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Chapter One

Pick Your Heroes Carefully

Lawyers tend to be hero worshippers. Perhaps because we often work on an ethically ambiguous terrain, we need to create larger-than-life role models to look up to. We airbrush the warts of our heroes and turn them into saints who could do no wrong. Eventually, we learn the truth and we become disappointed, if not disillusioned. I know, since I have been through the process on several occasions.

    My own legal heroes included Clarence Darrow, Oliver Wendell Holmes, Louis Brandeis, Felix Frankfurter, Hugo Black, William O. Douglas, Thurgood Marshall and William Brennan — as well as the two judges for whom I clerked, David Bazelon and Arthur Goldberg. They also included several of my law professors at Yale and older colleagues at Harvard. I wanted to be like these giants of the law. I grew up in a community and family with few judges or lawyers. I vividly remember asking my immigrant grandmother to introduce me to her friend Judge Berenkoff. She asked me why I wanted to meet Judge Berenkoff. I told her because he is a judge. Grandma laughed and told me that Berenkoff was a butcher. "Then why do you always refer to him as judge?" I asked. "Because that's his name," Grandma said. "Judge — G-E-O-R-G-E," she said, spelling out his first name with her thick Yiddish accent. "Judge" Berenkoff was about as close as I would get to a real judge in my old Brooklyn neighborhood. So, I searched for role models and found them among these judges, practicing lawyers and law professors — some living and some dead.

    I read everything I could about my dead heroes. When I was a student, legal biography was generally hagiography. I grew up in an age when most public figures were written about with praise. In my day, Clarence Darrow was beatified in Attorney for the Damned. Oliver Wendell Holmes was glorified in Yankee from Olympus. Thomas More was the hero of the play and film A Man for All Seasons.

    I'll never forget the day I saw the great actor Paul Muni portray the great lawyer Clarence Darrow on Broadway in the play Inherit the Wind. As I watched "Darrow" (he was called "Drummond") cross-examine "William Jennings Bryant" (he was called "Brady"), I knew precisely what kind of a lawyer I wanted to, and had to, become. I'll also never forget the day, many years later when I first learned that Darrow had almost certainly bribed witnesses and jurors in order to secure acquittals or hung juries in criminal cases. I was devastated. My hero not only had clay feet, his entire structure crumbled before me. I had been asked to write a review of a new book on Darrow by Geoffrey Cowan. The author, who was generally sympathetic to his subject, made an overwhelming case that in the interest of leveling the playing field against the large corporations that pressed for the conviction of his radical, labor union clients, Darrow had to pay the bribes. I was not persuaded. Whatever Darrow's motives, the convincing evidence that he bribed jurors forever disqualifies Darrow from being a role model for lawyers. There is simply no justification for corrupting the legal system, even if it is done to level the playing field.

    In his book, Cowan had written that law schools do not teach about such devices as bribery. In my review, I agreed:

The reason we do not teach such "devices" in law school is that they are not lawyers' tools. They may indeed be the tools of revolutionaries and others who work outside the system, and they may perhaps even be justified by a revolutionary means-end calculus. But a lawyer, who does lawyers' work, cannot employ such devices, regardless of the provocation. The lawyer may rail against the corruption of his opponents; the lawyer may expose or condemn — or perhaps even be right to resign from the practice of law to become a revolutionary, if the cause is just and the provocation sufficient. But the lawyer may not become part of the corruption in order to fight for justice as a lawyer. If Darrow crossed that line, as Cowan convincingly argues he did, then he does not deserve the mantle of honor he has proudly borne over most of this century. Those of us who have long regarded Darrow as a hero will be disappointed to learn of his clay feet, but ... the harsh claims of history must outweigh any inclination of hagiography, even when the subject is one of the very few lawyers who have had plausible claims to legal sainthood.

    These academic words, however, concealed a personal disappointment — even grief — that I did not feel comfortable revealing. Unlike the police chief in Casablanca, who expressed mock shock at learning there was gambling at Rick's Place, my shock was real and deep. It continued for weeks. I was consumed by how Darrow had tricked me into believing he was the kind of lawyer I wanted to be. Though Darrow was long dead, my anger toward him was very personal — the kind you might feel toward a close friend or lover who has betrayed you. I've never gotten over it.

    It wasn't as personal when I learned that most of my other heroes had clay feet — or at least one clay foot. The process of disillusionment was more gradual. I was let down more slowly when I discovered what horrible values Oliver Wendell Holmes had privately espoused in his letters to friends. He favored sterilization — perhaps even murder — of "incompetents." Holmes wrote approvingly of killing "anyone below standard" and "putting to death infants that didn't pass the examination." In upholding the constitutionality of mandatory sterilization laws, he approved the sterilization of a woman who was mistakenly classified as an "imbecile." Thousands of people, many of whom were misdiagnosed, were sterilized pursuant to the Holmes precedent. Even the Nazis cited this precedent in support of their program of racial eugenics.

    My anger at Felix Frankfurter, whose chair I currently occupy at Harvard, was pretty intense when I read about his refusal to help the Jews of Europe during the Holocaust, but I had already met Justice Frankfurter by that time, and I didn't like him — I found him to be petty and sycophantic — so the disappointment was muted. Not so with Justice Black, who I knew had been a member of the Ku Klux Klan before his elevation to the High Court, but who I thought had gotten over his early racism. Then he spoke to a group of law clerks during the year I was clerking on the Supreme Court, and it became evident that he still had some lingering racial bias. He also struck me as an extremely rigid man, not open to new ideas. Justice Douglas, who was open to ideas, was nasty to the law clerks, the secretaries and the other court personnel. He also got into a fight with Judge David Bazelon, for whom I had clerked, which revealed something about him that surprised me. Bazelon had been asked to speak at a private club to which Douglas belonged. The club excluded Jews and blacks. Bazelon, who was Jewish, declined the invitation, saying that he would not speak at a club that he, and others, would not be eligible to join. Douglas called him on the phone and started to berate him for his "narrow-mindedness." Bazelon signaled me to pick up the other receiver and listen. I couldn't believe what I was hearing. Here was this paragon of racial and religious equality, trying to convince my boss to compromise his principles and speak to a segregated club. Bazelon stuck to his guns, and Douglas slammed down the phone in anger.

    My other heroes — Louis Brandeis, Thurgood Marshall and William Brennan — had lesser faults, but still, when I learned about them I was disappointed. Brandeis had engaged in some ethically questionable behavior as a lawyer, because he sometimes considered himself "counsel to the situation," rather than advocate for a particular client. Marshall was often poorly prepared when he argued cases, even important ones in the Supreme Court. Brennan refused to hire women law clerks for many years, and fired a law clerk — at the insistence of Chief Justice Earl Warren — when the clerk's left-wing activities became the subject of critical media reports. I still admire these three justices enormously, even with the knowledge that they weren't perfect.

    The same is true of the two judges for whom I worked. When you interact with someone on a daily basis, their virtues and their vices become magnified. "No one is a hero to his butler," says an old English saw, and no judge can ever be a flawless saint to his law clerks. But Judge David Bazelon and Justice Arthur Goldberg both served as imperfect role models for me in many important ways, as have some of my professors and older colleagues.

    So please, no heroes and no worship. Look up to people who have admirable traits, but understand that all have human foibles, some more than others. Expect to be disappointed, especially if you ever get to know personally those you look up to. Learn to live with the disappointments and still emulate those characteristics of your role models that warrant emulation. But even singular characteristics will rarely be without flaws.

    Law is an imperfect profession in which success can rarely be achieved without some sacrifice of principle. Thus all practicing lawyers — and most others in the profession — will necessarily be imperfect, especially in the eyes of young idealists. There is no perfect justice, just as there are no absolutes in ethics. But there is perfect injustice, and we know it when we see it.

    I can only imagine how so many law students, who were taught to revere the justices of our Supreme Court, must have reacted when they came to believe that five of the justices violated their oaths of office by stopping the Florida hand count in the 2000 presidential election. The judicial oath requires each justice to swear "to administer justice without regard to persons...."

    Despite this oath, the five justices — in complete disregard of their prior decisions and writings — stopped the count in order to ensure the election of a particular person — George W. Bush. They never would have stopped the count under the identical legal circumstances if the result would have been to ensure the election of Al Gore. If you do not believe that, consider the following law school hypo: Imagine if, six months before the election case, 1,000 of the most prominent constitutional law professors, Supreme Court litigators and journalists who cover the High Court had been given an approximation of the majority opinion in the Florida case. Only here's the twist. The names of the litigants and their party affiliations were not provided.

    Is there anyone who believes the experts would have predicted how the five justices actually wound up voting? To the contrary, most surely would have predicted that, on the basis of their prior decisions, Chief Justice William Rehnquist and Justices Antonin Scalia, Clarence Thomas and Sandra Day O'Connor would have been the least likely to join such a decision. After all, these judges have repeatedly ruled that the same equal protection clause is not violated when the state executes convicted murderers on the basis of far less precise standards. Had Vice President Al Gore been ahead by a few hundred votes and Governor George W. Bush been seeking a recount, I have no doubt these justices would have mocked any equal protection claim made by Gore.

    If I am right, then what else could this be but administering justice with regard to persons? To render judgment based on personal or partisan politics — on the party affiliations of the litigants — is to violate the first rule of judging. Never decide a case on the basis of favoritism.

    I have written about this decision in considerable detail elsewhere. Here my point is somewhat different. It is about the disillusionment that comes with learning that some justices actually cheat. You probably already suspected that some lower court judges play favorites with lawyers and litigants who supported their election or appointment. But Supreme Court justices? That came as a surprise even to a lifelong cynic like me. What does this revelation do to your commitment to the rule of law? Does it give you license to cheat?

    My hope is that it redoubles your commitment to the rule of law and to total honesty in its practice. It should also make you more suspicious of all legal and judicial institutions. Trust no one in power, including — especially — judges. Don't take judicial opinions at face value. Go back and read the transcript. Cite-check the cases. You will be amazed at how often you will find judges "finessing" the facts and the law. Too often, legal observers take as a given judges' intellectual honesty. It's up to you to do a better job. If you smell a rat, blow the whistle to the Judicial Conference, the American Bar Association, Congress. At the same time, protect yourself from accusations of unprofessional conduct by being absolutely sure of your criticism (never forget that judges and lawyers protect one another).

    In the meantime, get real. Understand that judges are human beings and that in American most of them have gotten where they are by playing the partisan political game, and playing it well. The best check on the judiciary is a suspicious consumer.

    It must start in law school. It must start with you.

Having said all of this, I must admit that I still have one perfect hero. He was a lawyer, but his heroism took place primarily outside of his professional role. I even met him and got to know him a bit, and yet his status as hero has not diminished one iota. His name is not widely known, and his particular heroism can never be replicated — at least I hope not. His name is Jan Karski, and he died in July 2000 at the age of eighty-six. When he was a twenty-eight-year-old lawyer-diplomat in Poland, this young Catholic school graduate went undercover into Jewish ghettos and death camps in order to report on the horrible, indeed lethal, conditions. He was captured by the Gestapo and tortured. After escaping, he went back to the death camps, risking his life repeatedly. He pulled out his own teeth in order to change his appearance and avoid detection. He might have saved hundreds of thousands of lives by disclosing the reality of what was happening in Nazi-occupied Poland. But when he was smuggled out of Poland with his detailed information, he was taken to see the most important Jew in Washington — a Jew who was close to President Franklin Roosevelt —Justice Felix Frankfurter. With a great lawyer's memory for detail, Karski reported on his visits to the ghettos and the death camps, giving specifics. Frankfurter refused to relate the information to Roosevelt, saying he could not believe what Karski was reporting. The reality is that Frankfurter did not want to risk his friendship and influence with Roosevelt by putting his own credibility behind a report that he thought Roosevelt might not believe. That is the difference between a true hero and a deeply flawed man of influence. Understand that difference and live by it.