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Law Office Management
Jun. 2, 2009
Earning My Stripes
It was 1979. I rose nervously before Mississippi Federal District Judge William Harold Cox and began to introduce myself. It wasn't enough that I had been a lawyer for less than six months, or that this was my first appearance in court. I was arguing before a judge who, the prior year, had been named Man of the Year by the Ku Klux Klan. Before I could say anything, Judge Cox weighed in: "So what color's your client, anyway?" I was flabbergasted, particularly because it wasn't a racial-discrimination case. I tried to object, but he cut me off again: "I can't hear you through all them whiskers." (I sported a full beard at the time.) Well, things were certainly not going very well for my side. And they only got worse over the next two days of that police-misconduct trial. I was the ACLU attorney for the state of Mississippi. Someone had convinced me that if I wanted to be a "real" civil rights attorney, I needed to earn my stripes south of the Mason-Dixon Line. I just didn't know that I'd earn them all in these two days of trial. But Cox proceeded to berate me mercilessly about my law school education, my accent, and my being a Yankee. At one point, I was cross-examining a deputy sheriff and trying to establish that the "trusty" (a prisoner with privileges) had made it known that my client, held in custody, was seriously injured. I asked: "Isn't it true that the trusty relayed my client's request for medical assistance?" After a few minutes of this line of questioning, Cox leaned over toward the deputy sheriff and, with a knowing smile and feigned ignorance, mockingly asked: "Do you understand what counsel's talking about? Because I don't have any idea." Then after mimicking my Yankee pronunciation of "trusty," Cox added, "But maybe counsel is coming down here trying to teach us a thing or two." Then the two of them had a good laugh. Needless to say, Cox quickly overruled nearly every objection I made. And when I tried to make an offer of proof, or otherwise invoke the appellate authority of the Fifth Circuit, Cox would invariably respond: "The fifth circus, I don't pay no mind to the fifth circus." But the Fifth Circuit paid close attention to Cox; his reversal rate on civil rights cases was more than 90 percent. When I appealed the case, I held out little hope for success. After all, it was a factual dispute, and given the deference generally accorded a trial judge on fact findings I assumed it was a loser. Nonetheless, my brief gave the appellate court the full flavor of the trial proceedings, detailing Cox's systematic abuse of my client and me. The Fifth Circuit not only reversed Cox's ruling but, for only the second time in its history, ordered a new trial in front of a different judge. So how did Harold Cox ever get on the bench? During the early 1960s, when Mississippi's Senator James Eastland had a stranglehold on the Judiciary Committee's judicial-confirmation process, President John F. Kennedy sought a spot on the circuit court for Thurgood Marshall. At the same time, Eastland was seeking a spot on the district court for Cox. Eastland then apparently told Kennedy: "We'll give you your nigger if you give us Cox." So, a man who a few short years later would become the first black Supreme Court justice was "traded" for arguably the most racist judge ever to sit on the federal bench. As I reflect on my career 30 years later, I can't help but notice that, though they are perhaps extreme examples, Marshall and Cox are emblematic of the dichotomy that continues to exist in the federal courts. From an ideological perspective, even aside from the issue of judicial integrity, "Cox" judges are prone to limiting access to the courts through narrow rulings on standing and private right of action while also holding that Congress lacks the power to legislate in areas such as environmental law and civil rights. The "Marshall" side typically views access to courts more liberally and construes constitutional rights in a more expansive manner. In a way, I am a product of the legacies of both Justice Marshall and Judge Cox. In Marshall, I found the quintessential civil rights warrior; from Cox, I learned how easily judicial power can be abused?but also how critical it is to confront, challenge, and remedy such abuse whenever and wherever it is revealed. Robert Rubin is the legal director for Lawyers' Committee for Civil Rights of the San Francisco Bay Area.
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Usman Baporia
Daily Journal Staff Writer
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