I am pleased and honored to have the opportunity 
to speak to the Beverly Hills Bar Association, and 
especially at its luncheon honoring the California 
Supreme Court. I still remember the fear and 
trepidation I felt when, at the age of 40, I appeared 
before that august body, even though I had argued a 
case before the United States Supreme Court ten 
years earlier. My argument before the California 
Supreme Court was one of those exciting and 
memorable experiences most lawyers merely dream 
of. And imagine how thrilled I was when after the 
proceedings were over I received a letter from a 
Justice. I opened the envelope eagerly. Enclosed was 
a note telling me that I was one of the few lawyers 
who had ever appeared before the Court who knew 
the difference between criterion and criteria. Thank 
you once again for your vote of confidence in me, 
Justice Mosk.  

How often speakers tell their audiences that this is a 
critical time. Sometimes, it actually is. Occasionally, 
the issue is sharp and clear, and the stakes are high.  
For example, few would doubt that last week's 
Israeli election met that standard.  But most 
important changes in a democratic society take place 
in a less dramatic manner the gradual erosion of 
individual rights, and particularly the Fourth 
Amendment, that has come about as a result of our 
fear of crime, the increasingly adverse impact of 
money and the media on the American electoral 
process, the growing divisions between various 
racial and ethnic groups, fed by the callous and 
selfish actions of some of our most respected 
political leaders, and last but not least the ominous 
rise of religious fundamentalism at home and 
throughout the world. These were or are all gradual 
developments and it is often difficult to know just 
how or when to try to deal with them. By the time 
we realize the need to act the changes are often 
firmly entrenched, or even worse, intractable. In 
short most changes seem to overtake us before we 
are fully aware of the strength of the force behind 
them. It is sometimes difficult to see the starting 
point, let alone know how to bring an end to a 
rapidly escalating but totally debilitating decline. 

Today, there is a serious erosion in the way 
American views two of its most respected and 
essential institutions -- the bench and the bar. It is 
these two institutions that differentiate our country 
from all others. Together, they enforce a Constitution 
that provides freedom, liberty, and equality for all, 
that protects democracy as we know it and ensures 
that we as a nation will grow in dignity and fairness 
at the same time we grow in population and 
complexity. Without lawyers dedicated to promoting 
our emerging liberties, without lawyers willing to 
fight for the rights of the poor and the 
disadvantaged, without judges with courage, wisdom 
and compassion, we would be locked into a rigid and 
inflexible mode of legal analysis. Our constitutional 
development would be stifled by a myopic view of 
the law, a view that disregards the foresight and 
imagination of our Founding Fathers, for in our 
Constitution those wise men established a set of 
broad general principles that incorporates their 
vision of the American spirit and that, with the 
addition of a few amendments, like the Fourteenth, 
has served as well for numerous generations. 

But whatever one's view of constitutional 
interpretation, of individual rights, of human 
dignity, of the proper role of the judiciary, we must 
all recognize that for a variety of reasons the courts 
and the legal profession are now at a low point in 
public esteem. Perhaps the good news is so is every 
other institution - the Presidency, the Congress, the 
media, the entertainment industry, even 
professional athletics. But, in the long run, that is 
little consolation. This nation will not survive as we 
know it without a strong and independent judiciary, 
without a dedicated and public spirited bar. 

First let's look at some of the causes of our fall from 
grace and then let me suggest a few modest if 
potentially unpopular steps we might take to 
improve our current condition. 

The causes are not discussed in any particular order 
of importance and they certainly do not comprise an 
exhaustive list. 

First, there are the intemperate and inexcusable 
attacks on the independence of the judiciary by our 
political leaders.  Here, the blame must be shared by 
both political parties, although not necessarily to 
equal degrees. The Judge Baer episode is only the 
most dramatic of these incidents.  Judge Baer, the 
former Chief Deputy Prosecutor in the United States 
Attorney's office in the Southern District of New 
York, made a fairly routine ruling in a search and 
seizure case. These are sometimes hard calls. 
Without reviewing the record, none of us is in a 
position to know whether Judge Baer was right 
when he initially decided to exclude the evidence 
that was seized. Similarly, without reviewing the 
record of the second hearing, none of us is in a 
position to know whether he was right the second 
time, when he reached a different result on a 
different record. What we do know, however, is that 
the public believes, almost unanimously, that Judge 
Baer ordered a second hearing and changed his 
mind as a result of political pressure. Not only did 
the newspapers announce that "fact," but Senator 
Hatch, the Chairman of the Judiciary Committee of 
the United States Senate, proudly proclaimed that 
Judge Baer reversed his ruling as the direct result of 
the actions taken by "the Republican leaders of the 
House and Senate." This, after the Republican 
candidate for President called for Judge Baer's 
impeachment and our Democratic President, a 
graduate (along with his wife) of Yale Law School, 
publicly hinted that he would ask for the judge's 
resignation if he didn't change his ruling. Not one 
political figure spoke out for the independence of 
the judiciary or even appeared to give serious 
thought to whether the ruling might be correct. Even 
Democratic Senator Daniel Patrick Moynihan, who 
was responsible for Judge Baer's appointment, 
publicly abandoned his protégé. And now, we're 
off to the races. One Presidential candidate makes 
speeches identifying a number of "liberal" judges 
who made decisions he calls pro-criminal and the 
other replies, "Nah-Nah-" I can name judges 
appointed by President Reagan and Bush who made 
decisions that are just as pro-criminal - the latter 
from a President who doesn't have the courage to 
nominate anyone, no matter how qualified, if 
someone might even think him to be liberal. In 
any event, we can now look forward to a 
Presidential campaign that will denigrate the 
judiciary further and weaken both its public 
standing and its reputation. Out of decency, I won't 
even mention the Ninth Circuit's current ugly 
experience with high-stakes senatorial manipulation 
of the confirmation process in order to affect the 
future conduct of a sitting judge, nor the highly 
politicized campaign to split the circuit primarily in 
hopes of establishing a gerrymandered court that 
will free certain industries of their obligation to 
comply with environmental laws. 

Second, we ourselves seem to value our role less. I 
hope that the present justices, most of whom I have 
not been privileged to meet before, will have long 
and distinguished careers on the California Supreme 
Court. I am certain that they believe, and rightly so, 
that they have reached the pinnacle of their 
profession. I believe that they hold an office that is 
one of the most important in our nation -- judicial or 
otherwise. The entire country used to take its lead 
from the California Supreme Court. But in recent 
years we have seen Supreme Court justices who 
seem to be barely passing through the system on 
their way to better paying jobs, either with private 
law firms or as rent a judges or arbitrators. It used 
to be that high paid lawyers or successful 
arbitrators would give their eye teeth to be 
Supreme Court justices, not vice-versa. We must 
make it that way once again -- and I suspect that 
the special guests you honor here today will do just 
that. 

Third, we are setting up a private system of justice 
for the wealthy and for corporate interests. Never 
before in this country have we had two judicial 
systems - one free, one for pay. Yet, I read the Los 
Angeles Daily Journal regularly and see news 
stories, announcements and jazzy full-age 
advertisements telling lawyers that they can hire 
the famous or esteemed Judge or Justice X or Y to 
decide their case if they're just willing to pay the 
price. When some of the companies tout the 
extensive list of former judges they have under 
contract, it almost reminds one of the rivalry 
between Alka-Seltzer and PeptoBismol but with the 
addition of glamorous poster boys. I doubt that this 
is a healthy system or that it engenders respect for 
the public courts whose facilities most Californians 
are required to use. 

Fourth, the cost of running for judicial office is out of 
control. That it should cost a judge nearly $50,000 
simply to have his biography enclosed with the 
ballot pamphlet is a disgrace. That judges must raise 
huge amounts of money if challenged, or that 
lawyers seeking to run for an open judicial post 
must spend in excess of $120,000 in order to run is 
outrageous. And who is interested in contributing to 
judicial elections, anyway - you guessed it, lawyers. 

Fifth, speaking of lawyers, they are suffering 
problems of their own, some of which are similar to 
ours and some of which are different. The American 
Bar Association, a venerable institution composed 
largely of establishment lawyers has become the 
target of the same politicians who have been 
attacking the judiciary, except that this time the 
President isn't involved. Thus far, at least, he doesn't 
seem to see any political advantage to joining the 
attack. Little could anyone have imagined only a few 
years ago that the conservative old-line ABA would 
become a whipping boy for the right. And the 
California Bar, from what I read, is having its own 
troubles - this time from within as well as without. 
When trouble starts, it indeed seems to come from 
all directions. 

Next there are the vitriolic attacks on trial lawyers. 
These attacks emanate from corporate interests, 
public relations groups, and politicians who don't 
dare to go after their real targets - the people who 
are the victims of willful or negligent conduct, fraud, 
or worse - the people who suffer crippling injuries 
or even death. In order to try to limit the victims' 
recoveries, the potential defendants go after their 
lawyers, defame them, complain about attorneys' 
fees and try to make it as unprofitable as possible to 
represent people who can't afford to pay huge 
retainers. Let me say that the trial lawyers are quite 
capable of taking care of themselves - of fighting 
back - and they do, with a vengeance - but it is the 
bar as a whole that is diminished in the public eye; 
it is the entire profession that receives the notoriety 
and becomes the object of public humiliation and 
contempt. 

And how could anyone talk about the loss of respect 
for the justice system and for lawyers without 
mentioning the trial of the century. I don't want to 
discuss here the way the trial was conducted by the 
trial judge. Nor do I wish to discuss the jury's 
performance, or its astonishing verdict. Rather, I 
want to note that the trial has had a profound and 
most unfortunate effect on American society in so 
many ways - from the deep racial divisiveness that 
it exposed and perpetuated, and that remains the 
trial's most visible heritage, to the unfortunate 
effort to try to change the rules of the justice system 
so as to limit the rights of criminal defendants, to 
campaign to ban televised trials and thus deprive 
the American public of essential information 
regarding what transpires in our courts. Fortunately, 
the latter effort appears not to be as successful as 
once seemed likely, although I must admit that the 
state courts are far more enlightened than the 
federal courts in this area, as in a fair number of 
others. 

There is, however, one aspect of the lawyers' 
performance in the trial on which I will comment 
briefly. The rush to sell books and movie scripts, 
even prior to the end of the trial, was a most 
unseemly occurrence. Perhaps the most mind-
boggling aspect, however, was how two of the 
lawyers who lost a case that most people had 
thought could not possibly be lost, and who did so 
through the use of some of the most bizarre trial 
tactics employed in the history of American 
jurisprudence, not only obtained book and motion 
picture deals that will bring them more money than 
most lawyers make over their entire careers, but 
that they now also command huge fees as lecturers. 
That, on the basis of this trial, they are held out as 
expert practitioners, role models, and examples of 
dedicated public servants simply defies the 
imagination. Once again, of course, the scorn that so 
many Americans feel for some of the lawyers 
involved - and I hasten to add that in some respects 
that scorn is totally undeserved - is not only 
directed at the particular lawyers but at the entire 
legal profession.

Before offering a few thoughts on what we can do I 
must mention two other very significant recent 
developments. 

First is the defunding of legal services and capital 
appellate projects, as well as the effort to limit both 
the amounts paid to lawyers willing to undertake 
death penalty work, and the amounts available for 
investigative services. The assault with which I am 
most familiar and, to which I refer today, comes 
from the federal side, although I am aware that 
there are states that pay trial lawyers in capital 
cases an amount that would hardly be sufficient to 
compensate them for the cost of defending a 
speeding ticket. In this new era, the poor, and in 
many instances the middle class, will receive far less 
adequate legal services than they have enjoyed in 
the past, and there will be numerous instances in 
which their efforts to remedy serious injustices or 
enjoin arbitrary and unlawful governmental actions 
will fail for want of available legal services. A sad 
retreat for American justice.

Second, the changes in habeas corpus law which 
were a key part of President Clinton's Anti-terrorist 
Law, though wholly unrelated to that statute's 
professed purpose, are both sweeping and 
revolutionary. The principal objective of the drafters 
of the habeas sections was to prevent federal courts 
from overturning unconstitutional state convictions, 
and to a surprising extent, they may have been 
successful. However, this is not the place or time to 
discuss the specifics of the new anti-habeas 
provisions that President Clinton has given us or 
their effect on our historic concept of due process of 
law, anymore than this is the place to discuss the 
draconian asylum and deportation provisions that 
were contained in that same so-called anti-terrorist 
bill after being enacted with almost no public 
awareness or discussion. In fact the asylum 
provisions were so bad that when informed of their 
content Senator Hatch immediately introduced 
partially corrective legislation that then passed the 
Senate by an overwhelming vote of 51 to 49. 
The fate of those comparatively innocuous 
ameliorative amendments in the House is uncertain 
at best. 

So where does all this leave us? 

First, state courts will no longer have the same 
degree of comfort in knowing that federal courts are 
there to save them when they fail to protect the 
constitutional rights of unpopular criminal 
defendants. I say this without any irony. I have 
spoken with judges who must stand for election and 
have heard them say that they cannot afford to 
reverse capital convictions in cases that engender 
heated community passions. I hasten to add that I 
am not referring to California judges, though I do 
recall both Justice Kaus and Justice Grodin speaking 
publicly of how difficult it is for judges to separate a 
concern over reelection from one's view of a 
controversial, complex and highly inflammatory 
legal issue. We have all heard tales of the gallant 
and courageous Southern Circuit Court judges 
appointed by President Eisenhower in the 1950's. 
Those judges, including J. Skelly Wright, John Minor 
Wisdom, and Elbert Tuttle among others fought a 
lonely and often dangerous struggle against racial 
segregation, but they could not have done so 
without the security of life tenure. Their jobs would 
not have lasted one minute had they had to stand 
for re-election or been subject to recall. In fact, we 
in Los Angeles lost two wonderful state court judges, 
Alfred Gittelson and Paul Egly, because they tried to 
apply the law fairly and equally in a school 
desegregation case. And only recently slates were 
formed to try to ensure that only judges who scored 
high enough on a litmus law and order test would be 
returned to office. While that effort failed, history 
tells us that it could be repeated and perhaps with 
greater success. 

One of the principal purposes of the Bill of Rights is 
to protect unpopular minorities against the will of 
emotion-driven majorities. Another is to ensure that 
criminal defendants, even those accused of the most 
heinous crimes, enjoy the full rights to which all 
persons brought before the bar of justice are 
entitled. It is the fate of judges who enforce the 
Federal Constitution to take positions that may be 
extremely unpopular with the electorate. That is the 
reason federal judges are afforded life tenure. 

If federal courts are now to be deprived of the 
opportunity to make a full and independent review 
in order to determine whether the states have 
afforded their citizens the protections guaranteed by 
the United States Constitution, then the time may 
well have come to extend the protection of life 
tenure to state court judges. Obviously any such 
change would take some time because it is a matter 
for each state to decide for itself and, would, in most 
cases require amending the state Constitution. 
Numerous issues would need to be resolved, 
including adopting a fair and effective confirmation 
process, and in California, at least, that would mean 
developing different processes for different levels of 
the judiciary. I would hope that California would 
lead the way by giving serious consideration to life 
tenure at the earliest possible time. Surely, one side 
benefit that would inure to everyone’s advantage is 
that judges would no longer have to solicit campaign 
contributions from attorneys or their law firms. 

I would also hope that California would reconsider 
its system of economic inducements that encourages 
judges to retire at the peak of their working life, 
take their pensions, and start a second career in 
private judging or private practice. California might 
examine the federal system in which judges are 
encouraged to continue to work past normal 
retirement age, on a reduced schedule if they wish, 
and thus help resolve the problems of overcrowded 
calendars and judicial logjams by remaining in 
public service. Under the present California system, 
too many valuable judicial resources are lost 
entirely or are made available only to the few who 
can afford them. By contrast, it is an extremely rare 
occurrence for a federal judge to leave the bench 
after the age of 60 in order to commence some other 
business pursuit in the field of law. 

Obviously the federal system is far from perfect. But 
just as we can learn from state experimentation, so 
the states can learn from the wisdom of our 
founding fathers. The drafters of the Constitution 
concluded that the independence of the judiciary is 
critical to a democratic society and that life tenure is 
critical to an independent judiciary. Perhaps I view 
the judicial world from a biased standpoint, but I 
always have agreed with those precepts, even when 
I was a mere student at that outstanding institution 
that produced both William Jefferson Clinton and 
Clarence Thomas. I believe that however high the 
quality of state judges may now be, and in some 
states it is very high indeed, that quality would over 
the long run reach an even higher level under a 
system that offered judicial officers and potential 
judicial candidates life tenure - a system that would 
permanently free them of concerns over whether 
unpopular decisions might mean the end of their 
careers. 

As to the lot of lawyers, concededly the practice is 
more difficult and in many ways less rewarding 
than it used to be. Perhaps the decline in public 
respect is inevitable as law becomes more of a 
business and less of a profession. The 
depersonalization of law, like the depersonalization 
of medicine reduces the human equation and breeds 
lack of trust and respect. Managed health care and 
multinational law firms leave doctors and lawyers, 
patients and clients, frustrated and suspicious. The 
family doctor and the family lawyer are a dying 
breed, at least in metropolitan areas. Specialization 
has its vices as well as its virtues. Whatever the 
reasons, the statement "he's a lawyer (or now, she's 
a lawyer) no longer evokes a feeling of awe or 
respect. Instead, it's more like uttering a dirty 
phrase. 

I see no way to remedy this unfortunate decline in 
our profession's reputation other than to try to 
regain the public trust by our individual deeds and 
actions. Pro bono programs and extensive 
community involvement are essential, and they are 
fortunately becoming increasingly common in many 
firms. There simply is no substitute for human 
contact, for the reaching out by individual lawyers 
to individual clients who are in need of advice or 
assistance - and particularly to those clients who 
cannot afford to pay the cost of services. Lawyers 
must think of themselves as professionals and not as 
businessmen - as persons with a special mission and 
a special trust. They must recognize their obligation 
to the community and they must comport 
themselves as public citizens throughout their 
careers. 

No bar organization or state disciplinary group can 
instill these concepts in the members of our 
profession. Nor can any external force eradicate the 
cynicism and disillusionment that marks the modern 
practitioner. Equally important, a return to our old 
idealism cannot occur solely within a single 
profession. But if it starts with us, perhaps others 
will follow. Perhaps, someday, individuals will once 
again be able to run for elective office without 
having to subject themselves to public pillorying by 
their opponents and the media, and perhaps 
someday their private lives and sexual proclivities 
will no longer be fair game for microscopic 
examinations by a prurient public. We would have 
lost a lot of good presidents and a lot of good 
Supreme Court justices had we always maintained 
our current puritanical barriers.

As lawyers we can try to lead a return to decency - 
every one of us. And we can influence new law 
school graduates, graduates like my daughter who 
will be receiving her degree two years from now, to 
view the profession with respect, if not with awe. 
We can give young lawyers a message that is far 
different from the one we have recently been 
offering them upon their emergence into the "real 
world". We can tell them that it's not just the 
billable hours that matter, it's not just their ability 
to attract business - that the height of the profession 
is not being a rainmaker. We can tell them that it's 
the quality of their performance as a professional, as 
a member of a group charged with a unique trust 
and responsibility that counts at least as heavily - 
that it , the amount that they give back to their 
communities, their nation, and their profession. This 
is probably all quite outdated and unrealistic, and it 
may even run contrary to some of the concepts of 
the free market economy we tend to worship so 
mightily these days. But I don't know what else we 
can do, and unless someone has a better idea, it may 
be worthwhile for each of us to give it a try. Thank 
you all very much for your patience and for inviting 
me here today.