Author Archives: JQB

To Teach Metalworking (or Anything), or To Write

Anyone who teaches and writes and cares about each pursuit has experienced how they can, and maybe always do, compete with each other.

I learned from the New York Times obituary of Irish playwright Tom Murphy, who died this week, that he had this experience in his early years.  In his hometown, Tuam, in County Galway, Ireland, he worked in a sugar factory.  After studying metalworking, he taught it for a time.  But then he quit.  His explanation:  “I found that this thing I had about writing interfered with that.”

To Poland

I’m writing from Krakow. Within many living memories, such as those that go back to the 1930s, or my own that includes decades of Cold War and “Warsaw Pact,” Poland was a place far away, far from mind, far from connection, far from relevance.  Today it’s pretty close, in each of those ways. I was part of a group that left JFK airport last night around 10:30, landed today in Warsaw, made (barely) our short flight to Krakow, took a bus into this gorgeous city, and reached hotel rooms in less than twelve hours total.

I’m here for the International March of the Living tomorrow, which is Yom Hashoah (Holocaust Remembrance Day), and for related events and learning. And all of the topics that are contained in Poland-history-War-Holocaust-remembrance are properly on many minds, connected to our lives, relevant to our times, and proximate.

Our sendoff event last night in New York was dinner with speakers who made these points, and who stand for them. Elly Berkovits Gross, a Holocaust survivor, told us of the miracles that saved her. Kenneth Jacobson, Deputy National Director of the Anti-Defamation League, spoke analytically of anti-Semitism, its history, and some of its current manifestations. Raymond Fishler, born near Krakow and also a Holocaust survivor, shared his story of loss, life and hope.

You can learn from each of these educators by clicking the hotlinks above, and from their books, films, and other online materials. They, and all that they have to teach, are as close by as, well, Poland.

To Poland, to Auschwitz, for the International March of the Living

I will be in Poland later this week.

On Thursday, I will participate in the International March of the Living. It is a Holocaust education and commemoration program that, each year, organizes and assembles over 10,000 people in Poland. They include Holocaust survivors, younger adults, and many students. Many are Jews and many are non-Jews. The International March of the Living occurs at Auschwitz on Yom Hashoah (Holocaust Remembrance Day). Marchers cover about two kilometers, walking from Auschwitz I, site of the original Nazi prison barracks and murder camp during World War II, to the much larger Auschwitz II (Birkenau) Nazi slave labor prison camp and extermination site. The March concludes in Birkenau with a ceremony of remembrance.

On Friday, I will attend and speak at a related conference, primarily for U.S. lawyers and judges, that will be held in Krakow.

I have seen Auschwitz on two previous trips—one to participate in the International March of the Living in 2016. I know from those experiences, including sights and conversations, that it all is something that I struggle, as every person does or should, to comprehend. I also know that Auschwitz and other Nazi-related sites are things that students and others ask me, often, to describe.

My words can’t meet this challenge. But I do plan this week to blog some things here, and also to tweet (@JohnQBarrett). If this is of interest, look for my writing in those places.

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.

Meeting Your Nazi Neighbor

Yesterday’s New York Times included, prominently, this quite odd and disturbing, and now quite controversial, article on Tony Hovater.  He is a 27-year-old white male U.S. citizen who resides, with his wife, near Dayton, OH.  He longs for centralized power that he calls “fascism.”  He identifies himself as a “white nationalist.”  He studies, admires, and minimizes the evil of Adolf Hitler and the Third Reich.  He, Mr. Hovater, is a disgusting bigot, an anti-Semite.  I’m sparing in name-calling, but it seems accurate to call him an American Nazi.

After reading and then rereading the article, and then reading some of the many good and varied comments on it, I’m glad that it exists.  It correctly appalls many, while educating them on who this man is, as an individual and as a type—inside vote totals and protest mobs are individuals, and it’s good to see one so closely.  (Here, reported in The Atlantic, is a long account of another, Andrew Anglin, who is much more horrifying because of the violence he threatens.)  And it’s good—well, not “good,” of course, but informative—to read and reflect on how Mr. Hovater feels empowered by President Trump.  The President of course (I wish), plus anyone who supports him even slightly, should read about Mr. Hovater and think more about the dangers of lighting fuses.

If Mr. Hovater worked for me, I’d probably fire him.

If he lived near me, I’d be a very concerned neighbor—I’d watch for bad behavior and, seeing anything, err on the side of calling the cops.  They serve the law and the general public—they’re on our side.

I hope that Mr. Hovater’s wife wakes up—I hope that she stays safe, gets interested in politics, gets smarter, and leaves him.

And I hope that Mr. Hovater gets interested to get smarter.  He needs teaching.  Some of it can come right from some of the books on Nazism and World War II that he owns and permitted the NYT  to photograph.  If he’s game to start studying and thinking critically and thus, objectively, better, I’d take him on as a student.  I hope that other teachers would too.  But I’d urge anyone to do this only very carefully—Hovater would have to be game, which seems very unlikely, and he would have to get to work and not just spout what the NYT story reports that he thinks currently.  Otherwise it wouldn’t be worth any serious teacher’s time.

The odds are that he will continue as he is, thinking and reading and speaking evil ideas.

That leaves me sad, and alarmed, and glad to live in a country with the constitutional fiber to protect all expression, even his.

Biographer Goggles

Janet Maslin, in her New York Times review last week of Ron Chernow’s new biography of Ulysses S. Grant, praises Chernow for “manag[ing] to put on Grant goggles and deal primarily with this one soldier’s role in the military, this one leader’s role in the Civil War.”

I find this helpful.  Without such goggles—or, pick another metaphor, without binoculars that can be trained on one figure, or without a magnifying glass that can enlarge details of a key face in a crowd—biographical writing can too easily become general history.  That context is necessary, of course.  But not too much—the biographer’s point is to see, to point to, to communicate, the life of a person.

Back to my goggles.

President Reagan Against Political Gerrymandering

I received yesterday the new memoir by Harold Burson, The Business of Persuasion.  Now in his tenth decade, Harold is a giant in the field of public relations, co-founder of the global firm Burson-Marsteller, formerly an Armed Forces Radio Network reporter during 1945-46 at the international Nuremberg trial of the principal Nazi war criminals, a truly wise man, and, I’m very lucky to say, my friend.

I have only begun to read the book. So far it’s smooth and smart, filled with great stories and clear, profound life-lessons.  Harold calls these his “Takeaways,” and he very helpfully itemizes these keys to success at the end of each chapter.

When I finish reading Harold’s book—which will be soon, because, as he writes in a first chapter Takeway, daily reading of good material is both a pleasure and wise—I plan to write more about it.

I’m writing now about a Chapter One nugget because it’s striking and timely.

As Harold Burson recounts, he was an important adviser and friend to President Ronald Reagan, especially in his post-presidency years.

October 10, 1984:  Hugh Downs, Harold Burson, Jack Anderson, and President Reagan, at the White House launch of the Young Astronauts program

In 1989, Harold advised President Reagan, newly-retired and beginning to give talks to various audiences, to include in his speeches some bipartisan messages.

Reagan liked the advice.  He then described two issues that had concerned him for a long time.

One was the Twenty-Second Amendment to the U.S. Constitution.  Since the 1950s, it has limited presidents to two terms.  Reagan, having been there, thought it was terrible that the Constitution makes every reelected president a lame duck.  He preferred to trust the possibility of third terms to presidents’ sound personal decision making, and also to voters.  He noted that he was glad that President Franklin Roosevelt had been able to run for a third term in 1940.  (Reagan voted for him then, as he had in 1932 and 1936 and would again in 1944—F.D.R. was one of Reagan’s great heroes.)

The second concern that President Reagan voiced to Harold Burson was about the politicized methods that State legislative majorities use to draw the boundaries of Congressional districts.  Reagan said, in substance—Burson is careful to note that he puts in quotation marks the substance, reconstructed from documents and memory, of what a person said, not his verbatim words—that

“[r]ather than leaving it to the politics of whichever party controls a state’s legislature, each state should have an independent nonpartisan commission whose sole responsibility is redistricting based on census results.”  [Reagan] condemned gerrymandering; there should be geographic integrity in setting the boundaries of congressional districts. (p. 22)

Harold Burson agreed with the logic of President Reagan’s bipartisan—which is to say, really, his nonpartisan—position, and obviously I do too.

The U.S. Supreme Court currently is deciding the constitutionality of partisan gerrymandering in state legislative districts.  The case, Gill v. Whitford, was argued last week, and the Court’s decision is expected in coming months.  For information on the case, including briefs and a link to oral argument audio, visit this SCOTUSblog page:

Gill v. Whitford

The issue that concerned President Reagan, partisan gerrymandering of Congressional districts, is formally different from Gill v. Whitford’s focus on partisan gerrymandering of state legislative districts.  But the issues raise substantively the same question—the district line-drawers are one and the same state legislators, holding majority power, legislating boundaries so as to maximize their party’s advantage beyond its candidates’ abilities to win votes at the polls.

As the Supreme Court considers Gill v. Whitford, I hope that it will heed President Reagan’s wisdom—if it’s not too late to “file” another “amicus brief” in the case, maybe this can count as his.

I’m grateful to Harold Burson for bringing it to our attention.

And you should buy and read his book!

Iran-Contra Criminal Charges Pertaining to Iran and the Contras

On August 8th, former White House Counsel and former U.S. Ambassador C. Boyden Gray wrote, in a Wall Street Journal op-ed piece, that in the Iran-Contra criminal investigation, “no one was convicted or even indicted for any action pertaining to Iran or the Contras.”

This statement is incorrect, and on August 10th I sent the WSJ a letter spelling that out.

Because the Journal hasn’t published my letter, and because I’m pro-facts, I post it here:

Editor, The Wall Street Journal

1211 Avenue of the Americas

New York, NY  10036

To the Editor:

Former White House Counsel C. Boyden Gray has misremembered the facts of Iran-Contra, on which we each worked, sometimes as counterparts.

Mr. Gray wrote (“Mueller Can Avoid an Iran-Contra Repeat,” Aug. 8) that “no one was convicted or even indicted for any action pertaining to Iran or the Contras.”

In fact, a federal grand jury charged former National Security Adviser John Poindexter, his aide Lt. Col. Oliver North, and two others with multiple felonies pertaining to both Iran and the Contras.  Count One in that indictment charged that they had engaged in a conspiracy to defraud the United States in three respects: (1) by deceitfully supporting the Contra war in Nicaragua in defiance of congressional controls; (2) by using U.S. arms sales to Iran to raise funds for Poindexter and North, rather than the U.S. Government, to spend; and (3) by pursuing unauthorized operations in Iran that endangered U.S. efforts to rescue Americans held hostage in Lebanon.  Count Two charged that the defendants had stolen U.S. government property (Iran arms sales proceeds).  Count Three charged that they had committed wire fraud in their transmissions of those proceeds.

Although the trial judge upheld the legal validity of the first two charges (dismissing the third as duplicative), the prosecutor, Independent Counsel Lawrence Walsh, for whom I worked, ultimately agreed to dismiss them after Presidents Reagan and George H.W. Bush, whom Mr. Gray served as Counsel, would not declassify information that the judge had ruled the defendants were entitled to use in their defense.

Sincerely,

John Q. Barrett

Professor of Law, St. John’s University

Associate Counsel, Office of Independent Counsel Lawrence E. Walsh, 1988-1993

 

Lecture, “Justice Jackson and His Brethren”

 

Here’s video of the lecture that I gave at Chautauqua Institution on July 28, 2017.

This was the final lecture in Chautauqua’s week of lectures on the general theme, “The Supreme Court: At a Tipping Point?” Other lecturers during the week were Linda Greenhouse, Annette Gordon-Reed, Peter Onuf, Jeffrey Rosen, Akhil Reed Amar, Rev. Eugene Robinson, and Theodore B. Olson.

For the Chautauquan Daily’s lecture preview article, click here.

And here’s video of the my Q&A with audience members following the lecture:

 

 

A Professional Responsibility Exam Question?

Don (“D”) serves in the District of Columbia as Counsel to the President of the United States.  On January 26, Sally (“S”), the senior federal law enforcement official, contacted D and requested a meeting.  He agreed and they met privately.

In the meeting, S explained to D that:

  • a senior adviser to the President has misled the Vice President of the U.S., and perhaps other government officials as well, about the substance of the adviser’s private communications with a foreign government official;
  • the foreign government is aware of this misleading through its public and private sources of information; and
  • this situation makes the senior adviser extremely vulnerable to influence by the foreign government.

In follow up meetings, S showed D the substantive information underlying her concerns.  D became convinced that this was a serious situation that the President needed to address, probably by dismissing the senior adviser.

During the next few weeks, D discussed this situation a number of times with the President and other officials.  (We do not know what the President responded, including whether he directed D to take any subsequent action.)

On February 17, D arranged for a local reporter to learn that, back in January, S had warned the White House through D that the senior adviser had misled the Vice President and perhaps others, and that this made him subject to influence by the foreign government.  The next day, the reporter’s newspaper published this information.  Public outcry ensued, leading the President to dismiss the senior adviser.

Assume that the foregoing comes to light, and that appropriate authorities are now working to determine if D should be subjected to professional discipline for his conduct.

The question:  Please discuss whether D should be disciplined under D.C. Rule of Professional Conduct 1.6.  Please include assessments based on various assumptions, which you should state explicitly, about what the President decided, ordered, or authorized at various times, including with regard to the D-arranged transmission of information to the reporter.

Extra credit:  If times permits, please also discuss whether, on any set of assumed facts, D and/or whoever transmitted the information to the reporter deserves recognition and praise as a patriot.