Statement before the Commonwealth Club of California

Thank you so much for your kind introduction, and the invitation to speak before the Commonwealth Club of California. It is quite an honor to speak before such a prestigious public policy forum; one dedicated to an honest exchange of ideas and a civil debate over the key public policy issues of our time. I guess your club is sort of like the Anti-Congress.

And by the way, what a great way to begin my time with you. When we arrived here at the club, I immediately ran into a local supporter. He marched right up and announced that it was time for a Mormon lawyer to be in the White House. I swelled with pride. And then I noticed his lapel button, "Steve Young for President."

Before I begin my prepared remarks, I would like to make just one observation. Is it me or is this one of the strangest Presidential campaigns you can remember? I mean, think of it. The sitting Vice-President appears to be running like a desperate, troubled challenger. The Republican front-runner is running what for all intents and purposes looks like a Presidential re-election campaign.

The press has been wearing a hair shirt about the improper influence of money in Presidential campaigns, yet all they talk about is how much the candidates have raised. They seem to be missing the point that some of the candidates are also spending money at a pretty good clip. Governor Bush has raised $56 million, but apparently has already spent more than $20 million. At this rate, he will spend more than any of the rest will have raised by the end of October, a year before the election.

The press is putting great reliance on national polls, declaring the race all but over, but let me tell you, Republican primary voters are not cooperating with the media. They are voting what they believe. So far, despite an unprecedented spending spree, Mr. Bush won a straw poll in Iowa by a much smaller margin than anticipated, has lost straw polls in Michigan and Alabama, where he came in third behind me. This past weekend, he narrowly beat me in a Wyoming straw poll, the margin of votes only 5%. This is true despite the fact that he is outspending me 20 to 1. You think that might be a story.

And, there is actually a party in the United States where the potential nominees may be Jesse Ventura, Donald Trump, or Pat Buchanan. Now that is a broad tent. The way things are going this year, I wouldn't be surprised if Steve Forbes selects Bill Gates as his Vice-President, and they promise to make good on the old campaign slogan of a chicken in every pot, a car in every garage - out of their own pocket.

I want to talk to you today about an issue that may well have a more lasting effect on each of you than the current debate in Washington over taxes, school vouchers or even our diminished military capabilities. It is not an issue that ranks high in various national polls, or that political pundits will debate on the Sunday talk shows. It is not the traditional stuff of stump speeches, but it is an issue that will directly impact each of you in this room and each of your families for generations to come.

On the other hand, it is an issue that involves abortion, racial preference, and the environment. It is central to the national debate over crime, the death penalty, and victims' rights. It even is the basis for the controversy over the limitations on the power of the Presidency and misconduct in the White House. This important, all-encompassing issue is what will be the role of the judiciary in the coming century. Will our courts be the bastions of law and impartiality promised by our Constitution, or will they become another politicized arm of an Executive branch that views the law not as an impartial statement of principle and rule but as a device for political justification and cover?

More and more, we live in a time when the most profound decisions impacting our lives are made not by elected representatives, subject to periodic review, but by an appointed judiciary. Whether we speak of civil rights, traffic stops and searches of our cars, grants of welfare, protecting the disabled from discrimination - it very often is the courts that are dramatically shaping the laws around us. In fact, in many ways, the courts have become the most encompassing forum to review the vast interaction between American life and its laws, and may be best positioned to impact dramatically almost all public policy.

In some ways, this is not that surprising. One of the principles that has made this country so unique is its judiciary and the promise of fair, impartial and accessible justice. Obviously, this promise has not been a reality for everyone; it clearly does not work every time or in every case. Every one of us can think of an example where we feel the outcome of a trial was a travesty, but no nation has tried so assiduously to make good on such an emancipating principle.

And the courts have played no small role in the protection of our Constitution and our form of government. Throughout this century, we have seen repeated examples of where the federal judiciary has been the last line of defense against the excesses and misconduct of the other branches of government. Yet this role is now in jeopardy, due to the persistent politicization and diminishment of the law under this Administration.

Never in my years of service have I witnessed an Administration more inclined to twist, deform, or ignore the rule of law than the Clinton Administration. The past seven years are steeped with examples of the political manipulation of the rule of law. Indeed, the real legacy of this Administration may prove to be the proposition that the law is malleable, easily twisted to protect or condone actions that are not just questionable but blatantly improper on their face.

I don't know if you have heard the story about President Clinton dying and approaching the Pearly Gates. St. Peter appeared and said, "Who goes there?"

"It's me, Bill Clinton."

"And what do you want?" asked St. Peter.

"Lemme in,"" replied Clinton.

"Soooo," pondered St. Peter. "What bad things did you do on earth?"

Clinton thought a bit and then answered. "Well, I smoked marijuana, but that doesn't count cause I didn't inhale. I had an affair, but that doesn't count because I didn't have sexual relations under my interpretation of the law. And I lied, but I didn't commit perjury."

After thinking, St. Peter replied, "O.K. here's the deal. We'll send you someplace that's really hot, but we won't call it Hell. You'll be there for an indefinite period of time, but we won't call it eternity. And, don't abandon all hope upon entering... just don't hold your breath waiting for it to freeze over."

To understand what this Administration is doing, one only has to look at the relentless determination of Attorney General Reno to avoid the appointment of an Independent Counsel to complete the campaign finance investigation, despite the advice and recommendation of every impartial observer. Now you don't have to like the Independent Counsel Act, and I for one am glad it has expired. At the time Janet Reno made this decision, it was the law of the land. To achieve this desired political result, she has been forced to misapply, misconstrue and outright ignore the provisions of the Independent Counsel Act.

Consider the 1996 election fundraising scandal where soft money prohibitions were cynically ignored, foreign donations eagerly accepted, and no source of funds was ruled out, regardless of existing prohibitions.

Consider the Escalante Proclamation, where this Administration secretly annexed a large chunk of my state of Utah without prior warning or consultation, an annexation so unpopular and improper that the President was forced to announce his misguided decision from the safety of a neighboring state.

Consider the now forgotten misuse of FBI files by the White House. And, the files that could not be located for a Congressional subpoena but turned up in the personal living quarters of the President and First Lady.

Consider the repeated violation of the Vacancies Act to allow this President to appoint individuals without Senate confirmation, including individuals the Senate will not confirm.

Consider the myriad events, dissemblance, and contempt for the law and our courts that brought us impeachment.

Given this record, it was hardly surprising to learn of the latest legal maneuver - that the Department of Justice may have repeatedly misled Congress in sworn testimony about its intentions with regard to its latest political foray - the lawsuit against the tobacco companies.

Last Wednesday, the Department of Justice filed in district court a multi-billion dollar suit against the tobacco industry, seeking to recoup losses to federal health care programs, charging among other things a violation of civil RICO. But this suit is not about the law. It is not even about the abundantly proven harmful effects that tobacco has on our people and our children. It is about the preservation of a political issue, the continuation of a political agenda. And it's the using of the courts to advance this political agenda.

Look, I am no friend of tobacco, nor an apologist for the industry. I have never used tobacco products in my life and am opposed to their use. If it was up to me, I wish every American would make the choice not to smoke. On a personal note, I can honestly say without equivocation I have never smoked or chewed tobacco. I certainly have never inhaled. In fact, I don't drink. I have never been too drunk to know what I was doing. I know, I am the quintessential straight-arrow. You know, there are some downsides with this lifestyle. Every mistake you make, you make stone-cold sober.

You know, I have always gotten teased for leading such a straight-laced life. People claim I must have had a dull childhood. Not so. There was excitement, even show-business connections even at an early phase. Fred Rogers of Mr. Rogers Neighborhood also grew up in Pennsylvania and does his show from my hometown of Pittsburgh. But, I didn't hang out with Fred when we were growing up. He ran with a faster crowd than mine.

Seriously, some pertinent facts about this tobacco lawsuit. On April 30, 1997, Attorney General Reno testified before the Senate Judiciary Committee that no federal cause of action existed for both federal Medicare and Medicaid claims. This statement by Ms. Reno, one of the few definite statements of law in her tenure, was made in response to a question by Senator Kennedy, who wanted to know whether the federal government could recoup both Medicare and Medicaid payments. And now, we are receiving repeated reports that career attorneys at the Department opposed the filing of the suit, because they felt it was not justified under the law.

What happened to change the Department's interpretation of the law? Quite simply, President Clinton decided a lawsuit was in his political interests. According to the Wall Street Journal, the decision to file the lawsuit was the product of an aggressive lobbying campaign orchestrated by some in the White House and by a gaggle of outside lobbyists.

The objective of this lawsuit, especially the RICO component, is to force the tobacco companies to settle, allowing the Administration to spend the settlement dollars without Congressional appropriation. And, that is the big problem. No administration should be able to circumvent the Constitution and Congress' sole authority to raise and spend revenue for the general welfare by using its considerable legal power and clout to force companies to settle large lawsuits or face bankruptcy. Litigation should not replace legislation as the means to effect public policy in a democracy.

Misuse of the Courts

Granting the federal government the unfettered ability to sue any industry, no matter the law, no matter the precedent, to effectuate a political goal is a mistake. It would allow the Executive branch to bypass Congress and the law and unilaterally establish public policy.

And this is the real danger of the persistent politicization of the law by this Administration - that the courts will lose their independence, the responsibility for simply interpreting the law and become instead enforcement mechanisms for the White House's political agenda.

An honest discussion of the best course for our future must take into account what turn we want the law to take. Do we want to return to the Warren Court - the most tumultuous period of Supreme Court activism? Do we want to return to a time when the courts served as a third house of our legislature, where un-elected Justices took it upon themselves to enact a wide-ranging liberal social agenda? Do we want to return to an era where the letter of the law was paramount to its spirit, where criminal defendants were awarded undue protection at the expense of law enforcement and the family?

Or, do we want courts which interpret the law instead of rewriting it, that place limits on the power of the federal government? Do we want courts which uphold the promise of equal protection for all persons, and have a respect for individual property rights, that allow justice to be meted out to vicious criminals in the form of stiff criminal sentences and, where appropriate, the death penalty?

Judicial Appointments and the Impact on the Supreme Court

Most Americans do not appreciate the critical fact that the next election may well determine the outcome of this question, because the next President will have the ability to appoint judges who conform to his or her philosophy of the judiciary. President Clinton has already selected well over forty percent of the sitting federal judges. Given judicial turnover, the next President will have the power to determine the direction of the court, the philosophy of the majority who sit on the federal bench.

And, the next President may have the opportunity to appoint at least three and maybe four Supreme Court Justices. Think of the consequences. Given the close nature of many recent, key high court decisions, the potential impact on legal policy in this nation is staggering. The Supreme Court's decision in Jones v. United States to uphold the first death sentence under an expanded federal death penalty was a 5 to 4 decision. The 1999 decision in Minnesota v. Carter, where the Court did not expand the scope of the exclusionary rule and rule out evidence to convict criminals was also a 5 to 4 decision. The same is true for recent decisions involving racial quotas, abortion, religious liberty, the protection of states' rights, and the right to property protection under the Fifth Amendment.

The Next President

This is the real challenge and the real opportunity awaiting the next President - to determine the direction and the integrity of our judiciary. We must have a President who is willing and capable of selecting and appointing men and women to the judiciary who believe that the role of the courts is interpretative not legislative. We must have judges of the highest character and intellect, nominees who represent the best we can offer not the worst we can tolerate. We must have judges who have proper judicial temperament, and who are determined to rule consistent with our Constitution.

We must have a President who understands that importance of the nomination process, who will not make selections on the basis of momentary political convenience. There have been too many examples of mistakes made by Presidents who did not take the time to know or understand a nominee. In fact, the most liberal member of the current Supreme Court was appointed by a Republican.

And, we must have a President who has a demonstrated, proven ability to work with both parties, so that the judicial nomination process does not continue to be bogged down in partisan gamesmanship

There has been just criticism by both parties about what is happening today. Some want to oppose every judicial nominee, but we must not forget that our Constitution gives the power of appointment to the President. If one political party begins a wholesale rejection of every Presidential nominees, the stage will be set for the inevitable backlash when power changes hands and the tables are turned. But, at the same time, there is an obligation on the President to submit nominees who are qualified and whose intent is not to be political activists from the bench.

The Hatch Record

What we must always remember is that while it may the Executive Branch or the legislature that will create the policies that enable this great experiment that we call the American Dream, but it will be the judiciary that will preserve and protect it. It will be the judiciary that will guarantee our nation's promise.

Early on I learned about the opportunities that this great country gives us. I was born into poverty. As a young man, I worked hard in the Building and Construction Trades Union as an apprentice. To afford college, I worked as a janitor at 65 cents an hour. You know, once in a debate over the minimum wage, Ted Kennedy sarcastically suggested that I should have stuck with being a janitor. Let me tell you, some of my Senate colleagues would benefit greatly working for a while as janitors, an observation you can be assured that I shared with Senator Kennedy.

When my wife Elaine and I first married, we lived in my parents' converted chicken coop. But we succeeded. We have succeeded because of the opportunities that this great country offers to all of us. We have to keep those opportunities alive for every American.

We open opportunities by empowering American families. We have to empower them by reducing their tax burden, ensuring health care at a reasonable cost, making our schools safe, getting rid of drugs and doing more about crime, especially violent juvenile crime.

Today, crime rates are going down, primarily because of the work of two Republican mayors - Rudy Giuliani of New York and Dick Riordan of Los Angeles. But teenage gangs, using the highest technology, are ravaging our cities. Violent juveniles are murdering other children. Juveniles were involved in 14% of all murder and aggravated assault arrests, and 37% of all burglary arrests.

And no wonder. Half of all children will see the breakup of their parent's marriage. In fact, the proportion of children from broken families has more than quadrupled since 1950.

This is why it is so wrong that some in Congress are willing to sacrifice the Juvenile Justice Act, which would address these problems immediately and dramatically, on the altar of temporary political expediency.

We open opportunities by bringing the needed reforms to education, like charter schools and economic opportunity scholarships. We open opportunities by dealing with race in our society and the gaps between rich and poor, black and white.

The time has come to break the cycle of scoring political points at the expense of the country. There is too much done on grounds of what is good for the Democrats or what is good for Republicans, and not enough on what is good for the country. We can accomplish much if we are willing to work together. There is a time for standing for principle. And there are opportunities to pass good legislation that represent good public policy without sacrificing the values for which we stand.

That's why I worked with Senator Joseph Lieberman in 1997 to cut the capital gains tax rate from 28 percent to 20 percent. And based on a study by Standard & Poors DRI service, it is clear that this tax cut has helped fuel our economic growth.

That's why I worked with Senator Chris Dodd to pass the Child Care Block Grant, which allowed parents to know their children would receive proper care while they worked. And, with Senator Ted Kennedy to pass the New Child Health Insurance Program, now hailed by Republican governors as the most effective federal-state partnership to help millions of working parents receive health insurance for their children.

That's why I worked with Senator Tom Harkin to pass the Dietary Supplement Health and Education Act, which ensured that millions of Americans would have access to affordable and quality dietary supplements.

That's why I worked with Congressman Henry Waxman to pass the Drug Price Competition and Patent Term Restoration Act, which created the modern generic drug industry, an industry which has saved consumers and taxpayers hundreds of millions of dollars and freed so many seniors from having to choose between food and the pharmaceutical products they need.

And, that's why I have worked with Senator Kennedy to pass AIDS legislation, legislation that has been critical to our national campaign to find a cure.

But none of these achievements will last or will even be possible, none of these goals can be reached, if we do not preserve and protect the integrity of the judiciary, if we do not stop this inexorable slide toward the politicization of the federal bench. This next election, the American people will make a choice. We can choose to continue the diminishment of our courts into another politicized extension of the Executive Branch that views the law as a device for political justification and cover, the real legacy of the Clinton-Gore Administration. Or, we can choose a President who will preserve the Constitutional promise of a judiciary untainted by politics, of courts that strive to provide impartial and accessible justice, where the rule and the spirit of the law are paramount.

I am confident, if given the chance, we will make the right decision.

Thank you, and I would be glad to take a few questions.