Jackson List: Judge Gorsuch’s Admiration for Justice Jackson’s Writing … and Justice White, Dubitante

In his opening remarks this afternoon before the United States Senate Judiciary Committee, U.S. Circuit Judge Neil M. Gorsuch, nominated to fill the U.S. Supreme Court seat that has been vacant since last year, gave thanks to four Justices who are his “legal heroes”:

I want to thank my legal heroes. Justice[Byron R.] White, my mentor. A product of the West, he modeled for me judicial courage. He followed the law wherever it took him without fear or favor to anyone. War hero. Rhodes Scholar. And, yes, highest paid NFL football player of his day. In Colorado today there is God and John Elway and Peyton Manning. In my childhood it was God and Byron White.

I also had the great fortune to clerk for Justice [Anthony M.] Kennedy. He showed me that judges can disagree without being disagreeable. That everyone who comes to court deserves respect. And that a legal case isn’t just some number or a name but a life story.

Justice [Antonin] Scalia was a mentor too. He reminded us that words matter — that the judge’s job is to follow the words that are in the law — not replace them with words that aren’t. His colleagues cherished his great humor too. Now, we didn’t agree about everything…The Justice fished with the enthusiasm of a New Yorker. He thought the harder you slapped the line on the water, somehow the more the fish would love it.

Finally, there is Justice [Robert H.] Jackson. He wrote clearly so everyone could understand his decisions. He never hid behind legal jargon. And while he was a famously fierce advocate for his clients as a lawyer, he reminded us that, when you become a judge, you fiercely defend only one client — the law.

If Justice White could comment, perhaps he would temper Judge Gorsuch’s admiration for Jackson’s writing.

As a law clerk for Chief Justice Fred M. Vinson at the Supreme Court during 1946-47, White got to watch Jackson—just back from his prosecutorial year in Nuremberg—in action.  Perhaps White even knew Jackson a little bit.

During that clerkship year, and then across the decades that followed, Justice White no doubt read many Justice Jackson opinions.  And this, according to White biographer Dennis J. Hutchinson (click here for the biography), is where White came out on Jackson’s writing as part of his judging:

To some extent, [Justice White] went out of his way to be obscure.  For example, one of his clerks during the 1971 term prepared the first draft of an opinion in a major case and received an unexpected compliment that turned out surprisingly to be double edged:  “You write very well,” White told the clerk.  “Justice Jackson had that problem, too.”  The implication … was that Jackson relied too often on memorable images and turns of phrase in place of meticulous respect for careful reasoning or for the Court’s case law.

Although I love this Justice White barb—which is, ironically, very Jacksonian—I mostly disagree with his alleged critique of Justice Jackson’s care in reasoning or his devotion to precedent, for Jackson shared those values and worked hard to uphold them.

But Jackson did not always see them as the only dimensions of his judicial job.  He recognized that judging is multifaceted, that it is a legal and an intellectual, and also a political, a societal, and a human, process that leads a judge to reach a particular judgment.

Explaining that in written opinions with honesty (including self-honesty) and clarity is the challenge of appellate, and especially Supreme Court, judging.

I think that Judge Gorsuch is right that Jackson’s writing told, showed, and delivered with unique literary skill, and also with clarity, why he judged as he did.  He thought it was the core of his job to allow people to understand the issues, his judgments, and him.

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This post was emailed to the Jackson List, a private but entirely non-selective email list that reaches many thousands of subscribers around the world. I write to it periodically about Justice Robert H. Jackson, the Supreme Court, Nuremberg and related topics. The Jackson List archive site is http://thejacksonlist.com/.  To subscribe, email me at barrettj@stjohns.edu. Thank you for your interest, and for spreading the word.

Jackson List: 125th Birthday

Tomorrow, February 13, 2017, will mark the quasquicentennial of Robert Houghwout Jackson’s 1892 birth, in his family’s farmhouse in Spring Creek Township, Warren County, Pennsylvania.

For your Jackson Birthday reading, here are some previous Jackson Birthday-related posts:

These and many more posts are on the Jackson List archive site, which is word-searchable and, using quotation marks, phrase-searchable:  http://thejacksonlist.com/.

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This post was emailed to the Jackson List, a private but entirely non-selective email list that reaches many thousands of subscribers around the world. I write to it periodically about Justice Robert H. Jackson, the Supreme Court, Nuremberg and related topics. The Jackson List archive site is http://thejacksonlist.com/.  To subscribe, email me at barrettj@stjohns.edu. Thank you for your interest, and for spreading the word.

Women in Senior Government Ranks, and Not

Notice the women.   In three of the U.S. court cases that were filed challenging the legality of President Trump’s January 27th Executive Order seeking to deny entry to the United States to nationals of seven specified countries, the Federal Judges are women:  Judge Leonie M. Brinkema of the Eastern District of Virginia (Alexandria); Judge Allison D. Burroughs of the District of Massachusetts (Boston); and Judge Ann M. Donnelly of the Eastern District of New York (Brooklyn).

Each Judge was assigned to her respective case by her Court’s random assignment system.  But each is there on the federal bench because recent Presidents, advised by U.S. Senators in the particular state, have made it a point, and at times a high priority, to appoint more women.  President Clinton appointed Judge Brinkema, who previously served as a federal prosecutor and then a federal Magistrate Judge, in 1993.  President Obama appointed Judge Burroughs, also a former federal prosecutor and then a lawyer in private practice, in 2014.  And he also appointed Judge Donnelly, a long-time New York City prosecutor and then a New York State judge, in 2015.  Women are still underrepresented on the federal bench, from the Supreme Court through the courts of appeals and the district courts, but the U.S. has made some progress in this area towards fairness, representation, and equal opportunity.

For National Women’s Law Center data from October 2016 on women on the federal bench, click here.

In related news, the New York Times reports today that the U.S. Department of State is losing, to retirements, two of its highest-ranking women:  Anne W. Patterson, until earlier this month the Assistant Secretary of State for Near Eastern Affairs, and before that U.S. Ambassador to El Salvador, to Colombia, at the United Nations, and to Egypt; and Victoria J. Nuland, Assistant Secretary of State for European & Eurasian Affairs until earlier this month.

For a March 2016 Foreign Service Journal report on women in the U.S. Foreign Service, click here.

Jackson List: Inaugurations and Change (1949 & 1953)

On the morning of January 20, 1949, Justice Robert H. Jackson and his wife Irene drove in to Washington from their Hickory Hill home in McLean, Virginia.

At the Supreme Court building, they met their friends Floyd Odlum and Jacqueline Cochran (a businessman and a famous aviatrix and businesswoman, respectively), who were visiting from California.  Later, they crossed First Street, Northeast, to the U.S. Capitol.  They sat – separately, Jackson with fellow justices, Irene with Floyd and Jackie – in V.I.P. seats and watched the inauguration of President Harry S. Truman.  Justice Jackson wore a small black cap, custom-made, from Livingston’s, a store in downtown Washington.

In Chicago, a young woman named Betty Stevens was one of many who watched the 1949 presidential inauguration ceremony on television.  She was especially pleased to see two Supreme Court justices, Jackson and Wiley Rutledge, “walking along gaily chatting.”  Her husband, Chicago attorney John Paul Stevens, had clerked for Justice Rutledge a year earlier, and Mrs. Stevens was happy to see that he appeared to “be in excellent health and spirits.”

Nearly four years later, General (ret.) Dwight D. Eisenhower was elected to succeed President Truman.  He, a Republican, would become president after twenty years of presidents (Franklin D. Roosevelt, and then Truman) from the Democratic Party.

In late 1952, Jackie Cochran wrote to her friend Bob Jackson.  She asked if she and Floyd could be Jackson’s guests at the impending Eisenhower presidential inauguration.

Jackson, after checking, wrote back to her in late December 1952:

Dear Jackie:

I have inquired of the Marshal [of the Supreme Court] and so far as I can learn we can carry out this year the same program that we did at the last inauguration – which was that you and Floyd came to the Court and we went from here together.  I think that will work out this time, although it may be something different.  You know the slogan, “It’s time for a change,” and they do have to provide this year for two Cabinets and two sets of officers, incoming and outgoing, and two Presidents’ parties, whereas before there was only one.

The Inauguration Day, January 20, 1953, was indeed different.  On that Tuesday morning, the Supreme Court had an official session.  The justices took the bench and admitted attorneys to the Supreme Court bar.  The Court then adjourned to attend, as it had four years earlier, the inauguration as a body.

At the oath-taking ceremony, the Justices, all bare-headed, walked in procession from the Capitol rotunda to the platform, in pairs according to their seniority on the Court.  Justice Jackson walked with Justice William O. Douglas, smiling and talking.

Later that afternoon, the justices returned to the Court and reconvened briefly in official session.  They did not hear oral argument in any of the ten cases they had, the previous day, put on call for January 20th.  They sent “home” the attorneys who were assembled and prepared to argue those cases, putting them over until the next day.

It appears that Jackson was able to arrange for Floyd Odlum and Jackie Cochran to attend President Eisenhower’s 1953 inauguration.

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This post was emailed to the Jackson List, a private but entirely non-selective email list that reaches many thousands of subscribers around the world. I write to it periodically about Justice Robert H. Jackson, the Supreme Court, Nuremberg and related topics. The Jackson List archive site is http://thejacksonlist.com/.  To subscribe, email me at barrettj@stjohns.edu. Thank you for your interest, and for spreading the word.

Jackson List:  Departed Friends, Remembered

The events of 2016 included, sadly, departures of special friends.  The five who are highlighted here were connected directly to the life, work, and major legacies of Justice Robert H. Jackson.  These people had great smarts, class, and charm.  Their lives were filled with selfless accomplishments.  Luckily, they have left us with powerful examples, including in various filmed moments.  They were:

  • Judith S. Kaye, Chief Judge of the New York Court of Appeals, Chief Judge of the State of New York, and a member of the Robert H. Jackson Center board—click here for Chief Judge Kaye, in 2001, speaking at Chautauqua Institution;
  • Bennett Boskey, a law clerk to, successively, Judge Learned Hand, Justice Stanley Reed, and Chief Justice Harlan Fiske Stone, and later a leading Washington, D.C., lawyer and legal profession giant, including in the councils of the American Law Institute—click here for Boskey, in 2006, on Stone;
  • Phil Neal, Justice Jackson’s law clerk during 1943-45 and, later, a law professor at Stanford University, law school dean at the University of Chicago, and a leading Chicago lawyer—click here for Neal, in 2002, on Jackson;
  • Gwendoline Heron Niebergall, a native of the United Kingdom, whose post-World War II work took her to Nuremberg, to service on Justice Jackson’s Office of Chief of Counsel prosecution staff there, and to, among other things, presence in the center of one of history’s famous photographs—click here for Niebergall, in 2010, on Nuremberg; and
  • Barrett Prettyman, Jr., Justice Jackson’s law clerk at the Supreme Court of the United States during 1953-54—Jackson’s final law clerk—and, later, a leading lawyer in Washington, a premier advocate before the Supreme Court, and a Jackson Center board member—click here for Prettyman, in 2012, on his heroes.

Memories of these people are treasures, for the year ahead and much, much longer.

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This post was emailed to the Jackson List, a private but entirely non-selective email list that reaches many thousands of subscribers around the world. I write to it periodically about Justice Robert H. Jackson, the Supreme Court, Nuremberg and related topics. The Jackson List archive site is http://thejacksonlist.com/.  To subscribe, email me at barrettj@stjohns.edu. Thank you for your interest, and for spreading the word.

 

Respecting Respectful Janet Reno (1938-2016)

The New York Times Magazine, in its December 25th annual selection of “The Lives They Lived,” highlighted dozens of this year’s departed.

Among all the greats remembered there, only one, Janet Reno, was the subject of two reports.

One showed her rough-hewn Florida bedroom, photographed shortly after her death on the eve of Election Day last month.

The other remembered her during her 2002 near-miss campaign for Governor of Florida, two years after she had finished serving for nearly eight years as Attorney General of the United States.

In 1993 and 1994, as a Main Justice lawyer, I got to see AG Reno in action in a few big-crowd meetings.  She was decency personified, attentive to detail, and concerned only that she and everyone in the Department of Justice was doing their jobs well.

And she was charmingly not hip.  For example, at one of those meetings, held around the time when “dissing” became a word and a thing, the AG began to state her disagreement with someone’s point as follows:  “I don’t want to be ‘dis,’ but…”  (The room then froze for a second, and then exploded in laughter.  The AG, puzzled but knowing she’d said something funny, joined in.)

Janet Reno wasn’t “dis.”  She was exactly, authentically, entirely the opposite.  And her personal goodness moved and lifted people, including throughout the Department of Justice—she led the excellent people of federal law enforcement to do better, including in some hard passages, than they would have without her to follow.

Public life, in Florida and nationally, was better for it.

 

Hillary Clinton Should Run for President

In eight days, on Monday, December 19th, electors will meet in each state capital.  They will cast their votes for the next President of the United States.  Each elector also will vote, separately, for the next Vice President.  The electors’ votes in each State then will be added up to determine nationwide totals.  In each race, the candidate who receives 270 or more electoral votes will win the office.

Each State’s law provides that its electors shall vote based on popular voting in that State.  At this time, popular vote counts indicate that Donald Trump is entitled to 306 electoral votes, and that Hillary Clinton is entitled to 232 electoral votes.  Although some States are still completing their initial counts of absentee, military, provisional, and other ballots, and although a few States are recounting votes, it is not expected that the popular vote winner in any State will change.  Thus while Clinton won the national popular vote by over 2.6 million votes (at present count), 48.2% for Clinton to 46.3% for Trump, he won enough States to earn more than 270 electoral votes, if each elector votes based on his or her State’s popular vote.

Trump will be elected president, however, only if a sufficient number of electors do cast their ballots for him.

The Electoral College was not created to be an unthinking rubber stamp.  And across U.S. history, some electors have voted other than as-pledged, choosing not to vote for a candidate whom they regarded as unfit for or undeserving of the office.  Indeed, it’s reasonable to assume that most electors across U.S. history have voted not as automatons, but based on reflection and then a personal decision that the candidate to whom the elector was pledged, the candidate who won the popular vote in the elector’s State, was fit to be president or vice president.

For honest, conscientious 2016 electors, which I sincerely assume each of them to be, there are numerous, powerful reasons to think about voting for Clinton, not Trump, including:

  • Most of the voters preferred Clinton;
  • U.S. government intelligence agencies have determined that Russian government espionage helped Trump significantly, including by injecting information into the campaign that depressed Clinton vote totals, especially in States she lost narrowly;
  • Trump’s business dealings, including with foreign governments, pose grave questions of conflict of interest, illegality, and disloyalty to the U.S.; and
  • Trump’s proposed nominees to Cabinet and other high offices include persons whose beliefs and policy commitments run against the best interests of the U.S. and its people.

This week, the week before electors will cast their ballots on December 19th , is the time for these very serious political arguments.

Donald Trump, conducting himself as president-elect, is in effect continuing to argue that the electors should elect him.

For the sake of the country, Hillary Clinton should complete her campaign for president by joining, by rebutting, that argument.  I don’t believe that the odds are in her favor.  But if—

  • if she gives voice, thoughtfully, to all of the issues that now surround who should be the next president;
  • if she explains why she should be chosen and how she would work, in assembling a government and in pursuing policy priorities, to repair wounds and advance the life of every American;
  • if she articulates a “unity, especially now” vision, including how we could get past the anger that her election would cause…

*          *          *

Clinton, in this final week of campaigning, would be doing best her chosen tasks, running for and preparing to be President of the United States.  And she would be doing everything that she could, which is what we reasonably ask of our presidential candidates, to serve and protect a great America.

Thirty-eight electors in States where Trump won the popular vote have the power, personally and legally, to elect Hillary Clinton.

She should seek, with everything she’s got, their votes.

Professor Joseph A. Calamari (1919-2016)

I’m sad to report that my St. John’s University School of Law faculty colleague Joe Calamari died on December 2, 2016, at age 97.

February 27, 2007:  Celebrating Joe’s 88th birthday.

When we became colleagues in 1995, Joe was already retired from full time teaching… except for the fact that he taught actively every semester, was a leading authority on admiralty law, was hugely respected and involved in the admiralty bar in New York City, and was very connected to students and lawyers across their lives and careers.

I learned that Joe was a World War II and a Korean War veteran.

When I began to write about the Nuremberg trials, he stopped by my office to talk about them, smartly.  After a while, he said, gently, “I was there for a day—it was the day Keitel took the stand.”  His claim was true and typically modest.  We pinned down the date:  April 3, 1946.

When Joe finally, really, retired from teaching in 2011, St. John’s admiralty law society honored him at a special dinner, and the society took his name.

April 7, 2011:  Marie & Joe Calamari (and a earlier Joe photo behind them).

It was a great privilege to know him.

Jackson List: An Invitation to Join in Thanksgiving (1941)

In war-besieged London in September 1940, Harold Laski, a professor at the London School of Economics and a leading Socialist party official, thinker, and writer, penned a letter to Robert H. Jackson, Attorney General of the United States.  Laski knew Jackson through their mutual friend, U.S. Supreme Court justice Felix Frankfurter.  Laski wrote Jackson to introduce another friend, Professor Hersch Lauterpacht of the University of Cambridge:

15.ix.40

My dear Jackson,

I should like to introduce to you my

friend Professor H. Lauterpacht, the Whewell

Professor of International Law at Cambridge.

You well know of his outstanding work in

his own field.  I should like only to add

that there are few people for whom I care so

much.

I think we stand up well to our siege; and

we have complete confidence in the outcome.

Few things will help so much as a third term [for President Franklin D. Roosevelt].

                                    Yours very sincerely,

                                    Harold J. Laski

The Hon. Robert Jackson.

     Attorney-General’s Office.

          Washington. D.C.

Laski wrote his letter not to be mailed, but for Lauterpacht, who was spending Fall 1940 in the U.S., to use when he had an opportunity to introduce himself to Jackson.

That moment arrived at the end of the year.  On December 23rd, Lauterpacht, living in the Bronx, wrote to Jackson in Washington to request a meeting:

            Trinity College,

               Cambridge.

              [crossed out]

                                    5444 Arlington

                                                Avenue

                                    Riverdale on Hudson

                                         New York City

Dear Mr. Attorney-General,

I hope to be in Washington

between January 6-9, prior to my

departure for England.  If you

can spare the time, I should

very much appreciate an oppor-

tunity of calling on you

and paying my respects.

            I enclose a letter of introduction

from Professor Laski.

                                    Yours very truly,

                                    H. Lauterpacht

The Hon. Robert Jackson.

     Attorney-General’s Office.

          Washington. D.C.

Lauterpacht’s letter, with the enclosed vouching letter from Laski, worked.  Jackson wrote back promptly, telling Lauterpacht to contact Jackson’s secretary to schedule the meeting.

Robert Jackson and Hersch Lauterpacht met at the U.S. Department of Justice on January 8, 1941.  They discussed Nazi Germany’s bombing attacks on the United Kingdom, U.S. military assistance to the U.K., and domestic and international law issues.  And obviously they hit it off.

Over the next week, Lauterpacht stayed in downtown Washington and, at Jackson’s request, wrote him a thorough memorandum on international law issues.  It addressed, in twenty-one pages, what Jackson had described in their first meeting as “the philosophy, in international law, of the policy of aiding the [anti-Nazi U.S.] Allies by all means short of war.”  Lauterpacht sent the memorandum to Jackson on January 15th, and then they met the next day to discuss it.

Lauterpacht argued, then and later, that Nazi Germany’s military aggression, on the European continent and against the U.K., violated international law embodied in its own and in many nations’ treaty commitments.  These arguments fit with and advanced Jackson’s own legal thinking.  In the months ahead, Lauterpacht’s input contributed to some of Attorney General Jackson’s and then Justice Jackson’s—he joined the U.S. Supreme Court in July 1941—major public addresses attacking Nazi lawlessness.

And more than four years later, in circumstances that neither Jackson nor Lauterpacht could have envisioned when they first met in Washington, they worked together, in the U.K. and then in Nuremberg in the Allied-occupied former Germany, to hold Nazi leaders accountable for their illegal war-waging.

*          *          *

Justice Jackson and Professor Lauterpacht corresponded during the World War II years.  They also saw each other occasionally, when Lauterpacht was visiting the U.S.

One such occasion was November 19, 1941, seventy-five years ago, when Lauterpacht visited Justice Jackson at the Supreme Court.  Jackson asked Lauterpacht to stay over in Washington on that Wednesday night, and to join Jackson and his wife Irene the next day for Thanksgiving dinner at their home, Hickory Hill, in McLean, Virginia—“It will give Mrs. Jackson and me great pleasure if you will have dinner with us,” Jackson wrote when he communicated this invitation a few days beforehand, as he and Lauterpacht were finalizing their plans.

Alas, and to Lauterpacht’s regret, he could not accept this invitation.

He and Jackson did have later occasions to share meals, and to give thanks, including in Nuremberg.

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This post was emailed to the Jackson List, a private but entirely non-selective email list that reaches many thousands of subscribers around the world. I write to it periodically about Justice Robert H. Jackson, the Supreme Court, Nuremberg and related topics. The Jackson List archive site is http://thejacksonlist.com/.  To subscribe, email me at barrettj@stjohns.edu. Thank you for your interest, and for spreading the word.

A Place on the Raft

Last May, the Federal Reserve Board published a comprehensive Report on the Economic Well-Being of U.S. Households in 2015.  The report, based on extensive survey data, portrays many who financially are doing okay or better, and many who are not.

A highlighted statistic that startles:  46% of adults could not cover a $400 emergency expense without selling something or borrowing some money.  (Hat tip to New York Times reporter Gretchen Morgenson for remembering and writing yesterday how startling these data still are.)

The Fed report sits alongside U.S. Census Bureau data showing that household incomes grew significantly in 2015.

These data are not inconsistent—“doing better” can be a recent, good turn in a life of “still struggling.”

I am pretty sure that many people in the U.S. voted last week for a candidate who as president would, they hoped, improve their circumstances.  And I suspect that those voters—some for Clinton, some for Trump, and some for fringe candidates—add up to a very large number.

I hope that their votes all get counted, and that they win.  In a decent society, the project of all, including government, should be to insure that every person has basic security—a place on the raft.

private-swim-raft-for-your-enjoyment