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’s Life-Long Friendship with Learned Hand

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.[1]

Friendship with Learned Hand

Learned Hand

Burling and Learned Hand met for the first time in their first year at Harvard Law School in 1891 and thereafter developed a life-long friendship while Hand was an eminent federal judge. [2] Burling once said, Hand was “much more intelligent [than other people and] appreciates me and understands me. [He is] … the only worthy recipient of my most intimate confessions.” These confessions included the following:

  • “One of my present theories is that it doesn’t pay to be good.”
  • “I know [in 1925] I do not want to practice law. I know I do not want to be a judge. I know I want to have pleasant, amiable, witty, gay people around me. I know I am tired of politics . . . . I want poetry, love, wine, interesting books, wide, comfortable bed with fresh bed clothing, looking out into gardens with bloomi ng trees . . . . I want to be moderately rich and have nice food and a smooth running automobile. . . . Somehow I feel I am going to get what I want.”
  • In 1959, Burling lamented that he was “afflicted with what you call  ‘frivolousness’ ” and that “this human pilgrimage seems to me really more awful, more terrifying and more pathetic than it does to most other people. I cannot bear to admit how terrible it really is. Therefore, I act in a rather silly fashion. I do the inappropriate thing. I offend the earnest, godfearing company. What I am apt to say sounds in bad taste.”

In 1925, Burling and Hand exchanged comments about the good life that were prompted by questions from a young man who was thinking about applying for a Rhodes Scholarship. Burling, advising the young man not to apply and instead to go into business, said that he believed four things were good: (1) “Freedom from compulsion by others, whether economic, social or political.” (2) “An active mind that keeps being interested in the changing panorama and its own operation.” (3) “Direct contact with nature.” (4) “The society of the few people of whom you are really fond.” This list, Burling added, did not include “success, power, achievement, position, least of all ‘service to humanity.'”  Hand disagreed, saying that the man should apply for the Scholarship and that “the life of the mind offers the most permanent and lasting satisfactions.”

Burling also shared with Hand observations about the political events of the day, including the following:

  • After the end of World War I Burling criticized the League of Nations as proposed by President Woodrow Wilson because it was not like the league Teddy Roosevelt had proposed, i.e., it was “not an association between nations freely entered into for the purpose of preserving boundaries established by tradition and usage”and instead was “an alliance for the purpose of perpetuating a military ascendancy over defeated nations.”
  • After the 1928 Republican Party convention, Burling said, “Never was a man of God [Herbert Hoover] more ably assisted by gentlemen who are not unknown in more worldly haunts.” Hoover “will smother Al. Smith–He is an extraordinary phenomenon. He will dominate American affairs for 8 years and after that will be the arbiter. . . . [You] will also see Hoover playing the game very successfully. . . . It will be the most powerful administration in the memory of man–and he will be a good party man. He will run the party. A man of God who is practical–you cant [sic] beat that combination.” (Emphasis added.) Apparently Burling had forgotten his inability to get along with Hoover at the U.S. food Administration in 1917. Ned also did not anticipate the Great Depression and FDR.
  • Soon after the start of what became World War II, Ned observed that “the thing for old men to do is to be as gay as we can be and just recognize that all things are subject to change. . . . There is something in us that craves permanence, finality; and yet we should be able to see that it is and always has been an idle dream. I am not in the least an optimist. . . . I think it is quite possible that for centuries the world will get worse, and that the world will be ruled by murder, treachery, brute force, but if that is the kind of animal man is, the thing to do is to recognize it and made such adjustments to it as are necessary. We always knew that in the past civilization had fallen before inroads of vigorous barbarians. What we did not foresee was that barbarians may organize in our very midst. But if that is what it is, we must deal with it as it is. . . .” Burling continued, “Although . . . society may proceed downward for centuries, I am rather inclined to think that will not be true. I rather think that this is like the eruption of a violent disease, and that the disease will subside. I think there must be many many people in the world who would like to surpress the armed murderer [Hitler?], and I believe that sometime they will be able to assert their power and that there will be an armed force controlled in the interest of a peaceful world that will keep the law breakers down.”
  • In the Spring of 1950 while touring Europe, Ned thought it not apparent “why the U.S.A. is first power in the world. Europe as a whole seems to me to have a sturdier population with more dependable qualities, the soil is fertile and it has all the natural resources. In the long run it may be that Europe will maintain its primacy.”
  • In the summer of 1952 Ned reacted to the presidential nominations of Adlai Stevenson and Dwight D. (“Ike”) Eisenhower. Stevenson, he believed, “will be hard to beat. His two speeches before the [Democratic] Convention were different from most political addresses. In the contest with Ike, he is going to be on his own ground. Ike is a novice. But in any case we are fortunate in having two such candidates.”
  • Ike and Nixon, of course, won the 1952 election, and four years later, Ned reflected on a re-run of the 1952 election.  He was most pleased by “the way Truman fell on his face [at the Democratic Convention]. He seemed to me like a bouncy monkey on a stick” or “a very cheap little ward politician.” Ned added, “The charm that Eisenhower’s personality exerts is an extraordinary phenomenon. But the Republican Party is relying too much on that. . . . After all, since 1952 the Democrats have been winning about every election–local and national. And [Adlai] Stevenson is a much abler campaigner that he was four years ago. And many, many people will not vote Republican because of Nixon.”
  • During the 1964 presidential campaign, Ned supported Lyndon Johnson, the Democrat, against Barry Goldwater, the Republican. At a White House dinner, Burling told Johnson that as the sole survivor of the Bull Moose Party, Burling could assure Johnson that he had the unanimous support of that Party.
  • Just after the inauguration of Lyndon Johnson as President in January 1965, one of Burling’s friends reported that at the annual dinner of one of their clubs, Richard Nixon had given a very witty “acceptance” speech for their satirical nomination of him for President. Nixon described himself as “the most over-nominated and under-elected man in history.” Nixon continued by saying that  he was opposed to the impeachment of Chief Justice Earl Warren because at 73 the justice was an old man and instead should be retired by setting age 72 as a mandatory retirement age for Supreme Court Justices and that “Bobby Kennedy was engaged in the process of becoming the father of his country.”

Conclusion

The above tidbits were discovered in my rummaging through Judge Learned Hand’s file of correspondence with Ned that was part of the Hand Papers at the Harvard Law School Library. When I finished reading the file, I was disappointed that most of the letters discussed what seemed like trivial matters and did not engage in intelligent discussions of the important issues of the day. I had forgotten that they were dear friends who enjoyed staying in touch and looking forward to  being together again.

The next and penultimate chapter in this account of the life of Burling will discuss the character of the man.

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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] The definitive biography of the judge, Learned Hand: The Man and the Judge (2d ed., Oxford University Press, 2011), was written by Gerald Gunther (1927-2002), a prominent constitutional law scholar and professor at Stanford Law School.

 

 

 

 

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).

 

 

 

 

 

 

 

 

 

 

 

 

 

Edward B. Burling: The Chicago Attorney, 1895-1917

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.[1]

The Chicago Attorney

After finishing Harvard Law School with such a distinguished record, Ned had high hopes of obtaining a job as a young lawyer and earning good money. But that did not happen, given the law firm practices of the day.

Instead in 1895 he started with a Chicago firm at barely more money than he had made in 1887 at the Eldora grocery store. He continued to engage in the private practice of law in Chicago plus serving as Assistant Corporation Counsel for the City of Chicago through 1917, eventually making more money doing the typical work of most lawyers of the time and engaging in profitable real estate development in the Winnetka area on the North Shore.

He got married in 1902 to Louisa Green Peasley, the daughter of a wealthy and well connected Chicago businessman, and they had two sons, Edward Burling Jr. (1908) and John L. Burling (1912). But Ned was bored with his Chicago life.

In his efforts to leave Chicago, Burling in 1915 sought the Washington, D.C. position of General Counsel of the then new Federal Trade Commission with the support of Louis D. Brandeis, then a practicing Boston attorney, and Cyrus McCormick, the son of the inventor of the grain reaper and the owner of the International Harvester Company. But Ned did not receive the appointment and thus remained in Chicago for the next two  years.

During his Chicago years, however, Burling got a taste of politics. In 1896 he was a spectator at the Democratic National Convention in Chicago to hear William Jennings Bryan’s “Cross of Gold” speech, and in 1912 Burling was active in the Bull Moose Party that nominated Theodore Roosevelt for President. His allegiance to “the Rough Rider” persisted. In 1921, he told Learned Hand that Ned agreed “with everything that T.R. ever said” on political subjects, and throughout his life Ned often joked that he was  that Party’s sole survivor.

In the summer of 1911 Burling and his family spent the summer at the Cornish Colony in Cornish/Plainfield, New Hampshire and later bought a summer home in the Colony where they went every summer. It was a gathering place for artists, musicians, writers, journalists, lawyers and businessmen, including Judge Learned Hand (Ned’s great friend), Ethel Barrymore and President Woodrow Wilson.

Shortly before Burling left Chicago in 1917, he made an investment that proved to be one of the most important events in his life. He started a small surplus trading company that eventually became one of the largest metal-cutting tool manufacturers in the U.S.[1]

Conclusion

The next chapter of this recounting of the life of Burling will cover his two years as a federal government attorney in Washington, D.C.

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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’s Years at Harvard University, 1890-1894

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. Now we look at his four years at Harvard University in Cambridge, Massachusetts.[1]

 Harvard College, 1890-91

For the  academic year, 1890-91, a wealthy relative (Perkins Bass) paid for Ned (and his brother James) to attend Harvard College, where they each earned another B.A. degree in 1891. Again Ned worked hard at his courses, earned good marks and made no friends.

Harvard Law School, 1891-94

In the Fall of 1891, at the suggestion, and again with the financial assistance, of Perkins Bass, Ned started at the Harvard Law School. The three years there, in contrast to his other years of higher education, were “very happy, satisfactory.” He did very well in his classes and was a member of the Harvard Law Review, finishing with “highest honors” and a LL. B. degree in 1894. Moreover, Ned became good friends with classmates, especially with Learned and Augustus Hand, both of whom became noted federal judges, and with George Rublee, who became a public-spirited U.S. lawyer who involved himself with state and national political reform during the Progressive Era (1910-1918) and with international affairs from 1917 to 1945.

Immediately after law school, Perkins Bass financed a nine-month tour of Europe for Ned to accompany one of the Bass sons. Later Ned commented that the trip turned out to be a handicap or burden, rather than a blessing, because it exposed him to the glamorous life of the wealthy and “diverted my attention from my main undertaking, which was to earn a living.”  As that old song goes, “How are you going to keep them down on the farm, after they’ve seen Paree [Paris]?”

Conclusion

The next installment of the Burling saga will discuss his years as a Chicago attorney, 1895-1917.

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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). A subsequent post will discuss Burling’s life-long friendship with Learned Hand.

 

 

 

 

 

Minneapolis Public Schools’ Desegregation/Integration Litigation, 1978-1983

As described in a prior post, from 1971 through 1977, the Minneapolis Public Schools (MPS) were subject to an order to desegregate/integrate its schools and to semiannual court and, therefore, public scrutiny of its compliance with that order. This was an order by Minnesota’s U.S. District Court. (To the left is a photo of the Minneapolis Federal Office Building and U.S. Courthouse, 100 4th Street South, that was the site of this entire litigation. Today it is the Hennepin County Family Justice Center.)

In or about 1978 the MPS School Board, frustrated by the continued bad publicity generated by the case,  decided to hire me as its outside attorney for the case with the objective of having the court end the litigation on the ground that the MPS had done everything that a federal court legitimately could require it to do.[1]

The first such effort was unsuccessful.

In early 1978 I filed a MPS motion to terminate the litigation that was based on the then recent U.S. Supreme Court decision in Dayton v. Brinkman, 433 U.S. 406 (1977) that held the permissible court injunction in the Dayton, Ohio school desegregation case was limited to eliminating the “incremental segregative effect” of its constitutional violations.

The Minnesota court, however, distinguished the Dayton case and denied the MPS motion on the ground that it had not yet fully implemented its desegregation/integration plan. The court also rejected a MPS proposal to address concerns of the Native American community that will be explored in a subsequent post. [2]

In addition, the court in its May 1978 order rejected the MPS request to increase the allowable maximum minority enrollment in each school to 50% and to eliminate the single minority ceiling requirement. The court did say it had “never regarded the percentage figures [in its orders] as rigid requirements” and that it had set the percentage “guidelines at approximately 20% above the projected total minority student population.” The court then went on to modify its injunction to increase the maximum total minority student of each school to 46% (an increase of 4%) and a single minority’s maximum percentage to 39%(also an increase of 4%).

The MPS then took its only appeal in the 12 years of this litigation. But the U.S. Court of Appeals for the Eighth Circuit held that that the district court had not abused its discretion in denying the motion to terminate the case. The appellate court, therefore, affirmed the district court’s decision[3]

The MPS then made its only application to the U.S. Supreme Court to review the case. Two of the petition’s three arguments for such review were that the decisions in the lower courts conflicted with, and misapplied (1) the Supreme Court’s holding that desegregation decrees must be limited to eliminating incremental segregative effect of constitutional violations; and (2) that Court’s allowing modification of desegregation decrees where new circumstances of law or fact had arisen.[4]

The Supreme Court, however, refused to do so.[5]

The second and third efforts to end the case also were unsuccessful.[6]

The fourth motion to terminate the injunction and end the case, however, was granted by Judge Larson on June 8, 1983.[7] The court did so despite opposition by the plaintiffs, who later decided through their attorney, Charles Quaintance, Jr., not to seek a rehearing in the district court or an appeal to the Eighth Circuit.[8]

Dr. Richard Green

Afterwards the MPS Superintendent Richard Green said the decision was “a major moment in the history of the district” and that the MPS would “continue to work with the state department of education [with respect to its desegregation regulations] to show the good faith that was demonstrated by the court.” Green also said the court order had “created a climate for change in the school system that led to better-quality schools.” He specifically mentioned the change from neighborhood schools to ones that drew students from many parts of the city; the increase in student busing; and the creation of alternative programs, including “magnet” schools.[9]

Dr. Green wrote a personal note to me about the end of the litigation. He said, “Without question, the Minneapolis community has now met one of the major tests for equality, and my sense is that your leadership has been a crucial factor.”[10]

I certainly appreciated that kind compliment even though I thought it was unjustified. The successful desegregation/integration of the MPS was due to the efforts of many students, parents, teachers and administrators and of the School Board. The leadership of Dr. Green was the crucial ingredient, and his skills were recognized in 1988 when he became the Chancellor of the New York City Public Schools, the first African-American to hold that position.

I was very saddened when Dr. Green died of asthma in 1989 at the age of 53 after only 14 months as Chancellor.[11] He was honored by a memorial service at the Cathedral of Saint John the Divine in Manhattan with a eulogy by then New York City Mayor Edward Koch.

Being the lawyer for the MPS in this litigation obviously was an important professional and civic responsibility and challenge. The MPS was committed to desegregation/integration and to respect for the law and the court’s orders, and yet it wanted to terminate the case. I personally shared these values and commitments and drew inspiration from these words of Learned Hand, one of the preeminent jurists in U.S. history:

  • “[A] society so riven that the spirit of moderation is gone, no court can save; . . . a society where that sprit flourishes, no court need save; . . . in a society which evades its responsibility by thrusting upon the courts the nuture of that spirit, that spirit in the end will perish. What is the spirit of moderation? It is the temper which does not press a partisan advantage to its bitter end, which can understand and will respect the other side, which feels a unity between all citizens . . . which recognizes their common fate and their common aspirations–in a word, which has faith in the sacredness of the individual. . . . [Such a temper and such a faith] are the last flowers of civilization, delicate and easily overrun by the weeds of our sinful human nature . . . . [They] must have the vigor within themselves to withstand the winds and weather of an indifferent and ruthless world; and that it is idle to seek shelter for them in a courtroom. Men must take that temper and that faith with them into the field, into the market-place, into the factory, into the council-room, into their homes; they cannot be imposed; they must be lived. Words will not express them; arguments will not clarify them; decisions will not maintain them. They are the fruit of the wisdom that comes of trial and a pure heart; no one can possess them who has not stood in awe of this mysterious Universe; no one can possess them whom that spectacle has not purged through pity and through fear–pity for the pride and folly which inexorably enmesh men in toils of their own contriving; fear, because that same pride and that same folly lie deep in the recesses of his own soul.”[12]

[1] I have donated my papers relating to this case to the Minnesota Historical Society Libray, St. Paul, Minnesota.

[2] Booker v. Special School District No. 1, 451 F. Supp. 659 (D. Minn. 1978). Four months later, in another case In which I represented the MPS, the same district court granted judgment for the MPS in a challenge to the constitutionality of the MPS decision to close Longfellow School in the southern part of the city. (Hernandez v. Special School Dist. No. 1, No, 4-78-349 (D. Minn. Sept. 13, 1978).)

[3] Booker v. Special School District No. 1, 585 F.2d 347 (8th Cir. 1978).

[4] Petition for Writ of Certiorari, Special School District No. 1 v. Booker (No. 78-__ Sup. Ct. Nov. 10, 1978). The third reason for review relating to the issues regarding Native Americans that will be reviewed in a subsequent post.

[5] Booker v. Special School District No. 1, 433 U.S. 915 (1979).

[6]  Memo Order, Booker v. Special School District No. 1, (D. Minn. May 1, 1980); Memo Order, Booker v. Special School District No. 1, (D. Minn. June 22, 1982). On December 17, 1982 after a semiannual MPS report had been submitted to the court, the MPS Superintendent Richard R. Green sent me a note thanking me on behalf of “the entire School District and community” for my “contribution” in helping the MPS to report total compliance with the court order.

[7] Memo Order, Booker v. Special School District No. 1, (D. Minn. June 8, 1983).

[8]  During the five years of my representation of the MPS in this case, Quaintance and I were professional adversaries without any other relationship. In recent years, however, as fellow members of Minneapolis’ Westminster Presbyterian Church, we have become friends.

[9] Paulu, Judge Larson ends court jurisdiction in city public schools’ desegregation, Mpls. Star & Trib. (June 9, 1983); Pinney, Case kept desegregation effort aimed toward stability, Mpls. Star & Trib. (June 9, 1983).

[10] Letter, Dr. Richard R. Green to Duane Krohnke (June 16, 1983).

[11] A park in Brooklyn, New York was named in his honor.

[12] Learned Hand, The Sprit of Liberty, at 164-65 (3d ed.; Univ. Chicago Press; Chicago 1977).

Disgusting U.S. Political Scene

The current political wrangling in the U.S. Congress over the U.S. debt ceiling is disgusting.

In order for the U.S. to avoid defaulting on its Treasury securities, the U.S. Congress needs to pass a bill to increase the debt ceiling before August 2, 2011. If the Congress does not do so, then there would be catastrophic consequences for the U.S. and hence the global economy. Most economists and informed commentators, I think, are agreed on these propositions. Moreover, in my opinion, it is too risky to experiment and test the contrary views expressed by the minority.

Some stupid suggestions have been made to evade the above analysis and not raise the debt ceiling. Former Minnesota Governor and presidential candidate Tim Pawlenty said the U.S. could continue to pay interest on its securities (a lot of which are held by the Chinese government) and not pay U.S. military personnel and ordinary Americans.[1] Another Minnesota presidential candidate, Michelle Bachmann, has taken a similar position.[2] Even if such absurd actions could avoid adverse reaction in the world market for U.S. securities, which I doubt, who can seriously believe that there would not be a horrendous chain of reactions from our military personnel and citizens?

How can Pawlenty and Bachmann be taken as serious presidential candidates in light of just these stupid suggestions? Yet I read that Bachmann was number one in recent opinion polls of Republicans.

U.S. Senator Mitch McConnell, the Republican leader in the Senate, has admitted that not raising the debt ceiling runs a very high risk of causing disastrous consequences to the U.S. Therefore, he has proposed what is sometimes referred to as “Plan B,” a bill that would allow President Obama unilaterally to raise the debt ceiling for the balance of his term of office. This plan, McConnell crassly admitted, was motivated by his desire not to help President Obama get reelected.[3]

The Republicans’ call for reductions in government spending  flies in the face of the elemental formula for Gross National Product: B (business spending) + C (consumer spending) + G (government spending) + E (net exports or exports- imports) = GNP (Gross National Product). Reducing government spending their way will reduce the incomes of many people dependent upon the government and, therefore, probably cause a reduction in consumer spending. Moreover, it is delusional, in my judgment, to believe that reducing government spending will cause an explosive increase in business confidence and spending to counterbalance the reduction in the former. Many corporations already have huge stashes of cash that they are not spending because consumer spending is weak. Consumer spending is weak because of high unemployment, general economic anxiety and reduced consumer wealth associated with declines in home values. In short, reducing government spending the way the Republicans want to do it will worsen our stalling recovery.[4]

Moreover, the Republicans’ call focuses on the smaller slice of the federal budget devoted to improving our deteriorating infrastructure and maintaining the frayed social safety net for our citizens. We the People should be able to see these adverse developments with our own eyes. And those who know something about what is happening in the rest of the world know that the U.S. is falling behind many other countries on many facets of a healthful society.[5]

No one, to my knowledge, is discussing the most important issue, in my opinion, that is raised by the huge and mounting U.S. national debt that needs to be addressed. What is a new U.S. national security strategy that protects the vital interests of our country while vastly reducing the size and global span of the U.S. military? Is the U.S. now in the position of earlier empires whose foreign expenditures to maintain their empires dragged down those regimes?

We the People and all of our elected representatives need to recover the spirit of moderation.

Learned Hand

This spirit, said Learned Hand, “is the temper which does not press a partisan advantage to the bitter end, which can understand and will respect the other side, which feels a unity between all citizens–real and not the factitious product of propaganda–which recognizes their common fate and their common aspirations–in a word, which has faith in the sacredness of the individual. . . . [Such a spirit and faith] are the last flowers of civilization, delicate and easily overrun by the weeds of our sinful human nature. . . . They are the fruit of the wisdom that comes of trial and a pure heart; no one can possess them who has not stood in awe before the spectacle of this mysterious Universe; no one can possess them whom that spectacle has not purged through pity and through fear–pity for the pride and folly which inexorably enmesh men in toils of their own contriving; fear, because that same pride and that same folly lie deep in the recesses of his own soul.”[6]


[1] E.g., Kane, Pawlenty: If debt ceiling not raised, pay “outsie creditors” first, (July 15, 2011), http://www.rawstory.com.

[2] E.g., Bachmann, No Debt Ceiling Increase, http://www.michelebachmann.com; Drum, Bachmann and the Debt Ceiling, (July 20, 2011), www. motherjones.com.

[3] E.g., Stein, McConnell Debt Ceiling Strategy: “I refuse To Help Obama Reelection,” Huffington Post (July 13, 2011).

[4] E.g., Krugman, The Lesser Depression, N.Y. Times (July 21, 2011).

[5] E.g., Thomas Friedman, Still Digging (Dec. 7, 2010).

[6]  Learned Hand, The Spirit of Liberty at 164-65 (3d ed.; Phoenix ed.; Chicago: Univ. Chicago Press 1977).