Re: Analogous Events In The Early 1970s That Relate To Judge Roberts

August 26, 2005

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Re: Analogous Events In The Early 1970s That Relate To Judge Roberts.
From: Dean Lawrence R. Velvel
VelvelOnNationalAffairs.com

Dear Colleagues:

I think it potentially is of vast import that Judge Roberts remained on, did not recuse himself from, the case involving use of military tribunals -- a case critical to the Administration -- while he interviewed with high Administration officials for a Supreme Court appointment. My view is shaped in part by analogous historical events that occurred nearly 35 years ago (in the early ’70s), events in which I played a bit part as a lawyer in a case challenging the Viet Nam War. I have written of these analogous events in Volume I of a quartet, and the pertinent 2½ pages from that volume are appended below. Many matters have been fictionalized, but the episode is based on events that actually occurred.

One thinks that judges who are seeking or being interviewed for an imminent Supreme Court appointment should not be sitting on a case involving crucial, highly divisive policies of the President from whom they desire or would accept appointment. It is at best very unseemly. It conceivably could be much worse than that.*

This posting represents the personal views of Lawrence R. Velvel. If you wish to respond to this email/blog, please email your response to me at velvel@mslaw.edu. Your response may be posted on the blog if you have no objection; please tell me if you do object.

Excerpt from Volume I

Yet another strange, and reprehensible, event involving the judiciary occurred in Philadelphia. There Brohnz, on behalf of some reservists, filed an amicus curiae or third party "friend of the court" brief in a case brought by draftees who had been ordered to Nam. In those days some cases were heard in federal trial courts not by one judge, but by a panel of three judges. Often — possibly even always — one of the three judges on the panel would be an appeals court judge sitting "by designation," just as one of the three judges on an appeals court panel would often be a trial court judge sitting "by designation." On this three judge panel in Philadelphia, there was, as one might expect, an appeals court judge, Alan Ayers, sitting "by designation."

When Brohnz introduced himself to the three judge panel, Ayers, who was its chairman, graciously said, "Yes, the country’s most famous plaintiff." This was a reference to the fact that, a few years before, Brohnz had brought a case in his own name in Far Midwest challenging the war as a taxpayer and a citizen. The trial court judge had of course dismissed his case, but in the opinion had nevertheless complimented Brohnz’s briefs as "copious and persuasive." This was nice of him. It was even the nicer because, when the case, named Harry Brohnz v. Lyndon Johnson, had been called by the clerk of the court in Far Midwest, the numerous 40 and 50 year old reactionary lawyers sitting in the courtroom had broken out laughing at Brohnz. They thought it ludicrous that some ordinary person would sue the President.

So Ayers was referring to the case Brohnz had brought when he welcomed "the country’s most famous plaintiff." His comment was gracious even though it was over the top.

Three months later the three judge panel issued a lengthy 60-page opinion finding against the draftees. The opinion was written by Ayers. It distorted quite a lot of American history relating to military actions and, strangely, did not really explain why it was expending large amounts of space describing past events, such as attacking pirates, that did not seem to have much in common with a major war like Viet Nam. It seemed largely an exegesis of irrelevant knowledge done purely for the purpose of pedantry. In later years, there was a pedant on the federal appeals court in Boston who, in every opinion, used words that even C.P. Snow would not understand. Ayers’ opinion was a sort of analogy to this.

Strange as Ayers’ opinion seemed, Brohnz gave it no thought until a couple of years later, when Wolfe had to fly from Washington to Minneapolis in the dead of winter to argue an antitrust case. There was a truly awful blizzard in Minneapolis, so planes could not land there. Instead they landed, if you can believe it, in Fargo, North Dakota. There, on a hinterlands tarmac in rural North Dakota, one saw eight 747s, 727s, and DC10s from all over the country which had landed in Fargo because they were unable to land in Minneapolis. Hungry passengers descended by the hundreds on the airport restaurant, which was small, had only one waitress, and was about to close for the day. In order to eat, passengers did the cooking and serving themselves.

In the restaurant Wolfe ran into a famous New York civil liberties lawyer, Byron Newtown. Newtown had been on a plane scheduled to go from New York to Minneapolis, where he was participating in the defense of Leonard Peltier, the famous radical Indian political leader who was charged with the murder of federal agents. Wolfe and Newtown got to talking, and the subject of the decision of the three judge panel in Philadelphia came up. Newtown told Wolfe that Ayers’ opinion had been his bid to obtain nomination to the Supreme Court by the Nixon Administration. Ayers had been on the short list for nomination, said Newtown, and had hoped that writing a long, seemingly erudite opinion in Nixon’s favor would secure him the nomination.

When Brohnz heard of this conversation from Wolfe, he naively did not believe a word of what Newtown had said. Brohnz had never heard of Ayers being on the short list, and could not believe that a judge would be so intellectually and morally corrupt as to write an opinion purely to secure a nomination. But years later it became public that Ayers had indeed been on the short list, and the implication that an opinion which otherwise seemed merely a pedantic historical exegesis was in fact an attempt to curry favor became irresistible. Why else would this irrelevant but pro-Nixon pedantry have been written?

For Ayers to have done this, for him to have sucked after the nomination in this way, seemed reprehensible to Brohnz. Ironically, a few decades later, shortly after it became public that Ayers had been on the short list, Ayers helped Brohnz out. By that time, Ayers had retired from the appeals court, where he had won a fine reputation over 20 years, and was a partner in a law firm. Brohnz hired him to act as a judge in a preparatory run-through, in a rehearsal if you will, of an upcoming argument in the Philadelphia appeals court on the subject of law school accreditation. Ayers made valuable suggestions and seemed a nice fellow. One of Brohnz’s reactions to this was that it showed how even a decent person will stoop shamefully to do the wrong thing when ambition beckons, as it had years before for Ayers.
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