[Congressional Record Volume 140, Number 98 (Monday, July 25, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: July 25, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
                         ADDITIONAL STATEMENTS

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          ``ON THE MATTER OF RACE, LAW AND THE AMERICAN WAY''

 Mr. SIMON, Mr. President, I do not know if other Members of 
the Senate are like I am, but I frequently put magazines and books 
aside, hoping to get to them at a point when I have a little leisure 
time. Having focused the attention of my few leisure hours in the last 
few months on getting a couple of books finished, I am now catching up 
on things. I came across the April issue of Black Issues In Higher 
Education, a periodical that does a solid job in the field of higher 
education.
  In the April issue is an interview with one of the most impressive 
public officials I have ever met, Judge Leon Higginbotham.
  He has retired from active service in the judiciary and has been 
lecturing at various universities.
  With a marvelous, incisive and sensitive mind, Judge Higginbotham 
through the years has put his finger on the problem that face our 
society over and over again.
  I read what he wrote with great admiration long before I ever had the 
privilege of meeting him.
  Black Issues In Higher Education has an interview with him titled 
``On the Matter of Race, Law and the American Way.''
  It is a fairly sweeping look at what is happening in our society, as 
well as our judiciary.
  Like anything else Judge Higginbotham writes or says, it is worth 
reading and reflecting upon.
  I ask to insert it into the Record at this point.
  The article follows:

                [From Black Issues in Higher Education]

            On the Matter of Race, Law, and the American Way

  (Judge A. Leon Higginbotham, Jr., interviewed by B. Denise Hawkins)

       As a young man growing up in Trenton, NJ, former federal 
     court Judge A. Leon Higginbotham, Jr. experienced first-hand 
     the unequal application of the law and learned early that 
     skin color can make the difference between acceptance and 
     denial.
       But it was not until he entered Purdue University at the 
     age of 16 that he began trying the system by challenging the 
     university's racially biased housing policy. He lost that 
     case, but not his desire for justice.
       The son of a domestic worker and a laborer who extolled 
     virtues of education, Higginbotham has gone on to become one 
     of the nation's leading legal scholars. In his award-winning 
     book, In the Matter of Color: Race and the American Legal 
     Process, he reveals the motivation for his scholarship: ``I 
     became intensely eager to acquaint myself with . . . the 
     lessons of racial history, to ascertain to what extent the 
     law itself had created the mores of racial repression.''
       The seemingly hopeless and tenuous issue of race has been a 
     constant for Higginbotham, but it has not left him bitter or 
     even hopeless. His sense of outrage has instead been 
     controlled and in several instances channeled into legal 
     writing. One has only to read his celebrated ``An Open Letter 
     to Clarence Thomas From a Federal Judicial Colleague,'' to 
     get a glimpse of his style.
       Last year, he stepped down from the bench as senior circuit 
     court judge of the United States Court of Appeals for the 
     Third Circuit after 29 years. He was the longest serving 
     active federal judge.
       He is currently of counsel to Paul, Weiss, Rifkind, Wharton 
     & Garrison.
       At a time when many people his age are enjoying their 
     retirement, Higginbotham is returning to the classroom--
     Harvard--as a full professor, after having taught and 
     lectured at some of the nation's most prestigious 
     institutions--Yale, Stanford, New York University, the 
     University of Michigan, the University of Hawaii, the 
     University of Pennsylvania as well as Harvard University.
       Q. While you were on the bench, you maintained a hectic 
     schedule that included legal writing and teaching. Why, at 
     this stage in your career, have you chosen to return to the 
     classroom full-time?
       A. I enjoy intellectual inquiries that reveal why certain 
     complex problems exist, and their origin. The academic 
     community gives one the rare luxury for intense inquiry and 
     insightful reflection on serious problems. If done 
     thoughtfully, one can pursue and articulate long-term 
     solutions that will make a systematic difference. I left the 
     bench and joined academia because I believe that, in the long 
     run, I will be able to focus more on identifying and 
     implementing viable solutions.
       More important, all law students should understand the 
     history of the American legal process for at least three 
     centuries. Without historical insight, it becomes difficult 
     to evaluate the alternatives that the legal process could 
     have or should have. Secondly, I would want them to have a 
     sense of caring and mission to aid the downtrodden and the 
     powerless. They must seek to implement Martin Luther King, 
     Jr's statement that we must ``have the temerity to believe 
     that people everywhere can have three meals a day for their 
     body, education for the minds, and dignity for their 
     spirits.'' Third, they should always pursue excellence and 
     maintain ethical conduct.
       Q. You have been contemplating teaching at Harvard, where 
     your contemporary Derrick Bell left his tenured position to 
     protest the absence of tenured Black women on the law 
     faculty. Did you consider teaching at a historically Black 
     law school?
       A. I will not be teaching primarily at Harvard Law School. 
     My full professorship will be at the John F. Kennedy School 
     of Government, but every third semester, I will teach one 
     course at the law school. I think there is a partial 
     distortion of information about Harvard Law School. it does 
     not have a bad record on student recruitment and retention. 
     The student body is 25 percent minority and 11 percent 
     African American. The presence of approximately 150 African-
     American students is significant. There are four tenured male 
     professors at the law school. There should be tenured 
     minority women on the faculty, and I shall do everything I 
     can to make that occur.
       But you recognize the irony of the fact that, although 
     Derrick Bell left Harvard because there were no women in 
     tenured positions on that faculty, he joined the New York 
     University Law School, which has two women, but no Black men 
     in tenured positions. This spring, while I am at the National 
     Humanities Center in North Carolina, I had the option to 
     teach at Duke Law School, the University of North Carolina 
     Law School or North Carolina Central Law School. I chose 
     North Carolina Central, which has a predominantly Black 
     student body.
       Q. You say that study and research of law are key to 
     understanding issues of racism, discrimination and the 
     unequal distribution of power. How can today's youth gain 
     this knowledge and learn to use the law to their advantage?
       A. You have to encourage young people to read and think for 
     themselves. Too many young people want to say, `I'm for 
     brother Malcolm,' as if that is analytical. When I was at 
     Yale, you went to the law library on Saturday night, and more 
     often then not, all three Black students who were in my class 
     were there. My generation looked at scholarship as a serious 
     matter. In terms of young people, we must encourage them to 
     go back into the fundamental disciplines. If we don't master 
     those we are going to be in serious trouble. There is no easy 
     ride in life. Success, more often than not, requires sweat.
       What I see across the board, among Blacks and whites, is a 
     lack of tenacity which we had in our generation. What 
     astonishes me is young people in high school who don't even 
     take their books home. When the teacher gives them a paper to 
     do, they get angry if they have to make it more than two 
     pages and critical. What scares me most is that the level of 
     discipline that was endemic to my generation I do not see 
     today.
       My mother was a domestic and my father was a laborer, but 
     they had high expectations for me in terms of grade 
     performance. I remember that in the sixth grade I had all A's 
     but one, and my father was so alarmed he withdrew my 
     allowance. When I went to junior high school in Trenton, NJ, 
     at an all-Black school, even art teachers were very 
     demanding. David Dinkins [former New York mayor] went to the 
     same school. In high school, out of 13 boys, 11 got 
     postgraduate degrees. Some became doctors, dentists, school 
     principals. When we grew up, hard work was viewed as a 
     luxury, not a burden.
       Q. Some critics have assailed your acts of protest as 
     unbefitting a judge, others have described them as quiet, but 
     significant. How do you view your activism? In some of your 
     most notable acts of protest, you have written letters which 
     were published. Why?
       A. There are different styles. There is the opinion that 
     judges should not be critical of the society in which we 
     live. What that really means is that those who are in power 
     don't have to be critical of society because they have all 
     the benefits, and those who are not in power, but get in high 
     office, are not aware of injustices. I think that the roles 
     of a federal judge and a political official are different. I 
     try never to cross that line.
       There have been complaints from lawyers against Black 
     judges sitting on cases involving civil rights because Black 
     judges have been active in civil rights organizations. Well, 
     I don't hear complaints about Catholic judges deciding First 
     Amendment cases that could impact the Roman Catholic Church. 
     I don't hear complaints about men deciding cases which 
     involve the rights of women. If men can act and adjudicate 
     these issues, then minorities should be able to do the same. 
     I think scholarship in the long run has impact. There are 
     lots of Black people today, who in their pursuit of 
     intellectual excellence, don't know that they are repeating 
     the ideas which Du Bois brought forth in brooks like The 
     Souls of Black Folk.
       Q. In an ``An Open Letter to Justice Clarence Thomas From a 
     Federal Judicial Colleague,'' you spoke for many regarding 
     the selection of Thomas to the U.S. Supreme Court. It's been 
     more than two years since Thomas was appointed. What have you 
     observed?
       A. While Justice Thurgood Marshall was concerned with 
     moving the mantle of liberty and freedom so that it 
     encompassed more Americans, Clarence Thomas is someone who 
     has an 18th century concept of jurisprudence. He has been one 
     of the two or three most conservative jurists of this 
     century, and the best evidence of it can be seen in about 
     three or four cases. One of them is Hudson v. McMillan 
     which involved a prisoner who was taken out of his cell to 
     a holding area, shackled at the feet, handcuffed and 
     beaten by prison guards. They burst his lips, they broke 
     his dental plate, they loosened his teeth, kicked him in 
     the back. When the case came up before the U.S. Supreme 
     Court, the issue was whether the prisoner's treatment was 
     cruel and unusual punishment. Seven justices, with the 
     opinion written by Justice O'Connor, held at that it was 
     cruel and unusual punishment, and that in a civilized 
     society you don't allow that type of conduct.
       Shockingly, the dissent was written by Clarence Thomas. It 
     just seemed almost incomprehensible that a Black person who 
     has insights about how power has been so poorly misused, 
     would sanction that kind of behavior. That was shocking 
     enough.
       The Hudson case came down on Feb. 25, 1992, and the next 
     case came down in June 1993--McKenney. The case involved a 
     prisoner who was forced to be in a cell with someone who 
     smoked five packs of cigarettes a day. As a result, he 
     sustained all of the adversity of the environmental tobacco 
     impact. Again, several justices, with an opinion written by 
     Justice White, held that it could be cruel and unusual 
     punishment to force someone to live in a cell under those 
     conditions provided you could establish that there was a 
     risk. In a peculiar and incredible dissent, Justice Thomas 
     said that was not encompassed under the Eighth Amendment. 
     Thomas said you have to prove actual injury before you have a 
     remedy. What that meant was that you have to get cancer and 
     you'd have to be in a position of irrecoverability. That's 
     contrary to what all thoughtful judges in the world consider 
     cruel and unusual punishment.
       Q. In that same letter, you said the real tragedy of Plessy 
     v. Ferguson is that the Supreme Court associate justices who 
     decided that case had the wrong values, values that continue 
     to poison our society. What did you mean?
       A. In Plessy v. Ferguson, the simple question was would the 
     state be allowed to treat Black people differently than 
     everyone else. In the argument of counsel, they said if you 
     can discriminate on the basis of race, you can separate on 
     trains, can separate Irish from Italians, Jews from 
     Catholics. The argument the court faced was how to draw the 
     line to say what is permissible discriminatory conduct. They 
     said that the standard is reasonableness. Implicitly they 
     were saying that it would not be reasonable to separate 
     blonds from redheads or Irishmen from Italians or Methodists 
     from Episcopalians, but it was reasonable to separate Blacks 
     from whites. That was a value question.
       The seven justices who were in the majority in the Plessy 
     case looked upon Blacks as less than truly equal. Their 
     perception of Black people as unequals led them to write an 
     opinion which would allow discrimination against Black 
     people. They would not have allowed that to occur against 
     other major ethnic or religious groups. There have been many 
     profound changes since Plessy v. Ferguson; just look at your 
     state universities. You see a substantial number of Blacks 
     enrolling. I think the major problem today is that we try to 
     categorize problems in society on the basis of race, when the 
     root of the problem is really poverty and the lack of income 
     options.
       Q. Can you comment on your aspirations for a Supreme Court 
     appointment? How did you respond to claims that you and not 
     Thomas should have been appointed to the nation's highest 
     court?
       A. I'm flattered by the comments, but I don't think anyone 
     is entitled to a position on the Supreme Court. I think that 
     the country is entitled to a pluralistic court with 
     individuals who care deeply about the weak, the poor, the 
     powerless. My name apparently was on the list during the 
     Carter years. If someone had approached me in recent years 
     about being on the Supreme Court I would recommend strongly 
     that they not do that. I think that the person who gets on 
     the Supreme Court should be approximately in their 50s so 
     that the public can envision them functioning effectively 
     and--in the probability--be in good health for about 20 
     years. I'm 66 now and think it would be unwise for any 
     president to appoint anyone my age.
       Q. The evolution of your legal scholarship on racial 
     jurisprudence was grounded in personal experience and remains 
     so, how have you managed to get your work accepted and 
     published?
       A. When I was a 16-year-old student at Purdue University, 
     it was racial exclusion that triggered me to move from 
     engineering to law. I think that the acceptance of my 
     scholarship on the issue of race and the American legal 
     process has been broadbased. My book, In the Matter of 
     Color: Race and the American Legal Process, received the 
     highest award one can get from the American Bar 
     Association, the Silver Gavel Award.
       What my book does is give the statutory references and 
     references to cases which establish how the law was such a 
     critical component in legitimize racism. It is significant 
     because it shows that if the law can be used to sanction 
     slavery, cause millions of Black people to work for centuries 
     without pay . . . it certainly could be used in a positive 
     fashion to eradicate the consequences of racial injustice.
       The historical findings in the book have apparently been of 
     great importance to a large number of judges. Justice Brennan 
     cited my book three times in a case called McCleskey, 
     considered to be one of the most important cases dealing with 
     capital punishment under Georgia law.
       Q. You described your legal scholarship as broadbased. Do 
     you consider yourself a critical race theorist?
       A. I try to avoid the debates on critical race theory 
     because I'm not exactly certain what everyone is talking 
     about when they use that term to the extent that critical 
     race theory points out how the law has been an instrument of 
     injustice. There is a line from The Mikado that says, ``The 
     law is a perfect embodiment of everything that's excellent, 
     it has no kind of fault or flaw and I, my lords, embody the 
     law.'' That's the way people have tried to describe the law, 
     as though it was a perfect instrument. It has not been an 
     almost perfect instrument for a significant number of people. 
     The Constitution says ``we the people,'' but what we really 
     have is we the people and we the other people. The other 
     people in the early years were women who couldn't vote, 
     including white women, and Blacks who were enslaved or 
     couldn't get first-class citizenship. What I do--and what 
     Derrick Bell and many outstanding law professors do today--is 
     establish that the law was not the perfect embodiment of 
     everything that was excellent. That doesn't mean that you 
     give up hope on the law. It means that you understand its 
     pathology.
       Q. More than 20 years ago, President Johnson appointed you 
     vice-chairman of the National Commission on the Causes and 
     Prevention of Violence. How would you compare the social and 
     legal climate then for people of color to today?
       A. I served on the commission in 1968. Our recommendations 
     were very sound. We said we had to deal with problems of 
     poverty, discrimination and that in the long run they would 
     tear this country asunder. I think generally we did not deal 
     with those problems with the enthusiasm and the capability 
     that we had, and that's why we have the crisis that we have 
     now to the significant extent that we do.
       The point we made in the violence commission report is that 
     most civilizations have been destroyed, not by external 
     assault, but by internal decay. The nation will pay hundreds 
     of billions of dollars to bail out the failed savings and 
     loans. But if someone has an urban program and they unwisely 
     spend the money, then they talk about destroying the whole 
     project, and that's the tragedy of our present situation.
       Q. Historian John Hope Franklin said that Associate Justice 
     Thurgood Marshall spoke not only `for Black Americans but for 
     Americans of all times.' Do you agree?
       A. The point which John Hope Franklin makes is extremely 
     important. If the Brown decision had not been won in 1954, 
     segregation would have been legitimate and you would not have 
     had the basis to argue that segregation laws were 
     unconstitutional. So the 1964 Civil Rights Act, which makes 
     racial discrimination in employment and public accommodations 
     and in so many other areas illegal, was predicated on the 
     legal theme which is the core of the viability of the 14th 
     Amendment.
       In my opinion, the first Reagan administration did the most 
     to dilute the dream of Thurgood Marshall. During the first 11 
     and a half years of the Reagan and Bush administrations, 115 
     persons were appointed to the U.S. Court of Appeals. And of 
     the 115, only two were Black--of the two, Larry Pierce was 
     sufficiently senior, and you knew that he would not be on the 
     court but a few years, and the other one was Clarence Thomas. 
     In contrast, the Carter administration appointed in four 
     years several members to the court of appeals who were 
     African Americans. What you had during the Reagan-Bush 
     administration was a deliberate plot to preclude Blacks from 
     positions of significant lifetime power. Since President 
     Clinton came into office, he has appointed many more Blacks 
     in one year than Reagan and Bush did in 11.

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