The Lawyer in Society" Will Be Published by Texasbarbooks in February 2012

IN THE ARENA: THEODORE ROOSEVELT AND THE LAW

TALMAGE BOSTON, Shareholder Winstead PC 1201 Elm Street 5400 Renaissance Tower Dallas, Texas 75270 (214) 745-5462 (Direct) [email protected]

State Bar of Texas 28TH ANNUAL LITIGATION UPDATE INSTITUTE January 19-20, 2012 Dallas

CHAPTER 21

Talmage Boston is a shareholder in the Dallas office of Winstead PC. He is a past Director of the SBOT, and has served as Chairman of the SBOT's Litigation Section, its Council of Chairs, and its Annual Meeting Committee. He has been the recipient of the SBOT's Presidential Citation every year from 2005-2011. Talmage practices in the area of commercial litigation, and is certified (and has been recertified many times) in both Civil Trial Law and Civil Appellate Law by the Texas Board of Legal Specialization. He currently serves on the editorial board of the Texas Bar Journal, and In the last 3 years, has written 3 featured articles in the Texas Bar Journal on Abraham Lincoln, Atticus Finch, and Theodore Roosevelt. His book "Raising the Bar; The Crucial Role of the Lawyer in Society" will be published by TexasBarBooks in February 2012.

In the Arena: Theodore Roosevelt and the Law Chapter 21

TABLE OF CONTENTS

INSPIRATION ...... 1

ROOSEVELT AND THE LAW ...... 1

BULL MOOSE ...... 3

UNHAPPY ENDING ...... 5

LIFE LESSONS FOR LAWYERS ...... 6

POWERPOINT PRESENTATION ...... 9

President Theodore Roosevelt, 1903. Library of Congress, Prints and Photographs Division IN THE ARENA OSEVELT AND DORE RO THE LA THEO BY TALMAGE BOSTON W

ith the publication of the final volume of Edmund Morris’ trilogy on the life of Theodore Roosevelt, we now have a complete assess- Wment of our 26th president’s strengths and weaknesses. Examining the life of this non-lawyer, who spent his life operating in and around the law, provides insights and lessons for attorneys of every generation.

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INSPIRATION a.m. breakfast.” When he campaigned for president, he delivered When I started practicing law 33 years ago, one of my firm’s 30 whistle-stop speeches a day, keeping his energy up by shadow- partners displayed in his office the “Man in the Arena” excerpt boxing in the caboose. from Roosevelt’s 1910 speech at the Sorbonne: Roosevelt’s exuberance extended to his interactions with the It is not the critic who counts: not the man who points out law. Although never licensed as a lawyer, Roosevelt spent his life how the strong man stumbles or where the doer of deeds could in the arena of the law. have done better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and Law Student blood, who strives valiantly, who errs and comes up short again After graduating from Harvard College, Roosevelt attended and again, because there is no effort without error or short- Columbia Law School, where he was conspicuous for frequently coming, but who knows the great enthusiasms, the great devo- interrupting professors. Roosevelt quickly concluded that lawyers tions, who spends himself for a worthy cause; who, at the best, and judges preferred legalese to his notion of justice and quit law knows, in the end, the triumph of high achievement, and who, school after a single year. Auchincloss notes that Roosevelt was at the worst, if he fails, at least he fails while daring greatly, so deeply offended by the doctrine of caveat emptor. Morris con- that his place shall never be with those cold and timid souls cludes that Roosevelt lost interest in law school because he was who knew neither victory nor defeat. “impatient with logic,” intolerant of corporate lawyers’ “sharp practices,” and had no interest in the law’s arcane “intricacies.” Roosevelt’s words resonated with me during that formative time. They inspired me to make a name for myself in the arena Lawmaker of courtrooms. Yet my goal of fulfilling Roosevelt’s ideal was chal- Roosevelt planned to use his legal studies as a stepping-stone lenged just a few years later. My mentor, Walter Spradley, offered to politics. After quitting Columbia, he was elected to the New me the chance to leave the firm, which would have required shift- York State Assembly at the age of 23. Roosevelt immersed him- ing my practice from litigation to transactional work. When I self in legislation. To be recognized on the House floor, the 5’8” told Walter I wanted to stay, he said, “I understand your deci- legislator would jump up and stand on his chair, calling out, sion, but let me tell you something. My experience in watching “Mr. Speaker! Mr. Speaker!” lawyers over the last 40 years is that litigators are like pilots. I know a lot of old pilots, and I know a lot of bold pilots, but I Prosecutor don’t know a lot of old, bold pilots.” Following three terms in the legislature, Roosevelt was Since that conversation, I have enjoyed three decades in the appointed U.S. Civil Service commissioner (1889 to 1895) and litigation arena. Having seen scores of good lawyers flame out, then New York City police commissioner (1895 to 1896). In it occurred to me that exploring Roosevelt, my inspiration as a both positions, he acted as an investigator, enforcer of laws, and young lawyer, might be useful for assessing the effects of per- prosecutor. Unburdened by judges or evidentiary rules, he forming for decades at an intense level. I knew Roosevelt had became known for cross examinations so forceful he often died young, which seemed to bolster Spradley’s observation that “TR” had not lived to be an old, bold pilot. Although there are dozens of outstanding Roosevelt biogra- Roosevelt and John Muir on Glacier Point, Yosemite Valley, Calif., 1906. phies, I have focused on three authors: Edmund Morris, who Library of Congress, Prints and Photographs Division received a Pulitzer Prize for The Rise of Theodore Roosevelt (1979) and followed it with Theodore Rex (2001) and Colonel Roosevelt (2010); Louis Auchincloss, whose concise Theodore Roosevelt (2001) is written from the perspective of an author trained as a lawyer; and Douglas Brinkley, a professor of history at Rice University, whose The Wilderness Warrior: Theodore Roosevelt and the Crusade for America (2009) incorporates the persuasive psy- chiatric assessments of Kay Redfield Jamison. (Morris and Brink- ley will be presenting during the State Bar of Texas Annual Meeting, June 23–24 in San Antonio, as will another esteemed Roosevelt biographer, H.W. Brands.)

ROOSEVELT AND THE LAW Everything Roosevelt did, he did ferociously. When he wrote, he did so at frenetic pace — whipping out 25 letters in a morn- ing and entire books in just weeks. In the Dakota Territory, according to Morris, Roosevelt earned the respect of fellow cow- boys as one who “rode a horse a hundred miles a day, stayed up all night on watch, and was back at work after a hastily gulped 3:00 www.texasbar.com/tbj 2 Vol. 74, No. 6 • Texas Bar Journal 509 In the Arena: Theodore Roosevelt and the Law Chapter 21 In the Arena: Theodore Roosevelt and the Law BOSTON interrupted witnesses with new questions before they could manipulation of men.” The president delighted in being center complete their responses. Morris relates Roosevelt’s self-right- stage — there were no rules, restrictions, lawyers, or judges to eous attitude as he remembered it later in life: “Justice was jus- inhibit his pursuit of final resolution. tice because I did it.” Auchincloss acknowledges Roosevelt’s preference for operating in a mode disconnected from law and lawyers by relating U.S. Conflict Strategist Supreme Court Justice Oliver Wendell Holmes’ response to crit- At 38, Roosevelt was named assistant secretary of the U.S. icism leveled at him by Roosevelt after Holmes had dissented Navy. He expanded the fleet of American warships while his supe- in an opinion. When Roosevelt compared the jurist’s backbone rior alternately suffered from illness and took long vacations. to a banana, Holmes said it didn’t bother him because he Despite aggressive posturing, Roosevelt avoided international agreed with an unnamed senator’s quip: “What the boys like altercations during his first year, but soon helped to engineer the about Roosevelt is that he doesn’t give a damn about the law.” start of the Spanish-American War. In situations involving poten- Before leaving the White House, Roosevelt received a rare tial conflict, Roosevelt adhered to his famous slogan: “Speak softly comeuppance in the law. After Joseph Pulitzer’s newspaper crit- and carry a big stick.” icized him for making misrepresentations about his policy in Panama, Roosevelt directed Knox to sue Pulitzer for criminal Combatant libel. The defendant prevailed easily. Roosevelt left the Navy in 1898 to fulfill his greatest ambi- tion — to fight in a war. He led the Rough Riders up San Juan Party to Lawsuits Hill, the turning point in the liberation of Cuba from Spain. The In the decade after Roosevelt left the White House, he was a taste for battle would remain with Roosevelt for the rest of his party to two libel cases, both of which resulted in highly publi- life. He referred to the charge up San Juan Hill as the “greatest cized jury trials, and both of which he won. The first trial took day of my life.” place in 1913 in Michigan. George Newett, publisher of a small- town newspaper and lifelong Republican, felt betrayed when Client Roosevelt left the GOP in 1912 to pursue another presidential Returning home a national hero, Roosevelt ran for governor of bid as head of the Bull Moose ticket. (Roosevelt was disillu- New York. His campaign nearly imploded over his having sioned with his handpicked successor, William Howard Taft.) sworn on his tax return that he was a resident of Washington, Newett wrote a scathing editorial in which he claimed Roo- D.C. Roosevelt retained Wall Street lawyer Elihu Root to take sevelt “lies and curses in a most disgusting way; he gets drunk, whatever steps were necessary to meet eligibility requirements. too, and all his intimates know it.” Ultimately, Newett took the Using the law’s “intricacies,” Root’s “sharp practice” in finding a witness stand and acknowledged that his statements had been favorable interpretation of the word “resident” won the day. Roo- based on unsubstantiated hearsay; that he had no witnesses to sevelt was elected and served two years as governor before Presi- support his claims; and that he had written the editorial solely dent William McKinley selected him as his running mate in 1900. for political purposes. Roosevelt, his name restored, received a favorable verdict of six cents. Litigation-Instigator and Mediator Two years later, Roosevelt came to trial as a defendant after McKinley was assassinated six months into his second term, being sued for libel by New York Republican Party leader William making Roosevelt the nation’s youngest president. On the Barnes, who sought $50,000 in damages. The case stemmed from domestic front, realizing the value of skilled lawyers when con- Roosevelt’s statement in 1914 that Barnes was part of “New York’s fronting complicated legal issues, Roosevelt relied on Philander alliance between crooked business and crooked politics.” After Knox as attorney general to bust trusts and destroy monopo- a five-week trial, the jury deliberated almost two days before lies. When a coal workers’ strike in the winter of 1902 threat- finding in favor of the former president. Morris vividly describes ened lives, Roosevelt jumped into the arena and threatened to the trial and establishes that although Roosevelt’s position was use the big stick of military intervention to take over the mines. less than airtight, his courtroom presence and personality spell- The strong-armed approach worked, spurring owners and min- bound the jury, allowing him to prevail because he was “a defen- ers to agree to settle through binding arbitration. dant beyond the reach of ordinary justice.” Roosevelt’s skill at resolving disputes was extended into the international arena when he used the big stick of U.S. naval power BULL MOOSE to pressure Germany into backing away from attacking Venezuela. Throughout his life, when dealing with laws, lawyers, or law- In 1903, Roosevelt provided sufficient resources to enable Panama suits, Roosevelt was convinced everyone should follow whatever to gain independence from Colombia, which enabled construc- he thought to be the best and most efficient course of action. In tion of the Panama Canal and U.S. control over the Canal Zone. Morris’ words, Roosevelt was “congenitally unable to question Russia and Japan selected Roosevelt to help bring an end to the rightness of his own decisions.” the Russo-Japanese War. After months of negotiations, Roo- In Roosevelt’s post-presidency years, however, his head- sevelt succeeded, in Morris’ words, by “imposing his singular strong opinions came into conflict with existing law. In 1910, charge upon plural power … and using his sheer force of moral following a 10-month safari in Africa and a heady tour of purpose, clarity of perception, mastery of detail, and benign Europe in which he was greeted with pomp and ceremony, Roo-

510 Texas Bar Journal • June 2011 3 www.texasbar.com In the Arena: Theodore Roosevelt and the Law Chapter 21 In the Arena: Thedore Roosevelt and the Law BOSTON sevelt returned to the United States and began advocating for what he called the “New Nationalism,” the primary objective of which was to eliminate big business’ control over politics. Success would require massive federal regula- tion that would conflict with existing statutes and common law property rights. For Roosevelt, the answer was simple — repeal the statutes and change the common law to favor the rights of individuals over the rights of corporations. Before a crowd of 30,000 in Kansas in 1910, Roosevelt proclaimed, “If we do not have the right kind of law and the right kind of administration of the law, we cannot go forward as a nation. … Our public men must be genuinely progressive.” In one paragraph, Morris succinctly addresses Roosevelt’s chal- lenge to the American legal system: In no way did Roosevelt seem more radically threatening than in his moralistic attitude toward justice. If constructionists could believe their ears and eyes, he proposed to subject the Constitution itself to moral review. “When I see you,” [longtime friend] Henry Cabot Lodge wrote on 5 September, “I shall want to have a full talk in regard to this matter of court decisions, about which I admit I am very conserva- tive. … The courts are charged with the duty of saying what the law is, not what it ought to be, and I think to encourage resistance to the decisions of the courts tends to lead to a disregard of law.”

Roosevelt followed this speech with others, all critical of the existing legal framework. Morris suggests the former president’s perspective flowed naturally from his lifetime attitude toward the law: Shadows over substance, words Roosevelt and U.S. Forest Service Chief Gifford Pinchot on the deck of the Mississippi, 1907. rather than deeds, precedents ham- Library of Congress, Prints and Photographs Division pering change, technical injustice pre- cluding practical justice: Roosevelt had been attacking statutory pedantry since his days as a law child sacrifice. He had gone so far as to suggest, in his eighth student at Columbia University. … As President he insisted [and final] annual message to Congress, that the judicial branch that courts, no less than churches, were places where plain of government was actually a branchlet of the legislative. morals had to be expounded. Judges should no more sanc- tion an abusive policy, in the name of the Fourteenth Amend- Despite criticism from friends Henry Cabot Lodge and Elihu ment, than priests should cite the Old Testament in favor of Root, Roosevelt continued with his crusade against American www.texasbar.com/tbj 4 Vol. 74, No. 6 • Texas Bar Journal 511 In the Arena: Theodore Roosevelt and the Law Chapter 21 In the Arena: Thedore Roosevelt and the Law BOSTON jurisprudence. He wrote an article for The Outlook calling for more radical. Roosevelt advised the public that earlier attempts popular referendums to recall and remove from precedent judicial to control the power of large corporations by means of antitrust decisions. Roosevelt also began urging that voters be given the lawsuits had been unsuccessful, and past “efforts at prohibiting right to vote federal and state judges off the bench. Roosevelt all combinations had substantially failed. The way out lies, not expounded on his philosophy in a speech to the Ohio constitu- in attempting to prevent such combinations, but in completely tional convention in 1912: controlling them in the interest of the public welfare.” I do not believe in adopting the recall save as a last resort. … But either the recall will have to be adopted or else it will have UNHAPPY ENDING to be made much easier than it now is to get rid, not mere- Roosevelt’s alarming speeches during his presidential campaign ly of a bad judge, but of a judge who, however virtuous, has of 1912 comport with Auchincloss’ assessment of mental dete- grown so out of touch with social needs and facts that he is rioration: “That is something always to keep in mind in any eval- unfit longer to render good service on the bench. It is non- uation of Roosevelt: his reason was constantly at work, however sense to say that impeachment meets the difficulty. … unperceived, to balance the wildness of his words. At least until When a judge decides a constitutional question, when he the last few years of his life.” decides what the people as a whole can and cannot do, the Roosevelt’s downward spiral manifested itself in other ways. people should have the right to recall that decision if they Morris mentions the following: think that it is wrong. We should hold the judiciary in all • Roosevelt stuffed himself three times a day with huge respect, but it is both absurd and degrading to make a fetish meals (breakfast alone usually consisted of eating 12 fried of a judge or of any one else. eggs and drinking a gallon of coffee) and gained consid- erable weight; When President Taft, a constitutional law scholar who would • After being shot in the chest by an assassin in October later become chief justice of the U.S. Supreme Court, learned 1912, he insisted on giving a speech (lasting 80 minutes) of the speech, he pulled no punches: while blood flowed through his shirt and the right side One who so lightly regards constitutional principles, and espe- of his body turned black; cially the independence of the judiciary, one who is natural- • Overweight and out of shape, TR took an extended trip ly so impatient of legal restraints, and due legal procedure, and to South America in 1914, where he confronted pira- who has so misunderstood what liberty regulated by law is, nhas, anacondas, blood-sucking bats, and bloodthirsty could not be safely endorsed with successive [sic] presidential pium flies before contracting malaria, from which he terms. I say this sorrowfully, but I say it with the full convic- never fully recovered; tion of the truth. • He repeatedly and publicly called President Woodrow Wilson a “coward” for his delay in injecting American Auchincloss identifies this period as a turning point in Roo- military forces into the battlefront of World War I; sevelt’s life. The former president became increasingly vindic- • When Wilson finally committed the United States to tive and intolerant of opposition. He lost his bearings and war, Roosevelt, though sickly, tired, and old beyond his entered a state of disequilibrium, increasingly seeing himself as years, begged the president to allow him to organize a the messianic messenger of a semi-religious movement, and a new regiment of Rough Riders to go to the front; person at war with law, lawyers, the rule of law, and the Amer- • When Wilson refused Roosevelt’s offer to fight, Roo- ican legal system. sevelt pulled all his political and military strings in order Roosevelt’s longtime friend and legal adviser, Elihu Root, to get his four sons to the front lines of battle, where two joined Taft in mourning his former boss’ loss of emotional and were seriously wounded and the youngest, Quentin, was intellectual balance. Auchincloss quotes Root’s letter to Roo- killed; and sevelt’s Harvard classmate, former Secretary of State Robert • On the day he learned of Quentin’s death, Roosevelt Bacon, to demonstrate his extreme grief over the former presi- insisted on fulfilling a commitment to give a speech to dent’s demise into the dark side: the New York State Republican Convention. Theodore has gone off on a perfectly wild program, most of which he does not really believe in, although at this moment After first indentifying his subject’s visible turn for the worse he thinks he does. … Of course, Lodge, George Meyer, Stin- in 1912, Auchincloss gives his perspective on Roosevelt’s son and myself, who cannot possibly go with Roosevelt in his enhanced demise, as demonstrated by his obsession with hav- departure, have been feeling very gloomy over the situation. ing himself and his sons join the war effort in 1917: … I wish to fall upon your neck and weep. I wish to curse His violent efforts as an ill and elderly man to get to the and swear and say things which I would not have repeated for trenches in World War I and his posting of his sons to battle the world. all seem to stem from a barely rational compulsion. It is one thing for a father to salute his sons as they march off to fight As Roosevelt left friendships behind and commenced his for the right; it seems to me quite another to appeal, as he campaign as the Bull Moose presidential candidate, his speeches did, using all of his immense influence and prestige, to mili- attacking the effectiveness of the American legal system became tary authorities to speed them to the front.

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On Christmas Eve, 1918, knowing his days were numbered, exuberance phase brought many wonderful gifts; but she Roosevelt told his sister Corinne that he had “kept the promise warned there was also a sharp-edged downside. Living by that I made to myself when I was twenty one — that I would throwing up skyrockets — as P.T. Barnum once put it — work myself up to the hilt until I was sixty, and I have done it.” wore one down to nothing. No sleep, for example, wasn’t Thirteen days later, Roosevelt died. His death certificate stated good for the heart or vital organs. Only by exhausting him- the cause of his death was “an embolism of the lung, with mul- self in physical activity — like climbing Mount Katahdin or tiple arthritis as a contributing factor.” Morris suggests that what ice skating on the Charles River in a winter storm — could really killed him was a broken heart caused by six months of an exuberant manic like Roosevelt turn himself off. grieving over Quentin. During Roosevelt’s White House years, Irving LIFE LESSONS FOR LAWYERS What can lawyers learn from Roosevelt’s life? Fisher, a fitness and nutritional expert, said, Although life in the arena can lead to achieve- “It is clear to me that the president is running ment, drama, and exhilaration, it can become his machine too hard. … In another decade or so intoxicating that one loses one’s bearings, and so exhausting that one self-destructs men- two … I would almost risk my reputation as a tally and physically. It’s why bold pilots don’t prophet in predicting that he will find friction live to be old pilots. in the machine, which will probably increase Roosevelt led a remarkable life in the arena — scholar, cowboy, naturalist, hero, president, to almost the stopping point.” and international mediator. Arguably, Roo- sevelt achieved more good things for the country than any other Morris provides a prophetic observation from Henry James: American president. Historians consistently rank him among “A wonderful little machine destined to be overstrained perhaps, the nation’s greatest presidents. but not as yet, truly, betraying the least creak. … It functions Yet after leaving the Oval Office, the glory Roosevelt had accu- astonishingly, and is quite exciting to see.” During Roosevelt’s mulated went to his head. His egotistical comment upon leaving White House years, Irving Fisher, a fitness and nutritional expert, the White House became a self-fulfilling prophecy, “No man in said, “It is clear to me that the president is running his machine American public life has ever reached the crest of the wave as I too hard. … In another decade or two … I would almost risk appear to have done without the waves breaking and engulfing my reputation as a prophet in predicting that he will find fric- them.” With each successive year, he became more and more out tion in the machine, which will probably increase to almost the of control. Inevitably, the waves broke and engulfed him. Auch- stopping point.” Roosevelt’s life in the arena can be compared incloss cites an ominous warning from Columbia University with a fine car being steered by a mad scientist obsessed with President Nicholas Murray Butler: “You will find it harder to be keeping the pedal floored. The driver may exhilarate at navigat- an ex-president than a president.” ing at dizzying speeds — for a while. Brinkley has endorsed Dr. Kay Redfield Jamison’s psychi- The second lesson for lawyers is that any person, no matter atric assessment of Roosevelt in her book Exuberance: The Pas- how spectacular his career, no matter how dynamic his person- sion for Life (2004). Jamison presents Roosevelt as the poster ality, who loses respect for the rule of law also loses his moral child for both the bright and the dark sides of an exuberant compass. Roosevelt’s disrespect for the law began with his drop- personality. Yes, his tireless passion for life in the arena made ping out of Columbia Law School. In quasi-legal positions him “the most vital man on the continent,” but “exuberance where he called the shots without restrictions, Roosevelt operat- when indiscriminately apportioned is anarchical” and “mania is ed from the vainglorious perspective that “Justice was justice exuberance gone amok.” because I did it.” Brinkley details Roosevelt’s joy at creating jus- In The Wilderness Warrior, Brinkley does a superb job of tice outside of courtrooms when he expanded efforts to protect summarizing Jamison’s assessment of Roosevelt’s exuberance: wildlife: Roosevelt is exhibit A for this condition. His set of symptoms Roosevelt asked, “Is there any law that will prevent me from — propulsive behavior, deep grief, chronic insomnia, and an declaring Pelican Island a Federal Bird Reservation?” The all-around hyperactive disposition — demonstrate both the answer was a decided “No,” the island, after all was federal manic and the depressive phases of bipolar disorder. Too property. “Very well then,” Roosevelt said with marvelous often, Dr. Jamison argued, people mistakenly thought manic quickness. “I so declare it.” depression meant despondence and withdrawal from human endeavors. Usually it does. But those afflicted with exuberance As president, Roosevelt often found himself in unpleasant go in the opposite direction, behaving as relentless human circumstances, where laws, rules, and statutes were binding and blowtorches who are unable to turn down their own flame. lawyers and judges were in place to make sure he obeyed them. Naturally, Roosevelt favored a judiciary that accorded with his Diagnosing Roosevelt’s medical condition more than eighty personal views. Auchincloss provides perspective on Roosevelt’s years after his death, Jamison claimed that the highs of the attitude toward federal judges and constitutional law: www.texasbar.com/tbj 6 Vol. 74, No. 6 • Texas Bar Journal 513 In the Arena: Theodore Roosevelt and the Law Chapter 21 In the Arena: Thedore Roosevelt and the Law BOSTON

He expected any judge he appointed to do his best to carry Most Americans, including most lawyers, have an idealized out the law as interpreted by the party in power. … His atti- and romanticized view of Theodore Roosevelt as one of the tude toward constitutional law was that of any progressive faces atop Mount Rushmore. He was an amazingly compelling chief executive whose primary concern was to see legislation and successful public figure, justifiably recognized as one of judicially interpreted in ways to foster his social programs. America’s heroes, whose forceful personality and dramatic … When TR observed to a friend that he always wanted a achievements still captivate biographers and readers a century great constitutional lawyer at his side, and the friend point- after his death. ed out that he had always had the services of William Yet Roosevelt was more than his noteworthy achievements; Howard Taft and Elihu Root, both undisputed authorities he was someone whose full story is both deeply troubling and in the field, he retorted, “Yes, but they don’t always agree instructive for the legal profession. Roosevelt never embraced with me.” the rule of law. The older he got, and the more burned out his sensibilities became, the more Roosevelt’s manic and self-right- Like most presidents, Roosevelt wanted federal courts to eous personality turned dark and the less he respected the Amer- rule and the Constitution to be interpreted one way — his way. ican legal system. In the end, “the wonderful little machine” Unlike most presidents, when judges saw issues differently than Henry James had so admired crashed and burned in infamy. he did, Roosevelt believed they were purposefully betraying his trust. Small wonder that after leaving the White House, as judgments and appellate opinions were rendered by various courts against his desires, Roosevelt attempted to persuade the TALMAGE BOSTON American electorate to vote for the repeal of those errant deci- is a shareholder in Winstead P.C. in Dallas. He serves on the sions and for the immediate removal from the bench of the State Bar of Texas Board of Directors and is a past chair of the State Bar Litigation Section. This article is adapted from his judges who had authored them. Fortunately, Americans reject- upcoming book, Raising the Bar: The Crucial Role of the Lawyer ed Roosevelt’s pitch for personal power over the rule of law. in Society, to be published by TexasBarBooks.

SchoolohoSc ofoo LawLal wf DEAN SEARCH

Oklahoma City University invitesinvites applications and nominations for the position of Dean of the School of LaLawLaw.w.

Applications areare invitedinvited fromfrom legal educators and administradministratorsators and frfromom distinguished lawyerslalawywyers and jurists with experience or demonstrateddemonstrated interestinterest in legal education. The position will be aavailableavvailable JJulyuly 1, 2011, but the starting date mamayy be adjusted to accommodate prior commitments. ReReviewvie w of applications will begin immediately and continue until the position is filled. ToTo ensureensure considerconsideration,ation, applications should be submitted bbyy JJuneune 15,y 15, 2011. F Foror mor moree information, please visit our dean searsearchch website at wwwwww.okcu.edu/lawdeansearch..okcu.edu/lawdeansearch.

Candidates araree asked to submit a curriculum vitae, a list of at least thrthreeee prprofessionalofessional rreferences,ences,ences,efer and a letter describing the candidate’candidate’ss qualifications for the position with specific rreferenceeference to the rresponsibilitiesesponsibilities and attributes described in the Leadership Statement availableaavvailable on the website. Applications should be submitted online at wwwwww.okcu.edu/lawdeansearch..okcu.edu/la.okcu.edu/lawdeansearwdeansearch. Applications, nominations and inquiries will be kept strictly confidential. ReferReferencesences will be contacted only with applicant approval.al.voappr Nominations or inquiries mamayy be sent to:

Professor Paula Dalley ChairChair,, Dean Search Committee Oklahoma City University School of Law 2501 N. Blackwelder AAvenuevenue Oklahoma CityCity,, OK 73106 405-208-5224 wwwwww.okcu.edu/lawdeansearch.okcu.edu/lawdeansearch [email protected] OCU pledges to recruit, select and promote diversity by providingviding equalityequality of opportunityopportunity ftunit foror all personspersons.. LA22311

514 Texas Bar Journal • June 2011 7 www.texasbar.com

In the Arena: Theodore Roosevelt and the Law Chapter 21

THE LAWYER: THE PERSON IN THE ARENA

Litigation Update Institute 2012 Litigation Section of State Bar of Texas

Januaryy, 20, 2012

Talmage Boston [email protected]

9 In the Arena: Theodore Roosevelt and the Law Chapter 21

It is not the critic who counts: not the man who points out how the strong man stumbles or where the doer of deeds cou ld ha ve do ne bette r. The c red it be lo ngs to t he man who is actually in the arena, whose face is marred by dust and sweat and blood, who strives valiantly, who errs and comes up short again and again, because there is no effort without error or shortcoming, but who knows the great enthusiasms, the great devotions, who spends himself for a worthy cause; who, at the best, knows, in the end, the triumph of high achievement, and who, at the worst, if he fails, at least he fails while daring greatly, so that his place shall never be with those cold and timid souls who knew neither victory nor defeat.

--Theodore Roosevelt--

10 In the Arena: Theodore Roosevelt and the Law Chapter 21

11 In the Arena: Theodore Roosevelt and the Law Chapter 21

Byyg far the most useful and generally apppplicable variant of the species, however, is the lawyer. He is the lubricant of society’s essential machinery, making sure as far as possible that its parts mesh rather than clash. Or, to the vary the metaphor, he is a sort of universal interpreter; making the words of one speaker intelligible to another.

--William A. Rusher--

12 In the Arena: Theodore Roosevelt and the Law Chapter 21

Steve Martini Lisa Scottoline

David Baldacci

Scott Turow John Grisham The Lawyer as Novelist Richard North Patterson

13 In the Arena: Theodore Roosevelt and the Law Chapter 21

Ken Starr

The Lawyer Bill Powers as Higher Education Leader

Mark Yudof

14 In the Arena: Theodore Roosevelt and the Law Chapter 21

Warren Christopher

James Baker The Lawyer Hillary Clinton as Secretary of State

15 In the Arena: Theodore Roosevelt and the Law Chapter 21

Mayor Phil Hardberger

Mayor Bill White Ron Kirk The Lawyer as Big City Mayors

16 In the Arena: Theodore Roosevelt and the Law Chapter 21

Lloyd Blankfein

Charles Munger Trevor Rees-Jones The Lawyer as Business Leader

17 In the Arena: Theodore Roosevelt and the Law Chapter 21

Paul Tagliabue

David Stern Bowie Kuhn The Lawyer as Sports Leader

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Jeffrey Toobin James Stewart Roger Cossack

The Lawyer as Media Commentator

Nancy Grace Charlie Rose

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Kay Bailey Hutchison John Cornyn

The Lawyer as U.S. Senator from Texas

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William Sessions Pete Geren Harriet Miers

The Lawyer as U.S. Government Leader

Barbara Jordan

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Tips for dealing with the stress of being the person in the arena: the lawyer

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1. When you have success, d’tltittdon’t let it go to your h hdead.

“A lawyer needs ego. It is one’s armor. A person’s ego gets things done . . . if kept under control.” Leon Jaworski

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Richard Nixon Bill Clinton

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John Edwards Eliot Spitzer

Richard “Dickie” Scruggs

25 In the Arena: Theodore Roosevelt and the Law Chapter 21

2. Work hard; never coast - develop your consequential talents -

“For a lawyer to have a successful career, he better find a good fit between something he’s good at (so he can make part)dtner) and somethi thihng he enj oys d dioing (so he can go home content at night). When lawyers fail to find an intersection of skill and interest,,y they leave the practice of law burned out or bored.”

--James A. Baker, III--

26 In the Arena: Theodore Roosevelt and the Law Chapter 21

3. Keep your inbox full –

if not w ith billa ble work d uri ng slow times, then engage in something productive that uses your skills –

as a speaker, a writer, an advocate, or anything else that uses your talents.

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4. Leave your work at the office.

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5. Study those who burned out – comparedtd to those w ho ha dld long, productive careers:

Theodore Roosevelt v. Leon Jaworski and James Baker

• Belief in a higgpher power • Vacation retreats – clear your head • Moderate exercise

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6. Hold tight to family and friends .

“If your children don’t have successful lives , nothing else matters.” --Jackie Kennedy Onassis--

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7. Hobbies, travel.

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8. Do things for others – Civic/Bar Contributions

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9. Keeppypp money in perspective.

Watch your debt – We all know good lawyers who have taken stupid risks and had to file bankruptcy.

Plan for retirement.

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10. Feel great about your partners and associates. Mentor – Encourage

“Question: How can you tell when a person is in need of encouragement? Answer: He’s breathing.”

--Truett Cathy-- Founder, Chick-fil-A Restaurants

34 In the Arena: Theodore Roosevelt and the Law Chapter 21

“The life of the law has not been logg;ic; it has been experience….It is required of a person to share the passion and action of his time, at peril of being judged not to have lived.”

--Oliver Wendell Holmes, Jr.-- (1841 – 1935)

35 In the Arena: Theodore Roosevelt and the Law Chapter 21