of that work was kept secret.
We have succeeded over the last two years in revitalizing our Committee’s oversight capabilities. The periodic oversight hearings with the Attorney General, the FBI Director, the Secretary of Homeland Security, and others will continue. The past can be prologue unless we set things right.
As to the best course of action for bringing a reckoning for the actions of the past eight years, there has been heated disagreement. There are some who resist any effort to investigate the misdeeds of the recent past. Indeed, some Republican Senators tried to extract a devil’s bargain from the Attorney General nominee in exchange for their votes, a commitment that he would not prosecute for anything that happened on President Bush’s watch. That is a pledge no prosecutor should give, and Eric Holder did not, but because he did not, it accounts for many of the partisan votes against him.
There are others who say that, even if it takes all of the next eight years, divides this country, and distracts from the necessary priority of fixing the economy, we must prosecute Bush administration officials to lay down a marker. Of course, the courts are already considering congressional subpoenas that have been issued and claims of privilege and legal immunities – and they will be for some time.
There is another option that we might also consider, a middle ground. A middle ground to find the truth. We need to get to the bottom of what happened -- and why -- so we make sure it never happens again.
One path to that goal would be a reconciliation process and truth commission. We could develop and authorize a person or group of people universally recognized as fair minded, and without axes to grind. Their straightforward mission would be to find the truth. People would be invited to come forward and share their knowledge and experiences, not for purposes of constructing criminal indictments, but to assemble the facts. If needed, such a process could involve subpoena powers, and even the authority to obtain immunity from prosecutions in order to get to the whole truth. Congress has already granted immunity, over my objection, to those who facilitated warrantless wiretaps and those who conducted cruel interrogations. It would be far better to use that authority to learn the truth.
During the past several years, this country has been divided as deeply as it has been at any time in our history since the Civil War. It has made our government less productive and our society less civil. President Obama is right that we cannot afford extreme partisanship and debilitating divisions. In this week when we begin commemorating the Lincoln bicentennial, there is need, again, “to bind up the nation’s wounds.” President Lincoln urged that course in his second inaugural address some seven score and four years ago.
Rather than vengeance, we need a fair-minded pursuit of what actually happened. Sometimes the best way to move forward is getting to the truth, finding out what happened, so we can make sure it does not happen again. When I came to the Senate, the Church Committee was working to expose the excesses of an earlier era. Its work helped ensure that in years to come, we did not repeat the mistakes of the past. We need to think about whether we have arrived at such a time, again. We need to come to a shared understanding of the failures of the recent past.
It is something to be considered. It is something Professor Bernstein, for whom this lecture series is named, might have found worth studying. We need to see whether there is interest in Congress and the new administration. We would need to work through concerns about classified information and claims of executive privilege. Most of all, we need to see whether the American people are ready to take this path.
Edmund Burke said that law and arbitrary power are eternal enemies. Arbitrary power is a powerful, corrosive force in a democracy. Two years ago I described the scandals at the Bush-Cheney-Gonzales Justice Department as the worst since Watergate. They were. We are still digging out from the debris they left behind. Now we face the worst economic crisis since the Great Depression while still contending with national security threats around the world. This extraordinary time cries out for the American people to come together, as we did after 9/11, and as we have done before when we faced difficult challenges.
That is no more improbable than the truth that came to light and laid the foundation for reconciliation in South Africa, or in Greensboro, North Carolina; no more improbable than the founding of this Nation; and certainly no more improbable than the journey the people of this Nation took over the last year with a young man whose mother was from Kansas and whose father was from an African village half a world away.
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