The 2009 Marver Bernstein Lecture
“Restoring Trust in the Justice System:
The Senate Judiciary Committee's Agenda In The 111th Congress”
Senator Patrick Leahy
(D-Vt.)
Chairman, Senate Judiciary Committee
United States Senate
Georgetown University
February 9, 2009
As Prepared
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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