Justice O'Connor's Disappointing Speech

Saturday night I was lucky enough to have been selected in the lottery to hear retired Associate Justice Sandra Day O'Connor speak to honor the Gates Public Service Law Scholarship. Sadly, while her speech was quite good in a technical sense (entertaining, geared towards her audience, not interminable), the content was surprising and disappointing.

Because the entire point of the event was to push a public service scholarship program, she tailored her remarks to that subject. That in and of itself is commendable - all too often a famous speaker will simply give their stock speeches and not take the time to consider the people who have come to hear them.

But Justice O'Connor spoke of encouraging public service as a civic virtue, and that we should be doing everything we could to get more people to work for the government. She lamented that so many law students are "forced" to go work for firms because of their overwhelming student loans. She cited numbers that showed the average law student graduates with a loan burden of around $15,000, and then said she thought that was low because her law clerks were looking at closer to $50,000. She even suggested that it was too bad the non-profits were stealing the talent away from the public sector.

I was frankly shocked. I kept thinking, "How is this a Ronald Reagan appointee?"

With due respect to the Justice, it's just wrong that government jobs are the only - or even the best - way to serve the public. Frankly, more people in government is the LAST thing we need! Private attorneys do mountains of charitable work, mostly in the form of providing pro bono legal services. As Bill Gates, Sr. himself proves, one of the ways to have the biggest impacts is to make a boatload of money in the private sector first, and then get all charitable with your time and money. And even the stingy and selfish in the private sector do more to help the public than they were given credit for, just for the fact that they create jobs, help our vibrant economy grow, and aren't relying on the taxpayers for their salaries and health benefits.

With the possible exception of public defender's offices, I find it hard to believe that any government legal positions are really that hard up for applicants. The pay may not be as good, but the benefits and job security are unmatched, and most public sector attorneys work much saner hours than those who slave away at firms.

And as tough as they are, law school loans - especially at our low cost school - are just not an unreasonable burden considering the return-on-investment a J.D. provides. You just don't see a lot of attorneys living in vans down by the river. Even a career public defender can (with some smart investing), live and retire quite comfortably.

The one government/public service sector that was notably absent from her comments was military service. It's also notably absent from the Gates Public Service Scholarship winners, and I have a feeling it will be overlooked in the future, too. Why is a commitment to public service shown more in liberal activist groups like "California Peace Action," abortion advocacy organizations, or the ACLU than after a tour in Afghanistan? Which person has actually had a more significant impact on world peace and justice, humanitarian efforts, and introducing democracy - and at greater personal risk than suffering an extra few years of loan repayments? I have a feeling it simply never crossed the committee's mind. And that's sad.

The man giving the intro spoke strongly about the Justice's commitment to "justice," citing her protection of affirmative action, expansion of substantive due process, and making "principled" decisions as opposed to the ones she was "supposed to make." But whatever the virtues of those policy goals may have been, I wished she'd pursued them in a legislature where they belong. Our ideas of what make a principled jurist are clearly different.

I've always felt in reading Justice O'Connor's opinions that, while I agree with her votes more often than not, she's always been a policy maker on the bench. Saturday's speech drove that point home perfectly. I'm glad she was able to make the time to come speak, and that the event planners made so much room for law students - it's always fascinating to hear what such a powerful person has to say (not to mention the phenomenal food!). But I'm equally glad Justice Alito has replaced her on the High Court.