Remarks to Spartanburg County Bar

Good afternoon.  What a great occasion! Congressman Gowdy, Grace, and I were law school classmates, so it's almost like a class of 1989 reunion.  Also, I feel compelled to mention Ken Anthony and congratulate him on his award.  Ken was the SC Bar President in 2003-2004.  He did an incredible job as President, and has been a friend and mentor to me on Bar matters.    

It is my pleasure to be here with you today.  It is especially nice to be here in Spartanburg.  Since I began practicing law in 1989, I spent many a day in this courthouse.  The Spartanburg County Bar is composed of great lawyers.  It has great judges and I have always enjoyed trying cases and arguing motions in this courthouse. 

There was, however, one exception.  It involved a case very early in my career as a lawyer.  We were handling the defense of a case with a large trucking company which had a lawyer from out of state who was lead counsel.  Because we were only local counsel, I was assigned to handle the matter for our firm.  On the day the trial began, the courtroom was filled due to the fact that there was a roster meeting that morning as well.  To say the least, as a young associate, I was nervous.

Judge E.C. Burnett, for whom one of the awards is named, was the presiding judge.  Judge Burnett walked in.  Before even sitting down, he barked out, "Where is Marvin Quattlebaum?" At the time, I had never met Judge Burnett.  Scared and probably shaking, I stood up meekly and said, "I'm Marvin Quattlebaum, Your Honor."  Judge Burnett then said loudly, so everyone in the courtroom could hear, "The last time I saw you, you were peeing down the side of your leg!"  It turns out Judge Burnett's wife Jamie and my mother were classmates at Limestone.  They had stayed in contact after college so and Judge Burnett had seen me when I was a toddler.  I guess I did not make a good impression on Judge Burnett when I was a toddler and I don't think my client or national counsel was too impressed that day.  Frankly, I don't recall much of the rest of that trial.  I just remember my introduction to Judge E.C. Burnett. 

One of the things that goes along with job of Bar President is speaking engagements like this.  I have enjoyed going around the state meeting people and talking to them about what is going on with the Bar.  However, my first speech as Bar President was perhaps my most memorable.  It was Law Day of 2011 and the headmaster at my daughter's school asked me to come give a speech.  I waited in the back until I was called up to speak.  After being called up, I walked to the podium through an aisle in the middle of the room.  The students were on each side.  As I was walking up I saw my daughter Elizabeth, who was a sophomore in high school at the time, with her friends.  The room was quiet when I approached the podium.  But the silence was broken by Elizabeth.  She said to her friends:  "OMG, this is the worst day of my life."  Well, I hope this speech will not be the worst day of your life. 

Well I suppose I should dispense with the stories and get to our topic.  The American Bar Association has a theme for Law Day 2012.  That theme is "No Courts, No Justice, No Freedom," and I will use that as the backdrop of my remarks today.

There is a lot bottled up in those words.  Indeed we could talk about each of those concepts for hours.  But to me at the heart of "No Courts, No Justice, No Freedom" is the underlying principle that all citizens must have access to the courts for there to be justice in our society.  In other words, all citizens must have access to justice.  So let's talk a bit about "access to justice."

First of all, where does this principle of access to justice come from?  Well, why don't we start with our Constitution?  Listen to the very beginning of the Preamble:  "We the people, in order to form a more perfect union… . What's next?  Establish justice… ."  So in the very first sentence, our Constitution talks about establishing justice.  That means, when we address the issue of access to justice, we are not talking about some new age idea.  We are going straight to the text of what our Founders wrote in the earliest days of our nation's history. 

But this principle of access to justice is not just words in an old document, as important as that document is.  It is a principle that has historical roots in the real life sacrifices of some of the giants of our profession.  Let me give you a few examples. 

Example number one.  John Adams believed in access to justice.  In fact, he believed in access to justice for even our most bitter enemies.  Adams was our second President, but he was our first lawyer President.  And he was not just a politician with a law degree; like your and my Congressman Trey Gowdy, he was a great lawyer.  Commenting on Adams' skills as a orator, Thomas Jefferson said: "Adams moved his hearers from their seats." 

Adams' most famous case arose from the protests by American colonists in 1770.  The colonists were sick and tired of British taxes.  They gathered outside the Custom House in Boston.  British soldiers were called in to maintain order.  One of the soldiers was hit by something.  He thought it was thrown by the protesters.  The soldiers then fired into the crowd, killing five protesters.  This event became known as the Boston Massacre.  The soldiers were charged with murder. 

Amid intense and deep anti-British sentiment, how could these soldiers get a fair trial?  Most colonists were not worried about a fair trial.  They felt the soldiers deserved punishment, not fairness.  But not John Adams.  He agreed to take on their defense and provide them access to the courts.  He did this not because he was sympathetic to their cause.   He was not.  Adams was one of the leading advocates for American independence.  But he believed in access to justice and he felt these men deserved a defense, even if he despised what they stood for. 

Providing access to justice to these British soldiers was not popular.  In fact, it cost Adams dearly.  He lost most of his other clients because people were so mad at him for defending the hated British soldiers.  But later in his career, a career that included serving in the Continental Congress, an Ambassador to Europe, and as our second President, Adams said his defense of those British soldiers was "one of the best pieces of service I ever rendered to my country."

Example number two.  About a year ago, our profession lost a giant when The Honorable Matthew Perry died.  Judge Perry believed deeply in access to justice.  He believed that no citizen should be denied access to the courts of the United States, especially because of the color of their skin.  Judge Perry of course became South Carolina's greatest civil rights lawyer.  His work led to the integration of South Carolina beaches, parks, restaurants, and schools.  His work led to the release of over 7,000 sit-in civil rights protesters.  His work forced Clemson University to admit its first African American student.  Judge Perry became the first African American to serve as a federal judge in South Carolina.  Following his remarkable career as a lawyer, Judge Perry served with distinction on the bench.

Judge Perry's fight for access to justice was not easy.  Like John Adams, he sacrificed greatly.  He at times was forced to sit in the balcony of courthouses waiting for his turn to argue his case.  He was sent to jail for the positions he took.  But like John Adams, Judge Perry believed in access to justice for all.  As a lawyer, he lived out that belief.  He made sure that those who were disenfranchised and subjected to discrimination that we can hardly imagine today had access to the courts just like the rest of society.

Example number three.  South Carolina lawyers also believe in access to justice.  I could go on and on with stories about specific South Carolina lawyers and how they have sacrificed to provide the least in our society with access to justice.  I have seen these examples throughout my career, but have seen even more as your Bar President. 

If you have time, take a look at the Bar's website and look under the video series called "I'm Proud to be a South Carolina Lawyer."  There you will see real life examples of lawyers who sacrifice financially in order to make sure that all our citizens have access to justice.  One of the profiles you will see is Alex Evins, who was honored earlier today.

Another way in which South Carolina lawyer provide access to justice is by representing indigent clients appointed under Rule 608.  By law, lawyers are supposed to be reimbursed for this work.  However, the General Assembly has failed to fund this obligation for years.  Despite that, many South Carolina lawyers have spent hundreds of hours on cases and have paid expenses from their own funds to fulfill our professional obligation to zealously represent clients, even without reimbursement called for by state law.  One lawyer reported to the South Carolina Bar Board of Governors that she had forty open Rule 608 cases.

While the South Carolina Bar believes all lawyers should do pro bono work, it has long advocated against the present appointment system.  We have asserted that the economic hardship it causes renders it unconstitutional.  In fact, the Bar argued this position in an amicus brief filed with the Supreme Court in a case called ex parte Brown. 

Last year, in its decision in the Brown case, our Supreme Court agreed with the Bar's amicus brief and declared that unfunded 608 appointments are an unconstitutional taking.   The Bar applauds this decision.  But that doesn't mean we think lawyers should stop helping the poor.  In fact, we believe that now even more lawyers will have an opportunity to give back through true pro bono service.  The practice of law remains a profession with public service as its chief end.  Like John Adams and Matthew Perry, South Carolina lawyers believe in access to justice. 

So we know the concept of justice is in our Constitution.  And we know that from John Adams, to Matthew Perry, to South Carolina lawyers today, lawyers have sacrificed to ensure that access to justice is preserved.  But what does it matter?  What is really at stake when we are talking about access to justice?

As you think about that question, let me ask whether you know who Mahammed Al Bouazizi is?  Does that name sound familiar?  Bouazizi was a vegetable farmer in Tunisia.  Like many people in that country, he was educated, but had extreme difficulty finding work due to the dire economic conditions in Tunisia.  But he needed to feed his family, so he decided to sell vegetables from a roadside stand.  As he was doing this, Bouazizi was arrested.  Apparently, he did not have the necessary license needed to sell vegetables on the street side.  When confronted by the police, he asked for directions as to where he should go to pay for his license.  The authorities had different ideas, however.  They took Bouazizi to the public square.  There they humiliated him by beating him up and insulting his family.  This was "access to justice" in Tunisia.

What did Mahammed Al Bouazizi do?  In response to being humiliated, he went back to that public square and literally set himself on fire.  His doing so was the tipping point event that ignited the revolution in Tunisia. A revolution marked by protests, violence, and, by our standards, chaos. 

You see, Bouazizi had no access to justice.  Nor do most people in Tunisia.  When there is no access to justice, there is no respect for the law.  When there is no respect for the law, there is chaos and even anarchy. 

Contrast that with the United States.  Think back twelve years ago.  At that point, we were coming off a bitter presidential election between Texas Governor George Bush and Vice President Al Gore.  As we all recall, the election came down to Florida.  And the Florida votes were so close that recounts were ordered and litigation ensued.  The U.S. Supreme Court took the case and ordered that the recounts end and that Florida certify its delegates for George Bush.  This meant George Bush became our country's 43^rd President.  Republicans were elated and Democrats were bitterly disappointed. 

But what happened?  Vice President Gore, in perhaps his finest moment, resisted the temptation, that must have been immense, to criticize the Court.  Instead, he respected the decision, stepped aside, and George Bush became President.  In fact, despite the extreme intensity of the election and the manner in which it was resolved, we saw a peaceful transfer of power from one party to the other.  This is a far cry from what we just described in Tunisia or what we have subsequently seen in Egypt, Libya, and now Syria. 

You see, in our country, we respect the rule of law.  This respect for the rule of law derives from a belief of our citizens that courts are places that are accessible to all.  They are places where people can come and get a fair hearing regardless of what their name is, what they look like, or how much money they have. They are accessible not just to vice presidents like Al Gore or governors like George Bush.  They are accessible to indigents like the people South Carolina lawyers represent for free every day.

We as Americans have a special judicial system to which all our citizens have access.  And remember our theme:  No Courts, No Justice, No Freedom.  Access to justice gives rise to a respect for the rule of law.  And the rule of law give rise to the freedoms we enjoy in this country.  That is what is at stake – access to justice.

But our judicial system, for all its greatness, is not guaranteed.  It should not be taken for granted.  If it is not tended, if it is not maintained, it can be lost. 

That is why projects like the Law Day speech contest spearheaded by Judge Hayes is so important.  This project reminds students, and in fact, reminds us all, of the important issues that go to the foundation of our country's democracy.  It provides an opportunity for young students, like those we celebrate today, to think about these important topics, to study them and to write about them and develop their own views. 

Alexis de Tocqueville pointed out that "each new generation is a new people that must acquire the knowledge, learn the skills, and develop the dispositions or traits of private and public character that undergird a constitutional democracy.  These dispositions must be fostered and nurtured by word and study and by the power of example.  Democracy is not a machine that will go of itself, but must be consciously reproduced, one generation to the other." 

Judge Hayes, President Knie, and the leadership of the Spartanburg County Bar Association, thank you for your leadership in fostering these traits of private and public character that undergird our democracy.  And to all the participants in the essay contest, thank you for the hard work you have put forth.  That hard work will reap rewards, not just in recognition of some today – which is of course wonderful – but in making you fit to live in a democratic society. 

In closing, I'd like to suggest that I believe there will be an opportunity in the coming months for us to either solidify to this notion of respect for the law or threaten it.  As you know, in March, the United States Supreme Court heard arguments about the constitutionality of the Affordable Health Care Act, also known as ObamaCare.  The upcoming decision from the Supreme Court in my view is a time that will test our country's respect for the law.  At this point, no one knows what that decision will be.  However, it is almost certain that a lot of us will like the decision and a lot of us will not.  When that happens, how do we respond?

I suspect we will do what we often do in America – we will disagree.  We will debate.  We will even argue.  All that is okay.  We live in a democracy and such debates and arguments are what democracy is all about.  But as we debate or argue, let's do so in a way that doesn't undermine respect for the law.

So before debating, before arguing about this decision that will get so much attention, let's take a deep breath.  Let's refrain from personal attacks on the judges.  Let's refrain from attacking the legitimacy of the Court or its decision, whatever it is.  Let's not criticize the decision as being based on politics, rather than the law.  Let's not call the justices Reagan appointees, Clinton appointees, Bush appointees, or Obama appointees.  And even if we disagree with the decision, let's respect it as being made by judges doing their best to interpret the law in light of the difficult issues that were placed in their laps. 

You see, across our country and indeed right here in Spartanburg, South Carolina, judges have to make those tough decisions every day.  So let's uphold the rule of law in this country, in the way we respond to the upcoming health care decision.

Thank you very much.