[Congressional Record Volume 141, Number 130 (Saturday, August 5, 1995)]
[Extensions of Remarks]
[Pages E1676-E1678]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


             CELEBRATING THE CAREER OF JUDGE DAMON J. KEITH

                                 ______


                         HON. JOHN CONYERS JR.

                              of michigan

                    in the house of representatives

                         Friday, August 4, 1995
  Mr. CONYERS. Mr. Speaker, I rise today to pay tribute to one of the 
truly great Federal jurists of our era, the Honorable Damon J. Keith, a 
member of the Sixth Circuit Court of Appeals for 18 years and a member 
of the U.S. District Court for Eastern Michigan for 10 years, who 
recently announced he would assume senior status. He was born and 
raised in Detroit and attended Northwestern High School, where he was a 
champion track athlete. He graduated from West Virginia State 
University and received his J.D. from Howard University Law School. He 
furthered his legal education with an advanced law degree from Wayne 
State University in Michigan. Not long after, he formed his own law 
firm, Keith, Conyers, Anderson, Brown & Wahls which included my 
brother, Nathan Conyers. However, it soon became clear that he was 
drawn as much to public service and civic activism as he was to the 
private practice of law. He was particularly drawn to problems of 
racial discrimination, so that in the end he could not escape the 
brightly burning flame of the civil rights movement which illuminated 
the path to racial justice for his generation.
  In the early years of the civil rights movement in which Damon 
Keith's activism began, a major concern was the gross housing inequity 
in urban areas and uneven access to federally funded housing. Between 
1940 and 1960, approximately 3 million African-Americans migrated from 
the South to the North. As a young attorney, Keith had seen the 
percentage of the black population in Detroit explode from 9 percent to 
29 percent in that 20-year span. In the midst of this demographic 
transformation he was appointed president of the Detroit Housing 
Commission in 1958 to address the needs of the growing African-American 
population. In that same year, Michigan and two other States attempted 
to address widespread discrimination stimulated by the wave of urban 
migration with open housing bills, but all of them failed. This grim 
reality brought housing issues to the forefront of the civil rights 
movement. In 1961, Martin Luther King, Jr. wrote in The Nation magazine 
that the urban renewal program has, in many instances, served to 
accentuate, even to initiate, segregated neighborhoods. He explained 
that a large percentage of the people to be relocated are Negroes, 
[and] they are more than likely to be relocated in segregated areas.
  The struggle for equal rights appeared to reach a climax in 1964 with 
the passage of the Civil Rights Act which forbade discrimination in 
public accommodations and in the workplace. But with this great victory 
came challenges of equal magnitude which broadened the goals of the 
civil rights movement. There were riots in Chicago, Rochester, Harlem, 
and Philadelphia after racial incidents with police, and a brave 
biracial group of activists formed the Freedom Democratic Party in an 
attempt to make
 the Mississippi delegates to the Democratic National Convention more 
representative. It was as a witness to these national milestones that 
Keith was to reach a milestone of his own when Gov. George Romney 
rewarded him for his distinguished service on the Housing Commission by 
appointing him to serve simultaneously as chairman of the Michigan 
Civil Rights Commission. He continued in both of these capacities until 
1967 when President Lyndon Johnson decided this kind of activist legal 
approach ought to be rewarded, and appointed him to the U.S. District 
Court for the Eastern District of Michigan. Later, he became chief 
judge of that court. It was in this arena where Judge Keith eloquently 
resolved important cases of national consequence, and his depth and 
breadth as a national figure was established. In a series of decisions, 
Judge Keith was able to elaborate a seldom heard theme: how under the 
Constitution, the power of government must ultimately give way to the 
rights of common people. It was through these cases that Keith brought 
his erudition, scholarship and courage to the courtroom and made 
profound and enduring contributions to the law.

  Judge Keith's foundation in housing rights, built upon the landscape 
of the civil rights movement, guided his decision in Garrett versus 
City of Hamtramck. Evidence in this case revealed that a combination of 
a lack of low-income housing and widespread prejudice was forcing 
Hamtramck's African-American residents to flee the city. The decision 
in this class-action suit stated that:
  Fifty-seven percent of the black families dislocated by the project 
moved out of Hamtramck while only 33 percent of the white families 
relocated out of the city . . . it was inevitable that substantially 
more blacks than whites would be removed from Hamtramck . . . the city 
plans presently include scheduled renewal and industrialization of two 
additional fringe areas . . . both of which are predominantly black; no 
plans for replacement housing for citizens presently residing in those 
areas exist. Thus it is apparent that the city is strategically working 
to achieve a reduction in its total population and indeed hopes to 
successfully accomplish such by elimination of those residential areas 
of the city containing black residents.
  In that opinion, Judge Keith decided that the Housing Act of 1949 and 
by the equal protection clause of the fourteenth amendment required the 
city of Detroit to provide alternative housing for minorities displaced 
by the city's federally funded urban renewal program. The same bold 
sense of social responsibility displayed in Garrett versus Hamtramck 
was found in many other cases he heard and his intellectual rigor 
ensured that many of his decisions had a national impact.
  One case that had a huge impact was United States versus Sinclair in 
1971, in which Judge Keith declared that the defendants had a right to 
all transcripts and memoranda relating to illegally tapped 
conversations which the government intended to use in court. U.S. 
Attorney General John Mitchell maintained that he had acted under the 
authority of the president in authorizing wiretaps without a warrant 
since the matters at hand involved the sacrosanct concept of national 
security. On close examination though, Judge Keith found that 

[[Page E1677]]

the Justice Department's claim could not
 stand and that the attorney general was subject to the constraints of 
the Fourth Amendment. ``The great umbrella of personal rights protected 
by the Fourth Amendment has unfolded slowly, but very deliberately, 
throughout our legal history,'' declared Keith. Proceeding prudently 
but firmly, he pointed out:
  The contention by the Government that in cases involving national 
security a warrantless search is not an illegal one, must be cautiously 
approached and analyzed. We are, after all, dealing not with the rights 
of one individual defendant, but, rather, we are here concerned with 
the possible infringement of a fundamental freedom guaranteed to all 
American citizens.
  The Government claimed that the President should have the authority 
to collect information on subversive domestic organizations. Judge 
Keith called this position untenable. He decided broadly against 
arbitrary executive wiretap prerogatives, asserting:
  It is to be remembered that in our democracy all men are to receive 
equal justice regardless of their political beliefs or persuasions. The 
executive branch of our government cannot be given the power or the 
opportunity to investigate and prosecute criminal violations under two 
different standards simply because certain accused persons espouse 
views which are inconsistent with our present form of government.
  United States versus Sinclair brought the dominant themes of Judge 
Keith's jurisprudence to an early maturity: to harness the power of 
government for social good wherever possible, and reign in unchecked 
authority whenever necessary. His opinion withheld scrutiny in appeals 
all the way up to the Supreme Court, which wrote:
  [W]e do not think a case has been made for the requested departure 
from Fourth Amendment standards. The circumstances described do not 
justify complete exemption of domestic security surveillance from prior 
judicial scrutiny. Official surveillance, whether its purpose be 
criminal investigation or ongoing intelligence gathering, risks 
infringement of constitutionally protected privacy of speech. Security 
surveillance are especially sensitive because of the inherent vagueness 
of the domestic security concept, the necessarily broad and continuing 
nature of intelligence gathering, and the temptation to utilize such 
surveillance to oversee political dissent. We recognize . . . the 
constitutional basis of the President's domestic security role, but we 
think it must be exercised in a manner compatible with the Fourth 
Amendment.
  Executive branch officials had also maintained that matters 
pertaining to internal security are too sensitive for the courts to 
handle because of the risk to secrecy. But the Supreme Court refused to 
let the judicial branch of government be marginalized:
  We cannot accept the Government's argument that internal security 
matters are too subtle and complex for judicial evaluation . . . If the 
threat is too subtle or complex for our senior law enforcement offices 
to convey its significance to a court, one may question whether there 
is probable cause for surveillance. Nor do we believe prior judicial 
approval will fracture the secrecy essential to official intelligence 
gathering.
  Judge Keith's words echoed throughout the nation that day in 1972 
when the Supreme Court upheld his decision. It was only in retrospect 
that the nation learned the full magnitude of Sinclair: the next day 
President Nixon's Plumbers terminated one of their taps out of fear 
they might have to reveal the transcripts some day. The wisdom of 
Sinclair reverberated in the highest chambers of government again in 
May 1973, when a judge dismissed the indictment of Daniel Ellsberg for 
releasing the Vietnam War's
 Pentagon Papers because the prosecution had tapped his phone and not 
properly informed the court.

  Sinclair remains relevant today, since the House of Representatives 
will soon consider the expansion of wiretap powers in so-called 
counter-terrorism legislation, H.R. 1710 (and its companion H.R. 1635). 
It would add ambiguous felonies to the list in which electronic 
surveillance is allowed and expand the authority to conduct roving 
wiretaps of multiple phone lines without specifically naming those 
phones and without a court order. Furthermore, in direct contradiction 
to Sinclair and other court decisions, it would allow the admission of 
evidence obtained through illegal electronic surveillance in many 
instances. These excessive provisions ensure that Judge Keith's words 
will be revisited soon, whether it's due to surveillance of the 
Michigan Militia or the gay rights group ACT-UP.
  His reputation as a leading jurist and civic activist was not lost on 
President Carter, and in 1977 he appointed Judge Keith to the Sixth 
Circuit Court of Appeals, the position from which he now is retiring. 
He participated in 1200 opinions on the Court of Appeals and with the 
conservative shift of the Sixth Circuit he wrote countless dissents. 
Dissent was natural for him; he knew that righteousness was not 
predicated on popular impulse, but on public truths meant to survive 
the scrutiny of history. His article entitled ``What Happens to a Dream 
Deferred'' in the Harvard Civil Right-Civil Liberties Law Review in 
1984 eloquently elaborated his philosophy of the necessity of dissent 
and the relationship between the individual and the majority:
  Those who decide in favor of the unbridled freedom of the individual 
point to this country's long tradition of favoring and supporting 
personal freedom. They conveniently fail to recognize that this country 
has another tradition, one of slavery, segregation, bigotry and 
injustice. America is doomed to be forever unequal if we remain 
unwilling to acknowledge this tradition and make provisions for 
bringing black Americans into the mainstream of life . . . The belief 
that majoritarian control invariably guarantees the right result in 
these situations is blind to the teachings of history and counter to 
the antimajoritarian constitutional principles which form the basis of 
our civil rights and liberties.
  Judge Keith was convinced that protection of public freedoms should 
not end with civil rights and his insight extended to questions of 
gender as well.
  In 1986, Judge Keith dissented in the Appeals Court in the case of 
Rabidue versus Osceola Refining Co. in which the majority opinion 
rejected the plaintiff's complaint for injury for sexual harassment 
since the harassment had not caused serious psychological problems. 
Seven years later the Supreme Court advanced Judge Keith's view of that 
same issue in Harris versus Forklift Systems, stating with a hint of 
sarcasm that ``Title VII [of the Civil Rights Act of 1964] comes into 
play before the harassing conduct leads to a nervous breakdown.'' 
Justice Sandra Day O' Conner, writing for the majority, continued:
  A discriminatorily abusive work environment, even one that does not 
seriously
 affect employees' psychological well-being, can and often will detract 
from employees' job performance, discourage employees from remaining on 
the job, or keep them from advancing in their careers. Moreover, even 
without regard to these tangible effects, the very fact that the 
discriminatory conduct was so severe or pervasive that it created a 
work environment abusive to employees because of their race, gender, 
religion, or national origin offends Title VII's broad rule of 
workplace equality.

  It is one thing to do what is right with the rising tide, and it is 
quite another to have the courage to rise to the defense of a just 
cause in the face of the odds. Yet these superior qualities 
distinguished Judge Keith's character from other jurists, and he 
applied these traits in every area of the law he interpreted. He saw as 
inevitable the expansion of constitutional protections afforded women, 
and he employed his formidable knowledge of law and his acute instinct 
for progressive change in that effort.
  Judge Keith knew when to be stalwart in the courtroom as with the 
Sinclair case or in his numerous dissents, but he also knew that even a 
committed jurist cannot achieve greatness through tenacity alone. He 
undertook the task of training new minority law clerks, and at the end 
of his tenure he had hired 44, more than any other Federal judge in 
history. He knew that true greatness required not just scholarship but 
mentorship, not only courage but also grace, and that he would have to 
exercise these qualities outside the courtroom. He wrote in the Detroit 
Free Press in 1988 in an op-ed entitled ``A Responsibility to Serve 
Black Community,'' that Achievement in one's occupation or profession 
is one mark of success. But we are not truly successful unless we use 
our training, knowledge, and dollars to serve the community to which we 
owe so much. His commitment to social activism in his personal life was 
tremendous, including work with the YMCA, the Boy Scouts, the United 
Negro College Fund, and many other organizations. His community 
leadership extended to many cultural institutions including the Detroit 
Symphony Orchestra, the Detroit Arts Commission, and the Interlochen 
Arts Academy for whom he served on the Board of Trustees.
  Judge Keith stands today as testimony to the power of determined hope 
when it refuses to fade, and strength drawn from moral effort that will 
not yield. He wrote in his ``Dream Deferred'' law article that:
  As a black man and American citizen, I have not yet given up on the 
American idea of equality and justice for all Americans. This nation 
stands before the world as perhaps the last expression of the 
possibility that a people can devise a social order where justice is 
the supreme ruler, and law but its instrument; where freedom is the 
dominant creed, and order but is principle; and where equality is 
common practice and fraternity the common human condition.
  This is the dream he worked for in his career, and this is the vision 
which he continues to live for today. Our city and our Nation are 
grateful for his many years of service and leadership. I hope that life 
in retirement is as generous to him as he has been in fulfilling 

[[Page E1678]]

the duties of the court and the responsibilities of citizenship.


                          ____________________