Thoughts and Perspectives

Judge Higginbotham, I Concede that I Am Black, 1974 -Lesser Known Past Voices Series #1

Judge Higginbotham, “I Concede that I Am Black” (December 4, 1974)

In the following trial transcript, Federal Judge Leon Higginbotham addresses allegations that he is biased and should recuse himself from hearing Commonwealth of Pennsylvania and Raymond Williams et al. v. Local Union 542, International Union of Operating Engineers, et al. because the case involves allegations of racism. Scholars still confront questions involving the same core issue addressed here. Can “white” scholars study black history, for example? This transcript has been edited by Andrew Joseph Pegoda.

INTRODUCTION

….For reasons that will hereinafter appear, I have concluded that these affidavits [from the defendants] are, as a matter of law, insufficient to justify my disqualification as judge in the instant action. Defendants’ motions for disqualification must therefore be denied….

IV. DEFENDANTS’ AUTHORITIES

Because these motions for disqualification touch me personally….I carefully reviewed all of the cases cited by Local 542 in its memorandum….research has convinced me that defendant’s position, though rich in good faith, is devoid of merit. Each of those cases arose out of a factual context radically different from this one..…

V. BEING BLACK, AND THE APPEARANCE OF IMPARTIALITY

When stripped to its essence, the gravamen of defendants’ objection seems primarily based on the following express or implicit allegations:

(1) I am black;

(2) Some of the defendant union’s members are white;

(3) The instant case involves a claim of racial discrimination;

(4) “By agreeing to appear before such group [The Association for the Study of Afro-American Life and History] Judge Higginbotham presented himself as a leader in the future course of the black civil rights movement,” and

(5) By my appearance at the Association’s meeting and/or by the substance of the remarks I actually made or as they were quoted in the newspaper, “the continuation of [Judge Higginbotham] as finder of fact, molder of remedy, and arbiter of all issues constitutes judicial impropriety.”

A. BEING BLACK

I concede that I am black. I do not apologize for that obvious fact. I take rational pride in my heritage, just as most other ethnics take pride in theirs. However, that one is black does not mean, ipso facto, that he is anti-white; no more than being Jewish implies being anti-Catholic, or being Catholic implies being anti-Protestant. As do most blacks, I believe that the corridors of history in this country have been lined with countless instances of racial injustice. This is evident by the plain historical fact that for more than two and a half centuries, millions of blacks were slaves under the rule and sanction of law — a fate which confronted no other major minority in this country. Every presidential commission and almost every Supreme Court opinion dealing with racial matters have noted the fact that in this country, there has often been racial injustice for blacks.

Thus a threshold question which might be inferred from defendants’ petition is: Since blacks (like most other thoughtful Americans) are aware of the “sordid chapter in American history” of racial injustice, shouldn’t black judges be disqualified per se from adjudicating cases involving claims of racial discrimination? Defendants do not go so far as to precisely assert that black judges should per se be disqualified from hearing cases which involve racial issues, but, as will be demonstrated hereinafter, the absolute consequence and thrust of their rationale would amount to, in practice, a double standard within the federal judiciary. By that standard, white judges will be permitted to keep the latitude they have enjoyed for centuries in discussing matters of intellectual substance, even issues of human rights and, because they are white, still be permitted to later decide specific factual situations involving the principles of human rights which they have discussed previously in a generalized fashion. But for black judges, defendants insist on a far more rigid standard, which would preclude black judges from ever discussing race relations even in the generalized fashion that other justices and judges have discussed issues of human rights. Under defendants’ standards, if a black judge discusses race relations, he should thereafter be precluded from adjudicating matters, involving specific claims of racial discrimination.

To suggest that black judges should be so disqualified would be analogous to suggesting that the slave masters were right when, during tragic hours for this nation, they argued that only they, but not the slaves, could evaluate the harshness or justness of the system. If defendants

are not implying this extreme position about blackness per se as a basis for disqualification, then one must examine the rationale of their other allegations.

B. THE PERNICIOUSNESS OF APPEARING BEFORE THE ASSOCIATION FOR THE STUDY OF AFRO-AMERICAN LIFE AND HISTORY?

The newspaper clipping and the pleadings state that I was speaking to “a group of black historians” at the 59th Annual Meeting of the Association for the Study of Afro-American Life and History. This organization was not a labor group, not an institute of management, not a political party, not the Black Panthers, not any entity which on or off the record has ever had a history antagonistic to those white Americans who believe in equal justice under the law. When compared with the meetings or conventions of labor unions, management associations, political parties or partisan activist groups, a meeting of historians is almost by definition as calm and dispassionate a gathering as one can find on the national convention scene. More often than not, historians suggest tentative hypotheses about social issues by analyzing the ebb and flow of the tides of history. Generally, they do not volunteer precise answers to those specific fact-finding aspects of the litigation process which are partially dependent on issues of the credibility of proffered evidence. In his classic Nora and Edward Ryerson Lecture at the University of Chicago, on April 23, 1974, famed scholar John Hope Franklin, speaking on “The Historian and Public Policy,” suggested….

Would it have been permissible for a black to have talked to white historians, or is there something particularly opprobrious about speaking to any group of historians which thereafter taints one’s ability to participate in the judicial process? Do petitioners suggest that it is more sinister for a black judge to speak to black historians than for the Chief Justice of the United States Supreme Court to speak to the National Conference of Christians and Jews? Should the distinguished Chief Justice be barred in the future from adjudicating cases where claims of religious or racial bigotry are urged, simply because he spoke to a distinguished group which supports the concepts of the brotherhood of man, the golden rule, and fair play?

Many judges of this court have spoken to bar associations, including those specialized sections of the bar such as the plaintiff’s personal injury bar, or the defense bar. Should such judges be forever barred from adjudicating personal injury cases involving plaintiffs or defendants? Is there anything more malevolent in speaking to a group of black historians about equal justice under the law than for a Catholic, Jewish, or Protestant judge to speak in his cathedral, synagogue or church on the Sermon on the Mount, or the Torah? If a Catholic judge spoke to a group of Catholic historians, should he be forever barred from adjudicating cases involving the constitutionality of state appropriations disbursed to parochial schools? Was my speech malevolent because its occasion was a national meeting? Does something inherently more pernicious occur when 100 black historians get together at a national conference than when 20 meet in a local setting?

C. IS IT PERMISSIBLE FOR BLACK JUDGES TO BE SCHOLARS IN THE RACE RELATIONS FIELD?

….Do defendants think it sinister that some individuals consider me a scholar in the race relations field? Is it that scholarship which is their ultimate grievance? …Should, after 1954, Judge Biggs have been disqualified from hearing cases involving mental illness because the American Psychiatric Association recognized his tremendous scholarly talents and gave him their most coveted award? Complex patent cases in this district were constantly assigned to the late Judge William H. Kirkpatrick. Should he have been disqualified because of his nationally recognized expertise in patent law? Are defendants suggesting that, except for black judges who become scholars on race and the American legal process, all other judges may be scholars in any field in which they may later be required to make an adjudication?

Defendants’ objection to scholarship again displays their insistence on a different standard for black judges. Presumably defendants should not fear scholarship, but should instead be pleased that they would not have to “educate” a judge on the rudiments of the field.

VI. THE SUBSTANCE OF THE SPEECH AND RELEVANT PRECEDENT

….Thus, the core for all of defendants’ inferences is the word “applause.” But applause does not necessarily mean that a presentation was made in “emotional terms.” To imply that it was made in “emotional terms” is predicated on the assumption that several hundred black scholars cannot react with enthusiasm to a rational and non-emotional address. To say that the speaker spoke in terms of “solidarity” must be predicated on a similar assumption, that black scholars cannot react with enthusiasm to a rational presentation until the declarant uses the term “solidarity.”

Defendants assert that my use of the term “we” indicates an emotional identification with my audience which requires my disqualification. Perhaps defendants would have wanted me to say “You black people must pursue your options for equal justice in other forums.” Maybe that approach would have been permissible. Perhaps, on the Fourth of July, they would want orators to say “You hold these truths to be self evident, that all men are created equal . . .,” but never declare that “We hold these truths to be self evident.” If defendants’ rationale is accepted, whenever an orator says “we” in such a context, he is involved in a conspiracy which precludes his capacity to judge thereafter with impartiality.

Finally, defendants assert that “By agreeing to appear before such group, Judge Higginbotham presented himself as a leader in the future course of the black civil rights movement.” The defendants overstate their case and probably unintentionally denigrate the black civil rights movement. They confuse the civil rights movement with the study of history.

Yet even if the inferences asserted are permissible, the crux of their objection has to be that I dared to speak out on Racism and the American Legal Process to a group of black historians, and that the substance of my comments indicates a bias that will affect this case. The entire article read as follows:….

IX. THE OLD AND NEW ORDER OF THINGS

If, for the reasons previously discussed, defendants’ motions are meritless, and since the motions are presumably filed in good faith, what other rationale could explain why defendants so vehemently assert their claim that I be disqualified in the instant case? Perhaps, among some whites, there is an inherent disquietude when they see that occasionally blacks are adjudicating matters pertaining to race relations, and perhaps that anxiety can be eliminated only by having no black judges sit on such matters or, if one cannot escape a black judge, then by having the latter bend over backwards to the detriment of black litigants and black citizens and thus assure that brand of “impartiality” which some whites think they deserve.….

There is even a more subtle aspect to defendants’ argument. It would appear to stem from their possibly subconscious expectations of a black judge’s image. They seem highly agitated by the fact that a black judge, with some knowledge of the history of his people, has received sufficient recognition to be invited to speak to a group of black historians. They contend that for him to accept the invitation is to breach his impartiality. Thus, in effect, they are arguing that a black judge cannot convince some whites that he possesses the requisite impartiality unless he shuns associations of black scholars and, a fortiori, never speaks to them. Thus by the subtle tone of their objection, they demonstrate either that they want black judges to be robots who are totally isolated from their racial heritage and unconcerned about it, or, more probably, that the impartiality of a black judge can be assured only if he disavows, or does not discuss, the legitimacy of blacks’ aspirations to full first class citizenship in their own native land. Again, in the good old days, it was possible to find a retinue of colored leaders who by their speeches, their actions, and their public declarations assured whites, and more specifically the white power structure, that the colored man would not rock the boat on what whites perceived to be their sea of racial tranquility.….

CONCLUSION
In many ways this opinion may appear to be too long and prolix. But if defendants’ arguments are asserted in good faith and sincerity, they nevertheless represent an almost subconscious expression of their expectation of the deportment of blacks and, more specifically, of black judges. If America is going to have a total rendezvous with justice so that there can be full equality for blacks, other minorities, and women, it is essential that the “instinct” for double standards be completely exposed and hopefully, through analysis, those elements of irrationality can be ultimately eradicated. It is regrettable that in this case I must take substantial time and effort to answer defendants’ meritless allegations, but in some respects the motions merely highlight the duality of burdens which blacks have in public life. Blacks must meet not only the normal obligations which confront their colleagues, but often they must spend extraordinary amounts of time in answering irrational positions and assertions before they can fulfill their primary public responsibilities.

My remarks to the Association for the Study of Afro-American Life and History on October 25, 1974 are the factual foundation for defendants’ motions. Those remarks reflected a position similar to the one which that distinguished federal jurist from South Carolina, Judge Waring, once took in behalf of equal racial justice. My remarks, like his, showed “at most, zeal for upholding the rights of Negroes under the Constitution and indignation that attempt should be made to deny them their rights. A judge cannot be disqualified merely because he believes in upholding the law, even though he says so with vehemence.”

Of course, I do have feelings that this nation must fulfill its theoretical commitment to equal justice under the law. I do not apologize for these feelings, nor do I apologize for my remarks. Given the same opportunity, I would make those remarks again today. If I had not in fact made them, I would wish that I had.

Defendants’ Motions for Disqualification are denied.

1Higginbotham

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