Laurence H. Tribe, Senior Counselor for Access to Justice, Speaks at the First Circuit Judicial Conference

As prepared for delivery.

Chief District Judge Lisi, and my many friends here in the First Circuit:

It’s a real pleasure for me to be here – for more than the usual reasons.  Shortly after Justice Stevens announced his retirement, Chief Circuit Judge Lynch wrote to Solicitor General Kagan to say on behalf of this Circuit’s Judicial Conference: “We . . . realize your schedule is not now entirely in your control,” a message that was something of an understatement. 

As Judge Lisi has told you, my schedule in the interim ended up including a trip to the University of Miami, where I found myself at an event last evening and where I will be returning later this afternoon to deliver a commencement address soon after this detour to the north. 

The intervening development that required my substitution for Elena Kagan was, as you all know, a happy one.  It was President Obama’s nomination of his Solicitor General as an Associate Justice of the United States Supreme Court, where I am confident she will spend at least the next 35 years serving with great distinction in the seat occupied for the past 35 years by the great John Paul Stevens. 

This is no doubt a bittersweet combination of events from your perspective.  On the one hand, I suspect most of you share my delight at the President’s selection of our own Elena Kagan to fill this crucial vacancy on the Court.  She will be a great Supreme Court Justice.  On the other hand, I know you were looking forward to having the Solicitor General address you today.  And, to paraphrase what Lloyd Bentsen told Dan Quayle in their vice presidential debate many years ago, “I knew Elena Kagan.  Elena Kagan was a friend of mine.  And, Professor, you’re no Elena Kagan.”  I know that I’m no Elena Kagan, and for that I owe you my apology.  Still, I can’t help delighting in the unique opportunity I’ve been given to step into – I won’t say fill – Elena’s shoes this afternoon. 

The chance to play this “substitute teacher” role fills me with unusual pride as I marvel at my good fortune in having come to know, as two of the most extraordinary students and research assistants and friends I’ve had the privilege of teaching during my 40 years on Harvard’s faculty, both President Obama and Solicitor General Kagan, his most recent nominee to serve on the nation’s highest court. 

It’s also a source of pride to me that I’m able to address this distinguished assembly in a capacity I only recently assumed, having been chosen by a President I admire hugely and by an Attorney General I respect tremendously to serve as the first Senior Counselor for Access to Justice.  Since March 1, I’ve been leading a new initiative in search of justice, a search that is at the heart of our national identity and one that embodies the aspirations that both President Obama and Attorney General Holder have repeatedly articulated. 

The Access to Justice Initiative has several distinct but related missions:
We are charged to improve the availability and quality of indigent defense; to enhance civil legal representation for those without great wealth, including the middle class as well as the poor; to promote less lawyer-intensive and court-intensive solutions when possible; to focus with special care upon the legal needs of the most vulnerable among us; to work with federal, state, and tribal judiciaries in strengthening fair, impartial, and independent adjudication; to encourage the development of more thoroughly evidence-based solutions to problems in the delivery of legal services; and to exchange information with foreign ministries of justice and judicial systems on our respective efforts to improve access. 

Several days from now, as part of the Access to Justice Initiative and at the invitation of the State Department, I’ll be leading a delegation to Poland to engage in what I fully expect will be some mutually enlightening conversations, sponsored by the OSCE (the Organization for Security and Cooperation in Europe) and the ODIHR (the Office for Democratic Institutions and Human Rights), focused on how our respective nations are seeking to strengthen public access to justice.  The hope is that, through such exchanges, we will learn from one another’s successes – and failures. 

There’s also a lot to learn from efforts going on throughout the United States, and that’s what the Initiative I’m heading up at the Justice Department is determined to do.  Ambitious as that goal might be, I have to tell you that my suite of offices in the Robert F. Kennedy Building, fondly known as “Main Justice” to those who work in it, is neither large nor especially impressive, and my fledgling legal staff is small.  But there’s one thing that’s huge about our office:  It’s the sign outside my door.  It says, simply, “Access to Justice.”  People who have visited me there in my first two and a half months on the job have often paused to have their photographs taken – not with me, mind you, but with the sign on my door.  Some, including state and federal judges and prosecutors and public defenders and leaders of charitable organizations, have openly marveled that there is, at long last, such a sign somewhere in the Justice Department. 

Last month, I had the privilege of attending the White House swearing-in of the newly confirmed members of the Board of the Legal Services Corporation, including my friend and colleague and the remarkable dean of the Harvard Law School, Martha Minow.  Justice Kennedy was doing the honors, and he prefaced the ceremony with a reminiscence of a commencement speech he had heard the great Soviet writer and dissident, Alexander Solzhenitsyn, deliver.  Solzhenitsyn’s theme was a challenge to the rule of law.  Not simply a claim that the rule of law was honored in the breach both in his country and sometimes in ours but a bolder claim that the rule of law was itself a false ideal, one not worthy of defending.  At the time, Justice Kennedy found himself perplexed.  Later, he realized that the impulse underlying Solzhenitsyn’s complaint was understandable in terms of Russia’s history and culture.  Never having experienced law as an expression of democracy, Solzhenitsyn saw it only as an edict of the state, as the ukase of a ruler.  To him, law represented something cold and unforgiving, the inflexible command of the sovereign, not the protection of those otherwise under the sovereign’s thumb.  To us, at least ideally, the law is not simply a command but a promise – a promise whose fulfillment we call justice. 

I’ve received almost nothing but supportive messages and emails since taking office, except for an occasional email challenging, believe it or not, the constitutionality of having an initiative dedicated to the fulfillment of that promise.  “Isn’t the Justice Department about prosecuting wrongdoers in order to execute the laws of the nation?,” they ask.  “The Constitution commands and empowers the President to ‘see to it that the laws are faithfully executed,’” they say.  “Where in the Constitution does it say that anyone is entitled to justice or that the Federal Government is authorized to deliver any such thing?”  If you’re interested in justice, you should’ve gone to Divinity School, not Law School.”

That crabbed and cynical view both of our Constitution and of law itself reminds me of one of my favorite New Yorker cartoons, the one in which a ship that looks like The Mayflower is sailing toward land barely visible along the horizon.  One pilgrim looks thoughtfully at the distance and tells his companion, “You know, religious freedom is my immediate objective. . . . . But my long-term goal is to go into real estate.” 

It turns out, of course, that both spiritual liberties and economic rights need the protection of the law – as some people discover all too abruptly when they face mortgage foreclosure or seek the safe harbor of bankruptcy without the guiding hand of lawyers because they lack the funds to pay for legal assistance.  Any initiative dedicated to broadening and equalizing access to justice in this country – as mine is – needs to find ways to encourage pro bono lawyering and affordable legal services to cope with unjust eviction as well as unjust imprisonment or unjust loss of child custody, to fight consumer fraud as well as racially discriminatory law enforcement. 

There’s another New Yorker cartoon that nicely captures the illusion that personal rights and property rights are sharply distinguishable, with laws and lawyers who protect the former occupying a higher plane than laws and lawyers who protect the latter.  It’s an illusion that Justice Stewart – who once observed that the Fourth Amendment “protects people, not places” – smartly punctured in a case called Lynch v. Household Finance Corp. when he reminded us that it’s people who have rights, not property.  The cartoon shows a man in a fancy suit talking to someone at a cocktail party and saying, “Oh yes, I am a lawyer.  But not in the pejorative sense.”

Rightly understood, no branch of law occupies a lower, “pejorative” rung when the legal system itself is purged of its inaccessibility to those who do not occupy positions of power or privilege in our society.  It is the law itself, and the very rule of law, that must be rendered transparent and accessible, made a tool of justice rather than an instrument of oppression. 

Law and justice, of course, are not synonymous.  Law is a means.  Justice is an end.  And, all too often throughout world history and, sadly, our history as well, law has been an instrument not of justice but of injustice.  After all, the law in the United States not so long ago denied freedom, even full personhood, to an entire race of human beings.  For a full half century after the passage of the Fourteenth Amendment, our law denied full citizenship (including the right to vote) to an entire gender – over half the population – and our laws still deny full equality to many of our LGBT brothers and sisters. 

But, as President Obama is fond of saying, we grow.  We learn.  With occasional steps
backwards, we manage to evolve.  He is fond of quoting the Constitution’s preamble: “. . in order to form a more perfect Union.”  We have elected a President who is committed to the repeal of “Don’t Ask, Don’t Tell” and of the Defense of Marriage Act.  He has issued an executive order allowing partners to visit their ill loved ones in government hospitals.  And he has selected an Attorney General for whom the perennial deficiencies in indigent defense and the enormous gaps in legal services for the poor and middle class constitute not just a “problem” but a “crisis.”

And it’s about time.  Frank Lee Smith was convicted in 1986 of raping and murdering an 8-year old girl in Fort Lauderdale and sentenced to death.  The good news is that DNA evidence decisively exonerated Smith and identified another man altogether as the rapist-murderer.  The bad news is that the DNA testing wasn’t done until a blood sample was finally taken from Smith by the prosecution in the year 2000 – after Smith had died of cancer, having spent the preceding 14 years wrongfully incarcerated on Florida’s death row.

Smith's case is hardly unique.  Of 250 DNA exonerations reported by The Innocence Project this February, the average time spent in prison before exoneration was almost 13 years. That's a total of 3,160 years of unjust imprisonment.  The reasons aren't hard to discover.  Public defenders' offices are underfunded and understaffed. Their annual caseloads can range from 500 to 900 felony cases and over 2,000 misdemeanors, at least 5 to 6 times the ceilings set by the National Advisory Commission on Criminal Justice. 

The situation is no less dire in civil cases, including those that involve life-altering matters like deportation, loss of child custody, or eviction.  Although our Supreme Court has not held that indigents in such proceedings are entitled to be represented by counsel at public expense, no one doubts that those who cannot afford counsel in proceedings touching such momentous matters are at a serious disadvantage.  Thus it will come as no surprise that legally represented immigrants seeking asylum in the U.S. to avoid persecution and torture in their home countries win their claims for asylum at three times the rate of those who are legally unrepresented.  Imagine the plight of unaccompanied children, 8,000 of whom come to this country each year without a parent or guardian to watch over them and are then detained by immigration officials on the way to deportation.  A majority of these kids have no legal assistance at all to help them navigate one of the most complex of all legal labyrinths 

The problems we face aren’t episodic but systemic.  To qualify for federally-funded legal assistance, one must earn no more than 25 percent above the poverty level; more than 50 million Americans qualify by that criterion, but over half of those who qualify and seek assistance from the 137 principal federally-funded legal assistance programs must be turned away because the level of available funding is so low. 

I know: the term “crisis” is overused.  But, after reflecting on these examples and this data, can any of us doubt that, as a nation that promises “equal justice under law,” we are indeed experiencing a genuine crisis in access to justice? 

Happily, it’s not a crisis the Obama administration is ignoring.  Full as the agenda is, the administration is committed to improving delivery of legal services and increasing access to justice for all our citizens.  More than its predecessors, this government is committed to making justice an active verb.  The president’s budget proposal for Fiscal 2011 includes more funds for legal services at the federal level and proposes to lift some of the restrictions that tie the hands of federally funded legal aid offices. 

And I’m glad to report that States are also taking leadership roles in improving access to justice.  A number of State Chief Justices – most prominently including the pathbreaking Margaret Marshall here in Massachusetts, the inspiring John Broaderick of New Hampshire, and the far-seeing Ronald George of California – are leading efforts to assist litigants in state courts who increasingly cannot afford an attorney even when these very important rights are at stake.  Similar efforts are taking root in federal courthouses, particularly in the Northern District of Illinois and in the Central District of California, where attorneys staff help desks to assist individuals confronting bankruptcy, unfair lending practices, or employment discrimination.

The private bar is of course not immune to our changing economy.  It won’t come as news to anyone here that law firms aren’t hiring quite as many new law school graduates as they once were.  Although many of those graduates will begin their professional careers in law firms, increasing numbers of clients have developed doubts about paying hundreds of dollars an hour for associates fresh out of law school.  That in turn is leading to a fundamental shift in the way law firms are doing business, including a move away from automatic advancement for associates and toward a merits-based system that includes actual litigation experience as a major component.  With this shift comes an increased incentive to focus on pro bono work and an increased need for firms to develop their pro bono practice, with projects that offer young associates an opportunity not only to gain valuable courtroom and litigation experience, but also to participate directly in high-level negotiations that they would not otherwise be able to experience.

But the last thing I mean to suggest is that representing indigent clients pro bono or bringing impact litigation on their behalf is the only way to gain legal experience or to advance the cause of justice.  Justice is a house of many mansions, and its gates of access are to be found in many places.  The Obama administration’s Access to Justice Initiative, for example, whose mission includes a search for innovative solutions and unlikely alliances, has found points of entry in such surprising locations as medical clinics and emergency rooms, where over 130 medical-legal partnerships place students supervised by lawyers and other specialists at help desks situated in medical facilities to accept referrals directly from physicians.  The mother who brings a severely asthmatic child to a hospital might need medicine for her baby but may need even more urgently a lawyer’s help in dealing with a landlord who won’t exterminate the mites in the carpet.  And that lawyer could be one whose “day job” involves high-wire legal maneuvers involving condominium conversions or real estate insurance trusts. 

Our Access to Justice office is examining the many perhaps unexpected ways in which justice might be advanced, brainstorming with others to find and create approaches worthy of encouraging and emulating, working to promote needed regulatory and legislative changes, exchanging ideas with our counterparts around the world, and trying to leave no stone unturned in confronting this enormous challenge. 

Although on the surface the problems I’ve mentioned today deal primarily with the plight of the poor and working class, I see them as but a canary in the coal mine of our justice system writ large.  New Hampshire Chief Justice Broderick believes that, if we continue on our “downward spiral,” soon the only parties using our state courthouses will be criminal defendants and pro se litigants who cannot afford to take their business to expensive private judges and mediators. 

Rightly understood, justice isn’t a zero-sum game.  That’s why my office in the Justice Department is working to forge alliances between prosecutors and defenders throughout the country and to build bridges between other unlikely allies.  In the end, when we broaden the access routes to the mighty torrent of justice, we widen them for everyone.  My vision is in some ways the opposite of what has been described as the trickle-down theory – the theory that, if we help those at the top, those at the bottom will eventually benefit from the fallout.  I’ve never been convinced about that. But I am convinced that, if we help those at the bottom, we will necessarily raise the level of the great river that flows when barriers to law are lowered.  The challenge is to do that in difficult times, when so much else competes for all of our attention.  It is a challenge I invite all of you to take up as your own – in a world where, as Martin Luther King once said, the great arc of history bends toward justice.