Taking the Stand Page 8

  At Yale, I wrote two articles for the law journal—one about attempted murder,11 the other about corporate crime12—that brought me to the attention of the faculty not only at Yale but at Harvard as well. Both schools had their eyes out for me as a potential faculty recruit.

  The professor who most influenced my legal thinking was Joseph Goldstein, who taught Criminal Law, but he really didn’t teach much about the actual law; his role was to get the students to question everything and to rethink every principle of law. Some students hated his course, because they learned no law. Goldstein had failed the bar and had never practiced. I loved his course and was deeply influenced by his approach to law, which was the opposite of my rabbinical teachers who had demanded acceptance of what previous rabbis had decreed.

  Another professor who influenced my approach to law was Alex Bickel, who taught me Constitutional Law. He looked at our Constitution politically and structurally and had a coherent, if imperfect, theory of how it should be interpreted. Both of these mentors defied conventional labels such as liberal or conservative.

  The professor who had the most influence on my career choice was Telford Taylor, who combined an active constitutional law practice with teaching and writing. Although we could not have been more different in background and bearing—he was a tall, elegant WASP, had served as a general in the army, was the chief prosecutor at the Nuremberg trials, always wore a suit and tie, and was polite to a fault—we had much in common and became close friends and colleagues. I consciously tried to model my career (except for the army part) after his.

  Shortly after John F. Kennedy was elected president, rumors began to circulate that Taylor was being considered to head the CIA. He took me aside one day and asked me, in confidence, whether I would consider coming with him to Washington, if he were to get the appointment, and serving as his executive assistant. I told him I would certainly consider such an offer. Eventually President Kennedy appointed someone else, deeming Taylor too liberal. Years later, Telford and I discussed how different our lives would have been if we had both joined the CIA.

  Telford Taylor made me another offer, during my second year in law school. He had been hired to go to Jerusalem to broadcast the trial of Adolf Eichmann. He asked me to serve as his research assistant and translator. But I had just been elected editor in chief of the Yale Law Journal and didn’t feel comfortable being away. I declined, and have always regretted missing that important historical event. (Years later, I observed the trial of accused Nazi war criminal John Demjanjuk in Jerusalem.)13

  During law school I developed an interest in the relationship between law and other disciplines, such as economics and science—both physical and social. I worked as a research assistant on Professor Calabresi’s groundbreaking article on law and economics14 and as a research assistant to Professors Goldstein and Katz on their writing on law and psychiatry.15 I eventually collaborated with them on a book entitled Psychoanalysis, Psychiatry and the Law.16 Later I collaborated with Telford Taylor on a book and several human rights projects,17 and with Alex Bickel on some constitutional cases.

  During law school I also increased my interest in civil rights. Several of my professors were active in litigating cases challenging Jim Crow. In college I had joined the NAACP and had participated in a bus protest to Washington. In my second summer at law school, Professor Louis Pollak arranged for me to go to Howard University in Washington and train to become a civil rights observer in the South. My family was frightened by my trips to the South. I returned unscathed but forever sensitized to the evils of segregation.

  The speaker at my law school graduation was President John F. Kennedy. He used the occasion to make the statement about having the best of both worlds, a Harvard education and a Yale degree.18 My son Elon was a year old and I brought him along. During Kennedy’s speech, he started crying. A local New Haven television station caught him in the act, and the voice-over said that Yale was always a Republican school. (I don’t think Elon has ever voted for a Republican in his life.)

  Having completed Yale Law School with flying colors, I was now ready for the next stage in my life—a clerkship in the nation’s capital.

  3

  MY CLERKSHIPS

  Judge Bazelon and Justice Goldberg

  Appellate court clerkships, especially with a Supreme Court justice, are the most coveted positions following graduation from law school. Today, many law firms pay huge signing bonuses—some as high as $280,000—to attract Supreme Court clerks.1 In my day, the value of such clerkships was prestige. In 1962, there were eighteen clerks serving the nine justices; the chief justice had three, the associate justices were entitled to two, but Justice Douglas—who rarely used his clerk—opted for only one. Today, each justice has four law clerks, and the chief justice is allowed five.

  The competition for these coveted positions has always been fierce. Although any law school graduate can apply, most of the clerkships go to a handful of elite schools. (Probably because so many of the justices attended elite schools: The current Supreme Court has five justices who graduated Harvard, three Yale, and one who attended Harvard for two years but graduated Columbia.) Some clerkships were reserved for those who met certain criteria. Justices Brennan and Frankfurter picked only from Harvard. Justice Harlan generally limited his selections to Harvard and Columbia. Justice Douglas usually picked from the West Coast. Justice Black favored Southerners, tennis players, and “kissin’ cousins” but was open to accepting recommendations from certain Yale Law School professors. Chief Justice Warren favored hail-fellows-well-met and athletes! Justice Clark preferred Texans. Justice Goldberg (who replaced Justice Frankfurter shortly after I graduated) liked to have one clerk with Chicago connections.

  I fit none of the pigeonholes, except that I was male and white—as were all the law clerks. This meant that I was competing for three or four slots. My best shot was with Justice Black, because Guido Calabresi had been his recent clerk, and he recommended me. But there was a problem. I had alienated another Yale law professor, who was also close to Black. Fred Rodell was something of an iconoclast. (It was rumored that he had once filed a lawsuit seeking the court’s permission to have extramarital sex, since his wife was disabled.) He insisted on teaching his seminar on the Supreme Court at Mory’s, a private club near the law school (whose “tables” had been made famous by “The Whiffenpoof Song”: “From the tables down at Mory’s to the place where Louie dwells”). Mory’s was a men’s club,2 so Rodell, who fancied himself a left-wing radical, effectively excluded women. When I learned of this, I quit the seminar. To add insult to injury, I substituted a seminar by Professor Alex Bickel, whom Rodell despised because Bickel took a “Frankfurtiarian” approach to constitutional law, rather than a “Blackian” approach. Though I myself favored Justice Black’s “absolutist” view of the Bill of Rights, I admired Professor Bickel’s writings and loved his class.3 This was enough to make me unkosher for Rodell.

  Professor Bickel gave me an important piece of advice: “Alan, I’m going to recommend you for clerkships, but you have to promise me you’re going to turn off at least one of your barrels when you clerk. Judges aren’t used to being confronted, and you have to be respectful and polite. If you want to say anything critical, put it in writing. Don’t criticize them in front of them, and certainly not in front of another clerk.” So he taught me the etiquette of being a clerk, because in law school, I was doing to my law professors what I had done to my rabbis. At Yale, this confrontational approach was generally admired. It had not been acceptable to the rabbis, nor would it be to justices and judges.

  Professor Bickel himself was a confrontational teacher. He would walk right up to students in his seminar on advanced constitutional law, stare them down, and begin a relentless cross-examination. I loved it, and he loved my equally provocative challenges to his theories.

  Even at Yale, my chutzpah was not welcomed by all. Professor Friedrich Kessler was an older European-trained academic who taught Jurispr
udence. One day, he was lecturing on Freud’s influence on German jurisprudence and he misunderstood one of Freud’s theories. I raised my hand and corrected him. After class, an older student, who had been a marine and was married to another student, grabbed me and said, “You embarrassed someone I love. If you ever do that again, I’ll deck you.” I was startled and replied, “How did I embarrass your wife?” He said, “Not my wife, stupid. Professor Kessler. Don’t ever correct him publicly.” So much for academic freedom! Professor Bickel was wise to caution me about toning down my aggressiveness if I wanted to succeed as a clerk.

  Professor Rodell was so concerned that I might contaminate the elderly Justice Black that he took the train to Washington to persuade him to reject the recommendation of his former law clerk. In the end, Black told Calabresi that he had to defer to his friend’s veto for that year but that he would consider me for the following year. This was the best possible news because it allowed me to accept a clerkship with Judge David Bazelon on the United States Court of Appeals for the District of Columbia.

  Judge Bazelon was my first choice for a clerkship, but I wanted—indeed I felt I needed—the status that came along with a Supreme Court clerkship, in order to obtain the kind of job offers I would be seeking. Two of my other mentors at law school, Professors Joseph Goldstein and Abraham Goldstein (not related), had both clerked for Judge Bazelon. One of my primary interests in law school was the relationship between law and psychiatry. Another was criminal law. Those were also Judge Bazelon’s specialties.

  MY YEAR OF CLERKING FOR JUDGE BAZELON

  I arrived in Washington during the summer of 1962, in the midst of the Kennedy administration. It was a heady time for a young liberal lawyer to be in the nation’s capital. Judge David Bazelon was at the center of Washington life, both socially and politically. He fraternized with senators, congressmen, cabinet members, White House staffers, Supreme Court justices, diplomats, and other movers and shakers.

  At the center of his social life were the weekly lunches at the office restaurant of a local liquor distributor named Milton Kronheim, whose personal chef would prepare simple but superb lunches for “Milton’s boys.” Kronheim himself was in his mid-seventies when I met him. (He would live to ninety-seven, pitching in his weekly company softball game until his late eighties.) His frequent guests, in addition to Judge Bazelon, included Chief Justice Earl Warren; Associate Justices William Brennan, William Douglas, and later Thurgood Marshall; Judges J. Skelly Wright and Simon Soboloff; Senators Abe Ribicoff and Jacob Javits; and many other judicial and political notables from the liberal side. The small lunchroom where Milton entertained had photographs of Kronheim with every president since Harding. Hundreds of other wall-to-wall photographs showed him with just about every important political, business, and sports figure of the twentieth century. (When Woody Allen’s film Zelig—which portrayed a character who seemed to be involved with every historical figure of his age—was released in 1983, Judge Bazelon joked that Kronheim was the real-life Zelig.)

  Bazelon on Kronheim

  Judge Bazelon once told me a joke about Kronheim, which, with a change of name, from Kronheim to Katz, became a standard part of the Jewish joke cannon.

  “There was a guy named Kronheim who bragged he was so famous he could be photographed with ‘anyone in the world.’ A skeptical friend challenged him: ‘You can’t be photographed with the President!’ Within days, Kronheim was standing on the White House balcony with JFK, as photographers snapped pictures.

  “OK,” the friend conceded, “maybe in the United States, but not in other parts of the world! You could never be photographed with Israel’s Prime Minister Ben-Gurion.” The next day they were on a plane to Israel, and that afternoon Kronheim was standing on the balcony of the prime minister’s house being photographed with Ben-Gurion.

  “OK, maybe among Jews and Americans you’re famous, but you’ll never get a picture with the pope.” Next day, they’re off to Rome, and by afternoon, Kronheim is standing on the balcony of St. Peters next to the holy father. A nun standing in the crowd turns to the skeptical friend and asks, “Who’s that guy standing next to Kronheim?”

  I was privileged to participate in many of their lunches—mostly as a quiet observer—during my clerkship. (When I became a professor, Judge Bazelon invited me whenever I visited—then as a full participant.)

  The first time I went to Kronheim’s for lunch, we picked up two justices: William O. Douglas and William Brennan. Justice Brennan was just about the nicest, sweetest, most modest important person I had ever met. Justice Douglas was entirely different. Nobody ever accused him of being nice or friendly. He was surly, arrogant, and condescending. He mistreated his law clerks, referring to them as the “lowest form of life.”4 He was also a hypocrite. I learned this several weeks after the lunch, when Judge Bazelon buzzed me into his office and pointed to the extension phone, signaling me to pick it up. I heard a familiar voice berating Judge Bazelon for canceling a speaking engagement. Bazelon turned to me and silently mouthed the words “Bill Douglas,” pointing to the phone. Bazelon kept trying to reply, saying, “I just can’t do it, Bill. It’s a matter of principle.” Douglas responded, “We’re not asking you to join, just to speak.” Bazelon replied, “That’s the point, Bill. They wouldn’t let me join. They don’t accept Jews or blacks.”

  It soon became evident that the two liberal judges were arguing about a private club that excluded Jews and blacks. Douglas was a member and had invited Bazelon to give a luncheon talk. Bazelon had agreed, but when he learned of the club’s “restricted” nature, he withdrew his acceptance. Douglas was furious, Bazelon adamant. I couldn’t believe that the great liberal justice not only belonged to a restricted club, but that he was utterly insensitive to Bazelon’s principled refusal to speak at such a club. This was at the height of the civil rights movement, and Justice Douglas was writing decision after decision decrying public segregation. Yet he himself was participating in private segregation and condemning Bazelon’s refusal to become complicit in it.

  This phone call had a profound effect on my own subsequent actions and my refusal to speak at, or remain silent about, private clubs that discriminated, whether it was the Harvard Club of New York, which refused to accept women for many years,5 or Jewish clubs, which limited their memberships to my own coreligionists.

  Judge Bazelon played hard and worked even harder. For his law clerks it was all work. We had to be in before he arrived and had to stay until after he left, and he often worked late. He did not believe in vacation for the clerks—“It’s only a one-year job, and that means 365 days.” There was no personal time off (except in my case for Saturdays). When I first came to work over the summer, I asked him for a few days off to take a prep course for the D.C. bar exam. He assured me that I didn’t need time off to prepare! “I hired you because you were first in your law school class. You don’t have to study for this test.” I told him I had been first because I always prepared, but he was dismissive of my request. I tried to prepare late at night, but the material was so dry and boring that I always fell asleep. “I’m going to fail the bar,” I told him worriedly, “and it may embarrass you.” Finally, he relented when I told him that I was really having trouble focusing on the ridiculous bar exam questions, and he allowed me to leave a bit early for a week to take a crash course that met from seven to nine in the evening.

  A few weeks after the exam, Bazelon came storming out of his office holding a paper and not smiling. I knew that he got advance notice of the bar results, and I thought that he was coming to tell me I had flunked. Instead he shouted, “You didn’t need time off. You got the goddamn highest grade in the city. You’re a faker,” he complained, not bothering even to congratulate me.

  Several months later, when my second son, Jamin, was about to be born, I asked the judge for the day off to accompany my wife to the hospital. He asked, “Isn’t Sue’s mother here?” She was. “You did your part of the job already. You can visit after the
baby is born. It isn’t your first child. You don’t have to be there for the birth.”

  Fortunately, he was traveling on the day of the birth and I made it to the hospital in time.

  In light of Judge Bazelon’s attitudes toward his clerks’ workday, one can only imagine how shocked I was when Judge Bazelon came back to the office from a lunch at the White House in mid-October and told his entire staff to “go home and be with your families.” He was grim-faced and pale. “Why?” we asked. “There may be a nuclear attack,” he said solemnly. “I’ve just been briefed on the presence of Soviet nuclear rockets in Cuba. Neither side is backing down. Nobody wants war, but each side is calling the other’s bluff. No one knows how this will turn out. Be with your families.”

  We all left in a panic. Bazelon called me later that evening at home. “I have no faith in those Kennedy brothers. They’re a bunch of spoiled brats—their father’s children,” he said contemptuously of Joseph Kennedy. “I don’t trust them. Look at the way they screwed up the Bay of Pigs. A bunch of arrogant amateurs.”