Memoir recollection of 1960s judicial appointments and Bazelon’s career

4.2.12 WC: 191694 Early the next morning, he called me back. “I’ve spoken to Abe Chayes,” he said referring to a Harvard Law professor who was then serving as legal counsel in the State Department. “He’s a bit more optimistic that cooler heads will prevail. Come into work.” So off I went to the courthouse, where Bazelon gave us hourly updates on the Cuban Missile Crisis until it was resolved by a deal. “I misjudged those Kennedy boys,” he told me when the crisis was over. “Abe tells me they did good. Much better than Bay of Pigs. They were actually quite mature. They’re quick learners. They did good.” Just a few weeks into my clerkship, Justice Felix Frankfurter resigned from the Supreme Court, leaving the so-called “Jewish seat” vacant. Judge Bazelon was on the short list, along with Senator Abraham Ribicoff and Labor Secretary Arthur Goldberg. Ribicoff and Goldberg were close friends of Bazelon. All three wanted the job, but Bazelon was regarded as too liberal, especially on criminal justice matters, and was strongly opposed by Justice Department officials. I vividly remember the day Goldberg was nominated. “Arthur will be a great justice, if he has the sitzfleish to stay on the bench,” Bazelon told me. “He’s used to the active life of the labor lawyer. Always in the middle of the action. He’s going to have to get used to the isolation, but he’s smart as hell, and he’s always wanted to be on the Supreme Court.” Clearly Bazelon was disappointed but he knew it would have taken a miracle to overcome the objections of the Justice Department, and he didn’t have close connections to the Kennedys. “Good for you. Not so good for me. And good for the country,” is how he summarized the appointment to me a few days later. Good for me, because the new justice would certainly consider a recommendation from his old Chicago friend, when picking his next year’s law clerks. I immediately began to dream of clerking for the new justice when I completed my year with Bazelon. Judge Bazelon became Chief Judge soon after I began working for him and dominated that important court of appeals—second only to the Supreme Court—during his long tenure. His rival—both professionally and personally—was Judge (later Chief Justice) Warren Burger. Bazelon was deeply committed to equality in the criminal justice system—between rich and poor, white and black, and mentally sound and mentally ill. These passions brought him into constant conflict with the executive and legislative branches of government, and especially with prosecutors. He knew he could never win his battles by relying on current public opinion, which showed little compassion for those who came into conflict with the criminal justice system. His weapons were education and elite academic opinion. His goal was to change minds through his opinion writing, speeches and articles. He chose his law clerks based on their ability to assist him in these tasks. “Every case presents an opportunity to change minds, to teach, to influence,” he would say. “The court is a bully pulpit and we must make the most of it.” His favorite story was about the New York judge who complained, “Why does Cardozo always get the interesting cases,” referring to the great New York Court of Appeals Chief Judge (later Justice) who transformed tort law and other parts of the legal landscape with his elegant and influential opinions. The point, of course, is that the cases weren’t at all interesting until Benjamin Cardozo got his hand—or pen—on them. He turned mundane legal 5] HOUSE_OVERSIGHT_017138