February 10, 2015 (Delivered on January 24, 2015)

To Stand for What is Right Owen Fiss

On May 17, 1954 a new chapter began in the history of the nation. On that day, the Supreme Court announced its decision in Brown v. Board of Education condemning the racial caste system that had long characterized American society, thereby initiating a process that would uproot deeply entrenched institutions and practices. In time, this process of change proved so profound and so sweeping that many have called it a civil rights revolution, though it must always be remembered that this was a most unusual revolution: it was a revolution by and through the law. It was the Supreme Court that had called for the end of Jim Crow and then placed the task of implementing its edict on the lower federal courts. As part of this plan, federal judges throughout the South were charged with the duty of eradicating the traditional dual school system, insuring the right to vote, and dismantling the vast network of practices that kept blacks second-class citizens. New statutes, most notably the and the Voting Rights Act of 1965, reinforced these court victories and gave the principles that emerged from them new force. In some instances new procedures for implementing these principles were devised. As in any period of fundamental change, the citizenry was mobilized. Their action was non-violent and took many different forms – freedom rides, sit-ins, voter registration drives, and marches. These demonstrations and the sometimes brutal reaction to them ensured the passage of new legislation and may even

1 account for the eventual course of judicial decisions. Yet the demands that drove these activities in the first place were often legal in nature. Protestors invoked the authority of the Supreme Court and demanded that the rights conferred by the Constitution be respected. The law was also forged into a shield that protected those who sought change and had dared raise their voice against Jim Crow. State convictions of those who sat in were, for example, overturned by the Supreme Court. The lower federal courts were also called on to protect those who marched or helped others register to vote. On a number of occasions, military forces were deployed, as in the Little Rock crisis of 1957 or the effort in 1962 to register at Ole’ Miss. Even then, the military was used to ensure implementation of court orders and, by endowing law with force of arms, helped bring the old order to an end. In the face of these tumultuous developments, the lawyers of the nation were summoned to the temple of justice. They were asked for all the goodness they possessed to help deliver on the Constitution’s promise of equality. Thanks to a Princeton connection, John Doar received his call in the spring of 1960, and he then left the family firm in New Richmond, Wisconsin and headed east. John arrived in Washington, D.C. on July 4, 1960, to begin a career in the Department of Justice that would last seven years and span the presidencies of Dwight Eisenhower, John Kennedy, and Lyndon Johnson. During this period, John carried a number of different titles: “First Assistant,” and later “Assistant Attorney General.” He never made much of his titles; John was happy to be known simply as an attorney in the Department of Justice. John fully appreciated the importance of the private bar and its representation of individuals who claimed that their rights were denied. He believed these efforts accounted for much of the dynamic quality of American law. Yet John sharply differentiated the responsibilities of a lawyer in the Department

2 of Justice from those of a lawyer representing an aggrieved individual and was always mindful of the special responsibilities he shouldered because he represented the United States. The United States is the most unusual of all clients, in part because it has resources and power possessed by no other. Sometimes, the power seems greater to an outsider than it is. I worked for John in 1966 and 1967, and I marveled at the paucity of lawyers then in the Civil Rights Division – only about forty. In 1960, when John began his career with the Division, the number of lawyers was even fewer – only about twenty. Still, John was acutely aware of the unique power of the United States, not only because of its financial and material resources, but, perhaps more importantly, because of the special prerogatives that the United States possesses, such as its capacity to initiate criminal prosecutions or to seek injunctions against ongoing state proceedings. John understood that when he spoke, he was speaking for the nation and as a result, he went about his work with an added sense of responsibility and circumspection. Aside from any issues of power, John also understood that, because he represented the United States, his obligation to justice was absolute and unqualified. Although the motto inscribed on the Department of Justice building – “The United States wins when justice is done” – is familiar to many, John was one of those who truly believed it. Of course, the requirements of justice do not always reveal themselves. John knew that and was fully aware of the uncertainties of justice. John’s way of discovering the meaning of justice was not that of Plato. John had no taste for abstract reflection. Instead, he focused on a specific, concrete situation, and sought to find the principles of justice immanent in it. John

3 emphasized the facts and the importance of getting them right, absolutely right. “Facts, facts, facts” was his mantra. In truth, John worried about the law as much as the facts. He endlessly deliberated about the law with his staff, usually in his large, corner office, sometimes with Burke Marshall on the phone, after Burke had long left the Department. Now and then, I would get a call from John in the middle of the night to go over some point of law upon which he felt uneasy. Not only was John’s search for justice relentless, it was also sometimes brutal, when, for example, he firmly rejected, because it was not quite right, a brief or a complaint that the staff had worked on for days and days. No mistake about it – these rejections stung. But we soon got over our bruised feelings, and when we did, we marveled at John’s exactitude and respected him for it. I even enjoyed the teasing, which, I must admit, sometimes lasted for years. John had a passion for what might properly be called legwork. The Division was based in Washington, but John was insistent that the staff spend a great deal of time in the communities where rights were being violated and the Constitution neglected. He wanted the lawyers of the Division to see on a first-hand basis the caste system at work. He also wanted them to develop good working relationships with local officials, including the clerks of the federal courts who might someday be needed to keep their offices open after hours for a late filing. For these reasons, John reorganized the Division and distributed the lawyers largely along geographic lines. Most of the forty-some lawyers in the Division in the mid-sixties were assigned to the Southeast and Southwest Sections. The first covered Georgia and , the other Mississippi and Louisiana. A small handful of lawyers covered the rest of the country. John applied the same work ethic to himself. He was always in the field, even when he was Assistant Attorney General. Sometimes, he spent as much as

4

180 days a year on the road, gathering facts, getting to know the local communities under stress, and developing working relationships with local officials and leaders of the civil rights movement. John was always on the move. At one moment he was in Montgomery, then in Mobile, on to Jackson, then to New Orleans, back to Biloxi, and perhaps a stop in Houston before heading back to Washington. Even when he was in town, John worked well into the night and was the last to leave the office. The burden of all this on his family was enormous, sometimes even painful. It weighed heavily on him too. He loved his family, deeply, but always remained disciplined and focused on his work. He was driven not by a rigid understanding of the duties of office, but rather by the need he felt to see that justice was done. I began to work for John on the Thursday before Labor Day in the summer of 1966. On Friday he walked into my office and invited me to travel with him over the weekend to Montgomery, Alabama. While the prospect of explaining to my family how I might be spending the Labor Day weekend was terrifying, I immediately said yes, and off we went. We eventually made our way to the chambers of Judge Frank Johnson. What then transpired was remarkable – as far as I could tell, it had no precedent in anything that I was taught about the Federal Rules of Civil Procedure. John and Judge Johnson had a wide-ranging discussion about the pace of school desegregation throughout Alabama and what might be done to accelerate it. I sat by quietly, struck by the rapport between the two men and the authority that John conveyed, not just because he spoke for the nation, but also and perhaps more importantly, because of his devotion to justice. During the mid-sixties, Judge Johnson began the practice – also not contemplated by the Federal Rules – of issuing on his own accord orders that invited the United States, represented by the Department of Justice, to intervene in

5 civil rights cases pending before him – for the United States to participate as an amicus, but with almost all the rights of a party. This novel procedure, which should, I believe, be seen as a tribute to John, was soon adopted by other trial judges in the region. The high regard that Judge Johnson had for John was shared by the leading figures on the Court of Appeals for the Fifth Circuit. In 1967 I carried John’s briefcase to the oral argument in Jacksonville, Florida before the Fifth Circuit sitting en banc – a startling spectacle, all 15 judges, arrayed in two tiers. The Court was reviewing a decision of a panel of judges – led by Judge John Minor Wisdom – that had established a uniform school desegregation plan for the entire Circuit. At argument, James Nabrit of the NAACP Legal Defense Fund was pressed by one of the judges: “What are you asking for?” Nabrit’s answer entailed a lawyerly but very complicated analysis of the distinction between “integration” and “desegregation” and the precise role numerical goals should play in determining whether the assigned goal had been achieved. When John rose, he was asked the same question – “What are you asking for?” – but his answer transcended the controversies that Nabrit’s nuanced response had provoked. Borrowing a line from Judge Wisdom’s opinion for the panel, John declared that “the government wants not white schools and not schools for Negro children – but just plain schools.” When John spoke, the judges listened, and they did so in a way that was a tribute to his integrity and sense of fairness. The authority that John and the Division exercised was not to everyone’s liking. Of course, the defendants grumbled. More surprisingly, so did some of the NAACP lawyers. They resented John’s refusal to share the Department’s briefs with them prior to filing, even though they were also parties in the case and presumably on the same side. Similar frustrations were sometimes experienced by civil rights activists when they made demands on John that he felt he could not, as

6 a matter of principle, honor. Some demanded police protection and when that demand was denied – based on John’s view that the federal government had no police force – the consequences were sometimes tragic. The anger and resentment that the civil rights community sometimes felt toward the Division has been ignored or muted in recent years. I believe, however, that it is especially important to acknowledge these sentiments on this occasion, for it brings to light another quality of John’s – his courage. John always stood tall and straight, unwilling to bend to the passions of the day, and this remarkable resolve also stemmed from his sense of rectitude. Everyone at this service is surely familiar with the events of June 15, 1963, following the funeral of , when John, then only 42, wearing a white shirt and tie, sleeves partly rolled up, stood between a line of police officers, all of whom were white, with drawn weapons, facing, on the other side, an angry crowd of blacks, estimated to be in the hundreds, who had just come from Evers’s funeral. They demanded that Evers’s killer be found. As the crowd advanced on the police line, John stepped forward and placed himself into a space of about 50 feet between these two tense factions. He held his ground, turned toward the insistent crowd, raised his arms upward to the height of his shoulders, and, with open hands, gestured to the crowd in a way that urged it to stop advancing. At the moment of truth, as the bricks and bottles fell around his feet, John captured the essence of his being and made clear the source of his courage: “My name is John Doar – D-O-A-R. I am from the Department of Justice and as anybody around here knows, I stand for what is right. Medgar Evers would not want it this way.” The angry crowd melted, and began to disperse. There was life after the Civil Rights Division, thank God, a long life. John left the Division at the end of December 1967. He moved to New York to become the President of a non-profit charged with the redevelopment of Bedford-

7

Stuyvesant. During the same period, he also served as President of the New York City Board of Education. In 1974 he served as the Chief Counsel of the Impeachment Inquiry of the Committee of the Judiciary of the House of Representatives and, when that ended, John returned to New York and embarked on the private practice of law. In all these endeavors, John conducted himself much as he did during his years at the Civil Rights Division. The pressures and challenges were different, but the qualities of character and intellect that distinguished him in the civil rights era were always evident. Indeed, given the authority he engendered in that era, it was only natural that, when the nation faced yet another test of the rule of law, this one arising from the Watergate scandal, the House Judiciary Committee turned to John to head the investigation. As part of his staff, John recruited some of those who had been with him at the Civil Rights Division and he borrowed many of the ways of proceeding that had been developed during his days in the Division. Facts, facts, facts, and more facts. In all these positions of public trust, John led by example. Dorothy Landsberg recently made this observation, and in so doing she spoke for all of us who had been on his staff: We pushed ourselves in the way that he pushed himself. We measured ourselves in the way that he measured himself. It should also be said, however, that John taught by example, and that the lessons he taught can guide those who were not lucky enough to have worked for him. John’s name and his stories will become part of history and serve as an inspiration to anyone who seeks justice through law. More broadly, he will remain a model for anyone who wonders how they might lead a good and noble life. Indeed, I would say of John Doar what he often said of Burke Marshall: “He was the kind of man who only comes about every 600 years.”

8

John stepped forward at a crucial moment in American history and took a place – a very special place – among those who tried to make the near- revolutionary edict of Brown a living reality. He showed us what could be expected of an attorney, maybe any attorney, but certainly one representing the United States: an unqualified and absolute devotion to justice. In these troubled and much divided times, we must pause and reflect, and then return to principles that unite us – that still unite us. We must be clear about what justice requires, and then, as John so often did, summon the courage to make certain that justice is done.

9