Robert B. von Mehren (1922-2016)

Robert Brandt von Mehren, one of New York’s and the nation’s leading lawyers, especially in the field of arbitration, died on May 5th at age 93.  He was a retired partner in the Debevoise & Plimpton law firm, a Manhattan and Martha’s Vineyard resident, and a man of brilliance and, I found, charm and kindness.

In recent years, I spoke and emailed a few times with Mr. von Mehren as I was researching and writing an essay, “No College, No Prior Clerkship,” on James M. Marsh, Justice Robert H. Jackson’s 1947-1949 law clerk at the U.S. Supreme Court.  (Click here for an abstract of the essay, and click here to buy the new book, Of Courtiers and Kings: More Stories of Supreme Court Law Clerks and Their Justices, in which my essay appears along with many strong pieces and a range of fascinating material.)

I contacted Mr. von Mehren because he was a cameo player in the process by which Justice Jackson hired Jim Marsh.

In 1946, von Mehren was clerking for Judge Learned Hand at the United States Court of Appeals for the Second Circuit.  Prior to that, as a Harvard Law School student, von Mehren compiled a tremendous academic record, including serving as president of the Harvard Law Review.  Unbeknownst to von Mehren, someone—probably Jackson’s incumbent law clerk, Murray Gartner, himself a former Harvard Law Review president—had flagged von Mehren for Jackson’s consideration to be Gartner’s successor as Jackson’s law clerk.  Jackson was (properly) very impressed with von Mehren’s credentials, but in the end Jackson ranked von Mehren second to Marsh and hired him.

This all was news, and interesting, to Mr. von Mehren.  He told me that he never applied to or interviewed with Jackson.

It all worked out.  Justice Stanley Reed hired von Mehren to be his law clerk in that Supreme Court year (October Term 1947).  As Reed’s clerk, von Mehren got to see Justice Jackson and all of the Justices of that era (Vinson, Black, Frankfurter, Douglas, Murphy, Rutledge and Burton were the others) in action.  And von Mehren got to know and like Jackson’s clerk, Jim Marsh.

Justice Reed law clerk Robert von Mehren O.T. 1947

Von Mehren during his clerkship

with Justice Reed

Von Mehren’s path was a notable rise from remote beginnings.  He and his identical twin brother Arthur were born in Albert Lea, a city in southern Minnesota, in August 1922.  The boys grew up fluent in English, of course, and in Danish and Norwegian (hat tip:  Daniel R. Coquillette).  (Ninety-two years later, I could hear a trace of that—Robert pronounced his name “fun-MAY-won” in a soft European accent).

In high school, Robert won a scholarship to Yale University, from which he graduated summa cum laude.  At Harvard Law School, he graduated magna cum laude.  After clerking for the great Judge Hand and for the very capable Justice Reed, he became associated with Debevoise, his professional home for most of his career.  (Luckily, because it’s more and worthy information, his law firm webpage is still “up”—click here.)

(And Arthur?  He attended Harvard University and then, with Robert, Harvard Law School.  He also earned a Harvard Ph.D. in Government, joined the Harvard Law School faculty, and became one of its giants—click here for one memorial and here for one obituary following his death in 2006.)

For more on Robert von Mehren’s accomplished and full life, click here and here.

May he rest in peace.

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Jackson List: March of the Living’s Nuremberg symposium, and the March

March of the Living, an annual international educational program, will host two notable events in Poland this week.

On Wednesday, May 4th, Jagiellonian University in Krakow will be the site of an international symposium, “The Double Entendre of Nuremberg:  The Nuremberg of Hate & the Nuremberg of Justice.”

  • This symposium will consider two “Nuremberg” events of historical, contemporary, and permanent significance:  Nazi Germany’s imposition, eighty years ago, of inhumane, vicious, anti-Semitic Nuremberg  Laws, and the international Nuremberg trial, during 1945-1946, seventy years ago, of the principal Nazi war criminals.
  • The symposium, presented by March of the Living International, the Raoul Wallenberg Centre for Human Rights, and Jagiellonian University and co-chaired by Professors Irwin Cotler (Canada) and Alan Dershowitz (United States), will be a full-day program of expert speakers from around the world.
  • For full symposium program information, click here.

On Thursday, May 5th, which will be Holocaust Memorial Day (Yom HaShoah), thousands will march silently from Auschwitz to Birkenau, the largest Nazi concentration, slave labor, and extermination camp complex of World War II.  For more information on the March, click here.

I will be participating in and learning from each of these important events.  And I thank you for your interest.

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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: Albany Wedding (1916)

In summer 1911, Robert H. Jackson was a nineteen-year-old high school graduate who was working to become a lawyer.  He had spent the past year as an apprentice to two Jamestown, New York, lawyers (one of whom was Jackson’s distant relative by his widowed grandmother’s late in life remarriage).

To complement that preparation, Jackson decided to spend the coming academic year as a student at Albany Law School.  It was a strong, independent, long-established law school with a two-year academic program.  It decided, in admitting Jackson, to give him credit for his year as a law apprentice—in effect, Albany admitted Jackson to its “senior” class as a transfer student.

At Albany Law School, Robert Jackson was a serious, very successful student.  He also had a social life.  A classmate introduced his cousin, Irene Alice Gerhardt of Kingston, New York, to Jackson.  She, a year-plus older than he, was a business (secretarial) school graduate who worked as a stenographer in New York State’s excise department.  She was a smart and quick witted, literary, athletic, and strikingly beautiful—and Robert Jackson fell in love.  They dated, including on ice skates at Albany’s Washington Park.  They attended dances.  She was Jackson’s date at Albany Law School’s graduation in June 1912.

Following that academic year, Jackson returned to western New York while Miss Gerhardt remained in Albany.  He resumed apprenticing for the Jamestown lawyers, who let him take on increasing responsibilities.  In 1913, when he had reached the required age of twenty-one, Jackson took and passed New York’s bar examination and was admitted to law practice.  He then commenced solo practice in Jamestown.  He struggled at first but soon attracted local notice and paying clients, then higher profile clients and cases, growing regional renown, and, in time, a variety of offers to practice with others.

As Jackson established himself professionally, he also continued to court Irene Gerhardt on the other side of New York State.  They wrote many letters.  Each visited the other occasionally, with chaperones present of course—Irene came to meet Jackson’s family in Frewsburg, New York, his boyhood home south of Jamestown, for example, and at least once he spent the Christmas holidays with Irene and her mother Margaret Gerhardt, a widow who had moved to Albany.

Mrs. Gerhardt, at first concerned that Jackson was “too skinny,” apparently came to approve of him.  As 1916 began, she announced her daughter Irene’s engagement to Mr. Jackson, and that their wedding would take place in the springtime.

RHJ & IGJ in Spring Creek (front)

On Monday, April 24, 1916—one hundred years ago today, which then was the day following Easter Sunday—Irene Gerhardt (age 25) and Robert Jackson (age 24) were married in St. Peter’s Protestant Episcopal Church, a grand edifice at State and Lodge Streets in Albany.  The Reverend Dr. Charles C. Harriman, rector of the church, officiated.  The ceremony, held at noontime, was a small one.  Frank H. Mott, the Jamestown lawyer to whom Jackson was distantly related and for whom he apprenticed, was his protégé’s best man (and Mott gave the bride, as a wedding gift, a book on how to keep house.)  Irene wore a blue traveling suit and hat and carried flowers.  Her sister Elizabeth (Betty) was her bridesmaid.

Following the wedding, Mrs. Gerhardt hosted a luncheon at her Albany home for the newlyweds.

Later that afternoon, the Jacksons left on a honeymoon trip to New York City and points south, including Washington, D.C.

In June 1916, they became Jamestown residents.  They soon moved to Buffalo, where Robert practiced law during 1917 and 1918.  They returned to Jamestown that fall, when Irene was expecting their first child (their son William Eldred Jackson).  Soon he had a sister (Mary Margaret Jackson).

The Jacksons lived in Jamestown fulltime for about fifteen more years.  During those years, they returned to Albany regularly to visit Irene’s mother.

And in 1934, of course, they returned to Washington, when President Roosevelt nominated and the Senate confirmed Robert H. Jackson’s first (of five) appointments to high federal office.

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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: The Awful News (April 12, 1945)

This post, tweaked and with some citation footnotes added, now is on the Jackson List archive site in “book look” PDF file form.  It includes a great photograph of President F.D.R. taking the oath of office, from Chief Justice Hughes, for the first time, on March 4, 1933.

Jackson List: President Eisenhower & Justice Jackson’s Funeral (1954)

This post, tweaked and with some citation footnotes added, now is on the Jackson List archive site in “book look” PDF file form.

Jackson List: Hugo L. Black, Born February 27, 1886

This post, including a photograph of Robert Jackson and Senator Hugo Black in the 1930s, now is on the Jackson List archive site in “book look” PDF file form.

Jackson List: A Great Jurist Gone, A Great Seat Now Sadly Empty

This post, including photographs of Justice Jackson’s and Justice Scalia’s seats on the Supreme Court bench, shrouded in black following their respective deaths in 1954 and 2016, now is on the Jackson List archive site in “book look” PDF file form.

President Bush’s 1990 Appointment of Justice David Souter

A blog post by Anton Piatigorsky caught my eye.  It repeats, in part, the fairly widespread belief that when Justice William J. Brennan, a leading, long-serving liberal justice, retired from the Supreme Court in 1990, President George H.W. Bush looked to replace Brennan with a stealth arch-conservative.  Former Governor John Sununu, from New Hampshire and then Bush’s White House chief of staff, has said as much.  And, the belief continues, the eventual Bush nominee, then-Judge David Souter, also of New Hampshire, turned out to be a huge disappointment if not a traitor to how he presented himself to the president and why he (Souter) was nominated.

I don’t think that holds up.  For example, I don’t think that President Bush ever said that that’s what he sought in Souter.  I also don’t think that there is evidence that that is the vetting and assessment of Souter that occurred at the president’s level.

What Bush was seeking was, by all accounts, a problem-free, no paper trail, quality, Republican-type nominee—who, yes, as a replacement for Justice Brennan, almost by definition had the potential to shift the Supreme Court rightward.

Tinsley Yarborough describes in his biography of Justice Souter (click here) how Sen. Warren Rudman of New Hampshire, Souter’s old boss and close friend and also a friend to Sununu and President Bush, was Souter’s principal recommender and really the cause of his nomination.  Sen. Rudman was a Republican but not of the slash/burn type; in fact, in many instances he was quite moderate and non-partisan.

Bush Rudman Souter

As Yarborough recounts, Rudman suggested the Souter nomination to Sununu and Bush and it all rolled quickly from there, including that no one ever vetted Souter for or had a basis to determine that he would be the determined anti-Brennan.  Based on the historical record (such as we can see it), while many on the farther right were disappointed in the jurist that Justice Souter turned out to be, I’m skeptical that President Bush is or that the late Senator Rudman was in that group.  And I’m very skeptical that they would have a basis, given how Souter was vetted and picked, to feel that way.

In picking Justice Souter, President Bush went for huge smarts, relevant experience and no paper trail.  He wanted a problem-free nominee and he got him.  Bush never asked litmus test questions—which Souter would have refused to answer anyway.

Please get her to the polls!

Here is a CNN report on Clarina (“Mimi”) Hudon of Manchester, New Hampshire.  Born in 1905, she now is age 110.  She is believed to be the oldest person in the state.

If Mrs. Hudon had been born a little earlier, she would not have been able to vote when she reached adulthood. But when she was fifteen years old, the 19th Amendment to the U.S. Constitution, giving women the vote, was ratified.  In 1928, she voted in her first presidential election, casting her vote for the Democrat, New York governor Al Smith.

Mrs. Hudon knows of Hillary Clinton.  And now she’s heard of Bernie Sanders.

Some New Hampshire official should make it possible for her to vote next Tuesday, for one of them or for whomever.

What Did/Would Chief Justice Rehnquist Think of Ted Cruz?

Ted Cruz, after great success as a Harvard Law School student, became a law clerk to two federal judges.  During 1995-1996, Cruz was a clerk to Judge J. Michael Luttig of the United States Court of Appeals for the Fourth Circuit.  During 1996-1997, Cruz clerked at the U.S. Supreme Court for the Chief Justice, William H. Rehnquist.

rehnquisttedcruz

It’s of course Ouija Board stuff to wonder what Chief Justice Rehnquist would think today about Senator Cruz as he runs for president.  Rehnquist died in September 2005, when Cruz was the appointed Solicitor General of Texas.  He argued cases regularly, skillfully before the Rehnquist Court.  But I think that no one then was imagining Ted Cruz as a serious presidential candidate, or at least not the one that he is now in his speeches, debates and issue positions.

As a starting point, what did Chief Justice Rehnquist think about Ted Cruz as a person, in his clerkship year and thereafter?

Some might have direct knowledge, but that has not been shared.

Some indications might exist on paper or other media, but they have not surfaced.

Some who knew Rehnquist well could venture their educated guesses, but I don’t know that any has.

I knew Chief Justice Rehnquist only a little bit.  I interviewed and interacted with the Chief Justice a couple of times in 2003, when he generously met with me to discuss Justice Robert H. Jackson, whom Rehnquist had served as a Supreme Court law clerk during 1952-1953.

My guess is that the Chief Justice Rehnquist I met would not have thought well of the Ted Cruz now running for president.  Rehnquist in 2003 was too many things that Cruz seems not to be.  Rehnquist was mellow, relaxed and not judgmental.  He was reflective, including about himself as a law clerk and later.  He had some strong views, of course, but he laughed at extreme partisanship and made fun people who demonized others.  He was kindly.

I suspect that Ted Cruz knows that his candidate persona today is not the late-life Rehnquist type (and maybe that he was not a beloved Rehnquist law clerk).  The evidence is Cruz’s understanding of the Chief he does not resemble—Rehnquist was, Cruz wrote in his memoir last year (click here for an excerpt on his Rehnquist clerkship), “very much a Midwesterner.  He was polite, low-key and modest.”

Chief Justice Rehnquist loved to make small bets, including on politics.  I bet that Rehnquist wouldn’t hesitate to vote against Ted Cruz in a 2016 Republican primary.  I think that Rehnquist would agonize a bit about Jeb Bush, and then he’d vote for John Kasich.