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Klarman Class Day Talk HLS 2010 - iSites



                                        May 26, 2010
                              Class Day Talk: Lawyers as Heroes

I am deeply honored to receive the Sachs-Freund teaching award. It makes me almost as happy
       as the Red Sox coming back from a 3-0 deficit against Yankees in 2004. Almost as

Seriously, though, this means a great deal to me, it’s an honor I’m quite certain that I don’t
       deserve, but I am nonetheless very touched that you have chosen to bestow it upon me.

I am pretty sure I’m supposed to say something to you today that is either funny or inspirational.
       I don’t really do funny, at least not very well. And what most inspires me is baseball, and
       I doubt that’s the right topic for today, if for no other reason than that some of you are
       Yankees fans, and I don’t have anything either very inspirational or flattering to say to
       such creatures.

The best I could come up with was to tell you a few stories about a couple of lawyers who are
       heroes to me and whom I hope you might also find inspirational: Thurgood Marshall and
       Ruth Bader Ginsburg.

Unfortunately, as I am a person of limited stories, some of you have heard at least some of these
       stories before, but I hope you will bear with me.

I think the take-away lesson, if there is one, is that when you consider some of the obstacles these
        people faced and overcame in their struggles to make the world a better place, one may
        come to appreciate that people today who are committed to social reform actually have
        things pretty easy, so there’s less of an excuse for us not even to try.

So let me start with Marshall and then move onto Ginsburg.

It is useful, I think, to begin by thinking about what difficulties ordinary lawyers face in
         preparing their lawsuits. A client brings a case to you. You then have to investigate the
         facts. You also study the law to see how it applies to your case. Then you have to use the
         facts and existing law to marshal arguments that hopefully will convince a court to rule in
         favor of your client.

Things were so much tougher than this for an African American civil rights lawyer such as
       Thurgood Marshall.

One obstacle he faced that ordinary lawyers don’t was the threat and reality of physical violence.

Black civil rights lawyers in the South were challenging a deeply entrenched status quo; many,
       indeed most, whites were resistant to change, some of them fiercely so.

And in some parts of the South, the culture of extralegal violence against blacks had only begun
       to dissipate quite recently. It hadn’t been so very long ago that scores of blacks were
       lynched every year in the South, often for conduct far less insurrectionary than litigating
       against segregation.

Even as late as the 1940s and 1950s, some blacks engaged in civil rights protest were killed for
       what they were doing. A great many others were beaten and maimed.

For example, when World War II veteran Etoy Fletcher tried to register to vote in rural
       Mississippi in 1946, the registrar informed him, according to a letter Fletcher sent to the
       NAACP, that ―Niggers are not allowed to vote in Rankin County, and if you don’t want
       to get into serious trouble, get out of this building.‖ While waiting for a bus out of town,
       Fletcher was assaulted by four whites who drove him several miles into the woods, beat
       and flogged him mercilessly, and warned him that he would be killed if he ever again
       attempted to vote.

In Montgomery County, Georgia, in 1946, D. V. Carter organized an NAACP branch, which
      consisted mainly of farmers and sharecroppers and was principally devoted to voter
      registration. Several hundred blacks registered as a result of his efforts. After ignoring
      repeated warnings from the KKK to desist, Carter was severely beaten. Isaac Nixon,
      whom Carter had persuaded to vote, was murdered. An all-white jury acquitted the two
      whites who had killed him.

It wasn’t just prospective black voters who faced the threat and reality of physical violence; civil
       rights lawyers did as well.

Thurgood Marshall was nearly lynched in 1946, while representing black defendants in
      prosecutions arising from the Columbia, TN race riot.

Other NAACP lawyers in Nashville and Birmingham had their homes bombed in the early 1960s
       because they had brought school desegregation suits.

Another problem black civil rights lawyers faced was racial prejudice of judges and juries, all of
      whom, in the South at least, were white at this time.

When black NAACP lawyers argued cases before the Fifth Circuit in the early 1930s challenging
      race discrimination in voting, the judges on the bench literally turned their backs to the
      lawyers, not wishing to acknowledge their presence.

In correspondence with the NAACP’s national office, these lawyers wondered whether even
        showing up for oral argument was worthwhile, given that only an appeal to the U.S.
        Supreme Court held any hope of success.

Yet the Supreme Court wasn’t always the most hospitable environment either.

Justice James McReynolds–whom my students will immediately identify as the worst human
        being ever to sit on the U.S. Supreme Court–McReynolds likewise turned his back on
        Charles Hamilton Houston when he argued the Gaines case in 1938, challenging
        Missouri’s exclusion of blacks from higher education.

Can you imagine that? Houston was a Harvard law school graduate, a protégé of Felix
      Frankfurter, a brilliant lawyer, and the dean of Howard Law School–and Justice
      McReynolds literally turned his back on him.

There is another important point to appreciate about the job of these civil rights lawyers.

We think of lawyers as people who argue cases in court, but in some ways the most important job
       of African American civil rights lawyers took place outside the courtroom.

These lawyers went into southern black communities and tried to teach people, many of whom
       were still illiterate and few of whom knew much about the Constitution, that they had
       rights–rights which white people were legally obliged to respect.

Black civil rights lawyers such as Marshall and Houston saw part of their role as mobilizing
       southern blacks to fight against an oppressive status quo, encouraging them to believe
       that progressive racial change was indeed possible, boosting their morale by
       demonstrating to them that an outside organization cared about their interests and was
       committed to helping them overcome what must sometimes have seemed like
       insurmountable barriers to social change.

Houston, the NAACP’s chief litigator for much of the 1930s, saw a principal goal of the
      litigation campaign as ―arousing and strengthening the will of local communities to
      demand and fight for their rights.‖

Thurgood Marshall’s biographer, Mark Tushnet, writes of Marshall being brought to town
      ostensibly ―to work on pending litigation but actually to rally the troops.‖

In a letter to Marshall, Houston referred to himself as ―not only lawyer but as evangelist and
                stump speaker.‖

The NAACP recognized the beneficial psychological effect that using African American lawyers
      could have on local black communities. Southern blacks were not accustomed to seeing
      black people stand up to whites on a footing of equality or challenge what white people
      said. But a black lawyer in court could, for example, accuse a white sheriff of lying when
      he denied beating a black defendant into confessing. Such performances had an

       enormous impact on the black audience in the courtroom.

Here’s how Marshall described what happened in a courtroom in Hugo, Oklahoma in early 1941
       as he defended a black man named Lyons from murder charges that may well have been
       trumped up.

Lyons had been beaten into confessing, a fact that Marshall was trying to get the sheriff and his
       deputies to admit under cross-examination.

Marshall and his co-counsel, a white ACLU lawyer, had agreed that Marshall would cross-
      examine all of the police officers, according to Marshall, ―because we figured they would
      resent being questioned by a Negro and would get angry and this would help us. It
      worked perfect. They all became angry at the idea of a Negro pushing them into tight
      corners and making their lies so obvious. Boy, did I like that–and did the Negroes in the
      courtroom like it. . . . You can’t imagine what it means to those people down there who
      have been pushed around for years to know that there is an organization that will help
      them. They are really ready to do their part now. They are ready for anything.‖

So, it is important to emphasize that for black civil rights lawyers in the South, the
         organizational, motivational, educational and role modeling parts of the job were as
         important as coming up with winning legal arguments.

The same was true of Ruth Bader Ginsburg, who headed the Women’s Rights Project of the
      ACLU in the 1970s. She, too, saw her role as encompassing much more than being a
      lawyer in court: She lobbied legislatures in favor of the Equal Rights Amendment and
      wrote letters to ACLU affiliates around the country, advising them of priorities and
      informing them of developments in other states.

She also saw educating the public about sex discrimination as an important part of her role.
       When her female law students lobbied for a course on sex discrimination in the late
       1960s, she put one together from scratch, and then coauthored the nation’s first casebook
       on gender and the law and encouraged law schools around the country to teach such a
       course. Ginsburg maintained a constant stream of correspondence with student law
       review editors, urging them to write about recent sex discrimination cases, educating
       them about the issues involved, and providing them with briefs and other materials to
       enhance their scholarship. She also wrote letters to the New York Times and other
       journals, encouraging them to cover sex discrimination issues and correcting mistakes
       when their coverage went awry.

Ginsburg was an organizer, mobilizer, publicist, and educator for the sex equality movement—
      just as Thurgood Marshall had been for the civil rights movement a generation earlier.

Ginsburg had to overcome some formidable obstacles to get where she did.

Her life story nicely illustrates what the professional world was like for women 50 years ago–if
        you think Mad Men, you won’t be far off the mark. Her story also illustrates how much
        that world has changed since then, and how much it is possible for a dedicated lawyer to
        contribute to such social reform.

Ginsburg entered HLS in 1956, one of 9 women in a class of over 500.

Early in the school year, Dean Ervin Griswold had the women over to his house for dinner and
        during the course of the evening he asked them why they wanted to be at HLS, taking up
        the spot of a man who presumably could put his legal education to better use: Ginsburg,
        unprepared for the question, said something like, ―well, it was important for a woman to
        be informed about her husband’s profession.‖ Her spouse, Marty Ginsburg, was a year
        ahead of her in the law school. In 1956, nobody could have confidently predicted that
        women would ever serve on the US Supreme Court.

After two years at Harvard, Ginsburg wanted to transfer to Columbia for her third year because
        her husband had graduated, accepted a job in NY, and they already had a young child.
        Harvard refused to allow her to transfer for her third year and still receive a Harvard
        degree—a decision that the school has, shall we say, had some occasion to regret over the
        last 50 years. Though HLS has several times offered Judge and later Justice Ginsburg a
        Harvard Law degree, she has yet to accept it, though I’m glad to report that she does
        happily hire law clerks from Harvard (though it’s important that you understand that
        being a baseball fan is a negative qualification in her mind; she loves the opera; she can’t
        understand why any sentient being would be interested in sports. Her loss! Nobody is

When Ginsburg graduated from Columbia in 1959, she was tied for first in her class, and had
     served on both the Harvard and Columbia Law Reviews. Her professors tried to get her a
     federal clerkship, for which she was eminently qualified, but no federal judge in the NY
     area would hire a young mother as a law clerk. Finally, one of her professors, Gerald
     Gunther, got a federal district judge named Palmieri to hire Ginsburg by offering a
     personal guarantee that if she did not work out, he would find a male replacement. She
     worked out so well that Palmieri eagerly hired female clerks in the future.

Ginsburg tells a great story about how she got her start in legal academia. Rutgers had no women
      on its faculty (like most law schools in the early 1960s), but they had an African
      American, which was pretty rare at the time. When he left to become dean at another law
      school, Rutgers tried to replace him with another black man. Not finding one to their
      liking, they hired a white woman instead: African American and female professors were
      equally curiosities in those days and thus, apparently, were seen as basically fungible.

Ginsburg overcame such barriers to become, in 1970, the first tenured professor ever hired by

       Columbia Law School. That same year, she helped found the Women’s Rights Project of
       the ACLU. She argued 6 landmark sex discrimination cases in the Supreme Court in the
       1970s, winning 5 of them.

The elderly male justices before whom she argued these cases sometimes treated sex
       discrimination with a frivolity with which they would never have treated race
       discrimination at that time.

After concluding an oral argument in a case challenging a state law that provided for jury service
       on different terms for men and women, one justice joked, ―So, then, you won’t accept
       having Susan B. Anthony on the dollar?‖ If you’ve got a good response to that one, then
       HLS has given you a very good legal education indeed!

Other justices referred privately to her briefs as ―emotional‖ and recorded the color of the
       clothing Ginsburg wore during her oral arguments, once again illustrating how deeply
       ingrained were the very sex stereotypes she was trying to get the Court to strike down.
       She preferred red, by the way.

My other favorite story that Ginsburg relates is also from this time period, when she was a
      tenured professor at Columbia Law School and at the same time heading the Women’s
      Rights Project, litigating cases in the Supreme Court, and traveling around the country
      testifying in favor of the ERA.

Ginsburg frequently received phone calls at her office about her son, James, then about 10, who
      was acting up at school. She finally got exasperated about the calls and said in reply to
      one, ―This child has two parents. I suggest from now on that you alternate between them
      when you need to speak to someone about James.‖ Ginsburg reports that even though
      James’ behavior did not materially improve, the phone calls ended, because the school
      would not dream of bothering a busy male tax attorney during his working hours.

So, to sum up, civil rights lawyers like Marshall and women’s rights lawyers like Ginsburg were
        up against a lot: Marshall faced the threat and reality of physical violence as well as
        deeply prejudiced judges and jurors. When he left the Supreme Court building after his
        oral argument in Brown, there were very few places in Washington, DC that would serve
        a black man a bite to eat.

Ginsburg went to law school at a time when women lawyers were widely ridiculed. She couldn’t
      get the fancy clerkship she had earned and only got a job in law teaching as a sort of
      curiosity. The justices before whom she challenged sex discrimination did not always
      take her very seriously and, being steeped in the very sex stereotypes she was asking them
      to eradicate, they often had a hard time even comprehending how the statutes she
      challenged actually harmed women.

Marshall and Ginsburg overcame their respective obstacles, helped organize movements for
      social reform, educated people about their rights, encouraged them to believe that the
      status quo was not inevitable, and inspired followers by modeling behavior that
      contravened the very stereotypes that helped entrench that status quo.

Fittingly, many years later, each took his or her place on the US Supreme Court, thus
        demonstrating through their own lives that profound social reform is possible, that it can
        happen more quickly than most people would ever have imagined, and that bold, hard-
        working, and dedicated lawyers can play an instrumental role in bringing it about.

Good luck to all of you in your budding legal careers, and do us proud, as we know you will.

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