Reactions to Louise Erdrich’s Novel, “The Night Watchman”

After a rave review of Louise Erdrich’s new novel “The Night Watchman,” from Luis Alberto Urrea,[1] I was interested in learning more about federal efforts in the 1950s to terminate the legal status of Indians and, therefore, bought and started reading the book.[2]

Immediately, however, I had difficulty. The Table of Contents has a list of  over 100 unnumbered separate sections or scenes, not called chapters, with cursory titles whose significance or meaning becomes clear only after you had read the “chapters.” Moreover, these sections or “chapters” were not  placed into separate titled groups to help the reader. Over the entire list is a heading “September 1953” although it becomes apparent that not everything in all of those sections happens that month. In addition, the Reading Guide by the publisher was not very helpful, in my opinion.

Another difficulty was the large number of characters, many of whom are referred to by their Indian names sometimes and by other names on other occasions. And there is no separate listing of the characters with their different names and relationships with one another that would have helped the reader.

Reading some of the first “chapters” revealed that they are mostly about different facets of life on the reservation of the Turtle Mountain Band of Chippewa in North Dakota. This prompted the thought that Erdrich should have broken this book into two books; the first containing these stories and the second the battle over the legislation in Congress in 1953-54. As these reflections suggest, I was interested in the latter, not the former although the previously mentioned Urrea review emphasized the former.

Rather than giving up on the book, however, I re-read Erdrich’s explanations of the book in the “Author’s Note” at the beginning and the “Afterword and Acknowledgements” at the end. I then did some basic research about the federal efforts in 1953-54 to change the legal status of Indian tribes. Next I returned  to the chapter about the congressional hearing about the Concurrent Resolution (# 83 “Termination of Federal Contracts & Promises with Indian Tribes”) and working backwards scanned the previous “chapters” to see whether and how, if at all, this congressional effort had been discussed. I was amazed to discover that there were many such references, often cryptic, usually involving the Night Watchman (Thomas), all the way back to the fourth “chapter”  (“The Watcher”).

This analysis made me remember that in 1953-54 there were no internet and 24-7 television news programs and think that one of the stories the novel apparently was telling was that even though Congress adopted the Resolution on August 1, 1953, it was not until  the next month (September 1953) that limited information about the Resolution was only gradually discovered by the Night Watchman and eventually prompting him and a committee of the Turtle Mountain Band to organize and mount a (successful) campaign against the applicability of the Resolution to their Band. In the meantime, other members of that Band were engaging in normal events in their lives and implicitly demonstrating the Band was not ready for such termination. However, I confess that I was not interested in these tales.

Here then is my examination of Erdrich’s explanations of the novel, my basic research about the termination issue and the references to that issue in the earlier “chapters” of the book, all causing my re-evaluation of the book.

Erdrich’s Explanation of the Novel

Erdrich’s beginning “Author’s Note” tells us that on August 1,1953, the U.S. Congress “announced ” [adopted] House Concurrent Resolution 108, which would “abrogate nation-to-nation treaties, which had been made with American Indian Nations for ‘as long as the grass grows and the rivers flow,’” for “the eventual termination of all tribes, and the immediate termination of five tribes, including the Turtle Mountain Band of Chippewa.” That Band  then was chaired by Erdrich’s grandfather Patrick Gourneau (the night watchman, Thomas Wazhashk, in the novel), who led the Band’s opposition to such termination. The only other parts of the novel that are factual, Erdrich says, are the Turtle Mountain Jewel Bearing Plant and U.S. Senator Arthur V. Watkins, who was a “relentless pursuer of Native dispossession and the man who interrogated my grandfather.”

Erdrich’s “Afterword and Acknowledgments” says that the mid-1950s were “a time when Jim Crow reigned and American Indians were at the nadir of power—our traditional religions outlawed, our land base continually and illegally seized (even as now) by resource extraction companies, our languages weakened by government boarding schools.[3] Our officials were also answerable to assimilationist government officials: as an example, just look at the ‘advisory committee ‘ in my grandfather’s designation. He and his fellow tribal members had almost no authority. Their purpose was to advise the BIA [Bureau of Indian Affairs], but they seized any opportunity to represent their people. The 1950s were a time when the scraps of land and the rights guaranteed by treaty were easy pickings. With the postwar housing boom, the fabulous Klamath and Menominee forests were especially coveted. It is no coincidence that those tribes were among the first five slated for termination.”

Erdrich also informs the reader that she now possesses her grandfather’s letters from 1953-54 that are “packed with remarkable, funny, stereotype-breaking episodes of reservation life” and reveal a man “of deeply humane intelligence as well as a profoundly religious patriot and family man.” The letters also reveal his “anxieties” as chairman of the advisory committee and his understanding that the Concurrent Resolution was “a new front in the Indian Wars” and “about the worst thing for Indians to come down the pike.” Yet the Turtle Mountain Band “was the first to mount a fierce defense and prevail. They altered the trajectory of termination and challenged the juggernaut of the federal push to sever legal, sacred, and immutable promises made in nation-to-nation treaties.” (Emphasis added.)

“In all, 113 tribal nations suffered the disaster of termination; 1.4 million areas of tribal land was lost. Wealth flowed to private corporations, while many people in terminated tribes died early, in poverty. Not one tribe profited. By the end, 78 tribal nations, including the Menominee. . . regained federal recognition; 10 gained state but not federal recognition; 31 tribes are landless; 24 are considered extinct.” Senator Arthur V. Watkins was indeed a pompous racist.” Erdrich also refers to Ada Deer’s Making a Difference: My Fight for Native Rights and Social Justice (Univocal. Press 2019) as “great reading on this subject.”[4]

Although the Afterword says “the Turtle Mountain Band was the first to mount a fierce defense and prevail,” neither that Afterword nor the novel  itself says when and how the Band prevailed. After the last words of the novel’s last chapter, separated only by three dots, however, Erdrich as the author states, “The Turtle Mountain Band of Chippewa was not terminated.” But there were no specifics as to how or when it happened or the title or text of the bill or other measure that made it happen. This important fact, in my opinion, should have been included in the Afterword with more details. Even better, in my opinion, would have been a concluding chapter of the novel that discussed the victory and some kind of celebration by the Band.

“In 1970, Richard Nixon addressed Congress and called for an end to this policy. Five years later, a new era of self-determination for Native people began.”

Research About the Federal Effort To End Status of Indian Tribes[5]

I had not previously known about this congressional action and wanted to know more. Therefore, before reading the novel, I did some basic Internet research and came up with the following.

According to Wikipedia, “On 1 August 1953, the US Congress passed House Concurrent Resolution 108 which called for the immediate termination of the FlatheadKlamathMenomineePotawatomi, and Turtle Mountain Chippewa, as well as all tribes in the states of CaliforniaNew YorkFlorida, and Texas. Termination of a tribe meant the immediate withdrawal of all federal aid, services, and protection, as well as the end of reservations. Though termination legislation was introduced (Legislation 4. S. 2748, H.R. 7316. 83rd Congress), termination of Federal Supervision over Turtle Mountain Band of Chippewa Indians), was not implemented. In 1954, at the Congressional hearings for the Turtle Mountain Band of Chippewa Indians, tribal Chairman Patrick Gourneau and a delegation testified at a hearing that the tribe was not financially prepared, had high unemployment and poverty, suffered from low education levels, and termination would be devastating to the tribe. Based on their testimony, the Chippewa were dropped from the tribes to be terminated.” (Emphasis added.)

Wikipedia further states, This Resolution “declared it to be the sense of Congress that it should be policy of the United States to abolish federal supervision over American Indian tribes as soon as possible and to subject the Indians to the same laws, privileges, and responsibilities as other U.S. citizens. This includes an end to reservations and tribal sovereignty, integrating Native Americans into mainstream American society.”

Wikipedia also says, “The consequence of HCR-108 was the beginning of an era of termination policy, in which the federally recognized status of many Native American tribes was revoked, ending the government responsibility to tribe members and withdrawing legal protection to territory, culture, and religion.”

Finally, Wikipedia states, “HCR-108 was passed concurrently with Public Law 280, which granted state jurisdiction over civil and criminal offenses committed by or upon Native Americans in Indian Territory in the states of CaliforniaMinnesotaWisconsinOregon, and Nebraska, all of which have large Indigenous populations.” [6]

The New York Times, which is online searchable for 1953-54 (and earlier), revealed the following additional tidbits of information relevant to the novel: [7]

  • The “Bulova Watch Company and the Simpson Electric Company had jointly established a modern industrial plant at Rolla, N.D,.near the Turtle Mountain Reservation that successfully used the Indians’ “manual dexterity and adaptability” developed through beadwork to produce jewels for watches. However, Peru Farver, Superintendent of the Reservation, believes “every effort [should be] made to move as many Indians as possible toward the industrial centers, rather than attempt to bring industry to them.” Farver also “thinks too much money has been channeled into guardianship of these Indians who have a high percentage of white blood and . . . are well able to look out for themselves.” More help, he thought, should be provided to the estimated 250 older “full-blooded” Indians of the 4,500 members of the Turtle Mountain tribe. (Emphasis added.) (These statements by Farver, perhaps in a written report to the Congress, is not mentioned in the novel, but the reference to Indians with white blood suggests the basis for the questioning at the March 1, 1954 congressional hearing of the Turtle Mountain people about how much white blood they had, which is mentioned in the novel.)
  • In September 1953, at the direction of President Eisenhower, the Commissioner of Indian Affairs, Glenn L. Emmons, spent the following two months visiting 10 Indian tribes to obtain their views on the proposed termination and discovered that some bitterly opposed the proposal, some favored it and yet others were divided. (Presumably this included a visit to the Turtle Mountain Band, but there was no mention of this in the novel.)
  • On January 30, 1954, it was announced that joint sessions of the Senate and House Indian Affairs Subcommittees would  hold joint sessions during the last of February and the first half of March to consider 10 Administration bills to end federal administration  of roughly 66,000 Indians. The hearing about the bill concerning the Turtle Mountain Chippewas of North Dakota would be held on March 1. According to the Commissioner of Indian Affairs, Glenn L. Emmons, these bills “resulted from ‘a rising tide of sentiment that the Indians of the United States are entitled to exactly the same rights and privileges as the rest of us’ in general public opinion as well as in Congress.” Yet the Commissioner also said that it was “impossible to apply the same yardstick “ to all the tribes.
  • On March 25, 1954, the Association of American Indian Affairs warned that “ homeless poverty” was in store for thousands of American Indians if these bills were enacted. The bills “would destroy tribal governments and nullify rights assured by treaties” and are “ill-advised, untimely and off-target.” They are “no answer . . . to the poverty of the Turtle Mountain Chippewas of North Dakota.” (No mention of this was made in the novel.)
  • These charges were repeated at the Association’s annual meeting on May 5, 1954. Its president, Oliver LaFarge, said the tribes picked for “termination” included some of the most advanced and some of the most backward. “Even if the tribes concerned were ready for such deprivations, as most of them are not, the bills as drawn up are ill-conceived and objectionable. Commissioner Emmons, who was present, said that education, health and economic opportunity were his primary goals and was trying to persuade legislators “to set termination daters far enough in advance so the tribes would be ready to go on their own.” (No mention of this was made in the novel.)

Another source, “The History and Culture of the Turtle Mountain Band of Chippewa,” says the 1953 congressional decision to terminate the Turtle Mountain Band was based upon reports by  the BIA Superintendent [Peru Farver] that the Tribe members “have always been resourceful.” In 1954, however, “the Turtle Mountain Band raised funds locally to send a delegation to Washington. Tribal Chairperson Patrick Gourneau testified that the Turtle Mountain people were unprepared economically, still living in poverty, and that such a move [termination] would be devastating. Following the testimony of the Turtle Mountain group, the subcommittee decided that the Turtle Mountain Band was not economically self-sufficient, and was dropped from the list.” This decision recognized “that the Chippewa were still poverty-stricken, occupied an extremely limited land base, suffered from low education levels and high unemployment.”[8] (No mention of these reports by the Superintendent was made in the novel.)

The major congressional proponent of the termination of special status for the Indians was U.S. Senator (Rep., UT) Arthur Vivian Watkins (1888-1973). “He equated such action with the Emancipation Proclamation that freed slaves during the Civil War and asserted that it was backed by the following tenets: (1)To eliminate laws that treated Native Americans as different from other Americans; (2) To dismantle the BIA giving responsibility for their affairs to the tribes themselves, or if necessary transferring some of its duties to other federal and state agencies; (3) To end federal supervision of individual Indians; and (4) To cease federal guardianship responsibilities for Indian tribes and their resources.”

By the time Watkins lost his bid for re-election in 1958, these Indian policies he had pursued “ were proving to have disastrous effects on Native peoples. Tribes were cut off from services for education, health care, housing, sanitation and utility sources, and related resources. Termination directly caused decay within the tribe including poverty, alcoholism, high suicide rates, low educational achievement, disintegration of the family, poor housing, high dropout rates from school, disproportionate numbers in penal institutions, increased infant mortality, decreased life expectancy, and loss of identity. In addition, the era of conformity was moving into the Sixties and its calls for social change and a growing sensitivity to minority rights.”[9]

In 1960 President Dwight D. Eisenhower appointed Watkins to the Indians Claims Commission, becoming its chairman and subsequently its chief commissioner.

All of this research made me want to search for, and examine, the actual congressional materials from 1953-54 about the “termination” campaign, but such an effort is impossible now due to the “shelter in place” pandemic policies in the U.S.

The Novel’s Early References to the Termination Issue

My previously mentioned analysis of the novel started with the “chapter” that clearly focuses on the Concurrent Resolution (# 83 “Termination of Federal Contracts and Promises Made with Certain Tribes of Indians”) and then skimming prior chapters to see if they mentioned the Resolution in any way. I was surprised to discover that there were many such references, often cryptic, usually involving the Night Watchman (Thomas) all the way back to the fourth “chapter”   (“The Watcher”). Here are those references:

“Chapter”

Number

“Chapter”

Title

Reference
      4 The Watcher !. Thomas wrote to North Dakota Republican Senator Milton R. Young and to newspaper columnist Bob Cory requesting meetings. https://en.wikipedia.org/wiki/Milton_Young

https://en.wikipedia.org/wiki/Milton_Young

2. At the Jewel Bearing Plant, Thomas read newsletters and other tribes’ newsletters about the passage of “a bill that indicated Congress was fed up with Indians. Again. No hint of strategy. Or panic, but that would come.”

     5 Three Men Moses Montrose (tribal judge) gives Thomas a copy of the bill “that was supposed to emancipate Indians,” but Moses said, “I read it all. They mean to drop us.” (Thomas had not yet seen the bill.).Eddy Mink asked Thomas if he knew about the emancipation. Thomas said yes, but it wasn’t emancipation. Eddy thought it was good idea because then he could sell his 20 acres. He did not care that he would not have a school, clinic, farm agent or government commodities. Thomas:, what about old people who want to keep their land?
     9 Juggie’s Boy Thomas told a Tribesman, “I’m fighting something out of Washington. I don’t know what. But it’s bad.”
    11    Pukkons Thomas tells Biboon (Thomas’ father) government has new plan to take away treaties for all Indians. Dad: Get together with other tribes to oppose.
    13    The Iron Thomas had been trying to understand the papers Moses gave him, to define the unbelievable intent couched in innocuous dry language. The intent was to unmake, unrecognize, erase Indians –all of us invisible and as if we never were here. When the government remembered the Indians, they always tried to solve Indians by getting rid of us. He had no word from the government. He read about it in Minot Daily News. He finally had confirmation that the Turtle Mountain Band was targeted by the U.S. Congress for emancipation. Freed from being Indians, from their land, the treaties that were promised to last forever. The tribal chairman job had turned into a struggle to remain a problem.
    16        A  Bill The Bill: “To provide for the termination of Federal supervision over the property of the Turtle Mountain Band . . in the states of North Dakota, South Dakota and Montana, and the individual members thereof; for assistance in the orderly relocation of such Indians in areas of greater economic opportunity.” Its author said it was about emancipation, freedom, equality, success. Real purpose was extermination. Another tribal chairman said the author of bill was Arthur V. Watkins, “the most powerful man in Congress” and a Mormon, who wants to change Indians to white.
     17    Who? Thomas thought Indians will be destroyed by “a collection of tedious words.”
     19   2d Who? Thomas: The termination bill. Watkins believed it was for the best. Open the gates of heaven. How could Indians hold themselves apart?
    23 The Old                    Muskrat Biboon (father) tells Thomas: Band got land by forming a delegation and submitting petition. Thomas to take idea to council. Others need to understand contributions of Indians. We are just getting started on our own feet. Have no money for hospitals. Advisory committee met. Thomas suggested petition with signatures and call it The Termination bill.
    26 Louis Pipestone Louis getting signatures on petition.
    30 The Average Woman & Empty Tank Louis getting signatures on petition. Thomas has Juggie preparing tribal newsletter.
    31 The Missionaries Two young Mormons ask Thomas & Noko if they wonder why Indians as ancient people are on this land. Do you want to read Book of Mormon? Thomas asks about Watkins and is told he wrote book about shepherd who learns he is part of secret society. “It was revealed to Joseph Smith that Indians are people of the house of Jacob & children of Lehi.” They gave him a book.
     32 The Beginning Thomas says we need Biboon for Washington fight.
     34 Wild Rooster Driving to Fargo for meeting with BIA to register opposition to Termination Bill.
     35 Arthur V. Watkins Born in 1886 when UT was still territory. Baptized by father (same name), who wrote to Joseph Smith, “We have filed on land on the reservation for us a home” when Ute people & reservation were relieved of 13.8 million acres of land guaranteed by executive orders of Presidents Lincoln & Arthur. Smith & early Mormons tried to murder all Indians in the way. The son was elected to state office & later U.S. Senate. In termination hearing,  he was said to “convey an air of rectitude that was almost terrifying” and “howled in his reedy voice.” He “decided to use the power of his office to finish what the prophet started. He didn’t have to get his hands bloody.”
      38 Metal Blinds 10/19/53 Fargo meeting with BIA officials . Thomas, 45 tribe members & their attorney, John Hail. Thomas: “We are here to discuss the purpose of Concurrent Resolution, which will terminate all federal recognition and support of the [BIA] Turtle Mountain Agency.” The BIA attorney John Cooper read each section of the law. “Disposition of federally owned property to such Indians may be discontinued as no longer necessary—cause such lands to be sold and deposit the proceeds of sale—trust relationship to the affairs of the Band and its members has terminated.” Indians attempting to understand white man reading from sheaf of papers. Thomas asked for comments from other Indians. BIA: it means no “more Indian service for the Turtle Mountains. You will now be equal with whites as far as the government is concerned.” Joyce: This is not equal. Our rights go down. Government is backing out of its agreement. You left us on land too small in size and most cannot be farmed. Government should give more land back, not kick us off the leftovers.” BIA: “you will be relocated to areas of equal opportunity.” Juggie Blue: “We don’t want to leave our homes. We are poor, but even poor people can love their land.. You do not need money to love your home.” Cooper re-read the bill. All 47 Indians voted against the bill. Thomas is told that Millie did research about the Band, maybe that would be useful.
      39    X =? Barnes, the white math teacher & boxing coach talks to Thomas about the Fargo meeting. Barnes thought the bill was good idea; to be regular Americans. Thomas: we cannot be regular Americans. Got right to vote in 1924. We pay taxes, but not on our land.
     41 The Star Powwow Thomas writes to Senator Milton Young & 2 congressmen. Setting up meeting with American Legion to be against bill.
     45 Hay Stack Thomas asks Barnes to set up boxing card to raise money for delegation to go to Washington. We will have a tribal scholar.
     48 Letter to U MN Thomas writes to Millie Cloud at UM for assistance against bill.
     49 The Chippewa Scholar Millie Cloud (the tribal scholar) reads Thomas’ letter at UM.
     53 Battler Royale Thomas worries about testifying in Congress. Reads Mormon books.
     56 The Promotion Thomas explains Bill to Patrice’s Mother.
     59 Good News, Bad News Good news: poor enough to keep & improve status quo; county & state do not want us; sheltered by roofs; we have schools, cure found for TB; we have this report.

Bad news: we are poor; they don’t like us; 97% of roofs by tar paper; many illiterate; many parents died & kids grew up in boarding schools; we have this report.

     64 Two Months Hearing in 2 months (March). Advisory Comm. had to prepare to save tribe. Thomas is scared.
     70 Runner Thomas about to get a county commissioner to write letter of objection. Not sufficient tax base on reservation to care for roads and schools.
    72 The Spirit Duplicator Millie’s report about conditions of tribe printed. To be sent to local & state officials, newspapers, radio announcers. Juggie says erroneous past count of Indians caused reduction of townships form 20 to 2. Mistaken census survey had convinced Congress that Turtle Mountain was prosperous.
     73 Prayer for 1954 Thomas writes to ND’s US Senators Milton R. Young and William “Wild Bill” Langer, the latter favoring termination.
     77 The Lamanites Thomas reads Book of Mormon. Studies text of bill. Writes to Joe Garry, president of National Congress of American Indians for more info on Watkins, who had refused to appropriate funds to relieve Navajo. Book of Mormon explained why he wanted Indians to disappear. Mormons believed they had been divinely gifted of all the land they wanted; Indians were not white and thus had no right to live on the land. Treaties meant nothing.
     79 The Committee Committee was Thomas, Juggie & Millie. Millie worried she could not testify. Moses and Louis don’t want to go. Louis got county & State officials to sign letter of support.
    81 The Journey Train to Mpls/Washington. Thomas read his testimony.
    83 Termination of Federal Contracts & Promises with Indian Tribes March 2-3, 1954 Joint Hearing, Subcommittees of US Congress. Senator Young: ND could not take over; government should fund job-training program on reservation. Thomas: Reservation could not sustain itself without support. Watkins: Indians did not want to farm & leased land to whites. Thomas, I farm. Relocation is ill timed with many difficulties. Watkins: You have to solve most of your problems. Government can’t legislate morality, character or fine virtues. Thomas: I farm & is guard at Plant. Thomas: women at Plant are paid 75 to 90 cents/hr; I take home $38.25/week.  Millie describes her report. Thomas went to Watkins office and thanked him.
     84 The Way Home Thomas recalls every Indian who testified was asked about their degree of Indian blood, and no one knew.[10] (For this reader, these questions were prompted by the previously mentioned prior year’s reports by the Reservation Superintendent that mentioned many of the Turtle Mountain Band had white blood and thus were ready for independence, but this was not mentioned by the novel.) Patrice: Watkins was supercilious with coin-purse mouth, full of sanctimony.
Untitled P.S. by Erdrich Turtle Mountain Band was not terminated.  (However, there was no citation to the name of the bill or other measure that did this or the date on which it happened or the debate (if any) and vote on the measure.)

Conclusion

I am glad that my initial frustrations with this novel did not cause me to abandon the book. The additional efforts at understanding the book and more importantly the congressional efforts to breach U.S. treaties with tribes were rewarded. I also must confess that the stories about the lives of the Indians should make the reader appreciate the courage and imitative of Thomas and the others who went to Washington, D.C. to testify before a congressional committee. I hope this post will encourage others to read the novel and learn about this lamentable facet of U.S. history.[11]

This post has focused on my learning about important aspects of U.S. Native American history after I had retired from practicing law in 2001. I also had learned about another aspect of Native American culture in 1978-79 when as the attorney for the Minneapolis School Board, I sought (unsuccessfully) to persuade the U.S. District Court in Minneapolis to modify its school desegregation order to allow the School Board to continue to allow Native American children to attend a new school close to their homes in the Southeast part of the city. That effort also involved the only appeal (also unsuccessful) by the School Board in the many years of that desegregation case to the U.S. Court of Appeals for the Eighth Circuit and then to the U.S. Supreme Court.[12]

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[1] Urrea, a Mexican-American, is a distinguished Professor of Creative Writing at the University of Illinois-Chicago and a writer of fiction and nonfiction. I have enjoyed his novels, Into the Beautiful North and The House of Broken Angels. He also is an entertaining speaker as evidenced by his lecture—”Universal Border: From Tijuana to the World”—at the 2013 San Miguel Writers’ Conference, which I attended. Another positive review of “The Night Watchman” appeared in the Wall Street Journal: Winkler, Louise Erdrich Retells the Story of Her Grandfather and the Chippewa, W.S.J. (Feb. 28, 2020).

[2] The Night Watchman, HarperCollins Publishers (2020); Reading Guide, The Night Watchman; Urrea, Fighting to Save Their Tribe From Termination, N.Y. Times Book Review (Mar. 29, 2020).

[3] Another Erdrich novel, LaRose, involves adults who were “traumatized from their compulsory time spent as students at Indian boarding schools, where students were stripped of their cultural history and forced to assimilate into Western traditions.”   (HaperColllins Publishers, La Rose (2016); LaRose (novel), Wikipedia;.Broida, ‘LaRose’ by Louise Erdrich: brilliant, subtle exploration of tragic histories, Philadelphia Inquirer (May 20, 2016). It also should be mentioned that there is a moving permanent exhibit, “Away from Home: American Indian Boarding School Stories” at Phoenix’s Heard Museum, which I have visited and highly recommend.

[4] Because of Erdrich’s reference to this book, I bought it and discovered that it said nothing about the Turtle Mountain Band’s struggle in 1953-54 against termination. Ada Deer, who was a member of the Menominee Tribe in Wisconsin, instead has a long discussion of that tribe’s struggle over termination. Subsequently in 1993-97 she was head of the U.S. Bureau of Indian Affairs.

[5] Turtle Mountain Band of Chippewa Indians, Wikipedia; Turtle Mountain Band of Chippewa IndiansTurtle Mountain Chippewa Heritage CenterHouse concurrent resolutions 108, Wikipedia; Arthur Vivian Watkins, Wikipedia. In order to flesh out this research would require at least examining the Congressional Record for the 83rd Congress ((1/3/53—1/3/55), which is impossible during the COVID-19 pandemic. I would appreciate suggestions on other potential sources on this specific topic.

[6] The resulting complex legal problem of determining jurisdiction (federal or Native American courts) was the subject of another Erdrich novel, The Round House, which was awarded the 2012 National Book Prize for fiction. It concerns the violent rape of a Native woman by a white man on the border of an Indian reservation in North Dakota in 1988. (See The Round House (novel), Wikipedia; ; Personal reflections on the U.S.-Dakota War of 1862, dwkcommentariese.com Dec. 10, 2012);  Jurisdictional Black Hole for Certain Violent Crimes by Non-Indian Men Against Indian Women on Indian Reservations, dwkcommentaries.com (Feb. 13, 2013).

[7] Forest to Factory Easy for Indians, N.Y. Times (Aug. 5, 1953); Congress To Get Ten Indian Bills, N.Y. Times (Jan. 31, 1954); Indian Bills Opposed, N.Y. Times (Mar. 26, 1954); Indian Trust Bill Put Under Attack, N.Y. Times (May 6, 1954).

[8] N.D. Dep’t Public Instruction, The History and Culture of the Turtle Mountain Band of Chippewa at 20-21 (1997).

[9] On August 5, 1954, Vice President Ricard Nixon appointed Senator Watkins to chair a bi-partisan committee to review and determine whether censure of Senator Joseph McCarthy was warranted. Its work led to the Senate’s voting, 67 to 22, to condemn McCarthy for (a) his refusal to appear before a Senate subcommittee to answer questions about his personal character and obstruction of its work and (b) his charging three members of a committee of “deliberate deception” and “fraud” and stating to the press that a Senate special session was a “lynch-party.” This blog has published many posts about the preceding Army-McCarty Hearings of 1954 and the role played by Joseph Welch, the attorney for the Army in those hearings. (See posts listed in the “U.S. History, 1918-2017” section of List of Posts to dwkcommentaries—Topical: United States( HISTORY).

[10] These questions about each Indian’s white-blood were undoubtedly prompted by the previously mentioned comments by Peru Farver, Superintendent of the Turtle Mountain Reservation, about “too much money having been channeled into guardianship of these Indians who have a high percentage of white blood and . . . are well able to look out for themselves.”

[11] Yet another horrible part of the history of U.S. treatment of Native Americans was the 1862 U.S.-Dakota War, Minnesota Governor Alexander Ramsey’s contemporaneous public demand that “The Sioux Indians of Minnesota must be exterminated or driven forever beyond the borders of the State;“ and the December 26, 1862, execution by hanging of 38 Dakota men in the town square of Mankato, Minnesota, which is still the largest mass execution on U.S. soil in U.S. history. (Emphasis added.)  (See posts listed in the “U.S. History, 1776-1917” section of List of Posts to dwkcommentaries—Topical: United States (HISTORY).

[12] See these posts to dwkcommentaries.com: Minneapolis Public School Desegregation/Integration Litigation, 1978-1983 (Sept. 9, 2012); The Impact of the Minneapolis Public Schools Desegregation/Integration Litigation on Native American Children (Sept. 11. 2012); Comment, Larry Leventhal’s Participation in Minneapolis Public Schools’ Desegregation Case (Jan. 19, 2017).

 

 

The Joy of Researching and Writing About Edward B. Burling and Joseph Welch

Previous posts have reviewed many aspects of the lives of Edward B. Burling, a prominent Washington, D.C. attorney, and of Joseph Welch, a prominent Boston attorney. (See Appendices A and B.) Those posts are the result of extensive research over many years and in many places besides Internet research on my home computer. Now I share how that research and writing has brought joy to my life. [1}

In 1982 I took a sabbatical leave from my Minneapolis law firm (then Faegre & Benson; n/k/a Faegre Baker Daniels) to teach a course about law at my alma mater, Grinnell College, and in my spare time I examined materials in the College Archives about these two gentlemen.

While on a business trip to Boston in 1985 I found spare time to examine a collection of Joe Welch Papers at the Boston Public Library. While focusing on those relating to the Army-McCarthy Hearings, I happened upon letters between Welch and Burling.

In 1986 I returned to Boston to attend the Harvard Law School’s Summer Program for Lawyers and discovered  in Harvard’s collection of the papers of Learned Hand, an eminent federal judge and one of my legal heroes, that he and Burling had been law school contemporaries and life-long friends. This further spurred my interest in Burling as I read their extensive correspondence. On this occasion I also visited Welch’s law firm and interviewed some of the other lawyers who were involved in the Army-McCarthy Hearings.

When I retired from the active practice of law in the summer of 2001, one of my future projects was to review all of the information that I had gathered and write articles about the two gentlemen, and I mentioned this project in an essay about retirement that was posted on the Internet by another law school friend as part of materials for a lawyers’ seminar.

In 2005 I was inspired to finish these papers when I received a totally unexpected call from Professor Roger Newman, the biographer of Hugo Black and a member of the faculty of Columbia University. Newman said that he was the editor of the forthcoming Yale Biographical Dictionary of American Law and asked if I would be interested in writing short biographies of Welch and Burling for that book. Newman said he had discovered my interest in these men from the just mentioned essay on the Internet. I said that I would be glad to do so.

I then retrieved my materials, did additional research and wrote the two 500-word biographies. (This Biographical Dictionary, which was published in 2009 by Yale University Press, was the first single-volume containing concise biographies of the most eminent men and women in the history of American law who had devised, replenished, expounded, and explained law. See Yale University Press, The Yale Biographical Dictionary of American Law (ISBN 978-0-300-11300-6),

These sketches, however, barely scratched the surface of what I wanted to say about Burling and Welch.. As a result, I did further research, including examination of several collections of original papers at the Library of Congress. My research about Burling and Welch now has been documented in multiple posts to this blog.

My interest in these two men was sparked by my sharing with them growing up in small Iowa towns, graduating from Grinnell College and prestigious law schools and becoming lawyers in major law firms in different cities and by meeting Burling in 1959 and hearing Welch speak at Grinnell in 1957. My research and writing about them enabled me to use my legal skills in projects that were personally important to me, rather than those that were driven by clients and courts. The research also produced many thrills of discovery, including some totally unrelated to these two men.

I am grateful that I have found great joy in doing this research and writing.

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[1] An earlier version of this post was published as Adventures of a History Detective (April 5, 2011).

Posts about Edward B. Burling to dwkcommentaries.com (Appendix A)

Katherine Graham’s Connections with Harry Hopkins and Edward B. Burling (Feb. 13, 2018), https://dwkcommentaries.com/2018/02/13/katharine-grahams-connections-with-harry-hopkins-and-edward-b-burling/

Edward B. Burling’s Early Years in Iowa, 1870-1890 (Feb. 17, 2018), https://dwkcommentaries.com/2018/02/17/edward-b-burlings-early-years-in-iowa-1870-1890/

Edward B. Burling’s Years at Harvard University, 1890-1894 (Feb. 18, 2018), https://dwkcommentaries.com/2018/02/18/edward-b-burlings-years-at-harvard-university-1890-1894/

Edward B. Burling: The Chicago Attorney, 1895-1917 (Feb. 19, 2018), https://dwkcommentaries.com/2018/02/19/edward-b-burling-the-chicago-attorney-1895-1917/

Edward B. Burling: The Federal Government Attorney, 1917-1918 (Feb.20, 2018), https://dwkcommentaries.com/2018/02/20/edward-b-burling-the-federal-government-attorney-1917-1918/

Edward B. Burling: The Prominent Washington, D.C. Attorney, 1919-1966 (Feb.21, 2018), https://dwkcommentaries.com/2018/02/21/edward-b-burling-the-prominent-washington-d-c-attorney-1919-1966/

Edward B. Burling’s Life-Long Friendship with Learned Hand (Feb. 22, 2018), https://dwkcommentaries.com/2018/02/22/edward-b-burlings-life-long-friendship-with-learned-hand/

Edward B. Burling: The Character of the Man (Feb. 25, 2018), https://dwkcommentaries.com/2018/02/25/edward-b-burling-the-character-of-the-man/

The Joy of Researching and Writing About Edward B. Burling and Joseph Welch (Feb. 26, 2018), https://dwkcommentaries.com/2018/02/26/the-joy-of-researching-and-writing-about-edward-b-burling-and-joseph-welch/

Posts About Joseph Welch to dwkcommentaries.com (Appendix B)

Joseph Welch Before the Army-McCarthy Hearings (June 14, 2012), https://dwkcommentaries.com/2012/06/14/joseph-welch-before-the-army-mccarthy-hearings/

The U.S. Army’s Hiring of Attorney Joseph Welch for the Army-McCarthy Hearings (June 8, 2012), https://dwkcommentaries.com/2012/06/08/the-u-s-armys-hiring-of-attorney-joseph-welch-for-the-army-mccarthy-hearings/

U.S. Senator Joseph McCarthy’s Nemesis: Attorney Joseph Welch (June 4, 2012), https://dwkcommentaries.com/2012/06/04/u-s-senator-joseph-mccarthys-nemesis-attorney-joseph-welch/

Attorney Joseph Welch’s Performance at the Army-McCarthy Hearings (June 6, 2012), https://dwkcommentaries.com/2012/06/06/attorney-joseph-welchs-performance-at-the-army-mccarthy-hearings/

President Dwight D. Eisenhower’s Involvement in the Army-McCarthy Hearings (June 12, 2012), https://dwkcommentaries.com/2012/06/10/president-dwight-d-eisenhowers-involvement-in-the-army-mccarthy-hearings/

President Eisenhower’s Secret Campaign Against Senator Joe McCarthy (July 27, 2017), https://dwkcommentaries.com/2017/07/26/president-eisenhowers-secret-campaign-against-senator-joe-mccarthy/

Joseph Welch After the Army-McCarthy Hearings (June 12, 2012), https://dwkcommentaries.com/2012/06/12/joseph-welch-after-the-army-mccarthy-hearings/

U.S. Senator Joseph McCarthy Encounters Langston Hughes at Minneapolis’ Guthrie Theater (May 13, 2012), https://dwkcommentaries.com/2012/05/13/u-s-senator-joseph-mccarthy-encounters-langston-hughes-at-minneapolis-guthrie-theater/

Legal Ethics Issues in the “Anatomy of a Murder” Movie (June 27, 2012), https://dwkcommentaries.com/2012/06/27/legal-ethics-issues-in-the-anatomy-of-a-murder-movie/

The Joy of Researching and Writing About Edward B. Burling and Joseph Welch (Feb. 26, 2018), https://dwkcommentaries.com/2018/02/26/the-joy-of-researching-and-writing-about-edward-b-burling-and-joseph-welch/

 

 

 

 

Edward B. Burling: The Character of the Man

This series about the life of Edward B. (“Ned”) Burling commenced with a post about his connections with Katherine Graham, the owner and publisher of the Washington Post, and then retreated in time to a post about his birth and early years in Iowa, 1870-1890, followed by a post about his four years at Harvard University in Cambridge, Massachusetts, 1890-1894, another post about his 22 years as a Chicago attorney, 1895-1917, a post about his two years as a federal government attorney in Washington, D.C., 1917-1918 and another about his 48 years as a prominent private attorney in Washington D.C., 1919-1966. The last highlighted his long friendship with Learned Hand, a notable federal judge on the Second Circuit Court of Appeals. Now we examine Burling’s overall character. [1]

Burling’s Generosity

Ned accumulated substantial wealth through the practice of law and investments, and his generosity was shown by his gift of $700,000 to his alma mater, Grinnell College, towards the Burling Library‘s total cost in 1959 of $1.3 million ($6.0 million of $11.1 million in February 2018 dollars) But he insisted the Library not be named after him; instead, as the original plaque at its entrance stated, it was named “in memory of Lucy B. Burling 1841-1936,” the benefactor’s mother.

He also made other direct, usually anonymous, gifts to the College  plus financing some students’ expenses. In short, he was a major contributor to the College. Other gifts to the College by his second wife and widow, Bertha Blake Burling, were the Burling mansion in the Embassy Row area of Washington, D.C. and their Maine summer cottage.

Burling also endowed the College’s Linn Smith Prize for Excellence in Mathematics. Smith was a native Iowan and a 1920 honors math graduate of Grinnell who drowned while taking care of Burling’s two young sons at New Hampshire’s Cornish Colony and whom Burling unsuccessfully tried to rescue. Burling was very upset about the drowning and said that Smith was “sweet tempered, devoted and unselfish. If he had been meaner or more faithless, or selfish he would have survived. . . . He had this notion which poor boys that go to Grinnell are apt to get, that is they glory in sacrificing themselves, go without food, go without pleasure, generally go without and your record is sure. I say the only consequence of that philosophy is that you get nothing.”

His generosity was not limited to the College. He anonymously helped other young people attend other colleges and cope with other necessities. After his death, his widow endowed the Edward B. Burling Chair in International Law and Diplomacy at The Johns Hopkins University’s School of Advanced International Studies. Ned along with Paul Nitze (a U.S. diplomat) and Christian Herter (another U.S. Secretary of State) had helped to establish this School in the 1940’s, and Burling had served on its Advisory Council until his death. In similar vein, some of his friends established a scholarship in his name at the Harvard Law School.

Burling’s Other Qualities

After his death some of his friends added their tributes. Dean Acheson, his law partner and former Secretary of State, said that Burling often gave the impression of “being tough, and worldly, and cynical and brutal,” but he really was generous, warm and compassionate. Burling was known, said  Acheson, for a “rare originality and power of mind, a teasing sardonic wit and willful friendships and dislikes.”

Thomas Gardiner Corcoran described his friend as “Poet born, his poetic imagination penetrated everything he touched–the breakthrough of the Bull Moose movement–the law firm he transmuted from a ‘dusty answer’ to the excitement of a 51st state–the self-regenerating waves of compassionate intelligence he se moving as a part of all he met–and he met everybody.” In addition, Corcoran noted, “Uncle Ned lived beyond himself in the hundreds of younger men he gave courage to outdo themselves in confidence of his never-failing support win or lose.”

In similar vein, another friend, John Lord O’Brian, said, “His deep personal interest in the affairs of [C&B} . . . and the selection of partners and associates became his chief interest. This, however, did not prevent his accumulating a group of remarkable friends chiefly in the field of public affairs. His quizzical humor and occasional affectations of worldliness concealed a curiously sensitive and compassionate nature, and gave a unique flavor to his personality. Always reticent about his personal affairs, he was singularly generous in his gifts and discriminating in his help to innumerable individuals.”

The Burling genealogist described Ned as “[a]ambitious and brilliant . . .; personable, charming, and gregarious (many friends and acquaintances of high standing); robust; outspoken and humorous . . .; largely generous.” On the other hand, according to the genealogist, he was “careless of personal relationships, and evidently not too well suited to monogamy.” Indeed, he once shocked a young relative by asking what she thought about his having had many extramarital affairs.

One of his closest friends concluded that Ned was exceptional in “his extraordinary capacity for drawing into the circle of his friendship men gifted with unusual intellectual perceptiveness” or “men of extraordinary ability.” The previous list of frequent guests at Burling’s Cabin is but a brief glimpse at this circle of friendship. Ned was also skillful in “drawing out the views of other people while he himself listened” and “the interplay of his whimsical humor that produced the charm and the flavor.”

Conclusion

Humble or modest he was not. At age 96, he said, “I was a piece of good luck for father, mother, brother and two sisters. To some extent, some more and some less, they were benefited by my being in the world.”

The concluding post in this series will share this blogger’s joy in researching and writing about Burling (and another Grinnell College eminent alumnus, Joseph Welch).

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[1[ Citations to the sources for this post are found in this blogger’s Edward Burnham Burling, The College’s Quiet Benefactor (April 2008)(18-page essay and bibliography; on file in Grinnell College’s Special Collections and Archives).

 

 

 

 

Edward B. Burling, The Federal Government Attorney, 1917-1918

This series about the life of Edward B. Burling commenced with a post about his connections with Katherine Graham, the owner and publisher of the Washington Post, and then retreated in time to a post about his birth and early years in Iowa, 1870-1890, followed by a post about his four years at Harvard University in Cambridge, Massachusetts, 1890-1894 and another about his 22 years as a Chicago attorney, 1895-1917.[1]

The Federal Government Attorney

In 1917, at age 47, Burling finally did manage to leave Chicago to go to Washington, D.C. Though the urging of a law school friend, he became a lawyer for the U.S. Food Administration,  which was an agency for the purchase and sale of foodstuffs and stabilizing the U.S. market price of wheat and which was directed by Herbert Hoover, another native Iowan from the small town of West Branch and, of course, a future U.S. President.

However, the two men did not get along with one another, and Ned immediately left this position to be a lawyer (and then General Counsel) for the U.S. Shipping Board, which was responsible for organizing U.S. shipyards during World War I, a position he held through the end of the war in 1918.

Burling relished the life of a top government lawyer. As he said at the time to his friend Learned Hand, “It’s like expecting a country girl who has spent her entire life milking cows to go back contentedly after she has been to the city–seen the bright lights and been screwed. That’s the way I feel–my first big screw. And I want more of it.”

At the Shipping Board Burling crossed paths with another future Grinnell College luminary, Joseph Welch, then one of its young lawyers.  Welch later observed that in 1918 he was 28 while Burling was 48 and whenever he wrote a letter for Burling’s signature, Ned’s “first act was to seize a pen and sign it. Then you would read it and often suggest a change. But that beautiful gesture of confidence gave me so much happiness,” and Welch thereafter emulated that practice.[1]

Later Connections Between Burling and Joseph Welch

Parenthetically, 36 years later, in 1954, their paths again crossed, albeit indirectly.  One of Welch’s clients in the Army-McCarthy hearings at that time, John G. Adams, thought that Welch was not doing a good job in defending him before the committee. As a result, Adams met with Burling to see if Covington & Burling could represent Adams. Burling’s response: Adams probably would not want the firm to represent him because one of its partners (Donald Hiss) was the brother of Alger Hiss, who had been convicted in 1950 for having provided classified documents to an admitted Communist, Whittaker Chambers. Having Burling’s law firm represent Adams, it was suggested, would leave the firm and Adams open to an attack by McCarthy. As a result, the law firm did not enter the McCarthy arena.

Indeed, the law firm’s connections with Donald and Alger Hiss were deep. In July 1949 Alger Hiss’ federal-court trial for perjury for testimony before the House Un-American Activities Committee ended in a hung jury, splitting 8 to 4 for conviction. Burling and his law partners were upset by the lack of an acquittal, and Burling thought Hiss’ well known attorney had made serious errors in defending the case.[2]

Conclusion

The next installment in this series about Burling will be a summary of his distinguished career as a Washington, D.C. attorney in private practice, 1919-1966.

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[1] Citations to the sources for this post are found in this blogger’s Edward Burnham Burling, The College’s Quiet Benefactor (April 2008)(18-page essay and bibliography; on file in Grinnell College’s Special Collections and Archives).

[2] Posts about Joseph Welch are listed in the “Joseph Welch and Senator Joseph McCarthy” section of List of Posts to dwkcommentaries—Topical: United States (HISTORY).

 

 

 

 

 

 

 

 

 

 

 

 

 

Senator Jeff Flake’s Courageous Defense of American Values and Democracy

On October 24  U.S. Senator Jeff Flake (Rep., AZ) gave a moving speech on the floor of the U.S. Senate rejecting President Trump’s character and actions and announcing the senator’s decision to not seek re-election in 2018.  He simultaneously extended his thoughts in the Washington Post, which commended him for his words and actions. I immediately sent him a letter thanking him for his speech and for his advocacy of U.S.-Cuba normalization, and on November 6 Senator Flake made a public response to the many letters he has received about his speech. Here is a summary of these events.

Senator Flake’s Speech[1]

The Senator said, “I rise today with no small measure of regret. Regret, because of the state of our disunion, regret because of the disrepair and destructiveness of our politics, regret because of the indecency of our discourse, regret because of the coarseness of our leadership, regret for the compromise of our moral authority, and by our – all of our – complicity in this alarming and dangerous state of affairs. It is time for our complicity and our accommodation of the unacceptable to end.” Below is a photograph of Senator Flake giving his speech.

“We must never regard as ‘normal’ the regular and casual undermining of our democratic norms and ideals. We must never meekly accept the daily sundering of our country – the personal attacks, the threats against principles, freedoms, and institutions, the flagrant disregard for truth or decency, the reckless provocations, most often for the pettiest and most personal reasons, reasons having nothing whatsoever to do with the fortunes of the people that we have all been elected to serve.”

“Reckless, outrageous, and undignified behavior has become excused and countenanced as ‘telling it like it is,’ when it is actually just reckless, outrageous, and undignified. And when such behavior emanates from the top of our government, it is something else: It is dangerous to a democracy. Such behavior does not project strength – because our strength comes from our values. It instead projects a corruption of the spirit, and weakness.”

If I have been critical, it is not because I relish criticizing the behavior of the president of the United States.  If I have been critical, it is because I believe that it is my obligation to do so, as a matter of duty and conscience. The notion that one should stay silent as the norms and values that keep America strong are undermined and as the alliances and agreements that ensure the stability of the entire world are routinely threatened by the level of thought that goes into 140 characters – the notion that one should say and do nothing in the face of such mercurial behavior is ahistoric and, I believe, profoundly misguided.”

“The principles that underlie our politics, the values of our founding, are too vital to our identity and to our survival to allow them to be compromised by the requirements of politics. Because politics can make us silent when we should speak, and silence can equal complicity. I have children and grandchildren to answer to, and so, Mr. President, I will not be complicit.”

Senator Flake’s Washington Post Article[2]

The same day as his speech, Senator Flake wrote an op-ed article in the Washington Post. He opened with a reference to one of my heroes, Joseph Welch, and his famous 1954 rhetorical question to Senator Joseph McCarthy who was attacking a young colleague of Welch: ““You’ve done enough. Have you no sense of decency, sir, at long last? Have you left no sense of decency?”[3]

In so doing, said Flake, “Someone had finally spoken up and said: Enough. . . . Welch reawakened the conscience of the country. The moment was a shock to the system, a powerful dose of cure for an American democracy that was questioning its values during a time of global tumult and threat. We had temporarily forgotten who we were supposed to be.”

Flake continued, “We face just such a time now. We have again forgotten who we are supposed to be. There is a sickness in our system — and it is contagious.”

“Nine months of this administration is enough for us to stop pretending that this is somehow normal, and that we are on the verge of some sort of pivot to governing, to stability. Nine months is more than enough for us to say, loudly and clearly: Enough.”

“The outcome of this is in our hands. We can no longer remain silent, merely observing this train wreck, passively, as if waiting for someone else to do something. The longer we wait, the greater the damage, the harsher the judgment of history.”

“It’s time we all say: Enough.”

 Washington Post’s Editorial[4]

The Washington Post immediately published an editorial that said the speech “was profoundly eloquent in its diagnosis of the degradation that President Trump has brought to American politics. It was also profoundly depressing. If Republicans can be honest only after they have taken themselves out of the political arena — or if by being honest they disqualify themselves from future service — then their party and therefore the nation are in even graver trouble than we knew.”

My Thank You Letter

“As a fellow U.S. citizen, I thank you for your speech yesterday on the Senate Floor. You spoke the truth about the serious challenges facing our country by the character and conduct of Donald Trump as president. You correctly pointed out that you did not want to be complicit in that conduct by remaining silent although with your recent book and other comments you hardly have remained silent.”

“I also thank you for your strong support of U.S.-Cuba reconciliation and normalization, and I know you have visited the island many times. As a member of Minneapolis’ Westminster Presbyterian Church, I personally have been involved over the last 15 years with our partnership with a small Presbyterian-Reformed Church in the city of Matanzas and have been on three of our mission trips to the island and have welcomed Cubans visiting our church. This has led to my writing extensively on this subject and advocating such reconciliation and normalization on my blog.”

“As you well know, in recent months U.S.-Cuba relations have been troubled by medical problems experienced by some U.S. diplomats who had been stationed In Havana, about which I have written blog posts. I am amazed that after many months of investigations by the U.S. (and Cuba) the U.S. continues to assert that it does not know who or how these medical problems were created. I also am amazed that I have not discovered anyone who is wondering whether they were created by a secret and malfunctioning U.S. program or device. Perhaps this is something you could question in the Senate.”

Senator Flake’s Response to Letters[5]

“By the electronic bushel, in thousands of calls and letters, reactions have poured into my office.] Some wrote just to say thanks. From Arizona, from all over the country and from abroad. From all across the political map, too.”

This was a “deeply personal outpouring, the scale of which has stunned and humbled me. . . . I can say that reading these letters has been one of the most humbling experiences of my public life. . . . I am humbled because until now I didn’t fully grasp the level of anxiety and real pain that exists across the country due to the state of our national leadership.”

“These writers despair not just for the chaos emanating from the White House, but for the moral vandalism that has been set loose in our culture, as well as the seeming disregard for the institutions of American democracy. The damage to our democracy seems to come daily now, most recently with the president’s venting late last week that if he had his way, he would hijack the American justice system to conduct political prosecutions — a practice that only happens in the very worst places on earth. And as this behavior continues, it is not just our politics being disfigured, but the American sense of well-being and time-honored notions of the common good.”

 “I have been powerfully reminded that we have all been raised with fidelity to a very large idea, the American idea. When that idea comes under threat, and it seems as if the center might not hold, it is not just our politics that suffers. When a leader wreaks havoc with our democratic norms, it is not just political Washington that is dragged through the muck. When that happens, it is deeply upsetting to people everywhere, almost existentially so, and we all suffer.”

“These extraordinary and patriotic voices, calling me and themselves to action in defense of the things we hold dear, remind me that to have a vital democracy, there can be no bystanders.” I now “realize that to stand up and speak out is sometimes the most conservative thing a citizen can do.”

Conclusion

I urge my fellow U.S. citizens to join in the commendation of Senator Flake for his outspoken defense of true American values and to call for the resignation or removal of Donald Trump from office under the provisions of the U.S. Constitution.

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[1]   U.S. Senate, Flake Announces Senate Future ( Oct. 24, 2017); Full Transcript: Jeff Flake’s Speech on the Senate Floor, N.Y. Times (Oct. 24, 2017).

[2]  Flake, Enough, Wash. Post, (Oct. 24, 2017).

[3] An inverse historical example for Senator Flake’s criticisms of President Trump is President Eisenhower’s behind-the-scenes campaign to destroy his fellow Republican, Senator Joseph McCarthy, which  is the subject of David A. Nichols’ Ike and McCarthy: Dwight Eisenhower’s Secret Campaign Against Joseph McCarthy (Simon & Schuster 2017).

[4] Editorial, Jeff Flake’s Diagnosis is right. But it’s not enough, Wash. Post (Oct. 24, 2017)

[5] Jeff Flake: In a Democracy, There Can Be No Bystanders, N.Y. Times (Nov. 6, 2017).

President Eisenhower’s Secret Campaign Against Senator Joe McCarthy

During the first two years of President Eisenhower’s first term (1953-1954), U.S. Senator Joseph McCarthy (Rep., WI), was garnering national attention with his reckless charges of communist infiltration of the U.S. government, including the President’s beloved U.S. Army, which he had brilliantly served during World War II. Yet Ike, as the President was known, did not publicly confront McCarthy.

Now David A. Nichols, a retired history professor at Kansas’ Southwestern College and an authority on the Eisenhower presidency, has provided great details on Ike’s behind-the-scenes campaign against McCarthy in Ike and McCarthy: Dwight Eisenhower’s Secret Campaign Against Joseph McCarthy (Simon & Schuster, New York, 2017).

According to Nichols, Ike drew upon his experience in strategic deception as Supreme Allied Commander of the Allied Expeditionary Force in Europe in World War II to orchestrate the campaign against McCarthy. Keys to this strategy were the President’s avoiding public criticism of McCarthy and deflecting journalists’ questions about the Senator at presidential press conferences and instead having presidential subordinates issue statements and take actions against McCarthy. Those “subordinates” included Sherman Adams, White House Chief of Staff; James Hagerty, White House Press Secretary; Fred Seaton, Assistant Secretary of Defense; Herbert Brownell, Jr., Attorney General; William Rogers, Deputy Attorney General; John Foster Dulles, Secretary of State; and Henry Cabot Lodge, Jr., Ambassador to the United Nations.

An important part of this history was the relationship between Roy Cohn, who was McCarthy’s chief counsel, and a handsome young staffer on McCarthy’s committee, G. David Schine, who after being drafted as a private into the U.S. Army obtained preferential treatment by the Army as a result of pressure from Cohn and McCarthy. Below are photographs of the two men.

Roy Cohn
G. David Schine

When President Eisenhower learned of the special treatment and the reasons therefor, he instigated a secret Army investigation of these matters. The subsequent report of that investigation was publicly released and prompted fiery denunciations of the Army by McCarthy and Cohn, resulting in the now infamous Army-McCarthy hearings of 1954.

The implicit message of this report was Cohn and Schine’s having a homosexual relationship, which at the time was widely condemned. At the subsequent Army-McCarthy hearing, Army counsel, Joseph Welch, alluded to this relationship when he questioned another McCarthy aide, James Juliana, about the origins of a photograph that had been altered. The question: “Did you think it came from a pixie?,” which Nichols says was a sly allusion to the alteration’s having been made at the direction of Cohn, who was believed to be gay. McCarthy interrupted: “Will the counsel for my benefit define—I think he may be an expert on that—what is a pixie?” Welch’s response: “Yes, I should say, Mr. Senator, that a pixie is a close relative of a fairy [a widely used term for a homosexual at the time]. Shall I proceed, sir? Have I enlightened you?” The room erupted in laughter. (Nichols at 239.)[1]

The hearing’s climax occurred on June 9, 1954, when Welch sarcastically asked Cohn about the important committee work that he and Schine purportedly had done on their weekends together and taunted him to “hurry” to “act before sundown” to discover communists anywhere. McCarthy sought to counter this attack on Cohn and McCarthy by interrupting to say that Welch’s law firm had “a young man named Fisher . . . who has been for a number of years a member of an organization which was named, oh years and years ago, as the legal bulwark of the Communist party.” (Nichols at 280.)

Welch, after finally getting McCarthy’s attention, said, “Senator, I never really gauged your cruelty or your recklessness. Fred Fisher is a young man who went to the Harvard Law School and came into my firm and is starting what looks to be a brilliant career with us. Little did I dream that you would be so reckless and cruel as to do an injury to that lad. . . . If it were in my power to forgive you for your reckless cruelty I would do so. I like to think I am a gentle man, but your forgiveness will have to come from someone other than me.” (Nichols at 280-81.)

McCarthy, ignoring this plea, resumed his attack on Fisher. Welch responded, “Let us not assassinate this lad further, Senator. You have done enough. Have you no sense of decency, sir, at long last? Have you no sense of decency?” (Id.)

At the time, many thought that Welch was surprised by this attack on Fisher, but there was no such surprise. Indeed, some thought that Welch’s cross examination of Cohn was taunting McCarthy so that he would attack Fisher and that Welch’s “no sense of decency” speech was rehearsed. (Nichols at 280-82.)[2]

Six months later, on December 2, 1954, the U.S. Senate by a vote of 67 to 22 passed a resolution condemning McCarthy for certain of his actions as a U.S. Senator. Thereafter he had virtually no influence in the Senate or the country at large. He died on May 2, 1957. (Nichols at 292-97.)

Postscript

In 2012, I met author Nichols when he gave a lecture at the Minnesota Historical Society on President Abraham Lincoln’s involvement in issues related to the U.S.-Dakota War of 1862,[3] a subject in which I had an interest and about which have written blog posts.[4] Later when I had written blog posts about Joseph Welch and his representing the Army in the McCarthy hearings,[5] Nichols told me he was writing a book about Eisenhower and McCarthy, and I provided him with materials I had collected. I was surprised and pleased when Nichols included this kind acknowledgement at the end of his just published book:

  • Nichols was “particularly indebted to Duane Krohnke, a retired Minneapolis attorney and authority on Joseph Welch, his fellow alumnus at Grinnell College in Iowa. Duane provided me with documents unavailable elsewhere, especially Fred Fisher’s account of the hiring of Welch as counsel for the Army-McCarthy hearings. Duane also connected me with Ann M. Lousin [Grinnell, 1964] and Nancy Welch [not Grinnell’s 1961 Nancy Welch], Welch’s granddaughter, both of whom provided important information about Welch and McCarthy.” (Nichols at 300.)

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[1] After Cohn died of AIDS in 1986, public speculation about his sexual orientation intensified. Some say that his relationship with Schine was platonic while others assert it was homosexual. In the HBO film of Tony Kushner’s “Angels in America: A Gay Fantasia on National Themes,” Al Pacino plays Cohn as a closeted, power-hungry hypocrite who is haunted by the ghost of Ethel Rosenberg as he lies dying of AIDS. It should also be noted that in 1973 Cohn was hired by Donald Trump to defend the Trump Management Corporation against charges of racial discrimination and Cohn thereby became a close friend and mentor to Mr.Trump.

[2]  See also U.S. Senator Joseph McCarthy’s Nemesis: Attorney Joseph Welch (June 4, 2012);  of “Good Night, and Good Luck: The Movie’s Offstage Hero, Joseph Welch,” Grinnell Magazine (Summer 2006).

[3] Nichols has written a fascinating book on this subject: Lincoln and the Indians: Civil War Policy and Politics (Minnesota Historical Society Press, 1978, 2000, 2012).

[4] Here are blog posts on this subject to dwkcommentaries.com: The U.S.-Dakota War of 1862 (Nov. 3, 2012); White Settler’s Contemporaneous Reaction to the U.S.-Dakota War of 1862 (Nov. 6, 2012); Abraham Lincoln’s Involvement in the U.S.-Dakota War of 1862 (May 21, 2013); U.S. Military Commission Trials of Dakota Indians After the U.S.-Dakota War of 1862 (June 11, 2013); President Abraham Lincoln’s Involvement in the Military Commission’s Convictions and Sentences of the Dakota Indians (June 24, 2013); The Sesquicentennial Commemoration of the U.S.-Dakota War of 1862 (Nov. 9, 2012); Commemoration of the 150th Anniversary of the Hanging of the “Dakota 38” (Dec. 26, 2012); Minneapolis and St. Paul Declare U.S.-Dakota War of 1862 “Genocide” (Jan. 12, 2013); Remembering the U.S.-Dakota War at Minneapolis’ Westminster Presbyterian Church (Part I) (Nov. 18, 2012); Remembering the U.S.-Dakota War at Minneapolis’ Westminster Presbyterian Church (Part II) (Nov. 25, 2012); Remembering the U.S.-Dakota War at Minneapolis’ Westminster Presbyterian Church (Part III) (Nov. 29, 2012); Personal Reflections on the U.S.-Dakota War of 1862 (Dec. 10, 2012).

[5] I am the author of “Good Night, and Good Luck: The Movie’s Offstage Hero, Joseph Welch,” Grinnell Magazine (Summer 2006); the biography of Welch in Newman (ed.), The Yale Biographical Dictionary of American Law (Yale Univ. Press, 2009); and the following posts on my blog (https://dwkcommentaries.com): Joseph Welch Before the Army-McCarthy Hearings (06/14/12); The U.S. Army’s Hiring of Joseph Welch for the Army-McCarthy Hearings (06/08/12); U.S. Senator Joseph McCarthy’s Nemesis: Attorney Joseph Welch (06/04/12); Attorney Joseph Welch’s Performance at the Army-McCarthy Hearings (06/06/12); President Dwight D. Eisenhower’s Involvement in the Army-McCarthy Hearings (06/10/12); Joseph Welch After the Army-McCarthy Hearings (06/12/12); and Legal Ethics Issues in the “Anatomy of a Murder Movie [in which Welch played the judge]” (06/27/12).  The joys of researching about Welch and other subjects are celebrated in Adventures of a History Detective, dwkcommentaries.com (April 5, 2011).

 

 

 

 

Reflections on Learning and Teaching

As a student of history, economics, political science, law and other humanities courses at six colleges and universities[1] and as an instructor at three such institutions,[2] I have participated in different ways of instructing and learning such bodies of knowledge and skills: college and university lectures, other lectures; seminars, research and writing; tutorials; the Socratic method; and role-playing. Similar methods were used in my practice as a litigating attorney and now as a blogger and ordinary citizen. Underlying all of them, of course, are reading and studying. Here are a septuagenarian’s lessons in life-long learning.

My thinking about this subject and writing this blog post were prompted by a recent article about the lecture as a mode of instructing and learning. That article by Molly Worthen, an Assistant Professor of History at the University of North Carolina, Chapel Hill, was put into a broader context by her quoting John Henry Newman’s “The Idea of a University,” where he said the humanities taught a student “to disentangle a skein of thought, to detect what is sophistical, and to discard what is irrelevant.” Such a student learns “when to speak and when to be silent. He is able to converse, he is able to listen.”[3]

College and University Lectures

“A good lecture class,” Worthen says, teaches “comprehension and reasoning” by keeping “students’ minds in energetic and simultaneous action.” It does so by emphasizing “the art of attention, the crucial first step in … ‘critical thinking.’” She quotes Monessa Cummins, the Chair of the Classics Department at Grinnell College, my alma mater, as saying the lecture places “a premium on the connections between individual facts . . . [and] the building of an argument.”

This is “hard work” for the students, Worthen adds, requiring them “to synthesize, organize and react as they listen.” Indeed, students need to be taught how to listen, and lecture courses are exercises in “mindfulness and attention building.” This skill cannot be assumed, but must be taught. One way of doing so, in Professor Cummins’ classes, is to assign one student in each session to present a critique of her argument at the subsequent small discussion section.

Such a lecture course teaches that “listening is not the same thing as thinking about what you plan to say next–and that critical thinking depends on mastery of facts, not knee-jerk opinions.“

This is enhanced, Worthen argues, by requiring the students to take notes by hand, not by typing them into a computer. The former makes it impossible for them to make verbatim transcripts of the lecture, but instead to synthesize as they listen. That may be true, in my opinion, when the lecturer does not provide the students or audience with an outline of the lecture.

Lecturing, on the other hand, with a PowerPoint outline and providing the students or audience members with the Notes Page version of the outline enables the student to glance at the entire presentation in advance and see how the individual points fit into the entire lecture or presentation and then add his or her notes to individual pages as the lecture proceeds. PowerPoint also facilitates the use of graphs, maps and photographs in the lecture. [4]

Worthen also recognizes the utility of combining a large lecture session with small discussions sections and thereby obtain the reactions and comments of the students.

My memories of my first exposure as a student to lecturing 58 years ago as a freshman at Grinnell College are fuzzy at best, but I do not recall being provided with tips on how to take full advantage of this form of instruction. I now wish I had been told how to listen, to be mindful and to synthesize as I listened. I wish I had had a professor assign one student in each session to present a critique of the lecture’s argument at the next class session. Of course, then all notes of a lecture were handwritten.

As a student of Philosophy, Politics and Economics (PPE) at the University of Oxford, 1961-1963, attendance at university lectures on these subjects, often by world-famous scholars, was optional. I attended some primarily to see and hear such people as philosophers A. J. Ayer and Gilbert Ryle, economist J. R. Hicks and legal philosopher H. L. A. Hart, but regrettably I did not regularly do so. (Instead my attention was focused on tutorials as discussed below.)

As a law student at the University of Chicago, 1963-1966, the Socratic method was the dominant form of instruction, not lectures. The latter instead were formal occasions for all the students and faculty, usually provided by visiting scholars and judges. (The Socratic method also will be discussed below.)

In addition, I was a lecturer when I taught a course on the American Civil Law System at Grinnell while on sabbatical leave from my law firm, when I was a Practitioner in Residence at the University of Iowa College of Law, when I was an Adjunct Professor at the University of Minnesota Law School and when I was on the faculty of various continuing legal education courses while I was a practicing lawyer. That experience required me to review the material to be covered, to conduct any additional research I deemed necessary, to determine the main points to emphasize, to construct an outline for what I wanted to cover in the lecture and, in some cases, to prepare a PowerPoint presentation for use at the lecture.

Other Lectures

All of us obtain information and are educated, or not, in other oral presentations throughout our lives. I think of major political speeches like the State of the Union and Inaugural Addresses; other speeches at public events; and sermons at churches.

When, for example, I listen to speeches or presentations at the Westminster Town Hall Forum, I sometimes take handwritten notes and submit proposed questions for the moderator to ask the speaker. Later I also can go to the Forum’s website to re-listen to the speech. I also have written blog posts about some of these presentations. Another recent source of lectures for me is those offered by the Osher Lifelong Learning Institute (OLLI) of the University of Minnesota.

For sermons at Westminster Presbyterian Church, I sometimes make handwritten notes of some of the points on the church bulletin in my hands while the morning prayer, hymns and choral anthems usually emphasize some of the sermon’s main points. I also have found that I learn more about the sermon’s lesson by reading its text when it is subsequently posted on the church’s website and by reading and reflecting on the Scripture passages for the sermon; additional insight is often providing by writing a blog post about a sermon.

Seminars

My best educational experience at Grinnell College was taking the Political Economy Seminar my senior year with nine other students and with faculty from the economics, history and political science departments. We read important books in the field, not textbooks, and wrote and presented our papers on the former for discussion by all.

The Washington Semester at American University in the Fall of 1959 provided another type of seminar experience as a group of students from all over the U.S. met with politicians, government officials and others to learn about the operations of the U.S. government and political process.

I also organized and led a liberal arts seminar for lawyers at Grinnell in 1984. After reading various materials, we gathered at the College to discuss American legal history, alternative dispute resolution (ADR), jurisprudence and the lives and challenges of being humane judges and lawyers. Our leaders were a federal appellate judge, a national ADR scholar, an American history professor, a jurisprudence professor and a practicing lawyer.

Being in a book group, for me at Westminster Presbyterian Church, is another seminar experience for groups of 12 or smaller. Reading an assigned book and then gathering for a discussion of the book led by one of the group usually leads to a greater understanding of the book and its issues. For example, I recently led my group in discussing David Brooks’ “The Road to Character” after I had written about the book in this blog.[5]

Research and Writing

During my student years I conducted factual and other research about various subjects and in the process learned a lot about those subjects as well as research skills. The task of then reducing that research into a paper on the subject provided more learning about the subject plus the process of writing such papers. Later as a practicing lawyer these skills were further developed with the aid of the legal process for obtaining evidence in lawsuits, including the examination of witnesses, and the writing of briefs and other legal papers under rules for their contents and length.

The student research paper I best recall was at American University. The topic was how political interest groups participate in important cases in the U.S. Supreme Court and more specifically in contempt-of-congress cases in that court. I identified such cases, read the Court’s opinions in the cases, interviewed staffers at the relevant congressional committees (especially the House Un-American Activities Committee) and at the relevant political interest groups (especially the American Civil Liberties Union and the American Association of University Professors) and then spent a lot of time at the Supreme Court’s Library reading the briefs in the case, including those from the ACLU and the AAUP as amici curiae (friends of the court). The paper summarized this research and conclusions.

My enjoyment of research and writing continued as a practicing lawyer, both in my work as a lawyer and as a putative scholar. For example while at Harvard Law School for a short summer course, I spent time in its library doing research about Joseph Welch and Edward Burling, both prominent attorneys who were graduates of that Law School and of Grinnell College, and interviewing attorneys at Welch’s Boston law firm, about his representation of the U.S. Army in the McCarthy hearings of 1954. Later I wrote articles about both of them for the Grinnell Magazine [6] and even later with excerpts from the Welch article in this blog.[7]

A similar process was involved as a law student in researching and writing comments for the law review and as a lawyer in writing briefs.

Grinnell College recently has enhanced its use of research and writing as an educational method by adding a public website, The Grinnell Post, that hosts student essays about current events, public debates, and issues of interest to the Grinnell community. Its mission is to allow students to share their work in a public forum and foster conversations with a diverse readership and solicit their comments and criticism.

Another Grinnell effort to incorporate digital technology in the liberal arts is a website, Ashplan, initially devoted to James Joyce’s Ulysses. It seeks to foster the inheritance of classroom culture; that is, it forges connections among students studying the same material at different times, allowing new students to benefit from, remix, and add to the work of their predecessors.

Tutorials

As discussed in a prior post, the tutorial was the primary mode of undergraduate education at Oxford. During each week of the three terms of the academic year, I would have two tutorials, usually with only one other student and the tutor and sometimes only by myself with the tutor. The assignment was always in the form of a question with the tutor’s suggestions of books and articles one should read.

As a result, most of my time each week at Oxford was spent in the university libraries reading those sources and other relevant materials, figuring out how I would answer the assigned question and writing an essay setting forth that answer and analysis. Then I would see the tutor again and read my essay for critiquing and discussion.

I loved the independence of this system and being “forced” to come to a conclusion on an issue and to construct my own analysis and documentation for my conclusion. This was exactly the skill that was tested in Oxford’s university-wide examinations at the conclusion of my student-years, as also discussed in a prior post.

Grinnell College now has a First-Year Tutorial for all freshmen in groups of about 12 students that are led by “faculty members . . . from all academic departments . . . in more than 35 topics.” For the Fall of 2015 these include “Crisis, Liberation, Justice, and Leadership;“ “Racism: Color, Culture, Class; “ and “The Origins of Capitalism.” Every tutorial emphasizes writing, critical thinking and analysis, and oral presentation and discussion skills. The tutorial professors also serve as the advisers to their tutorial students until they declare a major field of study.

Socratic Method

After the treasured independence of the Oxford undergraduate experience, I initially was shocked in my first weeks in the Fall of 1963 as a student at the University of Chicago Law School. Now I was in large classes with daily assignments of certain pages in our large casebooks. The professors did not lecture. Instead they cross-examined individual students, one-by-one, about what the holding of a particular case was and what the result should be in a hypothetical case. We were being taught, we were told, how to think like a lawyer.

This method clearly taught you how to read a judicial opinion very carefully (and very painfully and slowly during that first semester of law school), to analyze that opinion to determine what its holding was and to think about the arguments that could be raised in similar, but different, hypothetical cases. Then in class you had to learn how to think on your feet and respond to questions from the professor as you would later do as a lawyer when questioned by a judge.

Reading and analyzing constitutions, statutes and regulations are also important for a lawyer, but I do not have clear memories of how that was done in my law student years. Of course, many judicial opinions concern judicial interpretations of such materials, and the overall law-school emphasis on reading and analyzing judicial opinions covered that methodology.

Learning how to do legal research and write legal briefs is another important part of law school. In addition, being a member of a law review staff and editorial board gives experience in writing and editing articles about legal topics.

Role-Playing

Participating in moot courts and playing the role of a lawyer making an argument to a court is another prominent method of legal education. I did not take advantage of this opportunity in law school as I was busy working on the law review doing legal research and writing and editing articles for the journal.

I, however, employed this method when I taught for one semester at Grinnell while on sabbatical leave from my law firm. I acted as a trial court judge hearing arguments by students as lawyers on a motion to compel production of a college tenure committee records in a hypothetical lawsuit brought by a professor against a college for denial of tenure. A different kind of role playing in that course was having the students, in lieu of a final examination, play the role of a justice of the Iowa Supreme Court and write an opinion deciding a case after reading the briefs in the case along with my memoranda summarizing some of the legal issues and after hearing the case argued before the actual Court.

I also used the moot-court method when I was an adjunct professor at the University of Minnesota Law School; I acted as a federal district court judge hearing arguments on a motion to dismiss a complaint under U.S. federal statutes (the Alien Tort Statute and the Torture Victims Protection Act) alleging a corporate defendant’s violations of human rights in other countries. I also acted as a judge of an immigration court to hear arguments on whether the court should grant an application for asylum by someone who allegedly had a well-founded fear of persecution in his or her home country due to political opinion or other protected ground.

I used a different kind of role-playing when I was a Practitioner in Residence at the University of Iowa College of Law. In a first-year civil procedure class, I played the role of a law firm partner while the students played the roles of associate attorneys working for me as we collectively identified issues, potential arguments and additional legal research needed for preparing a civil complaint under the strictures of Rule 11’s requiring such a pleading to be warranted by existing law or a non-frivolous argument for changing the law and by evidentiary support.

In such role-playing exercises, the student learns about procedural and substantive law, identification of legal and evidentiary issues and how to write and analyze briefs and make oral arguments.

In my experience, this is an effective way of learning several areas of law plus the skills of advocacy, and most students appreciate these opportunities to have a taste of what it is like to be a lawyer.

Conclusion

I am fortunate to have experienced different methods of teaching and learning from able practitioners of the different methods. I have learned in each of these settings and cannot say one is better than another. A lot depends on the size of the audience and the stage of your educational career. Seminars and tutorials require a small number of students while lectures are more appropriate, if not required, for a large number of students. I hope that I have been able to convey the same excitement of learning when I have been the instructor.

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[1] Grinnell College, 1957-1961; American University (Washington Semester), 1959; University of Oxford, 1961-1963; University of Chicago Law School, 1963-1966; Harvard Law School (Summer Program), 1986; and University of Minnesota Law School, 2001.

[2] Grinnell College, 1982, 1984; University of Iowa College of Law, 1986; and University of Minnesota Law School, 2002-2010.

[3] Worthen, Lecture Me. Really, N.Y. Times Sunday Review (Oct. 18, 2015).

[4] Aaron Fichtelberg, an associate professor of criminal justice at the University of Delaware, strongly disagrees on the value of PowerPoint. Indeed, he argues that it “turns good teachers into mediocre ones and mediocre lectures into a sludge of unengaging facts.” According to him, it “forces rigidity on the content of the course and passivity onto the students.” I agree that sometimes such use is boring. But as with all of these modes of teaching, there are the good and the bad. Other opinions?

[5] The Important Moral Virtues in David Brooks’ “The Road to Character” (May 1, 2015); David Brooks’ Moral Exemplar (May 2, 2015); David Brooks Speaks on the Role of Character in Creating an Excellent Life (May 16, 2015).

[6] Good Night, and Good Luck: The Movie’s Offstage Hero, Joseph Welch, Grinnell Magazine, Summer 2006, at 12; Edward Burnham Burling, Grinnell’s Quiet Benefactor, Grinnell Magazine, Summer 2009, at 21.

[7] Joseph Welch Before the Army-McCarthy Hearings (June 14, 2012); The U.S. Army’s Hiring of Attorney Joseph Welch for the Army-McCarthy Hearings (June 8, 2012); Attorney Joseph Welch’s Performance at the Army-McCarthy Hearings (June 6, 2012); U.S. Senator Joseph McCarthy’s Nemesis: Attorney Joseph Welch (June 4, 2012); President Dwight D. Eisenhower’s Involvement in the Army-McCarthy Hearings (June 10, 2012); Joseph Welch After the Army-McCarthy Hearings (June 12, 2012); Legal Ethics Issues in the “Anatomy of a Murder” Movie (June 12, 2012).

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

“I don’t want to belong to any club [like the U.S. Senate] that will accept me as a member”

Groucho Marx
Groucho Marx
U.S. Senate Chamber
U.S. Senate Chamber

Little did the famous comedian Groucho Marx realize that he was talking about today’s dysfunctional U.S. Senate when many years ago he sent a telegram to a club stating, “PLEASE ACCEPT MY RESIGNATION. I DON’T WANT TO BELONG TO ANY CLUB THAT WILL ACCEPT ME AS A MEMBER.”[1]

Frustration over the current ways of the Senate is often listed as a major reason why many long-time, respected members of the Senate recently have resigned or announced they are not running for re-election in 2014. In addition, both major political parties are having difficulty recruiting qualified candidates to run for the Senate in that election for the same reason.

Recently the popular former Montana Governor, Brian Schweitzer, who is the Democratic Party’s best hope of retaining the Senate seat now held by Democrat Max Bachus, announced that he was not running for the Senate next year. A major reason for this decision, he said, was Washington’s being a “dysfunctional . . . sinkhole” where “most of the people . . . are frauds.”

One of the major reasons for these negative views, which I share, is the Senate’s rules permitting filibusters of pending legislation and judicial and executive nominations. They are, in my opinion, an abomination and unconstitutional as has been discussed in prior posts.

Yet again these rules have been in the recent news because of threatened Republican filibusters of certain presidential nominations and of the July 16th compromise that allows those rules to remain in place in exchange for the Republicans not filibustering seven pending executive nominations.

I am pleased that these pending nominations will receive an up-or-down vote by the Senate. On the other hand, I am disappointed that so much time and attention is spent on this ridiculous side show and that the filibuster rules are still in place.

I am not alone in despairing the current dysfunctionality of the Senate and more generally the federal government. In the most recent Wall Street Journal/NBC News public opinion poll, only 17% had confidence in our national government while only 10% had confidence in the U.S. Congress according to the latest Gallup poll.

Reversing this horrible public distrust of the federal government is important to Gerald F. Seib, the Washington Bureau Chief of the Wall Street Journal. He suggests the following as important means to that end:

  1. Fix the federal governmental system. The “rules of the Senate need to be changed to curtail the ability of a minority of Senators, or sometimes a single one, to make progress grind to a halt.” In addition, “States need to stop drawing congressional districts that ensure deep and paralyzing polarization by making so dark red or dark blue that only the most ideologically rigid candidates bother to run.”
  2. Modernize the federal government so it is more useful in our everyday lives. For this proposition, Seib praised a recent speech by President Obama which said he had “directed the Cabinet to develop an aggressive management agenda . . .  that delivers a smarter, more innovative, and more accountable government for its citizens.” The President also noted that last year he had “asked Congress for the authority to reorganize and consolidate the federal bureaucracy” and that his Administration had found more efficient “ways to deliver the services that citizens expect in smarter, faster, and better ways.”
  3. Manage the deficit. Although Seib says eliminating the deficit any time soon would be bad for the economy and should not be done, the public needs to sense that the problem is “being tamed intelligently.”

I merely say, “Amen, Brother.”


[1] A prior post chuckled over the humorous correspondence between Groucho and Joseph Welch, the attorney for the U.S. Army in the 1954 Army-McCarthy hearings in the U.S. Senate.

 

 

 

 

 

Legal Ethics Issues in the “Anatomy of a Murder” Movie

We have seen a brief identification of the main characters and a synopsis of the plot of the movie Anatomy of a Murder. Now let us examine the issues of legal ethics raised by the film.

The defense attorney, Paul Biegler (played by Jimmy Stewart) comes across as an earnest, straightforward, honest attorney who zealously defends the accused.

Paul Biegler (Jimmy Stewart) &
Frederick Manion (Ben Gazzara)

Yet Biegler comes close to crossing the lawyer’s ethical line of not suborning perjury when in the initial consultations with his client, Lt. Frederick Manion (played by Ben Gazzara), Biegler tells the client the only potential defense is insanity before the lawyer knows all the facts and then implicitly invites the client to develop a story of insanity.

Paul Biegler      (Jimmy Stewart)

During the trial, Biegler frequently appears to be an unskilled trial lawyer. He makes improper objections, such as “Now, he [Dancer, one of the prosecutors] cannot do that.” Biegler also frequently and knowingly asks improper questions, and the prosecution’s objections are sustained. His client, Manion, asks Biegler in an aside how the jury can forget something that the judge has stricken. Biegler says the jury cannot forget, which is precisely the reason why Biegler asked the improper question.

Another example of Biegler’s apparent inept performance as a defense lawyer is his failure to object to the examination of one witness by both prosecutors–District Attorney Mitch Lodwick (played by Brooks West) and Assistant Attorney General Claude Dancer (played by George C. Scott). Such “dual teaming” is clearly improper as a matter of trial practice. Soon thereafter, however, Biegler reveals his calculating courtroom manner when he raises that very objection while slyly arguing to the jury that it is unfair for a simple country lawyer like himself to face two legal giants with the same witness, and the court sustains Biegler’s objection. Who really is the courtroom giant?

Judge Weaver (Joseph Welch), Paul Biegler, Mitch Lodwik & Claude Dancer
Claude Dancer
(George C. Scott)

Biegler also reveals his skills as a trial lawyer when in a conference in chambers with Judge Weaver (played by Joseph Welch), Biegler initially plays dumb when Dancer asks if Biegler is familiar with a Michigan statute that allows the prosecution to have its psychiatrist examine an accused who is asserting the insanity defense. Dancer then comes across as a reasonable attorney when he suggests that Biegler just agree to the adverse examination. But Biegler is well aware of the statute when he tells the judge that a formal application is required for such an adverse examination, but that the time for such has passed. Dancer then is forced to abandon his request. Later during Biegler’s cross examination of the prosecution’s expert witness, Biegler forces the adverse expert to admit that he did not examine Manion whereas Manion’s expert had and that Manion’s expert, therefore, had a better basis for his opinion.

At the heart of the legal issues in the movie was the definition of insanity as a defense to criminal liability. At the time of the movie and today, the definition in most states in the U.S. is the M’Naghten rule: a person is insane if at the time of the act, he did not know what he was doing or did not know that what he was doing was wrong.

In a few states, on the other hand, insanity was defined as someone who could not control what he was doing because of a mental impairment even though he knew what he was doing was wrong. This was the so-called “irresistible impulse” test.

In the movie, Biegler assumes that Michigan follows the M’Naghten rule, but on the Saturday before the start of trail, he and his co-counsel, McCarthy, spend time in the county law library in the courthouse and find an old Michigan case that approves of the irresistible impulse rule. [1] This makes for a dramatic scene in the movie. But to conduct legal research on the key issue in a murder case only a few days before the start of trial really is skirting the edges of legal malpractice.

This legal issue becomes important in a conference in chambers with Judge Weaver (Welch) when the prosecution suggests that Manion change his plea to guilty after his expert psychiatrist testifies that Manion could have known right from wrong when he killed Quill. Biegler refuses this proposal while handing the judge the law book containing the Michigan case. Dancer then backs away from his idea, saying he remembers the case.

Dancer’s conduct raises another legal ethics problem. As an assistant state attorney general, he is brought into the case because of his expertise on the insanity issue. As such an expert and as a member of the Michigan attorney general’s office, he has to know that the Michigan Supreme Court had approved of the “irresistible impulse” test, as he indicates when he says he remembers the case. (How could he forget?) Yet Dancer makes the suggestion in chambers that Manion change his plea because his psychiatrist did not support the application of the M’Naghten test. Perhaps he thought he could trick his supposedly less-sophisticated adversary, Biegler, with this suggestion. But an attorney has an obligation not to knowingly misstate the law to the court, and by making the suggestion in chambers that is exactly what Dancer did. In Dancer’s defense, he could argue that he was not making a formal motion for a directed verdict that required a decision by the judge, but this distinction, in the author’s opinion, is insufficient to exempt a prosecutor, who also has obligations to justice.

The movie ends with an interesting twist that I will not reveal so as not to spoil the fun.

Buy or rent the DVD of the movie. Watch it. Enjoy the performances of great actors and the music of a great musician (Duke Ellington). And learn about some issues of legal ethics.


[1] The case they find in the law books in the movie is an actual case, People v. Durfee, 62 Mich. 487, 29 N.W. 109 (1886).

Joseph Welch Before the Army-McCarthy Hearings

Joseph Welch

Joseph Welch suddenly appeared on the national stage in 1954 at the age of 63. Where did he come from? Who was he?

Upbringing

Welch was born on October 22, 1890, on a farm near the tiny Iowa town of Primghar, the youngest of seven children. His parents were poor English immigrants who came to Iowa in a covered wagon from Illinois. As a boy, he often watched trials in the county courthouse and was impressed with a lawyer’s ability to say “Strike that out” and eliminate what had been said. He worked in a real estate office for two years after completing high school to save money for college.

Education

Welch was the straight-A valedictorian of the Primghar High School class of 1908.

Primghar High School
Grinnell College

Welch attended Iowa’s Grinnell College, my alma mater, from 1910 through 1914, obtaining a Bachelor of Arts degree, Phi Beta Kappa (1914). [1]  He majored in economics and political science. He was active in debate and tennis and served as Editor-in-Chief of the College’s annual yearbook.  Welch later observed that Grinnell gave him four important things—an appreciation of literature and the beauty of words, development of speaking abilities, appreciation of music and a chance to dream and explore spiritual issues.

Austin Hall,                  Harvard Law School

Welch then went on to Harvard Law School, 1914 to 1917, receiving a LL.B. degree in 1917.  Welch was second in his class and a member of the staff of the Harvard Law Review and its Book Review Editor. Also on the Review with him were Dean Acheson, later a partner of Edward B. Burling (Grinnell, 1890) and U.S. Secretary of State, and Archibald MacLeish, later known for his poetry.

Legal Career

After a brief period as a private in the Army near the end of World War I and as a lawyer for the U.S. Shipping Board in Washington, D.C., where Mr. Burling was his supervisor, Welch started practicing law with the Boston firm of Hale and Dorr in 1919. He became a junior partner almost immediately and soon was the firm’s primary trial attorney. He handled all kinds of civil cases in state and federal courts in New England. He particularly liked antitrust cases (for the defense), libel cases (for the plaintiff), will and estate cases and tax cases. He came to be known as a “lawyer’s lawyer” and for his skill in cross-examination.

The Sacco-Venzetti Case

Vanzetti & Sacco

The public emotions over Senator McCarthy were presaged for Welch by the Sacco-Vanzetti case in Boston just as Welch was starting the practice of law in that city. In 1920-21, two Italian anarchists living in Boston, Nicola Sacco and Bartolomeo Vanzetti, were indicted, tried, convicted and sentenced to death by a Massachusetts trial court for murdering a factory paymaster and his guard. There was a widespread belief that they were convicted because of their political opinions, rather than committing the murders. As a result, there were protests in the U.S. and throughout the world. Such protests continued until and after their executions in 1927. It was the cause célèbre of the time.

Prof. Felix Frankfurter

Felix Frankfurter, then Professor at the Harvard Law School, chaired the Sacco-Vanzetti Defense Fund, and Welch as a young lawyer in Boston apparently helped to raise money for the fund.  In the year before the executions, Welch’s friend and law firm colleague, Herbert Ehrmann, became one of the lawyers representing Sacco and Vanzetti, and Welch also knew another of their attorneys as well as the trial judge. As a result, Welch was very close to the case although he did not participate himself.

This case, Welch later said, “tortured” him. The trial judge was “an awful damned fool.” Sacco and Vanzetti, in Welch’s opinion, had not received a fair trial, and Welch had grave doubts about their guilt. The night the two men were executed shattered him, and the case tormented him for the rest of his life. As a result, Welch became an opponent of capital punishment.

Family Life

In September 1917 Welch married Judith Lyndon. They had two sons, Joseph Nye, Jr. and Lyndon, both of whom became engineers.


[1] I heard Welch speak at Grinnell College in the Fall of 1957, but I was too shy to introduce myself to him and engage him in conversation. Later I conducted research about Welch. Two of Grinnell’s other notables—Hallie Flanagan, the Director of the Federal Theatre Project in the New Deal, and Harry Hopkins, the head of the Works Progress Administration in the New Deal and an aide to President Franklin D. Roosevelt—were also Grinnell students at the same time as Welch. It would be interesting to find out whether Welch had any contacts with Hopkins or Flanagan during their college years or afterwards.