Boston College Law School 2016 Commencement Address (As Prepared for Delivery)

Good morning! Father Leahy, Dean Rougeau, faculty members, families and friends of the graduates, members of the 2016 graduating class of Boston College Law School.

This is truly a glorious morning to be at Boston College! Thank you for inviting me to the celebration!

Dean Rougeau mentioned that I used to work at that other Boston-area college, the one across the river. During my time there, I came to know 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. I have enormous respect for one graduate of this school in particular, the late Republican Senator Warren Rudman. He was a lion in the Senate and a giant in New Hampshire public life.

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. It may be just a coincidence that they’re all Democrats.

I was asked to give a formal address, this morning. Commencement speeches, it seems, are premised on the idea that students should be properly sedated before they are turned loose on the world. But I suspect that, for many of you, last night’s celebrations may have already accomplished that.

My first choice for a topic, today, was to speak out against a grave and, frankly, 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 Patriots quarterback Tom Brady. However, I was advised by staff that while most of you would be delighted, some might find the topic a bit self-indulgent.

Instead, I want to address a matter that truly is at the heart 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 threat has been building for years — and now it is reaching critical mass. Exhibit A, of course, is the unprecedented refusal by the majority party in the United States Senate even to hold hearings on a president’s nominee to the Supreme Court.

But the threat goes far deeper than the fate of Judge 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 taking control of the Senate last year, the majority has allowed just 17 judicial nominees to be 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 you folks know very well, was in 1937. 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. And this is one more thing that is undermining citizens’ faith in the institutions of our democracy. Vice President Joe Biden said it well: “Congress has no right to take the dysfunction of Congress and spread that cancer to another co-equal branch of the government.”

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. This would turn Supreme Court justices into de facto politicians, mindful of public opinion, 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. J. Waties Waring was born in 1880, and raised in Charleston, South Carolina. He was the son of a Confederate soldier, and he accepted the system of Jim Crow segregation. Then, in 1942, President Roosevelt nominated him to serve on the US District Court in Charleston, where he later became chief judge.

Judge Waring proceeded to end segregated seating in his courtroom and 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, thronging the streets outside the courthouse. 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 this city in 1770, following the Boston Massacre. A grand jury indicted the British soldiers, and they couldn’t find a lawyer to represent them in court — until John Adams stepped forward. Adams believed strongly that every accused is entitled to a fair trial and equal justice. But he also knew the dangers of mob violence and the threat to his law firm as well as his wife and children. 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 quote-unquote “one of the best Pieces of Service I ever rendered to my Country.”

As we all know, John Adams and the other Founders created three co-equal branches of government as 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 independent judiciaries as safeguards of democracy.

I was recently in Ukraine, where people are deeply frustrated by entrenched corruption, including in the justice system. Reformers are up against corrupt law enforcement and 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. 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 agents for stealing hundreds of millions of dollars from 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 co-sponsored to sanction the Russian officials responsible for his death.

All right, 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 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 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 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 good hearts. 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.

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. At the end of the film, two 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, these are my parting words: Today, another great institution is under assault, one of the pillars of our American democracy, our independent judiciary and legal system. Like Judge Waring and Adams and Magnitsky, take a stand. Because you are the grownups! And we’re counting on you!

Congratulations! I wish you the very best!