Although I always knew I had a good memory, I discovered that I had inherited my mother’s extraordinary gift while participating in intercollegiate debates.  The debate tournaments always took place on Saturday.  I pleaded with my parents to let me go, promising that I would travel before the Sabbath and after the Sabbath, and that I would say my prayers wherever I happened to be.  My parents agreed on the condition that I not write during the Sabbath.  (“Meturnished”)  My mother told me it wasn’t necessary to write because I could remember things that others had to write down.  (“Our family has good memories.”)  I was doubtful but it proved to be true.  I became a champion debater and my teammates marveled at the fact that I didn’t bring a pencil or pad but could recite word for word what my opponent had said before responding to it.  I then realized what a blessing this memory was.  I went through the rest of college and law school without ever taking a note.  This enabled me to listen very carefully to what was being taught and to have a far better understanding of it than the student “stenographers” who were busy taking down every word the teacher said, as if putting it in writing was a substitute for understanding it.  To this day, I rarely take notes, even in court, though my memory for new information is not nearly as good as it used to be.

Recently, after watching the film "Invictus," my wife asked me if I had any idea who wrote the poem by that name.  She thought it must be a well known poet, such as Byron or Shelly.  Without thinking, I blurted out "Henley." She replied "who the hell is Henley?" I said, "I don't have the slightest idea, but I think Invictus was written by some English poet named "Henley."  She checked Google and sure enough the poem was written by a relatively obscure Victorian poet named William Ernst Henley (1849-1903), who wrote little else of note.  His name popped into my head as a 55 year old memory association from a high school English class in which we had to memorize the author's various works that we read but probably didn't understand.  (To show how little has changed in more than half a century of poor education, my daughter in her sophomore year at Yale had to memorize and spout back on the final exam, the name of British landscape portraits, the year they were painted and the museum in which they hang.  It's as if God hadn't invented Google precisely to eliminate such absurd memorization tasks.)

A few years earlier, I impressed my children at Steve’s ice cream shop in Cambridge, which offered free ice cream to anyone who could answer really obscure trivial pursuit questions.  The question of the month that no one had answered was: “What was the Lone Ranger’s family name? (Most people said “Ranger.”)  I immediately blurted out “Reed.”  I added that Reed was also the Green Hornet’s family name because according to the “origin story” in a comic book that I had read half a century earlier, they were cousins.  

During my junior year in high school, my memory for obscure facts and the “parlor tricks” I played with it got me an interview with the producers of a television game show called “The $64,000 question,” but I failed the personality part of the test and was rejected.  That was fortunate, since the show was rigged.  (I still have the letter from “Production Services Company” at 667 Madison Avenue informing me that the results of my written examination “are gratifying” and inviting me for the personal interview I failed).  But my “mother’s memory” has served me well as a lawyer, teacher—and joke teller.  (The downside of remembering every joke I ever heard is that I rarely get to hear a “new” joke, because I’ve heard—and told—a good many jokes over my lifetime).  

I not only remember the jokes I’ve heard (and told and retold) over the years, but more importantly, I remember nearly every case I ever read, nearly every fact in the records of cases and nearly every principle of law I ever learned.  I try to teach my students to develop and rely on their memories rather than on their stereotypical skills.  During the first two weeks of law school, I forbid my first year students to take any notes (“meturnished”).  I assure them that nothing discussed during this “listening” period will be on the exam and I urge them to learn how to listen and remember, because this will be very important in court and other professional settings.  Many of the students react nervously because they have never been denied the ability to take notes, but after a few days they acclimate, and some even appreciate, the different regime.  

My good memory went mostly to waste in my early years, because there was so little worth remembering.  We would be given a quarter to memorize passages from holy texts and a dollar if we could recite “by heart” (what does that mean?) an entire chapter from the Bible.  Only once did my memory serve me well during my adolescence, and that was at my Bar Mitzvah.  Prior to “becoming a man,” I had never really excelled at anything.  I was good, but not great, at athletics; good, but not great, with my social life, and God-awful in academics and behavior.  But my Bar Mitzvah performance was perfect.  I had read the Torah portion—“Judges and Magistrates”—flawlessly, because I was able to memorize the entire reading, melody and all.  My performance was the talk of the neighborhood.  But a month later, my friend Jerry (now a prominent rabbi) read his Torah portion in the same synagogue.  He was awful, making mistake after mistake, and singing off tune.  It was embarrassing.  The rabbi then got up to give the sermon.  He recognized that Jerry had not done well and in order to console him, he referred to “another Bar Mitzvah boy” who had done a better job reading from the Torah, but who wasn’t nearly as good a student or person as Jerry.  “We judge boys not by the quality of their voices or their ability to memorize, but by their understanding of what they were reciting and by the lives they lead based on their understanding.”  It was a direct put down of me, and so understood by the congregation.  It stung me and led me to conclude that I could do nothing right in the eyes of the religious authority figures.  Even when I did something perfectly, they would find some way to turn my success against me.  It discouraged me from trying.  

A few years later, I had a similar experience in high school.  The one subject that interested me was history, and the teacher was young and dynamic.  I studied hard—a rarity—for a state-wide exam and got an 88.  When the teacher, who knew my reputation as a mediocre student, told me my score, he said:  “Don’t let it go to your head.  You’re a 75 student.  You’ve always been a 75 student and you’ll always be a 75 student.”  (He gave me a 70 despite my 88 grade on the Regents exam.)  It became a self-fulfilling prophecy for two reasons.  First, all my teachers believed it.  Second, I believed it and stopped studying because I could get 70’s or 75’s without much work, and if that’s who I am, why take time away from activities I enjoyed, such as sports, jokes, girls and messing around.

It was in the summer of my junior year in high school, when an authority figure—the camp dramatics counselor, Yitz Greenberg (also now a prominent rabbi)—finally told me that I wasn’t a “75 student.”  He had cast me in the difficult rule of Cyrano d’Berjurac in the camp play.  I memorized the lines and did a good job (my long nose helped).  After the performance, Yitz put his arm around me and said, “You know you’re very smart.”  I replied, “No, I just have a good memory.”  He insisted that my smarts went beyond memorization.  He told me I could be a good lawyer.  I respected and believed him.  It was an important moment in my life, for which I will be forever grateful.  My parents loved me but never told me I was smart, because they believed my teachers and saw my report cards.  I needed to hear it from an authority figure outside of my home, and Yitz was that figure.  

Despite my inglorious high school career, Yitz’s faith in me led to consider college.  My father thought I should go to work and take some classes at night, but my mother wanted me to graduate from college—as she couldn’t do.  My mother filled out my application to Brooklyn College.  I wanted to go to City College in Manhattan, because my best friend Norman Sohn was going there, but my parents wouldn’t let me go to an “out-of-town college.”   Brooklyn College was part of the New York City College system, which had an excellent academic program, but little by way of any social or athletic life.  It was free to any New York City resident, and anyone who had a sufficiently high grade average in high school was automatically admitted.  Remarkably, the required grade score was different for boys and girls.  Boys needed an 82 or 83 average (depending on the year) while girls needed an 86 or 87.  Imagine the lawsuit today!  The reason for this differential was that the school wanted “gender balance,” and if the same score were required, the college would be dominantly female.  (Similar differentials are still at work today, but they operate beneath the radar screen under the rubric of “diversity” and “discretion.”  An admissions officer at an elite college told me that he turns down many students with perfect SAT scores.  When I asked him who these rejected students were, he acknowledged that they were almost exclusively of Asian and Jewish background:  “if we took everybody with perfect SAT scores, there would be little diversity,” he explained.  He too apparently believed in the “Yiddisher (and Asian) Kup” theory.)  

I did not come close to having an 82 average, but fortunately there was also a test that an applicant with non-qualifying grades could take.  Unfortunately, a high score alone on the test did not get you in:  you needed a combined score—test plus grade average—to make the cut.  With my low average, I needed a near perfect score to make it.  Otherwise I would have to go to night school and work during the day.  I did very well on the test and was admitted.

I also won a New York State Regents Scholarship which paid me $1,400 to go to college.  (I put the money in an interest bearing account that paid for my first year at law school.)  The state scholarship was based entirely on a single, highly competitive exam.  High schools took great pride in how many state scholarships their students won.  The relevant statistic that helped rank the schools was the percentage of those who won, based on the number of students who took the exam.  My high school was obsessed with doing well in the state scholarship competition, so it limited those who could take the exam to students with grade points over 80, in order to inflate the percentage of winners.  I did not qualify, but I knew I could do well on a state-wide competitive exam that was graded by outsiders, not by my teachers who were predisposed against me.  So I pleaded with Rabbi Zuroff to take the exam.  He refused, telling me I would never win and my taking it would just bring down the percentage.  Not satisfied with his answer, I filed a petition with the New York Regents—my first of many petitions.  To everyone’s surprise, the Regents ruled in my favor and the school was ordered to let me, and everyone else, take the exam.  Two of us, who had averages below 80, along with 4 or 5 others, won the scholarship.  My principal’s first reaction was that I must have cheated, but a check of the seating chart showed that I was not sitting near anyone else who won.  So off I went to Brooklyn College, with money in my bank account.  It was a turning point for me academically, professionally, religiously and existentially.

Before I turn to my college and law school years, which were quite successful, I want to speculate for a moment as to why, despite the unsuccessful nature of my early teen years, I am so focused on them as so formative to my later life.  Several years ago, The New York Times Magazine asked me to reflect back on my teen years for a column entitled About Men.  The assignment got me to wonder why I am so obsessed with nostalgia from that particular period in my life.  This is part of what I wrote:  

     I'M ENTERING THAT AGE WHEN songs from the hit parades of my adolescence bring tears of nostalgia. I'm a sucker for memorabilia of the 1950's.

     My house is cluttered with toys I've recently bought - chintzy replicas of vintage Chevys and Thunderbirds, overpriced miniature jukeboxes that play ''Rock Around the Clock,'' anything reminiscent of the 1955 world champion Brooklyn Dodgers (a redundancy to any aficionado, because there are no other world champion Brooklyn Dodgers).


     I rush to see any Woody Allen film that has even a remote connection to the time and place we both grew up in (another redundancy - everything Woody Allen does has a strong connection to Brooklyn in the 50's). I drag my family to Neil Simon plays through which I laugh and cry while they observe me in puzzlement. I crave reruns of television sit-coms and revivals of shows I hated in their original incarnations.


     Those must have been wonderful times to evoke such strong - and expensive - reactions.





I then described a nostalgia weekend that I and six guys I grew up spent at the Concord Hotel in the Catskill Mountains, where we once had gone to summer camp or worked as waiters. The guys played one-on-one basketball and horse (even those who hated hoop as kids). We told jokes so old you could give them numbers (itself one of the oldest jokes). And we wondered about why our lost adolescence exerted such magnetic attraction.

     ''Those were the worst days of my life,'' one of the guys - who used to talk with a high voice - confided. Suddenly, we were all contemplative. Our adolescence was miserable, we acknowledged. As the Musak played ''Love Is a Many-Splendored Thing,'' another related how he dreaded the slow dances because he would always become palpably tumescent (certainly not a phrase from our youth) while doing the fox trot. Another shocked us all by soberly confessing that he had become tumescent only once during his adolescence, but then he reassured us by bragging that ''it started when I was 12 and it didn't stop until I was 21.''


I then recalled one of the most humiliating moments from my adolescence:




     It was prom time, and the girls had established a committee of three to which the boys had to apply for dates. I had my eye on a pretty blonde from an adjoining neighborhood (her distance, I hoped, might have kept her from learning of my questionable reputation among the local parents). As I approached the committee and shyly uttered ''Karen,'' all three arbiters laughed. ''Don't you know,'' the cruelest admonished me, ''that Karen is on the A list and you're on the C list? You can only pick from the C or D lists.'' It was a relief to learn there was a list lower than mine, but a shock to be confronted with my official ranking. I went to the prom alone and danced with my cousin, who was also on the C list. 

                         …


Those were miserable years, all right. They were years of self-doubt, sexual guilt without sexual pleasure, fears and transitions. Before you were comfortably into one stage you were already entering another, more precarious, one. They popped up as if on schedule, like the beginning of the yo-yo, marbles or mumble typeg seasons. So I asked myself why I insisted on recapturing the most miserable period of my life.  This was my answer:  



     [W]hen a man reaches the age of counting backward, maudlin nostalgia sets in and he begins to run, not walk, to every restored toy emporium he hears about from other retrievers of lost youth. 14 
                         ……

Our wives—most of whom had known us as adolescents—agreed that we had been pretty nerdy back then, but they prided themselves on having seen through the external faults that had relegated us to C lists. ''You don't need to buy the 50's in a store,'' one spouse quipped, ''you guys are walking memorabilia.'' Another turned an old phrase: ''I was able to take my husband out of the 50's, but I can't take the 50's out of him.''

The early 1950s—my high school years from September 1951 to June 1955—were not my finest hours.  Yet they were as formative as any other period, though the formative dynamic was mostly reactive.  I think about them often.  My wife says I am obsessed with nostalgia for my troubled adolescent past.  


Perhaps that is because I would like to relive them—both to regain my vigorous youth and to use it in a more productive manner.  I’m not sure.  But I am sure that my early teens laid a firm foundation for my very successful late teens—my college years at Brooklyn between the ages of 16 and 20.  I had something to prove, and I went about proving it with a vengeance.  
My parents were hoping I would make a B average in college, which was very respectable in those days before grade inflation.  They didn’t want me to get A’s because A students became teachers, and they certainly didn’t want me to get C’s, as I had in high school.  I could never satisfy them.  I went straight from C’s to A’s, almost never getting a B in anything.  I really blossomed in college, though I didn’t do anything very different from what I had done in high school.  I was a “smart aleck” and a “wise guy,” but these qualities were appreciated and rewarded at Brooklyn College, while at Yeshiva High School they were punished.  Whenever I came up with anything original in my high school religious classes, my rabbis would say: “If your idea is so good, then the ancient rabbis, who were so much smarter than you, would have came up with it first.  If those rabbis, who were so much smarter than you, didn’t come up with the idea first, then it can’t be any good.”  End of discussion.  It was all different at college.



Chapter 2:  My Secular Education—Brooklyn and Yale

I loved everything about Brooklyn College.  The inner city campus was green and lush.  The professors were phenomenal teachers—many of them en route to more elite universities.  The students, though mostly Jewish, seemed diverse to me because so few were Orthodox.  Intellectual and political debate filled the classrooms, the lunchrooms and the quad.  No one said “Meturneshed.”  Every idea was acceptable (except, perhaps Communism, since the stench of McCarthyism still hung in the air.)

I felt free to experiment with my thoughts and words, but not yet with my actions.  I remained an Orthodox Jew in practice and I did not try drugs or even alcohol.  (I tried to try sex, but couldn’t find any willing partners.)

My friends and I founded a “house plan” – an urban fraternity for students who lived at home with our parents, as we all did.  We called it “Knight House” and our boastful Latin slogan was “semil equis satis”—“once a knight is enough.” Since we were all orthodox Jews, we could not attend the usual Friday night parties, so our orthodox Jewish house plan had its parties on Saturday or Sunday night.  We were desperate to defy the stereotype of orthodox Jewish wimps, so we worked hard on our athletic skills, ultimately winning the house-plan championship in several sports.  I still have newsclippings attesting to my athletic accomplishments:  “Knight soccer champs”—“Al Dershowitz led the knighters to victory, scoring two large goals.”  

In my senior year in college, a group of friends decided it was time to lose our collective virginities.  We heard that there was a special deal over Christmas vacation to travel to Havana, then a wild city.  We all went down to Florida in another friend’s old car and bought round trip tickets to Havana for $59.  We had the name of a house, which specialized in transitioning young boys into men.  We were scheduled to make the hour-long flight the day before the 1959 New Year.  We couldn’t wait to get to Havana, but a bearded guy named Fidel got there first and we couldn’t make it.  For years, I had been telling people that the flights were cancelled, but a couple of summers ago I was at a party with a man (now married to a prominent public figure) who was at Brooklyn College with me.  He and several of his friends were also going to Havana for the same reason.  I had forgotten that the trip to Florida was actually sponsored by the Brooklyn College Student Government.  When I told him my story, he said, “I made it to Havana,” and I said, “but the flights were cancelled.”  He said, “No they weren’t.  The State Department just issued a warning that it was a little bit dangerous.”  I guess he was more determined to lose it than I was.  His wife, who was then his college girlfriend, said that she didn’t “touch him for a year after that.”

I took another trip with my college friends.  It was to Washington D.C.  On the day we arrived, the king of Saudi Arabia was a state visitor.  In his honor, green Saudi flags draped all of the important federal buildings and monuments.  When I saw the flag of that slave-owning dictator on the Lincoln Monument, I got angry and tore it down.  I was immediately taken into custody by a park policeman.  His superior was sympathetic, however, and let me go with a warning:  “Next time, make sure no one sees you when you tear down the rest of those damn flags.”


Mostly, I worked very hard, achieving an A average and Phi Beta Kappa Honors, winning debate tournaments and being elected president of the student council and captain of the debate team.  Reading became my passion:  literature (Dostoyevski, Shakespeare, Bellow); philosophy (Kant, Aristotle, Plato, Neitsche; history (___________) and politics (__________________).  I loved arguing with my professors.  One of my favorites was John Hope Franklin, the first African American appointed to the chairmanship of a department (history) in a college that was not historically black.  We remained friends and colleagues until his death in his mid-90s.

My presidency of the student council brought me into repeated conflict with Professor Harry Gideonese, the President of the College, a Midwestern conservative who was brought to Brooklyn to “clean out” what had become “the little red schoolhouse.”  Several professors had been fired, or not hired, because of the “red” or “pink” affiliations and I fought against this post-McCarthy purge, on freedom of speech grounds.  Leading the other side was a professor of romance languages named Eugene Scalia, an elegant and brilliant reactionary, whose son Antonin has followed in his ideological footsteps.  

Despite my conflict with President Gideonese, the school nominated me for a Rhodes Scholarship.  In my application, I wrote the following:  

     I believe that my college career has been a period of moral and intellectual growth throughout which time I have felt an increasing responsibility to my conscience in matters of self improvement.  I felt this personal responsibility so strongly in college because I had almost completely neglected it throughout high school.  A firm determination to show myself, as well as my high school contemporaries, that I could become an outstanding student in college has been a most potent motivating force. 

I also listed my academic, political and athletic achievements, and promised that if admitted to Oxford:

     I would read for the Oxford B.A. in the Honor School of Jurisprudence and then enter Law School in the United States.  
In those days Jewish boys (only males were eligible for Rhodes) from Brooklyn were not selected by the Rhodes Committee, and despite my academic, political and athletic accomplishments, I did not even get an interview.  It took several decades before Brooklyn College received its first Rhodes Scholarship.  


By my senior year at Brooklyn, I had decided to go to law school.  That path seemed natural in light of my success in debate and school politics.  I had no idea what the practice of law was, except what I had read about the careers of such legal luminaries as Clarence Darrow, Thurgood Marshall, and Louis Brandeis.  My uncle Morris was a lawyer, but he spent most of my formative years in the Army and when he returned he specialized in contract cases, which held little interest for me.  I asked Grandma Ringel to introduce me to an old friend of hers, whom she always referred to as “Judge Berenkoff.”  I had no idea what kind of judge he was, but he was the only judge I knew.  My grandmother wondered why I wanted to meet Judge Berenkoff.  I told her that since he was a judge, he might have some good career advice for an aspiring lawyer.  My grandmother laughed and said: “Berenkoff’s no judge, he’s a butcher.”  She explained that “his first name is Judge,” and then she spelled it out: “G-E-O-R-G-E,” which she, with her Yiddish accent, pronounced “Judge.”

Shortly after New Year I got my letters of acceptance from the various law schools to which I had applied.  Since I had done very well in college and was president of the student government, I got into all the law schools to which I applied.  I chose Yale, much to my mother’s regret.  She wanted me to go to Harvard.  Until the day she died at age 95, when people ask her where I went to law school, she replied, “He got into Harvard, but he went to Yale.”

I also got into Columbia Law School, and the dean of Columbia, William Warren, wrote a letter to my parents, congratulating them on my admission and on the fancy scholarship I had won.  (I still have the letter addressed “Dear Mr. and Mrs. Dershowitz”).  I interpreted his letter as an attempt to have my parents try to persuade me to go to Columbia.  So I wrote back—not to Dean Warren, but to “Dean Warren’s parents, care of Dean Warren, Columbia Law School.”  I told his parents that their son was writing to my parents, and suggested that they tell him that if he wanted students to go to his law school, he should write to the students themselves rather than to their parents.  I thought it was pretty funny, but I stopped laughing several years later, when I was on the law school teaching market and I went to Columbia for an interview.  After meeting several members of the faculty, I was taken in to meet Dean Warren.  He was waiting for me, with my letter in his hand.  I was sure I would never get a job offer, but he looked at me and said, “That was a really good letter.  I stopped writing to parents after getting it.”  He offered me a job.

Immediately after graduating from Brooklyn College, I got married to a woman I had met in a Jewish summer camp that boasted of the many “shidachs” (meetings that resulted in marriages) for which it was responsible.  I was not yet 21.  Sue was 19.  My mother wouldn’t let me go to an out of town law school unless I was married, for fear that I would meet “the wrong kind of girl.”  A year after we were married, Sue became pregnant with our first child, Elon.  

I loved Yale Law School.  During my first year, I had Professor Guido Calabresi as a teacher.  It was his first year of teaching.  When I came home for the Jewish holidays, my mother asked me how I found my professors.  I told her that they were all brilliant mentioning Professor Pollak and Professor Goldstein, but I told her my most brilliant teacher was Professor Guido Calabresi.  Without missing a beat she said, “Is he an Italian Jew?”  I replied, “Ma, you really are a bigot.  Non-Jews can be smart too.”  She looked at me as if to say, “Wait, you’ll see.”  Sure enough, several weeks later, my wife and I invited Calabresi, who was a bachelor at the time, to our apartment for dinner.  We served him lamb chops and a baked potato with margarine on it.  Calabresi looked at the margarine and the lamb chops and said, “Isn’t this fleishicks mixed with milichicks,” using the Yiddish words for meat and milk.  I explained that the margarine did not contain dairy, although it looked like butter.  I then asked him how he knew these words.  He explained that he was an Italian Jew.  I refuse to give my mother the satisfaction by telling her that she was right, at least about Calabresi.

One of my teachers was Abe Goldstein who had grown up in Williamsburg, near where my family had lived.  My class contained lots of students with famous names—William Brennan, Jr. (son of the Justice), a grandson of Chief Justice Warren, a descendent of President and Chief Justice Taft, John Marshall and others.  When Abe Goldstein called on each of these men, he did it nonchalantly without mentioning their heritage.  But when he came to my name, he paused and said, “Dershowitz, from the famous Dershowitz family?”  The class burst out laughing.  For a moment I thought he was mocking me, but he explained that in Williamsburg, the Dershowitz name was quite well known.

Yale Law School was an institution of meritocracy, where one could rise to the top, regardless of name or lack of heritage.  I was first in my class, and became editor-in-chief of the law journal.  That wasn’t enough for the fancy white shoe Wall Street firms.  During my second year, I applied to about thirty such firms, and was turned down by every one of them.  The hiring partner of Sullivan and Cromwell, looked at my transcript and saw all A’s, except for one C in Contracts.  (I was so angry with my Contracts professor that I immediately enrolled in Advanced Contracts with the same teacher, and got an A).  The hiring partner looked at my transcript and brushed me away and said, “We don’t take C students at Sullivan and Cromwell.”  Years later he approached me at a Yale reunion function and told me that he had saved me from a bad experience.  He disclosed that he was a closet Jew and realized that I would never fit into the culture of that firm.  Within several years however, that firm along with most other Wall Street firms, had significant numbers of Jewish associates and partners.  (In the late 1960s, I sued one of the firms that didn’t hire me for refusing to promote an Italian-American to partnership and won a ruling that discrimination in promotion was prohibited by the law).

I got two job offers, both with Jewish firms, but even one of them discriminated against me on account of my religion.  Paul, Weiss, Rifkin, Wharton, and Garrison offered me a summer job at $100 a week.  (I still have the letter!)  I immediately accepted and wrote to them that I could not work on Saturday.  I did not give the reason, namely that I was an observant orthodox Jew.  I was told to come and meet some of the partners when I was next in New York.  I was introduced to Adlai Stevenson and several other partners and finally taken in to see the firm’s major “rainmaker,” Simon Rifkin, a prominent Jew who was active in numerous Jewish organizations.  He told me how pleased he was that I would be working with the firm, but asked me why I would not be available on Saturdays.  When I told him it was because I was Sabbath observant, he replied, “Oh no, we can’t have that here.  I thought it was just a restriction on your availability this summer.  I need associates who are available seven days a week.”  I took a job with the other Jewish firm, Kaye, Scholer, Feirman, Hays, and Handler.  They were perfectly comfortable with my being Sabbath-observant.  The big “rainmaker” at that firm was Milton Handler, who was so busy seeing clients, that he would make time for associates only when he could not fit in a client.  He would ask associates to drive home with him, or to go with him to Columbia when he was going to teach.   One day his secretary called and said Mr. Handler wants you to meet him at a particular address.  She gave me the address; I proceeded to walk up Park Avenue not knowing where I would find him or in what setting.  When I got there, his private barber was cutting his hair.  I was seated next to him while he got his haircut, and he dictated notes to me.  It wasn’t as bad as what Lyndon Johnson would do, requiring aides to join him in the bathroom.

While working at Kay, Scholer, I had the first fancy restaurant meal of my life.  I was asked to join two of the partners at an elegant Park Avenue establishment.  Though I was twenty-two years old, I had never eaten out except at delis.  When the waiter put a napkin on my lap, I didn’t know what to do with it so I tucked it under my neck to protect my new tie.  One of the partners pulled it off and said “Young man, this is a restaurant, not a barbershop.”

All first year law students at Yale are required to participate in a moot court competition.  My opponent was a classmate named Taft, one of whose ancestors was the President of the United States and the Chief Justice; another a senator from Ohio and the third the mayor of Cincinnati.  It is fair to say at that time that Taft was one of the most prominent names in America.  My mother was convinced that I couldn’t possibly compete with a Taft and that I would be demolished in moot court.  To provide support, she and my father came up to New Haven to watch me argue.  I did fine.  When my mother told my grandmother that I had beaten a Taft, she replied, “Taft? That’s a funny name.  I wonder what he changed it from?”  In my neighborhood, many short names, like many short noses, had once been longer.  

In my third year, I served as editor-in-chief of the Yale Law Journal.  I was the first orthodox Jew to serve in that capacity, and there were some who doubted that this seven day a week job could be done by a six-day a week worker.  But I managed to get the job done, and at the end of the year a few of my associate editors presented me with a mock copy of the law journal in which every seventh page was blank.  

The speaker at my law school graduation was President John F. Kennedy.  He used the occasion to make the statement about having the best of both worlds, a Harvard education and a Yale degree.  (I now have what I think is the best of both worlds, a Yale education and a Harvard teaching job).  My son Elon was a year old at graduation, and I brought him along.  During Kennedy’s speech, he started crying.  A local New Haven television station caught him in the act, and the voiceover said that Yale was always a Republican school.  (I don’t think Elon has ever voted for a Republican in his life.)

During my years at law school, I developed an interest in writing academic articles.  At Brooklyn College, I wrote a paper about the 5th Amendment.  In it, I explored the history, policies and applications of the privilege, especially in the context of legislative investigations, where many of the battles over the scope of the 5th Amendment were then being fought.   I pointed out that the privilege had “traversed many cycles” over the years and had been “adapted to changing times and needs,” and concluded that though we “are considering the very same constitutional phrase, we are dealing with a completely new and hitherto unknown privilege.”

I would repeat the theme of a changing Constitution in much of my writings over the years and would eventually write a book about the 5th Amendment.  At Yale, I wrote two articles for the law journal—one about attempted murder, the other about corporate crime—that brought me to the attention of the faculty not only at Yale but at Harvard as well.  Both schools had their eyes out for me as a potential faculty recruit.  I worked with several professors at Yale, serving as a research assistant to Professor Guido Calabresi, Joseph Goldstein, Jay Katz, Alexander Bickel and Telford Taylor.  They each became mentors to me and I tried to follow in their very large footsteps.
The professor who most influenced my legal thinking were Joseph Goldstein, who taught me criminal law, but he really didn’t teach me much about the actual law; his job was to get the students to question everything, to accept nothing and to rethink every principle of law.  Some students hated his course, because they learned no law.  Goldstein had failed the bar and had never practiced a day in his life.  I loved his course and seminars and was deeply influenced by his approach to law.  

Another professor who influenced my approach to law, but in a rather different way was Alex Bickel, who taught me advanced constitutional law.  He looked at our constitution politically and structurally and had a coherent, if imperfect, theory of how the constitution should be interpreted.  Both of these mentors defied conventional labels, such as liberal or conservative.  

The professor who had the most influence on my career choice was Telford Taylor, who combined an active constitutional law practice with teaching and writing.  Although we could not have been more different in background and bearing—he was a tall, elegant WASP, had served as a general in the Army, was the Chief Prosecutor at the Nuremburg Trials, always wore a suit and tie, and was polite to a fault—we had much in common and became close friends and colleagues.  (So much for needing mentors of the same ethnicity, religion, race, gender, etc!)  I consciously tried to model my career (except for the Army part) after his.  

Shortly after John Kennedy was elected president, rumors began to circulate that Taylor was being considered to head the C.I.A.  He took me aside one day after class and asked me, in confidence, whether I would consider coming with him to Washington, if he were to get the appointment, and serving as his executive assistant.  I told him I would certainly consider such an offer.  Eventually President Kennedy appointed someone else, deeming Taylor too liberal for the job.  Years later, Telford and I discussed how different our lives would have been if we had both joined the CIA.  “One thing I know would have been different,” Telford quipped.  “There would have been no Bay of Pigs.”

Telford Taylor made me another offer, during my second year in law school, which I also could not accept.  He had been hired to go to Jerusalem to broadcast the trial of Adolf Eichmann, a job for which he was eminently suited, having been the Chief Prosecutor of Nazi war criminals at Nuremberg and also Chairman of the Federal Communications Commission.  He asked me to come with him to serve as his research assistant and translator.  But I had just been elected Editor-in-Chief of the Yale Law Journal and didn’t feel comfortable being away for so long.  I declined the offer, and have always regretted missing that important historical event.  (Years later, I observe and write about the trial of accused Nazi war criminal John Demjanjuk in Jerusalem.)


During law school I also developed a keen interest in the relationship between law and other disciplines, such as economics and science—both physical and social.  I worked as a research assistant on Professor Calabresi’s groundbreaking article on law and economics, and a research assistant to Professors Goldstein and Katz on their teaching and writing on law and psychiatry.  I eventually collaborated with Goldstein and Katz on a book entitled Psychoanalysis, Psychiatry and the Law.  Later I collaborated with Telford Taylor n several human rights projects.

During law school I also developed interests in civil rights, especially with regard to desegregation.  In college I had joined the NAACP and had participated in a bus protest to Washington.  In my second summer at law school I went to Howard University in Washington and trained to become a civil rights observer in the South.  My family was frightened when I traveled to Georgia and Alabama, but I returned unscathed but forever sensitized to the evils of segregation.  

My law school career was a resounding success and I was ready for the next stage in my life—a clerkship in the nation’s capital.  




Chapter 3:  My Clerkships:  Judge Bazelon and Justice Goldberg
Appellate court clerkships, most especially with a Supreme Court Justice, are the most coveted positions following graduation from law school.  Today, many law firms pay huge signing bonuses--some as high as $250,000--to attract Supreme Court clerks.  In my day, the value of such clerkships were not measured in dollars, but rather in status and prestige.  In 1962, there were approximately 18 clerks serving the 9 justices; the chief justice had 3, the associate justices were entitled to 2, but Justice Douglas--who rarely used his clerk--opted for only one.  Today, each justice has __ law clerks and the chief justice has ___.



The competition for these coveted positions has always been fierce.  Although, theoretically, any law school graduate can apply, most of the clerkships go to a handful of elite schools, with Harvard, Yale, Chicago and Stanford generally garnering the most.  (Probably because so many of the Justices attended elite schools:  The current Supreme Court has 5 justices who graduated Harvard, 3 Yale and 1 who attended Harvard but graduated Columbia.)  Some clerkships were reserved for those who met certain criteria.  Justices Brennan, Frankfurter and Harlan picked only from Harvard.  Justice Douglas generally picked from the West Coast, often from Washington State.  Justice Black favored southerners, tennis players, and “kissin’ cousins”, but was open to accepting recommendations from certain Yale Law School professors.  Chief Justice Warren favored "hail fellows well met" and athletes!  Justice Clark preferred Texans.  Justice Goldberg (who replaced Justice Frankfurter shortly after I graduated) liked to have one clerk with Chicago connections.  

I fit none of the pigeonholes, except that I was male and white--as were all the law clerks.  This meant that, effectively, I was competing for 3 or 4 slots.  My best shot was with Justice Black, because one of my mentors at law school was his recent clerk, Guido Calabresi, and he strongly recommended me to the Justice.  But there was a problem.  I had alienated another Yale law professor, who was also very close to Justice Black.  Professor Fred Rodel was something of an iconoclast.  He insisted on teaching his seminar on the Supreme Court at "Morrie’s," a private club near the law school (whose "tables" had been made famous by the Wiffenpoof song:  "From the tables down at Morries to the place where Louie dwells....")  Morrie’s was a men's club that did not serve women, so Rodel, who fancied himself a left-wing radical, simply excluded women from the seminar.  When I learned of this policy of exclusion, I quit the seminar, earning the everlasting hatred of Rodel.  To add insult to injury, I substituted a seminar by Professor Alex Bickel, who Rodel despised, because Bickel took a "Frankfurtiarian" approach to constitutional law, rather than a "Blackian" approach.  Though I myself favored Justice Black’s “absolutist” view of the Bill of Rights, I admired Professor Bickel’s writings and loved his class.  This was enough to make me unkosher for Rodel.  

Professor Bickel gave me an important, if difficult, piece of advice when I asked him to recommend me for a clerkship.  “Alan, I’m going to recommend you for clerkships, but you have to promise me you’re going to turn off at least one of your barrels when you go and clerk for these judges.  They’re not used to being confronted directly, and you have to really be very respectful and polite and if you want to say anything critical put it in writing and read it very carefully, but don’t do it in front of them.”  So he taught me the etiquette of being a law clerk, because in Law School, I was doing to my law professors what I had done to my Rabbis.  At Yale, this confrontational approach was generally admired.  It had not been acceptable to the Rabbis, nor would it be to justices and judges.  

Even at Yale, my chutzpah was not welcome by all the professors.  Professor Fritz Kessler, was an older European trained academic who taught jurisprudence.  One day, he was lecturing on Freud’s influence on German jurisprudence and he misunderstood one of Freud’s most important theories.  I raised my hand and corrected him.  After class, an older student, who had been a Marine and was married to another student in our class, grabbed me and said, “You embarrassed someone I love.  If you ever do that again, I’ll deck you.”  I was startled and replied, “How did I embarrass your wife?”  He said, “Not my wife, stupid.  Professor Kessler, you embarrassed him.  Don’t ever correct him again publicly.”  So much for academic freedom.  But Professor Bickel was wise to caution me about toning down my aggressiveness if I wanted to succeed as a law clerk.

Guido Calabresi offered similar cautionary advice, but it was more about style than substance.  He really pushed hard to get Justice Black to select me.  


Professor Rodel was so concerned that I might contaminate the elderly Justice Black that he took the train to Washington to try to persuade him to reject the recommendation of his recent law clerk.  In the end, Justice Black told Professor Calabresi that he had to defer to his friend's veto for that year but that he would consider me for the following year.  This was the best possible news because it allowed me to accept a clerkship with Judge David Bazelon on the United States Court of Appeals for the District of Columbia.  

Judge Bazelon was actually my first choice, but I also wanted--indeed I felt I needed--the status that came along with a Supreme Court clerkship in order to obtain the kind of job offers I would be seeking after finishing my clerkships.  Two of my other mentors at law school, Professor Joseph Goldstein and Professor Abraham Goldstein (not related) had both clerked for Judge Bazelon.  One of my primary interests in law school was the relationship between law and psychiatry.  Another was criminal law.  Those were also Judge Bazelon's specialties.  Making the Bazelon clerkship even more appealing was the likely upcoming vacancy that would be left when Justice Frankfurter, who had suffered a stroke, retired.  Bazelon was on the short list to fill the so-called "Jewish seat" on the Supreme Court.  So if Judge Bazelon were to be promoted to the Supreme Court, he might take his law clerk with him.  

In the end, Judge Bazelon was regarded as too liberal for the Kennedy Administration and was passed over for labor secretary Arthur Goldberg, who had no judicial experience, but boasted a distinguished career as a labor lawyer before he joined the Cabinet as Secretary of Labor.  Bazelon and Goldberg were close friends, both having grown up in the Jewish neighborhoods of Chicago and being the same age.  I ended up clerking for both Judge Bazelon and for Justice Goldberg, which was a dream come true.  I spent two years in Washington from the summer of 1962 to the summer of 1964.  These were extremely eventful years, not only for me, but for the country and the world.  The Cuban Missile Crisis took place several months into my clerkship with Judge Bazelon.  Martin Luther King's "I have a dream" speech was delivered in the summer of 1963.  And in the fall of 1963, early in my Supreme Court clerkship, President Kennedy was assassinated and Lee Harvey Oswald was murdered.  I had personal connections to each of these momentous events.  

Those years were also eventful in terms of judicial decisions.  Many of the most important civil rights, criminal law and freedom of speech cases were decided during my tenure as a law clerk.  It was a period of liberal judicial activism—the Zenith (or for those more admiring of judicial restraint, the Nadir) of The Warren Court.  It was a heady time for a young liberal lawyer to be in the nation’s capital.    

                    My year of clerking for Judge Bazelon

Even more important than my substantive experiences in working with these two important judges, was the personal impact they both had on my life.  Each was to serve as a mentor, though in very different ways, throughout their entire lives.  Indeed, I continue to be influenced by them even years after their deaths.  

I arrived in Washington during the summer of 1962, in the midst of the Kennedy Administration.  Although Judge David Bazelon was a court of appeals judge—early in my clerkship he became Chief Judge—he was at the center of Washington life, both socially and politically.  He knew everyone.  He socialized regularly with Senators, Congressmen, cabinet members, White House staffers, Supreme Court justices, diplomats and other movers and shakers.  

He had two clerks, but I was very much his senior clerk, and he didn’t much like or respect his junior clerk.  He saw me as a protégé and he took me with him everywhere that it was appropriate for me to go.  At the center of his social life were the weekly lunches at the office restaurant of a local liquor distributor named Milton Kronheim, whose personal chef would prepare simple but superb lunches for “Milton’s boys.”  Kronheim himself was in his mid-seventies when I met him.  (He would live to 97, pitching in his weekly company softball game until his late 80s).  His frequent guests, in addition to Judge Bazelon, included Chief Justice Earl Warren, Justices Thurgood Marshall, William Brennan and William Douglas, Judges J. Skelly Wright, Senators Abe Ribacoff and Jacob Javits and many other judicial and political notables.  The small lunchroom where Milton’s entertained had photographs of Kronheim with every president since Harding.  Hundreds of other wall-to-wall photographs showed him with just about every important political, business and sports figure of the Twentieth Century.

Judge Bazelon once told me a joke about Kronheim, which, with a change of name, from Kronheim to “Katz,” became a standard part of the Jewish joke cannon.

“There was a guy named Kronehiem who bragged he was so famous he could be photographed with “anyone in the world.”  A skeptical friend challenged him.  “You can’t be photographed with the President!”  Within days, Kronheim was standing on the White House balcony with JFK, as photographers snapped pictures.  

“Ok,” the friend conceded “maybe in the United States, but not in other parts of the world!”  He then issued another challenge:  “You could never be photographed with Israel’s Prime Minister David Ben Gurion.”  The next day they were on a plane to Israel, and that afternoon Kronheim was standing on the balcony of the Prime Minister’s house being photographed.  

“Ok, here’s the final challenge:  maybe among Jews and Americans, you’re famous, but you’ll never get a picture with the Pope.”  Next day, they’re off to Rome, and by afternoon, Kronheim is standing on the balcony of St. Peters next to the Holy Father.  A nun standing in the crowd turns to the skeptical friend and asks, “Who’s that guy standing next to Kronheim?”

Presidents and Prime Ministers come and go.  So do Popes.  But not Milton Kronheim, who was a fixture of Washington life for more than 60 years.

I was privileged to participate in many of their lunches—mostly as a quiet observer—during my clerkship.  (When I became a professor, Judge Bazelon invited me whenever I visited—then as a full participant).

The first time I went to Kronheim’s for lunch, we picked up two justices at the Supreme Court building:  William O. Douglas and William Brennan.  I had previously met Justice Brennan through his son Bill, who was my law school classmate and moot court partner.  Justice Brennan was just about the nicest, sweetest, most modest, important person I had ever met.  I continued a friendship with him until his death in 1997.  

Justice Douglas was entirely different.  Nobody ever accused him of being nice or friendly.  He was surly, arrogant, dismissive and—I later learned—a blatant hypocrite.  I learned this several weeks after the Kronheim lunch, when Judge Bazelon buzzed me into his office and pointed to the extension phone, signaling me to pick it up.  The voice on the other end of the phone was familiar.  He was berating Judge Bazelon for canceling a speaking engagement that he had previously accepted.  Bazelon turned to me and silently mouthed the words “Bill Douglas,” pointing to the phone.  I listened as the Justice lectured my judge.  Bazelon kept trying to reply, saying “I just can’t do it, Bill.  It’s a matter of principle.”  Douglas responded, “We’re not asking you to join, just to speak.”  Bazelon replied, “That’s the point, Bill.  They wouldn’t let me join.  They don’t accept Jews or Blacks.”  

It soon became evident that the two great liberal judges were arguing about a private club that excluded Jews and Blacks.  Douglas was a member of that club and had invited Bazelon to give a luncheon talk to its members.  Bazelon had originally agreed, but when he learned of the clubs “restricted” nature, he withdrew his acceptance.  Douglas was furious, Bazelon adamant.  Neither relented.  I couldn’t believe that the great liberal justice not only belonged to a restricted club that discriminated on the basis of race and religion, but that he was utterly insensitive to Bazelon’s principled refusal to speak at such a club.  This was the height of the civil rights movement, and Justice Douglas was writing decision after decision decrying public segregation and supporting efforts to demantle it.  Yet he himself was participating in private segregation and condemning Bazelon’s principled refusal to become complicit in it. 

This phone call had a profound effect on my own subsequent actions and my refusal to speak, or remain silent about, private clubs that discriminate, whether it be the Harvard Club of New York, which refused accept women for many years, or Jewish clubs, which limit their memberships to my own co-religionists.  (More on this later.) 

Judge Bazelon played hard and worked even harder.  For his law clerks it was all work, no play.  We had to be in the office before he arrived, and his arrival time was never predictable, though his secretary would sometimes tip us off about an unusually late or early arrival.  We had to stay until after he left, and he often worked late.  He did not believe in vacation for the clerks—“It’s only a one year job, and that means 365 days”—no personal time off.  When I first came to work over the summer, I asked him for a few days off to take a preparation course for the DC bar exam.  He assured me that I didn’t need time off to prepare!  “I hired you because you were first in your law school class.  You don’t have to study for this test.”  I told him I had been first because I always prepared, but he was dismissive of my request.  I tried to prepare myself late at night, but the material was so dry and boring—the criteria to qualify for the “bulk sales act” and other information I would never use—that I always fell asleep.  “I’m going to fail the bar,” I told him worriedly, “and it may embarrass you.”  He told me that one of his earlier star law clerks who was my professor at Yale Law School had failed the bar and it didn’t embarrass him.  Finally, he relented when I told him that I was really having trouble focusing on the ridiculous bar exam questions and he allowed me to leave a bit early for a week to take a crash course that met from six to nine in the evening.

A few weeks after I took the exam, Judge Bazelon came storming out of his office holding a paper and not smiling.  I knew that he got advance notice of the bar results and I thought that he was coming to tell me I had flunked.  Instead he shouted, “You didn’t need time off.  You got the goddamn highest grade in the city.  You’re a faker,” he complained, not bothering even to congratulate me on passing.

Several months later when my second son, Jamin, was about to be born, I asked the judge for the day off to accompany my wife to the hospital.  He asked, “Isn’t Sue’s mother here?”  She was.  “You did your part of the job already.  You can visit after the baby is born.  It isn’t your first child.  You don’t have to be there for the birth.”  

Fortunately, he was traveling on the day of the birth and I made it to the hospital in time.  

In light of these actions and attitudes, one can only imagine how shocked I was when Judge Bazelon came back to the office from a lunch at the White House in mid-October and told his entire staff, including his clerks, to “go home and be with your families.”  He was grim-faced and pale.  “Why?” we asked.  “There may be a nuclear attack,” he said solemnly.  “I’ve just been briefed on the presence of Soviet nuclear rockets in Cuba.  Neither side is backing down.  Nobody wants war, but each side is calling the other’s bluff.  No one knows how this will turn out.  Go home.  Be with your families.”

We all left in a panic.  Bazelon called me later that evening at home.  “I have no faith in those Kennedy brothers and their friends.  They’re a bunch of spoiled brats—their fathers’ children, he said contemptuously of Joseph Kennedy.  I don’t like them and I don’t trust them.  Look at the way they screwed up the Bay of Pigs.  A bunch of arrogant amateurs.” 

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 controversies, such as a railroad accident or a conventional contract dispute, into monumental legal decisions.  

Judge Bazelon did the same with regard to criminal cases, especially those involving defendants who could not afford an adequate defense and those with serious mental illnesses.  He would ask his clerks to scour the records of cases—even those not assigned to him—for evidence of injustice.  He told me that most indigent defendants—and most defendants in DC were indeed indigent—did not have adequate lawyers:  “You’re their lawyer of last resort,” he would tell me.  “Search the record for errors.  Tell me if you find any injustices.”  

“But the case isn’t even before you,” I would protest, or “there were no objections and so the issues aren’t properly preserved for appeal.”

“No matter.  We will find a way to secure justice.  Your job is to find injustices.  My job is to figure out a way to bring about justice.”

He told me about a conversation between the great Justice Oliver Wendall Holmes and one of the justice’s law clerks (who were called “secretaries”).  After the justice rendered an opinion denying relief to a morally deserving litigant, the clerk complained, “But Mr. Justice, the result in this case is unjust.”  To which Holmes reportedly responded: “We’re in the law business, young man, not the justice business.”

David Bazelon was in the justice business, though he used the law—sometimes stretching it beyond existing precedent—to bring about what he regarded as a just result.  He was a “judicial activist”, at least when it came to doing justice to the poor, the disadvantaged and the sick, and proud of it.  That catch phrase had not yet become a term of opprobrium, as it has to so many today.  I was proud to assist my activist judge and eagerly pursued my assigned task of searching for injustices.

I recall telling Bazelon, who was Jewish but not well educated in Jewish religion tradition, that the Torah commands not merely that we be just, or even that we do justice, but rather that we actively pursue justice, as if injustice never rests.  The exact words of Deuteronomy—which I recalled because I recited them in my Bar Mitzvah portion—were “Justice, justice, you must actively chase after.”  The traditional translation “pursue” doesn’t quite capture the essence of the Hebrew words, “Tzedek, Tzedek, Tirdof,” since “Tirdof,” comes from the root that means to run or chase after.

Bazelon asked me to make a sign for his office with these words, in Hebrew and English.  He quoted them frequently in defense of his activism.  They became his mantra, as they have become mine.  The sign now hangs in my office.  Another example of the good that has come from my not-so-good Jewish education!

The other good lesson—this one taught by Bazelon to me by example—was that justice requires some degree of compassion.

When I told Bazelon about the justice quote from the Torah, he asked me why the word justice was repeated.  Wouldn’t it have been enough to say “justice you must actively chase after.”  “Why ‘justice, justice.’”  No word, or even syllable of the Torah is supposed to be redundant.  Every one has a meaning.  I told Judge Bazelon that the rabbis had a field day providing interpretation to the repeat of justice.  My favorite, the one I had proposed in my Bar Mitzvah speech, was that the first “tzedek” meant legal justice, while the second meant compassionate justice.  Judge Bazelon corrected me:  “Compassion must come before the law.  The first means compassionate justice, the second legal justice.”  Whichever came first in Judge Bazelon’s court, every decision that he wrote or joined combined elements of both.  His compassion wasn’t always appreciated, even by its objects.  Judge Bazelon once showed me a letter he received from his most famous defendant, a man named Monte Durham.  Durham was the defendant in the case in which Bazelon announced his innovative approach to the insanity defense in the form of a new rule called “The Durham Rule” that declared a person to be legally insane, and thus not guilty, if his crime was “the product” of a mental disease or defect.  This controversial rule revolutionized the relationship between law and psychiatry.  The letter from Monte Durham complained about the rule bearing his name.  “Now everyone calls me ‘Durham the Nutcase.’”  He noted that when doctors discover a new disease, they name it after themselves and not after the patient.  He wondered why  the new rule wasn’t called “The Bazelon Rule” instead of the “Durham Rule!”  Bazelon apologized to Durham and noted that if judges could name new rules after themselves there would be too many new rules.

Judge Bazelon and I were a match made, if not in heaven, at least in legal nirvana.  I learned a lot from him and even taught him a little.  We remained lifelong friends, though the year of clerking was more like hell than heaven, at least as regards to working conditions.

Bazelon was never satisfied.  He never told me that a draft opinion or article was good.  It always needed to be “made better.”  “It’s getting there” or “it’s close,” was the highest compliment he ever paid.  But when it was done and published, and colleagues complimented him on the finished product, he would always give me credit.  But never to my face.  I always had to hear it from others.  He was beyond a perfectionist.  He knew his opinions would be read by generations of law students, professors, lower court judges and assorted critics.  He was on a never-ending mission, and nothing was ever good enough.  Even if it was good enough to publish or deliver because of artificial deadlines, it was never quite good enough for David Bazelon.  But the long hours, demanding boss and difficult working conditions were well worth it.  Law clerks who endured this trial by fire went on to great careers.  Former Bazelon clerks include the deans of Harvard and Yale Law Schools, the President of New York University, the former Chancellor of the New York City school system, a prominent reform rabbi, numerous law professors, lawyers and business and political leaders.  He influenced us all, and his influence continues in the work that many still do.  As Peter Strauss, a law professor at Columbia once aptly characterized the relationship between Judge Bazelon and his clerks:  “He the pebble, we the ripples.”

The primary job of the law clerk related to the appellate cases that came before the United States Court of Appeals for the District of Columbia.  In the years I was a clerk, that court served not only as a federal appellate court, but also as the Supreme Court of the District of Columbia, a reasonably sized city with a racially mixed population and a relatively high violent crime rate.  Many of our cases involved very high level appeals relating to federal administrative agencies—the so called “alphabet agencies”—such as the FCC, FPC, SEC and FDA.  The rest were run of the mill criminal cases—murder, robbery, rape, assault and other street crimes.  It was a perfect combination for a budding law professor who was interested in constitutional and criminal law.

Our task began with a case record, which consisted of the appellate briefs filed by the lawyers and an “appendix,” which included relevant excerpts from the trial transcript and motions filed before the trial court. Some records were relatively short, perhaps 300 pages in total.  Others were humongous, as many as 5,000 pages.  Then there was the complete trial transcript—a verbatim account of every word spoken during the trial, as well as during the pretrial and post-trial proceedings.  Judge Bazelon would often ask me to read the entire transcript in search of errors or particular issues that were of interest to him.

When we completed the review, we would discuss the case with the judge, who had read the briefs and perused the appendix in preparation for the oral argument in court.  Occasionally, we were permitted to listen to the oral argument, especially when leading lawyers were arguing (which was rare), or when issues close to the judge’s heart were being considered.  But generally, we were required to remain in the chambers working while the judge presided over the oral argument.

Since Bazelon was the Chief Judge, he always presided and got to assign the opinion to one of the three judges on a panel (or nine when on rare occasions the entire court heard the case “en banc”).  Following the oral argument, there was a conference among the judges during which a tentative result was reached and the case assigned.  Bazelon always assigned the most interesting cases to himself, or to a judge whose decisions he wanted to influence.

When the conference was over and the case assigned, we would meet with the judge and he would tell us which clerk was to work on the opinion.  I always got the interesting cases (at least the ones that interested the judge).  My co-clerk, who the judge didn’t much like, got the dregs.  This was fine with him, since he didn’t much like working closely with the judge.

Then the real work would begin.  Draft after draft was submitted, marked up by the judge and rejected with the admonition, “You can do better,” or sometimes “start over, this draft isn’t right.”  

After many drafts, and some pressure from the other judges on the panel, the opinion was released to the public.  Generally, they were majority opinions, often unanimous, but frequently they were dissenting or concurring opinions.  This was a deeply divided court and the dissenting opinions pulled no punches in criticizing the majority, and vice versa.

At the end of the year, the clerks would prepare bound volumes of all the opinions we worked on during our clerkship.  One was given to the judge and the others to us, as mementoes of our year.  As I write these words, I have in front of me the maroon volume engraved with the following words:

     “Chief Judge David L. Bazelon
     Opinions 1962-1963
     Alan M. Dershowitz, Law Clerk”

It is a treasured possession.  A year in the life of!  And what a year it was.  

My first case involved a man named “Daniel Jackson Oliver Wendell Holmes Morgan”—Quite a name!  Any lawyer would be proud to have been named after.  “Daniel Webster,” “Andrew Jackson” and “Oliver Wendell Holmes.”  That’s what Mr. Morgan thought too.  The only problem was he wasn’t a lawyer and that wasn’t his name!  He was an uneducated, but slick, African American man whose parents were sharecroppers and who made his way to the District of Columbia, where he apparently bought a dead lawyer’s bar certificate in a junk shop.  He started to practice law, and he did extremely well, beating real prosecutors in several cases involving street crimes.  For more than a year, he went to court and argued to juries and judges.  His reputation spread in the downtown area, as he kept winning difficult cases.  Ultimately the feds checked him out, discovered that despite his name, he wasn’t a lawyer, and charged him with multiple counts of fraud, forgery, impersonating an officer of the court and false pretenses.  He represented himself at trial, was convicted and sentenced to 3 to 10 years in prison.

The court appointed a lawyer named Monroe Freedman to argue his appeal.  Judge Bazelon invited me to watch the oral argument.

I was blown away by Freedman’s eloquence, erudition, command of the record and ability to further his argument while responding to hard questions.  I had participated in moot court appeals as a law student, and I had done very well—even earning a job offer from one of the judges who was a partner at a Jewish law firm.  But this was a different league.  I remember thinking “I want to be like this guy,” and wondering whether I could ever be that good.  The lawyer for the prosecution was also quite good, though not up to Freedman’s high standards.  He was an African American named Charles Duncan, who, I later was told, was the son of the singer Todd Duncan, who had played “Porgy” in the original Broadway run of the Gershwin opera.  

Following the argument, the judges conferred and unanimously decided to affirm the conviction.  I was upset, because Freedman had clearly “won” the argument and had certainly convinced me that his client deserved a new trial, or at least a reduction in the sentence.  I pleaded with Bazelon to let me try to draft an opinion reversing the conviction.  He said, “go ahead,” because he too was somewhat sympathetic to the defendant.  “But you must find a valid legal basis for reversal.  It’s not enough that the defendant’s lawyer was better than the government’s lawyer.  Nor is it enough that we think the defendant should get relief.   There has to be a solid legal basis.  Go ahead and look for one.”

I searched and searched, but Freedman had mined every possible nugget from the sparse record and to no avail.  There was no plausible legal basis for reversal.  I learned several important lessons from this exercise in futility:  there’s an enormous difference between winning an appellate argument and reversing a conviction; there’s an equally significant difference between wanting to see a conviction reversed and finding a valid basis for reversal; all the hard work in the world cannot bring about a result if the facts and the law don’t justify it.  (At least that’s what I believed until such cases as Bush v. Gore, of which more later.)

Subsequently, I later learned a series of related lessons that parallel the above:  even when there is a firm basis for reversal, a bad job of lawyering will not bring it about in most cases; a court that is determined to affirm a conviction—because they don’t like the defendant or for some ideological reason—will not be convinced even by the most compelling arguments and the most egregious record; without hard work, many of the most persuasive reasons for reversal are never uncovered.  I learned these lessons later, because in Judge Bazelon’s court, the judge and the law clerks often did the jobs that the lawyers were supposed to do.  Not in the case of Daniel Jackson Oliver Wendell Holmes Morgan, because his lawyer, Monroe Freedman, had done all the hard work and made all the plausible arguments.  

Eventually Freedman and I became friends and colleagues, and he went on to become Dean of Hofstra Law School and one of the nation’s leading experts in legal ethics.  I tried to follow in his large footsteps but I’m not sure I ever made as good an oral argument as he did in the Morgan case.  It was quite a way to begin my career as a law clerk.  

The remaining cases during my year were in many ways representative of the Supreme Court’s future docket during the haydays of the Warren Court.  Many dealt with the rights of indigent defendants—an issue that came to the fore in the Supreme Court’s decision in Gideon versus Weinright, decided toward the end of the year of my Bazelon clerkship.  That decision ruled that every indigent criminal defendant in a serious case had the right to appointed counsel.

The opinions of Judge Bazelon over the years had the laid the foundation for this decision and several of them were cited in the briefs filed by his friends Abe Fortas and Abe Krash, who had been appointed to Represent Gideon.  (My friend John Hart Ely was working for the Fortas firm during the summer the briefs were being prepared and I reviewed and edited several drafts with John.)  Bazelon’s opinions—more often dissents than majority—had established the conceptual framework for a broad-based claim of equality in the criminal justice system.  He had gone considerably further than the Supreme Court would ever go in seeking to assure that indigent defendants were treated no differently from wealthy ones.  Many of the cases my year dealt with this issue.

Other cases dealt with the pervasive problem of police perjury—today it’s called “testilying” 15 —especially in the context of searches and interrogations.  If a search or interrogation is found to be unconstitutional, its fruits are generally excluded, even if they would conclusively prove the defendant’s guilt.  Not surprisingly, many police officers (as well as prosecutors) hate these “exclusionary rules” and do whatever they can to circumvent them.  Some policemen even resort to perjury, occasionally assisted by prosecutors in making their “testilies” fit the law.  I was shocked when Judge Bazelon first told me about this phenomenon.  We didn’t learn about this dark side of the law at Yale, and at first I was skeptical.  But then when I read case after case in which police officer—often the same ones from the same drug unit—would give essentially the same scripted testimony, I began to believe it.  

Bazelon had no patience for testilyers, for the prosecutors who coached them, or for trial judges who pretended to believe their obvious lies.  He would call them on it, much to the chagrin of some of his fellow judges, especially Warren Burger.  Sparks would fly and Bazelon generally ended up in dissent, but he had made his point.  

Years later, in my first popular book, The Best Defense, I summarized what I had first seen in Judge Bazelon’s chambers and had then experienced in several cases I had litigated as a practicing lawyer.  I called my summary “The Rules of the Justice Game:”
Rule I:	Almost all criminal defendants are, in fact, guilty.

Rule II:	All criminal defense lawyers, prosecutors and judges understand and believe Rule I.

Rule III:	It is easier to convict guilty defendants by violating the Constitution than by complying with it, and in some cases it is impossible to convict guilty defendants without violating the Constitution.

Rule IV:	Almost all police lie about whether they violated the Constitution in order to convict guilty defendants.

Rule V:	All prosecutors, judges and defense attorneys are aware of Rule IV.

Rule VI:	Many prosecutors implicitly encourage police to lie about whether they violated the Constitution in order to convict guilty defendants.

Rule VII:	All judges are aware of Rule VI.

Rule VIII:	Most trial judges pretend to believe police officers who they know are lying.

Rule IX:	All appellate judges are aware of Rule VIII, yet many pretend to believe the trial judges who pretend to believe the lying police officers.

Rule X:	Most judges disbelieve defendants about whether their constitutional rights have been violated, even if they are telling the truth.

Rule XI:	Most judges and prosecutors would not knowingly convict a defendant who they believe to be innocent of the crime charged (or a closely related crime).

Rule XII:	Rule XI does not apply to members of organized crime, drug dealers, career criminals, or potential informers.

Rule XIII:	[Almost] Nobody really wants justice.

The seeds of my career as a criminal lawyer were planted deeply into fertile soil during my clerkship.  So were the seeds of my career as an academic who focused, early in my years at Harvard, on the relationship between law and the social sciences, especially psychiatry and psychology.

One of the most intriguing cases during my year with Judge Bazelon began as an ordinary pick pocketing of a wallet containing $14.  Based on the sparse evidence, “the jury could have inferred either that the wallet was picked from [the alleged victim’s] pocket, or that it was accidentally dropped from his pocket and was picked up by someone who ran off with it.” 16   The judge instructed the jury that there is a legal presumption that a defendant’s “flight may be considered by jurors as evidence of guilt.”

There was no dispute that the defendant did flee when confronted by the alleged victim shouting , “Hey, that’s my wallet.  Give it back to me.”  But of course the defendant might well flee even if he simply picked up a dropped wallet and didn’t want to return it.  Such an action would be immoral and perhaps even minimally criminal—the misdemeanor of failing to return a found wallet, for which he had not been charged.  But the defendant here was charged with the felony of robbery.  The jury convicted him of robbery and the judge sentenced him to prison for two to six years.  

When the case came across my desk, I saw it as an opportunity to use my law school background in psychiatry and law—I was working on a casebook with two of my law school professors on “Psychoanalysis, Psychiatry and the Law”—to reverse what appeared to be a possibly unjust conviction.  The great legal commentator Wigmore had written the following about evidence of guilty feelings:

     “The commission of a crime leaves usually upon the consciousness a moral impression which is characteristic.  The innocent man is without it; the guilty man usually has it.  Its evidential value has never been doubted.  The inference from consciousness of guilt to “guilty” is always available in evidence.  It is a most powerful one, because the only other hypothesis conceivable is the rare one that the person’s consciousness is caused by a delusion, and not by the action doing of the act.” 17 

This view had become the accepted wisdom by lawyers, judges and professors and was the basis for the judge’s instructions to the jury in the pick pocketing case.  I found it highly questionable, especially in the context of the facts of the case.  

In an effort to support my conclusion that the defendant’s flight in this case was equally consistent with the legally innocent explanation that he was fleeing to avoid returning a dropped wallet, or the guilty explanation that he was fleeing from a pick pocketing crime, I introduced a quote from Sigmund Freud:  

     “You may be lead astray…by a neurotic who reacts as though he were guilty even though he is innocent—because a lurking sense of guilt already in him assimilates the accusation made against him on this particular occasion.  You must not regard this possibility as an idle one; you have only to think of the nursery where you can often observe it.  It sometimes happens that a child who has been accused of a misdeed denied the accusation, but at the same time weeps like a sinner who has been caught.  You might think that the child lies, even while it asserts its innocence; but this need not be so.  The child is really not guilty of the specific misdeed of which he is being accused, but he is guilty of a similar misdemeanor of which you know nothing and of which you do not accuse him.  He therefore quite truly denies his guilt in the one case, but in doing so betrays his sense of guilt with regard to the other.  The adult neurotic behaves in this and in many other ways just as the child does.  People of this kind are often to be met, and it is indeed a question whether your technique will succeed in distinguishing such self-accused persons from those who are really guilty.

In addition to citing Freud and dozens of other psychological sources, I also invoked my favorite novelist, Dostoevski, noting that in the Brothers Karamazov:

     “the author describes how Ivan—the brother who had desired death of the father but had not perpetrated the act—manifests all the traditional symptoms of guilt described by Wigmore, whereas the actual murderer reacts in a cool dispassionate way, consistent—according to Wigmore—with innocence.”

Judge Bazelon approved of my somewhat sophomoric display of erudition, so long as at least one other judge agreed to reverse the conviction and order a new trial with a proper instruction on flight and guilt. 18 

Judge Fahey did agree, while writing a short concurrence.  Judge Burger wrote a scathing dissent—arguing that our proposed instruction “may be appropriate to a philosophical interchange between judges, lawyers and experts in psychology…but was unnecessary to a jury.”  Judge Bazelon assured me that Burger’s dissent “proves we’re right.”

All in all the Bazelon clerkship proved to be a turning point in my life.  He helped shape me into the person I have become.  He influenced me as a lawyer, teacher, writer, public intellectual and as a liberal Jew.  His highest praise for any person was that he or she “is a mensch.”  I have aspired to that accolade.  When Judge Bazelon retired in 1985, I wrote the following about his contributions to our nation:  

     David Bazelon is certainly not a household name to most Americans.  Yet Judge Bazelon—who just retired after thirty six years of distinguished service on the US Court of Appeals for the District of Columbia—has been your conscience in Washington since 1949.

     No single judge—whether on the Supreme Court, the lower federal courts or the state courts—has had a more profound impact on the law’s sensitivity to human needs.  

     …

     As a judge, he saw the enormous disparities between how the wealthy are treated in court and how the poor are mistreated.  Although he provided few final answers, he pricked the conscience of a nation, and he goaded the US Supreme Court into action in several cases….


I pointed out that no student can go through a three-year course at any major law school without studying the life work of David Bazelon—and I predict that this will be true well into the next century.  The reason for Bazelon’s continuing impact is that his primary role—as he saw it—was to raise enduring questions, not to provide transient, trendy solutions.  He saw the role of the courts—especially the intermediate appellate courts, such as the one he served on—as uniquely capable of raising questions and directing them at the Supreme Court, the lower District courts, the legislatures and the executives.  Bazelon was at his finest when he threw the ball back at government officials, making them think hard, reconsider and question their own programs and political solutions.  

     …

Over my own career, I have certainly not been known for effusively praising the judiciary.  Indeed, part of the reason I have been so critical of so many judges is that I learned at the feet of one who set a tone and provided a model that few can meet.  Perhaps in that respect Bazelon has made me too tough a critic of others.  I know he would be proud of having provoked hard questions, even about the judiciary that he loves.

Several years after retiring, David Bazelon called to inform me that he had early stage Alzheimer’s, a disease that also afflicted my father.  I visited with David all through his illness, often with his closest friend Bill Brennan.  We would take David on walks, reminisce with him and tell him stories.  I remained his law clerk until he died at age 93.  


My clerkship with Justice Arthur Goldberg was, in many ways, more exciting than my clerkship with Judge Bazelon.  It was, after all, on the Supreme Court, where nearly every case made headlines.  During my Goldberg clerkship, President Kennedy was assassinated, Lee Harvey Oswald was killed, and Lyndon Johnson ascended to the oval office.  Many transforming decisions were rendered in areas as wide-ranging and important as desegregation, freedom of the press, the rights of criminal defendants, the law of obscenity, the death penalty and trial by jury.  Yet, in a more personal way, my second clerkship was somewhat anticlimactic.  I learned far more during my year on the court of appeals than during my year on the High Court, in part because Judge Bazelon was such a remarkable teacher and in part because it was my first exposure to the judiciary in action.  This is not to diminish the impact Justice Goldberg had on my life.  It too was profound and enduring.  The major difference was that Justice Goldberg, who saw me as a protégé, had a specific life plan for me:  he wanted me to follow in his footsteps.  He saw my professional life unfolding in parallel to his.  He wanted me to work in the Kennedy administration.  Indeed he arranged for me to become an assistant to then Attorney General Robert Kennedy—without even asking me!  It was well intentioned, and it might even have been the right choices of jobs following the clerkships, but it was his choice, not mine.  He wanted me to aspire to a judgeship, perhaps even as a Justice of the Supreme Court, but I never wanted to be a judge.  (Neither, it turned out, did he, since he resigned from the Supreme Court after only 3 years.)  

Judge Bazelon, on the other hand, encouraged me to create my own unique career path and avoid the “cookie cutter” paths for which most elite young lawyers opt.  “Don’t follow in anyone’s footsteps,” he urged me.  “Your feet are too big to fit anyone else’s print.  Create your own life.  You are unique.  Live a unique life.  Take risks.  Live boldly.”  It was scary, but it fit my personality to a T.   

Half way through my year with David Bazelon I was offered a clerkship with Justice Arthur Goldberg.  I had also been offered a clerkship with Justice Hugo Black, but I strongly preferred to clerk for a new Justice whose views were not as firmly formed.  I asked to see Justice Goldberg before I formally accepted his offer.  I told him that I wanted him to know that I would not be able to work on Saturday or Friday night and asked him if he still wanted to extend the offer.  He angrily replied, “I should withdraw the offer just because you asked me that ridiculous question.  What do you think I am?  How could I possibly turn down somebody because he is an orthodox Jew?”  I apologized for asking the question, but told him that I had been previously been turned down by the firm of Paul Weiss, Rifkin, Wharton and Garrison.  He said, “Paul Weiss turned you down because you were orthodox?  I’m going to call my friend Si Rifkin. He won’t let them get away with that.”  I sheepishly replied that it was Simon Rifkin who turned me down.  (Years later, Arthur Goldberg was offered a partnership at Paul, Weiss and before accepting he insisted on being assured that what happened to his law clerk would never happen to another Orthodox Jew.  Paul, Weiss now has many Orthodox Jews).  Goldberg told me that my co-clerk was Christian and didn’t work on Sunday, so he had assistance available to him seven days a week.  Me on Sunday and my co-clerk Lee McTurnan on Saturday.  It worked very well, except that on one Saturday an emergency death penalty petition came to Justice Goldberg, and I was the death penalty specialist.  So Justice Goldberg had his driver take him to my house in Hyattsville, MD, where he knew I would be, and we conferred on the case and he made his decision.  

A few months before I started my Supreme Court clerkship, my grandmother came to town and I took her and my son Elon, who was then 2 years old, to see the Supreme Court.  We got permission to go to Justice Goldberg’s chambers, but he was not there.  His secretary, Fran Gilbert, invited me to take my grandmother and my son in to the Justice’s private office to look at the paintings, which were all done by his very artistic wife, Dorothy.  The new decorations in his office had just been finished and his secretary told me that Goldberg was proud of how nice they looked.  My son, however, had no appreciation for the new rug and proceeded to leave a large yellow stain right in front of Justice Goldberg’s desk.  When the Justice finally came in I was on my hands and knees scrubbing the rug with soap, only making it worse.  This time, he almost did fire me, but with my grandmother there he would have had a hard time.  My grandmother did have an argument with him.  She told him that she noticed that morning that I had davened (prayed) for only twenty minutes.  “It takes at least a half hour,” she said.  “He’s skipping.  Tell him to take the full half hour.”  Justice Goldberg shook his finger at me and said, “Listen to your Grandmother.”  (Justice Steven Breyer, who succeeded me as Goldberg’s law clerk, now sits in Goldberg’s old office.)  

Before I knew I was to be selected by Justice Goldberg, I interviewed with several of the other Justices, including John Harlan, an elegant aristocrat whose grandfather had also served on the Supreme Court.  He was impressed with my grades and my law review experience, but he gently asked me why I hadn’t worked during the summer for one of the “Great Wall Street firms.”  I couldn’t believe that he didn’t know that the “Great Wall Street Firms” were not hiring Jewish kids from Brooklyn whose ancestors came over from Poland and who hadn’t attended an Ivy League college.  Harlan had himself been the senior partner in one of those firms, and I assumed that he was familiar with their bigoted hiring policies.  I later learned from one of his Jewish law clerks – he hired many Jews to work for him when he was a judge – that Justice Harlan was probably oblivious to his firms hiring practices, or at least never really thought about them.  Maybe!

An interesting event marked a transition between my two clerkships.  I began working for Justice Goldberg on August 1, 1963, just ___ days before Martin Luther King delivered his “I have a dream” speech from the steps of the Lincoln Monument.  A large rally was planned and I wanted to attend.  But Justice Goldberg told me that Chief Justice Earl Warren did not want members of the judiciary—which included clerks—to be on the mall that day, because there might be violence and cases growing out of the violence might come before the courts.  I really wanted to hear Martin Luther King speak and so I asked Judge Bazelon what I should do.  “Come with me,” he proposed.  He and another judge were planning to go to the mall and listen from the rear, and off to the side, in relative anonymity.  I went with them and heard—and barely saw—that remarkable speech (following several long winded speakers representing the groups that had organized the event.)  I never told Justice Goldberg that I had disobeyed the Chief Justice order.  


My Year of Clerking For Justice Goldberg 

Justice Arthur Goldberg was a man of action.  Before being nominated at age 54 to the Supreme Court by President John F. Kennedy, Goldberg had accomplished an enormous amount.  Unlike most of the current justices, he would have been in the history books even had he never served on the High Court.  

Arthur Goldberg helped establish the profession of labor law.  He represented the most important labor unions in the country.  He helped merge the American Federation of Labor (AFL) with the Congress of Industrial Organizations (CIO).  He helped rid unions of communist influence.  He argued some of the most significant cases before the Supreme Court and other courts, including the Steel Seizure Case of 1951.  He was, perhaps the most successful Secretary of Labor in history, settling one strike after another and being recognized as a legendary mediator.  

The Supreme Court is not a place of action, it is an institution of reaction—to cases and controversies generated by others.  It is a place of thoughtful, often solitary, meditation and research.  Justice Goldberg was used to working with many people.  He was accustomed to crisis.  His phone had always rung.  When he arrived at the Supreme Court, as he once summarized the situation, “my phone never rings.”  The High Court is the loneliest of institutions.  As Justice Brandeis once put it, “here we do our own work.”  The Justices only occassionally interact: on the bench, in the weekly, somewhat formal, conference; and in informal one-on-one meetings, which were rare then and even rarer today.  It is fair to say that Justice Goldberg was somewhat lonely, often restless and craved the active life he had left behind.  

This is not to say that Justice Goldberg was not a serious intellectual.  He was.  He was also one of the smartest justices in history.  He loved the Supreme Court.  He loved the law.  He loved having intense discussions with his law clerks about jurisprudence and the role of the Supreme Court.  But he needed more than contemplation, deliberation and discussion.  The “passive virtues,” as Professor Alexander Bickel once characterized the Supreme Court’s role in not making decisions, was a vice to Arthur Goldberg.  He wanted to get things done.  He too was an unapologetic judicial activist.  He came to the High Court with an agenda—a list of changes he wanted to help engender.

I will never forget my first meeting with my new boss when I came to work in the Supreme Court during the summer of 1963.  He tossed a certiorari petition at me from across his desk and asked me to read it in his presence.  It was only a few pages long and I did.  He then asked me, “What do you see in it?”  I said, “It’s just another pro se cert petition in a capital case.”  He said, “No, what you’re holding in your hand is the vehicle by which we can end capital punishment in the United States.”  Abolishing the death penalty was the first item on his “to do” list as a justice.

My major responsibility during the first part of my clerkship was to draft a memorandum supporting Justice Goldberg’s views that the death penalty was cruel and unusual punishment in violation of the Constitution.  He knew we had no chance of getting the majority to support that view—at least not yet—but he wanted to start a dialogue that would ultimately lead to the judicial abolition of the death penalty.  He decided to focus first on an interracial rape case involving an African American defendant and a white victim, since almost no whites had been executed for raping Blacks, but many Blacks had been executed for raping, or even assaulting, white women.  I recount this story in greater detail in the chapter on the death penalty.  For now, suffice it to say that he knew that the key Justice would be William Brennan, since if liberal Brennan would not go along with him he had no chance of beginning any meaningful dialogue.  Since I had done all the research, he assigned me the delicate task of trying to get Justice Brennan to join our opinion. It was a daunting task for a 24-year-old law clerk to persuade a Justice of anything, but I went in to see Justice Brennan and he listened to me politely without committing himself.  Eventually he did join Justice Goldberg’s dissenting opinion and the dialogue was begun.  Within less than a decade, it resulted in the judicial abolition of capital punishment, but soon thereafter in its resurrection of the “game” of two steps forward, one step backward is still ongoing.  

My conversation with Justice Brennan marked the beginning of what developed into a lifelong friendship and mutual admiration society.  One of my great treasures is a handwritten letter from the justice in 1982 that includes the following:  

     “There are winds swirling these days that too few resist---it’s a comfort to know that outside there are steadfast champions who are putting up a gilliant fight.  You are first among them and that’s a matter of special pride for those of us who have followed your career with increasing satisfaction.”  [check quote]