You may be lead astray … by a neurotic who reacts as though he were guilty even though he is innocent—because a lurking sense of guilt already in him assimilates the accusation made against him on this particular occasion.… People of this kind are often to be met, and it is indeed a question whether your technique will succeed in distinguishing such self-accused persons from those who are really guilty.21
In addition to citing Freud and dozens of other psychological sources, I also invoked my favorite novelist, Dostoyevsky, noting that in The Brothers Karamazov
the author describes how Ivan—the brother who had desired death of the father but had not perpetrated the act—manifests all the traditional symptoms of guilt described by Wigmore, whereas the actual murderer reacts in a cool dispassionate way, consistent—according to Wigmore—with innocence.22
Judge Bazelon approved of my somewhat sophomoric display of erudition, and the conviction was reversed for a new trial with proper instructions. Judge Warren Burger wrote a scathing dissent—arguing that our proposed instructions “may be appropriate to a philosophical interchange between judges, lawyers and experts in psychology … but are unnecessary to a jury.”23 Judge Bazelon assured me that Burger’s dissent “proves we’re right.”
Other cases dealt with the pervasive problem of police perjury—today it’s called “testilying.”24 If a search or interrogation is found to be unconstitutional, its fruits are generally excluded, even if they would prove the defendant’s guilt.25 Not surprisingly, many police officers (as well as prosecutors) hate these “exclusionary rules” and do whatever they can to circumvent them. Some policemen resort to perjury, occasionally assisted by prosecutors in making their “testilies” fit the law. I was shocked when Judge Bazelon first told me about this phenomenon. We didn’t learn about this dark side of the law at Yale, and at first I was skeptical. But then I read case after case in which police officers—often the same ones, from the same drug unit—would give essentially the same scripted testimony. Somehow, the suspect always “dropped” the drugs before the police officer arrested him. Bazelon called this “dropsie testimony.” Or the suspect would “blurt out” a confession before being interrogated. Bazelon called this a “blurtsie confession.”
Bazelon had no patience for testilyiers, for the prosecutors who coached them, or for trial judges who pretended to believe their obvious lies. He would call them out on it, much to the chagrin of some of his fellow judges, especially Warren Burger. Sparks would fly and Bazelon generally ended up in dissent, but he had made his point.
Years later, in my first popular book, The Best Defense, I summarized what I had seen in Judge Bazelon’s chambers and had then experienced in several cases I had litigated. I called my summary “The Rules of the Justice Game.”26 Slightly amended by subsequent experience, here are “the rules”:
Rule I: Most criminal defendants are, in fact, guilty.
Rule II: All criminal defense lawyers, prosecutors, and judges understand and believe Rule I.
Rule III: It is generally easier to convict guilty defendants by violating the Constitution than by complying with it, and in some cases it is impossible to convict guilty defendants without violating the Constitution.
Rule IV: In order to convict guilty defendants, many police witnesses lie about whether they violated the Constitution.
Rule V: All prosecutors, judges, and defense attorneys are aware of Rule IV.
Rule VI: In order to convict guilty defendants, many prosecutors implicitly encourage the police to lie about whether they violated the Constitution.
Rule VII: All judges are aware of Rule VI.
Rule VIII: Many trial judges pretend to believe police officers who they know are lying.
Rule IX: All appellate judges are aware of Rule VIII, yet many pretend to believe the trial judges who pretend to believe the lying police officers.
Rule X: Many judges claim to disbelieve defendants about whether their constitutional rights have been violated, even if they are telling the truth.
Rule XI: Most judges and prosecutors would not knowingly convict a defendant they believe to be innocent of the crime charged (or a closely related crime).
Rule XII: Rule XI does not apply to members of organized crime, drug dealers, career criminals, terrorists, or potential informers.
Rule XIII: Almost nobody really wants justice.
All in all the Bazelon clerkship proved to be a turning point. He helped shape me into the person I have become. He influenced me as a lawyer, teacher, writer, public intellectual, and as a liberal Jew. His highest praise for any person was that he or she was “a mensch.” I have aspired to that accolade. When Judge Bazelon retired in 1985, I wrote the following about his contributions to our nation:
David Bazelon is certainly not a household name to most Americans. Yet Judge Bazelon—who just retired after thirty-six years of distinguished service on the U. S. Court of Appeals—has been your conscience in Washington since 1949.
No single judge—whether on the Supreme Court, the lower federal courts or the state courts—has had a more profound impact on the law’s sensitivity to human needs.…
As a judge, he saw the enormous disparities between how the wealthy are treated in court and how the poor are mistreated. Although he provided few final answers, he pricked the conscience of a nation, and he goaded the U. S. Supreme Court into action in several cases.27
No student can go through a three-year course at any major law school without studying the life work of David Bazelon. The reason for Bazelon’s continuing impact is that his primary role—as he saw it—was to raise enduring questions, not to provide transient, trendy solutions. He saw the intermediate appellate courts, such as the one he served on, as uniquely capable of raising questions and directing them at the Supreme Court, the lower district courts, the legislatures, and the executives.
Over my own career, I have certainly not been known for effusively praising the judiciary. Indeed, part of the reason I have been so critical of so many judges is that I learned at the feet of one who set a tone and provided a model that few can meet. Perhaps in that respect Bazelon has made me too tough a critic of others. I know he would be proud of having provoked hard questions, even about the judiciary that he loved.
Several years after retiring, David Bazelon called to inform me that he had early stage Alzheimer’s, a disease that also afflicted my father. I visited with Bazelon all through his illness, often with his closest friend, Bill Brennan. We would take Bazelon on walks, reminisce with him, and tell him stories. I remained his law clerk until he died at age eighty-three.
Halfway through my year with David Bazelon I was offered a clerkship with Justice Arthur Goldberg. I was also offered a clerkship with Justice Hugo Black, but I strongly preferred to clerk for a new justice, whose views were not as firmly formed. I asked to see Justice Goldberg before I formally accepted his offer. I told him that I would not be able to work on Saturday or Friday night and asked him if he still wanted to extend the offer. He angrily replied, “I should withdraw the offer just because you asked me that ridiculous question. What do you think I am? How could I possibly turn down somebody because he is an Orthodox Jew?” I apologized for asking the question, but told him that I had previously been turned down by the firm of Paul, Weiss, Rifkind, Wharton, and Garrison. He said, “Paul, Weiss turned you down because you were Orthodox? I’m going to call my friend Si Rifkind. He won’t let them get away with that.” I sheepishly replied that it was Simon Rifkind who turned me down. (Years later, Arthur Goldberg was offered a partnership at Paul, Weiss, and before accepting he insisted on being assured that what had happened to his law clerk would never happen to another Orthodox Jew. Paul, Weiss now has many Orthodox Jews.) Goldberg told me that my co-clerk was Christian and didn’t work on Sunday, so he would have assistance available to him seven days a week.28 It worked very well, except that on one Saturday an emergency death penalty petition came to Justice Goldberg, and I was the death penalty
specialist. So Justice Goldberg had his driver take him to my house in Hyattsville, Maryland, where he knew I would be, and we conferred on the case and he made his decision.
A few months before I started my Supreme Court clerkship, my grandmother came to town, and I took her and my son Elon, who was then two years old, to see the Supreme Court. We got permission to go to Justice Goldberg’s chambers, but he was not there. His secretary, Fran Gilbert, invited me to take my grandmother and my son into the justice’s private office to look at the paintings, which were done by his artistic wife, Dorothy. The new decorations in his office had just been finished, and his secretary told me that Goldberg was proud of how nice they looked. My son, however, had no appreciation for the new rug and proceeded to leave a large yellow stain in front of Justice Goldberg’s desk. When the justice came in, I was on my hands and knees scrubbing the rug with soap. This time, he almost did fire me, but with my grandmother there he would have had a hard time. My grandmother did have an argument with him. She told him that she noticed that morning that I had davened (prayed) for only twenty minutes. “It takes at least a half hour,” she said. “He’s skipping. Tell him to take the full half hour.” Justice Goldberg shook his finger at me and said, “Listen to your grandmother.”
Before I knew I was to be selected by Justice Goldberg, I interviewed with several of the other justices, including John Harlan, an elegant aristocrat whose grandfather had also served on the Supreme Court. He was impressed with my grades, but he gently asked me why I hadn’t worked during the summer for one of the “great Wall Street firms.” I couldn’t believe that he didn’t know that the “great Wall Street firms” were not hiring Jewish kids from Brooklyn. Harlan had himself been a senior partner in one of those firms, and I assumed that he was familiar with their hiring policies. I later learned from one of his Jewish law clerks—he hired many Jews to work for him when he was a judge—that Justice Harlan was probably oblivious to his firm’s hiring practices, or at least never really thought about them. Maybe!
I began working for Justice Goldberg on August 1, 1963, just a month before Martin Luther King delivered his “I Have a Dream” speech from the steps of the Lincoln Memorial. A large rally was planned and I wanted to attend. But Justice Goldberg told me that Chief Justice Earl Warren did not want members of the judiciary—which included clerks—to be on the mall that day, because there might be violence, and cases growing out of the violence might come before the courts. I asked Judge Bazelon what I should do. “Come with me,” he proposed. He and another judge were going to the mall to listen from the rear and off to the side, in relative anonymity. I went with them and so was able to hear that remarkable speech (following several long-winded speakers representing the groups that had organized the event). I never told Justice Goldberg.
My clerkship with Justice Arthur Goldberg was, in many ways, more exciting than my clerkship with Judge Bazelon. It was, after all, on the Supreme Court, where nearly every case made headlines. During my Goldberg clerkship, President Kennedy was assassinated, Lee Harvey Oswald was killed, and Lyndon Johnson ascended to the Oval Office. Many transforming decisions were rendered in areas as wide-ranging and important as desegregation, freedom of the press, the rights of criminal defendants, reapportionment, the law of obscenity, the death penalty, and trial by jury. Yet, in a more personal way, my second clerkship was anticlimactic. I learned more during my year on the court of appeals than during my year on the high court, in part because Judge Bazelon was such a remarkable teacher and in part because it was my first exposure to the judiciary. This is not to diminish the impact Justice Goldberg had on my life. It too was profound and enduring. The major difference was that Justice Goldberg, who saw me as a protégé, had a specific life plan for me: He wanted me to follow in his footsteps. He saw my professional life unfolding parallel to his. He wanted me to work in the Kennedy administration. Indeed he arranged for me to become an assistant to then attorney general Robert Kennedy—without even asking me! It was well intentioned, and it might even have been the right choice of job following the clerkships, but it was his choice, not mine. He wanted me to aspire to a judgeship, perhaps even justice of the Supreme Court, but I never wanted to be a judge. (Neither, it turned out, did he, since he resigned from the Supreme Court after only three years.)
Judge Bazelon, on the other hand, encouraged me to create my own unique career path and avoid the “cookie cutter” paths for which most elite young lawyers opt. “Don’t follow in anyone’s footsteps,” he urged me. “Your feet are too big to fit anyone else’s print. Create your own life. You are unique. Live a unique life. Take risks. Live boldly.” It was scary, but it fit my personality to a T.
MY YEAR OF CLERKING FOR JUSTICE GOLDBERG
Justice Arthur Goldberg was a man of action. Before being nominated at age fifty-four to the Supreme Court by President John F. Kennedy, Goldberg had accomplished an enormous amount. Unlike most of the current justices, he would have been in the history books even had he never served on the high court.
Arthur Goldberg helped establish the profession of labor law. He represented the most important labor unions; he helped merge the American Federation of Labor (AFL) with the Congress of Industrial Organizations (CIO); he helped rid unions of Communist influence; and he argued some of the most significant labor cases before the Supreme Court, including the steel seizure case of 1952,29 which challenged the authority of the President to take control over an entire industry in response to a strike. He was perhaps the most successful secretary of labor in history, settling one strike after another and being recognized as a legendary mediator.30
The Supreme Court is not a place of action, it is an institution of reaction—to cases and controversies generated by others. It is a place of thoughtful, often solitary, meditation and research. Justice Goldberg was used to working with many people. He was accustomed to crises. When he arrived at the Supreme Court, he once summarized the situation this way: “My phone never rings.” The high court is the loneliest of institutions. As Justice Brandeis once put it, “Here we do our own work.”31 The justices only occasionally interact: on the bench; in the weekly, somewhat formal, conference; and in informal one-on-one meetings, which were rare then and even rarer today.32 In the 1960s the justices almost never appeared on television or gave interviews. (Today, several do.) It is fair to say that Justice Goldberg was lonely and restless and craved the active life he had left behind.
This is not to say that Justice Goldberg was not a serious intellectual. He was. He was also one of the smartest justices in history. He loved the Supreme Court. He loved the law. He loved having intense discussions with his law clerks about jurisprudence. But he needed more than contemplation, deliberation, and discussion. The “passive virtues,” as Professor Alexander Bickel once characterized the Supreme Court’s role in not making decisions, were vices to Arthur Goldberg.33 He wanted to get things done. He too was an unapologetic judicial activist. He came to the high court with an agenda—a list of changes he wanted to engender.
I will never forget my first meeting with my new boss when I came to work in the Supreme Court during the summer of 1963. He tossed a certiorari petition—an application by a prisoner for review by the high court—at me from across his desk and asked me to read it in his presence. He then asked me, “What do you see in it?” I said, “It’s a pro se cert petition in a capital case.” He said, “No, what you’re holding is the vehicle by which we can end capital punishment in the United States.” Abolishing the death penalty was the first item on his “to do” list as a justice.
My major responsibility during the first part of my clerkship was to draft a memorandum supporting Justice Goldberg’s view that the death penalty was cruel and unusual punishment. He knew we had no chance of getting the majority to support that view—at least not yet—but he wanted to start a dialogue that would ultimately lead to the judicial abolition of the death penalty. He decided to focus first on an interracial rape case involving a black defe
ndant and a white victim, since almost no whites had been executed for raping blacks, but many blacks had been executed for raping white women. He knew that the key justice would be William Brennan, since if the liberal Brennan would not go along with him, he had no chance of beginning any meaningful dialogue. Because I had done all the research, he assigned me the delicate task of trying to get Justice Brennan to join our opinion. It was a daunting task for a twenty-four-year-old law clerk to persuade a justice of anything, but I went in to see Justice Brennan and he listened to me politely without committing himself. Eventually he did join Justice Goldberg’s dissenting opinion and the dialogue was begun. Within less than a decade, it resulted in the judicial abolition of capital punishment, but soon thereafter it was resurrected. The “game” of two steps forward, one step backwards is ongoing.
Justice Goldberg always tried to find a legal basis to save the life of every condemned inmate. Mostly he succeeded. In one such case, he was petitioned to stay an execution and he needed the approval of one more justice to obtain a majority. He called Justice Harlan and secured his oral consent. He then asked me to drive to Justice Harlan’s home to have him sign off on the stay. He told me to wait until the justice and Mrs. Harlan finished dinner. And so, at about 9 P.M., I arrived and was shown in by a butler. The justice was sitting at one end of a rather long table, Mrs. Harlan at the other end. Both were wearing formal dinner attire. It was a scene right out of the nineteenth century. Justice Harlan asked me to wait in the library. When he joined me, the butler brought me a coffee, and the justice and I had a brief, polite discussion about the news and then went about the business at hand. It was an evening I will never forget. Not only did we save a life, but I was introduced to a world that I’d thought no longer existed.
Taking the Stand Page 10