[Congressional Record Volume 141, Number 108 (Thursday, June 29, 1995)]
[Senate]
[Pages S9418-S9420]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


  PUBLIC SERVICE AND THE RULE OF LAW--GRADUATION ADDRESS BY BILL GOULD

  Mr. KENNEDY. Mr. President, last month, Bill Gould, chairman of the 
National Labor Relations Board, addressed the graduating class of the 
Ohio State University College of Law. In his address, Chairman Gould 
speaks eloquently of the important role that public service has played 
in the Nation's history, from President Franklin Roosevelt's creation 
of the Civilian Conservation Corps through President Kennedy's creation 
of the Peace Corps and President Clinton's establishment last year of 
the National and Community Service Trust.
  It is gratifying that so many young men and women in all parts of the 
country are considering careers in public service. Chairman Gould's 
address is an excellent contribution to that high purpose and I ask 
unanimous consent that his address, entitled ``Serving the Public 
Interest through the Rule of Law: A Trilogy of Values,'' may be printed 
in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

   Serving the Public Interest Through the Rule of Law: A Trilogy of 
                                 Values

  (Address by William B. Gould IV, Chairman, National Labor Relations 
Board, Charles A. Beardsley, Professor of Law, Stanford Law School (On 
     Leave); delivered at the Ohio State University College of Law 
 graduation ceremony, May 14, 1995, Mershon Auditorium, the Ohio State 
                       University, Columbus, OH)
       Ladies and gentlemen. Members of the faculty. Honored 
     guests. I am indeed honored to be with you here today in 
     Columbus and to have the opportunity to address the graduates 
     of this distinguished College of Law School as well as their 
     parents, relatives, and friends on this most significant rite 
     of passage. Looking backward 34 years to June 1961, my own 
     law school graduation day was certainly one of the most 
     important and memorable in my life. It was the beginning of a 
     long involvement in labor and employment law as well as civil 
     rights and international human rights.
       But I confess that today I am hardly able to recall any of 
     the wise words of advice that the graduation speaker imparted 
     to us that shining day at Cornell Law School in Ithaca, New 
     York. So, as I address you today I don't have any illusions 
     that what I say is likely to change the course of your lives. 
     But my hope is that my story will provide some context 
     relevant to the professional pathways upon which your are 
     about to embark.
       Both governmental service and the furtherance of the rule 
     of law by the legal profession have possessed a centrality 
     and thus constituted abiding themes in my professional life. 
     I hope that my remarks to you here today will induce some of 
     you to consider government as an option at some point in your 
     careers, notwithstanding the anti-government tenor of these 
     times.
       The tragedy of Oklahoma City has dramatized the 
     contemporary vulnerability of these values to sustained 
     attack, both verbal and violent. As the New York Times said 
     last month, we must ``confront the reality that over the past 
     few years the language of politics has become infected with 
     violent words and a mindset of animosity toward the 
     institutions of government.'' The columnist Mark Shields has 
     noted that this phenomenon has been fueled by the idea that 
     the ``red scare'' should give way to the ``fed scare.''
       My own view is that government does best when it intervenes 
     to help those in genuine need of assistance--but I am aware 
     that those point does not enjoy much popularity in Congress 
     these days. Again Shields, in discussing recent comments of 
     Senator Robert Kerrey of Nebraska, put it well when he 
     characterized the conservative view of the nation's problem: 
     ``The problem with the Poor is that they have too much money; 
     the problem with the Rich is that they have too little.''
       Although I cannot recall the Great Depression and its 
     desperate circumstances, a trilogy of values have always made 
     up my inner core. The first of these is the idea that I heard 
     in Long Branch, New Jersey's St. James' Episcopal Church 
     every Sunday, i.e., that it is our duty to live by the 
     Comfortable Words and to help those who ``travail and are 
     heavy laden.'' Fused together with this was a belief, 
     inculcated by my parents, that the average person needs some 
     measure of protection against both the powerful and 
     unexpected adversity. The third was based upon personal 
     exposure to the indignity of racial discrimination which 
     consigned my parents' generation to a most fundamental denial 
     of equal opportunity. It is this trilogy of values which 
     fostered my philosophical allegiance to the New Deal, the New 
     Frontier and the Great Society.

[[Page S 9419]]

       Simply put, I came to the law and Cornell Law School 
     because of my view that law and lawyers can reduce arbitrary 
     inequities and the fact that Chief Justice Earl Warren's May 
     17, 1954, opinion for a unanimous Supreme Court in Brown v. 
     Board of Education represented an accurate illustration of 
     that point. As you know, the holding was that separate but 
     equal was unconstitutional in public education.
       A unanimous Court rendered that historic decision--in some 
     sense a corollary to President Harry Truman's desegregation 
     of the Armed Forces--which possessed sweeping implications 
     for all aspects of American society. The High Court's ruling 
     prompted a new focus upon fair treatment in general and 
     discrimination based upon such arbitrary considerations as 
     sex, age, religion, sexual orientation and disabilities in 
     particular.
       As a high school senior reading of NAACP Counsel Thurgood 
     Marshall's courageous efforts throughout the South--and one 
     who was heavily influenced by the Democratic Party's 
     commitment to civil rights platforms in 1948 and 1952, as 
     well as President Truman's insistence upon comprehensive 
     medical insurance--I thought that the legal profession was 
     one in which the moral order of human rights was relevant. 
     The prominence of lawyers in political life, like Adlai 
     Stevenson who ``talked sense'' to the American people, was 
     also a factor in my choice of the law as a career.
       More than anything else, though, the struggle in South 
     Africa made me see the connection between the development of 
     the rule of law and dealing with injustice. I watched the 
     United Nations focus its attention upon that country when a 
     young lawyer named Nelson Mandela and so many other brave 
     activists were imprisoned, or, worse yet, tortured or killed 
     for political reasons. My very first publication was a review 
     of Alan Paton's ``Hope for South Africa'' in ``The New 
     Republic'' in September 1959. In the early 1990s I had the 
     privilege to meet Mr. Mandela twice in South Africa--and then 
     to attend President Mandela's inauguration just a year ago in 
     Pretoria.
       The Brown ruling, its judicial and legislative progeny and 
     the inspiration of lawyers dedicated to principles and 
     practicality--lawyers like Marshall, Mandela, Stevenson and 
     President Lincoln in the fiery storm of our own Civil War--
     promoted my belief in the rule of law. And the fact is that 
     my faith in the law as a vehicle for change has been 
     reinforced and realized over these many years through the 
     opportunities that I have had to work in private practice, 
     teaching and government service.
       My sense is that there is a great opportunity for lawyers 
     to serve the public good through the public service today--
     even in this period of government bashing by the 104th 
     Congress. More than three decades ago President John F. 
     Kennedy called upon the sense of a ``greater purpose'' in a 
     speech at the University of Michigan when he advocated the 
     creation of the Peace Corps during the 1960 campaign. 
     President Bill Clinton's National and Community Service Trust 
     Act (AmeriCorps), designed to allow young people tuition 
     reimbursements for community service, echoes the same spirit 
     of commitment set forth by President Kennedy--and at an 
     earlier point by President Franklin D. Roosevelt through the 
     Civilian Conservation Corps.
       This sense of idealism and purpose was at work in the New 
     Deal which brought so many bright, public spirited young 
     people to Washington committed and dedicated to the reform of 
     our social, economic and political institutions. The same 
     spirit has been rekindled by both President Kennedy as well 
     as President Bill Clinton since the arrival of this 
     Administration in Washington almost two-and-one-half-years 
     ago.
       In a sense, this has come about by virtue of the Clinton 
     Administration's commitment--not only to child immunization 
     initiatives and helping the less financially able to use 
     available education opportunities and to provide a higher 
     minimum wage to those who are in economic distress--but also, 
     most particularly, through the National Service.
       You have an unparralleled opportunity in the `90s to serve 
     the public good. Your course offering which includes Social 
     and Environmental Litigation, Right of Privacy, Society, 
     Deviance and the Law, Foreign Relations Law, Employment 
     Discrimination Law and Law of Politics, to mention a few, 
     reflect our times and provide you with a framework that my 
     contemporaries never possessed.
       Though most of my words today are focused upon government 
     or public service as a career or part of a career, the fact 
     is that your commitment to the public interest and the rule 
     of law can be realized in a number of forms. It is vital to 
     the public interest that those committed to it are involved 
     in a wide variety of legal, business and social careers--
     representing, for instance, corporations, unions, as well as 
     public interest organizations.
       But our commitment to law and the public interest is made 
     more difficult given the fact that our legal profession is in 
     the midst of a tumultuous and confusing environment. On the 
     one hand, lawyer bashing, sometimes justified and sometimes 
     not, seems to be moving full steam ahead. Part of this 
     phenomenon seems to be attributable to the fear that the 
     production of so many law students will soon result in too 
     many lawyers for a society's own good.
       Only two years ago a ``National Law Journal'' poll showed 
     that only five percent of parents, given the choice of 
     several professions, wanted their children to be attorneys. 
     Undoubtedly, this unpopularity is what has fueled a number of 
     the legal initiatives undertaken by the Republican Congress 
     to the effect, for instance, that the loser in litigation 
     should pay all costs, that caps be devised for punitive 
     damages, etc.
       A 1993 ABA poll comparing public attitudes toward nine 
     professions ranked lawyers third from the bottom, ranking 
     higher than only stockbrokers and politicians in popularity. 
     In attempting to discover the reasons for the low public 
     opinion of lawyers the poll asked what percentage of lawyers 
     and of five other occupations lack the ethical standards and 
     honesty to serve the public.
       The results revealed an appalling ethical image of lawyers. 
     Lawyer ranked well below accountants, doctors and bankers and 
     barely above auto mechanics. According to the ABA poll half 
     of the public thinks one-third or more of lawyers are 
     dishonest, including one in four Americans who believe that a 
     majority of lawyers are dishonest. The pollster concluded 
     that ``the legal profession must do some soul searching about 
     the status quo, resolve to make some sacrifices to ensure a 
     positive future, and, above all, clean up its own house.''
       One way for the profession to clean its own house is to 
     find new substitutes for lengthy litigation, frequently both 
     wasteful and unnecessarily acrimonious, such as alternative 
     dispute resolution--particularly in my own area of employment 
     law. More than a decade ago I chaired a Committee of the 
     California State Bar which recommended that new methods be 
     devised for many employment cases, and that where employees 
     could have access to economical and expeditious procedures, 
     it was appropriate to limit or cap damages. But the difficult 
     balance involved is to avoid limitation of the basic rights 
     of ordinary people to sue for the enforcement of consumer and 
     employment related legislation.
       Attitudes towards lawyers are inevitably affected by one's 
     view of the law and the legal process. I hope that you will 
     look very seriously at government service as you seek to use 
     your newly acquired skills to better the position of your 
     fellow human being. This is the most basic contribution that 
     lawyers can make to society--and it is obvious that an 
     increased commitment to government or, if you choose private 
     practice or some other area of activity, pro bono work is 
     central to this effort.
       I am particularly proud to head an agency which is 
     celebrating its 60th anniversary this summer and which, from 
     the very beginning of its origins in the Great Depression of 
     the 1930s, has contributed to the public good through 
     adherence to a statute which encourages the practice and 
     procedure of collective bargaining--as well as in other 
     portions of our law. Since its inception, the National Labor 
     Relations Board has possessed a culture of commitment to hard 
     work, excellence, and to the promotion of a rule of law which 
     is designed to allow both workers and business to peaceably 
     resolve their difficulties through their own procedures.
       Illustrative of this process was the NLRB's prominent role 
     in the baseball dispute. It was not the Board's job to take 
     sides between the players and the owners or to determine 
     whose economic position ought to prevail. Consistent with 
     this approach, it was our job to decide whether there was 
     sufficient merit, as reflected by the facts and law, to 
     proceed into federal district court to obtain an injunction 
     against certain unilateral changes in conditions of 
     employment made by the owners. The Board handled the baseball 
     case as it does any other case.
       Nor is it our job to take into account policy arguments 
     arising out of the peculiarities of this industry, the income 
     or status or notoriety of particular individuals on
      either side. The statute applies--properly in my judgment--
     to the unskilled and the skilled, to those who make the 
     minimum wage and those who are financially secure.
       In the baseball case, the public was able to obtain a brief 
     glimpse of the Board's day-by-day commitment to the rule of 
     law in the workplace. Where parties are involved in an 
     established collective bargaining arrangement, our mandate 
     under the statute is to act in a manner consistent with the 
     fostering of the bargaining process--and I believe that we 
     discharged our duty in baseball in a manner consistent with 
     that objective.
       What may have been overlooked in the public view was the 
     fact that the Board was able to proceed through a fast track 
     approach and make the promise of spontaneous and free 
     collective bargaining in the workplace a reality. I hope that 
     the players and owners will now do their part and bargain a 
     new agreement forthwith!
       Our March 26 decision to seek an injunction seems to have 
     facilitated the resumption of baseball and thus was a great 
     victory for the public in renewing its contact with the game 
     which, like the Constitution, the Flag, and straight-ahead 
     jazz is so central to the essence of the country. Hopefully, 
     it will have the effect of promoting the collective 
     bargaining process sooner rather than later.
       Frequently, the public gains its impressions of lawyers and 
     law from such high visibility cases and from exposure through 
     television rather than books. I can tell you that another 
     factor stimulating my interest in the law was watching the 
     McCarthy-Army hearings in the spring of 1954, that fateful 
     spring when Brown was decided. The hearings focused upon the 
     Wisconsin Senator's investigation of alleged Communist 
     infiltration of Ft. Monmouth, New Jersey, where my 

[[Page S 9420]]
     father worked. Because of ideological hysteria, ``guilt'' by 
     association and rank anti-Semitism, many of our closest 
     friends were dismissed--and, indeed, I feared that this would 
     be my father's fate, particularly because of his announced 
     sympathy for Paul Robeson, a hero to so many black people of 
     his generation.
       Later I had the opportunity to attend the so-called Watkins 
     Hearings in the following September in Washington which 
     ultimately led to McCarthy's censure. Ft. Monmouth and the 
     McCarthy-Army hearings demonstrated how excessive government 
     authority can trample upon individual civil liberties--and 
     the aftermath of the Watkins Hearings redeemed our country's 
     constitutional protection of individual rights of belief and 
     association.
       Since then, I think that televised Congressional hearings, 
     the Watergate hearings for instance, have contributed to the 
     public understanding about the rule of law and its 
     relationship to the preservation of this Republic's 
     principles. Though, regrettably less conclusive, it may be 
     that the Iran-Contra hearings of 1988 and the Hill-Thomas 
     hearings of October 1991 performed a similar function in that 
     the assumption underlying both proceedings was that 
     government, like private individuals, must adhere 
     unwaveringly to the rule of law.
       Again, this is to be contrasted with the spectacle of law 
     as show business on television. In my state of California, 
     the O.J. Simpson trial has treated the nation to an episodic 
     soap opera which appears to be more about the business of the 
     money chase than the real substance of law and the legal 
     profession. As Attorney General Janet Reno said about the 
     trial:
       ``I'm just amazed at the number of people who are watching 
     it. If we put as much energy into watching the O.J. Simpson 
     trial in America . . . into other issues as Americans seem to 
     have done in watching the trial, we might be further down the 
     road.''
       A recent Los Angeles Times Mirror poll reported by Peter 
     Jennings last month revealed that only 45 percent of adults 
     surveyed said that they had read a newspaper the previous 
     day, and a quarter of those responding said they spent so 
     much time watching the Simpson trial that they did not have 
     time for the rest of the news. At best, the siren song of 
     sensationalism is a distraction--and, at worst, it reinforces 
     excessively negative perceptions of law and lawyers.
       My hope is that many of you will dedicate yourselves as 
     lawyers or in other careers to a concern for the public good. 
     Now, when Oklahoma City has made it clear that the idea of 
     government itself as well as the law is under attack, it is 
     useful to reflect back upon what government, frequently in 
     conjunction with lawyers, has done for us in this century 
     alone in moving toward a more civilized society.
       Justice Holmes said, ``Taxes are what we pay for civilized 
     society,''--an axiom often forgotten in the politics of the 
     mid-`90's. What would our society look like without the trust 
     busters of Theodore Roosevelt's era and the Federal Reserve 
     System created by Woodrow Wilson? Regulatory approaches to 
     food and drug administration, the securities market, the 
     licensing of radio and television stations, labor-management 
     relations (with which my agency is concerned) and trade 
     practices are all part of the Roosevelt New Deal legacy which 
     few would disavow in toto.
       It should not be forgotten that all three branches of 
     federal government took the lead in the fight against racial 
     discrimination and other forms of arbitrary treatment. And as 
     Judge (now Counsel to the President) Abner Mikva has noted: 
     ``The history of the growth of the franchise is a shining 
     example of why we needed . . . the federal approach.''
       Today, the challenge of public service in Washington has 
     never been more exciting or inspirational. As I have 
     indicated, President Clinton's National Public Service echoes 
     anew the similar initiatives undertaken by both Roosevelt and 
     Kennedy.
       I urge you to think of the government as a career in which 
     you can use your legal experience in pursuit of the public 
     interest. That does not mean that you have to be a Washington 
     or ``inside the Beltway'' careerist, although that is another 
     way in which to make a contribution. Many of you may choose 
     to serve in your communities throughout
      the country and, at a point where your career is well-
     developed, elect to serve through an appointment such as 
     mine.
       In particular, if you accept such an appointment consisting 
     of a limited term (in the case of the Board five years), I 
     hope that you will keep in mind President (then-Senator) 
     Kennedy's characterization of eight law makers who were the 
     subject of his book, ``Profiles in Courage.'' Said the junior 
     Senator from Massachusetts:
       ``His desire to win or maintain a reputation for integrity 
     and courage were stronger than his desire to maintain his 
     office . . . his conscience, his personal standards of 
     ethics, his integrity or morality . . . were stronger than 
     the pressures of public disapproval.''
       This is a particularly vexatious problem for those who are 
     appointed and not elected because of the inevitable and 
     appropriate subordination of appointees--even in the arena of 
     independent regulation--to the people's elected 
     representatives. My own view on serving in Washington is to 
     do the very best you can to implement the public interest in 
     the time allocated in your term, with the expectation that 
     you will return to your community, reestablish your roots and 
     feel satisfied that you have--to paraphrase President 
     Kennedy--done your duty notwithstanding some of the immediate 
     ``pressures of public disapproval.''
       While I consider the term limits issue to be an entirely 
     different proposition--the people ought always to be able to 
     freely choose their elected leaders amongst the widest 
     possible number of candidates--my view is that the proper 
     standard for those who are subordinate to such leaders is 
     that attributed to Cincinnatus, the Roman general and 
     statesman of the fifth century, who upon discharging his 
     public duty, returned to his community rather than taking the 
     opportunity to seize power and perpetuate himself in office.
       The independence of administrative agencies might be 
     enhanced by legislation limiting Board Members or 
     Commissioners to one term of service. The temptation to 
     please elected superiors might decline accordingly.
       Of course, all of us cannot win victories within 15 days, 
     like Cincinnatus, and be back on our farms or in our 
     communities so quickly. But true public service involves a 
     self-sacrifice which rises above the immediate pressures. Do 
     the best that you can to serve the public good.
       This does not assure success or complete effectiveness. But 
     it allows you to make use of your acquired expertise for the 
     best possible reasons. And this, in turn, puts you in the 
     best position to see it through to the end with a measure of 
     serenity that comes when you have expended your very best 
     effort despite setbacks and criticisms you may endure in the 
     process.
       As President Lincoln said:
       ``If I were to try to read, much less answer, all the 
     attacks made on me, this shop might as well be closed for any 
     other business. I do the very best I know how--the very best 
     I can and I mean to keep doing so until the end. If the end 
     brings me out all right, what is said against me won't amount 
     to anything. If the end brings me out wrong, ten angels 
     swearing I was right would make no difference.''
       You graduate from a distinguished institution in the most 
     exciting political period since the reforms undertaken by the 
     Administration of the 1960s. I hope that some of you will be 
     attracted to public service and help advance our society 
     through the rule of law.
       As you embark upon the excitement of a new career and 
     challenges in the days ahead, I wish you all good luck and 
     success on whatever path you choose.
  Mr. GORTON. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  Mr. DOLE. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________