[Congressional Record (Bound Edition), Volume 145 (1999), Part 5]
[Extensions of Remarks]
[Pages 6393-6394]
[From the U.S. Government Publishing Office, www.gpo.gov]




                 TRIBUTE TO JUDGE A. LEON HIGGINBOTHAM

                                 ______
                                 

                        HON. WILLIAM (BILL) CLAY

                              of missouri

                    in the house of representatives

                        Tuesday, April 13, 1999

  Mr. CLAY Mr. Speaker, It is my honor to rise in tribute to the late 
A. Leon Higginbotham, Jr. He was a great American and a great friend. 
Higginbotham was a man who excelled in many disciplines. He was a 
scholar, a writer, a lawyer, a judge and especially a humanitarian.
  Leon Higginbotham studied engineering a Purdue University, continued 
his education at Antioch College and received a LL.B. from Yale 
University in 1952. Eighteen years later, he became the first black 
elected trustee of Yale after defeating five other distinguished alumni 
in a nationwide ballot
  In 1963, President Kennedy nominated A. Leon Higginbotham, Jr. for 
the U.S District Court of Eastern Pennsylvania. However, Senator James 
Eastland of Mississippi blocked his confirmation by the Senate. After 
Kennedys assassination, President Johnson nominated Higginbotham, and 
in 1964 appointed him to a seat on the U.S. District Court of Eastern 
Pennsylvania. In 1977, Judge Higginbotham was elevated to the 3rd US 
Circuit Court of Appeals. He served as the Chief Judge of the Appeals 
Court from 1990 to 1993. His celebrated career was filled with judicial 
accomplishments. He was the author of more than 600 published opinions 
and books, including ``In the Matter of Race: Race and the American 
Legal Process'' and ``Shades of Freedom.''
  I first met Judge Higginbotham when he was supporting Senator John F. 
Kennedy in his campaign for President. In the past twenty years we 
developed a closer friendship, exchanging telephone calls and letters. 
I admired and respected the Judge for his intellectual prowess and his 
untiring commitment to civil rights.
  At the time of his death last December, Judge Higginbotham was a 
retired Chief Judge Emeritus of the United States Court of Appeals, the 
Public Service Professor of Jurisprudence at the John F. Kennedy School 
of Government at Harvard, and Counsel to the law firm of Paul, Weiss, 
Rifkind, Wharton & Garrison in New York. During his life, Judge 
Higginbotham received numerous honors including the Presidential Medal 
of Freedom the National Human Relations Award of the National 
Conference of Christians and Jews, the National Urban Award for 
outstanding contributions towards the goal of equal opportunity, the 
81st NAACP Spingarn Medal for the highest and noblest achievement by an 
African-American, and the 1994 recipient of the Congressional Black 
Caucus' Leland Humanitarian Award.
  In 1996, Higginbotham became an advisor to Texaco, Inc. after the 
company agreed to a $176 million settlement of a race-discrimination 
case. There he initiated a formal evaluation of the company's human 
resource policies and diversity practices in an effort to make Texaco 
an industry model for its hiring and promotion of black employees. In 
an interview that year with the St. Louis Post-Diatch, Judge 
Higginbotham was described as seeing ``the future of race relations 
with an equal mixture of optimism and pessimism.'' Leon Higginbotham 
knew and understood the terrible history of racial discrimination in 
the justice system. He knew that this history could never be forgotten 
if black Americans ever hope to achieve equal justice under law. For 
this reason, Judge Higginbotham shared my dismay when former President 
George Bush presented Clarence Thomas as his choice to replace justice 
Thurgood Marshall as Associate Supreme Court Justice. On that day, 
independent-minded women were appalled, knowledgeable black Americans 
were outraged and advocates for the poor abandoned their hopes. Then, 
the disastrous day came when the U.S. Senate confirmed Clarence Thomas' 
appointment and the waves of despair washed over millions who had 
fought, sacrificed, and suffered to overcome centuries of 
discrimination and to achieve respect and quality. In Black America, 
six months after Thomas' appointment the attitude and sentiment toward 
him as a person was reflected in the words of Judge Higginbotham who 
wrote:

       Suppose someone wanted to steal back past achievements, 
     reign in the present gains and cutoff future expectations 
     among African-Americans about participation in the Judicial 
     process. that person would have found it difficult to devise 
     a better plan than nominating Clarence Thomas to the Supreme 
     Court which decreasing the number of African-Americans on the 
     federal bench.

  Mr. Speaker. Judge Higginbotham was devoted to educating this nation 
about the perils of one black man, Clarence Thomas, being misconstrued 
as a respectable replacement for Thurgood Marshall who was a bonafide 
representative of the hopes, dreams and aspirations of black Americans. 
In this undertaking, Judge Leon Higginbotham wrote to Clarence Thomas 
upon His confirmation to the Supreme Court. Higginbotham documented the 
legal struggles that had abolished impediments to the freedom of black 
people and enunciated the underlying personal values and courage which 
guided those who led these battles. In this letter, Higginbotham 
challenged Thomas to recall, to understand and to emulate the lives of 
those great gladiators who changed the course of history. In this open 
letter, Higginbotham cited the damage done to the cause of black 
America and the crisis in race relations spurred by Judge Thomas' 
confirmation. Excerpts from this letter provide the details of his 
message:

       At first I thought that I should write you privately--the 
     way one normally corresponds with a colleague or friend. I 
     still feel ambivalent about making this letter public, but I 
     do so because your appointment is profoundly important to 
     this country and the world, and because all Americans need to 
     understand the issues you will face on the Supreme Court. In 
     short, Justice Thomas, I write this letter as a public record 
     so that this generation can understand the challenges you 
     face as an Associate Justice to the Supreme Court, and the 
     next generation can evaluate the choices you have made or 
     will make. . .
       By elevating you to the Supreme Court, President Bush has 
     suddenly vested in you the option to preserve or dilute the 
     gains this country has made in the struggle for equality. 
     This is a grave responsibility indeed. . . . And while much 
     has been said about your admirable determination to overcome 
     terrible obstacles, it is also important to remember how you 
     arrived where you are now, because you did not get there by 
     yourself.
       You can become an exemplar of fairness and the rational 
     interpretation of the Constitution, or you can become an 
     archetype of inequality and the retrogressive evaluation of 
     human rights. The choice as to whether you will build a 
     decisional record of true greatness or of mere mediocrity is 
     yours.
       Black Ivy League alumni [Higginbotham and Thomas finished 
     Yale] in particular should never be too impressed by the 
     educational pedigrees of Supreme Court Justices. The most 
     wretched decision ever rendered against black people in the 
     past century was Plessy v. Ferguson. It was written in 1896 
     by Justice Henry Billings Brown who attended both Yale and 
     Harvard law schools. The opinion was joined by Justice George 
     Shiras, a graduate of Yale Law School, as well as by Chief 
     Justice Melville Fuller and Justice Horace Gray, both alumni 
     of Harvard Law School.
       If those four Ivy League alumni on the Supreme Court in 
     1896 had been as faithful in their interpretation of the 
     Constitution as Justice John Harlan, a graduate of 
     Transylvania, a small law school in Kentucky, then the venal 
     precedent of Plessy v. Ferguson, which established the 
     federal ``separate but equal'' doctrine and legitimized the 
     worst forms of race discrimination, would not have been the 
     law of our nation for sixty years. The separate but equal 
     doctrine; also known as Jim Crow, created the foundations of 
     separate and unequal allocation of resources, and oppression 
     of the human rights of blacks.

[[Page 6394]]

       The tragedy with Plessy v. Ferguson is not that the 
     Justices had the ``wrong'' education, or that they attended 
     the ``wrong'' law schools. The tragedy is that the Justices 
     had the wrong values, and that these values poisoned this 
     society for decades.
       I have read almost every article you have published, every 
     speech you have given, and virtually every public comment you 
     have made during the past decade. Until your confirmation 
     hearing, I could not find one shred of evidence suggesting an 
     insightful understanding on your part on how the evolutionary 
     movement of the Constitution and the work of civil rights 
     organizations have benefited you. . . .
       While you were a presidential appointee for eight years, as 
     Chairman of the Equal Employment Opportunity Commission and 
     as an Assistant Secretary at the Department of Education, you 
     made what I would regard as unwarranted criticisms of civil 
     rights organizations of the Warren Court, and even of Justice 
     Thurgood Marshall. Perhaps these criticisms were motivated by 
     what you perceived to be your political duty to the Reagan 
     and Bush administrations. Now that you have assumed what 
     should be the nonpartisan role of a Supreme Court Justice, I 
     hope you will take time out to carefully evaluate some these 
     unjustified attacks.
       But your comments troubled me then and trouble me still 
     because they convey a stunted knowledge of history and an 
     unformed judicial philosophy. . . . You are no longer 
     privileged to offer flashy one-liners to delight the 
     conservative establishment. Now what you write must inform, 
     not entertain. Now your statements and your votes can shape 
     the destiny of the entire nation.
       During the last ten years, you have often described 
     yourself as a black conservative. I must confess that, other 
     than their own self-advancement, I am at a loss to understand 
     what is it that the so-called black conservatives are so 
     anxious to conserve. Now that you no longer have to be 
     outspoken on their behalf, perhaps you will recognize that in 
     the past it was the white ``conservatives'' who screamed 
     ``Segregation now, Segregation forever!'' It was primarily 
     the conservative who attacked the Warren Court relentlessly 
     because of Brown v. Board of Education and who stood in the 
     way of almost every measure ensure gender and 
     racial advancement.
       Of the fifty-two Senators who vote in favor of your 
     confirmation some thirteen hailed from nine Southern states. 
     Some may have voted for you because they agreed with 
     President Bush's assessment that you were ``the best person 
     for the position.'' But, candidly, Justice Thomas, I do not 
     believe that you were indeed the most competent person to be 
     on the Supreme Court. Charles Bowser, a distinguished 
     African-American Philadelphia lawyer said: ``I'd be willing 
     to bet that not one of the Senators who voted to confirm 
     Clarence Thomas would hire him as their lawyer.''

  Later, Judge Higginbotham questioned the decision of the Judicial 
Council of the National Bar Association which had invited Supreme Court 
Justice Clarence Thomas to address its annual convention. In that 
letter, which appeared in the September 1988 edition of Emerge 
magazine, Higginbotham explained why he was ``shocked'' to learn of 
Thomas' invitation:

       I will not take a position as to whether he should be 
     disinvited, and leave that significant responsibility to the 
     judgment of the Executive Committee. I am not one who 
     believes there is, or should be, a monolithic view within the 
     African-American community on all issues; but, I do think 
     there are certain undisputable common denominators as to what 
     constitutes progress or regress. Within that context and from 
     the perspective of almost every constitutional law scholar, 
     there is no doubt that Justice Thomas had done more to turn 
     back the clock of racial progress than has perhaps any other 
     African-American public official in the history of this 
     country.

  Higginbotham continued, mentioning those ruling in which Thomas 
overlooked history to undermine the progress of black Americans in the 
civil rights struggle and wrote:

       In view of his harsh conservative record, please explain to 
     me why you invited Justice Thomas, who has voted consistently 
     against the interest of African Americans, minorities and 
     women.

  Mr. Speaker, a few years ago, Judge Higginbotham underwent open heart 
surgery. After his recovery he wrote to his many friends thanking them 
for their expressions of concern and prayers. In his note, the judge 
quoted what a renown heart specialist had said:

       During the last twenty years, I have talked to many dying 
     patients. I have never met one who wished that s/he had spent 
     more time at the office, but I have met thousands who 
     regretted that they did not spend more time enjoying their 
     family and pursuing less stressful options.

  Judge Higginbotham did reduce his voluminous schedule of activities, 
but fortunately he remained a powerful voice which helped to shape 
attitudes and influence opinions about race and racism in this country. 
His contributions to the civil rights movement will be forever 
cherished.

                          ____________________