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2019 Commencement speaker Judge McShane ’88 Speech

May 28, 2019

The Honorable Judge McShane’88 gave a most memorable commencement speech May 18, 2019 at Lewis & Clark Law School.
Here is the text of that speech. 

“Thank you, Dean Johnson, Board, and faculty. And thank you so much Class of 2019. It is so nice to be back home at Lewis and Clark Law School where my own legal career got off to its fitful start.

I have to say that I’m a little nervous giving a commencement speech. They are, after all, not necessarily the most memorable part of your graduation. I thought I could draw some inspiration from the speech that was given to my own graduating class from this same spot 31 years ago, but for the life of me, I could not remember the speaker or what was said. So I decided to investigate this by emailing some of my classmates from 1988 to see if they could remember who spoke to us and what was said. This is what I got in response:

Dear Pathetic Michael,

Oh the ironies of ironies. Our forgettable speaker was a white, middle- aged, male federal judge much like yourself. He put us to sleep talking about professionalism. The only difference between you and him is that you know nothing of professionalism and he was straight. Go with your strong suit, my friend. Gay it up and don’t put the poor students to sleep.

Dear Michael,

Your memory is worse than you think. We did not graduate together. I graduated from University of Oregon law school. How did you ever become a federal judge? You are such a dork.

Dear Michael,

Such a wise move on the part of the law school to pick you as a speaker. Your own lackluster academic career and thoughtless path as a juvenile delinquent from Kennewick, Washington to the federal bench will instill confidence in even the least ambitious of the graduates. You are a true inspiration to slackers and geeks everywhere.

So with that, my thoughts today will be entitled: The Accidental Jurist; How a Forgetful Gay Dork from Kennewick Managed to Succeed in a Courtroom.

I promise that I will not give you a lot of career advice. Attorneys, judges and law school professors are famous for telling law graduates what you need to do to succeed. I’m sure by now you have heard all of it. We have told you about the importance of networking and the need for mentor relationships and how to market yourself to potential employers. We advise you to get yourself involved in pro bono work, internships, specialty bar associations, diversity bar associations, and bar committees. We suggest you get courtroom experience while, in the same breath with no sense of irony, we tell you that new lawyers never get courtroom experience. We tell you that the experience of your first job is the experience that will shape your career and then we tell you to take any job you can get and worry about your career later. We invite you to employment strategy sessions and networking breakfasts and mentor luncheons and job fair cocktail hours and then we send you on your merry way to the dreaded informational interview. And everywhere you go you hear the constant refrain that you need to do more and more and more.

There is a reason why that goldfish you purchased your first year and bravely named Atticus is no longer with you. You took this advice of doing more and more and more and you found him floating belly up in his bowl with a note pinned to his own chest that simply read, “the law is a bitch.”

The future is a hard world to live in. Some of you have found jobs but you may be wondering if it is the right choice or the right fit. Many of you are looking at massive debt and some of you have no job. I can imagine that you might be stressed; that you might feel inadequate for the task ahead; that you put on a brave smile but feel a twinge of self- doubt as you head off for you fourteenth informational interview while others around you seem to be on a clear trajectory.

Today I am here to tell you not to take it all too seriously. All of you have everything you need to succeed by being no more or no less than yourself.

In fact, my path to this law school and an eventual career in the courtroom was as aimless as it was accidental. I was not a child who grew up dreaming of being a lawyer or a judge. I had no frame of reference for that. My only experience with the courtroom was a brief visit to one at the age of 16 over a minor indiscretion. I stole my brother’s letterman jacket, I put my name on my sister’s report card, and I wore my mother’s rosery around my neck. It turns out that god, grades, and football are a great defense in rural America. But I was never on the debate team or mock trial, I never attended government camp, and I don’t recall ever actually reading the Constitution prior to law school. As a matter of fact, the only answer I remember giving to people who inquired of me what I wanted to do when I grew up was when I was five years old and I would loudly announce to anyone who asked at a family gathering: “I want to be a fairy godmother.” My brothers had great fun making sure every hapless visitor to our household would make this inquiry of me and I was quick to oblige. Of course, this was a source of great embarrassment to my parents when I continued this dialogue at the age of 18, but I’m still convinced that it is my dream job.

So I thought what I would do is talk a little bit about that path… how I stumbled into this law school and the courtroom. How a badly thought out idea could turn into such a great experience. How a decision that lacked any clear motive could end up leading me to a career and a community that I love. How I ended up doing the very thing that I feared the most in life …using my voice.

There are three things I want you to take away from this discussion.

1. The first proposition is that luck is sometimes more important than competence. You can be great at what you do and still fail to accomplish what you have set out to do…. Sometimes just standing in the right place at the right time next to the right people will be the catalyst to change your life.

Let me tell you a story about luck. A couple of years ago, about the time I was ready to go to bed, my son informed me that we were out of toilet paper. He was 12 and he waited until he was sitting on the toilet to tell me this. It was 10:30 at night and I hopped in the car and headed to Fred Meyer’s. So I’m waiting in the one checkout line with a giant box of toilet paper (and the bottle of wine that I grabbed because it is always a little embarrassing to buy just toilet paper… I have always cared what the checkout girl thinks of my purchases) and in front of me is a young man holding two boxes of diapers and a six pack of beer. He has an Iowa Law tee shirt on and he looked exhausted. I asked him if he was in law school and he explained that he had just moved to Portland, having just graduated from law school, and had just taken the bar exam. He had moved with his wife and their new baby and had been struggling to find a job.

I told him he should come down to the courthouse and sure enough, two days later we met for coffee. I introduced him to our court administrator who needed a floater clerk and he started working the next day. Two weeks later one of our circuit judges hired him on as a regular judicial clerk. After two months, that judge’s old firm was looking for an associate and he got a job with them. Today he is the managing partner in the firm. He likes to joke with my now 21 year old son whenever he sees us that it was the most profitable dump that Brandon ever took.

2. That endurance is sometimes more important than brains. It really does not matter how smart you are from this point forward… intelligence and creativity are cheap; a dime a dozen. Law schools are populated by fiercely bright and creative types much like yourselves. Some of you may one day do great things; but in the meantime, you will for the most party be surrounded by the mundane; the day to day task of working and paying bills and supporting a family. **** Being smart does not necessarily get you through the harder moments in life. Being smart does not always help you when your job seems to be unfulfilling and your spouse is complaining that you are working too much. Sometimes we are simply required to endure.

3. That it is perfectly acceptable to do something for all the wrong motives. We do it all the time and we don’t even know that we are doing it because we are so good a lying to ourselves. But here is the important part: we are never obligated to fulfill the mistakes or motives of our former self. We are only accountable to the present. The question is never “what got you here,” it is always “why am I staying.” A catholic priest once told me that. He became a priest for all of the wrong reasons. It turned out he didn’t actually believe in God. Despite this slight hurdle, he became an absolutely amazing priest. He would ultimately die in El Salvador fighting for social justice and the rights of the poor. There was a guy who found the right reason to stay.

On that last point, I want to talk about my own motives for coming to Lewis and Clark and pursuing a career in law. In truth I went to law school for all of the wrong reasons; for terrible reasons.

Primarily, I was afraid to do anything else. I was afraid I would fail at what I was really passionate about: creative writing and the natural sciences. I was afraid I would not meet my parent’s expectations if I did not become some kind of professional. I was afraid that I was out of options and that I would be destined to moving back home with my mom and dad and their two Pomeranians named “sassy” and “spanky.”

So how did I get to that point… how did I get to the point where I was going to law school with no passion for the law and no clue as to what I could possibly do with a law degree.

I grew up surrounded by wheat fields in a small farm town called Kennewick, Washington. Kennewick, according to my father, was a Yakima Nation term for “where the wild geese go to drink and fight and shit and die.” I actually believed that for many years, but in actually translates “where the waters meet.”

I used to make fun of my partner for being from the South. I would make cracks about deformed children playing the banjo on his porch or his cousins getting married to their goats. That all stopped when he visited Kennewick. He describes Kennewick as the South without the good food, relevant architecture, or a literary tradition.

Kennewick is still not an easy place to grow up gay. That was particularly true when I was growing up. In the social hierarchy of high school today, being gay is probably fixed somewhere between being in marching band and having a flip phone. In the social hierarchy of the 1970s, most of us thought being dead was probably a step above being gay.

Despite Kennewick being a hick town, my friends still refer to it as the “Paris of the Inland Empire.” They started calling it “Paris” when I stumbled out of the closet in 1979. I was getting in so many fights in the hallway that a teacher asked what was going on. One of my classmates decided to let the him in on the little secret that the whole school seemed to know by telling him “McShane is a homo.” This was fairly novel to Kennewick at the time and certainly novel to my teacher. He looked at me without any irony and said, “I though all you homos lived in Paris.”

Today I suppose I would be offended by the comment. Back then I actually took it with great hope, harboring with optimistic zeal the view that perhaps after all there was a place for people like me and it must be Paris. I immediately dropped German and took up French at the suggestion of my track coach (who was also of the opinion that Paris might be the safest place for me). I started wearing berets, ascots, and striped shirts to school. I looked like a sad mime but I vowed that someday I would make it to Europe and find that community of gay Parisians who must be waiting for me.

But my dreams of going to Paris never materialized… I only got as far as Spokane, WA, where I went to Gonzaga University. In retrospect, it was probably just as well. Despite being the Andy Warhol of Kennewick, had real Parisians seen me in my stove-pipe Britannia jeans, tri-colored platform shoes, and embroidered denim shirt, I’m sure that they would have simply stoned me to death.

I left Spokane with an honors degree in English Literature. I had worked my summers in Kennewick at a slaughterhouse, so you can imagine the job offers that were coming in: “Wanted: literate meat cutter.” The day after graduation, a friend and I hitchhiked to Wyoming where we had been promised jobs in the oil fields. By the time we got there the entire crew had been laid off. Luckily for me, that one term of French paid off and I got a job in Gillette, Wyoming’s only French restaurant. The interview consisted of my reading the menu and when I pronounced “Coquilles San Jacques” with some proficiency, the owner literally started crying.

The restaurant itself had a French revolution kind of theme and as waiters we were required to wear a uniform that consisted of knickers and a very flouncy shirt with big sleeves and a scarlet cap. I looked like I was on the set of Pirates of the Penzance. I’m sure that you can imagine the compliments I got each day from passing pickup trucks as I walked to work. It was brutal.

Having now grown up in Kennewick, gone to school in Spokane, and then finding myself in somewhat stranded in Gillette, I had (to say the least) developed a healthy sense of otherness. The early 1980s in rural America were not always kind to gay pirates. It was time to make a change and that change, for better or for worse, was going to be law school.

Many people go to law school because they want to be Atticus Finch from To Kill a Mockingbird; my motivation in going to law school was to marry Atticus Finch. I thought he was pretty much the coolest guy in the world. I did not have a career plan, I did not have much interest in any particular legal field, I had a paralyzing fear of public speaking.

I was a dork in law school. I’m not just saying this because I’m being self-deprecating… I was really a dork. This paralyzing fear of public speaking caused me constant anxiety. I was the student who showed up to appellate advocacy with a little splash of vomit on his shoes because I was so nervous that morning I had to throw up. I was the student who always tried to stay under the professor’s radar for fear that I would be found out a fraud. I was a student who never really felt that I had a whole lot to add to the conversation. I was afraid of everything; particularly speaking. I would like to think that growing up as the lone queer warrior of Kennewick had made me brave… life is not like that. It kept me quiet and it kept me apart. It kept me from feeling like I should succeed in the world of normal.

So it was odd then that I would find myself in a courtroom upon passing the bar. I had never been in one before. The first trial that I ever saw was the first one that I tried myself (and yes, I threw up like clockwork the night before). When I told my therapist that I had taken a job with the public defender’s office, he raised his eyebrow and asked me if I realized it was a speaking role.

You may ask why I took a job that I was so ill-suited for. Life threw me what you might call a curve.

It was just a couple of days after I took the bar exam when I got a call that my partner had collapsed at work and had been taken to the hospital. He was sick. He was going to die. He was the same young man that had kept me in Portland because I had fallen in love and he had worked two jobs so I could get through my studies. He was only 25. He would be dead within a year.

All of my plans seemed to be crashing around me. I was to work at a firm doing transactional work. I was to immerse myself in billable hours and become rich. I had job offers with several of them and what was I supposed to tell them (this was a different world back then)… “by the way, I have a gay partner at home who is dying of a cruel disease so I will need a flexible schedule.” I was a wreck. I spoke to the firm that had been the most interested in bringing me on to explain my situation. I was told they understood. The next day the managing partner called me and said that they would not be hiring for another year. Three weeks later they hired one of my classmates.

This is where endurance comes in.

I went to a bar to get a drink. I sat down next to a man at the bar who was drinking to great excess. He asked me what I did and when I told him I had just taken the bar, he started yelling expletives about “goddamn lawyers.” It turns out he was one. He was a criminal defense attorney and he had just lost a two-month homicide case. I told him my sad story thinking he was too drunk to care. He asked for my phone number.

This is where luck comes in.

The next day, the drunk at the bar called me and asked me to come down to his office. It turns out he was not just an attorney; he was a supervising attorney at the public defender’s office. He showed me around the office and told me to apply. They had jobs. Lots of jobs. He told me that I would be safe there.

And this is where doing things for the wrong reason comes in. I became a public defender not out of a sense of serving the poor or justice, I became a public defender to feel safe at the worst moment of my life.

But there was something about entering a courtroom that for me was the most transformative moment of my life. I remember my first client, a haggard looking prostitute whose life had been a faucet drip of addiction and domestic abuse. When the judge asked “what can you tell me about your client, Mr. McShane,” I froze. The silence seemed to last forever. Eventually my client looked up at me from the table and whispered, “Hey asshole, are you going to say something or what?”

And I did. I was no freaking Atticus Finch, but it turned out that speaking for someone else is not nearly as difficult as speaking for myself. It turned out that simply wanting to help people– folks whose addiction, mental illness, anger, or life circumstance had rendered them silent– was what would make the courtroom my home for these many years.

When we think of lawyers and what a good lawyer looks like, we often don’t think of ourselves. I certainly did not. I hear so many law students say what I thought… the courtroom is not for me. I don’t have the personality. I don’t have ego. I don’t have the swagger. I don’t have that kind of confidence. I don’t have the charm.

Stumbling into this law school and ultimately a courtroom was the best thing that I ever did even though I did it for all the wrong reasons. It has made me a happy person. I wish you this same happiness.

I know that many are saying that there are too many of you graduating from law school; that a law career these days is not a prestigious as it once was; that there is no money to be had in going into a law career. That if any of you were good at math you would have gone to medical school.

Don’t buy into this pessimism.

Yes, there are problems with the system. But the problem is not too many lawyers. The problems… and these are problems we have bequeathed your generation, is that we should be paying you for pursuing a vocation in justice and the law and not bankrupting you. We can’t steer you towards a career in justice when what many of you need is debt relief.

But the problem is not too many lawyers. Justice deserves the largest chorus we can bring together; not a barbershop quartet. Just look around and you know this to be true.

Our environment is being destroyed as we speak. The rule of law is being challenged in the highest levels of our government. Our jails are being filled with the mentally ill. Laws are being passed that would put yet another class of Americans on the back of the bus in the name of religious freedom. Veterans of war are waiting in line for basic medical care. Minorities are being disenfranchised from the ballot box. The homeless are being arrested for camping. We are incarcerating addicts rather than treating them. Women are still paid and promoted less than their male counterparts. We are traumatizing the children of refugees by separating them from their parents.

Justice deserves more voices not less.

I found my voice in a courtroom. It found it by accident, but I found it. You too, will find your voice. And it is a voice that needs to be heard. As you leave this law school it is up to you to be that voice despite your reservations, your fears, your uncertainty. It does not have to be a big brassy voice or a pandering voice or a maudlin voice. We don’t need loud amens; soft halleluiahs will do just fine.

It simply has to be this:

A voice of dignity for the prostitute who has lost her dignity.

The voice of preservation for an environment that is being destroyed. A voice of reason for the mentally ill who have lost all reason.

The voice of access for the poor who cannot afford legal services.

The voice of justice for the victim.

The voice of calm for the violent.

The voice of hope for those in fear.

The voice of humanity for those whose humanity is lost.

You can do this. You can do it by being your adorably flawed selves. You can do it and be vulnerable and even afraid.

Class of 2019, this is what you are called to do whether you know it yet or not. Thank you in advance for the voices you will bring to our vocation.

From the bottom of my heart, I tell you this: I’ll see you in court.”

 

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