Monthly Archives: February 2018

Remembering A. Leon Higginbotham, Jr. (1928-1998)

Today, February 25, 2018, marks the 90th anniversary of the birth of the late A. Leon Higginbotham, Jr., a lawyer who became a leading United States judge and was, in all he did in a life of great achievements, an African-American pioneer who opened doors for many.  And he was “my” Judge.  So I’m glad to have this occasion to share memories of him.

Leon, born in Trenton, New Jersey, was the only child of a father who worked as a laborer and mother who worked as a domestic.  His parents worked multiple jobs, as he also did, to get him an excellent education.  He soared academically at Antioch College and Yale Law School.

In the early 1950s, Leon Higginbotham began his legal career in Philadelphia.  Despite strong credentials, he found that the doors of each “downtown” (which meant white) law firm were closed to him.  Undaunted, he joined the leading “black” law firm and became a very successful litigator.  He also became counsel to the NAACP and was active in Democratic politics.

In 1961, President Kennedy appointed Higginbotham to serve on the Federal Trade Commission.  Although racist opposition by southern Senators temporarily thwarted the President’s 1963 effort to appoint Higginbotham to the federal bench, President Johnson was successful in 1964 following Kennedy’s death.

Judge Higginbotham served as a U.S District Court Judge from 1964 until 1977.  President Carter then appointed Higginbotham to the U.S. Court of Appeals for the Third Circuit, where he served until he retired from judging in 1993.

On the bench, Judge Higginbotham presided over trials and decided appeals that involved almost every issue, neighborhood, employer, law, program, and government office in the Third Circuit (Delaware, New Jersey, Pennsylvania, and the Virgin Islands).  He also, through hard work, eloquent words, and a notable commitment to justice, became a national legal figure.  Perhaps only the fact that no Democratic President had the opportunity to appoint a Supreme Court Justice during most of Higginbotham’s judicial career kept him from joining the highest bench.

But Judge Higginbotham’s judicial work only begins to tell the story of who he was and what he did with his time and talents.  He was a self-taught historian whose books and articles described the tragic, malevolent roles that law and lawyers played in erecting and perpetuating the American institutions of slavery and racial discrimination.

Judge Higginbotham was an energetic teacher and lecturer to generations of students at the University of Pennsylvania and other colleges and law schools throughout the country.  (A friend reminded me recently that at Penn Law School, Judge Higginbotham’s portrait hangs on one side of an atrium with a curving staircase on each side; a student tradition is to walk only up the Higginbotham side, and to descend the other, so as never to turn one’s back on “the Judge.”)

Judge Higginbotham, as professor, taught difficult material brilliantly.  He also showed his students, by his own profound example, that there is always more to study and understand about the most fundamental topics of history, morality and law.

Judge Higginbotham also became employer, adviser and hands-on mentor to a thousand and more persons.  Each mattered enormously to him—he saw these friends and students as a core part of his work.  Higginbotham gave people opportunities, boosting them up so that they could make the most of these chances and then savoring their successes as if he were merely a proud spectator.

The Higginbotham life lesson is that he truly lived the core values—equality, opportunity, integration, social justice, harmony—that defined his judging, writing and teaching. I think these were parts of his credo:  Learn about real issues.  Expend enormous energy on work that matters most.  First see, and then help, the people who are excluded from the common dreams and opportunities of our society.  And always, always teach.

I had the great fortune, as a young lawyer, to work as one of Judge Higginbotham’s law clerks for almost two years.  Ever since, and every day, I think of him.  I see—it is my habit to look at—his photos on my office wall.  And as a teacher, I try to continue a small part of his enormous work and legacy, and to make him proud.

Jackson List: Birthday Reading (1938)

Today marks the 126th anniversary of Robert Houghwout Jackson’s 1892 birth, in his family’s farmhouse in Spring Creek Township, Warren County, Pennsylvania.

It seems that on many a February 13, Robert Jackson did nothing special, and nothing special happened to him.

Jackson did have an unusual experience on this date in 1938—eighty years ago today.  He then was Assistant Attorney General of the United States, heading the Antitrust Division.  He also had been nominated by President Franklin D. Roosevelt to become the Solicitor General of the United States, succeeding Stanley Reed who had been appointed to the U.S. Supreme Court.  Jackson’s Senate confirmation hearing had begun in late January, and on February 13th he was in the midst of testifying, ultimately over three days, in a hearing that was thorough, very substantive, and sometimes contentious.  (To boil it down, some Senators were concerned that Jackson was a radical threat to American constitutional law and capitalist freedom and, related, that he was rising to become a leading force in the Democratic Party and, perhaps, presidential material in 1940, when it was expected that F.D.R. would not seek a third term.)  Jackson also had, in the previous week, been part of arguing before the Supreme Court in defense of the constitutionality of the Public Utility Holding Company Act, a major New Deal law.

On Sunday, February 13, 1938, his 46th birthday, Robert Jackson was the subject of a New York Times Sunday Magazine profile article, “Jackson Sets Forth His Political Philosophy.”  The article is online here, readable in full text by Times subscribers (but, alas, behind a paywall for non-subscribers).

The writer, Felix J. Belair, Jr., was The Times’s chief White House correspondent.  Belair seems to have interviewed Jackson for the article—it contains extensive quotations from him, plus two photographs.

I regard the article as strong personal profile journalism.  It is distinctly pro-Jackson, published at a moment when he was a well-publicized, controversial nominee in the middle of a Senate confirmation battle.  It also is an article that contains some of what we call political spin, and some dubious stories.  The article reports:

  • Jackson has no law degree;
  • He has many friends but few intimates;
  • He once made Justice James C. McReynolds, not generally a jovial figure on the Supreme Court bench, laugh during an oral argument;
  • Jackson defends FDR as working to make the private enterprise system work;
  • Jackson believes that people will not accept waves of unemployment; they must be fed or they will turn to a new political system;
  • His 1934-35 work at the Treasury Department, including his study of wealth concentration, was a basis for the 1935 tax reform law;
  • He is not opposed to productive bigness in companies, just to holding companies that are put together for the purpose of speculating in corporate securities;
  • He believes the U.S. needs a high wage industrial economy;
  • He thinks about the future—one quotation looks ahead to “1960” (when Jackson would have turned 68, but which he did not live to see—he died in 1954);
  • He testified in defense of FDR’s 1937 “Court-packing” proposal;
  • His record in major constitutional arguments before the Supreme Court is 4-4;
  • He is a father, a horseman, and a businessman;
  • He attended Albany Law School but did not receive a degree.  (This is true, but Belair did not report that this was only because the school regarded Jackson, age 20 when he completed all requirements, as too young to receive a degree.  The article also incorrectly states that Jackson did two years of law school course work in one year—a myth that follows him still.  And the article does not mention that in addition to attending Albany Law School, Jackson trained for the bar by apprenticing for two years in a law office.);
  • Jackson’s law practice started in (conservative) Jamestown, New York, where he defended radicals charged with crimes growing out of a street railway strike and, surprisingly, won;
  • He subsequently became counsel to businesses (including in Buffalo, New York, and elsewhere, which Belair did not mention);
  • Jackson loves horses:  they were central to his farm boyhood in Spring Creek; he owns a horse farm in Jamestown; he lives with his wife Irene, daughter Mary, and horses on a large property in Maryland;
  • He works late and rides early, often with Mary, sometimes trying out on her, or on his horse (more amenable?), speeches that he is preparing;
  • He and Irene also have a son, William (then a Yale College freshman).  (Belair reported that Jackson hoped Bill would become a lawyer, but in fact, at least by the time Bill was finishing college, Jackson was open to Bill pursuing whatever career path he wished—and he did then go to law school and became a very accomplished lawyer.);
  • Jackson likes to talk about his ancestors, including his great-grandfather Elijah Jackson, the first white settler of Spring Creek;
  • His middle name, Houghwout, is a family name, from ancestors who were early Dutch settlers New Amsterdam;
  • Jackson’s family politics:  Andrew Jackson Democrats;
  • He never sought political office.  (That is largely true, unless one counts, unreported here, his election in young adulthood to country political organization office.);
  • He was appointed corporation counsel in Jamestown by a Republican mayor (which is true—Mayor Sam Carlson was a smart, liberal Republican);
  • Jackson came to Washington at the personal request of FDR.  (This might be an exaggeration of Roosevelt’s personal role in Jackson’s recruitment to the New Deal.);
  • Jackson offers blunt criticism of the bar (the legal profession), including for its conservatism and opposition to government reform;
  • He has critics and enemies but also many friends and admirers;
  • He has been mentioned in the past for numerous offices, including the Supreme Court, the U.S. Senate, and the Governorship of New York;
  • He has no idea what future will bring—maybe just a return to practicing law in Jamestown.

I assume that Jackson, on that Sunday morning, got a copy of The Times and read Belair’s profile piece.  I bet that Jackson mostly liked it.  I bet more that he didn’t spend a lot of time on it, and that if the weather was good enough he spent more time that day on horseback.

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

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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.