The opportunity to present the Association's Thurgood Marshall award to Abner Mikva is especially gratifying because it gives me an opportunity to reminisce about friendships that Maryan and I especially cherish. They include, not only Thurgood and Abner, but also our special regard for Cissy Marshall and Zoe Mikva, both of whom would easily qualify for an ABA "Wonderful Person" award. Because I first saw Thurgood in action before I even met Abner, I shall begin with a brief comment on my memories of him as an advocate and a colleague.
On Thursday, January 8, 1948, Thurgood appeared in the Supreme Court to argue that the Oklahoma Law School's refusal to admit Ada Sipuel, a female applicant, to its Freshman Class violated the Equal Protection Clause of the 14th Amendment. I was then serving as a law clerk to Wiley Rutledge, and witnessed the proceeding from one of the cane chairs on the South side of the courtroom. Thurgood was respectful, forceful and persuasive - so persuasive that on the following Monday - only four days after the argument - the Court unanimously ruled in Sipuel's favor. Many years later I learned that she was not only an excellent student, but was welcomed by her classmates who did not agree with the exclusionary policy that the State had unsuccessfully tried to defend. My source is one of those classmates with whom I now play golf on a regular basis.
While his victory in Brown v. the Board of Education of Topeka, Kansas may well be primarily responsible for the recognition of Thurgood Marshall as a national hero, I am persuaded that his years of dedicated advocacy in countless trial court proceedings in hostile surroundings provide even stronger evidence of his heroic contribution to the cause of civil rights and equal justice than his success as an appellate advocate. His vast experience as a trial lawyer gives especial credence to opinions that he later delivered as a member of the Supreme Court. For example, his career informed his view that peremptory challenges are an unacceptable source of arbitrariness - a view recently endorsed by Justice Breyer in his thoughtful concurrence in Miller-El v. Dretke - and his consistently expressed view that capital punishment should never be administered in a civilized society.
Thurgood's rejection of the death penalty rested on principles that would be controlling even if error never infected the criminal process. Since his retirement, with the benefit of DNA evidence, we have learned that a substantial number of death sentences have been imposed erroneously. That evidence is profoundly significant - not only because of its relevance to the debate about the wisdom of continuing to administer capital punishment, but also because it indicates that there must be serious flaws in our administration of criminal justice. Many thoughtful people have quickly concluded that inadequate legal representation explains those errors. It is true, as many have pointed out and as our cases reveal, that a significant number of defendants in capital cases have not been provided with fully competent legal representation at trial. That, however, is by no means the only defect in the system. Indeed, some of the best lawyers in the country have spent countless uncompensated hours in capital litigation, not only in post-conviction and appellate work, but also at the trial level. The profession can be justly proud of their work. My review of many trial records during recent years has, however, persuaded me that there are other features of death penalty litigation that create special risks of unfairness.
In many of these cases the outrageously brutal facts cry out for retribution. In close cases it must be extremely difficult for jurors to resolve doubts in favor of permitting a possible perpetrator of a heinous crime to go free. Gruesome facts pose a danger that emotion will play a larger role in the decisional process than dispassionate analysis.
Two aspects of the process of selecting juries in capital cases are troublesome. In case after case many days are spent conducting voir dire examinations in which prosecutors engage in prolonged questioning to determine whether the venire person has moral or religious scruples that would impair her ability to impose the death penalty. Preoccupation with that issue creates an atmosphere in which jurors are likely to assume that their primary task is to determine the penalty for a presumptively guilty defendant. More significantly, because the prosecutor can challenge jurors with qualms about the death penalty, the process creates a risk that a fair cross-section of the community will not be represented on the jury.
Two aspects of the sentencing process tip the scales in favor of death. The fact that most of the judges who preside and often make the final life-or-death decision must stand for re-election creates a subtle bias in favor of death. Moreover, the admissibility of victim impact evidence that sheds absolutely no light on either the issue of guilt or innocence, or the moral culpability of the defendant, serves no purpose other than to encourage jurors to decide in favor of death rather than life on the basis of their emotions rather than their reason. It was this issue that Thurgood addressed in his dissent in Payne v. Tennessee on the last day of his service on the Court.
Thurgood's entire career provides us with compelling evidence concerning the values of diversity. These values are also reflected in Abner Mikva's background and career. His grandparents and parents came to America from a small village on the Polish-Ukranian border. While his grandfather was deeply religious, his father was convinced that religion was the "opiate of the masses". Since one of Abner's daughters is now a rabbi, it is obvious that tolerance in matters of faith is a family characteristic.
Abner's own remarkable achievements are evidence of his diverse talents. In academia, he has been a success both as a student - having been elected to Phi Beta Kappa and to the Order of the Coif, having served as editor-in-chief of the University of Chicago Law Review and as a law clerk to a Supreme Court Justice - and as a teacher - having taught at such esteemed institutions as New York University, Georgetown, Pennsylvania, Northwestern, Illinois, and the University of Chicago. In private practice, he served on the Board of Managers of the Chicago Bar Association and was a partner of Arthur Goldberg, a former Supreme Court Justice. Most notable, however, is Abner's commitment to public service as exemplified by his unusual accomplishment of earning public acclaim not only when he served in the Illinois General Assembly, but in all three branches of the Federal Government.
Most recently, Abner made his contribution to the Executive Branch while serving as counsel to President Clinton. Because the work performed in that capacity is largely privileged, I simply assume that it reflected the same high level of excellence that had characterized Abner's earlier career.
I can, however, speak with a bit more insight about Abner's career as a circuit judge and as the Chief Judge of the Court of Appeals for the District of Columbia. In this capacity, Abner's accomplishments, both professionally and personally, were just as inspiring. During his tenure, Abner wrote more than his share of important opinions but one was of particular import to me this Term when our Court was asked to resolve a long standing conflict among the circuits over the question whether the Federal Insecticide and Rodenticide Act had preempted most state court tort litigation involving the sale of defective pesticides. On the one hand was Abner's lonely opinion for the DC Circuit holding that Congress surely had not intended its regulation of these dangerous substances to displace a vast area of settled state law; on the other hand, most of the federal courts passing on the question had come out the other way, attaching no significance to the absence of any evidence in the extensive legislative history that Congress intended such an important and unlikely change in the law. The ability to borrow both Abner's reasoning and some of his language simplified my task in writing the opinion that endorsed the DC Circuit's construction of the statute.
But Abner's intellectual rigor was not all that distinguished him as a jurist. Justice Ginsburg, a former colleague of Abner's on the Court of Appeals, has provided me with an example of how Abner, as the Chief Judge of the Court, treated unpopular litigants. At a time when the Federal Courts of Appeals were reducing opportunities for oral argument, Abner adhered to the position that if a litigant - even one appearing pro se - wanted her day in court, she should have it. One such litigant complained that high ranking federal officials had commandeered outer space demons who were attacking her person. To secure her survival, she wore a helmet, protective goggles and several layers of clothing. Not unreasonably, two members of the panel considered her appeal a candidate for dismissal without oral argument, presumably because the relief she sought could only be granted by an authority higher than any federal judge. When Abner concluded that her request to be heard should be honored, his two colleagues insisted on the presence of a nurse, fearing that she might suffer an attack (either from unworldly assailants or from heat stroke) while presenting her argument. The nurse attended but her services were not needed. The well-wrapped woman received a sympathetic hearing in her first face-to-face encounter with the judges who ruled on her complaint. Her demons did not vanish, but she derived obvious satisfaction from the court's willingness to listen to her.
Unfortunately, his kind demeanor was no help to Abner when he first entered the legislative branch at the beginning of his career. In fact, his career as a legislator had a rather inauspicious beginning. One evening in 1948 he walked into the office of the Democratic War Committeeman and told him that he wanted to do volunteer work for Adlai Stevenson and Paul Douglas. The Committeeman took the cigar out of his mouth, glared at Abner and asked: "Who sent you?" When Ab said, "Nobody sent me", he put the cigar back in his mouth and said: "We don't want nobody that nobody sent."
Needless to say, Abner's later successful career in the legislative arena was the product of his own talents rather than the support of any political machine. Despite the unpopularity of civil rights and environmental issues with substantial segments of his constituency, Abner was forthright and consistent in maintaining positions that he believed correct. When he was first elected to Congress from a District that included the University of Chicago, he was not the Party's favorite Democrat. As a result of the gerrymandering that followed the 1970 census, his district was reconfigured in a way that guaranteed his defeat. Abner's response was to move to Evanston, a wealthy and primarily Republican suburb, and to run for Congress from that District. In close elections he was unsuccessful in 1972, but won in 1974, 1976 and 1978.
When gerrymandering tactics are successful, instead of having the voters choose their representatives, the legislators choose their constituents. In my judgment the ever-increasing use of such tactics has had an insidious effect on the quality of the legislative process, making primary elections more important than general elections, favoring extremists over moderates in both parties, and generally making confrontation seem more acceptable than compromise. I remain convinced that the Supreme Court was not faithful to the principles that produced the decisions in Baker v. Carr and Reynolds v. Sims when it perversely concluded that political gerrymandering, unlike racial gerrymandering, is nonjusticiable. In the long run, however, the most effective response to gerrymandering must be provided by voters, and by candidates like Abner Mikva.
In closing, I want to congratulate Abner on his designation as the recipient of the Thurgood Marshall award and to endorse the sentiments expressed by the Speaker of the House of Representatives at the hearing on his confirmation as a circuit judge. Abner "is able to disagree without being disagreeable. He understands that reasonable people can differ without thinking less of each other. Never does he hold a grudge." Would that we had more public servants with his ability, temperament and character!