[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. ____________________