What great 20th century American historical figure was a “practical, decently profane, and a most impressive leader?”

You will find the answer to this question, and much more, in this recent and utterly compelling piece from the Jackson List:

In late May 1945, Justice Robert H. Jackson and his fellow justices were nearing the conclusion of their Supreme Court term. They had finished hearing oral arguments in new cases and were writing, editing and handing down opinions. On Monday, May 21st, for example, Jackson announced three opinions for the Court—“the last of [his] crop,” as he described it, of Court opinions for the term.

Justice Jackson at that time also was four weeks into his assignment, from President Truman, to serve as United States chief of counsel in the international trial of now-surrendered Nazis whom the Allies regarded as war criminals. He continued to do Supreme Court work as he needed to, but since late April his “Nazi prosecutor” job was his priority and filled most of his time.

On Thursday, May 22nd, Jackson left Washington to make a preliminary survey of the situation in Europe. He took off from Washington that afternoon and, after airplane refueling stops in Newfoundland and the Azores, he arrived in Paris just after 1:00 a.m. local time on May 24th.

General Edward C. Betts, United States Army Judge Advocate of the European theatre, met Justice Jackson at the Paris airfield. He decided, after conferring quickly in the officers’ lounge there with Gen. Betts and other senior U.S. officials, to stay for a day or two in Paris, working on the Paris-based needs of the case before travelling to consultations in London. The Army then drove Jackson to the Ritz, where he stayed in “a suite big enough and grand enough for a royal family” and got five or six hours of sleep.

Jackson’s May 24th day was filled with high level consultations. He first met with Gen. Betts at his office. His secretary, a British “Wren” (a Women’s Royal Naval Service officer), became Jackson’s, helping him make appointments. A senior aide to General Lucius Clay, the Director of the Military Government of Germany, came from its Versailles headquarters to meet Jackson. They went the airport and met Jackson’s deputy, General William J. Donovan of the Office of Strategic Services. (At the airport, Jackson also ran into and spoke briefly with his Washington friends and colleagues Harry Hopkins, Averell Harriman and Robert Lovett.) Jackson then had a lunch meeting with Donovan and OSS staff back at the Ritz. During the afternoon, Jackson had more meetings with Betts and others at his office. At 4:00 p.m., Jackson met with Jefferson Caffrey, the U.S. Ambassador to France. At 5:00, Jackson drove out to Versailles and had a long meeting with Gen. Clay. At 7:30, Jackson returned to Paris and was introduced to U.S. Army Major Lawrence A. Coleman, a young lawyer who had been assigned to serve as Jackson’s military aide; they reviewed local messages and Washington cables for Jackson.

Following dinner at the Ritz, Jackson took a long walk with Col. John Harlan Amen of his staff. Paris was moonlit but otherwise poorly lighted. They saw few people out. Burned tanks and vehicles lined roadsides. Barbed wire and former Nazi pillboxes were everywhere. Luxury shops appeared well-stocked. Stores for ordinary customers seemed to have no stock.

On Friday morning, May 25th—seventy years ago yesterday—Jackson returned to Gen. Betts’s office. He reported that the Supreme Allied Commander, General Dwight D. Eisenhower, was in Paris. Jackson telephoned and Eisenhower invited him and Betts to meet with Eisenhower at his room at the Hotel Raphael.

Although Jackson and Eisenhower had each lived at various times in Washington, D.C.’s Wardman Park apartment building, they had never met. At the Raphael, Eisenhower greeted Jackson cordially. Eisenhower explained that he was there to get a day’s rest.

They discussed Jackson’s presidential assignment to prosecute war criminals. Eisenhower said he did not support shooting anybody without a trial and hoped that trials would not take long. Jackson explained his preliminary plan to prosecute the Gestapo as a criminal organization, and then to prosecute Gestapo members for the crime of belonging to that organization. Eisenhower stated his support—he said he had seen so much that in his eyes “any bastard who belonged to that outfit is guilty”.

Jackson asked Eisenhower where the principal Nazi prisoners—the prospective defendants—were being held. Betts injected that he was asking the War Department for authority to keep them in jail rather than in prisoner of war camps. Eisenhower said not to bother Washington—simply put the suspected criminals in jail on his responsibility.

Eisenhower stated his full authorization for any war criminal trials, pledging the Army’s full cooperation. He told Betts to get more men if they were needed.

Jackson, in a later diary note, wrote his initial impression of Eisenhower: “He is practical, decently profane, and a most impressive leader.”

As always, thanks to Professor John Q. Barrett. Barrett brings legal history alive!

RGK

Tea at the White House

Traditions smooth our turbulent and chaotic lives. Read the following about a tradition that no longer exists, but should be reinstated in my not so humble opinion:

For the Jackson List:

On Monday, October 2, 1939, the Supreme Court of the United States began its new term.

The Justices—Chief Justice Charles Evans Hughes and Associate Justices James C. McReynolds, Harlan Fiske Stone, Owen J. Roberts, Hugo L. Black, Stanley Reed, Felix Frankfurter and William O. Douglas—took the bench at noon. Justice Pierce Butler, hospitalized with a bladder ailment, was absent.

The Court’s session lasted only twelve minutes. It admitted a number of attorneys to practice before it. The Solicitor General of the United States, Robert H. Jackson, moved the admissions of two of these attorneys, new Assistant Attorneys General Samuel O. Clark, Jr. (heading the Tax Division) and Francis M. Shea (heading the Claims Division). The second was personally meaningful to both Jackson and Shea—they were good friends from western New York, and Jackson had recruited Shea to the Department of Justice from his previous position as dean of The University of Buffalo School of Law.

During its session, the Court received a report on one substantive matter. Charles Warren, the Court-appointed special master handling a Texas-New Mexico-Colorado boundary dispute, told the Justices that he had nothing left to do in the matter because the states had agreed to the settlement that he recommended two years earlier. Following this report, the Court adjourned until the following Monday.

That brief session did not mark the end of the Supreme Court’s day. Late that afternoon, seven justices—Chief Justice Hughes and Justices Stone, Roberts, Black, Reed, Frankfurter and Douglas—went as a group to the White House. They were accompanied by Attorney General Frank Murphy and Solicitor General Jackson. The occasion was a visit, and tea, with President Franklin D. Roosevelt. The ailing Justice Butler and the Roosevelt-hating Justice McReynolds did not attend. For all who did, the visit was relaxed and enjoyable.

This 1939 White House visit marked the first time in four years that the Supreme Court made its then-traditional call to pay respects to the president at the start of the Court term. In 1936, 1937 and 1938, FDR had been absent from Washington on the first Monday in October. 1937 also had been the year of his Court-packing proposal, starting that February and continuing into the summer. Perhaps the resulting bruises, on both president and Court, were still there in Fall 1937, and even a year later.

The tradition of the President inviting the Justices to visit him in this fashion lapsed many years ago. On this first Monday, when the Supreme Court begins its new term and all wish it well, that lapse is something to remember and, in my view, to regret.

* * *

Professor John Q. Barrett

Professor of Law, St. John’s University, New York, NY

Elizabeth S. Lenna Fellow, Robert H. Jackson Center, Jamestown, NY

RGK

The education of Mr. Justice Jackson–and Kopf’s one question

Mr. Justice Jackson went to the Albany Law School, but became a lawyer only after “reading” the law. “A ‘county-seat lawyer’, he remains the last Supreme Court justice appointed who did not graduate from any law school . . . , although he did attend Albany Law School in Albany, New York for one year.” Robert H. JacksonWikipedia (last accessed August 2, 2014).

Scott Greenfield has an interesting discussion about whether in this modern day one ought to be able to “read law” rather than attend law school as a condition of bar passage. See Scott H. Greenfield, Lawyers Without Law School, Simple Justice (August 1, 2014). But, that’s a topic for another day.

Today, I want to highlight Jackson’s remarkable “reading list” that a high school English teacher gave him, and which played an integral part in this great man’s eduction. At the end, I will have a question for you!

We learn the following from Professor John Q. Barrett’s wonderful Jackson List about “Miss Willard’s English Reading List (1910)” and how that molded one of the Supreme Court’s best writers:

In 1909, Robert H. Jackson, age 17, graduated from the high school in his boyhood hometown, Frewsburg, New York. That Fall, he began to commute northward by trolley each day—about six miles—to Jamestown, New York. He attended Jamestown High School as a senior, taking subjects that had not been offered in Frewsburg.

At Jamestown High School, Robert Jackson came to be influenced, deeply, by an English teacher, Miss Mary Willard. He took her courses in English and English History. He also studied with her outside of class. In 1910, she gave him a carbon copy of a typed, four-page list of recommended readings—it became, as he wrote on it, “Property of Robt. H. Jackson.” Soon thereafter, Miss Willard gave him a mimeographed copy of a retyped, slightly longer version of the list—an expanded edition, it seems.

Jackson kept both documents for the rest of his life. The five-page version:

READING COURSE IN ENGLISH LITERATURE.
RECOMMENDED BY MARY R. WILLARD 1910

JOSEPH ADDISON:
Sir Roger de Coverly Papers.

MATTHEW ARNOLD:
Schraband Rustum.
Sonnet on Shakespeare.

THOS. B. ALDRICH:
Marjorie Daw.
The Story of a Bad Boy.
The Queen of Sheba.
Poems.

BIBLE Book of:
Genesis- Exodus-Ruth.
1 & 2 Samuel- 1 &2 Kings.
Esther, Daniel, The New Testament.

BROWNING, ROBERT:
Saul (?)
Prospice.
A Death in the Desert.
Pippa Passes.
A Blot in the Scutchon.
Pheidippides.
The Pied Piper of Hamlin.
Epistle of Karshish.

JOHN BURROUGHS:
Wake Robin.
Sharp Eyes.
Essay on Walt Whitman.

MRS. ELIZABETH BROWNING:
The Cry of the Children
Mother and Poet.
Sonnets from the Portuguese.

DR. JOHN BROWN:
Rab and His Friends.
Marjorie Fleming.

BUNYAN:
Pilgrim’s Progress.

BURNS:
Cotter’s Saturday Night.
To a Field Mouse.
To a Mountain Daisy.
On Seeing a Louse on a Ladies Bonnet.
To Mary in Heaven.
Songs.

CARLYLE:
Sarter Resartus.
Essays on Burns.
Heroes and Hero Worship.

JAMES FREEMAN CLARK:
Self-Culture.

GEORGE WILLIAM CURTIS:
Prue and I.

CERVANTES:
Don Quixote.

CHAUCER:
Prologue to the Canterbury Tales.
Patient Griselda.
Palemon & Aicite (?)

COLERIDGE:
Ancient Mariner.
Christabel.
Kubla Khan.

DE QUINCEY:
Essay on Joan of Arc.
Essay on Burns.
Confessions of an Opium Eater.
Flight of a Tartar Tribe.

DICKENS:
Our Mutual Friend.
Bleak House.
Tale of Two Cities.
Christmas Carol.
Martin Chuzzlewit.
David Copperfield.

ALEXANDER DUMAS:
Count of Monte Christo.
The Three Musketeers.

DRYDEN:
Ode on St. Cecilie’s Day.
Palemon & Ascite (?)

EMERSON:
Essay on American Scholar.
”””””””””Compensation.
”””””””””Friendship.
”””””””””Gifts.
”””””””””Self-Reliance.
Concord Hymn.

GEORGE ELIOT:
Silas Marner.
Romola.
Adam Bede.

GOLDSMITH:
The Deserted Village.
She Stoops to Conquer.

GRAY:
Elegy in a Country Churchyard.

MRS. GASKELL:
Cranford.

EDWARD EVERET HALE:
A Man Without a Country.

OLIVER WENDEL HOLMES:
The Chambered Nautilus.
Old Ironsides.

LEIGH HUNT:
Abou Ben Adhem.

JAMES HOGG:
Poems.

VICTOR HUGO:
Les Miserables.

IBSEN:
Pere Gynt.
Dolls House.
Ghosts.
Master Builder.

WASHINGTON IRVING:
Sketch Book.
Knickerbocker’s History of New York.

KEATS:
Ode to a Nightingale.
Ode to Autumn.
Ode to a Grecian Urn.
The Eve of St. Agnes.

THOMAS a’ KEMPIS:
The Imitation of Christ.

KIPLING:
Mine Own People.
Plain Tales from the Hills.
Soldiers Three.
Recessional.

KINGSLEY:
Water Babies.

LANIER: The Symphony.
Corn.
Sunrise.

LONGFELLOW:
Tales of a Wayside Inn.
Building of the Ship.
The Arsenal at Springfield.

LOWELL:
Commemoration Ode.
Vision of Sir Lannfal.
Table for Critics.
Prayer of Agassiz.

MACAULAY:
Essay on Milton.
”””””””””Addison.
”””””””””Sam’l Johnson.
”””””””””Earl of Chatham.
Lays of Ancient Rome.

MILTON: Lycidas.
L’Allegro.
Il’ Penseroso.
Comus.
Sonnet on His Blindness.
Samson Agonistes.

DONALD G. MITCHEL:
Reveries of a Bachelor.
Dream Life.

MERY N. MITFORD:
Our Village.

PRESCOTT:
Conquest of Peru.

STEPHEN PHILLIPS:
Paolo & Francesca.
Herod.
The Sin of David.

RUSKIN:
Sesame & Lilies.

SCOTT:
Ivanhoe.
Kenilworth.
Marmion.
Lay of the Last Minstrel.

WILLIAM SHAKESPEARE:

Comedy:
Tempest.
Midsummer Night’s Dream.
Winter’s Tale.
Tragedy:
Hamlet.
King Lear.
Othello.
History:
Henry IV (I&II)
Henry V
Richard III
Songs and Sonnets.

SHELLEY:
The Cloud.
Ode to a Skylark.

HERBERT SPENCER:
The Philosophy of Style.

STEVENSON:
Verginibus Puerisque.

STERNE:
A Sentimental Journey.

EDMUND SPENSER:
Faerie Queen B’ks 1 & 2.
Prothalamion.
Epithalamion.

JEREMY TAYLOR:
Holy Living.

TENNYSON:
Idyls of the King.
The Princess.
Enoch Arden.
Songs.

THACKERAY:
Pendemis.
The Newcomes.
Vanity Fair.

THOREAU:
Cape Cod Walden.

CHAS B.WARNER:
Black Log Studies.
The People for whom Shakespeare Wrote.
In the Wilderness.

WHITTIER:
Tent on the Beach.
Snow Bound.
Proem.

WORDSWORTH:
Ode to Duty.
Laodamea.
Rye Re-visited.

* * *

People ask how Robert H. Jackson, from humble origins and lacking higher education, became one of the finest writers in American public life, U.S. Supreme Court history, international relations and maybe generally. My answers are that he had natural talents, sufficient resources, a love of learning, special teachers, and drive. And that he read—thanks to Mary Willard and others, he read, savored, recited, memorized and thus, in his speaking and writing, consciously and unconsciously, emulated great works.

John Q. Barrett, Jackson List, (July 31, 2014).

I have one question. How many of these classics have you read?

RGK

The Fourth of July and Justice Jackson

The Jackson List is out and recounts the busy summer, including most especially the Fourth of July, that then Attorney General Jackson underwent in 1941. Fascinating stuff. With a huge tip of the hat to Professor John Q. Barrett, Professor of Law, St. John’s University, New York, NY and Elizabeth S. Lenna Fellow, Robert H. Jackson Center, Jamestown, NY, consider the following.

Justice Jackson was to give a Fourth of July speech despite the fact that he must have been focused almost exclusively on his Supreme Court nomination. Three weeks earlier, on June 12th, President Franklin D. Roosevelt had nominated Attorney General Jackson to become an Associate Justice of the Supreme Court of the United States. On June 30th, a U.S. Senate subcommittee completed four days of hearings on Jackson’s nomination and the Senate Judiciary Committee then voted, unanimously, its approval.

On July 4, 1941, Jackson was supposed to deliver this speech at the Washington Monument as part of the capital’s Independence Day observance. The speech also was to be broadcast live to a national radio audience. Washington’s summer weather, however, intervened. Pouring rain caused the Fourth of July events that were scheduled to occur on Washington’s Mall—a Marine Band concert; a procession of flags and colors carried by representatives of 300 veterans’ and other patriotic, fraternal and civic organizations; Jackson’s speech; and fireworks—to be cancelled for a second straight year.

Jackson did deliver his speech that evening in a Washington radio studio, and it was broadcast nationwide over Mutual’s radio network. The speech also was recorded. When July 5th brought better weather, the events on the Mall were rescheduled. That evening, Jackson’s recorded speech was played for the crowd before the fireworks flew.

On Monday, July 7, 1941, the U.S. Senate confirmed by voice vote Jackson’s nomination to the Supreme Court. On Friday, July 11th, at the White House, FDR signed and gave Jackson his commission. The Clerk of the Supreme Court then administered the constitutional oath to Jackson, who thus was appointed the 84th Supreme Court Justice in U.S. history.

Jackson’s speech is an example of rhetorical excellence. It is worth reading for the beauty of the thing, if nothing else. But there is far more to the speech than beautiful words. In the speech, Jackson contemplates the looming explosion in Europe.  In more gentle terms then we might hear now, Jackson speaks to America’s exceptional place in the world. He speaks of the goodness of the American people, and their concern for men and women throughout the world. In this jaded, self-absorbed and cynical age, Jackson’s 1941 Fourth of July speech is, I assert, as important now as it was then.

I reprint the speech below, and ask only that you take a few moments to read it. If you do, the Fourth of July, 2014, will be marked with the unsettling but important point that Americans cannot (or at least should not) selfishly and solely look inward. In many ways, we have been chosen to carry the weight of the world on our exceedingly broad shoulders.

Here is Justice Jackson’s Independence Day address:

By Robert H. Jackson
Attorney General of the United States

Washington, D.C.
July 4, 1941

For nearly two years now many of us have been bewildered by the headlong course of events in Europe and not a few of us have been confused as to the course of wisdom at home. We have seen a nation which twenty years ago had been vanquished, rise up with a ferocity seldom seen in the history of mankind. We have seen vaunted armies smashed as if they were so much paper. We have seen Europe overrun and England placed in grave danger. We have seen the dictator idea spread in the world. At first its two principal proponents, communism and fascism, appeared to be mortal enemies. Then, one day, they turned up as partners. Now they battle each other.

For nearly two years Americans have been asking each other which way safety and security lie. We have pondered the problem weighing risk against risk and danger against danger. Now at last, on this Fourth of July in 1941, the truth of our situation is coming home with increasing clarity to all Americans. We are learning the overwhelming fact that now, as in 1776, our nation, together with our sister Republics on this hemisphere, faces a preponderantly hostile and undemocratic world. Now, as in 1776, we can turn to the Declaration of Independence for the principles which should guide our action.

You are lifted and inspired, like generations before you, by the majestic cadence of the boldest, the noblest, and best known of all American writings. The Declaration of Independence speaks strong doctrine in plain words. It is the world’s master indictment of oppression. The fervor of its denunciation haunts and challenges dictators everywhere and in every field of life.

But the Declaration of Independence does not stop with mere denials and negations. It sets forth great affirmations as to the permissible foundations of power and political leadership among free men. It lays down a fighting faith in the rights of man — merely as man — a faith to die by if need be, or even more bravely to live by. It impresses upon all political power the high obligation of trusteeship. It established an accountability by the governing few to the governed many. That is why men abroad who wield dictatorial powers over subject peoples would silence the reading of the Declaration of Independence, would tear all mention of it from the record, and torture all recollection of it out of the minds of men. Even at home there are some who hope it will not be read too loudly.

But the masses of warm-hearted people are reared on its strong doctrines of equality and human rights. It has exceeded every other modern pronouncement in its profound influence upon our lives, our culture, and our relations to the world. When the Constitution of the United States was adopted, its foundations were laid in the democratic idealism of the Declaration. It has been the inspiration for every later recognition of broadened human rights and for the extension of justice and security to all men. We do not claim to have reached a perfect fulfillment of its high principles. But we have achieved the nearest approach among all the nations to a classless society, to equality of rights, and to a fair distribution of opportunity and prosperity. Whenever we reproach our own imperfections, as we ought often to do, we must not forget that our shortcomings are visible only when measured against our ideals, never when put beside the practical living conditions of the rest of the world. We have by Constitution, by legislation, and by judicial decision translated the Declaration out of the language of abstract philosophy into the idiom of everyday living. We have validated democratic principles by our success. (Emphasis added by Kopf)

America’s position in the society of nations is unavoidably that of a champion of the freedoms. The reason is aptly stated by Carl Becker, who says:

“In the Declaration the foundation of the United States is indissolubly associated with a theory of politics, a philosophy of human rights, which is valid, if at all, not for Americans only, but for all men.” (Emphasis in italics added by Kopf)

When our national success demonstrated that freedom is an attainable goal, we made it the ultimate goal of all people everywhere. The four freedoms are not local or transient incidents; they are universal and timeless principles if they are valid at all. A blow against their existence in Europe is a blow at their validity everywhere. On the other hand, the example of a great and powerful people governed by their own consent through lawmakers of their free choice is a standing incitement to overturn tyranny anywhere. Malevolent conquests by dictators are silently undermined by our confession of faith in democracy as stated in the Declaration. That carries hope to subject peoples in whom there would otherwise be a noble, but unavailing, fortitude. Overridden countries find a bid to insurrection in its assertion of the right of the people to alter or abolish an existing government that is destructive of life, liberty, and happiness. They read words of invitation in its statement of their right to “institute new Government, laying its foundations on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.” No wonder the Declaration of Independence is the nightmare of conquerors.

Some will say that the decision faced by the patriots of 1776 was an easier one than ours, since they had nothing to lose but their intolerable situation. Our task, some will argue, is to protect rather than to win our freedom and that for that reason we should be cautious.

But if the patriots of 1776 risked little by action, we risk much by indifference. Today we risk the loss of a physical, cultural and spiritual heritage of freedom far beyond the most inspired visions of the leaders of ’76. And the more of the world that ceases to be democratic, the greater our risk will be. We do not need to be imprudent or foolhardy, but we should recognize that no amount of cautious behavior, no amount of polite talk will earn for us the friendship and goodwill of dictator systems. Ultimately we must come to the day when we shall face their threats and their enmity for no other reason than that we persist in living the kind of life we live.

One fact emerges clear above all others. We Americans cannot cease to be the kind of people we are, we cannot cease to live the kind of life we live. We are not the kind of people the dictators will ever want in the world. They will never have any use for our kind of life, nor we for theirs.

Every American knows now, as he knew it in 1776, that there is nothing for him in that way of life.

There are those who shrink from the risks of standing for a forthright, practical application of democracy. They point to the striking power and efficiency of foes abroad. But the enemies of American democracy today cannot begin to assemble a force so relatively powerful and so encircling as were its foes that day when the signers of the Declaration pledged their lives, their fortunes, and their sacred honor in its support. The most strategic points in our own country were then in possession of the King’s armies. Canada was a base for his operations. Florida, Cuba, Puerto Rico, and the mouth of the Mississippi were occupied by forces of Spanish monarchy — no lover of democracy. And the unsolved problem of the colonies along their whole precarious frontier was the Indian. American democracy then had no navy, only an empty treasury. Its army was composed of untrained volunteer backwoodsmen who could not get shoes, clothing, or substantial arms to fight the invading British regulars. There was no national unity. There were cabals against Washington, a fifth column of Royalists was powerful and respectable, and the states were jealous rivals who did not act, nor even think, as a unit. But in such an hour our forefathers who believed in freedom did not fear to stand alone and to become, as they continued for many years to be, the world’s only real democracy. But the American forces had power — the unseen power of the earnest individual — the individual with what Mr. Justice Holmes called “fire in his belly.” Only when these fires go out need we fear the lawless forces of dictatorship. Democracy’s strength is in man-to-man measure. None other draws such initiative from its way of life, none invents, and none had so generally and fully mastered in its daily life the technique of handling modern machine transport and production. And we dwell among resources as incredible as acres of diamonds.

But there is at home and abroad an anti-democratic influence, even more cynical and sinister and dangerous than Hitler, Mussolini, and Stalin combined. I refer to those who think democracy is a fair weather ideal — to guide us in soft times — but that when the going is tough we cannot save it without losing it. This doctrine has every base quality of fascism without either its candor or courage. Let us in America never forget that liberties trampled by conquest may be regained, but liberties abandoned by an indifferent people are never recovered. Nor are they deserved.

Let us not forget the example of our forefathers. They, too, heard the argument that time of external danger was no time to advance freedoms. But their answer was to give liberty a new birth not only in the midst of a war but in the very darkest hours of that war, because they knew that what wins struggles are the last ounces of endurance and the reserves of power that come to the common run of men on fire for a cause. Such men do not count costs nor watch the clock. We must keep our freedoms, keep them in face of foreign dangers even more tenaciously and jealously than in calmer times — keep them because it is our liberty that lifts our cause above material ends and anchors our efforts in timeless things. We know that in the unfolding book of destiny, just as in the closed book of history, it is written that tyranny and oppression bring forth their own downfall and that the irresistible moral forces of the world march always on the side of resolute men when freedom is their goal. We know that the spiritual strength and the moral power of our democratic tradition, authenticated by a century and a half of progress, will not long yield the field anywhere in the world despite the temporary devastations by enemies of the fundamental philosophy of our Declaration of Independence. As Kipling has said:

“Though all we knew depart,
The old commandments stand: –
‘In courage keep your heart,
In strength lift up your hand.’”

Jackson’s eloquence is exceeded only by his wisdom. His 1941 remarks remain relevant this Fourth of July, 2014. If you don’t believe me, watch world news tonight between the rockets red glare and bombs bursting in air.*

RGK

PS. I am pleased to serve as Chairman of the Board of The Historical Society of the
United States Courts in the Eighth Circuit. I have no talent for legal history personally, but I love reading legal history and promoting it whenever I can. The Jackson List is among the best legal history being done in this country. It is a treasure.

Call me Rich?

After the Urbom celebration, I embraced an old friend who is running for the U.S. Senate and who happens to be one of the best trial lawyers of my generation. He has a national reputation. We have been close friends for over 40 yours.

Since 1987 when I became a magistrate judge, our friendship has been necessarily distant because he is a trial lawyer and I am judge. We never socialize. But I know if I ever needed serious help my friend would come running and I would do the same for him.

Anyway, when I saw my friend, he was heading to the elevator. I was standing with some others lawyers, and I yelled his first name, He turned and walked over. He extended his hand and said something like “Judge, how nice to see you.”  We engaged in a short conversation, and then I hugged him as he turned to leave. I said I missed seeing him and we parted.

I don’t like being called judge when I am not judging. It puts a distance between the other person and me.  But, it is awkward. Social conventions require formalities and when such a convention is not followed the omission can be misunderstood (often by those who are inclined to see bad in good).

Today, I received the always fun and informative Jackson List.  It appears that the problem of what to call a judge outside of the courtroom confronts the Justices as well.  Here are the guts of the most recent letter, which I find fascinating:

For the Jackson List:

In early 1948, Dr. Jacob Billikopf wrote from Philadelphia, his home, to Justice Robert H. Jackson at the Supreme Court of the United States. Dr. Billikopf, a noted national leader in social work, Jewish philanthropy, labor relations and other pursuits, wrote as a trustee and chairman of the executive committee of Howard University in Washington, D.C.

Dr. Billikopf explained that he and another Howard University trustee had been, for the past few years, hosting private dinner meetings on campus “for the purpose of making friends for that great institution.” He explained that Howard’s president Dr. Mordecai Johnson, members of his administrative staff, “key men” on the faculty and 25-30 other guests attended the dinners. Dropping mention that Jackson’s colleagues Justices William O. Douglas and Felix Frankfurter had been guests of honor at previous dinners, Billikopf asked Jackson if he would be the honored guest at dinner a month hence.

Justice Jackson promptly dictated and sent back his positive answer. It was contingent, he explained, on another pending matter not claiming his schedule on the date in question. Although Billikopf was not someone who Jackson knew well, he signed his short letter “Bob.”

Billikopf, writing back immediately, focused first on Jackson’s signature:

Dear Mr. Justice:

When my good friend, Benjamin Cardozo, was appointed to the Supreme Court, I naturally greeted him as Mr. Justice. “Don’t call me Mr. Justice. Please don’t,” said he. “How then should you be addressed?” “Call me Ben,” was the reply. Of course I couldn’t be guilty of such irreverence and so we reached a compromise.

Now, then, when I received your letter signed BOB I was naturally flattered and then it occurred to me that it must have been a case of lapsus calami [a slip of the pen]. …

In the heart of his letter, Billikopf wrote that that he was “so happy” that Jackson had accepted the invitation, if somewhat contingently. Billikopf proposed an alternative date, one week later.

For Jackson, that date, February 27th, was clear. On that Friday evening, Jackson attended a private dinner in Frazier Hall at Howard University. He spoke to the group about his 1945-46 work as U.S. chief prosecutor at Nuremberg of Nazi war criminals.

Justice Jackson’s rough notes, from which he spoke, indicate that he discussed the Nuremberg trial and its lasting implications. He described how the Nuremberg judgment recognized individual responsibility under international law. Jackson explained that international law fetters national sovereignty in ways that resemble how the 14th Amendment to the U.S. Constitution limits the sovereignty of States to violate the rights of individuals.

Following the dinner, Dr. Johnson wrote to Justice Jackson, thanking him for his presence and his remarks. Noting that Jackson and his Nuremberg colleagues had worked there to establish “world community,” Johnson stated his “hope that our own nation may come to exercise increasingly effective leadership toward its realization.”

There is, interestingly, no record of a Jackson response to Billikopf’s comment on Jackson’s “Bob” signature. Following that Billikopf letter, Jackson’s secretary, not he, handled the additional pre-dinner correspondence.

At the Howard University dinner, Billikopf surely greeted Jackson and introduced him to the group as “Mr. Justice.” That would have been consistent with half of what I suspect were Billikopf’s modes of interacting with his friend Justice Cardozo. Their “compromise” was, I think, that Billikopf called him “Ben” in private communication and “Mr. Justice” in public settings.

* * *

This got me thinking. I wonder how readers (particularly trial judges and trial lawyers} handle these situations. If you get a chance, add a comment. I am interested in your views, particularly your “war stories.” Thanks!

And once again, a “shout out” to the delightful Jackson List and Professor John Q. Barrett.*

RGK

*You can go to this link to subscribe to the Jackson List which is delivered by private e-mail. It is free.

 

 

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