Below is a speech given for the Austin Bar Association in honor of Law Day.

Introduction: Richard Pena, Esquire; Past President, State Bar of Texas; Past Chair, American Bar Foundation

 

Speaker: The Honorable Fred Biery; Chief United States District Judge, Western District of Texas

 

No Courts, No Justice, No Freedom

 

If I switch between the names Richard and Dickie, it is because we have known each other since elementary school. Richard’s voluntary service to our profession was foretold when he was treasurer of our senior class. My own career on the judicial bench was predicted by my college basketball experience, where I spent a lot of time “on the bench.”

 

Dickie and I were on such a good team in high school though that Hollywood had an idea of a movie and a sequel. But alas, the title had already been copyrighted so it never became reality. (What was the name of the movie?) “White Men Can’t Jump.” And the sequel was to be “Brown Men Can’t Jump Either.” But, as Richard says, “I just lower the basket.” He always was smarter than I was.

 

This year’s Law Day theme brings to mind true stories of the real life impact of No Courts, No Justice, No Freedom. Past American Bar Association President Stephen Zack and his family fled the Cuba of Batista and Castro. Mr. Zack keeps a copy of the old Cuban Constitution on his desk as a reminder that the document is only words on paper because there were not lawyers and courts to make it mean what it said, a concept we native born Americans too often take for granted.

 

One of the jurors in our court chose to become an American, having grown up in Latin America. Following a jury verdict of guilty, I explained to them the government could have sought the death penalty but did not because the defendant was extradited from a Latin American country which did not have the death penalty. The juror from Peru corrected me when she said, “Oh, no, Judge, we have the death penalty in Latin America; you just don’t go to Court before the government kills you.”

 

President Musharraf of Pakistan did not like decisions of the Supreme Court of Pakistan, and so he fired the chief justice and had justices put under house arrest. Courageous Pakistani lawyers took to the streets.

 

Recently, the President of Hungary did not like what Hungarian judges were doing and had the mandatory retirement age reduced to 62 so the President could name judges who would do his bidding.

 

Should we think the rule of law and an independent judicial system are safe and secure in the United States, may it be remembered that there are those who have tried and ultimately stepped back from undermining the separation of powers, including President Lincoln who suspended the writ of habeas corpus.

 

President Franklin Roosevelt tried to pack the Supreme Court with judges who he thought would rule in his favor and interned Japanese-Americans without due process of law. A current presidential candidate would have judges arrested and brought before Congress to explain their rulings. This latter threat may or may not be “Newtralized” by the electoral process. Newtralized is spelled N-E-W-T.

 

We know that in 1787 our Constitution in many ways applied only to white males who owned property. But because there are courageous lawyers who go to independent courts, our Constitution has evolved to be much more inclusive.

 

Robert Griffin III won the Heisman Trophy, but in 1787, his ancestors could not vote and were counted only as three-fifths of a human being.

 

Mr. Griffin is engaged to be married to Ms. Rebecca Liddicoat. Were they to have been married in 1966, the year Dickie and I graduated from high school, Ms. Liddicoat would have been subject to prosecution under Article 386 of the Texas Criminal Code: “If any white person shall, within this state, knowingly marry a Negro … he or she shall be punished by confinement in the penitentiary not less than two nor more than five years.”

 

In 1967, lawyers persuaded the Supreme Court in Loving v. Virginia that such statutes violated the Constitution.

 

My sister’s in-laws tried to have a picnic in a public place in 1954. That family would eventually produce two United States congressmen, but they were excluded from Landa Park because their name was Gonzalez. Lawyers who brought public accommodation cases like Heart of Atlanta Motel  helped to right that wrong.

 

Our high school classmate Alfred Valenzuela became one of the first Hispanics to earn the rank of major general in the United States Army. But had his father come back from World War II with the Medal of Honor, he could not have served on a jury in south Texas because his name was Valenzuela. San Antonio lawyer Gus Garcia prevailed in the Supreme Court in Hernandez versus Texas.  Such practices were stopped. Black athletes could not compete against white athletes until Jackie Robinson and Sporty Harvey broke the color line. Mr. Harvey did it by going to court to desegregate boxing represented by lawyers Carlos Cadena and Maury Maverick, Jr. in Harvey vs. Morgan. Texas citizen and taxpayer Harry Bellinger wanted to go to law school in the 1930s, but he was not allowed to travel from San Antonio to Austin for his education because his ancestors had been involuntarily brought to the United States from Africa. Instead, he went to the University of Pennsylvania. Justice was finally done when UT Law School was desegregated by the case of Sweatt versus Painter Mr. Bellinger did become a lawyer and joined a legal team led by Thurgood Marshall which made it possible for Mr. Bellinger’s daughter, Dickie and me to graduate from an integrated public school. Ms. Charlie Bellinger Bethea went on to serve on the Texas Board of Pharmacy. And by extension, those same lawyers who were cursed and threatened made it possible for a descendant of slaves to now be known as Chief Justice Wallace Jefferson. The ladies in our country in many ways fared even worse. They finally received the right to vote about 90 years ago, but it was not until the 1950s that Texas women could serve on juries because lawyers and others helped to amend the Texas Constitution of 1876. By the way, there was a scrivener’s error in 1876. The document calls for the Texas legislature to meet 140 days every two years. It was supposed to read that it would meet two days every 140 years. Financially successful married women who wanted to invest in real estate could not do so without their husband’s consent until lawyers helped remove the tradition of coverture in the 1960s. Women who wanted to pursue careers in law enforcement and politics were effectively excluded, but today the daughter of migrant workers and our classmate, Lupe Valdez, has twice been elected sheriff of a little place north of here called Dallas County, Texas. In the 1960s, Kay Bailey was a UT cheerleader and is now United States Senator Kay Bailey Hutchison. But she could not be a Lady Longhorn athlete because there was no such thing until Title IX became law and lawyers went to federal court if necessary to enforce it. And now Title IX makes it possible for Lady Bear Brittany Griner to lead Baylor to a national championship. Our fellow lawyers who go to court to defend those accused of crime are often asked, “How can you defend a criminal?” One answer lies in Adanandus vs. Johnson: “In a nation whose landscape is dotted with synagogues and churches, the entreaties of “thou shalt not kill” and “forgive your enemies” are challenged by retribution and revenge, understandable responses to violent crime. The divergence between what is said on the Sabbath and what is done on election day has given secular America its macabre politics of death,  collectively imposed upon the predators among us through the might of the State. Having democratically given vent to normal human emotions in the face of incredibly heinous acts, the legal exercise of the power to end a life requires careful scrutiny by some objective entity bound by the rule of law. The alternatives to the imposition of the ultimate punishment within a framework of due process are the anarchy of a lynch mob or the whim of a dictator and the concomitant devolution of society to the level of those deserving execution. For the Constitution to be more than mere words, even those accused of terrible crime must have competent advocacy against the strength and resources of government. Though frequently and pejoratively quoted out of context, Dick the Butcher recognized lawyers as protectors of English rights; hence they must be killed to achieve the illegitimate seizure of sovereignty.”

 

Two last examples of how the intertwined worlds of law and politics can provide opportunities to succeed which their forebearers did not have: The son of a postal worker became one of the first in his family to go to college and he was the first to be a lawyer. He hung out a shingle, gives much time to pro bono work and is the first Hispanic President of the State Bar of Texas. The other is the son of a mom who picked cotton for eight cents a pound in Hill County in the 1930s on land owned by other people and of a father who grew up in an orphanage. Because of a federal law called the GI Bill, the dad went to college and bought a home for $84 a month. Because of their hard work, frugality, and a law called the Social Security Act of 1935, that couple today lives comfortably. Their son stands in awe and gratitude for the opportunities the passage of laws and courts and lawyers have provided to our generation. Lest we believe those legal roots are strong and deep and can never be eroded by legal and political droughts or fires or floods, may we recall three thoughts:

 

The first was written by a senator and philosopher 55 years before Jesus was born: “The budget should be balanced, the treasury should be refilled, public debt should be reduced, the arrogance of officialdom should be tempered and controlled, and the assistance to foreign lands should be curtailed lest our country become bankrupt. People must again learn to work, instead of living on public assistance.”

 

The senator was known as Cicero and his country was Rome. In the modern era a fellow named Adolf in 1920s Germany wrote: “What good luck for rulers that people do not think.”

 

And from a lady named Barbara who served in the Texas Senate and the United States Congress and whose words from a dark time in our history give us warning and inspiration and hope: “My faith in the Constitution is whole; it is complete; it is total. And I am not going to sit here and be an idle spectator to the diminution, the subversion, the destruction, of the Constitution.” In England, on occasions like this, barristers and solicitors raise a toast: “Long live the Queen.” We rebelled against the divine right of kings. May our words be: “Long live the Constitution.”