Keynote: Judge Robert D. Sack, LL.B. ’63
Dean Schizer, esteemed members of the faculty; Class of 2007; family and friends; honored guests.
What a thrill to be here. In this place.
Over there, as you probably know, 85 years ago, Columbian Lou Gehrig was hitting home runs onto the steps of Low Library.
And over there, Columbian Herman Wouk set the first page's of his novel, The Caine Mutiny—Willie Keith goes to OCS—in front of Furnald Hall, amid what Wouk uncharitably referred to as the "dingy red-and gray buildings of Columbia University."
More to the point—particularly for my late parents, who footed the bill—up there, in Room 801 of Furnald, I lived for a couple of school years beginning in September 1960. And behind you, Butler Library, where—if you'd believe it—all of my first-year law-school classes were taught in a windowless basement room while what is now-Jerome Greene Hall was being built.
So this is all particularly meaningful for me.
Before I go a word further, I want to take a moment to congratulate Professor Debra Livingston on her confirmation to be a judge of the Second Circuit Court of Appeals—the 66th judge in the history of the Court. As a Law School graduate, I'm proud. As a member of the Court—indeed I think I can say on behalf of the Court—I'm very pleased.
Now, at Dean Schizer's flattering invitation, I will share with you some words of congratulations, to you, your parents, and those joining you today—and of advice that I have previously imposed on—by actual count—three children and thirty-six law clerks.
First—as my uncle told me long, long ago, "Fun" is not a four letter word. Have fun. Law, where it's done right, is challenging. It is hard. If you don't find it fun, how can you compete with lawyers who do? More important, if it isn't fun, what's the point? Even if you're headed for one of New York's firms paying the so-called going-rate, despite the bad rap it gets, it can be fun. If it turns out to be relentless tedium, go somewhere else, do something else—there are so many other places, so many other things to do—other ways, perhaps, even to pay off your loans. Wherever and whatever it is, for heavens sake, have fun. Trust me. There is wisdom in the cliché—Life is, indeed, too short.
All right. You're having fun. (And I expect you to.) What then?
My Father was a reform rabbi with a pulpit in Park Slope Brooklyn. He had a wry sense of humor and got no little delight in trying to get a rise out of me.
Once, while I was in law school and rather serious, he began to talk to me with a twinkle in his voice if not his eye.
"Bob," said the rabbi to his son. "I have invented a new religion."
"You have what?" I said.
"I have invented a religion."
He continued, "What is it that governs everything in life?"
("God?" I thought, mentally-checking the calendar to figure out when his next sermon was due.)
"Luck," he said, "luck governs everything. From the moment of conception—when one sperm and not another fertilizes an egg—to the means and instant of your death, chance is everything.
"So," he said, "I am inventing a new religion. It will be devoted to the worship of luck. Its house of worship will be? Of course . . . a casino. And I," my father told me, "As the clergy—I will be The House."
Luck. The arbitrariness of life. Much of it—and more than we care to admit is chance.
My court, as all federal courts of appeals, nearly always sits in panels of three judges. Which three sit on any given day is the carefully orchestrated product of random choice. It would be foolish to think that which-judges happen to sit on your panel never matters. Sometimes it does. The luck of the draw.
The week before a sitting, the clerk's office posts the list of the three-judge panels for the following week. And when lawyers waiting to argue see my name, they might well say, "Oh, Good!," or, "Oh God." I guess I have become other people's luck.
I am going to dodge the moral, philosophical and religious implications of chance, and talk for a moment about practicalities. In the face of the arbitrary, what should you do?
It was Woody Allen who said, "80 percent of success is showing up." (I tell you—it was Woody Allen. I Googled it.) Allen has the beginning of an answer then—show up.
For more than thirty years before I took the bench, my clients were great-American newspapers. What clients! What a way to practice law! Fun. As my friend Burt Neuborne said to me: "doing well by doing good."
My dear friend Jack Weiss is a partner in Gibson, Dunn and Crutcher here in New York, practicing among other things, as had I, media defense law. And for the past several years, he and I have taught a seminar just across the street on the First Amendment's press clause. Jack's son David is in the class of 2007. Jack and his family are here with him this afternoon.
For as long as I can remember, most recently in our classroom, the question most often asked of me—and doubtless of Jack—has been, "How did you get into the media practice—and, more to the point, how can I?"
This is, unknown to the innocent inquirer, a peculiarly embarrassing question. I have but the vaguest idea of how to get into media law. The way I got there was by being in-a-particular place at a particular time. Now what kind of advice is that?
After my clerkship, I took a job with Patterson, Belknap & Webb here in New York. A partner of the firm, later my mentor, Bob Potter, greeted me at the door. He said, "The most fun around here is representing The Wall Street Journal." And I said— "Yes. I'll do that." That's how I got into media law. I can't tell you how to replicate the experience.
My seat on the Second Circuit, parenthetically, is a longer, more improbable series of having been particular places at particular times, and then saying "Yes." Much was good fortune.
The beginning of this lesson then is: You have to be in the right place at the right time. That is not fatalism. It is encouragement for you to be in a fair number of different places a fair number of different times. You can't get lucky unless you show up.
But there is more. When the place is right and the time is right, you must recognize it and be willing to say "Yes," even though "no" is very often the easier, the more comfortable answer. As one of my colleagues likes to say, you can't hit the ball if you don't swing the bat. Mixing the metaphors, if more than 80% of success is showing up—much of the rest is to "swing," to say "Yes."
I pause to remind myself—not you—that saying "yes" implies change. This sort of change has an impact on work, on family and friends. You cannot agree to do something new without first assessing that impact. Saying "yes" also means that at other times you have been given the freedom by colleagues, family and friends to say "no."
I've had the support of a lot of people that allowed me to say "yes." Otherwise, I wouldn't be at the rostrum today. You will need plenty of support; and I hope you will give plenty of support to others in your turn.
Well, so that's success? Of course not. When you are in the right place at the right time, and you can and do say "yes," you have thrust upon you, I think, a special responsibility. Singular good fortune gives you a singular opportunity. It is you who has been chosen, even if by chance. You have been given the burden of that opportunity and you and you alone have the chance to carry it.
So luck is a necessary beginning. As your career unfolds, you can improve your odds, keeping a sharp-eye out for the right time and the right place. You are smart enough and likely wise enough to take the risk of accepting it when it happens and if you can. But then, ultimately and properly, you will be judged by the seriousness of your efforts and the results they obtain.
As you seek, accept and meet these challenges, I warn you that there will be times when you will be hounded by all manner of doubt. And others around you will seem so sure.
The great Second Circuit judge, Learned Hand, quoted as the key to his over-all philosophy, Oliver Cromwell's plea . . . : 'I beseech ye in the bowels of Christ, think that ye may be mistaken.'"—THINK THAT YE MAY BE MISTAKEN. Hand said that-that legend should be written (quoting him) "over the portals of every church, every courthouse, and at every crossroads in the nation . . . ." [It seemed to him] that, in his words, "if we are to be saved, it must be through skepticism."
One of my father's professors held what I take to be the same general view. Except he used rather more earthy terms. Responding to the "truths" asserted by young rabbinical students, he would snap—in English with an Eastern European accent of undetermined origin– "Don't be cock so sure of yourself." That's good advice.
I am not making a metaphysical point. Saul Bellow, in Humboldt's Gift, told the story of the late philosopher, CCNY professor Morris Cohen, who was asked by an animated student in his metaphysics course, "Professor Cohen, how do you know that I exist? How do you know that I exist?" Cohen peered down at the student and said, "And who is asking?"
That's enough for me. I, for one, am perfectly delighted to assume that each of you exists. I am equally delighted to assume that there are many other kinds of truths. But the word "truth" is protean—its meaning changes with time and context—from the truths we hold to be self-evident to the truths about yesterday's weather. But no matter.
The study of law should in any event teach lawyers to be wary of "truths," or declaring that they have discovered them. Who are you, and not the person sitting next to you, to have found the truth?
Lawyers talk about truth all the time. But ordinarily we don't mean truth in a sense that's permanent or profound. We seek temporary answers to who-did-what-to-whom in order to resolve conflicts. As the wonderful Sixth Circuit Judge, Gilbert Merritt, once observed in a libel decision, "Judicial proceedings resolve disputes, but they do not establish truth for all time."
During litigation there is a lot of talk about the search for truth—the what actually happened—amid the clash of conflicting evidence. When the time comes to reconcile irreconcilable versions of that "truth" we refer the conflict to random members of the public—the jury. Why the jury? Because, I think, our experience tells us that that is a reliable and widely acceptable way to resolve disputes, and carries with it a variety of miscellaneous virtues, not because we have determined scientifically that it is the best way to determine the "what actually happened"—even in the context of that particular case.
And if it were truth we were after, would we insist that when the judges and jury have spoken—except in rare circumstances—that is the end of the matter—forever? Would we, talking in odd terms of "finality," "res judicata" and "collateral estoppel," forbid new arguments to be made in court on the basis of old facts? Does science forbid scientists from re-examining long-since-published findings and proving them wrong? Academics and the academically inclined, of course, re-examine cases as long as such a review will, in their estimation, shed light on things that matter. That's what they do. But for lawyers and judges, acting as lawyers and judges, when the case is over, the case is over.
I once noted in talking about libel law that "Although there is a truth, a 'what actually happened,' as to whether there was a shot from the 'grassy knoll,' whether Bruno Hauptman murdered the Lindbergh child, or whether aliens have been kidnaping earthlings, despite strong certainty by those taking each side of the issue, the truth is persistently elusive." And if a jury in pursuit of a verdict decides that there was no shot from the grassy knoll or, as a jury indeed did, that Bruno Hauptman murdered the Lindbergh baby, and the decision is upheld on appeal, for the purpose of law, that is ordinarily the end of the matter. It wouldn't be for a historian or a teacher. But (assuming no newly discovered evidence—think "DNA"—or executive clemency, or the like) it is the end of the matter for the law.
The lesson? Simply that we judges should be modest. Not indecisive, but comfortable with a pervasive sense of doubt and uncertainty. We try as-hard-as-we-know-how-to-be-right. We study the law, the facts, the fact-finding of others, and in light of our own experience and judgment, decide the case before us. Okay, sometimes we make a little law tied to those precise facts in the bargain. But then, right or wrong, we move on.
As a practitioner—a principled, morally sensitive, philosophically inclined practitioner—most of you will by and large choose up sides, battle valiantly, and win or lose. And then you start all over again on something new.
While you should never make arguments that you believe to be wrong, by a strange alchemy, when you stand up in court, you almost surely will believe earnestly in the argument you do make, whatever it is. That's the genius of the adversary system. But when the case is over, you will rarely know for sure whether you really should have won or lost. Drenched in the evidence, as you will be by then, you will rarely know for sure the truth—what actually happened as a matter of fact—even in cases to which you have devoted a chunk of your life.
To borrow a phrase from your professor and my former law clerk Liz Emens, we are sheep in wolves' clothing. As lawyers we should learn radical doubt. But we give it the trappings of a string of certainties. We, if not the world, must be comfortable with that.
None of this is likely to make us very popular. Perhaps it is the sense of lawyers as creatures of relative truth, the case at hand and its rewards—as "hired guns"—that helps the bar to its frequent appearance at the low end of America's "whom do you admire" scale. But at least insofar as that view is based on the shifting sands of the positions that we take, I think the majority to be wrong. I think that there is less danger in our professional careening from one stance to the next, than there is in others' permanent commitment to perceived absolutes. Read any day's newspaper. There is far more to fear from stagnation, the wallowing in certainty; from inhumanity fed by self-assured hatred and bigotry—than there is from doubt.
I think, then, that Learned Hand was right. "If we are to be saved, it must be through skepticism." Or as he said more famously, in remarking on his faith in "the Spirit of Liberty" in 1944, the spirit of liberty is in part "the spirit which is not too sure that it is right."
Of course you can't wear uncertainty on your sleeve. That's a dreadful way to inspire confidence in those who will depend on your judgment. But arrogance is not a virtue; doubt is not a sin. I suggest that you as lawyers, take comfort in your skepticism. That you not be "too sure that you are right." That, in short, you not be cock too sure of yourself. The law does not ask of you otherwise.
Because of my interaction with law clerks and law students, maybe I know you better than I am letting on. You are lucky—you're here. You showed up, you took a swing, and, Lou Gehrig like, you hit the ball. As far as I can tell, you have had fun—which a member of the class of 1963 finds altogether astonishing. And you are more modest than might be expected from such a bright bunch of skeptics. So I suspect I am actually preaching to the choir. Let me, nonetheless, sum up with a wish for the Class of 2007: Be modest, have fun, good luck, and when you get lucky, make us all proud.