“WOKENESS” How it Undermines Our Legal System
Thursday, January 26, 2023 | Room 105, Berkeley Law
Former Congressman Bob Barr opines on the ways in which “wokeness” undermines the U.S. legal system.
Bob Barr represented the 7th District of Georgia in the U. S. House of Representatives from 1995 to 2003, and now practices law in Atlanta, Georgia, where he serves as chairman of the state’s Judicial Qualifications Commission. Bob also chairs Liberty Guard, Inc. a non-profit and non-partisan organization dedicated to protecting individual liberty. He also heads a consulting firm, Liberty Strategies, Inc., and is a registered Mediator and Arbitrator. Bob has taught constitutional law at Atlanta’s John Marshall Law School and government at Kennesaw State University.
MAGUIRE RADOSEVIC: My name is Maguire Radosevic. I am the secretary of the Federalist Society chapter, here, at the law school. I’m going to read a quick mission statement of the Federalist Society. The Federalist Society for Law and Public Policy Studies is a group of conservatives and Libertarians interested in the current state of the legal order. It is founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the Judiciary to say what the law is, not what it should be. The society seeks to promote an awareness of these principles and to further their application through its activities.
I’d also like to thank the Public Law and Policy Center, here at the law school, for sponsoring this event. Uh, now I’d like to introduce the honorable Bob. Mr. Barr represented the Seventh District of Georgia in the U.S senate, from 1995 to 2003, and now practices law in Atlanta Georgia, where he serves as chairman of the state’s Judicial Qualifications Commission. Mr. Barr also chairs [unintelligible] incorporated. A nonpartisan organization dedicated to protecting individual liberty. He also has a consulting firm, Liberty Incorporated, and is a regular and arbitrator. Mr Barr has taught constitutional law in Atlanta’s [unintelligible] in government at Kennesaw State University. Before serving in Congress Mr. Barr was appointed by President Ronald Reagan as the United States Attorney for the Northern District of Georgia, and served as president of the Southeastern Legal Foundation, and was an official with the CIA. He was also the libertarian party’s nominee for president of the United in 2008. Additionally, he has served several United Nations conferences on Firearms. Mr. Barr will be speaking on “wokeness” and how it undermines our legal system. I’m allowing for questions and answers at the end, so get them ready once the presentation is finished. I’ll be in the audience with the microphone, taking questions. So when the time comes we’ll do that, but for now please join me in welcoming Mr. Bob Barr.
BOB BARR: Thank you, and, the, yeah. When I first came in here and smelled pizza, which Sonny Bono, I don’t know, has anybody ever heard of Sonny Bono? Sonny and Cher, uh, Sonny Bono was a member of Congress, and he came into the Congress the same time I did back after the 1994 election. So we both took office, uh, were sworn in as members of the 104th Congress in January of 1995. Sonny Bono, despite the fact that he was not a lawyer, asked then speaker Newt Gingrich to be placed on the Judiciary Committee, primarily because of his interest in music rights, trademarks, and so forth. So he was on the Judiciary Committee until his very untimely death in, I think, was early 1997, as a result of a skiing accident. But I noticed fairly early on in our joint career on the Judiciary Committee that when we were engaged in a fairly contentious, oftentimes late night hearing, or markup session on a plea, piece of legislation, Sonny would leave. He would leave his seat at the, yeah, where the speakers, and where the members were seated, and he would go into the back conference room. Both each side, both the Republicans and Democrats had a conference room behind the public hearing room for the Judiciary Committee and then, yeah, he would come back in a little bit later, but about half an hour usually, or so, after that, after he came back in you would smell pizza.
What Sunny had done, because he recognized that there are few things in the world that will distract people more than the smell of freshly baked pizza , he would go back there, order pizza for the members of the committee, at least those on our side, knowing that once the members smell that, it would accelerate their interest in closing out the markup section. He was right, a very important lesson. Sonny’s law of the universe, number one, there are a few things in the world that are more enticing than the smell of freshly baked pizza. That being the case, I’m not going to ask for a show of hands as to how many people are here right now because of that, or to hear me, because I don’t necessarily want to know. But, I am delighted to have received an invitation from the Federalist Society to, once again, be with you both here physically at the, at the law school, for a session, a discussion, as well as, you know, Drew and his colleagues are videoing this so that hopefully others will have the opportunity to engage remotely in the discussion that we’re about to have.
Uh what we’d like to, the last time I was here we, we talked about something far less controversial. We talked about firearms, uh, I’m a member of the NRA board of directors. I have been for a number of years and have an interest in those sorts of issues. Both from a personal as well as a legal standpoint many of the issues that we worked on during the time that I was on the Judiciary Committee and things haven’t really changed have to do with firearms law, Second Amendment, and so forth. So, I had the opportunity a few years ago with, uh, to be here for the Federalist Society to talk about that issue. What we’re going to talk about today, and certainly if anybody has after, you know, the formality of my presentation, if anybody has questions about Second Amendment issues, I’ll certainly be glad to entertain those, or anybody has a point they want to make about that, but we’re here today. McGuire and his colleagues asked me to talk about wokeness, not just generally, which I think we could all agree permeates virtually all aspects of our civil society nowadays, and you know, I don’t know that there is a common definition or understanding of wokeness. So I took the liberty of coming up with one of my own, and to me woke is saying or doing something, performing an act, or making a decision for, based on irrelevant factors, and insisting that others do the same. We don’t want to always, or today, we’re not here to talk generally about wokism or woke in the political arena, although that would certainly be an appropriate topic, for we as students of the law, but we’re here today to consider to the extent that an hour or so allows us to consider, how wokeness, that is basing decisions and insisting that other people base those decisions or statements that you make, or activities in which you engage based on irrelevant factors, affects our profession, our chosen profession, and that is the students of the law. I remain a student of the law the same as you are and notwithstanding the fact that I graduated from law school, not here but out on the East Coast at Georgetown many, many years ago. But, I would hope that all of you share with me the perspective that once you obtain your JD, and whether or not you choose to practice as an attorney, you always retain consciously that notion that you are a student of the law. That you never lose your interest in studying it, looking at how it is being entertained, how it is being practiced in the profession of law, and how we can improve it so as students of the law when we think about whether we are making decisions, whether others are making the decisions, statements that we make principles on which we engage are based on relevant factors or not, and relevancy is, is certainly important to all of us as students of the law. Particularly those of us, as I have done over the years, and that is to engage in courtroom practice.
Litigation relevancy provides an anchor, uh, it does not dictate how every particular point has to be considered but it provides an anchor that requires whatever we are doing, whatever decisions we’re making, whatever statements we are making, particularly those in a courtroom are anchored to something other than simply what we decide to be saying, or somebody else decides to be saying, or somebody else is considering. Jury members, for example, at a particular time, viewing wokeness in this way, tells us what is really obvious about it and that is there is no anchor to it. There was an author many years ago back in the late 1960s, some of you all might have come across one of his or his best known work called, Rules for Radicals. The author was Saul Alinsky and if you go back and you look at his rules of radicals, which, uh, left-wing members of the political elite, many times have studied, or are aware of, you find that when Saul Alinsky was laying out these rules for radicals, those who wish to disrupt the civil order of our society, he made a statement, one of his rules is that four of those radicals, those revolutionaries, those who are against the established order, that means in our system a constitutional order, with rules that if not immutable or at least understood particularly in our legal system as foundational, Saul Alinsky said that for the, for the radical for the Revolutionary everything is constantly changing. Nothing is the same.
Well, and the reason he was saying that is because if you want to completely disrupt society, which as his goal, he was very much a radical, left-wing, extreme left-wing, uh, political animal, then what you have to do is you have to undermine and destroy the foundation of that which you’re seeking to change, and to replace that is to change our American system, our civil society, including those things in our legal system that provide avenues for redress and that provide the basic protections for individual liberty; which is the point of our Constitution and our political system. Go back and read The Federalist Papers, which you all are familiar with. Saul Alinsky understood that if you can convince people that there are no anchors for those principles on which society operates, and in particular, and our, from our perspective, a student’s law, our legal system operates, then it greatly facilitates changing it, and doing away with the established order.
Now supporting the established order certainly doesn’t mean that we have to accept everything that’s going on and everything that happened previously, you know. As students who log in, we are seeing, constantly keeping in mind that it’s now, we are not in a perfect system. We simply are in, in my view, the best one that the minds of men and women have come up with, and that the Bill of Rights in particular, you know, aside from the Constitution, which basically set the, the, framework for our government, but it’s the Bill of Rights that provide the anchor for those liberties in the real world. And those are protected through our legal system, through our judicial system, with us as lawyers playing an important, very important essential role in that. So if we go back to look at this notion of wokeness, which has taken hold really fairly rapidly, not that the groundwork hadn’t been laid many, many years ago, but if we look at it and consider this wokeness as making decisions and demanding that other people make decisions and engage in actions including political, including legal, including commercial, including educational, even medicinal, based on factors that are irrelevant to the practice of the law, medicine, commerce, capitalism, then what we are witnessing, and what is teed up here is the fundamental question of whether or not the law actually means something. If it is unanchored to relevant principles, to foundational principles, then really has no meaning and at the vagaries of whatever the particular perspective or viewpoint is, either forces lawyers to act in a certain way, or not act in a certain way, or to say something, or not to say something, then we have something that I think all of us, regardless of where we might stand on the political spectrum have an interest in fighting against. And we’re seeing the results of this wokeness, that is the perspective of having no anchors to foundational principles, or truth, or relevancy, having very actual real consequences, this isn’t just a theoretical or hypothetical exercise that we’re looking at when we consider this topic.
We are saying a friend of mine and, you know, those of us not here, who understand that the right and the left have common ground in protecting individual liberty against government abuse. In certain ways, that can happen and certainly put us in different camps. But the ACLU has always, at least for many many decades, prided itself on standing for and protecting those foundational principles that are anchored in the Bill of Rights, and Nadine Strassan, I don’t know, if she’s been out here to the law school, a friend of mine for many, many years, a tremendous advocate for individual liberty and particularly freedom of expression, she said recently, publicly, that she is self-censoring what she says publicly or even to her students. I think she still teaches in New York law school because of wokeness, I mean this is one of the leaders of, I don’t know if she still is formally with the ACLU, but had been for many, many years, a tremendous advocate for what the ACLU always prided itself on, and that is protecting individual liberty even when the individual who it is protecting, is very unpopular. A Nazi for example, or somebody that espouses white supremacist views in our system, if you have those anchors that are the Bill of Rights, then that person, just like John Adams, back even before our Bill of Rights was codified, before there was a constitution, defended British soldiers against charges of murder in the Boston Massacre. Very unwoke.
What the ACLU has done many times over the years is very unwoke. Defending individuals who are, and whose activities, their views are very unpopular. And we see that happening, for example, it would say there’s a very well-known, very good lawyer named David Boies, b-o-i-e-s. I forget the name of his law firm, but he’s a very prominent lawyer, very learned in the law, very good advocate, and his law firm, I believe, defended Harvey Weinstein, very unpopular guy, I mean by any measure, you know, what he has been convicted of disgusting behavior, Uh, very unpopular. Well, David Boies, who defended him, was involved in defending him, came under tremendous criticism for doing so because it was unwoke to defend somebody who engaged in unwoke behavior. And the criticism against David Boies came not just from those outside, but within his own law firm, saying this is improper, we can’t have it, I don’t want to be associated with a law firm that defends somebody like that. We see this playing out in law schools, my own law school, Georgetown, is now engaged, and for the last probably a year and a half has been engaged in a process of literally questioning whether or not the Constitution remains viable. whether or not our system of individual liberty as protected in part through the Bill of Rights should itself be considered irrelevant, because after all, as we all know from history the framers, the drafters those who adopted through the Congressional process, after we won our independence and set up our constitutional system of government, was itself imperfect.
Imperfect from a standpoint of racial issues, slavery, and this woke, wokeism now, has progressed to the point where otherwise very, very good law schools, I don’t know, McGuire if it’s happened out here, but at Georgetown and other law schools, Yale, Harvard, now are questioning and forcing their students to take courses, the purpose of which is to question whether or not our fundamental system of constitutional rights and individual liberties protected by the Bill of Rights should even be or should even remain in place as a structure or framework within which our legal system should operate. The ABA is doing the same thing. So, we see it in virtually every aspect of the legal profession that’s quite apart from what’s happening in the commercial arena, or in the educational arena outside of law schools, demanding absolute orthodoxy to viewpoints. we see it one of my other alma mater’s where I went to grad school George Washington University. Uh, they sent around, I think, was last spring or last year, sometime, but last year sent around a petition to the school, to the students of whom thousands signed on. And what was this petition designed to do to stop Supreme Court associate Justice Clarence Thomas, who for years had given of his time freely to provide to be a a co-professor for a course on constitutional law and to talk about the role of the Supreme Court in that context. So, you have a Supreme Court Justice freely giving of his time in this case to law students at Georgetown, George Washington so that they would have benefit of his perspective, his background, his work, not forcing anybody to agree with him but to do something that all of us as lawyers should welcome, and that is to have different, differing viewpoints presented. Because what happens in that context, in debating with those with whom we disagree.
There’s no point in debating somebody either you agree with, for one thing it sharpens our ability to hone our arguments and our perspective. If we are never forced to defend them against those with a different viewpoint, then we’ve become very lacks, very benign, and we lose the sharp edge that all of us as attorneys certainly need to have in order to properly and fully represent our clients. We see this wokism manifesting itself in the regulatory arena.
The FTC, one of its members, a sitting member of the FTC, very important body of regulatory, regulators in Washington, publicly stating that, well I’m paraphrasing, maybe, maybe some of these monopolies are not really bad because they are moving a racial equity agenda forward; and maybe these others are in gray, engaged, in monopolistic behavior should be broken up or attacked through the regulatory process because they’re not doing it the right way. Now achieving a racially blind society is something that all of us certainly, particularly as students of the law, should not only care about, but be actively involved in furthering. But that is very different from what is happening with wokeness, now, and that is to discard those foundational principles and priorities on which the law is founded, such as fairness, objectivity, and relevancy in favor of a particular perspective. Even though that perspective may be appropriate, being, telling juries, or if juries on their own, now decide that in a criminal case, for example, that a defendant, or defendant, should not be convicted because either the laws on which their indictments were based are racist, racist in a general broad sense, or should be acquitted because those charges don’t fit within a woke view of society.
Kyle Rittenhouse, for example, you know the young man, uh, in, uh, was it Wisconsin? I believe Wisconsin, three years ago, two and a half, three years ago, was charged with murder in a confrontation with some rioters. Now I wasn’t involved in the case, I know lawyers that were, but in the aftermath of that, case in which he was acquitted, based on self-defense, the system, the jury, the legal system, the courthouse, there have all been charged, or had charges leveled against them,that this was improper. Even though the trial was manifestly fair, according to all the rules in place at the time. No real question was raised about the process itself. Questions were raised about the fact that he had been acquitted, and that acquittal was contrary to the woke view of self-defense, and there are those, now, who are questioning the very notion of self-defense, and changing the burden of proof so that the individual charged now has the burden of proving it was self-defense, as opposed to, as was applicable, and has been applicable for decades, and decades. It is the state that must prove that that person was guilty, and did not act in self-defense.
So we see this woke in the cell moving in the direction of burden, shifting toward placing the burden on the individual accused, the defendant. We see it in sex cases involving consent, shifting the burden from the accuser, to prove the defendant engaged in criminal actions, now shifting to the burden that is shifting to the accused having to prove the opposite. You’ll probably come across, and heard this notion of, jury nullification. Where you have a jury with a case presented to them and notwithstanding the law, as related to them, by the judge and the facts of the case, the evidence indicating that the defendant was guilty of that offense. Based on the evidence in the courtroom juries, the jury nullification idea states that notwithstanding that, notwithstanding the fact that the individual broke the law, notwithstanding the fact that the individual defendants, the evidence against him, or her establishes a requisite factual basis for being found guilty. The jury decides, well we don’t like the law, we think the law itself is unfair or we think the law itself was the result of an unfair system. We don’t care about the relevancy of any of this, we just are going to decide that this person should go free. That’s, that’s the way the jury nullification has generally been seen or considered, uh, by juries or jurors who just don’t like the laws that are in place, and therefore, one way outside of the hard work of going through the legislative process, to change the law, they feel and can be just one juror on that, uh, you know, on that panel, says, well I’m going to nullify this.
Well, nowadays you see it moving in a slightly different direction. You might have a jury, or a juror, who considers and buys into this woke perspective. Well, since this entire system, the judge, the prosecution, the laws, the way evidence was presented, or not presented, lead me as the juror to decide I’m just going to vote to acquit. Not because that person is not objectively speaking, guilty. Not because each and every element of the offense charged has been proved beyond a reasonable doubt, by the evidence, but because I think the entire system going back to the drafting and ratification of the Constitution, and the Bill of Rights, was so infected with racism, or some other defect, that it’s no longer an appropriate basis on which to render a verdict. So in looking at, you know, this notion of wokism and wokeness, I don’t know whether, you know, it’s just woke, or wokeism, or wokeness, but it’s there. It’s infecting our society in virtually every aspect.
We see it in commerce, see it in education, see it even in medicine, but of particular concern to us ought to be the way it is infecting the, not just the practice of law, but the whole notion of having objective standards based on individual liberty and the proper role of government, on which citizens can rely over a period of time. Not that, just that as Saul Alinsky would like to have it change every day, so that there’s no anchor. Today is the 20, 26th of January, 26th of January, my office just sent me today a short little video clip of a hearing held I believe it was yesterday, by the Senate Judiciary Committee. Senator Durbin from Illinois is the chair and the, just the clip that my office sent was of a brief exchange between a republican senator and a judicial nominee. I’m not sure what, I think it was for a probably a U.S District Court judge that may have been an appellate judge, I’m not sure, but the person was one of four, and I think four individuals being questioned, uh, leading to what they hope will be their confirmation. Favorable reporting by the Judiciary Committee, and then confirmatory vote by the Senate, and the senator asked this one judicial nominee, from I believe the state of Washington, uh, a few questions, a couple of questions about certain articles in the Constitution.
It wasn’t a gotcha question. It wasn’t delving into the minutia of some provision in the Constitution. It was just to, you know, test whether or not this individual up for a lifetime appointment to a Federal Judicial post had a basic familiarity with the Constitution. She didn’t, and you give her credit, she didn’t try and fabricate and answer, what do they call people nowadays, fabulous, or something, you know, this guy in the Congress, from New York, that’s fabulous, she just admitted, well I, no, I, those provisions in the Constitution don’t come readily to mind. She said on a couple of occasions, and then the senator asked her another question about a particular legal procedure and her response was, as a judge, I think was back in Washington, Washington state, any issue that comes before me, I research thoroughly before rendering a decision.
Well that’s fine, but to have somebody who is before the Senate of the United States for a Federal Judicial post an article 3, post position, have so little familiarity with or understanding of just the construct of the Constitution and what is contained in it is absolutely discouraging. You all may remember the, the, exchange between one or two senators last year with Judge Katanji, now associate Justice of the Supreme Court Katanji Brown, and she was asked a question by the senator. I think it may have been some follow-up questions about you know what is the definition of a woman, and she refused to answer. Now whether or not she refused to answer because she really doesn’t buy into whatever the definition is, refused to answer, may we have gotten to the point where not just law professors, not just lawyers, but nominees for Federal Judicial posts, including for the highest Judicial Post in the land, are either unwilling or afraid to answer fundamental basic questions, or provide fundamental basic honest opinions, because they are afraid of upsetting the wokeness that they believe might have gotten them to that position?
So it’s a very real problem that we’re dealing with here, that I hope all of us take seriously, you know, not just it’s, it’s easy to attack the political system for, for, wokeness. I mean Lord knows it’s a, you know, so an environment, rich opportunity, you know, in commerce, it’s easy, but if people start as they are doing, to play fast, and loose with fundamental procedures, fundamental rights, and the articulation of those rights, including those in the Bill of Rights, letting people off, that are clearly guilty, reduce even the federal sentencing guidelines have, you know, Federal sentencing guidelines certainly are not, not, perfect in any in any sense, and one can argue about how complex they are, and how much power it might give federal prosecutors, or too much flexibility to a judge. But we’re now seeing cases, I think, there was one, again somewhere, I think was somewhere in the midwest, I don’t mean to pick on the Midwest, but where an individual was charged with, I forget the exact charge, but it was a case of arson during a disturbance, during a riot if you will, and a building was torched, and there was an individual inside that building. An innocent victim died [of] smoke inhalation.
I think it was, and the individual was convicted, and then they came before the judge for the app, for sentencing under the federal sentencing guidelines, and to show you how far this wokeness now has permeated our legal system, you had an assistant U.S. attorney, now these men and women as assisting U.S. attorneys, you know, generally, and I know because I’d was a U.S attorney. You know, we’re pretty tough, sometimes too tough, but now in this one particular case and it’s not the only one, the assistant U.S. attorney was arguing and argued successfully to the judge, to go to depart downwards substantially, for the sentence for this individual who had killed somebody, the evidence clearly showed that they had torched the building. Somebody had died as a result of that, and the reason behind both the assistant U.S. attorney’s argument for a downward departure, and the judge wound up going even below that downward departure, was simply well, they weren’t really, he wasn’t really rioting, he was just protesting, and protesting is good.
I mean that’s utter nonsense but it is prevailing in our legal system and that’s a very slippery slope once we start to go down that, and we are going down it, and again, this isn’t a question of Republican or Democrat, or right or left, it’s a question of standing for anchors in our legal system that mean something and that don’t change with every impounding of a jury, or every judge who takes the oath of office as a judge or with every change in the political winds. So that’s my message, McGuirem and I hope it, uh, at least fits within, I think fits, within the parameters of the Federalist Society. We do stand for something, and that is a constitutional rule of law, in individual liberty and protecting those individual liberties, and I’d be happy to answer any questions, or, you know, hear from my fellow members of, uh, fellow students of the law here, today. Thank you for having me.
MAGUIRE RADOSEVIC: [We’re] ready to take questions and answers. Anybody have a question? Okay we’ll start back here.
PARTICIPANT 1: Uh, I’m failing to see how the examples you gave are something other than the process at work. The first examples you gave about say, uh, Clarence Thomas not being able to speak at the University, I don’t think it’s a prudent decision but that just seems like the free speech of the students at work. The part about jury nullification, I don’t know, I don’t know much but the, where that power comes from, but I imagine the Supreme Court has said that the power juries have, we just shouldn’t tell them about it. Therefore, the Constitution gives them the power to nullify based on whatever they want. If there’s a group of twelve catholics and they say we don’t like the death penalty, so we’re not going to prosecute this guy, [the] Constitution says that’s relevant; but the part about the judges, say the lady, they know the Constitution, once again, the Constitution gives the Senate the power to decide do they want to judge who knows the Constitution or not, so they get to decide Katanji Brown. She has the power, would, whether or not to answer the question, what is a woman? And once again, the Senate gets to decide the question about, uh, U.S attorney that’s prosecutorial discretion. Which, once again, the law has given them. So, I’m failing to see how any of the examples you gave are what you would call, the process not working, or the Constitution not working.
BOB BARR: Well your perspective might change the first time you make an argument to a jury or a judge and discover that they don’t care, they don’t care what the law is, they don’t care what the evidence is that you’ve presented, they’re just going to go against it because the overall framework, that constitutional framework, is something that they just don’t like. Judge Thomas, you’re absolutely correct. The school can do whatever it wants, to invite whoever they want to be a guest lecturer, or to talk to a group of Federalist Society students. The question, though, is not simply, do they have the right to do it? The question is does it make sense? Is it appropriate in our society, notwithstanding freedom of expression? And, you know, the government’s abuse when it censors free speech, within government contacts, that’s not the question. The question is as students of the law, are we going to stand up and say it is important for students of the law to engage in robust debate and not prevent individuals with whom we simply disagree or don’t like, what they might stand for, or something that they said from coming in and fostering a debate?
Yes, the students could send around a petition. I don’t fault them. I fault the school. The school should know better. The school school, should, understand as particularly, as a major university, that there is tremendous benefit in having a robust exchange of viewpoints. The sentencing guidelines, I’m not a great fan of everything into sentencing guidelines, but there is a process that is laid out both in the sentencing guidelines. In the background for the sentencing guidelines, the legislative history for example, the work of the sentencing commission and a body of law that says as a judge, as a prosecutor, these are the guidelines that you must follow, and the reasons for following them and departing from those guidelines for an irrelevant reason, such as, well, gee, we don’t care what the evidence was your honor. We don’t care what the law is your honor we think the guy’s motivations were pure. No that’s not an appropriate basis on which to make a decision. now if that prosecutor and those that support him really would like to change either the specific language in the sentencing guidelines or to go to the Congress and do the hard work of convincing a majority of the judiciary committees, and the both houses of Congress that they need to be changed, that’s fine.
But what a lot of these folks are doing is they’re just taking the easy way out. They don’t want to do the hard work of changing the law. They simply want to say, well we don’t like the basis on which the law was crafted. We like the, the intent, the motive behind this guy, so we’re going to let them off with a reduced sentence, and judges also, yes, they have discretion, and I don’t think, I certainly don’t want judges to not have a degree of discretion in their sentencing. but it has to be anchored to something that is relevant; and simply saying that protesters who engage in violent activities, notwithstanding some guy that was on the news a week or so ago, talking about the uh the small riot in Atlanta. You know, because some trees were being cut down that they didn’t, like, uh, the commentator I think was on CNN the commentator basically said, well that that’s not violence, you know, there was a police car burning right there. There were windows being smashed at businesses. Oh that’s not violence. They were mostly, mostly, peaceful acts. Well you know, mostly my work, as they say in horseshoes, but in our legal system as a basis on which to render life or death decisions, to anchor them simply to well, you know, it’s mostly this, or mostly that, or we like the overall environment, I don’t think should have a place in our legal system or in the law school education.
PARTICIPANT 1: Like you define wokeness as a lack of relevant standards and my point was, and the examples you gave the reason, why all those are relevant is because the Constitution says they’re relevant. The Constitution gave them that power. They’re exercising, the prosecutor is exercising the power, the jury is exercising the power, the students are accessing the power, and that’s why it’s relevant.
BOB BARR: I think that’s rather circular, but if that’s, if that’s, if that’s your position, go. More power to you. Try, and try, and try, and become a good practicing lawyer with that sort of perspective. I think it’ll be very difficult, yeah, but for example, like you’re quite, you’re, uh, like you said, the police car burning, whether or not that’s violence, or not, that’s like the changing definition of violence. If eventually that CNN anchor convinced enough, of the population that that act is no longer violence, why shouldn’t that not be violence? But it’s not just free speech. Thank you.
PARTICIPANT 2: Thank you so much for coming. My question is, is, you spoke so eloquently about making sure a society is based off of foundational principles. How do we go forward convincing people of our generation that these foundational principles are worth defending? And how to restore that anger to such principles it’s not easy. I mean because this, this, notion of wokeness has even though it’s happened fairly quickly in terms of you know the being able to see it and hear it, uh, it’s based, I think in, in, large measure on a lack of understanding, a lack of education on the part of our citizenry. Very broad, very broadly about our constitution, and why it was crafted. Our system of government was crafted in a certain way and what is the primary purpose of it? The primary purpose of government, as Madison said, I forget which one of the Federalist Papers at 51 or 50. I’m not sure but that the, the, the, goal of government is to protect individual liberty. I suspect that probably a very strong majority of citizens, if he went out, sort of the, uh, asking the person in this, in the street, you know, like some of these shows do, can actually be very funny in a sad way. Uh, and you ask them, what is the purpose of the government?
BOB BARR: Very few, I think, would say, well the purpose of government, the goal of government, is to protect individual, individual, liberty. Well they might say it’s to ensure [a] basic standard of living, or it’s to ensure health care, or it’s to ensure or to protect the nation’s defense, uh, whatever. No, it is to protect individual liberty. But, we have, I think, in large measure, a society that no longer understands, or has been, edu, has been educated on that. So they no longer understand that that is the purpose of government. Uh, and convincing them otherwise takes more than just our work as lawyers, although that’s, that, that’s, the, the, form that we’ve chosen to do that, and, I think we ought to do that. Uh, and you know, when we see something happen, such as, you know, a university, or a law firm, you know, saying don’t hire this person because they were associated with President Trump, or don’t hire this person, or don’t even allow this person to practice law because they engaged in political decisions with which we strongly disagree, uh, we can’t do it alone. But I think all of us, whether, whether, or not as the other gentleman said, we might have disagreements over why certain things are happening and whether or not it’s appropriate or not, but as lawyers we take an oath to the Constitution.
Judges take an oath to the Constitution, and I don’t think it’s asking too much to have those nominees know what the Constitution is, if they’re going to take an oath to it, and if they’re unwilling to educate themselves and to communicate their understanding of the Constitution to other people. They have no business being a judge. Uh, I know that, that, really answers the question. it’s difficult, but I think as students of the law we ought to take it as one of our priorities to do that. So that when we are engaged in representing somebody, we communicate in, you know, all of the appropriate forms why we’re doing that, why it’s important. Why it’s important, for example, also to have senators, Republican or Democrat, that understand these issues. I was white I’ve watched several of these nomination hearings and the nominees. They don’t really have to worry about it, you know, they can be made to look like a fool up there. They don’t care, you know, because the majority is going to confirm them, regardless, we have so lowered our standards and expectations for judges, particularly at the federal level, you know, where you have lifetime appointment. Um, that it simply perpetuates that ignorance and that lack of caring about the Constitution. So, I think the fundamental answer is to do as much as you can with whatever audiences, whether it’s one client, or one jury, or one group of law students, or the, you know, law firm that you’re with, to at least let them know that these fundamental principles are important. That the law as written and as decided is important and if people don’t like that, to come to go do the hard work of changing the legislation, changing the regulations, demanding more of our public, of our elected officials, I think that will help anyway.
PARTICIPANT 3: Uh, hi. Thank you for coming. Um, so you’d expressed earlier on in your presentation some [unintelligible] as to some of the Constitutional law classes, and the, like that question, the liability of the Constitution, other things like that. My question is, how can we, um, can sort of have classes and other elements of effective law school education that, uh, sort of both avoid ideological capture, as far as pushing for, oh, we ought to dismantle the, the, Constitution, or this part of the Constitution, or things of that nature, while also not falling so deep into the, um, sort of, uh, Orthodoxy of, you know, the, the, status quo, such that, you know, we can maintain some of the sharpening elements, like you mentioned with Clarence Thomas’s classes over at GW, and I guess that applies not just to constitutional law classes but in general how do you strike that balance effectively?
BOB BARR: I, I, guess you strike that balance by, by, not simply sitting back and letting it happen. I mean as law students I think it’s important whether it’s individually, or through a group like Federal Society. The ACLU does, the ACLU have a chapter. Do they have, uh, here, you know, to get active with these groups and help them. We might not agree with everything on which, in which, they’re involved. When I was, when I was in the house, I worked very closely with the ACLU and with the American Conservative Union at the very same time, and I continued doing that after I left the Congress because there’s that common ground that the right and the left share over government abuses, you know, [they] might disagree on exactly where those parameters are, but there was common ground, and I think it’s important to find that common ground and not be distracted by, you know, the, the, ideology that pushes people to the extremes, which we’re seeing, you know, way too often now, nowadays. But look for that common ground, again. Founded on the Constitution. If people don’t like the Constitution, well, it can be changed. There’s a mechanism built into it, uh, I don’t know that there’s any other system in which codified in the foundational documents that established the government, is the mechanism for the people to do away with it. Now, it’s difficult. It’s difficult to change the Constitution. Very difficult, maybe too difficult. I don’t know. But there are ways to do it. There are ways to work through the Congress, to change the federal laws but when we see individuals in high regulatory positions, or in the Senate itself, the house to a lesser extent, because they don’t have the confirmation power that the Senate has; which is very powerful and which is where a lot of these issues really come to a flash point. There are ways to do it, but simply saying, well gee, you can say, or do anything or make any judicial decision that you want and it’s okay because of the First Amendment. I think this illustrates a profound misunderstanding of what the First Amendment does. It doesn’t, it doesn’t say that if you have a law in place that is past constitutional muster, and it sets the parameters on which these decisions are to be made, whether by a prosecutor, or a judge, you have to, to, you have to operate within those parameters. Otherwise, anything and everything is relevant, or irrelevant, and it’s very difficult to obtain any sense of justice in that sort of environment.
I just don’t think it’s, you know, a path that we as lawyers want to go down and we ought to do everything we can to convince others of the same perspective. I think we have time for one more question, real quickly.
PARTICIPANT 4: Thank you for coming. I’m not a law student, yet, so I hope if I say anything wrong, forgive me. I was watching the nomination and I believe, uh, Senator Ted Cruz and, uh, Paul [unintelligible] was asking, uh, judge, yeah, asking judge Brown Jackson what is a woman and her response was she’s not a biologist or a doctor. So, based on her response, a doctor or a biologist, would be an expert, and answer those kind of questions. So my question is based on her response. Should psychiatrists and doctor have the right to recommend conversion therapy to their patient if their patient choose to? What is your opinion?
BOB BARR: Well, we’re sort of mixing apples and oranges and that’s fine. I think, say if, if, one follows the line of reasoning that judge and now Justice Katanji Brown followed the only individuals capable of or allowed to make a decision about anything, but only be those people who are trained in, or have a degree in that, so yeah. We as citizens, we would have no standing to object to the military adventure by our government because we’re not in the military. We would not be able to render a decision about whether or not to have a certain mandated level of health care, because we’re not doctors. Uh, you know, she wasn’t being asked a hyper-technical question about a fine point of the law. She was just asked a basic question that pretty much any person should be able to answer. You don’t have to be a doctor, you don’t have to be the doctors, yeah right now in California, a doctor and psychiatrists, based on their patient reeling and choice, they cannot really recommend or reprove a person’s therapy to get their patient more than that. So I’m just saying, based on the response, so what she’s saying is I’m a legal person, I’m not a biologist.
MAGUIRE RADOSEVIC: I’m trying to continue this discussion a little bit longer, we are at a time we’ve already cut off at two o’clock. Um, so thank you all for coming. Thank you, mister Barr for speaking.
BOB BARR: My pleasure. Thank you all.