Journalism Clips
"F-Bomb Exemption: A Column," USA Today. April 24, 2013.
"Bronx Cheer," Wall Street Journal, March 24, 1992 at 1.
"A. Leon Higginbotham: Headed for the High Court?" American Lawyer, November 1987, at 85.
A. Leon Higginbotham, Jr., knows how cold it can get in West Lafayette, Indiana, in the early winter. As a 16-year-old freshman engineering studentat Purdue University in 1944, he and 11 other black students slept in anunheated attic because they were not allowed to share the dormitories withwhite students. He thought he could find support from university president Edward Charles Elliott.
"Forcefully, but nonetheless deferentially, I put forth a modest request: that the black students of Purdue be allowed to stay in some section of the state-owned dormitories; segregated, if necessary, but at least not humiliated," Higginbotham wrote in the preface of his acclaimed book, In the Matter of Color, a historical and legal analysis of race and the law incolonial America.
Elliott's response was more chilling than the Indiana winter night. As Higginbotham recalls, the late president said, "Higginbotham, the law doesn't require us to let colored students in the dorm, and you either accept things as they are or leave the university immediately."
Higginbotham took the latter alternative. He transferred to Antioch College in YellowSprings, Ohio, and abandoned engineering for social engineering. Throughout his 35 years as a lawyer, educator, and judge, he has persistently nudged, coaxed, and induced the establishment to open the doors of legal and educational institutions to the underprivileged -- all without being labeled an ideologue by mainstream lawyers and judges.
Off the bench he has been outspoken on sensitive social issues, fromminority unemployment and housing problems to apartheid. But as a judge hehas been respectful of precedent, even when that precedent supports anarrower interpretation of individual rights than he would seem to favor.
According to interviews with more than three dozen academics and lawyers,Higginbotham's record on the Third Circuit Court gives him an excellentchance to succeeding the ailing Thurgood Marshall on the Supreme Court if aDemocrat wins the 1988 presidential election.
Louis Pollak, a former Yale Law School dean and now a U.S. district judge inthe Eastern District of Pennsylvania, says he thinks Higginbotham would be afine addition to the Court. He calls Higginbotham's activist style off thebench "consciousness raising." Pollak recalls that when he was Yale's deanin the late 1960s and Higginbotham sat on the university's board oftrustees, the judge engaged him in a Socratic inquiry. "What do you supposewas the percentage of black lawyers in 1900? What do you suppose was the percentage of black lawyers in 1960?" Higginbotham asked. The answer to both questions was the same: 1 percent.
"It was a general indictment of the law and the law school world," Pollaksays. "It had a particular impact." Pollak says Higginbotham's"consciousness raising" spurred the law school to institute an affirmativeaction program in 1969.
"Apolitical -- that's probably a traditional stance [for a judge to take offthe bench] . . . but that's not my stance," says Higginbotham, 59, as he sits at the conference table in his high-rise chambers in the federal court house in Philadelphia. African sculptures are mixed with photographs of his wife, Jeanne, and three children, and others of the judge with Robert and John Kennedy, presidents Lyndon Johnson, Jimmy Carter, and Gerald Ford, and members of his old law firm, the now-defunct Norris, Schmidt, Green,Harris & Higginbotham.
"What seems to concern people is that I look at the law and spend my timenot on the periphery of those things but with the interaction of law andsociety, the negatives and positives," he says in the rich baritone thatmade him a hit with juries, voters, law students, lawyers, and churchgoersalike. "And when you do that you approach the margin of controversy -- oryou might say that I get right in the center of it."
Race has almost always been a controversial issue for Higginbotham. He grew up in working-class poverty during the Great Depression in Trenton, NewJersey, the son of a laborer and a domestic. He recalls that he first learned that color made a difference at the age of 8, when he told his father and uncle that he wanted to be a fireman. They laughed and said, "The Ewing Township fire company's never going to take a colored boy."
But he made it to Yale Law School and graduated in 1952. During his lastyear at Yale, he interviewed at a major Philadelphia firm that had treatedhim as a prime candidate. At the interview, he recalls, it became painfullyobvious that the firm was surprised to find that the student who had seemedso qualified on paper lacked one prerequisite: white skin. He was not hired.
"I don't carry any grudges," says Higginbotham, declining to name the firm."It wouldn't be fair to single out one firm." No white Philadelphia firmtook on a black attorney until 1952, when Richardson Dilworth of Dilworth,Paxson, Kalish & Kauffman, who had just been elected district attorney,hired William Coleman, Jr. Coleman, who later served as secretary ofTransportation in the Nixon administration, had commuted to Paul, Weiss,Rifkind, Wharton & Garrison in New York for four years because he could notget a job in his hometown.
Higginbotham did, however, break the color line at the appellate division ofthe Philadelphia distrit attorney's office, which he joined after clerkingwith Pennsylvania state court judge Curtis Bok. A year later he left tobecome a partner at the black firm that became Norris, Schmidt, where herepresented small businesses, individuals in personal injury suits, andchurches. Large black churches and church organizations were then thewealthiest clients a black lawyer could reasonably hope to get. (Norris,Schmidt was disbanded after four of its partners, including Higginbotham,became judges.)
During his years at Norris, Schmidt, Higginbotham also served as presidentof the Philadelphia branch of the NAACP and as special hearing officer forthe Department of Justice, as well as special deputy attorney general forPennsylvania and commissioner on the state's Human Relations Commission.
In 1962 then -- U.S. attorney general Robert Kennedy called Bernard Segal,name partner of Philadelphia's Schnader, Harrison, Segal & Lewis and amember of the American Bar Association's standing committee on the federaljudiciary. The Kennedy brothers wanted to appoint Higginbotham to the U.S.district court and requested that Segal have the aBA committee evaluate him.
The committee found Higginbotham qualified by a 7-to-4 vote. According toSegal, the four dissenters thought Higginbotham lacked sufficient corporatelaw experience. given this vote and Higginbotham's youth -- he was only 34-- Segal and Robert Kennedy realized that Mississippi senator JamesEastland, then-chairman of the Judiciary Committee, would have legitimategrounds to reject him. The Kennedys decided to abandon what would be alosing battle and appoint Higginbotham instead to the Federal Trade Commission.
A year later President Johnson named Higginbotham to a federal districtjudgeship in the Eastern District of Pennsylvania. The ABA unanimously ratedhim well qualified. Higginbotham assumed the seat in 1964. When PresidentCarter nominated him to the U.S. Court of Appeals for the Third Circuit in1977, the ABA rated him exceptionally well qualified, again by unanimous vote.
"A LIVING CONSTITUTION"
The Third Circuit, where higginbotham has spent the last ten years, is generally perceived as a moderate bench. Judge Collins Seitz, who termshimself a liberal, describes Higginbotham as "orthodox on most areas of thelaw" and conservative in the commercial law area. Higginbotham "takes agreat interest toward minorities and blacks -- but within reason," Seitz says.
Third Circuit judge Edward Becker, who is regarded by two liberal colleaguesas a moderate, echoes Seitz. Higginbotham, says Becker, is a "very solid,centrist judge with liberal tendencies. I never had the feeling he was doctrinaire."
But by anybody's political yardstick, Higginbotham is a liberal. "If youwant to try and slot me, and I don't think you should," he says, "I havefound generally the views of Justice [William] Brennan more persuasive thanthe views of Chief Justice [William] Rehnquist."
He says he believes in the Constitution as a living document: "Now a 'living constitution' doesn't mean a constitution without guidelines. It doesn't mean you make decisions dependent upon what you had for breakfast or what your political concepts are. But the words, such as due process, equal protection, privileges, and immunities, have to be construed in terms of the values of the society during the era."
Higginbotham is an exponent of the expansive use of the Fourteenth Amendmentdue process and equal protection clauses. "I can think of no issues that aremore important than quality of life in our society with options for all," hesays. "And I'm not talking about options for black people alone, or forwomen alone, but options for all."
Nevertheless, his politics do not hamper his impartiality, according to ascore of Philadelphia-area judges and lawyers. One Third Circuit judge saysHigginbotham shies away from adopting novel theories or poorly substantiated claims even in cases involving issues where his general sympathies are known.
In 1978, for example, he held that two contractors' associations and Local542 of the Philadelphia engineers union and two groups of contractors hadviolated Title VII of the 1964 Civil Rights Act by intentionallydiscriminating in membership and job referral practices. He was unwilling,however, to find a civil rights conspiracy.
"The evidence is not clear as tothe quantum of specific and personal knowledge which the contractors andtheir associations may have had of the union's acts of intentionaldiscrimination or the impact of their hiring hall policies," he wrote.
In his extrajudicial speeches and writings, Higginbotham discusses crime the way a sociologist does. "What we have to do in our society is not act as if society doesn't care about people getting jobs, doesn't care about peoplegetting opportunities and that the whole problem can be solved by some toughlaw-and-order stance," he says.
But his majority opinions in Fourth, Fifth, and Sixth Amendment criminal lawcases show that he can put aside his personal views. He took a law-and-orderstance in the 1983 case U.S. v. Schecter, for example, in which he wrote theopinion overturning the lower court's suppression of the defendant's confession and evidence of stolen goods taken from an allegedly illegal car search.
Similarly, in Siers v. Ryan, 1985, he disagreed with indigent Charles Sier's contention that the public defender's practice of assigning different lawyers at different stages of the criminal proceeding deprived Siers of his right to effective counsel and equal protection of the law.
"The SupremeCourt explicitly rejected the notion that the Sixth Amendment guarantees a criminal defendant a 'meaningful relationship with his counsel,' "Higginbotham stated flatly.
On the other hand, Higginbotham's reasoning in U.S. v. Carrasquillo, 1984, appears to reflect the sociologist in him. The defendant, MildredCarrasquillo, a longtime drug addict, had twice been convicted for drugtrafficking. When delivering sentence for the second conviction, the judgewithout explanation severely increased her sentence on the first conviction.Higginbotham concluded that the judge was punishing the defendant for her"drug addiction and not the crimes that she may have committed."
His colleagues on the Third Circuit hold mixed opinions of his views on criminal law. Chief Judge gibbons says higginbotham "has to be classified pretty close to the law-and-order side," but another judge who asked for anonymity on this issue asserts that Higginbotham "has been very favorable to criminals."
Higginbotham's opinions in cases involving First Amendment freedoms ofspeech, press, assembly, and petition, and the free exercise andestablishment of religion demonstrate a consistent libertarian stance. His1984 majority opinion in U.S. v. Martin, for example, granted themediaaccess to audiotapes that had been admitted into evidence in a criminal trial.
"Though in our constitutional scheme, 'no right ranks higher than theright of the accused to a fair trial,'" he wrote, "speculative threats tothat right have never been sufficient to overcome either First Amendmentrights to attend and report on trials or the common law right of access totrial materials."
Higginbotham has not written an opinion on abortion but he says, "If I were on the Supreme Court, I would have been on the majority in Roe v. Wade. Now, are there problems on the scope and extension of substantive due process? Of course." He declines to elaborate.
As a circuit court Judge, Higginbotham has been respectful of precedent. "Ido not believe a judge on an inferior court has at all the right to hedge orto drag his or her feet in implementing the obvious intent of the majority[of the Supreme Court]," he says.
His judicial philosophy suggests, however, that under certain circumstanceshe would be an activist Supreme Court justice.
"The basic reason for. . .having the courts available to vindicate the rights of our citizens is that other institutions in our society, institutions designed to either vindicate or protect those rights, have either failed to do so or have broken downcompletely," he said at the 1977 Roscoe Pound conference, a forum on federal judicial reform convened in St. Paul, Minnesota, by then-chiefjustice Warren Burger.
SPEAKING OUT
Off the bench, Higginbotham has been as outspoken as a judge could be without breaching ethical codes. In 1970, for example, he told an organization of black physicians that the Apollo 15 mission was less urgent than housing and unemployment. More than 40 lawyers interviewed about Higginbotham reports that his extrajudicial activity -- especially In the Matter of Color, which won him fame among legal scholars and layment alike and became Oxford University Press's best-selling nonfiction book for 1978-- has enhanced his stature.
But there has been controversy. He felt compelled in 1970 to defend his $4,937 lecture income in the pages of the local newspapers. The time he spent lecturing, he insisted, he insisted, did not interfere with his judicial work.
His 1983 lectures at Harvard Law School also generated some criticism. The school had initiated a law-and-race course after student boycott in 1982.When Columbia law school's Jack Greenberg, a white, taught the first semester with Julius Chambers of the NAACP Legal Defense and EducationalFund, Inc., an ad hoc coalition of Third Word students protested. Higginbotham arrived in the second semester to lecture on race and the law in early America.
One student claims the school used the judge as a "political pawn" to avoid appointing a full-time black who would be on the tenture track. Counters Higginbotham" "I always made it clear that I did not accept my teaching as someone who is the equal of someone teaching full time."
His public advocacy of minorities' rights spilled over into his judicial work in 1974 after the Philadelphia newspapers published an account of a speech in which he criticized the civil rights record of the Burger Court. Abraham Freedman, the lawyer for Local 542, which was being sued for racial discrimination, asked Higginbotham to disqualify himself. Higginbotham denied the motion, holding that a judge could not be disqualified merely because of his background and associations. The Supreme Court declined certiorari on the disqualification question.
A 1978 article in the Notre Dame Lawyer co-written by Notre Dame law and government professor Donald Kommers, then the director of the university's Center for civil Rights, observed that Higginbotham's extrajudicial work and experiences affected his local 542 opinion regarding Title VII violations, but concluded that "Higginbotham the historian is under the control of Higginbotham the judge. His opinions are tightly crafted, building, as they usually do, upon a careful consideration of statutory materials and judicial precedents, proceeding cautiously to legal conclusions solidly grounded infacts presented in the case."
Several of his colleagues on the Third Circuit describe Higginbotham's work schedule as near-Herculean. Last spring, for example, he lectured at Harvard and University of Pennsylvania law schools, flew cross-country five times to lecture at Stanford University Law School, and worked on the second volume of In the Matter of Color -- all the while carrying a full case load. Last May and June, says one Third Circuit judge, Higginbotham was running himself ragged from almost weekly trips to deliver commencement addresses at small black colleges. "He is overdoing it," the judge asserts.
Henry Sawyer III of Drinker, Biddle & Reath, who has known Higginbotham since the early 1950s, says he was mildly concerned about Higginbotham's demanding off-the-bench schedule. "I think a judge should be kind of a monk," adds Sawyer.
However, Schnader, Harrison's Segal says few Philadelphia lawyers think Higginbotham's off-the-bench regimen adversely affects his judicial workproduct: "If it weren't a well-known fact that he is one of the hardest working of all our judges, that his output on the bench is outstanding, [hisextrajudicial work] would be a problem. His opinions come down as rapidly asanyone I know."
Third Circuit appeals judges Becker, Gibbons, and JamesHunter III, and federal district judge Pollak agree with this assessment.
As of May, Higginbotham had written 267 majority and concurring opinions as a circuit court judge. Besides working on his book, he is now writing an article for the New York University law review that will compare law and race in South Africa and the U.S. He tries to squeeze in a weekly tennis game, too. "What's wrong with being a workaholic?" he asks. "I have a lot of drive and I work seven days a week."
CUTTING THROUGH THE COW CHIPS
According to former and current clerks, working for Higginbotham is like studying with an all-knowing, demanding, yet kindly Zen master. Says 1985 Harvard Law School graduate Stephanie Moore: "He never criticizes. He sort of guides you through it and explains."
After bench arguments, he often critiques lawyers' performances with the clerks. Alan Lerner of Philadelphia's 82-lawyer Cohen, Shapiro, Polisher,Shiekman and Cohen, who clerked for the judge from 1966 to 1968, says Higginbotham taught him how to be a lawyer: "He would take time to talk at recesses about lawyers' strategies . . . . I got to believe I would some day know what shoe went on what foot."
Higginbotham teaches his particular writing style -- what he and his clerks facetiously call "the light touch." In his 1986 dissent in U.S. v. Bjerke, for instance, he held that Lyndon LaRouche followers had the First Amendment right to solicit contributions near the doorways of two post offices. His deadpan comment: "Undoubtedly, they choose this location for the same reason Willie Sutton chose to rob banks -- that is where the money is."
"He can cut through the cow chips," says Edward Dennis, U.S. Attorney forthe Eastern District of Pennsylvania, who clerked for the judge from 1973 to 1975.
It is safe to say that Higginbotham would fail the Ronald reagan -- Edwin Meese judicial litmus test. Bruce Fein of the Heritage Foundation calls Higginbotham an "ideologue on the left" and predicts that he would face as tough a fight from the right as Robert Bork faced from the left.
Under a Democratic administration, however, Higginbotham's ascent to the high court seems likely. He has solid support among blacks and civil rights activists. Eleven of the 29 U.S. representatives, lawyers, lobbyists, congressional aides, and judges interviewed by The American Lawyer about possible successors for Justice Marshall ranked Higginbotham as their first choice. Among his backers are Carl Stokes, former Democratic Cleveland mayor and now a municipal court judge; William Gray, U.S. representative from Philadelphia; and C. DeLores Tucker, director of black affairs at the Democratic National Committee. Gray, who has known the judge since the early 1960s, says, "he has an outstanding record as a lawyer and federal judge. He would be an absolutely magnificent candidate."
Apparently a good many members of the Philadelphia bar share Gray's view.Interviews with a dozen Philadelphia litigators who have argued before Higginbotham reveal that he is popular and highly respected by Republican, Democratic, conservative, and liberal lawyers alike.
Does the judge hope some day to apply the "light touch" to Supreme Court opinions? He says if he is nominated before he turns 62 on February 25,1990, he would welcome the opportunity.
