Pin the Tail

I have been asked tonight to briefly address my nomination experience. I am glad for this opportunity, because for me, one of the great costs of confirmation limbo was the forced silence and inaction. Nominees are told-for understandable reason-not to make any public statements: no speeches, not interviews, no op-eds, no blogs, not even any boring law review articles. In fact, this is my first public appearance in more than a year and a half.

So first let me say thank you, to the many who worked for my confirmation. Marge Baker, Wade Henderson, Walter Dellinger. I wish I had time to mention more. Even in the most frustrating moments, seeing and hearing about so many dedicated public servants–so many people I consider both friends and heroes–focusing on how to secure my confirmation was an honor I am deeply touched by and will never forget.

I also want to thank everyone toiling away at OLC, and particularly the outstanding leadership there that I am so proud to have helped select, led by David Barron and Marty Lederman, who also worked with me on President Obama’s transition team.

I know they agree that it is long past time for OLC to have a confirmed Assistant Attorney General–in fact, six long years past time.

Just after my withdrawal, the New York Times wrote a very positive editorial about why I should have been confirmed. But the editorial concluded by decrying a potential “chilling” lesson of my “ill treatment” for people considering government service: “don’t stand on principle and certainly don’t speak out in public.”

I understand and appreciate the intentions and sentiments behind this concern. But I want to make clear: that is not the lesson I want anyone to draw from my experience. My biography should hardly be used as an example of why you should not stand on principle or speak out in public.

First of all, being willing to stand on principle and fight for liberties that were at times controversial has not hurt me professionally–quite the opposite. I know that the very work that some find controversial has helped me professionally. I have had the privilege of working with some of the most dedicated and honorable people in our profession, or any profession, including Walter Dellinger, Janet Reno, Kate Michelman, Richard Cudahy, and many, many others.

Standing up for the right to privacy did not prevent a past Administration from having me serve as Acting Assistant Attorney General running OLC. And continuing to fight for the rule of law over the last decade did not prevent a new President from choosing me to return to head OLC. Nor did it deter the majority of the Senate from supporting me.

Make no mistake: I do feel that the nearly unprecedented delay of my nomination was wrong. But as to whether I would have changed my positions or softened my stances, or decided to just sit a few issues out, my message could not be more clear or simple: I have no regrets.

To those young lawyers who might look at my experience and nonetheless still wonder if they are making a mistake by taking strong public stands on upholding our Constitution, I say this: In the current climate, even if you attempt a crass political calculus about how to live your life, you may as well say what you think, because they can always find a footnote to twist and distort in a 20-year-old brief.

In my case it was footnote 23 in the 1989 Webster case–and I have to say, whatever you think about the footnote, it was a damn good brief. Just 3 yrs out of law school, I had the privilege to write it with civil rights greats Judy Lichtman and Marcia Greenberger, and 8 others, on behalf of 77 organizations committed to upholding Roe v. Wade, when the Court seemed poised to overrule Roe. I remember the thrill when Linda Greenhouse selected excerpts to publish in the New York Times and two law journals published it in its entirety. Most of all, I recall the pride and deep sense of purpose in being even a small part of something as big as helping to hold off a major reversal in our nation’s commitment to the right of privacy.

Do you think for one moment I wish I had sat that fight out due to caution and calculation? Not a chance. Never for a moment. Not on your life.

Of course the real point is one should not live one’s life–deciding whether or how to write such briefs–based on crass political judgments about possible future payoffs. You should stand on principle and speak out because, that is simply the right thing to do. It is the deep and best tradition of lawyers and others fighting for the rule of law and the rights of those without political power. It is the foundation of ACS. And it is also the patriotic thing to do–the way for our great Nation to achieve its potential.
I recall a welcoming speech in my first days of law school urging us always to keep in mind the passionate commitments and plans we wrote about in our law school admissions essays. We were warned that the one thing you don’t want people saying at your funeral is “she went to her grave with her options open.”

As you all know, a nominee spends days upon weeks upon months gathering together everything you ever wrote or said, and then putting it all out there for public scrutiny. And yes, you suffer a bit through having to be silent in the midst of distortions about who you are and what you said.

But on the whole, I found that forced review of my career surprisingly satisfying. It reinforced for me how fortunate and blessed my life has been. I have loved all my varied professional experiences: as a government lawyer, including heading up OLC; as an academic writing about executive power, including trying to ensure that OLC lives up to its best traditions; and my work as an advocate for women and Roe v. Wade.

Throughout it all, I have enjoyed countless opportunities to work with committed and inspiring lawyers–some here tonight and many others not here but aligned in spirit–on issues about which we cared deeply, in ways that brought the promise of making a difference, of promoting justice and the rule of law. In the end, none of us can hope for more than that.

So I’ll end with the hope for many more such opportunities in the years ahead. And a special plea to the young lawyers and law students among us. I’m talking directly to you, leaders of tomorrow gathered in this room today. We are counting on you to stand on principle and speak out, loudly and with conviction. Our bright future depends upon it.