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2012 Commencement Address by Senator Al Franken

Al Franken

Senator Al Franken delivers the Commencement Address

Thank you, Dean David Wippman—for that introduction, for inviting me to be part of this memorable day, and for your leadership here on campus.

And congratulations to this year's graduates. I know that today may be a day of conflicting emotions for you. You're proud of what you've achieved, and excited about getting to work. But you're also a little anxious about being thrown head-first into a shark tank.

I've been there. Some of you may recall that I arrived in the Senate a little late. And when I got there, I was assigned to the Judiciary Committee, just as the confirmation hearings for Supreme Court nominee Sonia Sotomayor were about to get underway.

Can you imagine how you'd feel if, on your fifth day of work, you found yourself sitting there, participating in a Supreme Court confirmation hearing? Well, that's what happened to me—and, unlike you, I don't have a law degree.

Fortunately, I did have one of the nation's best law schools in my home state. So—and I know this concept will be completely foreign to all of you—I crammed like hell, spending hours meeting with members of the faculty here at Mondale Hall.

We talked about how the Supreme Court's recent ruling in the Gross case made it that much easier to discriminate against, and even fire, an older employee—especially if that employee was about to cash in on his or her pension.

We talked about how the Court's ruling in the Leegin case made it easier for companies to engage in price fixing.

And, of course, since we were at the U, we talked about Twombly—a case that flew under the radar for most Americans who aren't sitting in this room here today—and how it significantly changed the ability of any American to get his or her day in court.

But while I was learning about age discrimination and antitrust and civil procedure, I also learned a broader lesson about the law: It isn't finished. Americans have been trying to "establish justice" ever since those words were written in the preamble to the Constitution. Each generation does its part to move that project forward. Now it's your turn.

I should warn you, though, at the outset: The law will never be finished.

Take privacy law, for example. U of M Law students have been studying this stuff for generations. Samuel Warren and Louis Brandeis. Griswold and Roe. "Penumbras" and "emanations."

But technology has changed the playing field when it comes to privacy, as I've discovered through my work chairing a subcommittee on exactly this issue.

I'd wager that 90 percent of the people in this room have a Gmail address and a Facebook account. I know I do. These are great services. And their business model allows us to use them for free.

But that business model also requires that they collect a ton of very personal information about us. Google has a copy of every email you've ever written on Gmail. Facebook, in all likelihood, has a unique digital file of your face, as accurate as a fingerprint, that can be used to identify you in a crowd.

And if you use a cell phone, your wireless carrier likely has records about your physical movements going back months, if not years.

Your words, your likeness, your whereabouts—that's a ton of personal information. That's pretty much all of it, in fact.

But how much do you really know about what information is being shared with whom? And how sure are you that your information is secure? There have been more than 400 major breaches of health data, involving the very personal health information of more than 19 million Americans, in just the last few years. Some of them have been right here in Minnesota.

The thing I worry about—and the thing you, as members of the legal community, should think about—is that the law remains silent on these issues.

The law today says nothing about whether companies can compile a detailed history of your web browsing habits, or create a digital file of your face based on photos you only posted to share with friends.

The law today does nothing to stop a corporation from tracking your location and sharing that information with a third party—without your consent.

The law today doesn't even require that when your doctor takes his or her work home on a laptop—a laptop that contains your detailed medical history—the information be encrypted.

Ask U of M Professor Bill McGeveran, whom I was lucky enough to get as a witness at a recent hearing of my subcommittee. He has forgotten more privacy horror stories than I'll ever know.

But the bottom line is that, when it comes to your sensitive personal information, the law does nothing to ensure that you know who has it and how they're using it…nothing to ensure that you can control who it's shared with…nothing to ensure that you can trust that it's kept safe and secure. Our privacy laws are not finished.

I guess we can't blame Justice Douglas for not figuring this stuff out in the Griswold decision. But we also can't just throw up our hands. The world is changing. The law has to keep up.

But that can't happen unless people—and by "people," I mean "you"—decide to view the imperfections in our laws not as accidents of history or inevitable consequences of human folly, but as challenges to be overcome.

When Sheila Wellstone's husband, Paul, was elected to the Senate seat I'm now privileged to hold, Sheila herself wasn't really a public figure. She was actually pretty shy. But she went around the state listening to people's stories, and after spending time at women's shelters and hearing about what victims of domestic violence had experienced, she found her voice.

"I have chosen to focus on domestic violence," she said, "because I find it appalling that a woman's home can be the most dangerous, the most violent, and, in fact, the most deadly place for her."

Sheila saw that these women couldn't even find refuge in their own homes. And so she and Paul fought to give battered women refuge in the law.

The Violence Against Women Act increased the number of beds and shelters available to women who needed a safe place to be. It funded support services and crisis centers so they could put their lives back together. It provided support to law enforcement officers so they could take more effective action.

It sent a message that, to establish justice, we must make stopping domestic violence a national priority. And thus, it took another step towards meeting the promise of our law—that it is a place where anyone can turn to find relief. But it's important to remember that justice doesn't establish itself.

Until Sheila and Paul fought to pass the Violence Against Women Act, there was nothing in the law to ensure that many of the battered women who are safe tonight would be able to find beds in shelters.

Until we fought for the reauthorization of the law this year, there was in many cases nothing in the law to protect a victim of domestic violence from being kicked out of federally-subsidized housing because she called the cops.

Until people like Walter Mondale decided to take action, there was nothing in the law to protect African-Americans from being systematically denied their right to vote, discriminated against in the housing market, and relegated to second-class segregated schools.

These were basic issues of justice. And until brave people like Sheila and Paul Wellstone and Walter Mondale took it upon themselves to act, these issues weren't being addressed, let alone finished. And there are so many more issues out there that need champions. Each of you can be one of those champions.

It takes courage to decide that you're going to build on a foundation that was laid by the Framers. And, in recent years, courage has been a dangerous thing to exhibit for people who want to have a career in the law—especially if you have the ambition to serve as a judge.

Judges, of course, aren't there to legislate. They're there to make sure the law is fairly applied. And that takes some restraint.

But some insist that, if you want to be a judge someday, you must show the same restraint every day of your career—even when you're serving in a different role.

Countless legal experts—including, for example, U of M Professor Richard Painter—carefully reviewed every aspect of Goodwin Liu's jurisprudence and found that he was, in every way, qualified to serve on the Ninth Circuit.

But this brilliant, thoughtful, passionate young legal mind—with his terrific life story and his character references from people on all sides of the political spectrum—was blocked, because his partisan detractors felt that he'd shown a little too much courage in forming and expressing opinions about the law.

And at those hearings for Judge Sotomayor, I saw her get attacked because she had been, as an attorney and a private citizen, an advocate for the Latino community—and because she acknowledged that her perspective as a woman and a Latina informed her approach to the law.

The attacks on Goodwin Liu and Sonia Sotomayor sent a message that, to be a good judge, you can't exhibit any of the traits of real people—like having opinions about right and wrong, or having a perspective shaped by what you've seen in your life. That message is both silly and dangerous.

It's silly because of course judges have opinions. Of course their experiences have an impact on the jurisprudence they produce. That's not a good thing or a bad thing. It's just a true thing.

But it's dangerous because we should encourage people who want to live a life in the law to share their perspectives. Oliver Wendell Holmes famously said, "The life of the law has not been logic; it has been experience."

It makes no sense for someone to tell those of you who want to be judges someday that, to get there, you should spend the next twenty years of your legal career pretending that you aren't a real person with a unique perspective on the world and real opinions about what we should do to establish justice in America.

Thurgood Marshall did as much as anyone to establish justice during his career as a lawyer. But when he was nominated to the bench, he was attacked as an "activist." Would we really have been better off as a country if, fearing that his passionate advocacy would doom his nomination someday, Marshall had shied away from taking on cases like Brown v. Board?

Of course not. Just because a good judge can't be an activist doesn't mean an activist can't someday become a good judge. And it makes no sense, with so much work left undone, to ask the next generation of legal minds to swallow their tongues—and their courage.

And, by the way, this is one of the reasons we should celebrate diversity on the bench. Not only does it strengthen public trust in our judicial system, it ensures that—if judges necessarily bring their real-life experiences to bear—a more representative selection of those experiences are reflected on the bench.

I'm incredibly proud of the work being done here at the U through the Infinity Project. And I hope that those of you who are ambitious—which, given that this is a law school commencement ceremony, is all of you—I hope that you won't ever let anyone tell you that you have to choose between ambition and courage.

I know that many of you may have different perspectives than I do on the law. And I know that your concept of justice may look different than mine does.

But whatever your vision is of what the law should be, my message today is that you have a duty to fight to make that vision a reality.

Thomas Jefferson and John Adams maintained a correspondence at the end of their lives. They traded ideas and arguments, exploring deep questions of faith and morality. They didn't always agree. Which is good, because otherwise it would have gotten boring. They probably would have stopped writing.

But in one of Adams's final letters, he wrote that his creed was, quote, "contained in four short words: 'Be just and good.'"

Jefferson agreed. He wrote: "The result of our fifty or sixty years of religious reading, in the four words, 'Be just and good,' is that in which all our inquiries must end."

That's a philosophy, and a good one. But I think our duty goes a little further, if I may be so bold. I think back to my rabbi, Rabbi Max Shapiro, at Temple Israel. He always used to say that it wasn't enough to be just. You have to do justice. And with all due respect to Adams and Jefferson, I think Rabbi Shapiro was right—especially when it comes to your role in the practice of the law.

If the law is going to be the place where people can find justice, then the law should be a place where people do justice. We need courageous people to do justice, whether they're public defenders, private lawyers, or Attorneys General.

We need more Sheila Wellstones and Walter Mondales and Thurgood Marshalls, not just in our political system, but in our legal system.

Some people think that lawyers spend all their time representing billion dollar companies against trillion dollar companies in obscure, decades-long patent litigation. Some of you may actually end up doing that. But your fancy law firm will have a pro bono practice. And there's no shame in doing well if you take some time to do good, too.

Other people think that lawyers spend all their time arguing about arcane constitutional issues that nobody really understands. But those arcane constitutional issues often make a big impact on the real lives of real people. And you shouldn't forget it.

No matter what part of the law you end up working in, you should remember that your job is to do justice. Your job is to build upon the foundation laid centuries ago and leave it a little better for the next generation.

So I urge you to be just. I urge you to be good. But I also urge you to be bold in your approach to the law, and courageous in your pursuit of justice.

And, on this special day, I urge you most of all to be incredibly proud of yourselves.

Congratulations to you—and, most importantly, to your parents.


Read the commencement remarks from:

· Senator Al Franken
· Amr Jaghoub (LL.M.)
· Matthew J.M. Pelikan (J.D.)

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